Succession - Main Reviewer.pdf

OVERVIEW The following reviewer is a summary of Jottings and Jurisprudence in Civil Law (Succession) by Atty. Ruben F. Balane in Q&A format. Most of the text has been lifted from the book itself and hence, this work covers most of the annotations, the difference being, case facts have been summarized and the doctrines stated immediately. The coverage of this reviewer is from Articles 840 to 1105. All Questions marked with “ * ” are suggested answers to quaerenda found throughout the book – because they are merely suggested, readers are not encouraged to rely solely on such answers and are invited to come to their own conclusions as to the answers to these questions. All readers are advised to use this reviewer as secondary study material to the main text – not as the primary study tool for Succession, especially under Atty. Ruben Balane himself.

CHAPTER 1: GENERAL PROVISIONS What is Succession? Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (Article 774) What are the seven legally recognized modes of acquiring ownership? 1. 2. 3. 4. 5. 6. 7.

Occupation Intellectual Creation Law Donation Succession Tradition Prescription

What is the connection of Article 774 and Article 776? There is an overlap of the two provisions. Article 774 talks of “property, rights and obligations to the extent of the value of the inheritance”. Article 776, on the other hand, talks on “inheritance” as including “all the property, rights and obligations of a person which are not extinguished by his death”. Hence, Article 774 should rather read – “Succession is a mode of acquisition by virtue of which the inheritance of a person is transmitted through his death to another or other either by will or by operation of law.” Inheritance here is defined by Article 776 to include “all the property, rights and obligations of a person which are not extinguished by his death.” What are transmitted? Only transmissible rights and obligations pass by succession. What is the general rule as to transmissibility? If the right or obligation is intuitu personae, it is intransmissible; otherwise, it is transmissible. What is meant by the phrase intuitu personae? It means “strictly personal”.

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What is the rule regarding pecuniary obligations? To answer this question, there is a need to look into both substantive and procedural law. In Article 774, it seems that the money obligations would, like all other rights and obligations, pass to the heirs to the extent of the value of the inheritance and only upon the receipt of the heirs of such estate would the creditors be paid by the heirs holding such transmitted estate. However, in procedural law, particularly Rules 88 to 90 of the Rules of Court, it is only after the debts are paid that the residue of the estate is distributed among the successors. Furthermore, by Section 3 of Rule 87, an action for recovery of title to or possession of lands in the hands of an executor or administrator may not be maintained by an heir or devisee until there is an order of the Court assigning such land to such heir or devisee. According to J.B.L Reyes, we are thus faced with divergent, if not contradictory principles, which bring up the following issues: (1) Do the successors acquire the whole of the transmissible assets and liabilities of the decedent by and upon his death, or do they only acquire the residuum remaining after payment of the debts? (2) Or do they acquire only the naked title at the death of the predecessor, but with possession or enjoyment vested in the administrator or personal representative until after the settlement of the claims against the estate? A consequence of these divergent rules is that creditors have to pursue their claims in the settlement proceedings and not against the heirs. In fact, in the case of Union Bank vs. Santibañez (452 SCRA 228 [2005]), it was ruled that the filing of a money claim against the decedent’s estate in the probate court is mandatory. A manner by which these provisions of substantive and procedural law may be reconciled is presented by Estate of K.H. Hemady vs. Luzon Surety (100 Phil 389 [1956]) which settled that, in a sense, it can be said that even money debts are transmitted to and paid for by the heirs, but this would be by indirection merely – “whatever payment is thus made from the estate is ultimately a payment by the heirs and distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive.” Thus, only the payment of money debts has been affected by the Rules of Court. It must be made clear however, as seen in the case of Alvarez vs. Intermediate Appellate Court (185 SCRA 8 [1990]), that heirs and distributees are liable only to the extent of the value of their inheritance. What is the reason for the divergent rules? Indiscriminate borrowing. In other words, a bad blend of various systems. In the words of J.B.L. Reyes, “our rules of succession mortis causa proceed from an imperfect blending of three systems with contrasting philosophies”. These three systems are: (1) The Germanic concept of the universal heir who, upon the death of the predecessor, directly and immediately steps into his shoes uno ictu, without any formalities whatsoever, acquires en bloc the universality of all his surviving or transmissible rights and obligations, in an automatic subjective novation, unless the heir should repudiate and reject the inheritance; (2) The Franco-Spanish System, where there is an acquisition of the estate by universal title but only upon acceptance by the heir, who may do so when he chooses unless required to decide earlier by the creditors or the Court; and, (3) The Anglo-American (Common Law) System that, upon the death of the predecessor, the estate must first be liquidated, the assets marshaled and the debts paid or settled under judicial supervision, by an intervening trustee or personal representative before the net residue is taken over by the successor.

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The divergence arises from the fact that our Civil Code has adopted the second system while our procedural Rules of Court is based on the Common Law system. What is a decedent? A decedent is a person whose property is transmitted through succession, whether or not he left a will. (see Article 775) What is a testator? A testator is a decedent that left a will. (Ibid) What is an intestate? Although not provided in the Code, the term intestate may refer to a decedent who dies without a will. What is included in the inheritance? As mentioned supra, it includes all the property, rights and obligations of a person which are not extinguished by his death. Article 777 states that, “The rights to the succession are transmitted from the moment of the death of the decedent”. Is there anything wrong with this statement? Yes. The right to succession is not transmitted; it becomes vested. To say that it is transmitted upon death implies, absurdly, that before the decedent’s death, the right to the succession was possessed by the decedent. To say it vests upon death implies, correctly, that before the decedent’s death the right is merely inchoate or contingent. Notwithstanding its infelicitous wording, what does Article 777 specify? What does it presume? The article merely specifies the time of vesting of the successional right. It presumes that the person succeeding: (1) Has a right to by legitime (compulsory succession), by will (testamentary succession) or by law (intestate succession); (2) Has the legal capacity to succeed; and, (3) Accepts the successional portion. The vesting of the right occurs immediately upon the decedent’s death – without a moment’s interruption. What are the consequences that flow from this principle? 1. The law in force at the time of the decedent’s death will determine who the heirs should be (see Uson vs. Del Rosario, 92 Phil 530 [1953], where the right of ownership to lands acquired by succession were deemed vested on Maria Uson (the lawful wife) before the passing of the New Civil Code and hence disallowing the application of the new right recognized in the new law that would benefit the illegitimate children of the decedent with Maria del Rosario; and Montilla vs. Montilla, 2 SCRA 695 [1961], where the rules of the Old Civil Code applied because the decedent died in 1946) 2. Ownership passes to the heir at the very moment of death, who therefore, from that moment acquires the right to dispose of his share (as in De Borja vs. Vda. De Borja, 46 SCRA 577 (1972), where a compromise agreement disposing of the second wife’s share to the estate which was entered even without probate of the will was deemed valid since Moe 3B 2006

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the agreement did not cause a partitioning but rather an allowable conveyance of interest, with such interest being contingent on the subsequent liquidation of the estate) 3. The heirs have the right to be substituted for the deceased as party in an action that survives (see Bonilla vs. Barcena, 71 SCRA 491 [1976], where the minor children, also heirs, of Fortunata Barcena were allowed to substitute their mother upon her death in an action to quiet title over certain parcels of land that was instituted prior to her demise, since the court has already acquired jurisdiction over the person of Fortunata and the interest of Fortunata on the lands in question had already vested on her heirs at the time of her death) Note: In Bonilla vs. Barcena, supra, the rule was laid down in the following manner: In the causes of action which survive the wrong complained affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the property and rights of property affected being incidental. Furthermore, it is worth emphasizing De Borja vs. Vda. De Borja, supra, in that the transmission by succession occurs at the precise moment of death and therefore the heir, devisee or legatee is legally deemed to have acquired ownership at that moment, even if, he will generally not know how much he will be inheriting and what properties he will ultimately be receiving – NOT at the time of declaration of heirs, or partition, or distribution. Notwithstanding the Code, what are the kinds of Succession (in the proper order)? 1. 2. 3. 4.

Compulsory succession Testamentary succession Intestate succession Mixed succession

Note: The last is not really a distinct kind of succession but rather a mix of any of the first three. What is testamentary succession? It is that succession which results from the designation of an heir, made in a will executed in the form prescribed by law. (see Article 779) What is intestate or legal succession? Although not found in the Code, it is the succession that takes place by operation of law in the absence of a valid will. What is compulsory succession? In general, it is the system of legitimes wherein a portion of the estate is reserved as mandated by law to certain heirs. This succession prevails over all other kinds. Differentiate compulsory succession from both testamentary and intestate succession. (1) Legal or intestate succession operates only in default of a will, while compulsory succession operates whether or not there is a will, and in fact prevails over a will; (2) There are instances where the rules of compulsory succession operate to the exclusion of the rules on intestacy (i.e. when the legitimes have exhausted the estate). What is contractual succession? Is it still existent at present?

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Found in Article 130 of the Civil Code, contractual succession dealt with donations propter nuptias of future property, made by one of the future spouses to the other, that took effect mortis causa, and had only to be done in the marriage settlements, which were governed only by the Statute of Frauds. This special kind of succession has been eliminated by the promulgation of the Family Code and hence, is non-existent in our jurisdiction. According to Article 781, “The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession”. Is there anything wrong with this statement? Yes. The inheritance only includes those stated in Article 776. Whatever accrue to the heir after the decedent’s death, does not belong to the heir by virtue of succession, but by virtue of some other mode of acquisition of ownership, such as accession. *If the assets left behind by the decedent are not sufficient to pay the debts, may the creditors claim the fruits produced by the decedent’s property after his death? Or do these fruits pertain to the heirs? The creditors may claim the fruits subject to the applicable rules as to the liquidation of these properties to satisfy the debt. Naturally, the heirs cannot claim the fruits. The heirs, although having right to the estate, such right is merely inchoate and is subject to such liquidation. Therefore, since the question is premised on the fact that the property comprising the inheritance is not sufficient to pay the debt, the heirs would therefore, in this case, receive no actual property. If they receive no part of the estate, then there is no way that they would have right to the fruits, since such would only belong to the heirs by accession, which presumes that the heirs own the property from which such fruits derive. What is an heir? What is a devisee? A legatee? According to Article 782, an heir is a person called to the succession either by the provision of a will or by operation of law. According to the same article, devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. As can be observed, the statutory definitions are not that helpful precisely because there is no clear delineation between an heir and a devisee/legatee. In other words, by the words of Article 782, one who is an heir is also a devisee/legatee, and vice versa. A more helpful definition is provided for by Castan: An heir is one who succeeds to the whole or an aliquot part of the inheritance (universal succession). Devisees and legatees are those who succeed to definite, specific and individual properties (particular succession).

CHAPTER 2: TESTAMENTARY SUCCESSION Section 1: Wills Subsection 1: Wills in General What is a will? A will is 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. (see Article 783)

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Vitug vs. Court of Appeals (183 SCRA 755 [1990]), provides for another definition – a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. What is meant by “act”? In our jurisdiction, as applied to testamentary succession, it is meant to refer to a written instrument or document in accordance with Article 804 which states that “Every will must be in writing…” What are nuncupative wills? Are they recognized in our Code? These are oral wills. They are not recognized in our Code. Are oral wills absolutely prohibited by any and all laws? No. The Spanish Code recognized military wills that could be oral. What is meant by “permitted”? This term refers to the fact that will-making is purely statutory. What is meant by “formalities prescribed by law”? This term refers to the requirements of form prescribed respectively for attested and holographic wills. What is meant by “control to a certain degree”? This terms refers to the fact that the testator’s power of testamentary disposition is limited by the rules on legitimes. What is meant by “after his death”? This terms refers to the fact that, like all other forms of succession, testamentary succession is mortis causa. Are “survivorship agreements” valid in our jurisdiction? Yes. Survivorship agreements, in general, are those entered into by spouses with joint accounts, wherein upon the death of one of the spouses, the other acquires ownership of the contents of the entire account. In Vitug vs. Court of Appeals, supra, the Court sustained the validity of such survivorship agreements. The case defined a will as a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. Since the bequest or devise must pertain to the testator, in the case of conjugal funds (governed by the survivorship agreement) which do not pertain solely and particularly to the decedent, such conveyances therefore cannot be considered as part of the estate that must be disposed of through a will. Consequently, the conveyance cannot be one mortis causa which must embodied in the will. The Court in the same case deemed the survivorship agreement as a contract with a term, the terms being death – which is permitted by Article 2010 of the Civil Code. Hence, by the death of one spouse, the property becomes the separate property of the surviving spouse and need not be made part of the estate of the deceased one. What are the main characteristics of wills?

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1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.

Purely personal Free and intelligent Solemn and formal Revocable and ambulatory Individual Mortis causa Executed with animus testandi Executed with testamentary capacity Unilateral Dispositive of property Statutory

What can serve to vitiate the consent of a testator? 1. 2. 3. 4. 5. 6. 7.

Insanity Fraud Violence Intimidation Undue Influence Fraud Mistake

Are joint wills prohibited in our jurisdiction? Yes. As derived from Article 783, what is the purpose of will-making? The disposition of property. *Would a document merely appointing an executor, not containing any dispositive provision, have to comply with the formal requirements of a will in order to be effective? Would such a document have to be probated? Yes. The appointment of an executor in a will is an act ultimately aimed at the disposition of property via the settlement proceedings of the estate. Although indirect, there is disposition just the same. *Would a document containing only a disinheriting clause have to be in the form of a will and be probated? Yes. According to Article 916, disinheritance can be effected only through a will wherein the legal cause therefore shall be specified. The will, to be valid, must be formally probated. May the will-making, in whole or in part, be delegated? No. The making of a will is a strictly personal act that cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney (see Article 784). Note however that it is the exercise of the disposing power that cannot be delegated, hence, mechanical aspects do not fall within the prohibition. What constitutes the exercise of the disposing power (and hence are non-delegable)? 1. The designation of heirs, devisees and legatees; 2. The duration or efficacy of such designation (including such things as conditions, terms and substitutions); Moe 3B 2006

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3. The determination of the portions they are to receive. (see Article 785) Does the rule of non-delegability of will-making have any exceptions? Yes. Inasmuch as (1) the property or amount of money to be given and (2) the class or cause to be benefited, must be determined by the testator and may not be delegated, the designation of persons, institutions or establishments within the class or cause and the manner of distribution may be delegated. (see Article 786) *Suppose the testator specified the recipients (by specific designation) but left to the third person the determination of the sharing, would this be a valid designation? There are two views. The first view is that the letter of Article 785 prohibits such a delegation, because the recipients are referred to by name and therefore the portions they are to take must be determined by the testator. Article 786 applies only where the testator merely specifies the class or cause but not the specific recipients. The second, opposing, view is that such a delegation actually involves a lesser discretion for the third person than the instances provided for by Article 786 and hence should be allowed. Atty. Balane, in one of his classes, seemed to have hinted to be partial to the second view. In his will, Lloyd specified the following: “I leave the entire free portion of my estate to my beloved Adel, and I authorize Kath to decide whether such disposition should take effect or not”. Is this valid? No. Article 787 states that “The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it (the disposition) is to be operative.” What is preferred between testacy and intestacy? Why? Testacy is preferred to intestacy because the former is the express will of the decedent whereas the latter is only his implied will. What are the two kinds of ambiguity? 1. Latent 2. Patent What is a latent ambiguity? It is an ambiguity that is not obvious on the face of the will. Latere – to be hidden; to be concealed. Give an example of latent ambiguity (1) as to person and (2) as to property. Latent ambiguity as to person: “I, Phil Chan, institute the entire free portion of my estate to my classmate in Ateneo Law named May” (and the testator has three classmates with a May in their name – MAY de Leon, Laila MAY Gloria and Katherine MAY Rances). Latent ambiguity as to property: “I, Paolo Quazon, leave to my cousin Miguel Pastelero, my tax book” (and the testator has more than one tax book). What is a patent ambiguity? It is an ambiguity that is obvious on the face of the will. Patere – to be exposed. Give an example of patent ambiguity (1) as to person and (2) as to property. Moe 3B 2006

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Patent ambiguity as to person: “I, Phil Chan, institute the entire free portion of my estate to some of my female classmates in Ateneo Law” Patent ambiguity as to property: “I, Paolo Quazon, leave to my cousin Miguel Pastelero, some of my tax books” How must one deal with ambiguities? The ambiguity should, as far as possible be cleared up and resolved through the presentation of any evidence admissible and relevant, excluding in either case oral declarations of testator as to his intention, to give effect to the testamentary disposition. If efforts prove fruitless, the provision is rendered void and the estate is dealt with through intestate succession. What is the standard of admissibility? The Rules of Court as to admissibility of evidence. What is the standard of relevance? Common sense. Does the invalidity of one of the dispositions in a will invalidate the other dispositions? According to Article 792, the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. According to Article 793, “Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention”. Is there anything wrong with this statement? Yes. The problems spring from the fact that the article makes the will speak as of the time it is made, rather than at the time of the decedent’s death (in line with Article 777). The basis therefore for the value of the inheritance shall not be the value at the time of the decendent’s death as stated in Article 777, but rather, the value of the property at the time the will was made. As a suggested restating of this article, it should state, “Property acquired after the making of a will passes thereby unless the contrary clearly appears from the words or the context of the will.” In the meantime, it is suggested that the article be liberally construed. (Tolentino view) What is the general rule of construction as regards legacies and devises? Exceptions? Generally, in a legacy or devise the testator gives exactly the interest he has in the thing. However, the testator can expressly give a less interest (see Article 794) or a lesser interest than he has. When the testator is giving a greater interest, if the person owning the interest to be acquired does not wish to part with it, the legatee or devisee shall be entitled only to the just value of the interest that should have been acquired. (see Article 929 and 931) What are the aspects of validity of wills? 1. Extrinsic 2. Intrinsic Moe 3B 2006

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What is the extrinsic validity of wills? Extrinsic validity refers to the requirement of form, also known as formal validity. What is the intrinsic validity of wills? Intrinsic validity refers to the substance of the provisions, also known as substantive validity. With respect to extrinsic validity, what is the governing law as to time? For Filipinos? For aliens? According to Article 795, the governing law as to time is the law in force when the will was executed. This rule applies to both Filipinos and foreigners, assuming that for the latter, the will is being probated in the Philippines. With respect to extrinsic validity, what is the governing law as to place? For Filipinos? For aliens? According to Articles 815 – 817, taking in consideration Article 15 and 17, every testator, whether Filipino or alien, wherever he may be, has five choices as to what law to follow for the form of his will: (1) (2) (3) (4) (5)

The law of his citizenship The law of the place of execution The law of his domicile The law of his residence Philippine law

With respect to intrinsic validity, what is the governing law as to time? For Filipinos? For aliens? As derived from Article 2263, for Filipinos, the governing law as to time is the law in force at the time of the death of the decedent. Combining Articles 16 and 1039, for foreigners, the governing law as to time is dependent on the personal law of the foreigner. With respect to intrinsic validity, what is the governing law as to place? For Filipinos? For aliens? According to Article 16, for Filipinos, the governing law as to place is Philippine law, while for foreigners, it is their national law. Summary Table of Governing Laws on Intrinsic and Extrinsic Validity of Wills Nationality Determinant Extrinsic Validity Intrinsic Validity Time Law in force at time of execution Law in force at time of death Filipino Place The 5 Choices Philippine Law Time Law in force at time of execution Personal law of foreigner Foreigner Place The 5 Choices National Law

Subsection 2: Testamentary Capacity and Intent What is testamentifaccion activa or testamenti factio? It is testamentary capacity – the legal capacity to make a will.

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Who have testamentary capacity? According to Article 796, all persons who are not expressly prohibited by law may make a will. Does “all persons” in Article 796 refer to natural and to juridical persons alike? No. Only natural persons not disqualified by law may make a will. Juridical persons are not granted testamentary capacity. (i.e. a corporation may not make a will – however, as seen in later provisions, they may succeed) Who are disqualified from making a will according to law? 1. Those under 18 (see Article 797) 2. Those of unsound mind (see Articles 798 – 801) How are years reckoned in our jurisdiction for the purpose of determining who is under 18 years of age? Under Executive Order No. 292, years are now reckoned according to the Gregorian calendar – “Year” shall be understood to be twelve calendar months. How is unsoundness of mind or insanity defined by the Code? It is the absence of the qualities of soundness of mind. How is soundness of mind or sanity defined by the Code? Negatively, to be sound mind, it is not necessary that the testator be in full possession of reasoning faculties. Furthermore, it is not necessary that testator’s mind be fully unbroken, unimpaired or unshattered by disease, injury or other cause. (see Article 799, par. 1) Positively, one of sound mind must have the ability to know three things: (1) The nature of the estate to be disposed of; (2) The proper objects of one’s bounty; and (3) Character of testamentary act. (see Article 799, par. 2) What is meant when one knows the nature of the estate to be disposed of? The testator should have a fairly accurate knowledge of what he owns – noting that the more one owns the less accurate would one’s knowledge of his estate to be. What is meant when one knows the proper objects of one’s bounty? The testator should know, under ordinary circumstances, his relatives in the most proximate degrees, his knowledge decreasing as the degrees become more remote. What is meant when one knows the character of the testamentary act? All that he need know is that the document he is executing is one that disposes of his property upon death. In other words, all that the testator needs to know is that the document shall dispose of property. Dr. Pascual, the best medico-legal in the whole wide universe, determines that Roman “Manman” Esguerra is medically aberrant for particular reasons. Can Manman still execute a will? Moe 3B 2006

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It depends. If Manman, notwithstanding the medical findings of Dr. Pascual, can still perceive the three things mentioned above, he has testamentary capacity and may thus execute a will. Otherwise, he has no testamentary capacity – regardless of what else he may be medically. What is legal presumption as to soundness of mind? Are there any exceptions to this rule? As a general rule, soundness of mind is presumed, albeit, this is a rebuttable presumption. (see Article 800) Hence, the burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will. (Ibid) The Code through Article 800 and the Rules of Court under Rules 93 and 101 provides for two exceptions that would lead to a rebuttable presumption of insanity, effectively shifting the burden of proof to the one who maintains the validity of the will: (1) When the testator, one month or less, before the execution of the will was publicly known to be insane; (2) When the testator executed the will after being placed under guardianship or ordered committed, in either case, for insanity, and before said order has been lifted. (see also Torres vs. Lopez, 48 Phil 774) When is the time for determining mental capacity of the testator? It is the time of execution of the will – the testator need not be of sound mind in any other time. (see Article 801)

Subsection 3: Forms of Wills What are the two kinds of wills? 1. Attested or ordinary or notarial wills 2. Holographic wills What are the common requirements of these both kinds of wills? 1. In writing 2. In a language or dialect known to the testator (see Article 804) Are these requirements mandatory? Yes. (see also Suroza vs. Honrado, 110 SCRA 388 [1981], where the Supreme Court held that the Judge Honrado was grossly ignorant in allowing probate of the will when the opening paragraph stated that the testator knew and understood English which contradicted the concluding paragraph that stated that the will was translated to the Filipino language after being read to the testator) Are oral wills absolutely prohibited in the Philippines? Although noncupative wills or oral wills (testamentum nuncupativum) are not recognized in the Code, such wills are allowed under Presidential Decree No. 1083 or the Code of Muslim Personal Laws of the Philippines. Is it necessary that the attestation clause state compliance with Article 804? No. Compliance can be proved by extrinsic evidence. (see Lopez vs. Liboro, 81 Phil 429 [1948] and Caponong-Noble vs. Abaja, 450 SCRA 265 [2005]).

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May compliance with respect to whether the testator knew the language in which the will was written be presumed? Yes. Abangan vs. Abangan (40 Phil 476 [1919]) lays down the following requisites for the presumption to apply: (1) The will must be in a language or dialect generally spoken in the place of execution; and (2) The testator must be a native or resident of said locality. What are the special requirements for attested wills? 1. Subscribed by the testator or his agent in his presence and by his express direction at the end thereof, in the presence of the witnesses; 2. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another; 3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses; 4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another; 5. All pages numbered correlatively in letters on the upper part of each page; 6. Attestation clause, stating a. The number of pages of the will; b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses; c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and one another; 7. Acknowledgment before a notary public. Must the testator sign in the presence of the witnesses? Yes. Although left out in the first paragraph of Article 805, it is required to be stated in the attestation clause as mandated in the third paragraph. Therefore, since the attestation clause should not lie, such is mandatory. Must the testator and the witnesses sign every page in one another’s presence? Yes. Although left out in the second paragraph of Article 805, it is required to be stated in the attestation clause as mandated in the third paragraph. Therefore, since the attestation clause should not lie, such is mandatory. Must the attested will be dated? Why? No. Because it is already notarized and hence, would be dated. Are “subscribing” and “signing” synonymous? No. To subscribe necessarily denotes writing, more precisely, to write under. To sign simply means to place a distinguishing mark. Thus, signing has a broader meaning than subscribing – not every signature is necessarily a subscription, not every distinguishing mark is a writing. Does the placing of the testator’s thumbprint comply with the statutory requirement laid down by Article 805? Yes. In Payad vs. Tolentino (62 Phil 848 [1936]), the Supreme Court ruled that it was unnecessary that the attestation clause state that the testatrix requested some other person to sign her name because by the use of her thumbmark, she herself signed the will. In Matias vs. Moe 3B 2006

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Salud, where the thumbmark was questioned because it appeared merely as a smudge lacking ridge lines, the Supreme Court ruled that “… where a testator employs an unfamiliar way of signing, and both the attestation clause and the will are silent on the matter, such silence is a factor to be considered against the authenticity of the testament; but the failure to describe the unusual signature by itself alone is not sufficient to refuse probate when the evidence for the proponent fully satisfies the court that the will was executed and witnessed required by law”. Is it necessary that the testator be afflicted with illness or infirmity for the thumbmark to be valid? No. There seems to be no basis for limiting the validity of thumbprints only to cases of illness or infirmity. Is a cross a proper signature for the purposes of complying of Article 805? No. In Garcia vs. Lacuesta (90 Phil 489 [1951]), the Supreme Court stated that “we are not prepared to liken the mere sign of a cross to a thumbmark… The cross cannot and does not have the trustworthiness of a thumbmark”. However, by stating, “It is not pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the way by which he signed his name…”, the Supreme Court recognized the validity of such signature if it is proved that the cross is the testator’s usual manner of signature or one of his usual styles of signing. What are the two requisites for signing of the testator’s name by an agent? 1. The agent must sign in testator’s presence; and, 2. The agent must sign by the express direction of the testator. What must the agent write? The agent need only write the name of the testator. In Barut vs. Cabacungan (21 Phil 461 [1912]), the Supreme Court ruled that “… with respect to the validity of the will, it is unimportant whether the person who writes the name of the testatrix signs his own or not. The important thing is that it clearly appears that the name of the testatrix was signed at her express direction in the presence of three witnesses and that they attested and subscribed it in her presence and in the presence of each other”. It also stated that, “From the standpoint of language it is an impossibility to draw from the words of the law the inference that the person who signs the name of the testator must sign his own name also”. In that case, it was found to be unnecessary that the agent write his own name. May the agent be one of the attending witnesses? If there are more than three witnesses, certaintly. If there are only three, debatable. What is meant by “subscribed at the end thereof” or rather that the will be signed at the end? If the will contains only dispositive provisions, there is no ambiguity as to where the end of the will is. If, however, the will contains non-dispositive paragraphs after the testamentary dispositions, the testator may sign either at the physical end (or where the writing stops) or the logical end (or where the last testamentary disposition ends). But either way, it is absolutely essential that the signature comes after all testamentary dispositions – otherwise, the entire will be invalidated for violation of an essential requisite of the will (signing at the end). What constitutes “presence”?

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In Nera vs. Rimando (18 Phil 451 [1911]), to determine whether the testator and subscribing witnesses to an alleged will sign the instrument in the presence of each other “does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but at that moment existing conditions and their position with relation to each other were such that by merely casting eyes in the proper direction they could have seen each other sign”. Actual seeing is not required but the ability to see each other. What is required of witnesses? Are these mandatory? 1. Attesting (the act of witnessing) 2. Subscribing (the act of signing their names in the proper places of the will) Yes, both are mandatory for the validity of the will. *May the witness, like the testator, affix his thumbmark, in lieu of writing his name? This point is highly debatable and as far as the law is concerned is not yet settled. Why is it not necessary for the testator not to sign the last page of the will? This is because the last page is where the end of the will would be and hence, would already have the signature of the testator. Is it mandatory that the testator or his agent and the witnesses sign every page in presence of each other? Yes. Is it mandatory that they sign on the left margin? No. The signature can be affixed anywhere. That portion of Article 805 is merely directory. Is it legally permissible for a testator or a witness to miss out signing a page of the will? No. Resort to the case of Icasiano vs. Icasiano (11 SCRA 422 [1964]) will not excuse the testator or any of the witnesses from signing each and every page of the will. Icasiano presented particular circumstances (specifically the fact that the carbon duplicate was signed on every page) that the Supreme Court took in consideration allowing for a ruling that the signing was a mere oversight not invalidating the will. It remains that reliance on Icasiano is not recommended. Is there a required order for the witnesses to sign? If the signing is done in a single transaction, the order of signing, insofar as all the signing requirements of Article 805 are concerned, is immaterial. However, if the affixation of the signatures is done in several transactions, then it is required for validity that the testator affix his signature ahead of the witnesses. Is it mandatory that the will be paginated? Yes. Is it mandatory that the pagination be in letters on the upper part of each page? No. It is only necessary that the pagination be done by means of some conventional system in order to prevent insertion or removal of pages.

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Does the attestation clause need to be signed by the testator? No. The attestation is the affair of the witnesses, therefore, it need not be signed by the testator. (see Fernandez vs. Vergel de Dios, 46 Phil 922 [1924]) Is it required that the signatures of the witnesses to the attestation be found on particular place? Yes. The signatures of the witnesses must be at the bottom of the attestation clause. (see Cagro vs. Cagro, 92 Phil 1032 [1953]) Is there a need for marginal signatures if the will in its entirety only consists of two sheets? No. There need not be any marginal signatures at all. (see Abangan vs. Abangan, 40 Phil 476 [1919]) May the attestation clause be written on a separate page? Yes. The fact that the attestation clause was written on a separate page has been held to be a matter of “minor importance” and apparently will not affect the validity of a will. (see Villaflor vs. Tobias, 53 Phil 714 [1927]) Must the certification of acknowledgment by the notary public need to be signed by the notary in the presence of the testator and the witnesses? No. The ratio in the case of Javellana vs. Ledesma (97 Phil 258 [1955]) states that “whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses, does not affect the validity of the codicil, Unlike the Code of 1889, the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act.” Must the testator and the witnesses have the will acknowledged on the same day that it was executed? No. The obiter in the case of Javellana vs. Ledesma (supra) states that “… Article 806 of the new Civil Code does not contain words requiring that the testator and the witnesses should acknowledge the testament on the same day or occasion that it was executed”. Must the testator and the witnesses acknowledge in one another’s presence? No. By logical inference from the doctrines laid by Javellana, the article does not require that the testator and the witnesses must acknowledge in one another’s presence. However, if the acknowledgment is done by the testator and the witnesses separately, all of them must retain their respective capacities until the last one has acknowledged. May the notary public be counted as one of the attesting witnesses? Why? No. In the case of Cruz vs. Villasor (54 SCRA 31 [1973]), it was ruled that a notary public cannot be an attesting, subscribing or instrumental witness to a will. There are two main reasons presented by Cruz: (1) Because 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 – which is impossible. He cannot split his personality so that one will appear before the other to acknowledge his participation in the will-making; (2) Because the act would compromise the impartiality of the notary public who is an officer of the court who must guard against any illegal or immoral arrangements. This function as an officer of the court would be defeated if the notary public were one of the attesting or instrumental witnesses. Moe 3B 2006

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Atty. Baetiong is both the notary public and an attesting witness of a will. Is the will invalidated? Not necessarily. If there are only three attesting witnesses, one of them being Atty. Baetiong, then the will is invalidated – not because of the lack of capacity on the part of the notary public, but because the instrumental witnesses are lacking. However, if there are more than three attesting witnesses, then the will remains valid, notwithstanding the fact that Atty. Baetiong cannot be one of the attesting witnesses. Is affixing of documentary stamp required? No, it is not a requirement laid down by Article 805. (see Gabucan vs. Manta, 95 SCRA 752 [1980]) How does the law treat deaf or deaf-mute testators? According to Article 807, “if the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof”. *Does Ariticle 807 imply that the two persons must perform the task each in turn? It doesn’t matter. Either way, the law expects that one will serve as a check and balance for the other. How does the law treat blind testators? According to Article 808, “if the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged”. Are the provisions on the treatment of deaf, deaf-mute or blind testators mandatory? Yes. According to Garcia vs. Vasquez (32 SCRA 489 [1970]), “the rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself, is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. That the aim of the law is to insure that the dispositions of the will are properly communicated to and understood by the handicapped testator, thus making them truly reflective of his desire, is evidenced by the requirement that the will should be read to the latter, not only once, but twice, by two different persons, and that the witnesses have to act within the range of the testator’s other senses.” If the provisions of Article 808 are mandatory, by evident analogy Article 807 would also be mandatory. Failure to comply with either would result in nullity and denial of probate. May the requirements be liberally applied, allowing for substantial compliance to be sufficient? Yes. In Alvarado vs. Gaviola, Jr. (226 SCRA 348 [1993]) where the Article 808 was not followed to the letter, but rather, the attorney who drafted the will for the testator read the same in the presence of the testator, the notary public and the instrumental witnesses while they silently read copies of their own, the Supreme Court ruled that “substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege.” Hence, as long as the purpose in Garcia vs. Vasquez (supra) and Abangan vs. Abangan (supra) is fulfilled, the

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treatment of the handicapped testator is proper and the provisions of the law are deemed complied with through substantial compliance. On whom is the burden of proof that the special requirements were complied with? It is on the proponent of the will that the special requirement of the article was complied with. Must the compliance with the special requirement be stated in the will? No. Must the compliance with the special requirement be stated in the attestation clause? No. What is the rule of substantial compliance with the form or language of the attestation? According to Article 809, “In the absence of bad faith, forgery, or fraud, or undue and improper influence, defects and imperfections in the form of the 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 all the requirements of Article 805”. J.B.L. Reyes criticized this provision as “liberalization running riot” and suggested guidelines to limit the discretion of the Court which were adopted by the Supreme Court in Caneda vs. Court of Appeals (222 SCRA 781 [1993]), where the attestation did not state that the witnesses signed the will and every page thereof in the presence of the testator and of one another. The rule laid down in Caneda is that the application of substantial compliance “must be limited to disregarding those defects that can be supplied by an examination of the will itself”. What are examples of defects that can be supplied by an examination of the will? Caneda provided for examples of defects that can be supplied by an examination of the will: (1) whether pages are consecutively numbered, (2) whether signatures appear in each and every page, (3) whether there are three subscribing witnesses and (4) whether the will was notarized. What are examples of defects that can not be supplied by an examination of the will? Caneda also provided for examples for defects that may not by supplied by such examination: (1) the total number of pages and (2) whether testator or witnesses signed in the presence of the right people. In what way can the due execution and attestation be proved as contemplated by Article 809? The manner of proving the due execution and attestation is limited to merely an examination of the will itself without resorting to evidence aliunde, whether oral or written. (see Caneda vs. Court of Appeals, supra) What is the main doctrine of Caneda vs. Court of Appeals? Omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation clause and ultimately, of the will itself. What are the requirements of a holographic will? Moe 3B 2006

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1. Completely handwritten by the testator 2. Dated by the testator 3. Signed by the testator What are the advantages of a holographic will? 1. Secrecy 2. Inexpensiveness 3. Brevity What are the disadvantages of a holographic will? 1. Danger of forgery 2. Greater difficulty of determining testamentary capacity 3. Increased risk of duress What is the effect if only a part of the will is handwritten while the other parts are not so? The will is rendered void for non-compliance with one of the requirements of a holographic will. How must the date be stated? The date must state the day, month and year. However, notable is the case of Roxas vs. de Jesus (134 SCRA 243 [1985]) where a holographic will stated only the month and the year, wherein the Supreme Court ruled that the date substantially complied with the requirements of Article 810 since there was no appearance of fraud, bad faith, undue influence and pressure. It is not suggested however that Roxas be imitated. The general rule as stated above still must be complied with. Where should the date be found on the face of the will? The date can be in any part or portion of the will. In the case of Labrador vs. Court of Appeals (184 SCRA 170 [1990]) the Supreme Court validated a holographic will with the date written in the body of the will itself. Must the signature be at the will’s end (at least the logical end)? Yes. (see Article 812) May the testator sign by means of a thumbmark? No. The will must entirely be written, dated and signed by the hand of the testator himself. What are the requirements of probate of a holographic will? 1. At least one witness who knows the handwriting and signature of the testator explicitly declaring that the will and the signature are in the handwriting of the testator (see Article 811) 2. If the will is contested, at least three of such witnesses shall be required (Ibid) 3. (1) In the absence of any competent witness referred to in the preceding paragraph, and (2) if the Court deem it necessary, expert testimony may be resorted to (Ibid) 4. Presentation of the will itself (Gan vs. Yap, 104 Phil 509 [1958]) What is meant by the term “contested”?

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“Contested” refers to when the authenticity of the will is challenged. (Azeola vs. Singson, 109 Phil 102 [1960]) What are the types of probate? 1. Post mortem probates (after the testator’s death) 2. Ante mortem probates (during his lifetime) What are the reasons for the introduction of ante mortem probate into the new Civil Code? 1. It is far easier to determine the mental condition of the testator 2. Fraud, intimidation and undue influence are minimized 3. If a will does not comply with the requirements prescribed by law, the same may be corrected at once 4. In general, the point is to lessen the number of contests upon wills Does Article 811 apply to ante mortem probates? No. It only applies to post mortem probates, since, in ante mortem probates, it is the testator himself who files the petition for probate and will identify the document himself. How may the genuineness of handwriting be proved? Under the Rules of Court, the genuineness of a handwriting may be proved by the following: 1. A witness who actually saw the person writing the instrument; 2. A witness familiar with such handwriting and who can give his opinion thereon, such opinion being an exception to the opinion rule; 3. A comparison by the court of the questioned handwriting and admitted genuine specimen thereof; and 4. Expert evidence. (see Domingo vs. Domingo, 455 SCRA 230 [2005] and Rule 132, Section 22) Is the three-witness rule directory or mandatory? According to the obiter in Azaola vs. Singson (supra), the three-witness rule is directory. In the opinion of the Supreme Court in that case, the article could “not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator”. The Court recognized the potential impossibility of complying with such requirement if made mandatory. It opined that, judging by the second paragraph of the same article, “the law foresees the possibility that no qualified witness may be found and provides for resort to expert evidence to supply the deficiency”. Therefore, the focus of the Court in Azaola was on the duty on the court “to exhaust all available lines of inquiry” whatever number of witnesses is necessary to reach that goal and whether or not expert witnesses are required. What is decisive therefore is not the quantity of witnesses, but the quality of their testimony. However, in Codoy vs. Calugay (312 SCRA 333 [1999]), it was ruled that the three-witness rule of Article 811 is mandatory based on the finding the word “shall” in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion. Did the doctrine in Codoy reverse Azaola? There are two views. The first view is that Codoy did reverse Azaola precisely because it is a later case that expressly states that the rule is mandatory when the previous case states that it is merely directory. Given the inconsistency, there can be no doubt that the Azaola has been reversed. Moe 3B 2006

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The second view is that Codoy actually affirmed Azaola rather than reversed it. In support of such a view are the following points: (1) The Codoy ruling was not based on there being less than three witnesses (2) Neither did the ruling state that since there were less than three witnesses, even if their testimony was convincing, the probate must be denied because the mandatory import of Article 811 (in fact, the testimony of these two witnesses was found to be indecisive) (3) The ruling in fact said that visual examination of the will reveals that the strokes are different compared with standard documents (4) Therefore, the basis of the ruling was that evidence for authenticity was not adequate, not failure to present three witnesses. Which, if analyzed closely, is in accord with Azaola, which stated that the decisive factor is not quantity, but quality. Atty. Balane has made it clear that he subscribes to the second view. Why is it required that the holographic will be produced for the will to be probated? The rationale of the rule is laid down in the case of Gan vs. Yap (supra). Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted to the courts for allowance to probate. In order to prove such authenticity and due execution, the Court deems the document itself as the material proof of authenticity and as its own safeguard. Without the will, means of opposition to the will and of assessing the evidence would not be available. The only guarantee of authenticity would have disappeared. Also, allowing for probate to pursue without production of the will would open the door to fraud. Furthermore, with respect to the witnesses, those of a holographic will testify as to their opinion of the handwriting – an opinion which can no longer be tested in the absence of the actual holographic will. In lieu of the original of the holographic will, may photostatic copies be submitted to probate the will? According to the case of Rodelas vs. Aranza (119 SCRA 16 [1982]), certainly. It explained that since the probate proceedings required comparison between writing samples of the testator and of the handwritten will, then a copy of the same would suffice – “But a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator”. However, the ruling is questionable precisely because as basis for such a claim that copies may be used to probate a holographic will, the Court cited Footnote 8 of Gan vs. Yap (supra). A footnote is hardly doctrinal. It is not even obiter – it is of a lower lot. Hence, one can expect that the ruling in Rodelas can and will be reviewed by a more enlightened Court in the near future. What is an additional disposition in a holographic will? It is a disposition written below the signature of the testator at the end of the original will. What are the formal requirements for additional dispositions in a holographic will? 1. Signature 2. Date How may the additional dispositions in a holographic will be validated? 1. The dispositions must be dated and signed by him. 2. The dispositions may be signed but not dated, but the last disposition must be both signed and dated. Moe 3B 2006

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What would be the effect if the additional dispositions are dated but not signed? Only the last will be valid – provided that the last is signed and dated. If not, then all the additional dispositions would be rendered invalid. What would be effect if the additional dispositions are neither signed nor dated? If the last is dated and signed and they were made in one occasion, then all the additional dispositions are validated. If the last is dated and signed and they were made in several occasions, then all the additional dispositions are invalidated. However, in practice, this is almost worthless, because it would be extremely difficult if not impossible to prove whether such dispositions were made in one or several dispositions. Summary Table on the Validity of Additional Dispositions All Signed & Dated All Valid All Signed, Last Dated All Valid All Dated, Last Signed Only Last Valid All Signed, None Dated All Invalid All Dated, None Signed All Invalid None Signed & Dated All Invalid In one occasion: All Validated None Dated & Signed except Last In more than one: All Invalidated May a testator insert, cancel, erase or alter provisions in a holographic will? Yes, but the testator must authenticate the same by his full signature. What is meant by “his full signature”? It means the usual and customary signature of the testator. What is the effect of non-authentication with the testator’s full signature? The change is simply considered not made. The will is not thereby invalidated as a whole, but at most only as regards the particular words erased, corrected or inserted (Velasco vs. Lopez, 1 Phil 720 [1903]), unless the portion involved is an essential part of the will, such as the date. (Kalaw vs. Relova, 132 SCRA 237 [1984]) In the case of Kalaw, the insertion of a holographic will was not properly done and hence, the alteration was deemed not valid. However, in this case, not only was the insertion invalidated, the entire will was rendered void. According to the case, “… when as in this case, 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.” Kalaw then added that “To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix.” Is there anything questionable about the ruling in Kalaw vs. Relova (supra)? Yes. For although the holding that the insertion of the name of Gregorio cannot be given effect for not having been done in accordance with the requirement of Article 814, the voiding of the entire will is questionable. The original must have taken effect notwithstanding the fact that the testator wanted to change her mind about it because the insertion, to take effect, must have been Moe 3B 2006

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manifested in a manner required by law. Hence, the intent as stated in the will must have prevailed. What is a joint will? It is one document which constitutes the wills of two or more individuals. Note that the operative term is “document”, and so, the two or more wills may be written on one sheet of paper and this would not constitute a joint will. Note: The fact that a will is joint is a matter of form. Are joint wills allowed in our jurisdiction? No. Joint wills are void. What are the reasons for the prohibition against joint wills? 1. 2. 3. 4.

The limitation on the modes of revocation The diminution of testamentary secrecy The danger of undue influence (Dacanay vs. Florendo, 87 Phil 324 [1950]) The danger of one testator killing the other (Ibid)

Are joint wills absolutely prohibited anywhere in the world? No. In Germany, under Article 2265 of the BGB, a joint will may be made between spouses. What is the effect of a Filipino abroad executing a joint will? The will is void just the same, even though authorized by the laws of the country where they may have been executed. (see Article 819) What is the effect of an alien abroad executing a joint will? It would depend on which law the alien elects to govern the execution of the will. If for instance, the alien chooses Philippine law, then the will would be invalidated. If the alien happens to be, for instance, domiciled in Germany, and the joint will is between the alien and his or her spouse, then the will would be valid. What is the effect of an alien in the Philippines executing a joint will? The effect is controverted. One view is that the will is void as being against public policy. Another view is that it would once again depend on the law selected by the alien to govern such execution. What is the effect of a Filipino and an alien executing a joint will? As to the Filipino, the will is void. But as to the alien, it would once again depend on the law selected by the alien to govern such execution.

Subsection 4: Witnesses to Wills What are the six qualifications of witnesses? 1. 2. 3. 4.

The witness must be of sound mind; (see Article 820) The witness must be at least 18 years of age; (Ibid) The witness must not be blind, deaf or dumb; (Ibid) The witness must be able to read and write; (Ibid)

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5. The witness must be domiciled in the Philippines; (see Article 821) 6. The witness must not have been convicted of falsification of a document, perjury, or falso testimony. (Ibid) Why is it important that a witness not be blind, deaf or dumb? This is because witnessing is an endeavor requiring total sensory perception. Why is it important that a witness be able to read and write? This is because it is presumed, given the seriousness of the act attesting to a will, that witnessing requires an adequate idea of the solemnity of the endeavor and to have such an idea, it is required to have some sort of educational background. Why is it important that a witness be domiciled in the Philippines? This is because there would be a better chance that the witness would be available when the will is probated in the Philippines. Why is it important that the witness not be convicted of the three crimes mentioned? This is because witnessing requires the utmost respect for truth on the part of the witness and the crimes mentioned just show that the perpetrator has no respect for the truth. What is meant by credibility? Is it the same as competency? Credibility, as settled in Gonzales vs. Court of Appeals (90 SCRA 183 [1979]), simply means that the witness’ testimony may be entitled to credence. It is dissimilar from competency which refers to whether or not the witness as the qualifications in Article 820 and none of the qualifications of Article 821. Is it necessary for a witness to be deemed competent that such witness be determined to be of good moral character or standing? No. Also in Gonzales vs. Court of Appeals (supra) ruled that “it is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise”. When is the time for determining mental capacity of a witness? The only relevant temporal criterion is the time of the execution. Adel is an attesting witness to a will. In that will, Adel’s spouse, Kath, is left real property. Is the devise invalidated? Not necessarily. If there are only three attesting witnesses, one of them being Adel, then the devise is invalidated in accordance with Article 823. However, if there are more than three attesting witnesses, then the will devise is valid. Would it make a difference in the example supra if Kath was given a car? No. Article 823 expressly applies to the giving of devise or legacy to the attesting witness, his spouse, parent or child. Would it make a difference in the example supra if Kath was left the entire free portion? Moe 3B 2006

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No. Although the express provisions of the article seem to limit its application to the giving of devise and legacy, the disqualification extends to heirs as well. (see Article 1027(4)) If Kath was a compulsory heir, would Article 823 affect her rights as such? No. The disqualification applies only to the testamentary disposition made in favor of the witness or the specified relatives. If the party is also entitled to a legitime or an intestate share, that portion is not affected by this article. In the example supra, would the will be invalidated? No. The competence of the person as a witness is not affected, and hence, as long as there are three credible and competent witnesses, the will is valid. *Supposing that there are four witnesses, each a recipient of a testamentary disposition, are the dispositions to them valid or void? It seems that the dispositions would be valid. The law does not qualify or distinguish that the three other witnesses in order for the disposition to be valid should not be covered by the article themselves. May a creditor of the testator be a witness? Yes. (see Article 824)

Subsection 5: Codicils and Incorporation by Reference What is a codicil? According to Article 825, “A codicil is 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.” Distinguish a codicil from a subsequent will. A codicil, by definition, explains, adds to, or alters a disposition in a prior will. A subsequent will, on the other hand, makes independent and distinct dispositions. However, the distinction is purely academic because Article 826 requires the codicil to be in the form of a will anyway. Does the codicil have to conform to the form of the will to which it refers? No. So for instance, an attested will may have a holographic codicil. May a will incorporate into itself by reference any document or paper? Requisites? Yes. The document however should, under no circumstances, make testamentary dispositions. Furthermore, the following requisites must be complied with: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and, Moe 3B 2006

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(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. (see Article 827) Can holographic wills incorporate documents by reference? The text of the article seems to suggest a negative answer (see number 4). However, if the testator executing a holographic will superfluously has witnesses, then perhaps the article can be applied.

Subsection 6: Revocation of Wills and Testamentary Dispositions May a will be revoked? Yes. A will is essentially revocable or ambulatory. The right cannot even be waived. There is no such thing as an irrevocable will. What are the rules of revocation as to place? If the revocation is made in the Philippines, Philippine Law governs. If the revocation is done outside the Philippines, then we must distinguish depending on whether the testator is domiciled in the Philippines or not. If the testator is not domiciled in the Philippines, either we follow (1) the law of the place where the will was made, or, (2) the law of the place where the testator was domiciled at the time of the revocation. If the testator is domiciled in the Philippines, either we follow (1) Philippine law, or, (2) the law of the place of revocation, or, (3) the law of the place were the will was made. Summary Table on the Governing Law as to Place on Revocation of a Will Where Revocation Done Governing Law as to Place In the Philippines Philippine Law Outside of the Philippines Law of place where will was made (Domiciled in the Philippines) Law of place at time of revocation Philippine Law Outside of the Philippines Place of revocation (Not Domiciled in the Philippines) Place where will was made How is a will revoked? 1. By implication of law (operation of law) 2. By will, codicil or some other writing as provided in the case of wills (subsequent will or codicil) 3. By burning, tearing, canceling or obliterating the will with intention of revoking it (physical destruction) What are examples of revocation by operation of law? 1. 2. 3. 4. 5.

Preterition Legal Separation Unworthiness to Succeed Transformation, Alienation, or Loss of the Object Devised or Bequeathed Judicial Demand of a Credit given as a Legacy

Must a revocation by operation of law be in full? Not necessarily. Revocation by operation of law may be partial. Moe 3B 2006

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What are the requisites for a valid revocation by subsequent instrument? 1. The subsequent instrument must comply with the formal requirements of a will; 2. The testator must possess testamentary capacity; 3. The subsequent instrument must either contain an express revocatory clause or be incompatible with the prior will May a revocation by subsequent will be full or partial? Yes. Must such subsequent will or codicil be probated to take effect? Of course. What are the four ways of destroying a will? 1. 2. 3. 4.

Burning Turning Cancelling Obliterating

What are the requisites of revocation by physical destruction? 1. Corpus or the physical destruction itself 2. Animus or (1) the capacity and intent to revoke and (2) the testator must have completed everything he intended to do What is the effect of unauthorized destruction? The will may still be proved as lost or destroyed. However, this is only possible if the will is attested. If the will is holographic, it cannot be probated unless a copy survives. What if the will was destroyed with the testator’s express direction but not in his presence? Notwithstanding the discrepancy in Article 830, the destruction is unauthorized. (see Maloto vs. Court of Appeals, 168 SCRA 451 where the destruction was deemed unauthorized not only for lack of proof that it was destroyed (burned by househelp) under the testator’s express direction but also because the destruction was not done in the presence of the testator) What is a possible effect of the loss or unavailability of a will? According to Gago vs. Mamuyac (49 Phil 902 [1927]), “Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed”. “The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death.” What is the effect of the invalidity of the subsequent will on the revocation made on the prior will? As a general rule, the efficacy of the revocatory clause does not depend on the testamentary dispositions of the revoking will. Revocation is generally an absolute provision, independent of the acceptance or capacity of the new heirs.

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The exception is when the testator provides in the subsequent will that the revocation of the prior one is dependent on the capacity or acceptance of the heirs, devisees or legatees instituted in the subsequent will – an example of “dependent relative revocation”. In Molo vs. Molo (90 Phil 37 [1951]), it was ruled that “where the act of destruction is connected with the making of another will so 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 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”. Molo calls this the doctrine of dependent relative revocation, where it must appear that the revocation is dependent upon the valid execution of a new will. Supposing the institution of heirs, legatees or devisees in the subsequent will is subject to a suspensive condition, is the revocation of the prior will absolute or conditional? The answer depends on the testator’s intent. If the subsequent will contains a revocatory clause which is absolute or unconditional, the revocation will be absolute, and the happening or nonhappening of the suspensive condition will be immaterial. If, however, the testator states in the subsequent will that the revocation of the prior will is subject to the occurrence of the suspensive condition, or if the will does not contain a recovatory clause, the revocation will depend on whether the condition happens or not. If the suspensive condition on which an institution depends does not occur, the institution is deemed never to have been made and the prior institution will be efficacious. Is the rule of dependent relative revocation applicable if the revocation of the prior will is by physical destruction? In a Molo obiter, the physical destruction of the will did not revoke the prior will, on the inference that the testator meant the revocation to depend on the validity of a new one. However, it is arguable whether the prior will should be deemed to be valid despite its physical destruction. It is opined that perhaps the Supreme Court overstepped its bounds of inference. This is aside from the fact that the ruling as to this issue is merely obiter. But in the case of Diaz vs. de Leon (43 Phil 413 [1922]), the prior will that was destroyed was held to be invalid due to the fact that it was physically destroyed with animo revocandi by a servant in the presence and under the express direction of the testator. Clearly, despite the invalidity of the second will supposedly invalidating the revocatory clause as well, the prior will cannot be given effect because it was physically revoked. What is meant by the term “ad nutum”? Literally, it means, “at a nod”. Therefore, when wills are said to be revocable ad nutum, they are revocable at the testator’s whim or pleasure. What is the consequence of saying that “Wills are revocable ad nutum”? The law pays great respect for the intention of the testator and his power to revoke. As such, the testator does not have to have a reason or a cause for revoking. However, precisely because the law respects the testator’s true intent, Article 833 sets aside a revocation that does not reflect such intent. What are the requisites for the application of Article 833? 1. 2. 3. 4.

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

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Will this article still be relevant if a holographic will is revoked for a false or illegal cause through physical destruction? No, because then there would be no will to present for probate (see Gan vs Yap, supra), unless a copy survives (Rodelas vs. Aranza, supra). Admittedly, Article 833 restricts the freedom of the testator and runs counter to the principle that wills are revocable ad nutum. What is the basis for such restriction? Public policy. What is another requirement for the application of Article 833 not mentioned above? The illegal cause should be stated in the will as the cause of the revocation. Lloyd, because of his new-found uber-virility, plays around and ends up spawning a love child in a baffling one night stand with a beautiful law student Diane. The love child is named Adel. To hide his shame from his wife Lloyda, he denies the child infront of his beloved in a fit of rage. “DI KO ANAK ‘YAN!!!!”, he screamed in his baritone voice oozing with fratman machismo. Years later, he executes a will admitting that Adel is his illegitimate child. However, subsequently, realizing that he did not want to admit filiation with such child after all, he executed another will revoking the first. Has the recognition of the illegitimate child lost effect? No. (see Article 834 and Article 175 of the Family Code)

Subsection 7: Republication and Revival of Wills If a testator wishes to republish a will that is void as to form, what must he do? He must republish the will (Republication being the restoration to efficacy of a will that is defective or has lapsed) by executing a subsequent will and reproduce the dispositions of the original will. (see Article 835) Mere reference is not sufficient. If the testator wishes to republish a will that is either (1) void for a reason other than a formal defect or (2) previously revoked, what must he do? The only thing necessary to republish is for the testator to execute a subsequent will or codicil referring to the previous will. There is no need to reproduce the provisions of the prior will in the subsequent instrument. In 2002, Manman executed Will 1. In 2004, Manman executed Will 2, expressly revoking Will 1. In 2006, Manman executed Will 3, revoking Will 2. What is the net effect of these executed wills? The revocation of Will 2 by Will 3 does not revive Will 1, unless Will3 expressly revives Will1. In any case, Will 3 is the effective will of Manman. (see Article 837) Will Article 837 apply if the first will is impliedly revoked? No. There terms of this article apply only where the revocation of the first will by the second is express. In the case of implied revocation, the revocation of the second will by the third will revives the first will, unless the third will is itself inconsistent with the first. What is another exception to Article 837? Moe 3B 2006

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An obvious exception is a case where the second will is holographic and it is revoked by physical destruction because the doctrine of Gan vs. Yap (supra) would apply.

Subsection 8: Allowance and Disallowance of Wills What is probate? It is a judicial proceeding wherein the court with jurisdiction determines the formal validity of the will. Is probate of a will mandatory? Yes. In the case of Guevara vs. Guevara (74 Phil 479 [1943]), the Supreme Court did not sanction the procedure adopted by the respondent in the case in presenting the will not for probate but to prove that the deceased had acknowledged her (respondent) as his natural daughter. The Supreme Court ruled that “… the presentation of a will to the court for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy.” How do we reconcile Section 1 of Rule 74, which allows the parties, without securing letters of administration, to divide the estate among themselves as they fit by means of public instrument filed in the office of the Register of Deeds, and the mandatory nature of probate proceedings? Guevara vs. Guevara (supra) clarifies that “Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a decedent “without securing letter of administration. It does not say that… the heirs and legatees may divide the estate among themselves without necessity of presenting the will to the court for probate.” What is the effect of a decree of probate once it becomes final in accordance with the rules of procedure? The decree becomes res judicata. In the case of De la Cerna vs. Potot (12 SCRA 576 [1964]), although joint wills are prohibited in our jurisdiction, because the lower court had allowed probate for the joint will upon death of one of the spouses party to the joint will in this case, it had already attained the status of res judicata and could no longer be questioned in subsequent proceedings. What is the scope of the final decree of probate? It is conclusive as to the due execution of the will or, more specifically, as to the will’s extrinsic or formal validity only. In the case of Gallanosa vs. Arcangel (83 SCRA 676 [1978]), the Court clarified that when a decree of probate is said to be conclusive as to the due execution or formal validity of the will, it means that the testator was (1) of sound and disposing mind at the time when the testator executed the will and (2) not acting under duress, menace, fraud, or undue influence and that the will (1) was signed by him in the presence of the required number of witnesses (i.e. all the formal requirements of the will have been complied with) and (2) is genuine and not a forgery. The case concluded that “after the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore”. Aside from the scope mentioned in Gallanosa, Dorethea vs. Court of Appeals (320 SCRA 12 [1999]) also enumerates what formal validity encompasses: (1) (2) (3) (4)

Whether the will submitted is indeed the decedent’s last will and testament; Compliance with the prescribed formalities for the execution of wills; Testamentary capacity; Due execution of the will, which means: (1) the testator’s sound and disposing mind, (2) freedom from vitiating factors (duress, menace, undue influence), (3) will genuine, not

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forgery, (4) proper testamentary age and (5) the testator is not expressly prohibited by law from making a will. Another way of defining the scope of a final decree of probate is to refer to Article 839 (discussed infra) – objection to a will on any of the grounds enumerated in that article is foreclosed by a final decree of probate. The business of probate is therefore extrinsic validity. Does this mean, therefore, that probate, under no circumstances, shall deal with intrinsic validity? No. “Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue” (Nepomuceno vs. Court of Appeals, 139 SCRA 206 [1985]). In the case of Nepomuceno, because the will mentioned, in so many words, that the appointed heir was his mistress and that the testator had a legal wife (who was disinherited along with his children), the court ruled on the intrinsic validity of the will and denied it on the ground that it was contrary to Article 739 of the Civil Code disallowing dispositions to those “guilty of adultery or concubinage at the time of the donation”. Therefore, on the authority of Nepomuceno, a probate court may pass upon the issue of intrinsic validity if on the face of the will, its intrinsic nullity is patent. In what cases shall the will be disallowed? 1. If the formalities required by law have not been complied with; 2. If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; 3. If it was executed through force or under duress, or the influence of fear, or threats; 4. If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; 5. If the signature of the testator was procured by fraud; 6. If the 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. Is this enumeration exclusive? Yes. What is the effect if any of these are proven? The will shall be set aside as void. Is there such a thing as a voidable will? No. What is fraud or violence? There is violence when in order to wrest consent, serious or irresistible force is employed. (see Article 1335) What is duress or intimidation? There is intimidation when one of the contracting parties is compelled by a reasonable and wellgrounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. (see Article 1335) What is undue or improper pressure or influence? Moe 3B 2006

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There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. (see Article 1337) What is fraud? There is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to. (see Article 1338) What is mistake? In order that mistake may invalidate consent, it should refer to the substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter the contract. (see Article 1331)

Section 2: Institution of Heir What is “Institution of Heir”? It is 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. Are the rules of institution of heirs limited only to heirs? No. The rules apply as well to institution of devisees and legatees. A will does not contain an institution of an heir. Is the will valid nonetheless? Yes. A will contains institution of heir but does not dispose of the entire estate. Is the will valid nonetheless? Yes. A will contains institution of heir but is not accepted by the instituted heir. Is the will valid nonetheless? Yes. A will contains institution of heir but the instituted heirs are incapacitated to succeed. Is the will valid nonetheless? Yes. How much can be disposed of by will? If the testator leaves no compulsory heirs, the testator can dispose of the entire estate. If the testator leaves compulsory heirs, the testator can only dispose of the disposable portion, referring to the net hereditary estate minus the legitimes. What determines the amount of legitimes?

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The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are possible (discussed infra). What is the effect if only a portion of the disposable portion is given in a will, instead of the whole? Mixed succession. A stated in his will the following: “I institute B, my “hippo penguin cute”, as an heir to the entire free portion of my estate.” Is the institution valid? It depends. The use of name and surname in the designation is not mandatory, but merely directory. What is required, however, is that the identity of the designated successor be sufficiently established. Such establishment is usually done by the statement of both the name and surname – there are however, other ways. The validity of the institution therefore hinges on the determination of the identity of the designated successor. In A’s case, although only the first name of the testamentary heir is mentioned (B), the qualifier “hippo penguin cute”, which is publicly known as his pet name for his girlfriend B, could very well establish sufficiently that his girlfriend Bianca is indeed instituted. However, if it so happens that David has another girlfriend on the side, whom he also calls “hippo penguin cute” and such is also a known fact, then the institution is clearly not sufficiently established and ambiguity exists. Now, if there is any ambiguity in the designation, the institution is not automatically invalidated. The ambiguity should be resolved in accordance with the rules of construction of wills, particularly Article 789, namely, that extrinsic evidence may be introduced, excluding oral declarations as to the intention of the testator. It despite the introduction of such evidence aliunde it is still not possible to resolve the ambiguity, the testator’s intent becomes indeterminable and, therefore, intestacy as to that portion will result. The net effect of indeterminability; therefore, is the invalidation of the institution. What is an “unknown person”? This term refers to a successor whose identity cannot be determined because the designation in the will is so unclear or so ambiguous as to be incapable of resolution. A instituted B as an heir to the entire free portion of her estate. A does not know B personally. An opposition is made on the ground that “every disposition in favor of an unknown person shall be void”. Is the opposition correct? No. The term “unknown person” does not refer to one with whom the testator is not personally acquainted. The testator may institute somebody who is a perfect stranger to him, provided the identity is clear. How should heirs instituted without designation of shares inherit? They should inherit in equal parts. The general presumption in cases of collective designation is equality. If the testator intends an unequal apportionment, he should so specify. Does the presumption of equality apply in all cases of succession? The rule only applies in testamentary succession. It will not apply to an heir who is both a compulsory and a testamentary heir, since in such case, the heir will get his legitime and his testamentary portion. *An institution is made in the following manner: “I institute to one-fourth of my estate A, B, C and D, of which portion A is to get one-third, and B is to get one-fourth.” Does the presumption of equality of shares apply to C and D whose shares are unspecified? Moe 3B 2006

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Yes, that seems to be the case. There seems to be no other reasonable way in which the shares of C and D are to be determined. Further, although no explicitly covering such cases, the rule states that “heirs instituted without designation of shares shall inherit in equal parts”. There is no distinction made that for such presumption to apply, that ALL heir must not have been specified shares. An institution is made in the following manner: “I designate as my heirs A and B, and the children of C”. How shall the children inherit assuming that there is more than one child? When the testator institutes some heirs individually (in this case, A and B) and others collectively (in this case, the children), those collectively designated shall be considered as individually instituted unless it clearly appears that the intention of the testator was otherwise. There is therefore a presumption that heirs collectively referred to are designated per capita along with those separately designated. Clearly, if the testator intends a block designation, he should so specify. An institution is made in the following manner: “I designate as my heirs my four brothers John, Mark, Matthew and Ringo.” Assuming Ringo is a half blood brother of the testator, how is he to inherit (in what share)? If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. Does the rule supra as to full or half blood brothers or sisters apply to intestate succession? No. In intestacy, there is a 2:1 proportion between full and half blood brothers and sisters (without prejudice to the rule prohibiting succession ab intestato between legitimate and illegitimate siblings. *Does the rule supra as to full or half blood brothers and sisters apply similarly to illegitimate brothers and sisters, in cases where the testator is of legitimate status and vice versa? Yes, it seems so – because the law seems to make no distinction. An institution is made in the following manner: “I designate as my heirs A and her three children”. How shall the A and his children inherit? When the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. What is the effect of the statement of a false cause for the institution of an heir? Is the effect the same in all cases? Such false cause shall be considered as not written. However, the falsity of the stated cause for institution will set aside such institution, if the following factors are present: (1) The cause for the institution of heirs must be stated in the will; (2) The cause must be shown to be false; and, (3) It must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause. (Austria vs. Reyes, 31 SCRA 754 [1970]) Julia, instituted as her heirs Carol, Mika, Micah, Myta, Grace and Ina to her entire estate, Julia designated a definite portion for each in the following proportions: Carol – 1/9; Mika – 1/6; Micah - 1/18; Myta – 1/18, Grace – 1/2; Ina – 1/12. At the time of her death, Julia’s Moe 3B 2006

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estate is valued at Php18,000,000.00. Is there something the matter with such institution made by Julia? If any, what must be done? The total of all the portions is less than the whole estate. Therefore, a proportionate increase is necessary. The difference cannot pass by intestacy because the testator’s intention is clear to give the instituted heirs the entire amount. Do the computations in accordance with the resolution to Julia’s case. The total of the specified portions is only 35/36. And therefore, as mentioned supra, a proportionate increase should be made. Per the proportions specified in the will: Carol Mika Micah Myta Grace Ina

= Php2,000,000.00 = Php3,000,000.00 = Php1,000,000.00 = Php1,000,000.00 = Php9,000,000.00 = Php1,500,000.00

The total therefore being Php17,500,000.00. The algebraic formula to be used is: A/T = x/E, where: A is the share of a particular heir T is the sum of the shares of all the heirs E is the total value of the estate x is the increased share of the particular heir Therefore, in Carol’s case, evaluating using the value of Php2,000,000.00, her increased share should be approximately Php2,057,142.86. Following the same for each of the other heirs, the increased shares of each should be: Heir Carol Mika Micah Myta Grace Ina Total

Sharing (in Php) 2,057,142.86 3,085,714.29 1,028,571.43 1,028,571.43 9,257,142.86 1,542,857.14 18,000,000.0143

Note: 1. The extra decimals in the solution are due to rounding off 2. The rule applies equally when the testator institutes not to the entire estate but merely to the entire disposable portion. 3. The same procedure is applied in case the total of the portions exceeds the whole estate (or the whole disposable portion), but computing this time for a proportionate reduction. What is preterition?

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Preterition means total omission from the inheritance. The heir in question therefore must have received nothing from the testator by way of (1) testamentary succession, (2) legacy or devise (as seen in Aznar vs. Duncan, 17 SCRA 590, 17 SCRA 590 [1966]), (3) donation inter vivos or (4) intestacy. When there is a compulsory heir in the direct line instituted in the will and the testamentary disposition given to such heir is less than the heir’s legitime, is there preterition? No. As ruled in Reyes vs. Barretto-Datu (19 SCRA 85 [1967]), there is no preterition in this case precisely because there was no total omission, inasmuch as the heir received something from the inheritance. Therefore, the heir’s remedy is not found in Article 854 (the article on preterition), but rather in Article 906 and 907 on the completion of legitime (discussed infra). When a compulsory heir is omitted from the will but is given a legacy or devise, is there preterition? No. As seen in the case of Aznar vs. Duncan (17 SCRA 590 [1966]), there was no preterition precisely because the testator did not entirely omit the oppositor-appellee in the case, but left her a legacy of Php3600.00. When a legacy or devise happens to be less than the recipient’s legitime, the remedy is only for the completion of the legitime under Articles 906 and 907. When a compulsory heir is omitted from the will but had received a donation inter vivos from the testator, is there preterition? No. The donation inter vivos is treated as an advance on the legitime under Articles 906, 909, 910 and 1062 (all discussed supra). Such view is supported by Castan, Manresa, Scaevola and Valverde. It is contradicted however by a decision of the Supreme Court of Spain of 17 June 1908. When a compulsory heir is not mentioned in the will nor was he made a recipient of a donation inter vivos from the testator, but not all of the estate was disposed of by the will, is there preterition? No. The omitted heir in this instance would receive something by intestacy, from the portion not disposed of by the will (the vacant portion). The right of the heir, should the vacant portion be less than his legitime, will simply be to demand completion of his legitime, under Articles 906 and 907. Who are included within the terms of the article on preterition? A compulsory heir in the direct line, whether living at the time of the execution of the will or born after the death of the testator. What is the flaw in the working of the Article? The phrase “whether living at the time of the execution of the will or born after the death of the testator” does not, by its terms, include those compulsory heirs in the direct line born after the execution of the will but before the testator’s death. Such children are, without doubt, to be included within the purview of the protection of the article. The gap is merely the result of careless drafting. What is covered by the term “compulsory heirs in the direct line”? This covers children or descendants, and in proper cases, parents or ascendants. A statutory is also found in Article 964, par. 2 – “a direct line is that constituted by the series of degrees among ascendants and descendants”.

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Does the surviving spouse fall within the purview of the article on preterition? No. This is so, because, although a compulsory heir, is not in the direct line. (Balanay vs. Martinez, 64 SCRA 452 [1975]) Are illegitimate descendants or ascendants within the coverage of “compulsory heirs in the direct line”? According to Manresa, which seems to be the better view (although opposed by Scaevola), yes – because the law does not distinguish. What is the basis for the second paragraph of the article on preterition? The second paragraph of Article 854 states that “if the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.” Should the preterited heir predecease (or be unworthy to succeed) the testator, obviously the question of preterition of that heir becomes moot. However, should there be a descendant of that heir who is himself preterited, then the effects of preterition will arise. Are adopted children under the ambit of the term “compulsory heir in the direct line”? Yes. This question has been answered in the affirmative by Acain vs. IAC (155 SCRA 100 [1987]). According to Acain, since an adopted child is given by law the same rights as a legitimate child, vis-à-vis the adopter, then the adopted child can, in proper cases, invoke Article 854 in the same manner that a legitime child can. What is the effect of preterition? Preterition annuls the institution of heir but maintains the validity of legacies and devises to the extent that these latter do not impair the legitimes. What is meant by “annulment of the institution of heir”? Such annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned (Nuguid vs. Nuguid, 17 SCRA 449 [1966]). Thus, if the will contains only institutions of heirs and there is preterition, total intestacy will result. Distinguish Preterition from Ineffective Disinheritance. Preterition is (total) omission from the inheritance, without the heir being expressly disinherited. The implied basis of the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir, the article will not apply. Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the heir is simply entitled to demand his rightful share. Article 855 states that “The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.” What are the errors in this article? It is superfluous and inaccurate. It is superfluous in the sense that it deals not with preterition but with completion of legitimes which is properly and sufficiently provided for in Articles 906, 907, 909, 910 and 911.

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It is inaccurate in two levels. First, the coverage should extend not only to children and descendants, but to all compulsory heirs. Second, the proportionate reductions should be borne not by the compulsory heirs as such but by the testamentary heirs, including the devisees and legatees. To make the compulsory heirs bear the reduction would mean reducing their own legitimes – a patent absurdity as it would be tantamount to solving one problem by creating another. Article 856 states that “A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.” What are the errors in this article? It is inaccurate and misleading, because it suggests that there are exceptions to the rule that an heir – in case of predecease, incapacity or renunciation – transmits nothing to his own heirs. However, this rule of non-transmission is absolute – there is no exception to it. Representation cannot be considered an exception because through such, the person represented does not transmit anything to his heirs. Represenation is rather a form of subrogation. (Representation discussed infra) Further, the article says too much (as it speaks of compulsory succession when it should deal only with testamentary succession) and too little (because if it wished to cover the entire gamut of rules on this point, it fails to mention intestate succession). The better statement of the rule should be that an heir – whether compulsory, voluntary or legal – transmits nothing to his heirs in case of predecease, incapacity, renunciation or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply.

Section 3: Substitution of Heirs What is substitution? It is the appointment of another heir so that he may enter into the inheritance in default of, or subsequent to, the heir originally instituted. Note: The underlined phrase ensures the inclusion of the fideicommissary substitution wherein the second heir succeeds not in default of the first, but after the first. What is the basis of substitution? The right to provide for substitutions is based on testamentary freedom. For instance, in simple substitutions, the testator, exercising his testamentary freedom, simply makes a second choice, in case the first choice does not inherit. It can also be concluded that another basis for such is the right to impose restrictions. This is readily seen in fideicommissary substitutions where the testator imposes what is essentially a restriction or burden on the first heir, coupled with a selection of a subsequent recipient of the property. What are the kinds of substitutions of heirs? 1. Simple or common or vulgar 2. Brief or compendious or brevilocua/compendiosa 3. Reciprocal or reciproca 4. Fideicommissary or fideicomisaria

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Note: In reality, there are only two kinds of substitution: (1) the simple or common or vulgar, and, (2) the fideicommissary or fideicomisaria. The two others enumerated are merely variations of either vulgar or the fideicomisaria. What are other kinds of substitutions not found or eliminated from our Code? 1. Pupilar 2. Ejemplar May a substitution be both simple and fideicommissary? No. The two kinds are mutually exclusive. What are the causes of simple substitution? 1. Predecease of the first heir 2. Renunciation of the first heir 3. Incapacity of the first heir How may a testator provide for simple substitution with all three causes? 1. By specifying all the three causes i.e. I hereby designate Person A to the entire free portion of my estate. In case Person A predeceases me, renounces such designation or is incapacitated to succeed, Person B shall succeed in lieu of Person A. 2. By merely providing for a simple substitution i.e. I hereby designate Person A to the entire free portion of my estate. Person B shall hereby succeed by simple substitution, when necessary. May the testator limit the operation of simple substitution by specifying only one or two of the three causes? Yes. *May the testator provide for a substitution on grounds other than those provided in this article? No. The applicable provision (Article 859) does not seem to indicate the possibility of other causes for simple substitution. *In case of renunciation by the first heir, must the substitute have capacity at the time of the renunciation? In other words, supposing the substitute dies before the first heir manifests his renunciation, may the successors of the substitute acquire the testamentary disposition? There are two views, which are both equally defensible. The view that the substitute must have capacity at the time of the renunciation by the first heir finds support in Article 1034, par. 3 on conditional institution (simple substitution being a form thereof). The opposite view anchors itself on Article 1042 and 533, par. 2 on the retroaction of acceptance or repudiation of the inheritance and the effect of valid renunciation, respectively.

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Will the substitute be disqualified if the cause of the first heir’s predecease is that the substitute killed him? Sure – that is, if it can be proven. What is brief or compendious substitution? It is when two or more persons are substituted for one, or one person is substituted for two or more heirs. Assuming one person is substituted for two or more original heirs, what is the effect of if not all of the original heirs default? As a general rule, substitution will take place only if all the original heirs are disqualified. Therefore, in this case, substitution will not take place. Instead, the share left vacant will accrue to the surviving co-heir or co-heirs. Is there an exception to the rule stated above? Yes – a case where the testator provides for substitution in the event of the death, renunciation or incapacity of any one of the original heirs. What is reciprocal institution? It is the substitution that involves two or more “heirs instituted in unequal shares” wherein “the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise”. (see Article 861) According to the same article and in line with the concept of reciprocal substitution, “if there are more than one substitute, they shall have the same share in the substitution as in the institution”. Illustrate two examples of reciprocal substitution – one for the first sentence of Article 861, the other for the second sentence thereof. The first sentence: Denise made a will instituting Sheryl and Vira as heirs (1/3 and 2/3 of the free portion, respectively) and as reciprocal substitutes. Subsequently, Denise dies. Vira renounced her share. As a reciprocal substitute, Sheryl should inherit the share given to Vira by Denise, namely, 2/3 of the free portion. Similarly, if it was Sheryl who renounced, Vira would inherit the 1/3 given to Sheryl. The second sentence: Dianna instituted in her will Agay, Gail and Timmy as her heirs to 1/2, 1/3 and 1/6 of the estate. Should Agay predecease Dianna due to old age, Gail and Timmy will acquire Agay’s 1/3 portion in the proportion of 2:1. Similarly, should Gail predecease Dianna, Agay and Timmy will get Gail’s 1/3 portion in the proportion of 3:1. Should Timmy predecease, Agay and Gail will share Timmy’s 1/6 portion in the proportion of 3:2. Adel is substituted by Manman after Adel was declared incapacitated to succeed to the estate of Moe. Under the provisions of the will, Adel shall only receive the inheritance if he is able to build a monument in honor of Moe. To receive the share of Adel to the estate, must Manman first build the monument the former was supposed to build?

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Yes. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless the testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. (see Article 862) Since there is no indication in the case at bar that Moe expressly provided that Manman shall be subject to the same condition, and minus proof that the charges and conditions are personally applicable only the heir instituted, Manman is therefore subject to the same condition. What is a fideicommissary substitution? It is a substitution by virtue of which a first heir instituted (called the “fiduciary”) is entrusted with the obligation to preserve and to transmit to a second heir (called the “fideicommissary”) the whole or part of the inheritance. (see Article 863) What are the elements of such a substitution? 1. A first heir (fiduciary/fiduciario) who takes the property upon the testator’s death; 2. A second heir (fideicommissary heir/fideicomisario) who takes the property subsequently from the fiduciary; 3. The second heir must be one degree from the first heir; 4. The dual obligation imposed upon the fiduciary to preserve the property and to transmit after the lapse of the period to the fideicommissary heir; 5. Both heirs must be living and qualified to succeed at the time of the testator’s death. Distinguish fideicommissary from vulgar substitution. In fideicommissary substitution, the second heir does not receive the property until the fiduciary’s right expires. Both heirs enter into the inheritance, one after the other, each in their own turn. In vulgar substitution, on the other hand, the substitute inherits only if the first heir fails to inherit. Therefore, only one of the heirs is said to enter into the succession. What is meant by the phrase, “the second heir must be one degree from the first heir”? First of all, it means that there is no question that only one transmission is allowed in the fideicomiaria, from the first heir to the second heir. This is derived from the meaning attributed to the word “degree” by the likes of Scaevola, Maura and Traviesas as “designation”, “substitution” and “transmission”. But on top of that, the term “one degree” also refers to the fact that the second heir must be in the first degree of relationship with the first heir. In other words, the second heir must be either a child or a parent of the first heir. (Palacios vs. Ramirez, 111 SCRA 704 [1982]) According to Palacios, such conclusion can be reached by the constructions of Manresa, Morell and Sanchez Roman of “degree” as “generation”. The Supreme Court, in this case, categorically stated that “the present Code has obviously followed this interpretation”. Is there anything that can be said about the ruling of the Supreme Court in Palacios? Although the Supreme Court gave the two meanings of “degree”, it is not clear in the ratio of Palacios as to why exactly “degree” should mean “generation”. There is no explanation whatsoever why the constructions of Manresa and company are logically superior to that of Scaevola, et al. To put it to the extreme, the manner by which the Court opined seems to be arbitrary, at best. The interpretation is not that “obvious”; therefore, as the Supreme Court expresses it to be. What is the essence of the fideicomisaria? It is ultimately the dual obligation upon the fiduciary (1) to preserve the property and (2) to transmit it after the lapse of the period to the fideicommissary heir – effectively characterizing the Moe 3B 2006

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position of the fiduciary that of a usufructuary, with the right to use and enjoy the property but without the right to dispose (jus disponendi). What is therefore the effect if there is no absolute obligation to preserve and to transmit? There is no fideicomisaria. The institution is not necessarily void – it may certainly be valid as some other disposition. But without the absolute dual obligation, there cannot be a fideicommissary substitution. (Philippine Commercial and Industrial Bank vs. Escolin, 56 SCRA 266 [1974]) What can be said about the case of PCIB vs. Escolin, supra? The case did not resolve the possible issue of whether, assuming there was a fideicomisaria, such substitution would be void anyway since the substitution is more than one degree from the fiduciary (in this case, from C.N. Hodges all the way to the brothers and sisters of his late wife). Perhaps the reason why such issue was not discussed is because (1) the issue was not raised by any of the parties, and (2) the case preceded the ruling doctrine as laid down in the case of Palacios vs. Ramirez, supra. What is the tenure of the fiduciary? According to Manresa, the tenure of the first heir, primarily, the period indicated by the testator. In the absence of such a fixed period, secondarily, it is assumed that the tenure is during the fiduciary’s lifetime. The fifth requirement of the fideicomisaria is that both heirs must be living and qualified to succeed at the time of the testator’s death. Assuming that such requirement is met at the time of the testator’s death, what happens when the fideicommissary predeceases the fiduciary? If the second heir dies before the first heir, the second heir’s own heirs merely take his place. (Article 866) May the fideicomisaria ever burden the legitime? No. (Article 864) How must every fideicommissary substitution be made? Such must be expressly made in order to be valid. What are the two ways in making such express imposition? 1. By the use of the term fideicommissary; or, 2. By imposing upon the first heir the absolute obligation to preserve and to transmit to the second heir. (Article 867(1)) What are the allowable deductions to the property to be delivered? The general rule is that the fiduciary should deliver the property intact and undiminished. The only deductions allowed, in the absence of a contrary provision in the will, are (1) legitimate expenses, (2) credits and (3) improvements. What is the coverage of “legitimate expenses”? Necessary and useful expenses, but not ornamental expenses. Moe 3B 2006

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What is the rule regarding damage to or deterioration of property to be transmitted? If caused by a fortuitous event or ordinary wear and tear, the fiduciary is not liable. If caused by fiduciary’s fault or negligence, the fiduciary is liable. Is there a temporal limit to the prohibition to alienate? If yes, what is the limitation? Yes. Provisions which contain a perpetual prohibition to alienate shall not take effect (Article 867(2)). The limit is the fiduciary’s lifetime. What is the temporal limitation to the prohibition to alienate if there is no fideicomisaria? The limit is 20 years. (see Article 870) In the fideicomisaria, may the testator impose upon the first heir the duty to pay various persons successively a certain income or pension? No. If such were the arrangement made by the testator, then there can be no fideicommissary substitution precisely because there can only be two beneficiaries of such income or pension, one after the other, and the second must be one degree from the other. (Article 867(3)) May the beneficiaries, however, be simultaneous? There seems to be no prohibition for such, and hence, are permitted without affecting the fideicomisaria. (see Article 867(3)) Person C, married to Person J, leaves to Person V the free portion of his hereditary property. At the same time however, Person C discretely tells Person V to apply the same to Person A, his kulasisi. What is the status of such provision? Why? The provision is void for being against public policy. The ostensible heir in this case is in reality only a dummy, because, in reality, the person intended to be benefited is the one to whom the secret instructions refer – in obvious circumvention of some prohibition or disqualification (in this case, Article 1028) What is the effect of the invalidation or voiding of the fideicommissary substitution provisions? The institution of the first heir simple becomes pure and unqualified. *What is the rule in the case of a fideicomisaria where the nullity or ineffectivity lies in the institution of the first heir? As far as the fideicomisaria is concerned, the same can no longer take effect. The very essence of fideicommissary substitution is that a fiduciary or first heir instituted must be charged with the duty to preserve and to transmit property to a second heir or fideicommissary. If the institution of such first heir is ineffective, then therefore be no fideicomisaria. It seems that because the person supposedly charged to transmit the property can no longer take control of the property, then the second heir cannot, in effect, receive the property according to the will – unless there is some other provision that institutes the second heir. Property should go therefore by intestacy.

Section 4: Conditional Testamentary Testamentary Dispositions with a Term Moe 3B 2006

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What is involved in this section? 1. Conditional Dispositions 2. Dispositions with a Term 3. Dispositions with a Mode (Modal Dispositions) What are some inconsistencies in the heading of the section and the wording of Article 871? The section heading is incomplete for not including modal dispositions. On the other hand, the wording of the article is incomplete for not including dispositions with a term. Nevertheless, all three are dealt with in the section and are contemplated by the article. What is a condition? A condition is a future and uncertain event upon which the institution of heir is made dependent upon. (see Article 1179, par. 1) What is a term? A term is an event that should necessarily come, although it may not be known exactly when, which the institution of heir is made dependent upon. (see Article 1193, pars. 1 and 3) What is a mode? A mode is an obligation imposed upon the heir, without suspending – as a condition does – the effectivity of the institution. Therefore, a mode is very much similar to a resolutory condition imposed on the institution of heir. (see Article 882) Note: It is suggested that this section not be tackled in the order given in the Code, but rather, according to the outline below: Topic General Provisions Conditions Terms Modes

Provisions Articles 871 – 872 Articles 873 – 877, 883 (par. 2), 879 – 881, 884 Articles 878 and 885 Articles 882 – 883 (par. 1)

General Provisions What is the basis of the right of the testator to impose conditions, terms or modes? Testamentary freedom. May the testator impose conditions, terms or modes on the legitimes? No. (Article 872) What are the two main types of conditions or terms? 1. Suspensive (ex die) – brings about or gives life to a right 2. Resolutory (ex diem) – extinguishes a right Conditions

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Kim instituted the following legatees and heirs in her will: Zinia as her legatee to her favorite studying chair, Laila as her legatee to her favorite study table and Josie as her heir to 1/10 of the free portion of her estate. However, Kim also imposed the following conditions to each disposition: (1) Zinia would only receive the chair if she, like Superman, learned how to fly; (2) Laila would only receive the table if she is able to steal a chair from the Ateneo Professional Schools library; and, (3) Josie would only receive her share in the estate if and when Atty. Balane starts excusing absences and conducting make-up examinations. Decide on the conditions imposed. Each of the conditions has no effect and must simply be considered to be not written. Hence, all the testamentary dispositions mentioned supra are to be considered as pure dispositions, free of conditions. The reason for such a ruling is rooted in the impossibility or illegality, as the case may be, of the conditions imposed (see Article 873). The condition imposed on Zinia may be considered an impossible condition. On the other hand, the condition imposed on Laila may be considered as contrary to law. Finally, because Atty. Balane is so obsessive compulsive about it, we may never see the day that he will be allowing make-up classes for tests missed by a student – the condition is therefore impossible (Of course, one may argue otherwise, but as far as this author is considered, it’s impossible). The rule on imposition of conditions is different in testamentary dispositions and donations from obligations. In succession and donations, the dispositions become pure. In obligations, however, the obligation is annulled. What is the reason for the difference in the rules? Testamentary dispositions and donations share a common element – they are both gratuitous and spring from the grantor’s liberality. And the imposition of a condition does not displace liberality as the basis of the grant. On the other hand, in obligations, which are onerous, the condition that is imposed becomes an integral part of the causa of the obligation. The elimination of that condition results, therefore, in a failure of cause. May a condition be imposed prohibiting marriage? Generally, no. However, there are exceptions. If a first marriage is prohibited, the condition is always considered not imposed. However, if a subsequent marriage is prohibited by the deceased spouse or by his/her ascendants or descendants, the prohibition is valid and must be effected. On the other hand, if the prohibition is imposed by anyone else, then like first marriage prohibitions, the condition is simply considered not written. (see Article 874, par.1) Is there a way of providing the testator a means of terminating the testamentary benefaction should the heir contract marriage, whether first or subsequent. Yes. Under Article 874, par. 2, the right of usufruct, or an allowance of some personal prestation may be devised or bequeathed to any person for the time during which he or she whould remain unmarried or in widowhood. For example, M may bequeath to C his car upon his death for the duration that she is single. It is important in such testamentary disposition that such be stated positively (emphasizing maintaining single status) rather than negatively (focusing on non-marriage) so as to not place the disposition under the ambit of Paragraph 1 of Article 874. *Is caución Muciana required by this condition? It seems so, as shall be discussed infra.

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Does Article 874 prohibit the imposition of a condition to marry? No. What is a relative prohibition with respect to marriage? It is a prohibition that applies to certain instances, but not to others. For instance, if to give effect to a testamentary disposition, it is stated that Person A should not marry Person C, but at the same time, the prohibition does not apply for marriage to other persons. Does Article 874 prohibit the imposition of a relative prohibition as to marriage? No. Article 874 contemplates absolute prohibitions. What are scriptura captatoria? What is the status of such under our Code? Why? These are so-called legacy-hunting dispositions or dispositions made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person. Such dispositions with such conditions are void. The reasons for the prohibition are three-fold: (1) The captatoria converts testamentary grants into contractual transactions; (2) It deprives the heir of testamentary freedom; and, (3) It gives the testator the power to dispose mortis causa not only of his property but also of his heirs. What is declared void? The condition only? Or the entire disposition? The entire disposition. Mika bequeaths on Carol the entire free portion of her estate on the premise that the latter should first make a substantial donation of Php1000000.00 to the Ateneo Law School for the development of its moot court teams. Is the disposition void? No. It is not scriptura captatoria. What is contemplated in Article 875 is the compulsion of the heir to place certain disposition in his will. Therefore, the article only applies if the forced disposition or conveyance is one that necessarily must be made in a will. What is a potestative condition? It is a condition that depends solely on the will of the heir/devisee/legatee. What is a casual condition? It is a condition that depends on the will of a third person or on chance. What is a mixed condition? It is a condition that depends partly on the will of the heir/devisee/legatee and partly either on the will of a third person or chance. What is the rule as to potestative conditions with respect to fulfillment thereof? According to Article 876, the general rule is that these must be fulfilled as soon as the heir learns of the testator’s death. The exception; however, if (1) the condition was already complied with at the time the heir learns of the testator’s death, and, (2) the condition is of such a nature that it cannot be fulfilled again. What is a negative potestative condition? Moe 3B 2006

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It is a potestative condition that consists in not doing or not giving something. (see Article 879) What is caución Muciana? When is it required? It is security to guarantee the return of the value of property, fruits and interests, in case of contravention. It is required to be given in three instances: 1. If the potestative condition imposed upon the heir is negative (Article 879, see also Article 874 supra). 2. In the case of a suspensive term, wherein the property is delivered to the intestate heirs (Article 885) 3. In the case of modes (Article 882) What is the consequence of the heir not furnishing the required caución Muciana? The property shall be treated as if instituted under a suspensive condition as expressed in Article 880 and discussed infra. What is the rule as to casual or mixed conditions with respect to fulfillment thereof? Generally, such conditions may be fulfilled at any time before or after the testator’s death, unless the testator provides otherwise. However, if the condition is already fulfilled at the time of execution of the will, we must determine whether the testator was aware of the fact of such fulfillment. If the testator is unaware of the fact of such fulfillment then the condition is deemed fulfilled. If the testator is aware of such fulfillment, then we must again determine whether the same can be fulfilled again or not. If the condition cannot be fulfilled again, then the condition is deemed fulfilled. If the condition can be fulfilled again, then it must be fulfilled accordingly. What is the rule of constructive compliance? With respect to potestative conditions, according to Article 883, par. 2, if the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. As regards casual conditions, the rule of constructive compliance, as stated above, is not applicable. Regarding mixed conditions, we must determine whether the condition is dependent partly on chance or partly on the will of a third party. If dependent partly on chance, the rule of constructive compliance is not applicable. If dependent partly on the will of a third party, we have to determine whether the third person is an interested party or not. If the third person is an interested party, then the rule is applicable. What is the rule as to suspensive conditions with respect to administration thereof? In accordance with Article 880, if the heir be instituted under a suspensive condition, the estate shall be placed under administration until the condition is fulfilled (upon such fulfillment, the property will be turned over to the instituted heir), or until it becomes certain that it cannot be fulfilled (upon certainty of such non-fulfillment, the property will be turned over to the second heir, if any, or to the intestate heirs, as the case may be). Article 880 refers to suspensive terms as well. Therefore, shouldn’t the rules as to suspensive conditions refer to terms as well? Why the codal conflict?

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No. Despite the working this article, it should not be applied to institutions with a term (as governed by Article 885, par. 2). Otherwise, there will be an irreconcilable conflict with that article, which mandates that before the arrival of the term, the property should be given to the legal heirs. The reason for such conflict is once again faulty translation by an “unknown genius” as referred to be J.B.L. Reyes. What are the rules that shall govern the appointment of the administrator of the estate and the manner, rights and obligations of such administration? Rules 77 to 90 of the Revised Rules of Court. In the absence of rules as to the treatment of conditional institutions, what rules should apply? Articles 1179 to 1192 concerning conditional obligations shall govern suppletorily. Terms When does the right of the heir the property vest in dispositions with a term? The heir’s right vests upon the testator’s death, conformably to Article 777. Therefore, should the heir die before the arrival of the term, he merely transmits his right to his own heirs who can demand the property when the term arrives. (Article 878) Where have we seen this rule before? Fideicommissary substitutions. (see Article 866) What is the rule on conditional institutions if the instituted heir dies before the happening of the condition? Although there seems to be no applicable provision in this section, the best that can be done is to refer to Article 1034, par. 3, which states, “If the institution, devise, or legacy should be conditional, the time of the compliance with the condition shall also be considered.” The import of this provision is that, in conditional institutions, the heir should be living and qualified to succeed both at the time of the testator’s death and at the time of the happening of the condition. What is the difference between the treatments if the term is suspensive or the term is resolutory? As discussed above, if the term is suspensive, before the arrival of the term, the property should be delivered to the intestate heirs and such heirs have to post a caución Muciana. If the term is resolutory, before the arrival of the term, the property is also delivered to the instituted heir; however, no caución Muciana is required. Modes How must modes be expressed? A mode must be clearly imposed as an obligation in order to be considered one. Mere preferences or wishes expressed by the testator are not modes. A mode functions similarly to a resolutory condition. In fact, modes could very well have been absorbed in the concept of resolutory conditions. Given this, if there is any doubt whether a provision is a condition or a mode, how is the provision to be interpreted?

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In case of doubt whether a provision is a condition or a mode, one must interpret in favor of the provision as a mode. In the case of Rabadilla vs. Court of Appeals (334 SCRA 522 [2000]), the Supreme Court distinguished between conditions and modes. It was ruled thereby, that “since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator… in case of doubt, the institution should be considered as modal and not conditional.” When without the fault of an heir, an institution cannot take effect in the exact manner stated by the testator, how should it be complied with? It shall be complied with in a manner most analogous to and in conformity with the wishes of the testator. The intention of the testator should always be the guiding norm in determining the sufficiency of the analogous performance.

Section 5: Legitime What is the system of legitimes? Our successional system, closely patterned after that of the Spanish Code, reserves a portion of the net estate of the decedent in favor of certain heirs, or groups of heirs, or combination of heirs. The portion that is so reserved is called the legitime (transliteration from the Spanish legitima, derived from the reserve hereditaire of the French Code and the Pflichtteil of the German). (see Article 886) What is the free or disposable portion? It is the portion that is left available for testamentary disposition after the legitimes have been covered. What are the compulsory heirs? These are the heirs for whom the law reserves a portion (Article 886). The compulsion is not on the part of the heirs (who are free to accept or reject the inheritance in accordance with Article 1041), but on the part of the testator. What is the nature of legitimes? The legitimes are set aside by mandate of law/by operation of law. The testator is thus prohibited from disposing by gratuitous title (either inter vivos or mortis causa) of these legitimes. Are onerous dispositions equally prohibited? Dispositions by onerous title are not prohibited because, in theory, nothing is lost from the estate in an onerous disposition, since there is merely an exchange of values. (see Manongsong vs. Estimo, 404 SCRA 683 [2003]; Sps. Joaquin vs. Court of Appeals, 416 SCRA 263 [2003]) What are the major changes in the law of legitimes? 1. The abolition of the mejora or betterment (since according to noted civilists, such was never applied or understood in jurisdiction in any case); 2. The surviving spouse’s share is upgraded from a usufructuary interest to full ownership, albeit a very variable share; 3. The grant of legitimary rights to children classified as illegitimate other than natural and a further change, under the Family Code, abolishing the distinction between natural and spurious Moe 3B 2006

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children and giving all illegitimate children the same legitimary shares (see Articles 163, 165 and 176, Family Code) Who are the compulsory heirs? 1. Legitimate children and descendants, with respect to their legitimate parents and ascendants; 2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; 3. The widow or widower; 4. Acknowledged natural children, and natural children by legal fiction; 5. Other illegitimate children (see Article 887) Is the enumeration of compulsory heirs exclusive? Yes. How may the compulsory heirs enumerated supra classified? The following are the classifications for the purpose of the system of legitimes: 1. Primary compulsory heirs 2. Secondary compulsory heirs 3. Concurring compulsory heirs What are primary compulsory heirs? The primary compulsory heirs are so called because they are preferred over, and exclude, the secondary. The legitimate children and/or descendants are considered the primary compulsory heirs. What are secondary compulsory heirs? The secondary compulsory heirs are so called because they receive legitimes only in default of the primary. The legitimate parents and/or ascendants and illegitimate parents are considered secondary compulsory heirs. Legitimate parents/ascendants are compulsory heirs only in default of legitimate children/descendants. Illegitimate parents are compulsory heirs only in default of any kind of children/descendants. What are concurring compulsory heirs? The concurring compulsory heirs are so called because they succeed as compulsory heirs together with primary or secondary heirs. The surviving spouse and illegitimate children and/or descendants are considered concurring compulsory heirs. However, it is important to note that illegitimate children/descendants, although concurring heirs, exclude illegitimate parents. Who are the legitimate children? 1. Those conceived within a valid marriage (Articles 164 and 54 of the Family Code) 2. Legitimated children (Articles 179, Family Code) 3. Adopted children (Sections 17 and 18, Republic Act No. 8552 [The Domestic Adoption Act of 1998]) How should the legitimate children share in the legitime?

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The law does not specify how the legitimate children should share in the legitime. There is universal agreement, however, that they will share equally, regardless of age, sex, or marriage of origin. When do the legitimate descendants succeed? The general rule is that the nearer exclude the more remote; thus, children, if all qualified, will exclude grandchildren, and so on. The same rule applies to legitimate ascendants and illegitimate descendants. Is there a qualification to the rule that the nearer should exclude the more remote? Yes. The qualification to this rule is representation (succession per stirpes), when proper (discussed infra). Relative to an adopted child, who succeeds with respect to the legitime? The adopter has, in relation to the adopted, the same successional right as legitimate parents. Under the present law (Sec. 18, Republic Act No. 8552), the adopter displaces the biological parents in the successional scheme relative to the estate of the adopted. What is referred to by the “surviving spouse”? The spouse of the decedent – not the spouse of a child who has predeceased the decedent (see Rosales vs. Rosales, 148 SCRA 69 [1987]). Who may be considered the surviving spouse? The so called surviving spouse must have been married to the decedent, and such marriage must have been either valid or voidable. If voidable, there should have been no final decree of annulment at the time of the decedent’s death. *If the consort dies during the pendency of a petition for declaration of nullity under Article 36 or for nullity under Article 40, both of the Family Code, should the proceedings be dismissed or should they proceed? They should be dismissed. A husband and a wife, although still legally married, have not been together for 7 years due to clear and undeniable marital problems. Upon the death of the husband, can the wife still claim her legitime to the estate as a surviving spouse (assuming without this issue, she would have, without question, inherited as a compulsory heir)? Yes, the wife can still claim her share to the estate as a surviving spouse. According to the case Baritua vs. Court of Appeals (183 SCRA 565 [1990]), mere estrangement is not a ground for the disqualification of the surviving spouse as heir. What is the effect of legal separation? On the offending spouse, the legal separation would amount to disqualification. On the innocent spouse, the legal separation would have no effect at all. What is the effect of the death of either spouse during the pendency of a petition for legal separation on the property rights of the surviving spouse?

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There is no separation and the legitimes hold. An action of legal separation is purely personal, hence, it follows that the death of one party to the action causes the death of the action itself – action personalis moritur cum persona. Now, the right to the dissolution of the conjugal partnership of gains or of the absolute community of property, the loss of right by the offending spouse to any share of the profits earned by the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or transmissible. (Lapuz vs. Eufemio, 43 SCRA 177 [1972]) Does it matter which of the spouses, either offending or innocent, dies? No. Under the Lapuz ruling, supra, it does not matter who dies. The Family Code abolished the distinction between natural and spurious children, giving them equal legitimary portions. What if the death happened before 3 August 1988? Then the distinctions still apply – since the death occurred before the effectivity of the Family Code (see Article 777). Hence, if the decedent has spurious children, they would each receive only 4/5 of the share of a natural child. (Article 895) Is there such a thing as an illegitimate ascendant as a compulsory heir? No. Unlike the legitimate ascending line, which includes ascendants or whatever degree, the illegitimate ascending line includes only parents; it does not go beyond the parents. What are the foundations of the legitimary system of the Philippine Civil Code? 1. Exclusion 2. Concurrence *Is an adopted child entitled to a legitime from his biological parents? Under the Family Code, particularly Article 189(3) of the Family Code, this question was not an issue. Clearly, under the Code, the adopted shall remain an intestate heir of his parents and other blood relatives. Thus, the adopted child was entitled to a legitime both from his adopter and his biological parents. However, in the new governing law, particularly Republic Act No. 8552 (Domestic Adoption Act of 1998), the law is silent. Although Section 16 thereof states that “all legal ties between the biological parent(s) and the adoptee shall be severed”, the same section has to do with parental authority under the same law. Therefore, it is unavailing to answer the question supra. In the recent case of In the Matter of the Adoption of Stephanie Nathy Astorga Garcia (G.R. No. 148311, 31 March 2005), the Supreme Court in an obiter stated that “under Article 189(3) of the Family Code and Sec. 18 of Republic Act No. 8552 the adoptee remains an intestate heir of his/her biological parent. But being obiter, the statement does not bind. Further, Sec. 18 of R.A. No. 8552, does not refer to any right of the adopted to succeed his biological parents by compulsory and intestate succession. In summary therefore, the issue remains an issue – the question remains unanswered. In the words of Atty. Balane, “Meanwhile, all of us ordinary mortals must remain groping in the dark.” What does the term “legitimate child(ren)” or “legitimate parent(s)” contemplate? The terms shall, in the proper cases, include legitimate descendants other than children or legitimate ascendants other than parents, respectively.

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The Variations in Legitimary Portions Combination Legitimate Children Alone Legitimate Children; Surviving Spouse

Share 1/2 of the estate divided equally Legitimate Children - 1/2 of the estate Surviving Spouse - One child's share

One Legitimate Child; Surviving Spouse

Legitimate Child - 1/2 of the estate Surviving Spouse - 1/4 of the estate

Legitimate Children; Illegitimate Children

Legitimate Children; Illegitimate Children; Surviving Spouse

Legitimate Children - 1/2 of the estate Each Illegitimate Child - 1/2 of one legit child's share Legitimate Children - 1/2 of the estate Each Illegitimate Child - 1/2 of one legit child's share Surviving Spouse - One child's share

One Legitimate Child; Illegitimate Children; Surviving Spouse

Legitimate Child - 1/2 of the estate Each Illegitimate Child - 1/2 of one legit child's share Surviving Spouse - 1/4 of the estate

Legitimate Parents Alone Legitimate Parents; Illegitimate Children

1/2 of the estate Legitimate Parents - 1/2 of the estate Illegitimate Children - 1/4 of the estate

Legitimate Parents; Surviving Spouse

Legitimate Parents - 1/2 of the estate Surviving Spouse - 1/4 of the estate Legitimate Parents - 1/2 of the estate

Legitimate Parents; Illegitimate Children; Surviving Spouse

Illegitimate Children - 1/4 of the estate Surviving Spouse - 1/8 of the estate

Surviving Spouse Alone

Generally: 1/2 of the estate If In Articulo Mortis: 1/3 of the estate

Surviving Spouse; Illegitimate Children

Surviving Spouse: 1/3 of the estate Illegitimate Children - 1/3 of the estate

Surviving Spouse; Illegitimate Parents

Surviving Spouse: 1/4 of the estate Illegitimate Parents: 1/4 of the estate

Illegitimate Children Alone

1/2 of the estate

Illegitimate Parents Alone

1/2 of the estate

Articles Governing the Particular Combinations Is there a limit to the number of degrees in the descending line that may be called to succeed? No. What are the three basic rules governing succession in the ascending line? 1. The nearer exclude the more remote. 2. Division by line. 3. Equal division within the line. Is there a qualification of the “nearer exclude the more remote” rule in the ascending line? No. There is no representation in the ascending line. The rule therefore is absolute in the ascending line and qualified in the descending line. Moe 3B 2006

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When will the “division by line” rule apply? If there are more than one ascendant in the nearest degree. The legitime shall then be divided in equal parts between the paternal line and the maternal line. What is contemplated by the “equal division within the line” rule? After the portion corresponding to the line has been assigned, there will be equal apportionment between or among the recipients within the line, should there be more than one. Is it necessary that equality is maintained among ascendants of identical degrees? No. In fact the “division by line” rule and the “equality within the line” rule, may cause inequality of shares among descendants of identical degrees. What is the rule as to the termination of marriage by reappearance of prior spouse? According to Articles 41 to 43 of the Family Code, where a subsequent marriage is contracted by a party whose spouse has been absent for the specified period and comply with the requisites laid down therefor, the reappearance of the prior spouse terminates the second marriage. The effect of the termination is that (1) if both consorts in the second marriage were in good faith, they continue to be heirs of each other and (2) if only one of said consorts acted in bad faith, the innocent one will continue to be an heir of the other. What is the rule as to the decree of annulment or absolute nullity of marriage? In cases of marriages judicially annulled or declared void ab initio under Articles 40 and 45, one of the effects of such would be similar to the case of termination of marriage by reappearance of the prior spouse – namely, that only the spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse. The implications therefore, are the similar to the case discussed supra. What is the problem in the two situations discussed? The problem lies in the difficulty of determining who exactly is entitled to the legitime and in what amount. In the first case where there are clearly two spouses and in the second case on the premise that one or both of the partners should remarry, the very basis for the succession – the marriage – is put into question. It clearly begs the question as to why exactly should consorts of a terminated marriage or an annulled one, or one decalred void ab initio continue to be heirs of each other? The law, unfortunately, leaves us begging. In a scenario where value of the surviving spouse’s share is dependent on the valuation of the share of one legitimate child, what is the potential problem of such determination? As long as at least one of several children inherits in his own right, the determination of the share of the surviving spouse presents no problem. It will always be equivalent of one child’s share. Supposing that all the children predecease, are disinherited or should prove unworthy to succeed, representation therefore would set in, and therefore inheritance in different amounts, the solution would be to give the spouse the share that each child would have gotten if qualified. Suppose, however, that all the children renounce, then the grandchildren would inherit not per stirpes but per capita and therefore, equally. Herein lies the problem. Should the spouse’s share still be computed on the basis of the children’s share had they accepted? If so, when will the words “or descendants” in the second paragraph of this article ever be operative?

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It is the opinion of this author that given the fact that there is no representation in the last case, that the descendants inherit in their own capacity and thus, their share should be made the basis for the determination of the share of the surviving spouse. What are the rules as to the reduction of shares? When should these rules apply? 1. The legitimes of the legitimate children should never be reduced since they are primary and preferred compulsory heirs. 2. The legitime of the surviving spouse should never be reduced. 3. The legitimes of the illegitimate children will be reduced pro rata and without preference among them. These should apply when total legitimes exceed the entire estate. In cases where only the surviving spouse succeeds, what are the requisites that need to be present for such heir to receive only 1/3 of the estate, instead of 1/2? The following circumstances must be present: 1. The marriage was in articulo mortis; 2. The testator died within three months from the time of the marriage; 3. The parties did not cohabit for more than five years; and 4. The spouse who died was the party in articulo mortis at the time of the marriage. May an illegitimate child of another illegitimate child inherit by representation? Yes. May a legitimate child of an illegitimate child inherit by representation? Yes. May a legitimate child of another legitimate child inherit by representation? Yes. May an illegitimate child of a legitimate child inherit by representation? No. Given the foregoing, what is the problem in representation? The problem is that the right of representation given to descendants of illegitimate children is broader than the right of representation given to descendants of legitimate children. This unduly places a premium on illegitimacy – a clearly unintended effect. What is the advantage of legitimate parents to illegitimate parents with regard to the system of legitimes? As secondary compulsory heirs, the illegitimate parents are inferior to legitimate parents. Whereas legitimate parents are excluded only by legitimate children, illegitimate parents are excluded by all kinds of children, legitimate or illegitimate. It is also important to note that in the illegitimate ascending line, the right to succeed does not go beyond the parents. The line therefore ends at the level of the parents. May the testator deprive his compulsory heirs of their legitime? Moe 3B 2006

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Generally, no. It is not within the testator’s power to deprive the compulsory heirs of their legitimes. The exception, however, is disinheritance as provided in the immediately following section. May the testator impose burdens on the legitime? Generally, no. Because the legitime passes by strict operation of law, the testator is once again without power to impose any burdens whatsoever. However, the law does provide for two qualifications or instances wherein the testator has some power over the legitime (but should, in no case, impair the legitime), as follows: 1. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (Article 1080, par. 2) 2. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in Article 494. This power of the testator to prohibit division applies to the legitime. (Article 1083, par. 1) The law also provides for certain restrictions on the legitime: 1. The Family Home (Article 159, Family Code) 2. The Reserva Troncal May a potential compulsory heir renounce his future legitime? May a compromise be made between the compulsory heir and the person owing it? No. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void. (Article 905) What is the effect of such voidity? The compulsory heirs who may have renounced or entered a compromise with respect to future legitime may claim the same upon the death of the person owing it. (Ibid) What is the duty of the compulsory heir who has received property by virtue of renunciation or compromise? It is the duty of such compulsory heir to bring to collation whatever they may have received by virtue of the renunciation or compromise. (Ibid) In other words, such property will be considered an advance on his legitime and must be duly credited. Note: The subject of collation will discussed in more detail under the section on Collation, infra. Is the transaction between the prospective compulsory heir and another prospective compulsory heir, or between a prospective compulsory heir and a stranger, interdicted? Yes – but not under this article. Article 1347, par. 2 provides that “no contract may be entered into upon future inheritance except in cases expressly authorized by law.” What is actio ad supplendam legitimam? This is the well-known right of completion of legitime. (Article 906) Moe 3B 2006

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When does this rule apply? This rule applies only to transmissions by gratuitous title. What is the underlying principle of this article? Anything that a compulsory heir receives by gratuitous title from the predecessor is considered an advance on the legitime and is deducted therefrom. What are the exceptions to the rule? 1. If the predecessor gave the compulsory heir a donation inter vivos and provided that it was not to be charged against the legitime (Article 1062); 2. Testamentary dispositions made by the predecessor to the compulsory heir, unless the testator provides that it should be considered part of the legitime (Article 1063). What is the effect on the testamentary dispositions if it either impairs or diminishes the legitime? If the testamentary dispositions exceed the disposable portion, the compulsory heirs may demand their reduction to the extent that the legitimes have been impaired. How are testamentary provisions reduced if proved to be contrary to the legitime? First, reduce pro rata the non-preferred legacies and devises (Art. 911[2]), and the testamentary dispositions (to heirs) (Art. 907). Among these legacies, devises and testamentary dispositions there is no preference. Second, reduce pro rata the preferred legacies and devises. (Art. 911, last par.) Third, reduce the donations inter vivos according to the inverse order of their dates (i.e. the oldest is the most preferred) in line with the principle of prius in tempore, putior in iure (first in time, first in right). (Art. 773) Does it matter if through reduction the dispositions are reduced to nothing? No. The reductions shall be to the extend required to complete the legitimes, even if in the process the disposition is reduced to nothing. If the devise or legacy consists of a usufruct or life annuity whose value may be considered greater than that of the disposable (hence, impairs the legitime), what are the options of the compulsory heir, if any? 1. Ceding to the devisee/legatee the free portion (or the proportional part thereof corresponding to the said legacy/devise, in case there are other dispositions); 2. Complying with the terms of the usufruct or life annuity or pension. (Art. 911, par. 3; Dolar vs. Bishop of Jaro, 68 Phil. 727) The system of legitimes provides for particular shares in fractions of the estate depending on whether there is only one or a certain combination of compulsory heirs. Given these fractions, how is one to compute the actual share of such heirs? The determination of the net hereditary estate. How is the net hereditary estate determined? 1. The inventory of all existing assets; Moe 3B 2006

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2. The deduction of unpaid debts and charges; 3. The addition of the value of donations inter vivos. What is involved in the inventory of all existing assets (the first step supra)? This will involve an appraisal or valuation of the existing assets at the time of the decedent’s death. Such assets will include only those properties that survive the decedent (not intuitu personae). The value determined by this inventory will constitute the gross assets. What is involved in the deduction of unpaid debts and charges? All unpaid obligations of the decent should be deducted from the gross assets. Similar to the inventory of existing assets, only those obligations with monetary value which are not intuitu personae are taken into account. The value determined by such deduction will constitute the available assets. What is involved in the addition of the value of donations inter vivos? This is simply the addition to all available assets (as determined by the previous step) of all the donations inter vivos of the decedent. The sum of all the available assets and all the donations inter vivos is the net hereditary estate. What is the value of donation inter vivos when added to the available assets? Such will be valued as of the time they were respectively made. Any increase or decrease in value from the time they were made to the time of the decedent’s death shall be for the donee’s account, since donation transfers ownership to the donee. What is the rule as to cases where the devise has to be reduced and the thing given as a devise is indivisible? 1. If the extent of reduction is less than 1/2 of the value of the thing, it should be given to the devisee. 2. If the extent of reduction is 1/2 or more of the value of thing, it should be given to the compulsory heir. (Art. 912) In either case, there should be pecuniary reimbursement to the party who did not get his physical portion of the thing devised. (Art. 912) If neither party (the compulsory heir/s and the devisee) elects to exercise his right under Art. 912 (as explained supra), the thing devised should be disposed according to rules infra: 1. Any other heir or devisee, who elects to do so, may acquire the thing and pay the parties (the compulsory heir and the devisee in question) their respective shares in money; 2. If no heir or devisee elects to acquire it, it shall be sold at public auction and the net proceeds accordingly divided between the parties concerned. (Art. 913) Distinguish the rule in Art. 913 with the similar rule in co-ownership (Article 498) and in partition of the decedent’s estate (Article 1086). The rule of constructive partition is similar in all three articles, however, in the two others, the acquisition by one of the co-owners or co-heirs can be done only if all the co-owners or co-heirs agree to such acquisition. The Reserva Troncal

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In general, how does the reserve troncal operate?

R’ios O

R

Gratuitous Title P

Operation of Law

In general, the reserva operates as follows: 1. The Prepositus (P) inherits property by gratuitous title from the Origin (O). Note that P must be a descendant or a brother or sister of O. 2. The Reservista (R) then inherits by operation of law from P. Note that R must be an ascendant of P. 3. R would then be required to reserve the property in favor of P’s relatives within the third degree and who belong to the line from which the said property came – the Reservatarios (R’ios). When did the reserva troncal first appear? The reserva troncal in its present from made its first appearance in the Spanish Civil Code of 1889 thru what was Article 811 thereof. What were the types of reservas found in the Spanish Code? 1. Reserva viudal (also called the ordinaria) 2. Reserva troncal (also called the extraordinaria) There were also two types of reversión: The reversión legal and the reversión adoptiva. Were any of these retained in the present Code? The draft Code submitted to Congress in 1948 had abolished all these four but the legislature decided to retain the reserva troncal and inserted what is now the present article. Note: The reversión adoptiva was later revived by the Child and Youth Welfare Code or Presidential Decree No. 603 in 1974 and again abolished by the Family Code of 1988. What are the other terms used to refer to the reserva troncal? 1. Lineal 2. Familiar 3. Extraordinaria 4. Semi-troncal 5. Pseudo-troncal Why was the reserva viudal called “ordinaria” while the troncal the “extraordinaria”? Moe 3B 2006

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Simply because the viudal preceded the troncal. What is the purpose of the reserva troncal? The reserva troncal is a special rule designed primarily to assure the return of the reservable property to the third degree relatives belonging to the line from which the property originally came, and to avoid its being dissipated… by the relatives of the inheriting ascendant (reservista). (Padura vs. Baldovino, G.R. No. L-11960, 27 December 1958) The Supreme Court in the case of Gonzales vs. Court of First Instance (104 SCRA 479 [1981]), citing Spanish authorities, explains the purpose of the reserva troncal to be to avoid the danger that property existing for many years in a family’s patrimony might pas gratuitously to outsiders through the accident of marriage and untimely death. Further, it is meant to prevent outsiders from acquiring, through an accident of life, property which, but for such accident, would have remained in the family. What are the requisites of the reserva troncal? As given in the case of Chua vs. Court of First Instance (78 SCRA 412 [1977]) (and reiterated in the case of Gonzales vs. CFI, 104 SCRA 479 [1981]), although modified for clarity, the following are the requisites of the reserva troncal: 1. That the property was acquired by a person from an ascendant or from a brother or sister by gratuitous title; 2. That said person died without legitimate issue; 3. That the property is inherited by another ascendant by operation of law; and, 4. That there are relatives within the third degree belonging to the line from which said property came. What is contemplated by “gratuitous title”? Acquisition by gratuitous title (título lucrativo), or acquisitions where the recipient does not give anything in return (Cabardo vs. Villanueva, 144 Phil. 186 [1922]), encompasses transmission by (1) donation or (2) succession of whatever kind. Why must the prepositus die “without legitimate issue”? Because only legitimate descendants will prevent the property from being inherited by the legitimate ascending line by operation of law. What is contemplated by “operation of law”? Transmission by operation of law is limited to succession, either to the legitime or by intestacy – NOT by testamentary succession because that would be tantamount to gratuitous title. What is the process underlying the reserva troncal? Stated differently, what are the three transmissions of the reserva troncal? The property in reserva troncal undergoes a process of three transmissions or transfers: 1. First Transfer – by gratuitous title, from a person to his descendant, brother or sister 2. Second Transfer – by operation of law, from the transferee in the first transfer to another ascendant. 3. Third Transfer – form the transferee in the second transfer to the relatives – reservatarios.

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What is the transfer that creates the reserva? It is the second transfer that creates the reserva. Therefore, without such transfer, there is no reserva to speak of. Such was the situation in the case of Solivio vs. Court of Appeals (182 SCRA 119 [1990]), where the transfer by operation of law was not from a person to his ascendant, but rather from an ascendant (Salustia Solivio) to a descendant (Estaban Javellana, Jr. – Salustia’s son). It was ruled in the case that reserva troncal does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891. Who are the parties in the reserva troncal? 1. Origin or Mediate Source 2. Prepositus 3. Reservista (Reservor) 4. Reservatarios (Reservees) Is it necessary for the purposes of reserva troncal to know how the Origin acquired the property? No. It does not matter who the owner of the property was before it was acquired by the Origin. Does the reserva troncal apply when one or more of the relationships between the parties are illegitimate? No. All relationships among the parties must be legitimate. The provisions of Article 891 do not apply to legitimate relatives (Nieva vs. Alcala, 41 Phil. 915 [1920]). Who is the origin or mediate source? He is the transferor in the first transfer, who is either an ascendant or a brother or sister of the prepositus. Is there a limitation on the degrees of ascendance? No. The ascendant-origin may be of any degree of ascent. Is it necessary that the origin-brother/sister be of full blood? Or may he be a half-blood brother or sister? There is divergence of opinion on this point: One school of thought is that the origin must be a half-blood brother or sister of the prepositus, otherwise, the property would not change lines in passing to a common ascendant of the prepositus and the brother. There would be, therefore, no reserva under this theory since it would not be possible to identify the line of origin – whether paternal or maternal. Another school of thought is that it does not matter whether the fraternal relationship is of the full or the half blood. In either case a reserva may arise since the law makes no distinction. This author subscribes to the latter view as will be explained infra. Who is the prepositus? He is the first transferee, who is a descendant or brother/sister of the Origin, who receives the property from the Origin by gratuitous title. For reasons that will be explained infra, the Prepositus, according to Sánchez Román, is the arbiter of the reserva troncal. What are the rights of the prepositus over the property?

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While the property is owned by the prepositus, he has all the rights of ownership over it and may exercise such rights un order to prevent a reserva from arising. Hence, he may (1) substitute or alienate the property, (2) bequeath or devise it either to the potential reservista or to third persons (subject to the constraints of the legitime), or (3) partition in such a way as to assign the property to parties other than the potential reservista (again subject to the constraints of the legitime). The existence of the reserva therefore depends on the actions of the prepositus. Who is the reservista or reservor? He is the ascendant, of whatever degree, obliged to reserve. May the reservista be the same person as the origin? No. The reservista must be an ascendant other than the Origin (if the latter is also an ascendant). The law is clear that the origin must be another ascendant. If these two parties are the same person, there would no reserva troncal. Should the origin and the reservista belong to different lines? There seems to be two schools of thought on this point. The first view, that of Manresa, believes that the origin and the reservista must belong to different lines for the reserva to exist, because “another ascendant” refers to one belonging to a line other that that of the reservista. The second view, that of Sánchez Román, is that the difference in lines is not necessary precisely because (1) the law makes no distinction, and, (2) the purpose of the reserva is not only curative, but also preventive (i.e. to prevent the property from leaving the line). This author subscribes to the view of Sánchez Román. Deeper than the fact that the law does not distinguish, my reasons for siding with Sánchez Román is that his view furthers the very purpose of the reserva troncal – prevention from leaving the line. Ultimately, just because the reservista and the origin are from the same line, does not prevent the reservista from transferring, in whatever manner, the property out of the line. By the reserva troncal, the law is able to compel the reservista, regardless of his relation to the origin, to keep to the property within the line. This is the same reason that I subscribe to the second view with respect to the question of whether the prepositus should be a half or full blood brother or sister of the origin. It is important to note, perhaps, that in the case of Carillo vs. de la Paz (18 SCRA 467 [1966]), a reserva was said to be created even if the origin was the mother of the prepositus and the reservista was the maternal grandmother of the prepositus. Such statement however may not be determinative of this controversy inasmuch as the question of reserva troncal was not the lis mota in the case. Who are the reservatarios? These are the relatives benefited. What are the requirements to be a reservatario? 1. He must be within the third degree of consanguinity from the prepositus (Cabardo vs. Villanueva, supra) 2. He must belong to the line from which the property came A disputed requirement is whether a reservatario must also be related to the Origin. Is it really a requirement? Once again we have two schools of thought from Manresa and Sánchez Román. The former believes that the article speaks solely of two lines, the paternal and the maternal of the descendant, without regard to subdivisions and hence, the answer, at least to Manresa, is that it Moe 3B 2006

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is not required. However, Sánchez Román holds the opposite on the ground that if this were required, results would arise completely contrary to the purpose of the reserva troncal – to prevent property from passing to persons not of the line of origin. For the same reasons stated supra, this author subscribes to the view of Sánchez Román. Note: It is pertinent to understand that by subscribing to one view on one issue, one cannot divert and hold to another view on another. If one supports Sánchez Román on the issue the third requirement to be a reservatario as just discussed, one cannot in the same breathe support Manresa as to the other issues. One must be consistent with respect to the divergent views presented. To be qualified as a reservatario is it necessary that one must already be living when the prepositus dies? This is not required. The reserva is established in favor of a group or class – not in favor of specific individuals. As long, therefore, as the reservatario is alive at the time of the reservista’s death, he qualifies as such, even if he was conceived and born after the prepositus’ death. How to the reservatarios inherit? Stated differently, do they inherit equally or is there preference among them? There is preference among the reservatarios. In the case of Padura vs. Baldovino (G.R. No. 11960, December 27, 1958), it was ruled that, in line with the rules of intestacy, those reservatarios nearer in degree of relationship to the prepositus will exclude those more remotely related. The reason for the application of rules of intestacy in determining the shares of the reservatarios are three-fold (1) because the application of the reserva troncal ends upon determination of the group of relatives to whom the property should be returned – beyond that, or more precisely, within the group, the rules of intestacy should apply, (2) because this interpretation is the more imperative in view of the Code’s hostility to successional reservas and reversions, and (3) because the reservatarios inherit from the prepositus and not from the reservista and hence, the rules of intestacy do not all of the sudden inapplicable just because of the momentary intervention of the reservista. Does the rule of representation apply in the reserva troncal? As in intestate succession, the rule of preference of degree among reservatarios is qualified by the rule of representation – however such applies only up to the third degree of consanguinity. (Florentino vs Florentino, 40 Phil. 480 [1919]) Actually, there will be only one instance of representation among the reservatarios – a case of the prepositus being survived by brothers/sisters and children of a predeceased or incapacitated brother/sister. What is the nature of the reservista’s right? According to the case Edroso vs. Sablan (25 Phil. 295 [1913]), the following characterize the right of the reservista: 1. The reservista’s right over the reserved property is one of ownership. 2. The ownership is subject to a resolutory condition (i.e. the existence of reservatarios at the time of the reservista’s death) 3. The right of ownership is alienable, but subject to the same resolutory condition 4. The reservista’s right of ownership is registerable. What is the nature of the reservatarios right?

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According to the case of Sienes vs. Esparcia (1 SCRA 750 [1961]), the following characterize the right of the reservatario: 1. The reservatarios have a right to expectancy over the property. 2. The right is subject to a suspensive condition (i.e. the expectancy ripens into ownership if the reservatarios survive the reservista) 3. The right is alienable, but subject to the same suspensive condition. 4. The right is registrable. Does the reservista have the power to appoint, by will, which reservatarios are to get the reserved property? No. The selection of which reservatarios will get the property is made by law and not by the reservista. (Gonzales vs. Court of First Instance, 104 SCRA 479 [1981]) What kind of property is reserved? Any kind of property is reservable. May incorporeal property be reserved? Yes. In Rodriguez vs. Rodriguez (101 Phil. 1098 [1957]), a sugar allotment (a form of incorporeal property) was held to be reservable. What is the effect of substitution? If the prepositus substitutes the property by selling, bartering or exchanging it, the substitute cannot be reserved. In light of the rule of substitution above, may money be reserved? Technically, yes. However, such can only be reserved if the exact same money that was given by the origin, unexchanged, undeposited in any bank, unsubstituted, and unaltered in any way or form, reaches the reservista – which is of course highly improbable. Is the reserved property a part of the reservista’s estate upon his death? No. (Cano vs. Director, 105 Phil. 1 [1959]) Since the reserved property is not computed as part of the reservista’s estate, it is not taken into account in determining the legitimes of the reservista’s compulsory heirs. Lloyd is the legitimate love child of Adel and Kath. Adel dies. Property valued at Php600000.00 is thus inherited by Lloyd from his father. Subsequently, Kath dies from the heartbreak of losing her one true love. Thus, Lloyd is the lone survivor of his immediate family. Moved by extreme pity for his plight, Lloyd’s friend Rico donates to Lloyd property valued at Php400000.00. Upon Lloyd’s death, since he died without issue, the nearest ascendant to Lloyd, Mrs. Reyes, Lloyd’s paternal grandmother, is his sole heir by operation of law with a share of 1/2 of the estate. Lloyd, however, has also made a will designating Mrs. Reyes to 1/2 of his entire estate. Given the foregoing facts and assuming that the two properties mentioned are the only properties comprising the estate of Lloyd, how much of the estate of Lloyd is reservable property? A problem will arise, as in this case, if two circumstances concur: (1) the prepositus makes a will instituting the ascendant-reservista to the whole or a part of the free portion; and (2) there is left in the prepositus’ estate, upon his death, in addition to the reserved property, property not

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reservable. Upon concurrence of such, there is controversy as to how much of the estate of the prepositus should be deemed reservable. Two theories have been advanced to determine such. First is the reserva maxima which holds that as much of the potentially reservable property as possible must be deemed included in the part that passes by operation of law – a true “maximization” of the scope of the reserva. Second is the reserva minima wherein every single property in the prepositus’ estate must be deemed to pass, partly by will and partly by operation of law, in the same proportion that the part given by will bears to the part not so given. Either view is defensible although the minima finds wider acceptance in our jurisdiction as it is deemed to be more equitable. The best way to understand both concepts is to tackle the problem at hand. Let us label the property received from Adel as Property I and the property received from Rico as Property II. The following points are of utmost importance: 1. Property I is valued at Php600000.00 while Property II is valued at Php400000.00. 2. Only Property I may potentially be considered as reservable property because it is the only portion of the estate of Lloyd that came from an ascendant who can be considered an origin or mediate source. 3. 1/2 was passed on to Mrs. Reyes by legitime and hence is the only portion that can be reservable (the 1/2 by will did not pass by operation of law and hence is not reservable). The question is, how much of Property I is reservable considering that only 1/2 of the entire estate was passed by operation of law? According to reserva maxima: The 1/2 shall be applied fully to the entire estate – hence coming up with the amount of Php500000.00. This amount is then juxtaposed with the potentially reservable property (Property I) valued at Php600000.00 and as much as possible of Property I is deemed as reservable property. The net effect therefore is the maximization of reservable property. Hence, the amount of reservable property is Php500000.00. According to reserva minima: The 1/2 shall be applied to both Property I and II. And the only reservable property would be the 1/2 of the potentially reservable property which is Property I. Hence, in this case, the reservable property would only be Php300000.00. The net effect therefore would be the minimization of the reservable property. What are the rights and obligations contemplated by the reserva troncal? There is unfortunately, no explicit provision on the rights and obligations involved in the reserva troncal. There was temporary reprieve from this problem when under the old Code, the implementing provisions of the viudal were extended to the troncal. Hence, the rights of the reservatarios and the corresponding obligations of the reservista were: 1. To inventory the reserved properties; 2. To annotate the reservable character (if registered immovables) in the Registry of Property within 90 days from acceptance by the reservista; 3. To appraise the movables; 4. To secure by means of mortgage: (a) the indemnity for any deterioration of or damage to the property occasioned by the reservista’s fault or negligence, and (b) the payment of the value of such reserved movables as may have been alienated by the reservista onerously or gratuitously.

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The abolition, however, of the reserva viudal has caused some uncertainty whether these requirements still apply. The case of Sumaya vs. Intermediate Appellate Court (201 SCRA 178 [1991]) provided that the requirement of annotation remains despite such abolition. However, it was provided in Sumaya within what period must the annotation be made and whether the other requirements of the old viudal also remain. Beyond Sumaya there rights and obligations involved in the reserva troncal are not definite. How is the reserva troncal extinguished? 1. The death of the reservista; 2. The death of all the reservatarios (although if one subscribes to the view that the reservista can belong to the line of origin, this will not ipso facto extinguish the reserva because the reservista could have a child subsequently who would be a reservatario); 3. Renunciation by all the reservatarios, provided no other reservatario is born subsequently; 4. Total fortuitous loss of the reserved property; 5. Confusion or merger of rights, as when the reservatarios acquire the reservista’s right by a contract inter vivos; 6. Prescription or adverse possession. Note: Due to the sheer difficulty of reserva troncal, always expect a question on the topic in Balane tests.

Section 6: Disinheritance Is disinheritance, as mentioned supra, the only exception to the rule that the testator cannot deprive the compulsory heirs of the legitime? Yes. What are the requisites of a valid disinheritance? 1. It must be made in a will (Article 916); 2. It must be for a cause specified in law (Article 916 in relation to Articles 919 to 921); 3. It must specify the cause (Articles 916 and 918); 4. It must be unconditional; 5. It must be total; 6. The cause must be true (Article 918); 7. If the truth of the cause is denied, it must be proved by the proponent (Article 917). How does the law view disinheritance? The law regards disinheritance with disfavor and will grant it only with reluctance because disinheritance results in deprivation of legitime. What is the effect of disinheritance? Total exclusion of the disinherited heir from the inheritance, involving therefore forfeiture of (1) his legitime, (2) his intestate portion, if any, and (3) any testamentary disposition made in a prior will of the disinheriting testator. What is ineffective disinheritance?

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If the disinheritance lacks one or other of the requisites of disinheritance, particularly requisites 3 and 6, the heir in question gets his legitime. In ineffective disinheritance, will the heir get any part of the intestate portion? It depends. If the testator gave away the free portion through testamentary dispositions, these dispositions are valid and the compulsory heir improperly disinherited gets only his legitime. If the testator did not give away the free portion, the compulsory heir will be entitled to his corresponding share of the free portion as well. What is the difference between the effect of ineffective disinheritance and preterition? See question supra under the discussion of Preterition. Are the grounds for disinheritance exclusive? Yes. What are the sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate? 1. When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants or ascendants; 2. When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; 3. When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; 4. When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; 5. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; 6. Maltreatment of the testator by word or deed, by the child or descendant; 7. When a child or descendant leads a dishonorable or disgraceful life; 8. Conviction of a crime which carries with it the penalty of civil interdiction. What is the contemplation of the word “attempt” in the first ground? The word attempt is used non-technically and should not be construed to limit the provision to the attempted stage of the felony. All stages of commission are included – whether attempted, frustrated or consummated. In the first ground, must the felony be intentional? Obviously. In the first ground, is final conviction required? Yes. *Must the disinheritance be subsequent to the conviction, or may it precede conviction? The disinheritance is only effective subsequent to conviction regardless of whether it is in the will or not. If the disinheritance precedes conviction and conviction actually follows, then the heir is effectively disinherited. If however the charge does not lead to a conviction, then the disinheritance made in the will is not ineffective.

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What is the contemplation of the word “accused” in the second ground? It is used generically, and will include filing of the complaint before the prosecutor, or presenting incriminating evidence against the testator, or even suppressing exculpatory evidence. What is wrong with the wording of the second ground? The provision should have specified “more than six years imprisonment”, because six years stil falls within prision correccional. One day beyond that places it within the next higher penalty – prision mayor. In the second, must the testator be acquitted? Of course. When is an accusation “groundless”? The judgment of acquittal must state either that (1) no crime was committed or (2) the accused did not commit the crime. An acquittal on reasonable doubt will not be a ground for disinheritance. In the third ground, is final conviction required? Yes. What is the significance of the fourth ground? Because such action contemplated therein undermine the very nature and basis of testamentary succession. What is required for the application of the fifth ground? 1. There must have been a need and a demand for support (Art. 203, Family Code). 2. The demand must have been unjustifiably refused. Is there such a thing as a justified refusal? Yes. For instance, if the obligor does not have enough resources for all whom he is obliged to support. Moe, shouted at his parents to “Shut up”. May his parents effectively disinherit him? No. It is required under the sixth ground that the act of verbal or physical assault be of a serious nature. Is conviction required under the sixth ground? No. Is the filing of a criminal case required under the sixth ground? No. What is required for the application of the seventh ground? “Lead” being the operative word, habituality of conduct is required. Moe 3B 2006

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Is it necessary that the dishonor or disgrace be sexual in nature? No. Is final conviction required in the eighth ground? Yes. When is civil interdiction imposed? It is imposed as an accessory penalty of death, reclusion perpetua and reclusion temporal. What are the sufficient causes for the disinheritance of parents and ascendants, legitimate as well as illegitimate? 1. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life or attempted against their virtue; 2. When the parent or ascendant has been found convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants; 3. When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; 4. When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; 5. When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; 6. The loss of parental authority for causes specified in this Code; 7. The refusal to support the children or descendants without justifiable cause; 8. An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. Is there any significance behind the use of “false” instead of “groundless” in the provision relating to the accusation of a crime for which the law prescribes imprisonment for six years or more? No. The change is not substantive, but merely stylistic. In any case, the Spanish word used is calumniosa which means something without basis – therefore false or groundless. What is contemplated by “abandonment” in the first ground? This is not restricted to those instances of abandonment penalized by law but includes all constituting a repeated or total refusal or failure to care for the child. The case of Chua vs. Cabangbang (27 SCRA 791) provides for fairly well-defined criteria for determining whether the child has been abandoned, to wit: (1) shunning of the natural and legal obligations owed to the child; (2) complete withholding of presence, love, care, opportunity of parental affection; and, (3) total denial of support and maintenance. *Will giving consent to adoption of a child constitute abandonment? No. Abandonment and adoption, although having the same practical effect, which is to leave one’s children, both have particular meanings in the law. The operations of our law on adoption clearly separate one from the other – adoption taking on a more positive connotation, while abandonment having a more malevolent undertone. Anent the ground of inducement to live a corrupt or immoral life, should the provision also be made to apply to other female descendants? Moe 3B 2006

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Yes. According to Tolentino, although the law mentions only “daughters”, we believe that this should be construed to mean all female descendants. What about sons and other male descendants? Should the provision apply to them as well notwithstanding the wording of the paragraph? Yes. It was a more innocent world when the present Code was drafted where only females were thought to be the victims of sexual offenses. Now both male and female are recognized susceptible to such offenses. Note: Further, this ground is very much similar to Article 231(2) of the Family Code wherein no distinction is made. Anent the ground of attempt against virtue, is conviction required? No. As to the sixth ground, is actual loss of parental authority required? Yes. What is wrong with the wording of the sixth ground for the disinheritance of parents or ascendants? It is badly worded – saying too much as to cover situations in surely does not contemplate. Obviously, not all causes for loss of parental authority are grounds for disinheritance. For instance, one need not have an immense grasp of the law to realize that reaching the age of majority should not and cannot be a ground for disinheritance, notwithstanding it being an occasion wherein parental authority is lost. What is covered then by the sixth ground? Only those causes which involve culpability on the part of the parents will provide grounds for disinheritance, to wit: 1. Judicial deprivation of parental authority on the ground of sexual abuse (Article 232, Family Code) 2. Loss of parental authority as a result of judicial declaration of abandonment of the child (Article 229(3)) 3. Judicial deprivation of parental authority on the grounds of (1) excessively harsh or cruel treatment of the child, (2) giving the child corrupting orders, counsel or example, (3) compelling the child to beg, or (4) subjecting the child or allowing him to be subjected to acts of lasciviousness (Article 231, Family Code). What are the sufficient causes for the disinheritance of a spouse? 1. When the spouse has been found convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants; 2. When the spouse has accused the testator of a crime for which the law prescribes imprisonment for six years or more, and the accusation has been found to be false; 3. When the spouse by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; 4. When the spouse has given cause for legal separation; 5. When the spouse has given grounds for the less of parental authority; 6. Unjustifiable refusal to support the children or the other spouse. Moe 3B 2006

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Is a decree of legal separation required in the fourth ground? No. What are the causes for legal separation? 1. Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; 3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; 4. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; 5. Drug addiction or habitual alcoholism of the respondent; 6. Lesbianism or homosexuality of the respondent; 7. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; 8. Sexual infidelity or perversion; 9. Attempt by the respondent against the life of the petitioner, or; 10. Abandonment of the petitioner by respondent without justifiable cause for more than one year. Anent the fifth ground, is actual loss of parental authority required? No. What is meant by “reconciliation”? It is either (1) an express pardon extended by the testator to the offending heir or (2) the unequivocal conduct of the testator towards the offending heir which reveals the testator’s intent to forgive the offense. What is an express pardon? It is a pardon expressly and concretely extended to the offender who accepts it. “I, Moe Villamor, forgive all those who have transgressed me. Mahal ko kayo.” Is this an express pardon? No. A general pardon extended by the testator to all who have offended him will not suffice. How may conduct serve as reconciliation? The intent to forgive must be clear from the conduct. Hence, this is ultimately “a question of fact” which will be resolved, in case of controversy, by the courts. What are the effects of reconciliation? If it occurs before disinheritance is made, right to disinheritance is extinguished. If it occurs after the disinheritance is made, disinheritance is set aside. What are the effects of setting aside of the disinheritance? 1. The disinherited heir is restored to his legitime;

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2. If the disinheriting will did not dispose of the disposable portion, the disinherited heir is entitled to his proportionate share (in intestacy) if any, of the disposable portion; 3. If the disinheriting will disposed of disposable portion (or any part thereof) in favor of testamentary heirs, legatees, or devisees, such dispositions remain valid. Note: Consider the effects of reconciliation on disinheritance in the light of the rules of unworthiness (discussed infra). Is there right of representation in disinheritance? Yes. What is wrong with the wording of Article 923? The right of representation takes place in the direct descending line, but never in the ascending (Article 972). The wording of the article seems to allow the children and descendants of any disinherited heir, even ascendants, to represent. This is not so. What is the extent of the representation? The representative takes the place of the disinherited heir not only with respect to the legitime, but also to any intestate portion that the disinherited heir would have inherited. Does representation occur in testamentary succession? No. What is meant by the last clause of the article – “… but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime.”? For a deeper understanding of the clause, one must take a look at Articles 225 and 226 of the Family Code under Effect of Parental Authority Upon the Property of the Children, to wit: “Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply.

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Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family.”

Section 7: Legacies and Devises Outline of Legacies and Devises 1. What may be bequeathed or devised 2. Who is charged 3. Liabilities a. Subsidiary legacies/devises b. Two or more heirs, executors and administrators c. Eviction 4. Conveyance (Rules) a. What is conveyed b. Loss or more of interest c. Those belonging to another d. Those belonging to L/D at time of execution rd e. Owned by 3 upon execution then subsequently transferred to L/D f. Owned by testator upon execution then subsequently transferred to L/D g. Removal of an encumbrance over a thing h. Subject to pledge/mortgage i. Credit/remission j. Generic property k. To a creditor 5. Alternative legacies/devises a. What is it b. To who belongs the choice c. Upon death of person who must choose 6. Generic legacies/devises 7. Legacy of education 8. Legacy of support 9. Periodical Pension 10. Rules of demandability 11. Rules of ownership 12. Rules as to fruits 13. Preference of payment 14. Reduction 15. Acceptance/Repudiation 16. Ineffectual Legacy/Devise What may be bequeathed or devised? All things which are within the commerce of man may be bequeathed or devised. (Article 924) Is it required that the thing devised or bequeathed belong to the testator? No. What is the limitation on legacy or devise?

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It should not impair the legitime. Who is charged with the legacy? Is there an exception to the rule? Generally, the estate is charged. However, the testator may impose the burden on a testamentary heir or a legatee or devisee. If he does, then the heir, legatee or devisee charged will, if he accepts the disposition in his favor, be bound to deliver the legacy or devise to the person specified. This will be in the nature of a subsidiary legacy or devise. As far as the heir, legatee or devisee charged is concerned, it will be a mode. What is wrong with the wording of Article 925? A compulsory heir as such cannot be burdened with a legacy or devise because that would impair his legitime. Only a testamentary heir can be so burdened. What is the extent of liability of heir, devisee or legatee in case of subsidiary legacies or devises? It is the value of the benefit received from the testator. If two or more heirs, executors or administrators take possession of the estate and a thing to be bequeathed is lost or destroyed? Who is liable? Only party that caused the loss or destruction? Or both of them and in what manner? They shall be solidary liable for the loss or destruction of a thing devised or bequeathed, even though one of them should have been negligent. Who is liable in case of eviction? Generally, the estate is liable. However, in case of subsidiary legacy or devise, the heir, legatee or devisee charged is held liable. What is conveyed by the testator in a devise or legacy? Generally, the testator conveys only the interest or part owned by the testator. Is it possible however that the testator convey less or more than his interest? Yes. If the testator provides otherwise, the testator may convey more or less than what he owns. In case he conveys more than he owns, the estate should try to acquire the part or interest owned by other parties. If the other parties are unwilling to alienate, the estate should give the legatee/devisee the monetary equivalent. In case he conveys less that what he owns, then that’s exactly what he would get notwithstanding the fact that there is more of the devise or legacy to convey. What are the rules surrounding the bequeathing or devising of a thing belonging to another? In general, it is important to differentiate if what was done was an order to acquire or merely a mistake on the part of the testator. If the testator ordered the acquisition of the thing, the order should be complied with. As explained supra, if the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent. If the testator erroneously believed that the thing belonged to him, the legacy/devise is void.

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What is the rule if the testator knew that the thing did not belong to him but ordered its acquisition? Although the Code is silent on the matter, the most rational solution seems to be that such a disposition should be considered valid because (1) the fact that the testator, with knowledge of another person’s ownership, bequeathed the thing, implies an order to acquire, (2) at worst, there is a doubt, and doubts should be resolved in favor of testacy. What is the rule if the thing bequeathed or devised already belongs to the legatee/devisee at the time of the execution of the will? The legacy or devise is rendered void. In the case where the thing bequeathed or devised already belongs to the legatee/devisee, would the disposition be validated by an alienation by the legatee/devisee? No – unless the acquirer is the testator himself. What is the rule if the thing was owned by another person at the time of the making of the will and acquired subsequently by the legatee/devisee? We have to distinguish whether the testator erroneously believed it to belong to him or not. If the testator erroneously believed that it belonged to him, the legacy/devise is void. If the testator was not in error, we have to distinguish whether the thing was onerously or gratuitously acquired. If the thing was acquired onerously by legatee/devisee, then reimbursement is proper. If the thing was acquired gratuitously by the legatee/devisee, then nothing more is due. What is the rule if the thing was owned by the testator at the time of the making of the will but was subsequently acquired from him by the legatee/devisee? Although the provisions are silent on this point, by analogy to Article 957, par. 2, the legacy/devise should be deemed revoked. What if the legacy/devise is to remove an encumbrance over a thing belonging to the legatee/devisee, is such valid? It is valid if the encumbrance can be removed for a consideration. Otherwise, it is invalid. What is the rule if the thing bequeathed or devised is subject to a pledge or mortgage? The encumbrance must be removed by paying the debt, unless the testator intended otherwise. What is the rule if the testator bequeaths credit or remission? This would apply only to the amount still unpaid at the time of the testator’s death. Hence, if the aggregate receivables of a testator is Php1000.00 and his debtor has paid him Php300.00, then only Php700.00 is bequeathed. But such legacy is revoked if testator subsequently sues the debtor for collection. So, if the testator with a remaining Php700.00 receivable from his debtor sues the debtor subsequent to giving the legacy, then such legacy is revoked. Note that the mere filing of the suit will revoke – it is not necessary that any judgment is passed on the matter or that any collection was attempted or achieved. What is the rule if the thing to be bequeathed is generic?

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Then the legacy only applies to those existing at the time of the execution of the will. What is the rule if a legacy/devise is given to a creditor? Generally, this will be treated like any other legacy/devise and therefore will not be imputed to the debt. However, if the testator so provides and the creditor accepts, then such will be imputed to the debt, with the excess of such debt demanded as an obligation of the estate. It is important to note though that it would be extremely stupid on the part of the creditor to accept such terms of the disposition. The better recourse would be to reject the legacy/devise and to file a claim against the estate as a creditor – that way, such creditor would be preferred in terms of payment as compared even to the compulsory heirs. In a will, the following is stated: “Pay my debt to Moe in the amount of Php1000000.00.” Is this a testamentary disposition? No. It is merely a direction to discharge a civil obligation. What if in the above example, the debt does not actually exist? Such should be disregarded because this would be solution indebiti. What if in the above example, the debt exists but is only in the amount of Php700000.00? The direction would only be effective as to what is due, unless the bigger amount specified constitutes a natural obligation. What are alternative legacies/devises? These are legacies/devises which provide that, among several things mentioned, only one is to be given. In alternative legacies/devises, to whom belongs the right of choice? We have to distinguish whether it is a direct legacy/devise or a subsidiary one. If it is a direct legacy/devise, then generally, the choice belongs to the estate, through the executor or administrator. If it is a subsidiary one, then generally, the choice belongs to the heir, legatee or devisee charged. However, if the testator provides a particular person to have the choice, it shall be so. What is the rule in alternative legacies/devises if the person who is to choose dies before the choice is made? We have to distinguish whether the choice belonged to the executor/administrator or to the heir/legatee/devisee. If the choice depends on the former, then the right is transmitted to the successor in office. If the choice depends on the latter, then the right is transmitted to his own heirs. May a choice be revoked? No. What is the rule of validity on generic legacies/devises? If a generic legacy is given, it is valid even if no such movables exist in the testator’s estate upon his death. The estate will simply have to acquire what is given by legacy.

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If a generic devise is given, it is valid only if there exists such an immovable in the testator’s estate at the time of his death. What is the duration of a legacy of education? The legacy lasts until the age of majority or the completion of a professional, vocational or general course, whichever comes later, assuming in the latter that the legatee pursues his studies diligently. What is the amount of a legacy of education? Primarily, it is an amount fixed by the testator. Secondarily, it is that which is proper, as determined by two variables: (1) the social standing and circumstances of the legatee, and (2) the value of the disposable portion of the estate. What is the duration of a legacy of support? The legacy lasts during the lifetime of the legatee, unless the testator provides otherwise. What is the amount of a legacy of support? Primarily, it is an amount fixed by the testator. Secondarily, it is that which the testator during his lifetime used to give the legatee by way of support, unless markedly disproportionate to the value of the disposable portion. Tertiarily, it is that which is reasonable, on the basis of two variables: (1) the social standing and circumstances of the legatee, and (2) the value of the disposable portion. What is the rule on the demandability of a periodical pension? It is demandable upon the testator’s death, and the succeeding ones at the beginning of the period without duty to reimburse should the legatee die before the lapse of the period. Note that the debts should first be paid before any testamentary grants can be complied with, unless a bond is posted. However, should the legacy prove officious, the date of effectivity shall retroact to the decedent’s death. What are the overall rules of demandability of legacies/devises? As long as the legacy/devise is pure, whether determinate or generic, such is demandable upon the testator’s death. If the legacy/devise is with a suspensive term, it is demandable upon the arrival of the term. If the legacy/devise is with a suspensive condition, it is demandable upon the happening of the condition. When does ownership vest? If the legacy/devise is pure and determinate, it is upon the testator’s death. If the legacy/devise is pure and generic, we must distinguish whether it is derived from the testator’s estate or if it was acquired from a third person. In the former, ownership vests upon testator’s death. In the latter, it is upon acquisition. If the legacy/devise is with a suspensive term, ownership vests upon arrival of the term, but the right to it vests upon the testator’s death. If the legacy/devise is with a suspensive condition, it vests the testator’s death, if the condition is fulfilled. What are the rules as to the fruits? If pure and determinate, then the fruits transmit upon the testator’s death. Moe 3B 2006

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If pure and generic, then they transmit upon determination, unless the testator provides otherwise. If the legacy/devise is with a suspensive term, then fruits are transmitted upon the arrival of the term. If the legacy/devise is with a suspensive condition, then fruits are transmitted upon the happening of the condition, unless the testator provides otherwise. What is the rule if the estate should not be sufficient to cover all the legacies or devises? Payment shall be made according to a set preference among legacies and devises, to wit: 1. Remuneratory legacies or devises; 2. Legacies or devises declared by the testator to be preferential; 3. Legacies for support; 4. Legacies for education; 5. Legacies or devises of a specific, determinate thing which forms part of the estate; 6. All other legacies or devises pro rata. There seems to be a conflict with the rules of Article 950 and that of Article 911 wherein it simply provides that all the non-preferred legacies/devises should be reduced pro rata, and the preferred legacies/devises are reduced last – a rule different from that set forth in Article 950. How must these be reconciled? Article 911 will apply if reductions have to be made because the legitimes have been impaired. Article 950 will apply if the reason for the reduction is not the impairment of legitimes (e.g. there are no legitimes because there are no compulsory heirs or the legitimes have already been satisfied through donations inter vivos). Does the testator need to stipulate in the will that accessions and accessories must be delivered as well along with the legacy/devise? No. The obligation to deliver the accessions and accessories exists even if the testator does not explicitly provide for it. May the heir, charged with the legacy or devise, or the executor or administrator of the estate, deliver another thing in place of what was disposed by the testator or pay for its value instead? No. Would the fact that the heir or estate have no money hinder the legatee from receiving a legacy of money? No. May the acceptance or repudiation of a legacy/devise be partial? Exception? Yes. If the legacy/devise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous part and renounce the onerous part. Any other combination however is permitted. If the legatee/devisee dies before acceptance or repudiation, may his heirs accept or repudiate? Yes, as to their pro-indiviso share and in the same manner as if the legatee/devisee was accepting or repudiating. What is the rule if the recipient is both a legatee/devisee and a compulsory heir? Moe 3B 2006

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The recipient may accept either or both the legacy/devise and the legitime. What is the effect of the testator providing terms contrary to the rules stated above as to the acceptance or repudiation of the legatee/devisee? The testator’s wishes are supreme and supersede all these rules. What are the rules in case of repudiation by or incapacity of a legatee/devisee? Primarily, the rule is substitution. Secondarily, the rule is accretion. Tertiarily, the rule is intestacy. When is a legacy/devise rendered ineffectual? 1. If the testator transforms the thing bequeathed in such manner that it does not retain either the form or the denomination it had (Transformation); 2. If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated (Alienation); 3. If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir’s fault (Loss). Is it required in the second ground that the alienation be onerous? No. The alienation may be onerous or gratuitous. What is the effect of reversion of the thing back to the testator? Nothing. The revocation remains – unless, (1) the reversion is caused by the annulment of the alienation and the cause for annulment was vitiation of consent on the grantor’s part, either by reason of incapacity or of duress, or, (2) the reversion is by virtue of redemption in a pacto de retro sale. When must the loss occur for it to be an effective revocation of the legacy or devise? It must take place before the testator’s death. Fortuitous loss after the testator’s death will not constitute revocation. Therefore, fortuitous loss after the testator’s death will simply be an instance of res perit domino and will be borne by the legatee/devisee.

CHAPTER 3: LEGAL OR INTESTATE SUCCESSION Section 1: General Provisions What is intestate succession? Intestate or legal succession takes place by operation of law in the absence of a valid will. What are the instances when legal or intestate succession operates? 1. If a person dies without a will, or with a void will, or one which has subsequently lost its validity; 2. When the will does not institute an heir to, or dispose or all the property belonging to the testator – but only with respect to the property of which the testator has not disposed;

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3. If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; 4. When the heir is incapable of succeeding, except in cases provided in this Code. (Art. 960) Anent the first instance, what is the common factor between the three sub-instances given? There is no will. Anent the second instance, does intestacy necessarily have to be total? No. Intestacy in these instances may be partial. Anent the third instance, does intestacy necessarily have to be total? No. Intestacy here may also be total or partial, depending on the extend of the disposition that turns out to be inoperative. Anent the fourth instance, does intestacy necessarily have to be total? No. What are other instances of intestacy not mentioned in Article 960? 1. Happening of resolutory condition; 2. Expiration of resolutory term; 3. Preterition. What is an important common factor between Intestacy and Compulsory Succession? Intestacy operates on the same principles as succession to the legitime. There are two principles, operating sometimes simultaneously, sometimes singly: exclusion and concurrence. What is the basis of intestate succession? The presumed will of the decedent, which would distribute the estate in accordance with the love and affection he has for his family and close relatives, and in default of these persons, the presumed desire of the decedent to promote charitable and humanitarian activities. What are the basic rules of intestacy? 1. Preference of Lines 2. Proximity of Degree 3. Equality among relatives of the same degree 4. Relationship What is contemplated by the rule of proximity of degree? The nearer exclude the more remote (without prejudice to representation). What are the exceptions to the rule of equality in the same degree? 1. The rule of preference of lines; 2. The distinction between legitimate and illegitimate filiation; Moe 3B 2006

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3. The rule of division by line in the ascending line; 4. The distinction between full-blood and half-blood relationship among brothers and sisters, as well as nephews and nieces; 5. Representation.

Subsection 1: Relationship What are the four aspects of the rule of relationship? 1. Ius Familiae (Family) which includes descendants and ascendants; th 2. Ius Sanguinis (Blood) which includes collaterals up to the 5 degree; 3. Ius Coniugis (Conjugal) which refers to the spouse; 4. Ius Imperii (State) which refers to the State. What are the three line of relationship and what is the order of preference between them? 1. Descending 2. Ascending 3. Collaterals The descending line excludes the ascending and the collateral, and the ascending excludes the collateral. Is there a legal limit to the number of degrees of entitlement of the direct line (whether ascending or descending) to intestate succession? No. There is, however, a practical limit – human mortality. When is counting particularly important? th

In the collateral line only – precisely because there is a limit, which is up to the 5 degree. Distinguish full blood relationship and half blood relationship. Full blood relationship is the existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. What is the importance of such distinction? With reference to brothers and sisters and nephews and nieces, there is a ratio of 2:1 for full blood and half blood relationship respectively. With respect however to other collateral relatives, the full blood and half blood relationship is not material. What is accretion? If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree. (Article 968) When does accretion apply in intestacy? There is accretion in intestacy among heirs of the same degree, in case of predecease, incapacity or renunciation of any one of them. Moe 3B 2006

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Further, for accretion to take place the heirs involved must be in the same kind of relationship to the decedent. This is because of the principle of preference of lines in intestate succession. When does representation apply in accretion? In case of predecease or incapacity, representation, if proper, will prevent accretion from occurring. What is the effect of renunciation by all in the same degree? The right of succession should first be passed on the heirs in succeeding degrees (in successive order) before the next line can succeed, because of the rule of preference of lines.

Subsection 2: Right of Representation What is representation? According to Article 970, it is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. What are the criticisms of the right of representation? First, the term “representation” itself is questionable. It has been suggested that a better term to call this legal process is either hereditary subrogation or successional subrogation, because the person inheriting in another’s stead actually represents no one and truly succeeds in his own right. Second, it is somewhat inaccurate to define representation as a right created by fiction of law. The court has ample authority to predetermine who are to be called to inherit; it needs no resort to fictions, but to merely make use of its power to designate those who are to take the inheritance. To reiterate, when does representation operate? 1. Predecease 2. Incapacity of Unworthiness 3. Disinheritance To reiterate, when does representation never operate? Renunciation. We know that there is representation in the legitime and in intestate succession, what about in testamentary succession? No. In what lines does representation obtain? With respect to the legitime, it only obtains in the direct descending line. With respect to intestacy, it generally obtains in the direct descending line and in one instance in the collateral line – nephews and nieces representing brothers and sisters of the deceased. What is the rule as to the representation of children, both legitimate and illegitimate? If the child to be represented is legitimate, only legitimate children/descendants can represent him.

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If the child to be represented is illegitimate, both legitimate and illegitimate children/descendants can represent him. Note: This is an unfortunate rule that was not unintentionally placed by the lawmakers in our law. It unduly puts a premium on illegitimacy – an effect truly in contravention of the essence of our law on paternity and filiation. Can an adopted person represent or be represented? No. According to the case of Teotico vs. Del Val (13 SCRA 406 [1965]), “under our law the relationship established by adoption is limited solely to the adopter and the adopted and does not extend to the relatives of the adopting parents or of the adopted child except only as expressly provided for by law… no relationship is created between the adopted and the collaterals of the adopting parents… the adopted is an heir of the adopter but not of the relatives of the adopter”. Succinctly, the same case ruled, deriving from the annotations of Tolentino, that “the relationship created is exclusively between the adopter and the adopted, and does not extend to the relatives either”. (see also the case of Sayson vs. Court of Appeals, 205 SCRA 321 [1992]) Can a renouncer represent? Yes. Although a renouncer cannot be represented, he can represent the person whose inheritance he nd has renounced. (see Article 971, 2 sentence) How does representation operate? It operates per stirpes (in contrast to per capita). The representative or representatives receive only what the person represented would have received. If there are more than one representative in the same degree, then divide the portion equally, without prejudice to the distinction between legitimate and illegitimate children, when applicable. Must the representative be qualified to succeed the decedent? Yes. Must the representative be qualified to succeed the person represented? No. Is there a difference between the rule in representation by grandchildren and that by nephews? Yes. If all the children are disqualified, the grandchildren still inherit by representation. If all the brothers/sisters are disqualified, the nephew/nieces inherit per capita. If only some, not all children or brothers/sisters are disqualified, the rule is the same. Note: Due to the fact that the difference in rules doesn’t seem to flow naturally and logically out of the provision, it is expected that a question in any Balane test can and will be formulated using such difference. *X has five legitimate children (A, B, C, D and E), three of whom (C, D and E) have children of their own (C1 and C2, D1 and D2, E1 and E2, respectively). Supposing X makes a will instituting all his 5 children to the free portion; then C predeceases him, D is unworthy to

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succeed, and upon his death E renounces. How is X’s estate worth Php600000.00 to be apportioned? There is a legitime of Php300000.00 because 1/2 of the estate, according to the system of legitimes, is reserved to the legitimate children when they are alone. The free portion therefore is Php300000.00 which, according to the will, shall be given to the five children. A and B would each receive their share in the free portion in the amount of Php60000.00 or an aggregate of Php120000.00. The Php180000.00 that was supposed to go to C, D and E however, cannot go to them (for reasons of predecease, incapacity and renunciation, respectively) and, more importantly, cannot go directly to their children – primarily because there is no representation in testamentary succession. What does apply is accretion, since (1) what we have here are two or more persons called to the same portion of the estate pro indiviso with some of the persons renouncing, rendered incapacitated or predeceasing and (2) no provision prompting substitution, effectively allowing for the incorporation of the Php180000.00 to the share of A and B. The remaining Php180000.00 will not go by intestacy because according to the rules of accretion, when there is a will, the portion of the estate will only be subject to intestate succession in the absence of (1) substitution, or in default thereof, (2) accretion. Accretion in this case would therefore prevent intestacy and hence lead to the adding of Php90000.00 to the shares of A and B. In summary, the apportionment will be as follows: Heir A B C D E C1 C2 D1 D2 E1 E2 Total

Share Php300000.00 Php300000.00 No Share – Predecease No Share – Unworthiness No Share – Renunciation No Share – No Representation No Share – No Representation No Share – No Representation No Share – No Representation No Share – No Representation No Share – No Representation Php600000.00

*Supposing X dies intestate, all the other facts being the same, how is X’s estate to be apportioned? According to the rules of intestacy, the whole estate will pass to the five legitimate children. However, since only A and B can receive such property, they shall each receive Php120000.00. C, D and E cannot receive due to predecease, unworthiness and renunciation. C1 and C2 would be able to represent C in the amount he was supposed to receive – allowing them a share of Php60000.00 each. The same would apply to D1 and D2 – hence their share of Php60000.00 each as well. However, E1 and E2 cannot inherit because there is no representation in renunciation – so, the Php120000.00 share of E will accrue to the benefit of the remaining children. A and B would receive Php30000.00 each, while C1, C2, D1 and D2 would all receive Php15000.00 each since representation would hinder the operation of accretion on the grounds of either predecease or incapacity/unworthiness. In summary, the apportionment will be as follows: Heir A Moe 3B 2006

Share Php150000.00 Page 84

B C D E C1 C2 D1 D2 E1 E2 Total

Php150000.00 No Share – Predecease No Share – Unworthiness No Share – Renunciation Php75000.00 Php75000.00 Php75000.00 Php75000.00 No Share – No Representation No Share – No Representation Php600000.00

Section 2: Order of Intestate Succession Who are the intestate heirs? 1. Legitimate Children/Descendants 2. Illegitimate Children/Descendants 3. Legitimate Parents/Ascendants 4. Illegitimate Parents 5. Surviving Spouse 6. Brothers, Sisters, Nephews, Nieces th 7. Other Collaterals – to the 5 Degree 8. State Note: The first five classes of intestate heirs are also compulsory heirs. In summary how do the rules of exclusion and concurrence work in intestacy? Class Legitimate Children Illegitimate Children

Exclude Parents, Collaterals, State Illegitimate Parents, Collaterals, State

Legitimate Parents

Collaterals, State

Illegitimate Parents

Collaterals, State

Surviving Spouse

Collaterals other than brothers, sisters, etc., State

Brothers, Sisters, etc.

All other Collaterals, State

Other Collaterals

Collaterals in remoter degrees, State

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Concur With Surviving Spouse, Illegitimate Children Surviving Spouse, Legitimate Children, Legitimate Parents Illegitimate Children, Surviving Spouse Surviving Spouse Legitimate Children, Illegitimate Children, Legitimate Parents, Illegitimate Parents, Brothers, sisters, etc. Surviving Spouse

Collaterals in the same degree

Excluded By No One No One

Legitimate Children Legitimate Children, Illegitimate Children No One

Legitimate Children, Illegitimate Children, Legitimate Parents, Illegitimate Parents Legitimate Children, Illegitimate Children, Legitimate Parents, Illegitimate Parents, Surviving Spouse, Brothers, Sisters, etc. Page 85

State

No One

No One

By Everyone

What are the combinations of intestate succession? No.

Combination Legitimate Children Alone

1

3

4*

5** 6

8**

9**

Legitimate Children

Whole Estate, Divided Equally

Surviving Spouse

Counted as one legitimate child

Legitimate Children, Surviving Spouse, Illegitimate Children

Legitimate Children

Whole Estate, applying 2:1 ratio for illegitimate children

Surviving Spouse Illegitimate Children

Counted as one legitimate child 1/2 of the share of one legitimate child

Legitimate Parents

Whole Estate, Divided Equally

Legitimate Ascendants

Whole Estate, observing Division by Line

Legitimate Parents

1/2 of the Estate

Illegitimate Children

1/2 of the Estate

Legitimate Parents, Surviving Spouse

Legitimate Parents

1/2 of the Estate

Surviving Spouse

1/2 of the Estate

Legitimate Parents, Surviving Spouse, Illegitimate Children

Legitimate Parents

1/2 of the Estate

Surviving Spouse Illegitimate Children

1/4 of the Estate 1/4 of the Estate

Illegitimate Children

Whole Estate, Divided Equally

Illegitimate Children

1/2 of the Estate

Surviving Spouse Surviving Spouse

1/2 of the Estate Whole Estate

Surviving Spouse

1/2 of the Estate

Illegitimate Parents

1/2 of the Estate

Surviving Spouse

1/2 of the Estate

Legitimate Brothers, Sisters, etc.

1/2 of the Estate

Legitimate Parents, Illegitimate Parents

Illegitimate Children Alone

11**

Illegitimate Children, Surviving Spouse

12

Surviving Spouse

13**

Surviving Spouse, Illegitimate Parents

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Whole Estate, Divided Equally

Legitimate Children, Surviving Spouse

10

14**

Legitimate Children

Illegitimate Children

Legitimate Parents Alone Legitimate Ascendants Alone

7**

Share

Whole Estate, applying 2:1 ratio for illegitimate children 1/2 of the share of one legitimate child

Legitimate Children, Illegitimate Children

2*

Heir

Surviving Spouse, Legitimate Brothers & Sisters, Nephews & Nieces

Legitimate Children

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Surviving Spouse, Illegitimate Brothers & Sisters, Nephews & Nieces

15**

16

Illegitimate Parents Alone

17

Illegitimate Parents, Children of any kind

Surviving Spouse

1/2 of the Estate

Illegitimate Brothers, Sisters, etc.

1/2 of the Estate

Illegitimate Parents

Whole Estate

Illegitimate Parents

Excluded

18

Legitimate Brothers & Sisters Alone

Legitimate Brothers & Sisters

Inherit in accordance with nos. 1, 2 & 10 Whole Estate, applying 2:1 ratio for half bloods

19

Legitimate Brothers & Sisters, Nephews & Nieces

Legitimate Brothers & Sisters, etc.

Whole Estate, applying 2:1 ratio for half bloods

20

Nephews & Nieces with Uncles & Aunts

Uncles & Aunts

Excluded

21

Illegitimate Brothers and Sisters Alone

Nephews & Nieces Illegitimate Brothers and Sisters

Inherit in accordance with no. 23 Whole Estate, applying 2:1 ratio for half bloods

22

Illegitimate Brothers, Sisters, Nephews and Nieces

Illegitimate Brothers, Sisters, etc.

Whole Estate, applying 2:1 ratio for half bloods

23 24 25

Nephews & Nieces Alone Other Collaterals State

Children

Nephews & Nieces Other Collaterals State

Whole Estate, applying 2:1 ratio for half bloods Whole Estate, per capita, proximity rule Whole Estate

Why must users of such combinations be cautious in combination 2? Although generally the application of the intestate combinations already ensures the satisfaction of the legitimes, the same assurance does not exist in the case of combination no. 2. In this combination, care should be taken lest the legitimes of the legitimate children be impaired. Consequently, a two-step process should be observed: (1) Segregate the legitimes of the children – both legitimate and illegitimate and (2) If any residue is left, apportion it in the proportion of 2:1. Note: The same problem exists in Combination No. 4. It is clear that it is possible that the legitimes would be impaired if combination 2 is applied. However, even assuming the application of the two-step process mentioned above, is it possible also that the estate still not be sufficient to satisfy the legitimes? Yes. It is possible – depending on the number of legitimates and illegitimates – that the estate may not even be sufficient to satisfy the legitimes, in which case the second step in the process will not even be feasible; in fact, in such a case, the legitimes of the illegitimates will have to be reduced pro rata. To reiterate, may an illegitimate child represent a parent who himself was legitimate? No. Moe 3B 2006

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This is seen clearly in the case of Corpus vs. Administrator (85 SCRA 567 [1978]), where an illegitimate daughter of a half-brother of the decedent, who himself was a legitimate child, was disallowed to represent her father to the portion of the estate passing by intestacy – “Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession between legitimate and illegitimate relatives.” The same is again seen in the case of Leonardo vs. Court of Appeals (120 SCRA 890 [1983]), where a Sotero Leonardo was disallowed from a share of the estate through intestacy precisely because, even assuming he was indeed a child of one of the legitimate daughters of the decedent, he was at best an illegitimate child, who therefore could not represent his mother in the estate of his grandmother. Finally, in the case of Diaz vs. IAC (150 SCRA 645 [1987]), the Supreme Court characterized the effect of Article 992 as a “barrier or iron curtain”, to wit: “Article 992… provides a barrier or iron curtain in that it prohibits absolutely a succession ab instanto between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the purposes of Article 992. Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment.” In this case, the Supreme Court ruled that the illegitimate children of a Pablo Santero could not represent their father and thus inherit from the estate of their grandmother Simona. Note: See also the second motion for reconsideration of the Diaz case which delves much deeper into the subject of Article 992 and the iron barrier of representation imposed on the illegitimate children of legitimate children. What is the connotation of the term “brothers and sisters, nephews and nieces” as legal heirs of an illegitimate child, in Combination No. 15? It refers to illegitimate brothers and sisters as well as to the children, whether legitimate or illegitimate, of such brothers and sisters. (Manuel vs. Ferrer, 247 SCRA 476 [1995]) What is the share of a lone legitimate child if the only remaining heirs are him and the surviving spouse, his mother? Is it 1/2 according to the rules of intestacy or 3/4 following the rules of testamentary succession under the section of legitimes? 1/2. The case of Santillon vs. Miranda (14 SCRA 563 [1965]) settles that in such a combination the share is an equal 1/2 for both the surviving spouse and the lone legitimate child. Regarding a situation wherein the State receives the estate by intestacy, what are the rules surrounding assignment and disposition of the estate? If the decedent was a resident of the Philippines at any time, (1) personal property would go to the municipality of last resident, while (2) real property would go to the municipality where the property is situated. If the decedent was never a resident of the Philippines, both personal and real property would go to the municipality where they are situated. How are the properties given to the State to be used? 1. For the benefit of public educational and charitable institutions in the respective municipalities/cities; or, 2. Alternatively, at the instance of an interested party, or moto proprio, court may order creation of a permanent trust for the benefit of the institutions concerned. Moe 3B 2006

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What is the prescriptive period for claims after the State gets the estate? 5 years from the delivery of the property to the State (i.e. the political subdivision concerned). Who may make such a claim? Any person entitled by succession to the estate. What are the two instances where the difference between full and half blood relationship is material? Combination Nos. 18 and 19. Why is there a need to be careful as to the following combinations of intestacy: Combination Nos. 5, 7, 8, 9, 11, 13, 14 and 15? Because of the particular problems that may arise in case of partial intestacy. The combinations laid down cover only cases of total intestacy. Nowhere in the Chapter or elsewhere can one find provisions to govern cases of partial intestacy (i.e. instances where the decedent has left a will disposing of part, but not all, of the disposable portion). How then should the estate be divided if the decedent died with a will but the will does not dispose of the entire free or disposable portion – particularly in the combinations cited above? The problem is solved by inference, bearing in mind the law’s intent, thus: 1. Trace where the free portion when in total intestacy. 2. Since part of that free portion was disposed of by will, the testamentary provision should be carried out, and what is left of the free portion should then be given to the intended beneficiary in intestacy. The best way to understand the two-step process stated above is by an example: X died, leaving as his survivors his legitimate parents A and B and his wife Y. He left a will giving 1/8 of his entire estate to Caritas Manila. His net estate is worth Php600000.00. 1. Since the legitime combination applicable here is 1/2 of the estate to the legitimate parents, with 1/4 going to the surviving spouse, the will is clearly not inofficious since it disposes only of 1/8 of the estate – clearly less than the disposable portion of 1/4. 2. The actual value of the legitimes would be Php300000.00 of the estate to A & B, while Php150000.00 would go to Y. 3. In total intestacy; however, the sharings would simply have been Php300000.00 each (since such combination would lead to 1/2 to each class). 4. The intended recipient of the undisposed portion is Y since she is the one to whom the entire free portion went in total intestacy (A & B would simply get their legitimes). 5. Therefore, since part of the free portion was given away by will, the remainder should be given to Y – the remainder being 1/8 of the estate (since the other 1/8 of the free portion was already given to Caritas Manila). Therefore, the shares of A, B, Y and Caritas Manila would be: Moe 3B 2006

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Recipient A B Y Caritas Manila

Part of Estate 1/4 1/4 3/8 1/8

Actual Value Php150000.00 Php150000.00 Php225000.00 Php75000.00

Putting it differently, the rule in partial intestacy, in case what was given in the will did not exhaust the entire free portion, is simply to give it to whoever was supposed to get the free portion in the first place assuming that there was total intestacy. Consequently, if assuming total intestacy, the free portion was supposed to split between certain heirs, then the same should be done to the free portion in partial intestacy. In the example above, what are methods that should NOT be used to solve the problem? Why? 1. Just give the portion disposed by the will to Caritas Manila and then divide the rest between the remaining heirs; or, 2. Give the remaining free portion to the heirs equally. The first is incorrect precisely because it would violate the legitime – giving less to the heirs than they are privileged to receive by law. The second is incorrect because it is illogical. It would result to the heirs getting more than what they are to receive assuming total intestacy. Why should they receive more in partial intestacy when they get much less in total intestacy? The sheer illogicality of it translates to doom for students who choose to apply it notwithstanding.

CHAPTER 4: PROVISIONS COMMON TO INTESTATE AND INTESTATE SUCCESSION Section 1: Right of Accretion What is accretion? Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, codevisees or co-legatees. (Article 1015) What are the elements of accretion? 1. Two or more persons must be called to the same inheritance, or to the same portion thereof, pro indiviso; and, 2. One of the persons thus called should die before the testator, renounce the inheritance or be incapacitated to receive. (Article 1016) What are the occasions for the operation of accretion? 1. Renunciation 2. Predecease 3. Incapacity Note: The occasions for operation are the same between simple substitution and accretion. In testamentary succession, accretion is subsidiary to substitution. Moe 3B 2006

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What is the meaning of “pro indiviso”? It means either of the following: 1. The co-heirs are instituted without individual designation of shares; or, 2. The co-heirs are instituted with the specification that they share equally or that they have the same fractional sharing for each. Will accretion occur if the fractional sharings of the co-heirs are unequal? Yes. All that the law requires is that the institution be pro indiviso, which means “as undivided” or “in common”. The term does not import equality. It would therefore seem that accretion will occur even if the sharings are unequal, as long as the result of the institution is co-ownership. Will accretion take place if all the heirs either renounce, predecease or are deemed incapacitated? No. To reiterate, in intestacy, when does accretion occur? 1. In repudiation or renunciation; 2. In predecease, only if representation does not take place; 3. In incapacity or unworthiness, only if representation does not take place. Note: In intestacy, accretion is subordinate to representation. What are the rights of the heirs to whom the inheritance accrues? The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had (Article 1020). What are the exceptions, if any, to the rule just stated? 1. In testamentary succession, if the testator provides otherwise; 2. If the obligation is purely personal, and hence intransmissible. Is there accretion in the legitime? No. What is the possible significance of the rule of non-accretion in the legitime? The rule would probably find significance in the computation of legitimes of illegitimate children or surviving spouse when concurring with legitimate children. In testamentary succession, assuming substitution is provided in the will, would accretion still apply? Why? In testamentary succession, accretion is subordinate to substitution, if the testator has so provided. This is because substitution is the testator’s express intent, whereas accretion is merely his implied intent. In testamentary succession, if there is neither substitution nor accretion, what is to be done? Moe 3B 2006

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The part left vacant will lapse into intestacy and will be disposed of accordingly.

Section 2: Capacity to Succeed by Will or by Intestacy To reiterate, what is “testimentifaccion pasiva”? Capacity to succeed. What is preferred by law – capacity to succeed or incapacity? The general rule is in favor of capacity to succeed, as long as the successor has juridical personality. Incapacity must be based on some legal ground and must be shown. Are all provisions relating to incapacity by will equally applicable to intestate succession? No. Notwithstanding the second paragraph of Article 1024 (which must be deemed inaccurate), some grounds for incapacity to succeed by will have no application either to compulsory or intestate succession – particularly Article 1027, pars. 1 – 5 and Article 1028. Article 1027, par. 6 and Article 1032 are applicable to all kinds of succession. To be capacitated to succeed, the heir must be living when succession opens. What is meant by “living”? It is enough that the heir, devisee or legatee be already conceived when the decedent dies, provided it be born later. What is the rule as to capacity when the institution is subject to a suspensive condition? If the institution is subject to a suspensive condition, the successor must also be living when condition happens. Thus, in a conditional institution, the successor must be living both when the decedent dies and when the condition happens. What is the rule as to capacity when the institution is subject to a suspensive term? The requirement of being alive applies only at the moment of the decedent’s death, the successor need not be alive when the term arrives. Is representation an exception to the general rule that the heir must be living when the succession opens? No. Notwithstanding the last phrase of the first paragraph of Article 1025, the requirement that the successor should be alive when the decedent dies is absolute. Ultimately, for representation to occur, the representation must at least already be conceived when the decedent dies. (Articles 971 and 973) A case that deals with this rule is Parish Priest of Roman Catholic Church of Victoria, Tarlac vs. Rigor (89 SCRA 493 [1979]) where the testator devised ricelands that belonged to him to his nearest male relative who would become a priest. According to the Supreme Court, “We hold that the said bequest refers to the testator’s nearest male relative living at the time of this death and not to any indefinite time thereafter… The said testamentary provisions should be sensibly or reasonably construed. To construe them as referring to the testator’s nearest male relative at anytime after his death would render the provisions difficult to apply and create uncertainty as to the disposition of this estate.”

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Note: In the abovementioned case, the Court made a comment to the effect that if the testator had expressly placed a provision in the will allowing for an indefinite period of time after his death to include such a devisee, then the devisee need not be living at the time of the death of the testator. This should be considered as a mere obiter. Ultimately, a testator cannot validly institute someone not yet living at the time of his death. What is the requirement for juridical persons to succeed? It must already exist as a juridical person when the decedent dies. Who are incapable of succeeding? 1. The 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. The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization or institution to which such priest or minister may belong; 3. A 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. Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; 5. Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; 6. Individuals, associations and corporations not permitted by law to inherit. To reiterate, which of the provisions as to who are incapable of succeeding are inapplicable to compulsory and intestate succession? Which may be applied to all kinds of succession? The first five paragraphs are applicable only to testamentary succession. The last is the only one applicable to all kinds of succession. Note: It seems however that the last paragraph is misplaced because it provides for total disqualification. Hence, it would have been better to make it a separate article altogether. What is the rationale for the disqualifications? The law seeks to prevent any possible abuse of the moral or spiritual ascendancy for purposes of testamentary benefit. Is proof of duress or influence essential or even necessary? No. The disqualification is peremptory. No actual duress or influence need be shown – these are conclusively presumed. Shall proof of absence of duress or influence remove the disqualification? No. It is immaterial and irrelevant. What are the requisites for the first ground of disqualification? 1. The will must have been executed during the testator’s last illness; 2. The spiritual ministration must have been extended during the last illness; 3. The will must have been executed during or after the spiritual ministration.

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Does the disqualification apply only to Christian priests? No. It applies to all individuals belonging to other religions, sects, or cults, whose office or function it is to extend the peculiar spiritual ministrations of their creed. What is the purpose of the second disqualification? The purpose is simply to prevent indirect violations or circumventions of the first ground. Can the disqualification be applied to the spouse of a religious minister (those that need not be celibate)? Yes. When does the third disqualification apply? The will must have been executed by the ward during the effectivity of the guardianship (i.e. at anytime between the commencement of the guardianship and its dissolution). What kinds of guardianships are covered? Both guardianships over persons and over property. Is there an exception to the third disqualification? Yes. A guardian who happens to be an ascendant, descendant, brother, sister, or spouse of the ward-testator is excluded from the prohibition. Note: The curious thing about the exception is that it is not applied to the other disqualifications. Is there an exception to the fourth disqualification? Yes. If there are three or more competent witnesses, then the disqualification should not apply. This is in line with the provisions of Article 823. What is the scope of the prohibition in the fifth disqualification? The person must have taken care of the testator during the latter’s final illness. What is the meaning of “taking care”? It means medical attendance with some regularity or continuity. Why is such a disqualification in place? It is in such circumstances that the possibility of duress or influence exists. Note: Because the rules seem incongruent and illogical in some respects, it is very much possible that questions in Balane tests will be derived from the rules of disqualifications. Aside from those mentioned in Article 1029, who else are disqualified from inheriting by testamentary succession? 1. Those made between persons who were guilty of adultery or concubinage at the time of the disposition;

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2. Those made between persons found guilty of the same criminal offense, in consideration thereof; 3. Those made to a public officer or his wife, descendants and ascendants, by reason of his office. May the testator dispose of his estate or any part thereof for prayers and pious works for the benefit of his soul? Yes. What are the requisites for the rule on dispositions for prayers and pious works? 1. Disposition for prayers and pious works for the benefit of the testator’s soul; 2. No specification of the application of the disposition. How should the estate (or part of it, as the case may be) be apportioned? In such cases, the executor, with court’s approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State for the benefit of public schools, and public charitable institutions and centers. *Why the State? Under what rubric does the State fall: Prayers? Pious works? Perhaps the key phrase in the article is “for the benefit of his soul”. It seems that the law concludes that if it is the benefit of one’s soul that the testator seeks, then what better way than to contribute to society through donations mortis causa to the State. Although personally this author has no problems with contributing to the State, the conclusion seems a tad bit rash. Ultimately, in the greater scheme of things, contributing to the State does not guarantee “entrance into heaven” and for the lawmakers to assume that one who wants to save his soul would have no problems contributing to the State is awfully presumptuous. What is the rule as to the testamentary provisions in favor of the poor in general? If the testator does not designate particular persons or a specific community, then the disposition shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. According to Article 1030, whether the testator designates a particular locality or not, the designation of the persons who are to be considered as poor and the distribution of the property shall be made by certain people (enumerated infra) before such disposition is made to take effect. *What is meant by the testator’s domicile? What political subdivisions will this refer to? Perhaps the most logical method in determining the particular subdivision for the application of this rule is to start from the smallest – the barangay – and then to work outward depending on the existence of poor in the area. So, for instance, if a testator made a disposition to the poor but failed to state which community and at the same time, the testator lives in a posh barangay such as the one encompassing the area of Ayala Alabang, then one may not find “poor” in the area and may choose to look at the larger political subdivision – the city of Muntinlupa. Who are to determine the individual beneficiaries within the class designated by the testator? 1. The person authorized by the testator or in his default, 2. The executor, or in his default, 3. The administrator.

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Note: The Committee specified in the article will, in fact, not have occasion to function. Person C is married, but his having a torrid love affair with Person M. Person C enters into an onerous contract with Person M transferring property for consideration but which shall take effect upon the death of Person C. Is such valid? The same may be considered a testamentary disposition in the guise of an onerous contract for the benefit of someone who by law is prohibited to be transferred property by testamentary succession. Hence, the same would be void. Who are incapable of succeeding by reason of unworthiness? 1. Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; 2. Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; 3. Any person who has accused the testator of a crime for which the law prescribed imprisonment for six years or more, if the accusation has been found groundless; 4. Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; 5. Any person convicted of adultery or concubinage with the spouse of the testator; 6. Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; 7. Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals or alters the latter’s will; 8. Any person who falsifies or forges a supposed will of the decedent. (Article 1032) To reiterate, to what kinds of succession does this provision apply? To all kinds of succession. What are the requisites of the fourth ground for unworthiness? 1. The heir has knowledge of violent death of the decedent; 2. The heir is of legal age; 3. The heir fails to report it to all officers of the law within a month (after learning of it); 4. The authorities have not yet taken action; 5. There is a legal obligation for the heir to make an accusation. When shall the fourth ground for unworthiness operate? Never. The fifth requisite shall never be complied with precisely because there is no such legal obligation in our law. What is the effect of unworthiness? Total disqualification (i.e. the unworthy heir is incapacitated to succeed from the offended party by any form of succession). Thus, unworthiness can be considered as disinheritance imposed by the law. How is the unworthy heir restored to capacity? 1. A written condonation; 2. The execution by the offended party of a will with knowledge of the cause of unworthiness. Moe 3B 2006

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*As regards the second mode, is it enough that the offended party execute a will with knowledge of the existence of the cause of unworthiness? The better opinion seems to be that it is not enough; the will must also either institute the unworthy heir or restore him to capacity. There is a clear overlap between the rules of unworthiness and those of disinheritance. While disinheritance requires mere reconciliation for capacity to be restored, unworthiness on the other hand requires the two modes mentioned supra. Can the two lines of rules be reconciled? How? Yes, they can be reconciled. There is no problem if the offended party does not choose to disinherit the offending herein, because then only the rules of unworthiness will operate. If the offended party does not make a will subsequent to the occurrence of the common cause, then the rules of unworthiness sets in ipso facto and written condonation is necessary to restore to capacity. If the offended party makes a will subsequent to the occurrence of the common cause, then we must distinguish whether such party knew of the cause. If he did not know of the cause then the unworthiness stays. But if he knew of the cause, then we must distinguish whether the offended party has chosen to (1) disinherit, (2) institute the offender or pardons him, or (3) does not provide for it all hence making the will silent. If there is a disinheritance made, then obviously the rules of disinheritance should apply. If he institutes or pardons the offender, then the offender is restored to capacity. But if the will is silent, the better opinion seems to be that the unworthiness stays. When is capacity determined? Generally, it is determined at the time of the decedent’s death. If the institution is subject to a suspensive condition, then it must be determined at the time of the decedent’s death and the time of the happening of the condition. If final judgment is a requisite of unworthiness, then it must be determined at the time of final judgment. Is there representation in unworthiness? Yes. If, before a judicial order of exclusion, an excluded heir transfers hereditary property, is such transfer valid? It depends on whether the transferee is in good faith or not. If the transferee is in good faith then the transfer remains valid, without prejudice to the right of co-heirs to recover damages from the disqualified heir. How can a transferee be deemed in good faith? He must have acquired the thing for value and without knowledge of the defect of the transferor’s title. What kind of expenses should be reimbursed to an unworthy heir in case such expenses were made prior to the exclusion? Regardless of bad faith, necessary expenses (in the preservation of the hereditary property).

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What are the obligations and liabilities attached to an excluded heir who takes possession of the property in bad faith? 1. The obligation to return, with accessions; 2. Liability for fruits which were received and could have been received. What is the period to recover property unduly possessed by an excluded heir? Five years from the time the disqualified person took possession thereof. The period applies to both declaration of incapacity and to recover the inheritance or portion thereof unlawfully possessed. Who may bring such action? Any one who may have an interest in the succession. What is the governing law as to capacity? The national law of the decedent.

Section 3: Acceptance and Repudiation of the Inheritance 1. 2. 3. 4.

5. 6. 7. 8. 9.

Outline of Acceptance and Repudiation of Inheritance Nature of A/R (1041) Time of Acceptance (1043) Retroactive Effect of A/R (1042) Some Rules of A/R – How? a. If with capacity, personally (1044) b. If married woman, no consent of husband (1047) c. If incompetent, via representative/agent (1044) d. If minor/mentally incapacitated (1048) e. Illiterate deaf mute (1045) f. Juridical person (1046) Rules of acceptance are much more liberal as compared to renouncement (1044, 1045, 1048) In case of renouncement in prejudice of creditors (1051) A/R of heirs of an heir As to renunciation of either testamentary and/or intestate (1055) Irrevocability

Is acceptance required or mandatory? No. The acceptance of property through succession is essentially free and voluntary. Non potest liberalitas nolenti adquiri – no one can be required to accept a benefit. Which are more liberal – the rules of acceptance or the rules of repudiation? Why? The rules of acceptance. This is because acceptance is beneficial, whereas repudiation is prejudicial to the successor. How does the retroactivity of acceptance operate? The successor will be deemed to have owned and possessed the property from the precise moment of the decedent’s death.

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How does the retroactivity of renunciation operate? The renouncer is deemed to never have owned or possessed the property. Is the principle of retroactivity overridden if the institution is subject to a suspensive condition? No. Upon the happening of the condition, the property passes to the heir but with retroactive effect. What must a person have at the very least to accept or renounce? Capacity to act. If an heir has capacity to act, he may accept/renounce personally or through an agent. What must a person know at the very least for the effectivity of either his acceptance or repudiation? 1. Certainty of the death of the person from who he is to inherit; 2. His right to the inheritance. Who has the right to accept or repudiate in case of inheritance left to minors? Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left their wards only by judicial authorization. (Article 1044, par. 2) Who has the right to accept or repudiate in case of inheritance left to the poor? The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, the executor or in his default, the administrator. (Article 1044, par. 2) Note that the authorized individuals can only accept, not reject the grant. The persons selected as qualified recipients are, for their own part, free to accept or renounce the benefit. Who has the right to accept or repudiate in case of inheritance left to a juridical person? The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter. But in order to repudiate it, the approval of the court shall be necessary. May public official establishments accept or repudiate inheritance? Not without the approval of the government. May a married person accept or repudiate unilaterally? Yes. A married person of age and not incapacitated for any reason may accept or renounce an inheritance without his or her spouse’s consent. May deaf-mutes accept or repudiate inheritance? Yes – we must distinguish however whether the deaf-mute can read and write. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent.

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In the case of deaf-mutes who cannot read and write, the inheritance shall be accepted by their guardians, who in turn, may only repudiate with judicial approval. How may acceptance be done? Acceptance may be (1) express, (2) tacit or (3) implied. How is an express acceptance made? An express acceptance must be made in a public or private document, or in the proper cases, by petition presented to the court having jurisdiction over the testamentary or intestate proceedings (assuming that such is approved by such court). What is a tacit acceptance? A tacit acceptance is 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. Do acts of mere preservation or provisional administration imply acceptance of the inheritance? No, if through such acts, the title or capacity of an heir has not been assumed. How is a tacit acceptance made? 1. If the heir sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them (Express Conveyance); 2. If the heir renounces the same, even though gratuitously, for the benefit of one of more of his co-heirs (Implied Donation); 3. If the heir renounces it for a price in favor of all his co-heirs indiscriminately (Implied Sale). Would there be tacit acceptance if a gratuitous renunciation is made leading to the incorporation of the portions to the co-heirs through accretion? No. Is the abovementioned list of tacit acceptance exclusive? No. When is there implied acceptance? There is implied acceptance when there is a failure on the part of the heir to signify his acceptance or renunciation within thirty days after the court has issued an order for the distribution of the estate. May acceptance, in any case, be forced? Yes – in acción pauliana, which is the right given to creditors to impugn or set aside contracts, transactions, or dispositions of their debtors which will prejudice or defraud them. To what extent may the creditor compel the heir to accept? The right of the creditor to accept the inheritance in the name of the debtor extends only to the amount or value necessary to satisfy the credit.

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What is the rule if an heir should die without having accepted or repudiated? His right shall be transmitted to his heirs. In a group of several heirs, may some accept and some repudiate? Yes. It is not necessary that all of them accept or repudiate. Their right to accept or repudiate will correspond to the aliquot share to which they are entitled. *Should one or more of the heirs renounce, to whom will the repudiated portion go? To the ones who accept, by accretion? Or to the intestate heirs of the decedent whose inheritance the predecessor of the heirs was unable to accept or renounce? It shall go to the ones who accept by accretion. Whether via intestate or testamentary succession, there is no representation in this case because either such is inherently unavailable (in testamentary succession) or because it cannot operate (in intestate succession if there was a renunciation). Given that there is no representation and assuming that the heirs all inherit to the portion pro indiviso, then accretion shall operate and it would thus only be up to the co-heirs to either accept or repudiate. Jojo “Master” Baetiong is both a testamentary heir and an intestate heir. What is the effect if he renounces as testamentary heir? He is deemed to have renounced as intestate as well. What if “Master” renounces as an intestate heir? Provided that he is without knowledge of his being a testamentary heir (but see discussion infra), he is not deemed to have renounced as testamentary heir and may therefore accept or renounce separately in the capacity as a testamentary heir. What is the rationale of the rule? The testamentary disposition is the express will of the testator, whereas intestacy is only his implied will. One who renounces the express will is deemed to have renounced the implied also, but not the other way around. *Supposing that in the above example, “Master” renounces as intestate heir with knowledge of his being a testamentary heir, may he accept in the latter capacity? Although this is disputed, Atty. Balane seems to more persuaded with the answer based on the rationale of the law – and therefore believes that an heir such as “Master” may still accept in the capacity of a testamentary heir. This author, on the other hand, tends to believe that the charging of knowledge on the part of the heir of his being a testamentary heir and his subsequent renunciation of his intestacy should lead to a bar of acceptance in the capacity of a testamentary heir (the law makes a distinction, and so should we). What if “Master” was both a compulsory heir and an intestate heir, what would be the rule governing his repudiation of either one? Should the heir be simultaneously a compulsory heir and a testamentary heir, he can accept either or both. If he repudiates one, that would not result in the repudiation of the other. The same rule goes if the heir was both a compulsory heir and a testamentary heir. Once an acceptance or repudiation is made, may it be reversed?

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No. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned. Are there exceptions to this rule of irrevocability? 1. Vitiated consent; 2. Appearance of an unknown will. Note: In the second exception, the exception would only apply if the newly-discovered will is subsequent to any will which may have formed the basis for the acceptance or renouncement.

Section 4: Executors and Administrators What governs executors and administrators? The Rules of Court. What is the recourse if the assets of the estate of a decedent is not sufficient to pay the debts and liabilities thereupon? Application of the provisions under Title XIX of the Civil Code, entitled “Concurrence and Preference of Credits”. May a corporation or association be appointed as an executor, administrator, guardian of the estate or trustee? Yes. A corporation or association authorized to conduct the business of a trust company in the Philippines may serve as such, but not as a guardian of the person of a ward.

Section 5: Collation What are the three meaning of collation? 1. Collation as computation; 2. Collation as imputation; 3. Collation as return. What is collation as computation? This is a simple accounting or arithmetical process, whereby the value of all donations inter vivos made by the decedent is added to his available assets in order to arrive at the value of the net hereditary estate. What is collation as imputation? This is the process by which donations inter vivos made by the decedent are correspondingly charged either to the donee’s legitime or against the disposable portion. What is collation as return? This takes place when a donation inter vivos is found to be inofficious (i.e. exceeds the disposable portion) and so much of its value as is inofficious is returned to the decedent’s estate to satisfy the legitimes.

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May collation be partial in case there should be controversy over the inclusion of certain items? Yes. Rules of Collation as Computation What should be included in the computation? Notwithstanding the provisions of law, all donations – whether made to compulsory heirs or to strangers – should be included in the computation of the net hereditary estate. What is the value to be computed? Only the value of the property donated at the time the donation was made is to be computed. Thus, any subsequent increase in value is for the donee’s benefit and any decrease is for his account/benefit. What is the purpose of computation? It is to determine the amount of the net estate so as to ensure that the legitimes are not impaired. What expenses are expressly excepted from the collation? 1. Expenses for support; 2. Expenses for education; 3. Expenses for medical attendance, even in extraordinary illness; 4. Expenses for apprenticeship; 5. Ordinary equipment, and; 6. Customary gifts. What is considered as “support”? The general coverage of support is that as defined by Article 194 of the Family Code. It does not, however, include expenses for the recipient’s professional, vocational or other career. What value of the thing should be computed whether to the legitime or the free portion? The value of the thing at the time the donation was made. Francis and Micah, made a donation to their son Jur. Upon the death of Francis, how much of the donation should be computed (and eventually imputed) to his inheritance? One-half. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. Given the same example, what if Francis gave the gift alone? Then it shall be brought for collation in only Francis’ inheritance. Note: The rule (and naturally the example) presumes either a property regime of absolute community or conjugal partnership between the donor spouses. Rules of Collation as Imputation What is the rule as to donations inter vivos made by the decedent to a compulsory heir? Moe 3B 2006

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As a general rule, such are imputed to or charged against the heir’s legitime. What is meant when the donation is “charged against the heir’s legitime”? This means that the donation is considered as an advance on the legitime. Are there exceptions to the abovestated rule as to donations to compulsory heirs? 1. If the donor provides otherwise; 2. If the donee renounces the inheritance; 3. The excess of a donation to a compulsory over the value of the legitime. What is the rationale for the second exception? Because in such case, the donee gives up his status as a compulsory heir and therefore cannot be considered as one. What is the effect of any of the exceptions? The donation will have to be imputed to the free portion. What is the rule as to donations inter vivos of the decedent to strangers? These are imputed to the free portion. In summary, what are the instances when donations inter vivos are to be imputed to the free portion? 1. When made to strangers; 2. When made to compulsory heirs, and the donor so provides; 3. When made to compulsory heirs who renounce the inheritance; 4. When in excess of the compulsory heir’s legitime, as to the excess. What is the rule as to testamentary disposition by the decedent to compulsory heirs? As a general rule, they should not be imputed to the legitime, but to the free portion. Hence, the compulsory heir receives the testamentary disposition in addition to his legitime. What is the exception to the rule as to testamentary dispositions to compulsory heirs? Should the testator provide otherwise, the testamentary disposition in favor of their heir will be merged with his legitime (thus making the disposition illusory). What do grandchildren who inherit by representation concurrently with their uncles and aunts (children of the decedent) or other grandchildren (cousins of the grandchildren) have to charge to their legitime? 1. Whatever the parent whom they are representing would have been obliged to collate; and, 2. Whatever they themselves have received from the grandparent by gratuitous title. Should parents collate in the inheritance of their ascendants any property which may have been donated by the latter to their children? No. A person should not collate what his parent gave to his child since he is not the recipient of the conveyance. Moe 3B 2006

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In the case of conveyance to grandchildren, against what part of the estate shall the conveyance be imputable? The donation to the grandchildren should be imputed to the free portion, since it is a donation to a stranger. At the time of their marriage, Kath was given Php1000000.00 by the father of Adel, Mr. Reyes. Upon the death of Mr. Reyes, should the Php1000000.00 be brought to collation? No. Donations made by a person to his son-in-law or daughter-in-law are separate property of the donee and, logically, should not be imputed to the legitime of the donor’s child (the donee’s spouse). The donation is one made to a stranger. Given the same facts but assuming that the Php1000000.00 was given to both Adel and Kath, should the donation be brought to collation? Yes – but only to extent of one-half of the thing donated. The rule is that if donation is made to the spouses jointly, one-half belongs to the donor’s child and should be brought to collation and the other half is the property of the donor’s son- or daughter-in-law and should be treated as a donation to a stranger. What is the rule as to expenses incurred by the parents in giving their children professional, vocational or other career? As a general rule, these expenses (courses beyond the secondary level) should not be charged to the legitime, but rather to the free portion – unless the parents provide otherwise. However, even if the parents should provide otherwise, the child is entitled to deduct from the said amount the sum corresponding to what his parents would have spent on him had he stayed at home and loafed. There is therefore in one article (1068), a general rule, an exception and an exception to the exception. What is the rule as to sums paid by parents in satisfaction of debts of his children, election expenses, fines and similar expenses? These shall be brought to collation and treated as donations to compulsory heirs. What is the rule as to wedding gifts given by parents or ascendants to children or descendants? Such shall not be reduced as inofficious except insofar as they may exceed one-tenth of the free portion. In other words, the gift will be imputed to the free portion to the extent of one-tenth of the free portion. Beyond that value, the excess will be imputable to the recipient’s legitime. What wedding gifts are covered by this rule? Jewelry, clothing and wedding outfit. What is covered by the term “outfit”? Items necessary for an individual’s personal use. What value of the thing should be imputed whether to the legitime or the free portion? The value of the thing at the time the donation was made. Moe 3B 2006

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What is the rule as to the reduction of the donee’s share and the share to be received by his co-heirs? The donee’s share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. What is the requirement of this rule? The rule requires not only equivalence in amount, but, as far as possible, also in the kind of property received – unless, of course, the heirs agreed otherwise. In the event that the rule as to the reduction of donee’s share and the consequent incorporation of the shares to his co-heirs is not applicable, what rule should prevail? Should the rule prove to be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash nor marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction. If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. Rules of Collation as Return When should the fruits and interest of the property subject to collation begin to pertain to the estate? The day on which the succession opened – the death of the decedent. What is the extent of the right to fruits and interest? If the donation is totally inofficious, the entirety of the fruits and interests shall pertain to the compulsory heir. If the donation is partially inofficious, the right to the fruits and interests shall be prorated between the compulsory heir and the donee, in proportion to their respective interests over the property. Does the donee obliged to return have a right to reimbursement? Yes. The extent of such right, however, must be qualified. The extent of the application of the rules as to such return depends on the extent of the obligation to return. If the thing has to be returned in its entirety (i.e. the donation is totally inofficious), then (1) necessary expenses must be reimbursed to the full extent of the expenses incurred, (2) useful expenses to the full extent provided that the improvement is still in existence and (3) ornamental expenses would not be reimbursable (but subject to a qualified right to removal – it should not cause injury to the estate). If the thing has to be returned only in part (i.e. the donation is only partially inofficious), then (1) necessary and useful expenses should also be reimbursed partially, in proportion to the value to be returned, and (2) ornamental expenses would not be reimbursable unless the property is physically divided and the ornament happens to be located in the portion assigned to the donee, in which case he will have all the rights of ownership.

Section 6: Partition and Distribution of Estate

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Subsection 1: Partition Who owns the estate prior to partition? The estate is owned in common by such heirs, subject to the payment of debts of the deceased. What is partition? It is, in general, the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. What are the kinds of partition? 1. Actual; 2. Constructive. What is actual partition? It is the physical division of the thing among the co-heirs. What is constructive partition? It is any act, other than physical division, which terminates the co-ownership (e.g. sale to a third person). What are the two methods of partition? 1. Extrajudicial agreement among the heirs; or, 2. Judicial proceedings. With respect to partitioning the estate, who is the causante? The decedent himself. May the causante partition the estate? Yes. What are the characteristics of such partition? 1. It takes effect only upon death; 2. It is revocable as long as the causante is alive; hence the causante can change or modify it, or even rescind it during his lifetime. How is such a partition done? 1. By will; 2. By act inter vivos. What should be the form of the partition done by act inter vivos? A partition inter vivos should be in writing and in a public instrument. (Fajardo vs. Fajardo, 54 Phil. 843 [1930]) However, the obiter in Chavez vs. IAC (supra) states that even an oral partition is valid. In case of partition inter vivos, must there be prior will? Moe 3B 2006

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This is a disputed point. Under the former law, yes. A mere partition inter vivos which does not observe the formalities of a will cannot, by itself, make testamentary dispositions. This was ruled upon squarely in the case of Legasto vs. Versoza (54 Phil. 766 [1930]) – a partition inter vivos is valid only if there is a supporting will on which the partition is based. And, in the case of Alsua-Betts vs. Court of Appeals (92 SCRA 332 [1979]), the rule was amplified by the ruling that the partition inter vivos is void even if a subsequent will is executed in conformity with the provisions of the prior partition. However, with the change of the word “testator” in the old law to the word “person” in the new law, the rulings in Legasto and Alsua-Betts were put into question. There is strength in the argument that such change allowed for partition inter vivos to be validly made even without a prior supporting will, provided that it is not used to make mortis causa dispositions – for nothing can take the place of a will to dispose of property mortis causa. Hence, the only way a partition without a will can be valid is by following strictly the intestate portions provided by law (i.e. the partition should conform exactly to the portions provided by law in intestate succession, for then the causante would not be making testamentary dispositions in the partition – the dispositions would be by virtue of intestate succession. Explained this way, therefore, the rule that partition inter vivos requires a prior will is still good law. Note: The ruling of Chavez vs. IAC (supra), according to Atty. Balane, should be considered a defective by virtue of its rulings (1) giving an irrevocable character to the partition inter vivos, and (2) allowing a conveyance by the compulsory heirs of their legitimes even during their lifetimes. What is the limitation on the partition by the causante? The legitimes of the causante’s compulsory heirs cannot be impaired by partition made by him, whether in a will or by an act inter vivos. What is a mandatary? This is a person who is not a co-heir entrusted with the mere power to make the partition after the death of the decedent. Such person is appointed by an act inter vivos or mortis causa. What is the basis for the existence of constructive partition? Article 1082 which states that “every act which is intended to put an end to indivision among coheirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. Is partition a matter of right? Yes. Hence, as a general rule, any co-heir may demand partition at any time. What are the exceptions to this right? 1. When forbidden by the testator; 2. When co-heirs agree on indivision. What is the limitation to a prohibition to partition imposed by the testator? It should be for a period not exceeding 20 years. May the testator impose a prohibition on the partitioning of legitimes? Yes.

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Is there an exception to this exception of the testator’s imposition? Yes. 1. When any of the causes for the dissolution of a partnership occurs; and, 2. When the court finds compelling reasons for partition. What is the limitation to a prohibition to partition agreed upon by the heirs? It should be for a period not exceeding 10 years (which is renewable for like periods). What is the rule on the partition of institutions with a suspensive condition? Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. What is the rationale for this rule on institutions with a suspensive condition? First of all, the heir instituted under a suspensive condition acquires no rights unless and until the condition happens. Also, the other heirs not so instituted, however, should not be deprived of their right to demand partition, subject to the obligation to protect the inchoate right of the conditional heir, by furnishing adequate security. Must there be equality among co-heirs? It shall be observed as far as possible. How is equality among co-heirs as contemplated by the law on succession characterized? Quantitatively, the shares of the co-heirs are not necessarily equal in value, but are determined by law and by will. Qualitatively, whatever the aliquot portions be, however, the law mandates equality in nature, kinds, and quality, so that if A, for instance, gets a parcel of rice land, B should also be given one. What are the exceptions or qualifications to the requirement of qualitative equality? 1. If the causante has made the partition himself; 2. If the co-heirs agree otherwise; 3. If qualitative equality is impossible or impracticable. If a thing be indivisible, or would be much impaired if divided, may if be adjudicated to one of the heirs instead? Yes – provided however that he shall pay the others the excess in cash. Further, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. What is the common duty among heirs upon partition? Mutual accounting. Thus, any heir who, between the decedent’s death and partition time, received fruits from the estate shall reimburse his co-heirs for their respective shares, in proportion to the hereditary interest of each. Similarly, any heir who incurred necessary or useful

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expenses on the hereditary estate may demand reimbursement from his co-heirs in the same proportion. What is the right to redemption in case of sale? In the event any co-heir sells his aliquot portion to a stranger before partition time, any co-heir is entitled to redeem the portion sold. What is the meaning of “stranger”? A stranger within the meaning of this article (Article 1088) is anyone who is not a co-heir. (Basa vs. Aguilar, 117 SCRA 128 [1982]) When can the right of redemption be exercised? The right may be exercised only before partition, not after. (Caro vs Court of Appeals, 113 SCRA 10 [1982]) What are the requirements for the exercise of such right? 1. Written notice to the co-heirs by the vendor (Garcia vs. Calaliman, 172 SCRA 201 [1989]); 2. Exercise of right within one month from receipt thereof. Is the requirement of written notice absolutely necessary? The rule stated in Garcia is still controlling. However, in at least three cases, there was a certain relaxation of the requirement by ruling that actual notice to, or knowledge by, the co-heir achieves the purpose of the law and meets the legal requirement. In one of the cases however (Alonzo vs. IAC, 150 SCRA 259 [1987]), it was clarified that it was not abandoning the previous rulings (following Garcia) but was simply laying down an exception to the general rule, in view of particular circumstances. Whether these cases are merely exceptions or reversals of the controlling doctrine remains to be seen. Although, in the case of Primary Structures vs. Valencia (409 SCRA 371 [2003]), the Court seemed to return to Garcia ruling by characterizing the written notice as mandatory. What if more than one co-owner wishes to redeem? In such case, all the co-owners wishing to redeem may do so, but in proportion to each one’s hereditary interest over the mass.

Subsection 2: Effects of Partition What are the general effects of partition? 1. The termination of the co-ownership; 2. Reciprocal warranties. What are the rules on warranties? Applicable here are the rules on warranties found in Articles 1547 to 1548 in the Title of Sales. Generally, they are (1) warranties against eviction and (2) warranties against hidden defects. What is the rule as to the proportional liability of co-heirs on warranty? Burdens should be proportional to benefits. Therefore the burdens arising from the partitioning of the estate should be derived from whatever interest the heirs may have on the same estate. Moe 3B 2006

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What would happen if one of the heirs bound to make good the warranty is insolvent? His portion shall be borne proportionately by all, including the one entitled to the warranty. Is there an exception to the right to reimbursement from the insolvent obligor? Yes – judicial declaration of insolvency under the Insolvency Law precisely because such would extinguish all obligations. Within what period must claims on warranties among co-heirs be brought? 10 years from the date the right accrues – which in this case, is the breach of the warranty. What is the warranty of solvency (with regard to credit assigned as collectible)? If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. When can the warranty of solvency during partition be enforced? During the five years following the partition. Is there such a thing as a warranty to bad debts? No. In what cases shall there be no obligation of warranty among co-heirs? 1. Partition by the testator himself (save where the legitime has been impaired); 2. Agreement among the co-heirs to suppress the warranty; 3. Supervening events causing the loss or the diminution in value; 4. Fault of the co-heir; 5. Waiver.

Subsection 3: Rescission and Nullity of Partition When may a partition be annulled? 1. Those where one of the parties is vitiated by mistake, violence, intimidation, undue influence or fraud; 2. Those where the consent is vitiated by mistake, violence, undue influence or fraud. When may a partition be rescinded? 1. On account of lesion when one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of things at the time they were adjudicated; 2. Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number; 3. Those undertaken in fraud of creditors when the latter cannot in any other manner collect the claims due them; 4. Those which refer to things under litigation if they have been entered into by the defendants without the knowledge and approval of the litigants or of competent judicial authority; 5. All others specially declared by law to be subject to rescission.

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What is the exception to the first ground as to lesion? A partition made by the testator himself is not subject to rescission even in case of lesion in the amount of at least 25%, except in the following cases: 1. Impairment of the legitime; 2. Mistake by the testator or vitiation of his intent. What is the prescriptive period to bring an action for rescission on account of lesion? 4 years from the time the partition was made. What are the options of the heir who is sued for annulment or rescission? 1. To have re-partition; or, 2. To indemnify the co-heir the amount of the lesion suffered. How may indemnity be made? 1. By payment in cash; or, 2. Delivery of a thing of the same kind and quality as that awarded to the plaintiff. What is the effect of the new partition? It shall affect neither those who have not been prejudiced nor those who have not received more than their just share. Is incompleteness of the partition a ground for rescission? No. The remedy is supplemental partition. David is a compulsory heir to an estate. During the partition, he was omitted. Can he file for rescission of the partition? No – unless it be proved that there was bad faith or fraud on the part of the other persons interested. What would be David’s remedy if not rescission? The other interested person should be obliged to pay to the person omitted the share which belongs to him. Note: Although Article 1104 uses the term “preterition”, this does not mean “preterition” under Article 854 – which is total omission from the inheritance. It merely means “omission in the partition”. In a partition, Manman was included because he was believed to be an heir. While drinking with his friends, celebrating his new found wealth, one of the heirs to the estate entered into the night club where he was celebrating and shouted, “Ina mo Manman! Di sayo ang perang pinapang-inom mo!” Apparently, he was not an heir as previously believed. Shall the entire partition be voided? No – it shall be void only with respect to such person thought to be an heir but who really wasn’t (in this case, Manman). The proper remedy is to recover the property from him and have it redistributed among the proper recipients.

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