Reviewer Succession

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SUCCESSION SUCCESSION  A mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (Art. 774) Kinds: 1. Testamentary or Testacy (by will); 2. Legal or intestacy (by operation of law based on the decedent’s presumed will); 3. Mixed (Partly Testamentary and Legal); and 4. Partition inter vivos (to a certain degree). Elements: 1. DECEDENT (subjective element) 2. SUCCESSORS (subjective element) a. Heirs - those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation of law 1) Voluntary – those instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose. 2) Compulsory or Forced – those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, known as the legitime. 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. b. Devisees or legatees - persons to whom gifts of real or personal

property are respectively given by virtue of a will NOTE: The distinctions between heirs and devisees/legatees are significant in these cases: 1. Preterition (pretermission) 2. Imperfect disinheritance 3. After-acquired properties 4. Acceptance or nonrepudiation of the successional rights. 3. DEATH OF THE DECEDENT (casual element)  Moment when rights to succeed are transmitted (Art 777)  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 still be alive. 4. Inheritance (objective element); NOTE: Whatever may be the time when actual transmission takes place, succession takes place in any event at the moment of the decedent’s death. (Lorenzo vs. Posadas 64 Phil 353) 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

Inheritance includes: 1. PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATH General rules on rights and obligations extinguished by his death a) Rights which are purely personal are by their nature and purpose intransmissible for they are

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID

b)

c)

extinguished by death (e.g. those relating to civil personality, family rights, discharge of office). Rights which are patrimonial or relating to property are generally part of inheritance as they are not extinguished by death. Rights of obligations are by nature transmissible and may constitute part of inheritance both with respect to the rights of the creditor and as regards to the obligations of the debtor.

2. ALL WHICH HAVE ACCRUED THERETO SINCE THE OPENING OF SUCCESSION (Article 781 Civil Code)

I. TESTAMENTARY SUCCESSION A. CONCEPT WILL - an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate to take effect after his death (Art. 783) NOTE: Thus, a document that does not purport to dispose of one’s estate either by the institution of heirs or designation of devisees/legatees or, indirectly, by effecting a disinheritance, is not to be governed by the law on testamentary succession but by some other applicable laws. Kinds of Wills: 1. Notarial or ordinary 2. Holographic Characteristics of a Will: 1. UNILATERAL 2. STRICTLY PERSONAL ACT - The disposition of property is solely dependent upon the testator. NOTE: The following acts MAY NOT be left to the discretion of a third person: (Article 785, 787 Civil Code) duration or efficacy of the designation of heirs, devisees or legatees; CIVIL LAW COMMITTEE

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determination of the portions which they are to take, when referred to by name; and determination of whether or not the testamentary disposition is to be operative. NOTE: However, the following acts MAY be entrusted to a third person: (Article 786 Civil Code) a. distribution of specific property or sums of money that he may leave in general to specified classes or causes; and b. designation of the persons, institutions or establishments to which such property or sums are to be given or applied. 3. FREE AND VOLUNTARY ACT – Any vice affecting the testamentary freedom can cause the disallowance of the will. 4. FORMAL AND SOLEMN ACT – The formalities are essential for the validity of the will. 5. ACT MORTIS CAUSA 6. AMBULATORY AND REVOCABLE DURING THE TESTATOR’S LIFETIME 7. INDIVIDUAL ACT – Two or more persons cannot make a single joint will, either for their reciprocal benefit or for another person. However, separate or individually executed wills, although containing reciprocal provisions (mutual wills), are not prohibited, subject to the rule on disposicion captatoria. DISPOSITION OF PROPERTY B. INTERPRETATION OF WILLS (ARTS. 788-792) The testator’s intent (animus testandi), as well as giving effect to such intent, is primordial. It is sometimes said that the supreme law in succession is the intent of the testator. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. In case of doubt, that interpretation by which the disposition is to be operative shall be preferred. That construction is to be adopted which will sustain and uphold the will in all its parts, if it can

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID be done consistently established rules of law.

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Kinds of Ambiguities: (Article 786) 1. LATENT OR INTRINSIC AMBIGUITIES – that which does not appear on the face of the will and is discovered only by extrinsic evidence. 2. PATENT OR EXTRINSIC AMBIGUITIES – that which appears on the face of the will itself NOTES:  There is no distinction between patent and latent ambiguities, in so far as the admissibility of parol or extrinsic evidence to aid testamentary disposition is concerned.  Extrinsic evidence to explain ambiguities in a will cannot include oral declarations of the testator as to his intention.  The validity of a will as to its form depends upon the observance of law in force at the time it is made. (Art. 795).  If a law different from the law in force at the time of the execution of the will goes into effect before or after the death of the testator, such a law shall not affect the validity of the will, provided that such will was duly executed In accordance with the formalities prescribed by law in force at the time it was made. AFTER-ACQUIRED PROPERTY (Art. 793) Gen. Rule: 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. Exception: When a contrary intention expressly appears in the will NOTE: This rule applies only to legacies and devises and not to institution of heirs. C. TESTAMENTARY CAPACITY – refers to the ability as well as the power to make a will. CIVIL LAW COMMITTEE

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- must be present at the time of the execution of the will.

Requisites: 1. At least 18 years of age 2. Of sound mind, i.e., the ability to know: a. the nature of the estate to be disposed of; b. the proper objects of his bounty; and c. the character of the testamentary act. NOTE: The law presumes that the testator is of sound mind, UNLESS: a. he, one month or less, before making his will, was publicly known to be insane; or b. was under guardianship at the time of making his will. (Torres and Lopez de Bueno vs. Lopez 48 Phil 772) In both cases, the burden of proving sanity is cast upon proponents of the will. Effect of Certain Infirmities: 1. mere senility or infirmity of old age does not necessarily imply that a person lacks testamentary capacity; 2. physical infirmity or disease is not inconsistent with testamentary capacity; 3. persons suffering from idiocy (those congenitally deficient in intellect), imbecility (those who are mentally deficient as a result of disease), and senile dementia (peculiar decay of the mental faculties whereby the person afflicted is reduced to second childhood) do not possess the necessary mental capacity to make a will; 4. an insane delusion which will render one incapable of making a will may be defined as a belief in things which do not exist, and which no rational mind would believe to exist; 5. if the insane delusion touches to subject matter of the will, testamentary disposition is void.

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID 6. a deaf-mute and blind person can make a will (i.e. Art. 807-808). A blind man with a sound and disposing mind can make a holographic will. 7. an intoxicated person or person under the influence of drugs may make a will as there is no complete loss of understanding. Exception: where the testator has used intoxicating liquor or drugs excessively to such an extent as to impair his mind, so that at the time the will is executed, he does not know the extent and value of his property, or the names of persons who are the natural objects of his bounty, the instrument thus executed will be denied probate for lack of testamentary capacity. D. FORMALITIES OF WILLS (EXTRINSIC VALIDITY) COMMON FORMALITIES 1. Every will must be in writing; and 2. Executed in a language or dialect known to the testator. SPECIAL FORMALITIES I. NOTARIAL OR ORDINARY WILL a. SUBSCRIPTION – made at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction;  Subscription refers to the manual act of testator and also of his instrumental witnesses of affixing their signature to the instrument. b. ATTESTATION AND SUBSCRIPTION (evidenced by an “attestation clause”) by 3 or more credible witnesses in the presence of the testator and of one another;  Attestation consists in the act of witnesses of witnessing the execution of the will in order to see and take note mentally that such will has been executed in accordance with requirements prescribed by law. ATTESTATION

SUBSCRIPTION

1. an act of the senses 2. mental act 3. purpose is to render available proof during probate of will

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1. an act of the hand 2. mechanical act 3. purpose is identification

c. MARGINAL SIGNATURES – affixed by the testator or the person requested by him to write his name and the instrumental witnesses of the will on each and every page thereof, except the last, on the left margin; Exceptions to the rule that all of the pages of the will shall have to be signed on the left margin by the testator and witnesses:: (1) in the last page, when the will consists of two or more pages; (2) when the will consists of only one page; (3) when the will consists of two pages, the first of which contains all the testamentary dispositions 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.

 The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate (Icasiano vs. Icasiano II SCRA 422). d. PAGE NUMBERINGS – Written correlatively in letters placed on the upper part of each page; NOTE: This is not necessary when all of the dispositive parts of a will are written on one sheet only. e. ACKNOWLEDGMENT – Done before a notary public by the testator and the instrumental witnesses. NOTE: The notary public before whom the will was acknowledged cannot be considered as the third instrumental

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID witness since he cannot acknowledge before himself his having signed the will. If the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. To allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Arts. 805 and 806. (Cruz vs. Villasor 54 SCRA 31)

It must state the following ESSENTIAL FACTS: 1. the number of pages used upon which the will is written; HOWEVER, even if number of pages is omitted in the AC BUT if there is an acknowledgment clause which states the number of pages or the will itself mentioned such number of pages, it may still be considered valid applying the Liberal Interpretation of the law. (Tabuada vs. Rosal)

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the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses;  When the testator expressly caused another to sign the former’s name, this fact must be recited in the attestation clause. Otherwise, the will is fatally defective. (Garcia vs. Lacuesta 90 Phil 489)

MANNER OF SIGNING:  The use of any signature, marks or design intended by the testator to authenticate renders the will sufficiently signed by the testator.  A signature by mark will be sufficient even if at the time of placing it, the testator knew how to write and is able to do so.  It is sufficiently signed by writing his initials, or his first name, or he may use even an assumed name.  A complete signature is not essential to the validity of a will, provided the part of the name written was affixed to the instrument with intent to execute it as a will. ATTESTATION CLAUSE - memorandum or record of facts wherein the witnesses certify that the will has been executed before them, and that it has been executed in accordance with the formalities prescribed by law.  Absence of this clause will render the will a nullity.

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that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. TEST OF PRESENCE: 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. (Jaboneta vs. Gustilo)

 In the case of an ordinary or attested

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will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. The language used in the attestation clause likewise need not even be known to the attesting witnesses. Art. 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses. (Caneda vs. CA 222 SCRA 781)

Effects of defects or imperfections in the Attestation Clause:  If the defect of the attestation clause goes into the very essence of the clause itself or consists in the omission of one, some, or all of the essential facts, and such omission cannot be cured by an examination

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID of the will itself, the defect is substantial in character, as a consequence of which the will is invalidated.

 However, In the absence of bad faith, forgery, fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with Art. 805 (formal requirements). This is known as the DOCTRINE OF LIBERAL INTERPRETATION (Art. 809) Purposes of requiring witness to attest and to subscribe to a will: 1. identification of the instrument 2. protection of the testator from fraud and deception 3. the ascertainment of the testamentary capacity of the testator. NOTE: Certain points to consider (Tolentino) 1. Mere knowledge by testator that another is signing, and acquiescing in it, there being no express direction, is NOT sufficient. 2. Not required that the name of the person who writes the testator’s name should also appear on the will; enough that testator’s name is written. 3. If the required numbers of attesting witness are competent, the fact that an additional witness, who was incompetent also attested to the will, cannot impair the validity. 4. Immaterial in what order the acts are performed provided the signature or acknowledgment by the testator and the attestation of the witnesses be accomplished in one occasion, and as part of one transaction. 5. The law refers to page and not to sheet or leaf or folio, so every

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page used in the will should be signed on the left margin. 6. An attestation clause need be signed ONLY by the witnesses and not by the testator as it is a declaration made by the witnesses. 7. date of will: a. ordinary will: not an essential part; b. holographic will: an essential part. 8. Failure or error to state the place of execution will not invalidate the will. 9. Signing of a will by the testator and witnesses and acknowledgment before a notary public, need not be a single act. 10. Testamentary capacity must also exist at the time of acknowledgment. ADDITIONAL REQUIREMENTS FOR SPECIAL CASES 1. Deaf or deaf-mute testator: a) personal reading of the will, if able to do so; OR b) if not possible, designation of 2 persons to read the will and communicate to him, in some practicable manner, the contents thereof. (Article 807) 2. Blind testator:  Doublereading requirement: a. first, by one of the subscribing witnesses, AND b. second, by the notary public before whom the will is acknowledged. (Article 808)  Art. 808 applies not only to blind testators but also to those who, for one reason or another are incapable of reading their wills (e.g. poor, defective or blurred vision).



In a case where the testator did not read the final draft of the will, but the lawyer who drafted the document, read the same aloud in the presence of the testator, 3 witnesses, and notary public, the Court held that the formal imperfections should be brushed

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID aside when the spirit behind the law was served though the letter was not. (Alvarado vs. Gaviola 226 SCRA 347) WITNESS TO NOTARIAL WILLS (ARTS. 820 & 821) Requirements: 1. of sound mind; 2. able to read and write; 3. not blind, deaf or dumb; 4. at least 18 years of age; 5. domiciled in the Philippines; 6. has not been convicted of falsification of a document, perjury, or false testimony NOTE: A witness need not know the contents of the will, and need not be shown to have had a good standing in the community where he lives. Also, the acknowledging notary public cannot be one of the 3 minimum numbers of witnesses. Interested witness  A witness to a will who is incapacitated from succeeding from the testator by reason of a devise/legacy or other testamentary disposition therein in his favor, or in favor of his spouse, parent, or child. However, his competence as a witness subsists. 2. HOLOGRAPHIC WILL (Article 810) a. entirely written by the hand of the testator; b. entirely dated by the hand of the testator; and c. entirely signed by the hand of the testator. NOTE: The law exacts literal compliance with these requirements. HENCE, THE DOCTRINE OF LIBERAL INTERPRETATION CANNOT BE APPLIED.

 Nevertheless, the Court held in a case that as a general rule, the “date” in a holographic will should include the day, month, and year of its execution. However, when there is no appearance of fraud, bad faith,

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undue influence and pressure and the authenticity of the will is established and the only issue is whether or not the date “FEB./61” appearing on the will is a valid compliance with Art. 810, probate of the holographic will should be allowed under the principle of substantial compliance. (In the matter of Intestate Estate of Andres de Jesus and Bibiana Roxas de Jesus, 134 SCRA 245) Rule in case of insertion, cancellation, erasure or alteration:  Testator must authenticate the same by his FULL SIGNATURE. (Article 814) NOTE: In the case of Kalaw vs. Relova (134 SCRA 241), the holographic will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid. Effects of words written by another and inserted in the words written by the testator: a. If the insertion was 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 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

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID the execution of the will, then the will is void because it is not written entirely by the testator. Probate of Holographic Will 1. If UNCONTESTED, requires that at least 1 witness who knows the handwriting and signature of the testator explicitly declare that the will and signature are in the handwriting of the testator; if no witness, expert testimony may be resorted to. 2. If CONTESTED, requires at least 3 of such credible witnesses, if none expert witness. NOTE: Where the testator himself petitions for the probate of his holographic will and no contest is file, the fact that he affirms that the holographic will and the signature are in his own handwriting, shall be sufficient evidence thereof. If the holographic will is contested, the burden of disproving the genuineness and due execution thereof shall be on the contestant.  A photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can be determined by the probate court, as comparison can be made with the standard writings of the testator. (Rodelas vs. Aranza, 119 SCRA 16) GOVERNING LAW ON FORMALITIES 1. As to time:  The validity of a will as to its form depends upon the observance of the law in force at the time it is made. Its intrinsic validity, however, is judged at the time of the decedent’s death by the law of his nationality.

2. As to place: a. Filipino testator executing a will in the Philippines: Philippine law b. Filipino testator executing a will outside of the Philippines: either 1) The law of the country in which it is executed; or CIVIL LAW COMMITTEE

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2) The law of the Philippines. c. Alien testator executing a will in the Philippines: either 1) The law of the Philippines; or 2) The law of the country of which he is a citizen or subject. d. Alien testator executing a will outside of the Philippines: either 1) The law of the place where it is executed; or 2) The law of the place in which he resides; or 3) The law of his country; or 4) The law of the Philippines. Aspects of the will governed by National Law of the Decedent (Article 1039 and Article 16 Civil Code) a. Order of succession b. Amount of successional rights c. Intrinsic validity d. Capacity to succeed Joint will – a single testamentary instrument which contains the wills of two or more persons, jointly executed by them, either for their reciprocal benefit or for the benefit of a third person --will of 2 or more persons is made in the same instrument and is jointly signed by them Mutual wills – wills executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner, each in consideration of the other --separate wills of 2 persons, which are reciprocal in their provisions. Reciprocal wills- wills in which the testators name each other as beneficiaries under similar testamentary plans NOTE: A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal and which shows on its face that the devises are made in consideration of the other. Such is prohibited. Reasons:

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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1. will is purely personal and unilateral act 2. contrary to the revocable character of a will 3. may expose the testator to undue influence, and may even induce one of the testators to kill the other.

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.

NOTE: Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the foreign country in which they may have been executed (Article 819 Civil Code). This prohibition is applicable only in joint wills executed by Filipinos in a foreign country; it does NOT APPLY to joint wills executed by aliens.

F. REVOCATION OF WILLS TESTAMENTARY DISPOSITIONS

E. CODICIL AND INCORPORATION BY REFERENCE CODICIL  A supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered. (Article 825) NOTE: To be effective, it must be executed as in the case of a will. Its execution has the effect of republishing the will as modified. INCORPORATION BY REFERENCE (ART 827)  Contemplates only lists of properties, books of accounts, and inventories.  Provisions which are in the nature of testamentary dispositions must be contained in the will itself. Requisites for a valid incorporation by reference: (ART 827) 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; CIVIL LAW COMMITTEE

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REVOCATION  An act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward or visible act or sign, symbolic thereof. Such right to revoke a will cannot be waived or restricted. LAWS WHICH GOVERN REVOCATION (ART 829) 1. If the revocation takes place in the Philippines, whether the testator is domiciled in the Philippines or in some other country, it is valid when it is in accordance with the laws of the Philippines 2. If the revocation takes place outside the Philippines, by a testator who is domiciled in the Philippines, it is valid when it is in accordance with the laws of the Philippines 3. Revocation done outside the Philippines, by a testator who does not have his domicile in this country, is valid when it is done according to the: 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 revocation; MODES OF REVOCATION (ART 830) 1. By implication of law: a. legal separation revokes testamentary provisions in favor of the offending spouse; b. preterition revokes the institution of heir; c. judicial action for recovery of debt revokes a legacy of credit/remission of debt;

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID d. transformation, alienation, or loss of bequeathed property revokes a legacy of such property; e. act of unworthiness by an heir, devisee/legatee revokes testamentary provisions in his favor; f. if both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and testamentary dispositions made by one in favor of the other are revoked by operation of law (Art. 44, Family Code); and g. void ab initio or annulled marriages revoke testamentary dispositions made by one spouse in favor of the other (Art. 50, Family Code). 2. By some will, codicil, or other writing, executed as provided in case of wills, which may either be: a. Express – when there is a revocatory clause expressly revoking the previous will or a part thereof b. Implied – when the provisions thereof are partially or entirely inconsistent with those of the previous will NOTE: While express revocation may be effected by a subsequent will, or a codicil, or a nontestamentary writing executed as provided in case of wills, implied revocation may be effected only by either a subsequent will, or a codicil. 3. By burning, tearing, cancelling, or obliterating the will. 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 CIVIL LAW COMMITTEE

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(THE LIST IS EXCLUSIVE.) NOTE: The act of revocation is a personal act of the testator. He cannot delegate to an agent the authority to do the act for him. Another person, however, may be selected by him as an instrument and directed to do the revocatory acts in his presence. A destruction not accomplished in the testator’s presence is an ineffective revocation of the will. DOCTRINE OF PRESUMED REVOCATION  Whenever it is established that the testator had in his possession or had ready access to the will, but upon his death it cannot be found or located, the presumption arises that it must have been revoked by him by an overt act.  Where it is shown that the will was in custody of the testator after its execution, and subsequently, it was found among the testator’s effects after his death in such a state of mutilation, cancellation or obliteration as represents a sufficient act of revocation, it will be presumed in the absence of evidence to the contrary, that such act was performed by the testator with the intention of revoking the will. DOCTRINE OF DEPENDENT RELATIVE REVOCATION (ART 832)  A revocation subject to a condition does not revoke a will unless and until the condition occurs. Thus, where a testator “revokes” a will with the proven intention that he would execute another will, his failure to validly make a latter will would permit the allowance of the earlier will.  Where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 63

MEMORY AID substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force (Vda. De Molo vs. Molo 90 Phil 37). Revocation by mistake  A revocation of a will based on a false cause or an illegal cause is null and void. Thus, where a testator by a codicil or later will, expressly grounding such revocation on the assumption of fact which turns out to be false, as where it is stated that the legatees/devisees named therein are dead, when in fact, they are living, the revocation does not take effect. G. REPUBLICATION AND REVIVAL OF WILLS REPUBLICATION  The act of the testator whereby he reproduces in a subsequent will (express) the dispositions contained in a previous will which is void as to its form, or he executes a codicil (constructive) to his will.  Its purpose is to cure the will of its formal defects. NOTES:  To republish a will void as to its form, all the dispositions must be reproduced or copied in the new or subsequent will;  To republish a will valid as to its form but already revoked the execution of a codicil which makes reference to the revoked will is sufficient. Effects of Republication by virtue of a Codicil: 1. Codicil revives the previous will 2. The old will is republished as of the date of the codicil— makes it speak, as it were, from the new and later date. CIVIL LAW COMMITTEE

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3. A will republished by a codicil is governed by a statute enacted to the execution of the will, but which was operative when the codicil was executed. REPUBLICATION

REVIVAL

1. Takes place by an act of the testator

1. Takes place by operation of law.

2. Corrects extrinsic and intrinsic defects.

2. Restores revoked will

a

REVIVAL  The restoration to validity of a will previously revoked by operation of law (implied revocation). PRINCIPLE OF INSTANTER  The express revocation of the first will renders it void because the revocatory clause of the second will, not being testamentary in character, operates to revoke the previous will instantly upon the execution of the will containing it. NOTE: In implied revocation, the first will is not instantly revoked by the second will because the inconsistent testamentary dispositions of the latter do not take effect immediately but only after the death of the testator. H. ALLOWANCE AND DISALLOWANCE OF WILLS PROBATE  A special proceeding mandatorily required for the purpose of establishing the validity of a will.  The statute of limitations is not applicable to probate of wills. Questions determinable by the probate court: (ICE) 1. identity of the will; 2. testamentary capacity of the testator at the time of the execution of the will; and 3. due execution of the will.

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 64

MEMORY AID  GENERAL RULE: In probate proceeding, the court’s area of inquiry is limited to an examination of, and resolution on the extrinsic validity if the will, the due execution thereof, the testatrix’s testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The probate court cannot inquire into the intrinsic validity of testamentary provisions.  EXCEPTION: Practical considerations, e.g. when the will is intrinsically void on its face.

 In Nuguid vs Nuguid (17 SCRA 449), the Supreme Court held that, if the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation would be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. RESULT: waste of time, effort, expense, plus added anxiety.

 In Nepomuceno vs CA (139 SCRA 207), the Court ruled that “the court can inquire as to the intrinsic validity of the will because there was an express statement that the beneficiary was a mistress. NOTES:  Criminal action will not lie against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction. (Mercado vs. Santos 66 Phil. 215)

 The fact that the will has been allowed without opposition and the order allowing the same has become final and executory is not a bar to the presentation of a codicil, provided it complies with all the formalities for executing a will. It is not necessary that the will and codicil be probated together as the CIVIL LAW COMMITTEE

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codicil may be concealed by an interested party. They may be probated one after the other. (Macam vs. Gatmaitan 60 Phil 358)

 When a will is declared void because it has not been executed in accordance with the formalities required by law, but one of the intestate heirs, after the settlement of the debts of the deceased, pays a legacy in compliance with a clause in the defective will, the payment is effective and irrevocable (Article 1430, NCC; Natural Obligations). Grounds for Disallowance of a Will (ART 839) 1. Formalities required by law have not been complied with; 2. Testator was insane, or otherwise incapable of making a will, at the time of its execution; 3. Will was executed through force or under duress, or the influence of fear, or threats; 4. Will was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; 5. Signature of the testator was procured by fraud; 6. Testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. NOTE: GROUNDS ARE EXCLUSIVE.

 Fair arguments, persuasion, appeal to emotions, and entreaties which, without fraud or deceit or actual coercion, compulsion or restraint do not constitute undue influence sufficient to invalidate a will. (Barreto vs. Reyes 98 Phil 996)  Burden is on the person challenging the will to show that such influence was exerted at the time of its execution.  To make a case of UNDUE INFLUENCE, the free agency of the testator must be shown to have been destroyed; but to establish a ground

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 65

MEMORY AID



of contest based on FRAUD, free agency of the testator need not be shown to have been destroyed. Allegations of fraud and undue influence are mutually repugnant and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will (Icasiano vs. Icasiano 11 SCRA 422) REVOCATION

DISALLOWANCE

1. voluntary act of the testator.

1. given by judicial decree.

2. with or without cause.

2. must always be for a legal cause.

3. may be partial or total.

3. always total except: when the ground of fraud or influence for example affects only certain portions of the will.

I. INSTITUTION OF HEIRS (ARTS. 840-856) INSTITUTION  An act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (Art 840)  The proper test in order to determine the validity of an institution of heir is the possibility of finally ascertaining the identity of the instituted heir by intrinsic or extrinsic evidence. PRESUMPTIONS 1. Presumption of Equality – Heirs instituted without designation of shares shall inherit in equal parts. This is limited only to the case where all of the heirs are of the same class or juridical condition, and where there are compulsory heirs among the heirs instituted, it should be applied only to the disposable free portion.

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2. Presumption of Individuality – When

3.

the testator institutes some heirs individually and others collectively, those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. Presumption of Simultaneity – when the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively.

INSTITUTION BASED ON A FALSE CAUSE (Article 850) GENERAL RULE: The statement of a false cause for the institution of an heir shall be considered as not written.  Reason: Generosity of the testator is the real cause of the testamentary disposition. EXCEPTION: If 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.  Example: Where the person instituted is a total stranger to the testator, it is obvious that the real cause of the testamentary disposition is not the generosity of the testator but the fact itself which turned out to be false. REQUISITES FOR THE ANNULMENT OF INSTITUTION OF HEIRS: 1. cause of institution of heirs must be stated in will; 2. cause must be shown to be false; 3. it must appear from the face of the will that the testator would not have made the institution had he known the falsity of the cause.



Where the one-sentence will institutes the petitioner as the sole, universal heir and preterits the parents of the testatrix, and it contains no specific legacies or bequests, such universal institution of petitioner, by itself, is void. Intestate succession ensues.

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 66

MEMORY AID (Nuguid vs. Nuguid, et al. 17 SCRA 449) PRETERITION (ART. 854)  Omission in the testator’s will of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. Requisites: 1. The heir omitted must be a compulsory heir in the direct line; 2. The omission must be complete and total in character; and 3. The compulsory heir omitted must survive the testator.  There is no total omission when: a. A devise/legacy has been given to the heir by the testator b. A donation inter vivos has been previously given to the heir by the testator; or c. Anything is left from the inheritance which the heir may get by way of intestacy. NOTE: In the above cases, the remedy of the heir is completion of legitime under Art. 906, in case the value of the property received is less than the value of the legitime. Effects of Preterition: 1. It annuls the institution of heir; 2. The devises and legacies are valid insofar as they are not inofficious; and 3. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation. NOTE: In case of omission without preterition, the rule in Art. 855 should be followed. The suggested alternate phrasing of Dr. Tolentino to the said article is: “The share of the compulsory heir omitted in a will must be first taken from the part of the estate not disposed of by the will, if any; if that is

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not sufficient, so much as may be necessary must be taken proportionally from the shares of the heirs given to them by will.” PRETERITION

DISINHERITANCE

1. deprivation of a compulsory heir of his legitime is tacit

1. deprivation of a compulsory heir of his legitime is express.

2. may be voluntary but the law presumes that it is involuntary

2. voluntary.

3. law presumes that there has been merely an oversight or mistake on the part of the testator.

3. done with legal cause.

4. omitted heir gets not only his legitime but also his share in the free portion not disposed of by way of legacies/ devises.

4. if disinheritance is not lawful, compulsory heir is merely restored to his legitime.

always

a



Where the deceased left no descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending line—her parents, and her holographic will does not explicitly disinherit them but simply omits them altogether, the case is one of preterition of parents, not a case of ineffective disinheritance. (Nuguid vs. Nuguid 17 SCRA 449) NOTE: Preterition of the surviving spouse (SS) does not entirely annul the institution of the heir since SS is not a compulsory heir in the direct line. However, since Article 842 protects the legitime of the SS, the institution is partially annulled by reducing the rights of the instituted heir to the extent necessary to cover the legitime of SS. (Tolentino) EFFECT OF PREDECEASE --an heir who dies before the testator shall transmit no right to his own heirs

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 67

MEMORY AID (rule is absolute with respect to a voluntary heir) --what is transmitted to the representatives of compulsory heir is his right to the legitime and not to the free portion EFFECT OF INCAPACITY --A voluntary heir who is incapacitated to succeed from testator shall transmit no right to his own heirs. --compulsory heir may be represented, but only with respect to his legitime EFFECT OF REPUDIATION --whether voluntary or compulsory, the heir who repudiates his inheritance cannot transmit any right to his own heirs. J. SUBSTITUTION OF HEIRS (ARTS 857-870) SUBSTITUTION  The act by which the testator designates the person or persons to take the place of the heir or heirs first instituted (Tolentino). It may be considered as a subsidiary and conditional institution. Kinds: 1. Simple or Common (that which takes place when the testator designates one or more persons to substitute the heirs/s instituted in case such heir/s should die before him, or should not wish, or should be incapacitated to accept the inheritance) 2. Brief or Compendious: brief (there are two or more persons designated by the testator to substitute for only one heir), compendious (one heir is designated to take the place of two or more heirs)  Instances when substitution takes place: a. instituted heir predeceases the testator; b. incapacity of the instituted heir to succeed from the testator; and

c.

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repudiation inheritance.

CIVIL LAW of

the

Effect of substitution: General rule: once the substitution has taken place, the substitute shall not only take over the share that would have passed to the instituted heir, but he shall be subject to the same charges and conditions imposed upon such instituted heir. Exceptions: (1) When the testator has expressly to the contrary; (2) When the charges or conditions are personally applicable only to the heir instituted. 3. Fideicommissary Requisites: a. First heir (fiduciary) called to the succession. b. An obligation clearly imposed upon such first heir to preserve the property and to transmit it to the second heir. c. Second heir (fideicommissary) to whom the property is transmitted by the first heir.  Without the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir, there is no fideicommissary substitution (Rabadilla vs. CA 334 SCRA 522) NOTE: Pending transmission of 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. Limitations: a. Substitution must not go beyond one degree from the heir originally instituted. b. “Degree” means degree of relationship. c. Fiduciary and fideicommissary must be living at the time of the death of the testator. d. Substitution must not burden the legitime of compulsory heirs.

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 68

MEMORY AID e. Substitution must be made expressly.  A fideicommissary substitution is void if the first heir is not related in the 1st degree to the second heir (Ramirez vs. Vda. De Ramirez 111 SCRA 704) K. CONDITIONAL, MODAL TESTAMENTARY DISPOSITIONS, AND TESTAMENTARY DISPOSITIONS WITH A TERM (ART 871-885)

 GENERAL RULE: The institution of an heir may be made 1) conditionally, 2) for a term, or 3) for a certain purpose or cause (modal). Conditions, terms, and modes however, are not presumed; they must be clearly expressed in the will. The condition must fairly appear from the language of the will. Otherwise, it is not binding.  LIMITATIONS: 1. The testator cannot impose any charge, burden, encumbrance, condition, or substitution whatsoever upon the legitime of compulsory heirs. 2. Impossible conditions and those contrary to law or good customs are presumed to have been imposed erroneously or through oversight, thus, are considered as not imposed. 3. An absolute condition not to contract a first marriage is always void and will be considered as not written. 4. An absolute condition not to contract a subsequent marriage is generally void, unless imposed upon a widow or widower by the deceased spouse or by the latter’s ascendants or descendants. Even so, however, the legitime of the surviving spouse cannot be impaired.



An absolute condition not to contract marriage when validly imposed is resolutory in character. Consequently, if the testator institutes his wife as heir subject to the condition that she will

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never marry again, she immediately acquires a right to the inheritance upon the death of testator, but if she violates the condition by contracting a 2nd marriage, she loses her right to said inheritance. NOTE: However, the following relative conditions regarding marriage have been considered as valid and binding: a. generic condition to contract marriage; b. specific condition to contract marriage with a determinate person; and c. specific condition not to contract marriage with a determinate person.

5. Any disposition made upon the condition that the heir shall make some provisions in his will in favor of the testator or of any other person shall be void (disposicion captatoria). 6. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by the law on succession. Kinds of Conditions 1. Potestative Condition – depends exclusively upon the will of the heir, devisee, or legatee, and must be performed by him personally. 2. Causal Condition –depends upon the will of the heir, devisee, or legatee, but upon the will of a third person. 3. Mixed – depends jointly upon the will of the heir, devisee, or legatee and upon chance and/or will of a third person. Fulfillment of Conditions: 1. Potestative Conditions must be fulfilled after the death of the testator (except when it has already been fulfilled and is of such nature that it cannot be repeated); 2. Causal or mixed conditions may be fulfilled either before or after such

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 69

MEMORY AID death, unless the provided otherwise.

testator

has

MODAL INSTITUTION (INSTITUCION SUB MODO)  Attachment by the testator to an institution of heir, or to a devise or legacy, of a statement of the: a. object of the institution; b. application of the property left by testator; or c. charge imposed by him. NOTES:  When in doubt as to 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 suspend (for he who inherits with a mode is already an heir; one who inherits conditionally is not yet an heir) DOCTRINE of CONSTRUCTIVE FULFILLMENT: When without the fault of the fault of the heir, an institucion sub modo cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. NOTE:  If the condition is casual, the doctrine is not applicable since the fulfillment of the event which constitutes the condition is independent of the will of the heir, devisee/legatee. If the condition is potestative or mixed, the doctrine is applicable. L. LEGITIMES (ARTS 886 – 914) LEGITIME  That part of the testator’s property which he cannot dispose of because the law has reserved it for certain

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heirs who are, therefore, called compulsory heirs.

 The course of action to enforce a legitime accrues upon the death of the donor-decedent since it is only then that the net estate may be ascertained and on which basis, the legitime may be determined. (Imperial vs. CA 316 SCRA 313) NOTE: One half of the estate is always reserved for the primary or secondary compulsory heirs. The other half is what is termed under the NCC as the “free portion” from which the legitime of the concurring compulsory heirs are taken. This “free portion” is different from the “disposable free portion” over which the testator has testamentary control. The “disposable free portion” is that which remains after the legitime has been covered. COMPULSORY HEIRS (CH)  Those for whom the legitime is reserved by law, and who succeed whether the testator likes it or not. They cannot be deprived by the testator of their legitime except by disinheritance properly effected. Kinds of Compulsory Heirs: 1. Primary – those who have precedence over and exclude other CH. E.g. LCD. 2. Secondary – those who succeed only in the absence of the primary CH. E.g. LPA or IP. 3. Concurring – those who succeed together with the primary or secondary CH. E.g. ICD and SS. If the testator is a LEGITIMATE person

If the testator is an ILLEGITIMATE person

1.

1.

Legitimate children and descendants (LCD)

Legitimate children and descendants (LCD)

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 70

MEMORY AID 2.

In default of the foregoing, legitimate parents and ascendants (LPA)

2.

Illegitimate children and descendants (ICD)

3.

Surviving spouse (SS)

3.

In default of the foregoing, illegitimate parents only (IP)

4.

Illegitimate children and descendants (ICD)

4.

Surviving spouse (SS)

NOTES:  See Sections 17 & 18 of R.A. 8552.  By force of the Family Code, adopted children are deemed legitimate children of the adopters.  By force of the Family Code, IC without distinction and so long as their filiation is duly established or proved in accordance with law, are each entitled to 1/2 of the legitime of a LC, thus abrogating the 5:4 ratio between “natural” and “nonnatural” IC. RULES: 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 (LC: LD only; IC: both LD and ID) d. If all the LC repudiate their legitime, the next generation of LD succeed in their own right 2. Direct ascending line a. Rule of division by lines b. Rule of equal division 3. Non-impairment of legitime TABLE OF LEGITIMES SURVIVOR LEGITIME

NOTES

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LC

½

Divide by the # of LC, whether they survive alone or with concurring CH.

1 LC SS

½ ¼

2 or more LC SS

½ equal to 1 LC

LC IC

½ ½ of 1 LC

LC SS IC

½ ¼ ½ of 1 LC

All the concurring CH get from the half free portion, the share of the SS having preference over that of the IC, whose share may suffer reduction pro rata because there is no preference among themselves.

LPA

½

Whether they survive alone or with concurring CH.

LPA IC

½ ¼

IC succeed in the ¼ in equal shares.

LPA SS

½ ¼

LPA SS IC

½ 1/8 ¼

IC

½

SS IC

1/3 1/3

Divide equally among the IC.

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 71

MEMORY AID SS

½

1/3 if marriage is in articulo mortis and deceased spouse dies within 3 mos. after the marriage.

IP

½

IP Any child

-excludedIt depends

Children inherit in the amounts established in the foregoing rules.

IP SS

¼ ¼

Only the parents are of IC are included. Grandparents and other ascendants are excluded.

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 charges 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; 6. Imputation of the value of all donations inter vivos made to compulsory heirs against their legitime and of the value of all donations inter vivos made to strangers against the disposable free portion and restoration to the

7.

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hereditary estate if the donation is inofficious; and Distribution of the residue of the estate in accordance with the will of the testator

COLLATION 1. Fictitious mathematical process of adding the value of the thing donated to the net value of the hereditary estate (Art. 908 and Arts. 1061-1077). 2. Act of charging or imputing such value against the legitime of the compulsory heir to whom the thing was donated (Arts. 1061-1077). 3. Actual act of restoring to the hereditary estate that part of the donation which is inofficious in order not to impair the legitime of compulsory heirs. RESERVA TRONCAL (ART 891)  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 such property for the benefit of relatives who are within the 3rd degree and who belong to the line from which such property came.  It constitutes as an exception to both the system of legitime and the order of intestate succession. Purposes: 1. To reserve certain property in favor of certain persons; 2. To prevent persons 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. NOTE: Considering the rationale for reserva troncal which is to ultimately revert ownership of property that originally belongs to a line of relatives but which by force of law passes to a different line, the reserva would have no reason to arise where the ascendants

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MEMORY AID who acquire the property themselves belong to the line of relatives from which the property was, in turn, acquired by the descendant. Requisites: 1. The property should have been acquired by operation of law by an ascendant (reservista) from his descendant (propositus) upon the death of the latter. 2. The property should have been previously acquired by gratuitous title by the descendant (propositus) from another ascendant or from a brother or sister (originator). 3. The descendant (propositus) should have died without any legitimate issue in the direct descending line who could inherit from him. Personal elements: 1. Originator – the ascendant, or brother or sister from whom the propositus had acquired the property by gratuitous title (e.g. donation, remission, testate or intestate succession); 2. Propositus – the descendant who died and from whose death the reservista in turn had acquired the property by operation of law (e.g. by way of legitime or intestate succession). The so-called “arbiter of the fate of the reserva troncal.” 3. Reservista – the ascendant, not belonging to the line from which the property came (Justice Vitug) that is the only compulsory heir and is obliged to reserve the property. NOTE: Dr. Tolentino is of the view that even if the reservista and the originator belong to the same line, there is still an obligation to reserve. 4. Reservatarios – the relatives of the propositus within the 3rd degree and who belong to the line from which the property came and for whose benefit the reservation is constituted. They must be related by blood not only to the propositus but also to the originator.

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NOTE: All personal elements must be joined by bonds of legitimate relationship. NOTE: In determining the right of the reservatarios over the reservable property, there are 2 events to consider: 1. Death of propositus: all qualified reservatarios acquire an inchoate right. Reservista owns the property subject to a resolutory condition. 2. Death of reservista: surviving reservatarios acquire a perfect right. NOTE: The NCC 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 lines b. Rule of proximity c. Right of representation (provided that the representative is a relative of the descendantpropositus within 3rd degree, and that he belongs to the line from which the reservable property came) d. “Full blood/double share” rule in Art. 1006  Property subject to reservation: must be the same property which the reservista had acquired by operation of law from propositus upon the death of the latter and which the latter, in turn had acquired by gratuitous title during his lifetime from another ascendant, brother/sister. Obligations of Reservista: (1) To make an inventory of all reservable property; (2) To appraise value of all reservable movable property; (3) To annotate in Registry of property the reservable character of all reservable immovable property; (4) To secure by mortgage (a) restitution of movables not alienated, (b) payment of damages caused by his fault or

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MEMORY AID negligence, (c) return of price received for movables alienated and (d) payment of value of immovable alienated.

 A reservatorio may dispose of his expentancy to the reservable property during pendency of the reserve in its uncertain and conditional form. If he dies before the reservista, he has not transmitted anything, but if he survives such reservista, the transmission shall become effective.

 A will may prevent the constitution of a reserva. In case of testate succession, only the legitime passes by operation of law. The propositus may, by will, opt to give the legitime of his ascendant without giving to the latter properties he had acquired by gratuitous title from another ascendant, or brother or sister. In such case, a reserva troncal is avoided. However, if the ascendant was not disentitled in the will to receive such properties, the reserva minima rule (proportional reserva) should be followed. The rule holds that all property passing to the reservista must be considered as passing partly by operation of law and partly by will of the propositus. Thus, one half of the properties acquired by gratuitous title should be reservable, and the other half should be free. Causes for Extinguishment of Reserva Troncal: 1. Death of reservatarios; 2. Death of all relatives of propositus within the 3rd degree who belong to the line from which the property came; 3. Loss of the reservable property for causes not due to the fault or negligence of the reservista. 4. Waiver or renunciation by the reservatarios; 5. Prescription of the right of the reservatarios, when the reservista holds the property adversely against

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them in the concept of an absolute owner; 6. Registration by the reservista of the property as free property under the Land Registration Act M. DISINHERITANCE (ART 915 – 923)  A testamentary disposition by which a person is deprived of, or excluded from, the inheritance to which he has a right.  A disinheritance properly effected totally excludes the disinherited heir from the inheritance. The disinherited heir is deprived not only of the legitime but also of such part of the free portion that would have passed to him by a previous will (which is revoked, as inconsistent with, the subsequent disinheritance) or by intestate succession. Requisites: 1. Effected only through a valid will; 2. For a cause expressly stated by law; 3. Cause must be stated in the will itself; 4. Cause must be certain and true; 5. Unconditional; 6. Total; and 7. The heir disinherited must be designated in such a manner that there can be no doubt as to his identity. Effects of Disinheritance: 1. Deprivation of the compulsory heir who is disinherited of any participation in the inheritance including the legitime. 2. The children/descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime. 3. The disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. IMPERFECT DISINHERITANCE

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MEMORY AID  A disinheritance which does not have one or more of the essential requisites for its validity.  Effects: 1. If testator had made disposition of the entire estate: annulment of the testamentary dispositions 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 testator did not dispose of the free portion: compulsory heir is 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. Devises, legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime.

IMPERFECT DISINHERITANCE

PRETERITION

1. The person disinherited may be any compulsory heir

1. The person omitted must be a compulsory heir in the direct line

2. Always express

2. Always implied

3.Always intentional

3. May intentional unintentional

4. Effect: Partial annulment of institution of heirs

4. Effect: Total annulment of institution of heirs

be or

Common Causes for Disinheritance of children or descendants, parents or ascendants, and spouse: 1. When the heir has been found guilty of an attempt against the life of the testator, his/her descendants or ascendants, and spouse in case of children and parents; 2. When the heir has accused the testator of a crime for which the law prescribes imprisonment for 6 years

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or more, if the accusation has been found groundless; 3. When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; 4. Refusal without justifiable cause to support the testator who disinherits such heir. Peculiar Causes for Disinheritance 1. Children/Descendants: a. When the child/descendant has been convicted of adultery or concubinage with the spouse of the testator; b. Maltreatment of the testator by word or deed by the child/descendant; c. When the child/descendant leads a dishonorable or disgraceful life; Conviction of a crime which carries with it a penalty of civil interdiction.

2. Parents/Ascendants: a. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; b. When the parent/ascendant has been convicted of adultery or concubinage with the spouse of the testator; c. Loss of parental authority for causes specified in the Code; and d. Attempt by one of the parents against the life of the other, unless there has been reconciliation between them. 3. Spouse: a. When the spouse has given cause for legal separation; When the spouse has given grounds for the loss of parental authority. Revocation of Disinheritance: 1. Reconciliation; 2. Subsequent institution of disinherited heir; and

the

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San Beda College of Law 75

MEMORY AID 3. Nullity of the will which contains the disinheritance. NOTE: Once disinheritance has been revoked or rendered ineffectual, it cannot be renewed except for causes subsequent to the revocation or based on new grounds. RECONCILIATION  It is the resumption of genuine cordial relationship between the testator and the disinherited heir, approximating that which prevailed before the testator learned of the cause for disinheritance, reciprocally manifested by their actions subsequent to the act of disinheritance.  A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. (Art. 922)

NOTES:  Mere civility which may characterize their relationship, a conduct that is naturally expected of every decent person, is not enough.  In order to be effective, the testator must pardon the disinherited heir. Such pardon must specifically refer to the heir and to the acts causing the disinheritance. The heir must accept the pardon.  No particular form is required. It may be made expressly or tacitly. NOTE: Where the cause for disinheritance is likewise a ground for unworthiness to succeed, what 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.

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2. If disinheritance has not been made: Rule on reconciliation does not apply. The heir continues to be incapacitated to succeed unless pardoned by the testator under Art. 1033. The law effects the disinheritance. N. LEGACIES AND DEVISES (ARTS. 924 – 959) Persons charged with legacies and devises: (1) compulsory heir; (2) voluntary heir; (3) legatee or devisee; (4) estate NOTES:  If the will is silent with regard to the person 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, thus, the provisions on institution of heirs are generally applicable to them.

STATUS OF PROPERTY GIVEN BY LEGACY/DEVISE 1. Belonging to the testator at the time of the execution of the will until his death 2. Belonging to the testator at the time of the execution of the will but alienated in favor of a 3rd person 3. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee/devisee gratuitously

EFFECT ON THE LEGACY/DEVISE

Effective

Revoked

No revocation. There is a clear intention to comply with legacy or devise.

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MEMORY AID 4. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee or devisee onerously 5. Not belonging to the testator at the time the will is executed but he has ordered that the thing be acquired in order that it be given to the legatee/devisee 6. Not belonging to the testator at the time the will is executed and the testator erroneously believed that the thing pertained to him 7. Not belonging to the testator at the time the will is executed but afterwards becomes his by whatever title 8. Already belonged to the legatee/devisee at the time of the execution of the will even though another person may have interest therein 9. Already belonged to the legatee or devisee at the time of the execution of the will even though it may have been subsequently alienated by him 10.Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property gratuitously after the execution of the will

Legatee/devisee can demand reimbursement from the heir or estate

Effective

11.Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property by onerous title

Void

1. 2. Effective

3. 4.

Ineffective

Ineffective

Legatee/devisee can claim nothing by virtue of the legacy/devise

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Legatee/devisee can demand reimbursement from the heir or estate

ART. 911

ART. 950

Order of preference: (LIPO)

Order of preference: (RPSESO)

Legitime of compulsory heirs Donations inter vivos Preferential legacies or devices All other legacies or devices pro rata

1. Remuneratory L/D 2. Preferential L/D

3. 4.

L for support

L for education 5. L/D of a specific, determinate thing which forms a part of the estate All others pro rata

Application:

Application:

(1) When the reduction is necessary to preserve the legitime of compulsory heirs from impairment whether there are

(1) When there are no compulsory heirs and the entire estate is distributed by the testator as legacies or devises; or

donations inter vivos or not; or (2) When, although, the legitime has been preserved by the testator himself there are donations inter vivos.

(2) When there are compulsory heirs but their legitime has already been provided for by the testator and there are no donations inter vivos.

NOTES:

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MEMORY AID  In case of reduction in the above cases, the inverse order of payment should be followed.

 When the question of reduction is exclusively among legatees and devisees themselves, Article 950 governs; but when there is a conflict between compulsory heirs and devisees and legatees, Article 911 applies. GROUNDS FOR REVOCATION OF LEGACIES AND DEVISES (ART 957) 1. Testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had.

2. 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 effect only with respect to the part alienated. Except: when the thing should again belong to the testator after alienation.

3. 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. NOTE: LIST IS NOT EXCLUSIVE

II. LEGAL SUCCESSION

OR

INTESTATE

 That which is effected by operation of law in the absence or default of a will. CAUSES OF INTESTACY

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1. If a person dies without a will, or with a void will, or one which has subsequently lost its validity; 2. Absence of an institution of heir; 3. Partial institution of heir. In such case, intestacy takes place as to the undisposed portion (mixed succession); 4. Non-fulfillment of suspensive condition attached to the institution of heir; 5. Predecease of the instituted heir; 6. Repudiation by the instituted heir; 7. Incapacity of instituted heir; 8. Preterition. Intestacy may be total or partial depending on whether or not there are legacies/devises; 9. Fulfillment of resolutory condition; 10. Expiration of term or period of institution; 11. Non-compliance or impossibility of compliance with the will. NOTE: In all cases where there has been an institution of heir, follow the I.S.R.A.I. order of Justice Paras. If the Institution fails, Substitution occurs. If there is no substitute, the right of Representation applies in the direct descending line to the legitime if the vacancy is caused by predecease, incapacity, or disinheritance. The right of Accretion applies to the free portion when the requisites in Art. 1016 are present. If there is no substitute, and the right of Representation or Accretion does not apply, the rules on Intestate succession shall take over. A. RULES 1. Rule of Preference between lines  Those in the direct descending line shall exclude those in the direct ascending and collateral lines, and those in the direct ascending line shall, in turn, exclude those in the collateral line. 2. Rule of Proximity

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San Beda College of Law 78

MEMORY AID 

The relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.  This rule is subject to the rule of preference between lines. 3. Rule of Equal Division  Relatives in the same degree shall inherit in equal shares.  EXCEPTIONS: a) Division in the ascending line (between paternal and maternal grandparents); b) Division among brothers and sisters, some of whom are of the full and others of half blood; and c) Division In cases where the right of representation takes place. NOTE: This rule is subject to the rule of preference between lines. 4. Rule of Barrier between the legitimate family and the illegitimate family  The illegitimate family cannot inherit by intestate succession from the legitimate family and vice-versa. 5. Rule of Double Share for full blood collaterals  When full and half-blood brothers or sisters, nephews or nieces, survive, the full blood shall take a portion in the inheritance double that of the half-blood. NOTE: In case of a disposition made in general terms under Article 959, only the Rule of Proximity applies. B. RELATIONSHIP (ARTS. 963 – 969) 1. Number of generations determines proximity. 2. Each generation forms a degree. 3. A series of degrees forms a line. 4. A line may be direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants (ascending and descending).

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5. A collateral line is that constituted by the series of degrees among persons who are not ascendants or descendants, but who come from a common ancestor. 6. Full blood: same father and mother; half blood: only one of either parent is the same. 7. In adoption, the legal filiation is personal and exists only between the adopter and the adopted. The adopted is deemed a legitimate child of the adopter (AP), but still remains as an intestate heir of his natural parents and other blood relatives. C. RIGHT OF REPRESENTATION (RR) (ARTS. 970 – 977)  A right created by fiction of law, by virtue of which the representative is raised to the place and degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. The representative is called to the succession by the law not by the person represented. He succeeds the one whom the person represented would have succeeded. NOTES:  In the direct line, representation takes place ad infinitum in the direct descending line, never in the ascending.  In the collateral line, representation takes place only in favor of the children of brothers or sisters (nephews and nieces), whether of the full or half-blood, and only if they concur with at least 1 uncle or aunt.

1. Testamentary Succession a) When a compulsory heir in the

b)

direct descending line had predeceased the testator and was survived by his children or descendants. When a compulsory heir in the direct descending line is excluded from the inheritance due to incapacity or

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MEMORY AID unworthiness and he has children or descendants. c) When a compulsory heir in the direct descending line is disinherited and he has children or descendants; representation covers only the legitime. d) A legatee/devisee who died after the death of the testator may be represented by his heirs. 2. Intestate Succession a) When a legal heir in the direct descending line had predeceased the decedent and was survived by his children or descendants. b) When a legal heir in the direct descending line is excluded from the inheritance due to incapacity or unworthiness and he has children or descendants. c) When brothers or sisters had predeceased the decedent and they had children or descendants. d) When illegitimate children represent their illegitimate parents who already died in the estate of their grandparents. e) When nephews and nieces inherit together with their uncles and aunts in representation of their deceased parents who are the brothers or sisters of said uncles and aunts. D. INTESTATE OR LEGAL HEIRS  Those who are called by law to the succession either in the absence of a will or of qualified heirs, and who are deemed called based on the presumed will of the decedent. REGULAR ORDER OF SUCCESSION (Decedent is a legitimate person): 1. Legitimate children or descendants (LCD) 2. Legitimate parents or ascendants (LPA) 3. Illegitimate children or descendants (ICD) 4. Surviving spouse (SS) CIVIL LAW COMMITTEE

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5. Brothers and sisters, nephews and nieces (BS/NN) 6. Other collateral relatives within the 5th degree (C5) 7. State

IRREGULAR ORDER OF SUCCESSION (Decedent is an illegitimate person): 1. Legitimate children or descendants (LCD) 2. Illegitimate children or descendants (ICD) 3. Illegitimate parents (IP) 4. Surviving spouse (SS) 5. Brothers and sisters, nephews and nieces (BS/NN) 6. State ORDER 1. 2. 3. 4. 5. 6. 7.

OF CONCURRENCE LCD, ICD, and SS LPA, ICD, and SS ICD and SS SS and IP BS/NN and SS C5 (alone) State (alone)

TABLE OF INTESTATE SHARES SURVIVOR Any class alone 1 LC SS 2 or more LC SS LPA SS LPA SS IC IP SS SS BS/NN 1 LC SS IC

INTESTATE SHARE Entire estate 1/2 1/2 (Diongson vs. Cinco, 74 SCRA 118) Consider SS as 1 LC, then divide estate by total number. 1/2 1/2 1/2 1/4 1/4 1/2 1/2 (The law is silent. Apply concurrence theory.) 1/2 1/2 First, satisfy legitimes. Estate would be insufficient. Reduction

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MEMORY AID

2 or more LC SS IC

must be made according to the rules on legitimes. The legitimes of LCD and SS shall always be first satisfied in preference to the ICD. First, satisfy legitimes. There would be an excess in the estate. Distribute such excess in the proportion 1:2:2, in accordance with the concurrence theory.

ORDER OF CONCURRENCE IN THE CASE OF ADOPTED CHILD SURVIVORS SHARE 1. LPA/IP AP

½ ½

2. LPA/IP AP SS

½

3. LPA AP ICD

½

4. LPA AP SS ICD

½

½ 1/3 1/3 1/3

CARDINAL PRINCIPLES OF INTESTATE SUCCESSION (Justice Paras) 1. Even if there is an order of intestate succession, the Compulsory Heirs (CH) are never excluded. The Civil Code follows the concurrence theory, not the exclusion theory. 2. Right of Representation (RR) in the collateral line occurs only in intestate succession, never in testamentary succession because a voluntary heir cannot be represented (collateral relatives are not CH). 3. The intestate shares are either equal to or greater than the legitime. 4. GENERAL RULE: Grandchildren always inherit by RR, provided representation is proper. CIVIL LAW COMMITTEE

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EXCEPTION: Whenever all the children repudiate, the grandchildren inherit in their own right because RR would not be proper. 5. Nephews and nieces inherit either by RR or in their Own Right (OR). a. RR: when they concur with aunts and uncles (provided that RR is proper)

b. OR: when they do not concur with aunts and uncles. 6. ICD of legitimates cannot represent because of the barrier, but both the ICD and LCD of illegitimates can. 7. There can be reserva troncal in intestate succession. 8. A renouncer can represent, but cannot be represented. 9. A person who cannot represent a near relative cannot also represent a relative farther in degree.

III. MIXED SUCCESSION PARTIAL INTESTACY

OR

 Succession that is effected partly by will and partly by operation of law. RULES: 1. The law of legitimes must be brought into operation in partial intestacy, because the testamentary dispositions can affect only the disposable free portion but never the legitimes. 2. If among the concurring intestate heirs there are compulsory heirs, whose legal or intestate portions exceed their respective legitimes, then the amount of the testamentary disposition must be deducted from the disposable free portion, to be borne by all the intestate heirs in the proportions that they are entitled to receive from such disposable free portion as intestate heirs.

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID 3. If the intestate share of a compulsory heir is equal to his legitime, then the amount of the testamentary disposition must be deducted only from the intestate shares of the others, in the proportions stated above. 4. If the testamentary dispositions consume the entire disposable free portion, then the intestate heirs who are compulsory heirs will get only their legitime, and those who are not compulsory heirs will get nothing.

IV. PROVISIONS COMMON TO TESTAMENTARY AND INTESTATE SUCCESSIONS A. RIGHT OF ACCRETION (A) (ARTS 1015 – 1023)  A right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to one who renounce or cannot receive his share, or who died before testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees.  A right based on the presumed will of the deceased that he prefers to give certain properties to certain individuals, rather than to his legal heirs. Requisites: 1. 2 or more persons must have been called to the same inheritance, legacy or devise, or to the same portion thereof, pro indiviso; and 2. there must be a vacancy in the inheritance, legacy or devise (caused by predecease, incapacity, repudiation, nonfulfillment of suspensive condition or void or ineffective testamentary dispositions.) EFFECTS of PREDECEASE, INCAPACITY, DISINHERITANCE, or REPUDIATION in

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both TESTAMENTARY and INTESTATE SUCCESSION CAUSE OF VACANCY Predecease Incapacity Disinheritance Repudiation

TESTAMENTARY SUCCESSION Legitime Free Portion 1. RR 1. A 2. IS 2. IS RR A 2. IS IS 1. RR _ 2. IS IS A

INTESTATE SUCCESSION (IS) 1. RR 2. IS RR IS _ A

Summary: (A) In testamentary succession: (1) Legitime: (a) In case of predecease of an heir, there is representation if there are children or descendants; if none, the others inherit in their own right. (b) In case of incapacity, results are the same as in predecease. (c) In case of disinheritance, results are the same as in predecease. (d) In case of repudiation by an heir, the others inherit in their own right. (2) Disposable free portion: Accretion takes place when requisites are present; but if such requisites are not present, the others inherit in their own right. (B) In intestate succession: (1) In case of predecease, there is representation if there are children or descendants; if none, the others inherit in their own right. (2) In case of incapacity, results are the same as in predecease. (3) In case of repudiation, there is always accretion. B. CAPACITY TO SUCCEED BY WILL OR BY INTESTACY (ARTS. 1024 – 1040) Requisites:

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID 1. The heir, legatee/devisee must be living or in existence at the moment the succession opens; and 2. He must not be incapacitated or disqualified by law to succeed. THE FOLLOWING ARE INCAPABLE OF SUCCEEDING: A. Based on Undue Influence or Interest: (PIGRAP) 1. 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; 2. Individuals, associations and corporations not permitted by law to inherit; 3. Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; 4. 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; 5. Attesting witness to the execution of a will, the spouse, parents or children, or any one claiming under such witness, spouse, parents or children; and 6. Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness. B. Based on Morality or Public Policy (ART 739) 1. Those made in favor of a person with whom the testator was guilty of adultery or concubinage at the time of the making of the will. 2. Those made in consideration of a crime of which both the testator and the beneficiary have been found guilty.

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3. Those made in favor of a public officer or his spouse, descendants and ascendants, by reason of his public office C. Based on Acts of Unworthiness (A4F3P) 1. Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; 2. Any person who has been convicted of an attempt against the life of the testator, his/her spouse, descendants or ascendants; 3. Any person who has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless; 4. Any person convicted of adultery or concubinage with the spouse of the testator; 5. 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; 6. Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; 7. Any person who falsifies or forges a supposed will of the decedent; and 8. 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. NOTE: The moment the testator uses one of the acts of unworthiness as a cause for disinheritance, he thereby submits it to the rules on disinheritance. Thus, reconciliation renders the disinheritance ineffective. PARDON OF ACTS OF UNWORTHINESS EXPRESS IMPLIED 1. made by the execution of a

1. effected when testator makes a

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID document or any writing in which the decedent condones the cause of incapacity 2. cannot be revoked

will instituting the unworthy heir with knowledge of the cause of incapacity 2. revoked when the testator revokes the will or the institution

C. ACCEPTANCE AND REPUDIATION OF INHERITANCE (ARTS. 1041 – 1057) Characteristics: (VIR) 1. Voluntary and free 2. Irrevocable, except if there is vitiation of consent or an unknown will appears 3. Retroactive Requisites: 1. certainty of the death of the decedent 2. certainty of the right to the inheritance Acceptance vs. Repudiation: (1) Acceptan ce involves the confirmation of transmission of successional rights, while repudiation renders such transmission ineffective. (2) Repudiat ion is equivalent to an act of disposition and alienation. (3) The publicity required for repudiation is necessary for the protection of other heirs and also of creditors. Form of Acceptance 1. Express Acceptance – one made in a public or private document. 2. Tacit Acceptance – one resulting from acts by which the intention to accept is necessarily implied or which one would have no right to do except in the capacity of an heir Tacit acceptance is presumed from certain acts of the heir as: 1. When heir sells, donates, or assigns his right.

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2. When heir renounces it for the benefit of one or more heirs. 3. When renunciation is in favor of all heirs indiscriminately for consideration 4. Other acts of tacit acceptance a. heir demands partition of the inheritance b. heir alienates some objects of the inheritance c. Under Art 1057, failure to signify acceptance or repudiation within 30 days after an order of distribution by the probate court.

 REPUDIATION must be made in a public instrument (acknowledged before a notary public) or authentic document (equivalent of an indubitable writing or a writing whose authenticity is admitted or proved) or by petition presented to the court having jurisdiction over the testamentary or intestate proceeding.

 Reason for formality: Law considers that the act of repudiation is more solemn than the act of acceptance and that repudiation produces a more violent and disturbing consequences.

 Heir in two capacities: An heir who is such by will and by law, and he repudiates the inheritance as a testamentary heir, will be considered to have repudiated the inheritance as a legal heir. But when an heir repudiates as a legal heir, he may later on accept as a testamentary heir. D. COLLATION (ARTS. 1061-1077)  Every compulsory heir, who succeeds with other compulsory heirs must bring into the mass of the estate any property or right which he may received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 84

MEMORY AID title, in order that it may be computed in the determination of the legitime of each heir, and in the account of partition. (Art. 1061)  An act of returning or restoring to the common mass of the estate, either actually or fictitiously, any property which a person may have received from the decedent during the latter’s lifetime, but which is understood for legal purposes as an advance from inheritance. OPERATIONS RELATED TO COLLATION 1. Collation – adding to the mass of the hereditary estate the value of the donation or gratuitous disposition 2. Imputing or Charging – crediting the donation as an advance on the legitime (if the donee is a compulsory heir) or on the free portion (if the donee is a stranger) 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 obliged to collate 1.  GENERAL RULE: compulsory heirs  EXCEPTIONS: a. When the testator should have so expressly provided; and b. When the compulsory heir should have repudiated his inheritance 2. Grandchildren who survive with their uncles, aunts, or 1st cousins, and inherit by right of representation. NOTE: Grandchildren may inherit from grandparent in their own right (i.e. heirs next in degree) and not by right of representation if their parent repudiates the inheritance of the grandparent, as no living person can be represented except in cases of disinheritance and incapacity. In such case grandchildren are not obliged to bring to collation what their parent has received gratuitously from their grandparent)

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What to collate: 1. Any property or right received by gratuitous title during the testator’s lifetime 2. All that they may have received from the decedent during his lifetime 3. All that their parents would have brought to collation if alive Properties not subject to collation (2nd concept): 1. Absolutely no collation (all concepts): a. Expenses for support, education (elementary and secondary only), medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts (Art. 1067). 2. Generally not imputable to legitime: a. Expenses incurred by parents in giving their children professional, vocational or other career unless the parents so provide, or unless they impair the legitime. b. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit except when they exceed 1/10 of the sum disposable by will. E. PARTITION AND DISTRIBUTION OF ESTATE (ARTS. 1078 – 1105)  It is the separation, division and assignment of a thing held in common among those to whom it may belong. It includes every act which is intended to put an end to indivision among co-heirs, and legatees or devisees, although it should purport to be a sale, exchange, compromise, or any other transaction. It is not subject to any form. Who may effect partition: 1. decedent himself during his lifetime by an act inter vivos or by will; 2. heirs themselves; 3. competent court; 4. 3rd person designated by the decedent.

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 85

MEMORY AID Who can demand partition: 1. compulsory heir; 2. voluntary heir; 3. legatee or devisee; 4. any person who has acquired interest in the estate.

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are intended to take effect during the life of the testator and the formalities of donations are properly complied with.

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 years, renewable for another 10 years; 3. when prohibited by law; 4. when to partition the estate would render it unserviceable for the use for which it is intended. Prohibition to Partition 1. The prohibition to partition for a period not exceeding 20 years can be imposed on the legitime. 2. If the prohibition to partition is for more than 20 years, the excess is void. 3. Even if a prohibition is imposed, the heirs by mutual agreement can still make the partition.

PARTITION INTER VIVOS (ART 1080)  It is one that merely allocates specific items or pieces of property on the basis of the pro-indiviso shares fixed by law or given under the will to heirs or successors. NOTE: Partition is not itself a mode of acquiring ownership, nor a title therefore. This partition, being predicated on succession, necessitates relationship to the decedent (in case of intestacy) or a will duly probated (in case of testacy). A partition inter vivos made in favor of intestate heirs could be operative. Dispositions, however, to nonintestate heirs may suffer an impediment unless based on a valid will, except perhaps when such dispositions CIVIL LAW COMMITTEE

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

& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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MEMORY AID

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A VOID WILL MAY BE A VALID PARTITION: 1. If the will was in fact a partition; and 2. If the beneficiaries in the void will were legal heirs.

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon & SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)