Succession Reviewer

SUCCESSION DEFINITION OF SUCCESSION (Art. 774, CC) -

It is a mode of acquisition by virt virtue ue of whic hich the the prop proper erty ty,, rig righ hts and obli obliga gati tion ons s to the the ex extent ent of of the the valu value e of of th the inh inher eriitanc tance, e, of a per pers son are are tra trans nsmi mittted ted thr thro ough ugh hi his de death ath to to an anothe otherr or or ot others hers either by his will or by operation of law

KINDS OF SUCCESSION 1.

Testamentary – that which results from the designation of an heir, made in a will executed in the form prescribed by law. (Art. 779, CC)

2.

Legal or Intestate – that which takes place by operation of law in the absence of a valid will.

3.

Mixed – that which is effected partly by will and p artly by operation of law. (Art. 780, CC)

KINDS OF HEIRS 1.

Compulsory – those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance. They succeed regardless of a will.

2.

Voluntary or Testamentary – those who are instituted by the testator in his will, to succeed to the portion of the inheritance of which the testator can freely dispose. They succeed by reason of a will.

3.

Legal or Intestate – those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will. They succeed in the absence of a valid will.

I. TESTAMENTARY TESTAMENTARY SUCCESSION A. CONCEPT DEFINITION OF WILL (Art. 783, CC) -

It 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

B. TESTAMENTARY CAPACITY TESTAMENTARY CAPACITY 1.

All persons who are not expressly prohibited by law (Art. 796, CC)

2.

Eighteen (18) years old and above (Art. 797, CC)

3. Of sound mind at the time of the execution of the will (Art. 798, CC) *Supervening capacity or incapacity does not affect the will.

C. FORMALITIES OF WILLS KINDS OF WILLS 1.

Notarial – an ordinary or attested will (Articles 804-808, CC)

2.

Holographic – a handwritten will (Art. 810, CC)

COMMON REQUIREMENTS TO BOTH WILLS (Art. 804, CC) 1. 2.

In writing In a langu language age or or dialec dialectt known known to the the testat testator or

REQUISITES FOR A VALID NOTARIAL WILL 1.

In writing (Art. 804, CC)

2.

In a language or dialect known to the testator (Art. 804, CC)

3.

Subscribed at the end by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction (Art. 805, CC)

4.

Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another (Art. 805, CC)

*Test of Presence: Not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their mental and physical condit condition ion and positi position on with with relati relation on to each each other other at the moment moment of inscr inscript iption ion of each each signature. (Jaboneta vs. Gustilo, 5 Phil. 541)

5.

Each Each and every every page, page, except except the last, last, must be signed signed by the testato testatorr or by the person person requested by him to write his name, and by the instrumental witnesses of the will, on the left margin. (Art. 805, CC) *Exceptions: a. not needed in the last page if the will will consists of two or more pages b. when the will consists consists of only one page c. when the will consists consists of only two pages, the first of which which contains all dispositions dispositions and is signed at the bottom by the testator and the witnesses, and the second page contains only the attestation attestation clause duly signed at at the bottom by the witnesses. witnesses. *Note: The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to  justify denial of probate. (Icasiano vs. Icasiano, 11 SCRA 422)

6.

Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page. (Art. 805, CC) example, page one of five pages

7.

It must contain an attestation clause, stating the following (Art. 805, CC) a. The number number of pages pages used upon upon which which the will will is written. written. b. The fact that that the testator testator signed signed the will and every page, page, or caused some other other person person to write his name, under his express direction, in the presence of the instrumental witnesses. witnesses. c. All the instrume instrumenta ntall witnes witnesses ses witness witnessed ed and signed signed the will and all the pages in the presence of the testator and of one another.

8.

It must be acknowledged before a notary public by the testator and the witnesses. (Art. 806, CC) * Note: The notary public before whom the will was acknowledged cannot be considered as the third third instrume instrumental ntal witness since he cannot cannot acknowledge acknowledge before himself his having having signed signed the will. To allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Articles 805 and 806. (Cruz vs. Villasor, 54 SCRA 31)

ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BE DEAF OR A DEAF-MUTE (Art. 807, CC) 1. 2.

Testator Testator must person personally ally read read the the will, will, if able able to do so. Otherwis Otherwise, e, testator testator shall shall designate designate two persons persons to read the the will and communica communicate te its contents contents to to him in some p racticable manner.

ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BE BLIND (Art. 808, CC) The will shall be read to the testator twice – 1. Once Once by one one of the the subs subscr cribi ibing ng witnes witnesses ses 2. Once by the notary notary public public before before whom whom the the will will is acknowle acknowledged dged

REQUISITES FOR A HOLOGRAPHIC WILL 1.

In writing (Art. 804, CC)

2.

In a language or dialect known to the testator (Art. 804, CC)

3.

Entirely written, dated, and signed by the hand of the testator himself  (Art. 810, CC)

AMENDING A WILL 1.

Notarial – only through a codicil

2.

Holographic – a. Disposition Dispositions s may be added below below the signature, signature, provided provided that said dispositions dispositions are also dated and signed, and everything is written by the hand of the testator himself  b. Certain Certain dispositions dispositions or additional additional matter matter may be suppresse suppressed d or inserted inserted provided provided that such is signed by the testator and written by the hand of the testator himself  c. Through Through a codicil codicil which which may either either be notarial notarial or hologra holographic phic

EFFECT OF INSERTION WRITTEN BY ANOTHER PERSON ON THE VALIDITY OF A HOLOGRAPHIC HOLOGRAPHIC WILL WRITTEN BY THE TESTATOR  When Made Afte Afterr the the exec execut utio ion n of the the will will,, with withou outt the the consent of the testator After the execution of the will, with the consent of the testator After the execution execution of the will, validated validated by the testator by his signature

Effect Insertion is considered not written. The validity of the will cannot be defeated by the malice or caprice of a third person. Will is valid. Insertion is void. Insertion becomes part of the will. Enti Entire re will will beco become mes s void void beca becaus use e it did did not not comply comply with with the the requir requireme ement nt that that it must must be

Cont Contem empor poran aneo eous us to the the exe execu cuti tion on of the the wil willl

wholly written by the testator. Will Will is void void becaus because e it is not writt written en enti entire rely ly by the testator.

RULES IN CASE OF SUBSEQUENT DISPOSITIONS Subsequent Disposition Signed Not dated Last disposition is signed and dated Not signed Dated Signed Not dated

Effect Valid

Void Void but it does not affect the validity of the other dispositions or the will itself 

QUALIFICATIONS QUALIFICATIONS OF WITNESSES TO A NOTARIAL WILL (Arts. 820 – 821, CC) 1. 2. 3. 4. 5. 6.

Of so sound mi mind Of the the age age of of 18 year years s or more more Not Not bli blind nd,, deaf deaf or dumb dumb Able Able to read read and and wri write te Domi Domici cile led d in the the Phil Philip ippi pine nes s Have not not been convict convicted ed of falsific falsification ation of a documen document, t, perjury perjury or false false testimony testimony

INTERESTED WITNESS (Art. 823, CC) -

A wit witnes ness who who att attests ests to to the the exec execut utio ion n of a wil will whic which h give gives s a lega legac cy or devi devis se to that that witness, or his spouse, or his parent or his child. *Effect: The devise or legacy, insofar as it concerns that witness or his spouse or his parent or his child, shall be void unless there are are three other witnesses witnesses to such will. His competence competence as a witness shall subsist.

GOVERNING LAW As to time

Governing Law Law in force at the time the will is made Law of decedent’s nationality at the time of his death (Art. 16, CC)

Formal Validity Intrinsic Validity

As to Place Testator Filipino

Alien

Place of Execution of the Will Philippines (Art. 16, CC) Outsid Outside e of the Philip Philippin pines es (Art. 815, CC) Philippines (Art. 817, CC)

Outside the Philippines (Art. 816, CC)

Governing Law Philippine Law 1. Law of of the countr country y in which which it is execut executed; ed; or or 2. Phil hilippi ppine Law 1. Phil Philip ippi pine ne Law; Law; or 2. Law of of the Count Country ry of which which tes testat tator or is a citiz citizen en or subject. 1. Law of of the plac place e where where the the will will is execu executed ted;; or 2. Law of the the place where the testator testator resides; resides; or 3. Law of the testat testator’ or’s s coun country try;; or 4. Phil hilippi ppine Law

ASPECTS OF THE WILL GOVERNED BY THE NATIONAL LAW OF THE DECEDENT (Arts. 16 and 1039, CC) 1. 2. 3. 4.

Orde Orderr of of suc succe cess ssio ion n Capa Capaci city ty to to suc succe ceed ed Amount Amount of succes successio sional nal right rights s Intrinsic Intrinsic validity validity of testamen testamentary tary provisions provisions

JOINT WILL -

A single testamentary instrument which co contains the wills of two or or more ore pe persons ons jointly executed by them eith either er for for the their ir reci recipr proc ocal al bene benefi fitt or or for for the the ben benef efit it of a thi third rd pers person on

MUTUAL WILLS -

Exec Execut uted ed purs pursua uant nt to an agre agreem emen entt betw betwee een n two two or or more more pers person ons s to disp dispos ose e of their heir prop proper erty ty in a par partic ticular ular mann manner er each each in cons consid ider erat atio ion n of the the oth other er sepa separa rate te wil wills ls of of two two per perso sons ns whic which h are are rec recip ipro roca call in thei theirr provisions

RECIPROCAL WILLS -

Testators ors name each oth other as beneficiaries under similar testamentary plans

Note: A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal and which shows on its face that the devises are made in consideration of the other. Such is prohibited under  Art. 819, CC . Prohibition is applicable only to joint wills wills executed executed by Filipinos.

D. CODICIL AND AND INCORPORATION INCORPORATION BY REFERENCE REFERENCE DEFINITION OF A CODICIL (Arts. 825 – 826, CC) -

It is a supplement or addition to a will made after the execution of a will and an annexed to to be ta taken as a pa part of the wi will by whi which ch any any dis dispos posit itio ion n mad made e in in the the orig origin inal al will will is expl explai aine ned, d, adde added d to, to, or alte altere red d It is executed as in the case of a will.

REQUISITES FOR INCORPORATION BY REFERENCE (Art. 827, CC) 1. 2. 3. 4.

The document document or paper paper referred referred to in the will will must be in existence existence at at the time of the execut execution ion of the will. The will must must clearly clearly describe describe and and identify identify the same, same, stating stating among other other things things the number number of  pages thereof. It must be identif identified ied by clear clear and satis satisfac factor tory y proof as the document document or paper refer referred red to therein. And It must be be signed signed by the testator testator and and the witnes witnesses ses on each each and every every page, page, except except in case case of  voluminous books of account or inventories.

E. REVOCATION OF WILLS AND AND TESTAMENTARY DISPOSITIONS MODES OF REVOKING A WILL (Art. 830, CC) 1. 2. 3.

By imp impli lica cati tion on of of law law By the executi execution on of a will, codici codicill or other writi writing ng executed executed as provided provided in in the case case of wills wills By burning, burning, tearing, tearing, cancelin canceling, g, or obliterating obliterating the the will with the intenti intention on of revoking revoking it, by the testator himself, or by some other person in his presence, and by his express direction

*Note: It must be done any time before the death of the testator. The right of revocation cannot be waived or restricted. (Art. 828, CC)

LAWS WHICH GOVERN REVOCATION (Art. 829, CC) PLACE OF REVOCATION In the Philippines Outsi utside de the Phi Philippi ippine nes s

TESTATOR’S DOMICILE Philippines or in some other country Phil hilippi ppines nes Foreign country

GOVERNING LAW Philippine Law Phi Philipp lippiine Law Law 1. Law of the place where the will was made; or 2. Law Law of the the plac place e in whic which h the testator had his domicile at the time of revocation.

DOCTRINE OF DEPENDENT RELATIVE REVOCATION -

A revo revoca cati tion on sub subje ject ct to to a cond condit itio ion n does does not not rev revok oke e a will will unl unles ess s and and unti untill the the cond condit itio ion n occurs. Thus, where a testator “revokes” a will with the proven intention that he would execute another will, his failure to validly make a latter will would permit the allowance of  the earlier will.

-

Where the act of destruction is connected with the making of another will so as to fairly raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon 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 remain in full force. (Molo vs. Molo, 90 Phil. 37)

F. ALLOWANCE AND DISALLOWANCE DISALLOWANCE OF WILLS PROBATE -

It is a spec specia iall proc procee eedi ding ng by by whic which h the the vali validi dity ty of of a wil willl may may be be est estab abli lish shed ed..

MATTERS TO BE PROVED IN A PROBATE 1. Whethe Whetherr the the instru instrumen mentt whic which h is is offe offered red for probat probate e is is the the last last will will and testa testamen mentt of of the the decedent 2. Whethe Whetherr the the will will has has been been exec execute uted d in in acco accorda rdance nce with with the the formal formaliti ities es prescr prescribe ibed d by by law law 3. Whethe Whetherr the the testat testator or had testam testament entary ary capaci capacity ty at the time time of the the exec executi ution on of the will will

GROUNDS FOR DISALLOWANCE OF A WILL (Art. 839, CC) – FIFU SM 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. *This list is exclusive.

REVOCATION VS. DISALLOWANCE REVOCATION Voluntary act of the testator With or without cause May be partial or total

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

G. INSTITUTION OF HEIRS DEFINITION OF INSTITUTION OF HEIRS (Art. 840, CC) -

It is an act act by virt virtue ue of whic which h a tes testato tatorr desi design gnat ates es in his his will will the person/ on/s who are to succeed him in his pro proper perty and transmissible right ghts and obligations.

REQUISITES FOR A VALID INSTITUTION OF HEIR  1. 2. 3. 4. 5. 6.

Design Designati ation on in will will of pers person/s on/s to to succee succeed d Will specif specificall ically y assigns assigns to such person person an inchoa inchoate te share share in the estate estate The pers person on so name named d has capa capacit city y to succe succeed ed The The will will is is form formal ally ly val valid id No vic vice e of cons consen entt is pre prese sent nt No preter preterition ition results results from the effect effect of such will

THREE PRINCIPLES IN THE INSTITUTION OF HEIRS 1.

Equality – heirs heirs who are instituted instituted without without designatio designation n of shares shall inherit inherit in equal parts. (Art. 846, CC)

2.

Individuality – heirs collectively instituted are deemed individually named unless a contrary intent is proven. (Art. 847, CC)

3.

Simultaneity – when the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously simultaneously and not successively. (Art. 849, CC)i 

INSTITUTION BASED ON A FALSE CAUSE (Art. 850, CC)

-

General General Rule: The stateme statement nt of a false false cause cause for the the instit instituti ution on of an heir heir shall shall be considered as not written.

-

Exception: If it appears appears from from the will that the testat testator or would would not have made such such institution if he had known the falsity of such cause. In this case, the institution shall be annulled.

RULES REGARDING A PERSON’S RIGHT TO DISPOSE OF HIS ESTATE (Art. 842, CC) 1.

If testator has no compulsory heirs a. He can can give his estat estate e to any any person person having having capaci capacity ty to succeed. succeed. b. He must must respe respect ct restr restricti iction on imposed imposed by special special laws. laws.

2.

If testator has compulsory heirs a. He can can give give the disposable disposable portion portion to to strange strangers. rs. b. Legitimes Legitimes of compuls compulsory ory heirs must be respe respected. cted.

CONCEPT OF PRETERITION (Art. 854, CC) 1.

There must be a total omission of one, some or all of the heir/s in the will.

2.

The omission must be that of a compulsory heir. heir.

3.

The compulsory heir omitted must be of the direct line. line.

4.

The omitted compulsory heir must be living at the time of the testator’s death or must at least have been conceived before the testator’s death.

EFFECTS OF PRETERITION PRETERITION (Art. 854, CC) 1. 2. 3.

The inst institu itutio tion n of the the heir heir is is annull annulled. ed. Devises Devises and legacie legacies s shall shall remain remain valid as long long as they they are not inoffic inofficious. ious. If the omitted omitted compulsor compulsory y heir should should die before the the testator, testator, the instit institution ution shall shall be effectual effectual,, without prejudice to the right of representation.

PRETERITION VS. DISINHERITANCE PRETERITION Tacit deprivation of legitime Presumed to be involuntary as it is an omission to ment mentio ion n an heir heir or thou though gh ment mentio ione ned, d, is not not instituted as an heir. But it may also be voluntary. Pres Presum umed ed by law law to be a mere mere over oversi sigh ghtt or mistake The omitted compulsory heir gets his legitime plus his share in the free portion not disposed of by way of legacies and devises.

DISINHERITANCE Express deprivation of legitime Always voluntary

Legal cause is present Even a compulsory heir may be totally excluded. If  disinheritance is not lawfully made, the compulsory heir is restored to his legitime.

EFFECTS OF PREDECEASE, INCAPACITY, REPUDIATION HEIR Voluntary

PREDECEASE No right transmitted to heirs of the voluntary heir.

Compul Compulsor sory y

Right Right to to the the legit legitime ime and not to the free portion transmitted to the the repr repres esen enta tati tive ves s of the the compulsory heir.

the

INCAPACITY No right transmitted to the heirs of the voluntary heir.

Comp Compul ulso sory ry heir heir may may be repres represent ented ed but only only with with respect to his legitime.

REPUDIATION Voluntary heir who repudiated cannot transmit transmit any right right to his own heirs. Comp Compul ulso sory ry heir heir who who repudiated cannot transmit transmit any right right to his own heirs.

KINDS OF INSTITUTIONS 1.

Simple or Pure – the rights to the succession are transmitted from the moment of the death of  the decedent. (Art. 777, CC)

2.

Conditional – may be potestative, causal or mixed. (See Arts. 871 – 884) *Disposicion Captatoria – disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person. This is void. (Art. 875, CC)

3.

With a Term – designation of the day or time when the effects of the institution of an heir shall commence or cease. (Art. 885, CC)

4.

Modal – institution where the testator states the following: (Art. 882, CC) a. the object object of the instit instituti ution; on; or b. the purpose purpose of of the applic application ation of of the propert property y left by the testat testator; or; or c. the char charge ge impos imposed ed by the the creato creatorr upon upon the heir heir.. *Doctrine *Doctrine of Constructiv Constructive e Compliance Compliance – When without the fault of the heir, the modal institution cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. (Art. 883, CC)

H. SUBSTITUTION OF HEIRS DEFINITION OF SUBSITUTION (Art. 857, CC) -

It is th the appointment of another heir so tha thatt he he may may ent enter er into into the the inhe inheri rita tanc nce e in in def defau ault lt of the the heir heir orig origin inal ally ly ins insti titu tute ted. d.

CLASSES OF SUBSITITUTION 1.

2.

Vulgar or Simple – the testator may designate one or more person/s to substitute the heir/s instituted in case such heir/s should: (Art. 859, CC)

a.

die before him (predecease)

 b.

should not wish to accept the inheritance (renounce)

c.

should be incapacitated to accept the inheritance (incapacitated)

Brief or Compendious (Art. 860, CC)

a.

Brief Brief - two or more persons designated by the testator to substitute for only one heir.

 b.

Compendious – One person is designated to take the place of two or more heirs.

3.

Reciprocal – If the heirs instituted in unequal shares should be reciprocally substituted, 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. If there are more than one substitute, they shall have the same share in the substitution as in the institution. (Art. 861, CC)

4.

Fideicommissary – if the testator institutes an heir with an obligation to preserve and to deliver to another the property so inherited. The heir instituted to such condition is called the

first heir or the fiduciary heir, heir, the one to receive the property is the fideicommissary or the second heir. (Art. 863, CC)

REQUISITES FOR A FIDEICOMMISSAR FIDEICOMMISSARY Y SUBSTITUTION (Arts. 863 – 865, CC) 1. 2. 3. 4. 5.

A fiduciary fiduciary or first first heir instit instituted uted entrus entrusted ted with the the obligation obligation to preserve preserve and to to transmit transmit to a fideicommissary substitute or second heir the whole or part of the inheritance. The substit substitution ution must must not go beyond beyond one degree degree from from the heir heir original originally ly institute instituted. d. The fiduciar fiduciary y heir and the fideic fideicommis ommissary sary are living living at the time time of the death death of the testator testator.. The fidei fideicommi commissar ssary y substitut substitution ion must must be be express expressly ly made. made. The fideicom fideicommiss missary ary substitu substitution tion is imposed imposed on the free free portion portion of the estate estate and and never on the legitime.

I. LEGITIMES DEFINITION OF LEGITIME (Art. 886, CC) -

It is that that part part of the the tes testa tato tor’ r’s s pro prope pert rty y whi which ch he cann cannot ot disp dispos ose e of  of  beca becaus use e the the law law has has reser eserve ved d it it for for his his com compu puls lsor ory y hei heirrs

CLASSES OF COMPULSORY HEIRS (Art. 887, CC) 1.

Primary – those who have precedence over and exclude other compulsory heirs a. Legitimat Legitimate e children children and legitimate legitimate descendan descendants ts with respect respect to their their legitimate legitimate parents parents and ascendants

2.

Secondary – those who succeed only in the absence of the primary compulsory heirs a. Legitimat Legitimate e parents parents and legitimat legitimate e ascendants ascendants with with respect respect to their legiti legitimate mate children children and descendants b. Illegitim Illegitimate ate parent parents s with respec respectt to their their illegit illegitimat imate e children children

3.

Concurring – those who succeed together with the primary or the secondary compulsory heirs a. Wido Widow w or wid widow ower er (le (legi giti tima mate te)) b. Illegitim Illegitimate ate children children and illegitim illegitimate ate descendan descendants ts

COMPULSORY HEIRS If the test estator ator is a LE LEGITI GITIMA MATE TE CH CHIL ILD D 1. Legitimate children and descendan dants 2. In defa defaul ultt of no. no. 1, legi legiti tima mate te pare parent nts s and and ascendants 3. Su S urviving spouse 4. Illegitimate children and descendants

If the test testa ator tor is is an an ILL ILLEG EGIT ITIM IMAT ATE E CHI CHILD LD 1. Legit gitimate childre dren and descendants 2. Illegitimate children and descendants 3. In default of nos. 1-2, illegitimate parents only 4. Surviving spouse

RULES 1.

Direct Descending Line

a. Rule of preference between lines - Those in the direct descending line shall exclude those in the direct ascending and collateral lines, and those in the direct ascending line shall, in turn, exclude those in the collateral line.  b.

Rule of proximity – the relative nearest in d egree excludes the farther one

Right of repres represent entati ation on ad infini case of pred predec ecea ease se,, inca incapa paci city ty or c. Right infinitum tum in case disinheritance. For decedents who are legitimate children, only the legitimate descendants can repres represent ent.. For decede decedents nts who are illegi illegitim timate ate childr children, en, both both the legit legitima imate te and illegitimate descendants can represent.

2.

3.

d. If all the legitimate children repudiate their legitime, the next generation of legitimate descendants succeed in their own right. Direct Ascending Line a. Rule of division by lines  b. Rule of equal division – the relatives who are in the same degree shall inherit in equal shares Non-impairment of legitime

SUMMARY OF LEGITIMES OF COMPULSORY HEIRS SURVIVING

RELATIVES

LEGITIMATE CHILDREN & 

SURVIVING

ILLEGITIMATE

SPOUSE

CHILDREN

DESCENDANTS

Legitimate children alone 1 legitimate child Surviving spouse Legitimate children Surviving spouse Legitimate children

½ (divided by the no. of  children) ½ ½ (divided by no. of  children) ½

LEGITIMATE PARENTS &  ASCENDANTS

¼ Same as the share of 1 legit child ½ of the

ILLEGITIMATE PARENTS

Illegitimate children 1 legitimate child Surviving spouse Illegitimate children 2 or more legitimate children Surviving spouse Illegitimate children Legitimate parents alone Legitimate parents Illegitimate children Legitimate parents Surviving spouse Legitimate parents Surviving spouse Illegitimate children Illegitimate children alone Illegitimate children Surviving spouse Surviving spouse alone

Illegitimate parents alone Illegitimate parents Surviving spouse Adopter Illegitimate child Surviving Spouse

½

¼ (preferred)

½ (divided by no. of  children)

Same as the share of 1 legit child

share of 1 legit child ½ of the share of 1 legit child ½ of the share of 1 legit child ½ ¼

½

¼ 1/8

1/3

½ ¼

½

½ (divided by no. of  children) 1/3 (divided by no. of  children)

½ or 1/3 if  marriage in articulo mortis ½ ¼ 1/3

¼ 1/3

1/3 (adopter)

STEPS IN DETERMINING THE LEGITIME OF COMPULSORY HEIRS 1.

Determine the gross value of the estate at the time of the death of the testator.

2.

Determine all debts and charges which are chargeable against the estate.

3.

Determine the net value of the estate by deducting all debts and charges from the gross value of the estate.

4.

Collate or add the value of all donations inter vivos to the net value of the estate.

5.

Determine the amount of the legitime from the total thus found.

6.

Impute the value of all donations inter vivos made to compulsory heirs against their legitime and of the value of all donations inter vivos made to strangers against the disposable free portion and restore it to the estate if the donation is inofficious.

7.

Distribute the residue of the estate in accordance with the will of the testator.

REMEDY OF COMPULSORY HEIR IN CASE OF IMPAIRMENT OF LEGITIME 1.

If the impairment is total, total, then there may be preterition if the compulsory heir omitted is either an ascendant ascendant or descendan descendant. t.   Art. would come come in to play, play, i.e., i.e., there there will will be an Art. 854, 854, CC  would annulment of the institution of heirs and a reduction of devises and legacies.

2.

If the impairment is partial, partial, then the compulsory heir is entitled to completion of legitime under  Art. 906, CC .

3.

If the impairment is through donation, donation, the remedy is collation.

CONCEPT OF RESERVA TRONCAL (Art. 891, CC) -

The as ascendant wh who in inherits fr from hi his de descendant any any pro prope pert rty y whi which ch the the lat latte terr may may have have acqu acquir ired ed by grat gratui uito tous us tile tile from anoth other as ascendant, or or a brother or or si sister, is obliged to reserve such property as he he may ha have acquired by by op operation of of la law for for th the ben benef efit it of rela relati tive ves s wit within hin th the thi third degr degre ee and and wh who be belong ong to to th the lin line e fr from whic which h sai said d pro prope perrty came ame.

REQUISITES FOR RESERVA TRONCAL (Chua vs. CFI, 78 SCRA 406 and Gonzales vs. CFI, 104 SCRA 161) 1.

that the property was acquired by a descendant (prepositus) from an ascendant or from a brother or sister (source) by gratuitous title

2.

that that the prepo preposit situs us died died witho without ut an iss issue ue

3.

that the property is inherited by another ascendant (reservista) by operation of law

4.

that there are relatives within the 3 rd degree (reservatarios) belonging to the line from which said property came (Source)

B

E F

A

C (Reservatario)

G (Reservista)

D

H (Prepositus)

J. DISINHERITANCE DEFINITION OF DISINHERITANCE (Art. 915, CC) -

It is the act by which the testator for just cause depr depriives ves a compu ompullsory sory heir eir of of his his right ght to to the the legi egitim time.

REQUISITES FOR A VALID DISINHERITANCE 1. 2. 3. 4. 5. 6. 7.

Heir Heir disinhe disinherit rited ed must must be designat designated ed by name or in such a manner manner as to leave leave no room for doubt as to who is intended to be disinherited. It must must be for for a caus cause e desig designat nated ed by law. law. It mus mustt be mad made e in a vali valid d will will.. It must must be made made expressl expressly, y, stating stating the the cause cause in the the will itsel itself. f. The cause cause must must be certain certain and true, true, and and must be proved proved by the inter intereste ested d heir if the the person person disinherited should deny it. It must must be unco uncond ndit itio iona nal. l. It mus must be be tot tota al.

SUMMARY OF CAUSES OF DISINHERITANCE

GROUNDS 1

2

3

4 5

6 7 8

FOR  DISINHERITANCE

Guil Guilty ty/c /con onvi vict cted ed of att attem empt pt against life of  testator/spouse/ ascendant/descendant Accu Accuse sed d tes testa tato tor/ r/de dece cede dent nt of crime punishable by imprisonment of 6 years or more, found groundless, false Caus Causes es tes testa tato tor/ r/de dece cede dent nt to to make will or change one by fraud, violence, intimidation, or undue influence Unju Unjust stif ifie ied d ref refus usal al to support testator Conv Convic icte ted d of adul adulte tery ry or or concubinage with spouse of  testator/decedent Malt Maltre reat atme ment nt of tes testa tato torr by by word and deed Lead Leadin ing g a dish dishon onor orab able le or or disgraceful life Conv Convic icti tion on of crim crime e whic which h carries penalty of civil

CHILDREN / DESCENDANTS (ART . 919, CC)

PARENTS / ASCENDANTS (ART . 920, CC)

Spouse (Art. 921, CC)

*

*

*

*

*

*

*

*

*

*

*

*

*

*

* * *

UNWORTHINESS (ART . 1032, CC) *

*

*

*

9

10 11

12 13

14

15

interdiction Aban Abando donm nmen entt of chil childr dren en or inducing children to live corrupt and immoral life or attempted against virtue Loss of parental authority Atte Attemp mptt by by one one pare parent nt against life of the other UNLESS there is reconciliation between parents Spou Spouse ses s giv given en caus cause e for for legal separation Fail Failur ure e to to rep repor ortt vio viole lent nt death of decedent within one month, unless authorities have already taken action Forc Force, e, viol violen ence ce,, intim intimid idat atio ion n or undue influence to prevent another from making a will or revoking one already made or who supplants or alters the latter’s will Fals Falsif ifie ies s or or for forge ges s a supposed will of the decedent

*

* *

*

*

*

*

*

*

REVOCATION OF DISINHERITANCE 1. 2. 3.

Reco Reconc ncil ilia iati tion on Subsequent Subsequent instituti institution on of of the the disinheri disinherited ted heir Nullity Nullity of the will which which contains contains the disinheri disinheritance tance

*Note: *Note: The moment the testator uses one of the acts of unworthiness as a cause for disinheritance, he thereby thereby submits submits it to the rules on disinheri disinheritanc tance. e. Thus, reconciliati reconciliation on renders renders the disinheritanc disinheritance e ineffective.

K. LEGACIES AND DEVISES PERSONS CHARGED WITH LEGACIES AND DEVISES 1. 2. 3. 4.

Comp Compul ulso sory ry hei heirr Volu Volun ntary tary heir eir Lega Legate tee e or or dev devis isee ee Estate

VALIDITY AND EFFECT OF LEGACY OR DEVISE STATUS OF PROPERTY GIVEN BY LEGACY/DEVISE 1. Belong Belonging ing to the testa testator tor at the time time of the execution of the will until his death 2. Belonging Belonging to the testat testator or at the time time of the execution of the will but alienated in favor of a 3 rd person 3. Belonging Belonging to the testat testator or at the time time of the execution of the will but alienated in favor of the legatee or devisee gratuitously 4. Belong Belonging ing to the testa testator tor at the time time of the execution of the will but alienated in favor of the legatee/devisee onerously 5. Not belonging belonging to the testat testator or at the time time the will is executed but he has ordered that the thing be acqu acquir ired ed in orde orderr that that it be give given n to the the legatee/devisee. 6. Not belonging to the testator at the time the will is executed and the testator erroneously believed that the thing pertained to him. 7. Not belonging belonging to the testat testator or at the time time the will is executed but afterwards it becomes his by whatever title. 8. Already belonged to the legatee/devisee legatee/devisee at the time time of the the exec execut utio ion n of the the will will even even thoug though h

EFFECT ON THE LEGACY/DEVISE Effective Revoked

No revocation. There is a clear intention to comply with the legacy/devise. Legatee/devisee can demand reimbursement from the heirs or the estate. Effective

Void

Effective

Ineffective

another person may have interest therein 9. Already belonged to the legatee/devisee legatee/devisee at the time of the execution of the will even though it may have been subsequently alienated by him. 10. 10. Test Testat ator or had knowl knowled edge ge that that the thing thing bequea bequeathe thed d belong belonged ed to a third third person person and the legatee/devisee acquired the property gratuitously after the execution of the will. 11. 11. Test Testat ator or had knowl knowled edge ge that that the thing thing bequea bequeathe thed d belong belonged ed to a third third person person and the legatee/devisee acquired the property by onerous title.

Ineffective

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

Legatee/devisee can demand reimbursement from the heir or estate.

ORDER OF PAYMENT IN CASE THE ESTATE IS INSUFFICIENT TO COVER ALL LEGACIES AND DEVISES – ART. 911, CC VS. ART. 950, CC ART. 911 Order of Preference (LIPO)

ART. 950 Order of Preference (RPSESO)

1.

Legitime of compulsory heirs

1.

R emuneratory emuneratory legacy/devise

2.

Donations Inter vivos

2.

Preferential legacy/devise

3.

Preferential legacies or devises

3.

Legacy for Support

4.

All Other legacies or devises devises pro  pro rata

4.

Legacy for Education

5.

Legacy Legacy/dev /devis ise e of  Specific, pecific, determina determinate te thing which forms a part of the estate

6.

All Others pro thers pro rata Application: When When ther there e are no com compu puls lsor ory y heirs heirs and and the the enti entire re esta estate te is dist distri ribu bute ted d by the the testator as legacies or devises; or

Application:

1.

When When the the redu reduct ctio ion n is nece necess ssar ary y to preserve the legitime of compulsory heirs from from impa impair irme ment nt whet whethe herr ther there e are are donations inter vivos or not; or

2.

1.

2.

When there are compulsory heirs but their legitime has already been provided for by the testator testator and there there are no donati donations ons inter vivos. vivos. *Art *Art.. 950 950 gove govern rns s when when the the ques questi tion on of  reduction reduction is exclusivel exclusively y among legatees and devisees themselves.

When, When, althou although, gh, the legiti legitime me has been been preserved preserved by the testator himself there are donations inter vivos. vivos . *Art. *Art. 911 governs governs when when there there is a confli conflict ct between between compulsory compulsory heirs and the devisees devisees and legatees. *Note: In case of reduction, the inverse order of payment should be followed.

GROUNDS FOR REVOCATION OF LEGACIES AND DEVISES (Art. 957, CC) 1.

Testator Testator transf transforms orms the thing thing bequeath bequeathed ed in such a manner manner that that it does not retain retain either either the the form or the denomination it had.

2.

Testator by any title or for any cause alienates the thing bequeathed, or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part alienated. Except: Except: When the thing should again belong to the testator after alienation by virtue of the exercise of the right of repurchase. 3. Thing bequeath bequeathed ed is totally totally lost during during the lifetime lifetime of the testat testator, or, or after after his death without without the the heirs’ fault. 4. Other Other causes: causes: nullit nullity y of the will; will; non-co non-compl mplian iance ce with with suspen suspensiv sive e condit condition ions s affect affecting ing the bequests; sale of the thing to pay the debts o f the deceased during the settlement of his estate. *Note: List is not exclusive.

II. LEGAL OR INTESTATE SUCCESSION CAUSES OF VACANCY IN SUCCESSION 1.

Disinheritance – the testator creates it himself 

2.

Repudiation – the heir does something

3.

Incapacity or Predecease – something happens to the heir

HOW VACANCIES ARE FILLED 1.

Substitution (Art. 857, CC)

2.

Representation (Art. 970, CC)

3. 4.

Accretion (Art. 1015, CC) Inte Intest stat ate e Succ Succes essi sion on

1.

If a per perso son n dies dies wit witho hout ut a wil willl

CAUSES FOR LEGAL OR INTESTATE SUCCESSION (Art. 960, CC)

2. 3. 4. 5. 6. 7. 8. 9.

If a person person dies dies with with a void void will will If a person person dies dies with a will will which which has subseq subsequentl uently y lost its its validity validity When When the the will will does does not not instit institute ute an heir heir When the the will does not not dispose dispose of all the property property belonging belonging to the testa testator. tor. Legal Legal successi succession on shall take place only with respect to the property which the testator has not disposed. If the suspens suspensive ive condit condition ion attach attached ed to the institu institutio tion n of the heir heir does not happen happen or is not fulfilled If the the heir heir dies dies befor before e the the testa testator tor If the heir heir repudi repudiate ates s the inheri inheritan tance, ce, there there being being no substitu substitutio tion, n, and no right of acc accret retion ion takes place When the the heir institu instituted ted is incapable incapable of succeedi succeeding, ng, except except in cases cases provided provided in the Civil Civil Code

FUNDAMENTAL UNDERLYING PRINCIPLES IN LEGAL OR INTESTATE SUCCESSION 1.

Rule of Preference Between Lines – Those in the direct descending line shall exclude those in the direct ascending and collateral lines, and those in the direct ascending line shall, in turn, exclude those in the collateral line.

2.

Rule of Proximity – the relative nearest in degree excludes the farther one. (Art. 962, CC)

3.

Rule of Equal Division – the relatives who are in the same degree shall inherit in equal shares. (Articles 987 and 1006, CC) Exceptions: a. Division in the ascending ascending line (between paternal paternal and maternal grandparents) b. Division among brothers brothers and sisters, sisters, some of whom are of the full and others of half-blood c. Division Division in cases where where the right right of represen representati tation on takes place place

4.

Rule Rule of Barrier Barrier betwee between n the legiti legitimat mate e family family and the illegi illegitim timate ate family family – the the illegitimate family cannot inherit by intestate succession from the legitimate family and viceversa. (Art. 992, CC)

5.

Rule Rule of Double Double Share Share for full full blood blood collat collatera erals ls – when full and half-blood half-blood brothers brothers or sisters, nephews or nieces, survive, the full blood shall take a portion in the inheritance double that of the half-blood. (Articles 895 and 983, CC)

RELATIONSHIP (Articles 963 – 969, CC) 1. 2. 3. 4. 5. 6. 7. 8. 9.

Number Number of gener generati ations ons deter determin mines es proxim proximity ity.. Each Each gener generati ation on form forms s a degre degree. e. A seri series es of of degre degrees es form forms s a line line.. A line line may may either either be direc directt or coll collate ateral ral.. A direct direct line line is that constit constitute uted d by the the series series of degrees degrees among ascend ascendant ants s and descend descendant ants s (ascending and descending). A coll collat ater eral al line line is that that consti constitu tute ted d by the the seri series es of degr degree ees s amon among g pers persons ons who are are not not ascendants or descendants, but who come from a common ancestor. Full Full blood blood – same same fathe fatherr and and mothe mother. r. Half-blood Half-blood – only only one of either either parent parent is the same. same. In adoption, adoption, the legal legal filiation filiation is personal personal and and exists only only between between the adopter adopter and the the adopted. adopted. The adopted is deemed a legitimate child of the adopter, but still remains as an intestate heir of  his natural parents and other bloo d relatives.

DEFINITION OF THE RIGHT OF REPRESENTATION (Art. 970, CC) -

It is a right created by fiction of law by vir virtu tue e of whi which the the re repres presen enttative tive is is rai raised to to the the plac place e and and degr degree ee of of the the per person represented and and acqu acquir ires es the the rig right hts s whic which h the the latt latter er wou would ld hav have e if he he were were liv livin ing g or if if he wou would ld hav have e inherited.

-

*Notes:

-

In the direct line, representation takes place ad infinitum in the direct descending line, never in the ascending. In the the coll collat ater eral al lin line, e, rep repre rese sent ntat atio ion n tak takes es pla place ce onl only y in favor favor of the the chi child ldre ren n of the the brot brothe hers rs or sisters (i.e., nephews and nieces) whether of the full or half-blood and only if they concur with at least one uncle or aunt.

RIGHT OF REPRESENTATION IN TESTAMENTARY SUCCESSION 1. 2. 3. 4.

When When a compul compulsor sory y heir heir in the direct direct descen descendin ding g line line had predec predeceas eased ed the testat testator or and was survived by his children or descendants. When a compulso compulsory ry heir in in the direct direct descendin descending g line is exclude excluded d from the inheri inheritance tance due due to incapacity or unworthiness and he has children or descendants. When When a compul compulsor sory y heir heir in the direct direct descendi descending ng line is disinhe disinheri rited ted and he has childre children n or descendants; representation covers only the legitime. A legatee legatee or devisee devisee who died afther afther the death death of the testator testator may may be represent represented ed by his heirs. heirs.

RIGHT OF REPRESENTATION IN INTESTATE SUCCESSION

1. 2. 3. 4. 5.

When a legal legal heir in the direct direct descendin descending g line had predeceas predeceased ed the decedent decedent and was survived survived by his children or descendants. When When a lega legall heir heir in the the dire direct ct desce descend ndin ing g line line is excl exclude uded d from from the the inhe inheri rita tanc nce e due due to incapacity or unworthiness and he has children or descendants. When brother brothers s or sisters sisters had predeceas predeceased ed the decedent decedent and and they had children children or descendan descendants. ts. When illegiti illegitimate mate children children represen representt their deceased deceased illegitim illegitimate ate parents parents in the estate of their their grandparents. When nephews nephews and nieces nieces inherit inherit togethe togetherr with their their uncles and and aunts in represen representation tation of their their deceased parents who are brothers or sisters of said uncles and aunts.

ORDER OF LEGAL OR INTESTATE SUCCESSION Decedent is a Legitimate Child 1 2 3

4 5

6 7

DECEDENT

IS AN

ILLEGITIMATE CHILD

Legi Legiti tima mate te chil child d and and Legitimate descendants Legi Legiti tima mate te pare parent nts s and and Legitimate ascendants Ille Illegi giti tima mate te chil childr dren en and and Illegitimate descendants

Legitimate child and Legitimate descendants Illegitimate children and Illegitimate descendants Illegitimate parents

Surviving spouse Legi Legiti tima mate te sibl siblin ings gs,, Nephews, Nieces Legiti Legitimat mate e collat collatera erall relat relative ives s within the 5 th degree State

Surviving spouse Illegitimate siblings, Nephews, Nieces State

DECEDENT

IS AN

ADOPTED CHILD

Legitimate child and Legitimate descendants Illegitimate children and Illegitimate descendants Legitimate or Illegitimate parents and Legitimate ascendants, Adoptive parents Surviving spouse Siblings, Nephews, Nieces State

CONCURRENCE IN LEGAL OR INTESTATE SUCCESSION Intestate Heir Legitimate children and Legitimate descendants

EXCLUDES

EXCLUDED BY

CONCURS WITH

Ascendants, Collaterals and State Illegitimate parents, Collaterals and State Collaterals and State Collaterals an and State Collaterals ot other th than siblings, nephews and nieces

No one

Surviving spouse Illegitimate children

No one

Surviving spouse Legitimate children and Legitimate parents Illegitimate ch children an and Surviving spouse Surviving spouse

Siblings, Nephews Nieces

All other collaterals and State

Other collaterals within 5th degree

Collateral more remote in degree and State

S t at e

No one

Legitimate children, Illegitimate children, Legitimate parents and Illegitimate parents Legitimate children Illegitimate children Legitimate parents Illegitimate parents and Surviving spouse Everyone

Illegitimate children and Descendants Legitimate parents and Legitimate ascendants Illegitimate pa parents Surviving sp spouse

Legitimate ch children Legitimate children and Illegitimate children No one

Legitimate children Illegitimate children Legitimate parents Illegitimate parents Siblings Nephews Nieces Surviving spouse

Collaterals in the same degree

No one

A MORE DETAILED SUMMARY OF INTESTATE SHARES 1 LEGITIMATE CHILDREN AND LEGITIMATE DESCENDANTS ALONE

Intestate Heir Legitimate children TOTAL

SHARE AS LEGITIME ½ ½

SHARE

AS

FREE DISPOSAL ½ ½

TOTAL INTESTATE SHARE 1 1

2 ONE LEGITIMATE CHILD AND SURVIVING SPOUSE Intestate Heir Legitimate child Surviving spouse TOTAL

SHARE AS LEGITIME ½ ¼ ¾

SHARE

AS

FREE DISPOSAL

TOTAL INTESTATE SHARE ½ ½ 1

¼ ¼

3 LEGITIMATE CHILDREN AND SURVIVING SPOUSE Intestate Heir Legitimate children

SHARE AS LEGITIME

SHARE

Same as share of 1 legitimate child

TOTAL

Varies on no. of children

FREE DISPOSAL

TOTAL INTESTATE SHARE

Remaining portion of estate after paying legitimes

½

Surviving spouse

AS

Legitimes to be divided equally between total no. of children plus the surviving spouse Varies on no. of children

Whole estate divided equally between total number of children plus the surviving spouse No. of children plus the surviving spouse (see above) 1

4 LEGITIMATE CHILDREN AND ILLEGITIMATE CHILDREN Intestate Heir Legitimate children

SHARE AS LEGITIME ½

SHARE AS FREE DISPOSAL Remaining portion of   estate after paying legitimes

Illegitimate children

½ share of 1 legitimate child

Legitimes to be divided by the ratio of 2 for each legitimate child, 1 for each illegitimate child Varies on no. of  children

TOTAL

Varies on no. of   children

TOTAL INTESTATE SHARE Whole estate divided by the ratio of 2:1 for each legitimate child as compared to the illegitimate child 1 for each illegitimate child provided that legitimes wouldn’t be impaired

1

5 ONE LEGITIMATE CHILD, ILLEGITIMATE CHILD, AND SURVIVING SPOUSE Intestate Heir Legitimate child

SHARE AS LEGITIME ½

Ill Illegit egitim ima ate chi chilld

½ sha share re of 1 leg legiitima timate te child or ¼ ¼

Surviving spouse TOTAL

Varies depending on no. of illegitimate children

SHARE AS FREE DISPOSAL Remaining portion of   estate after paying legitimes to be divided by the ratio of 2:1 for each legitimate child and each illegitimate child, respectively 1 for each illegitimate child (see above) Same share as a legitimate child Varies depending on no. of illegitimate children

TOTAL INTESTATE SHARE Whole estate divided by the ratio of 2 for each legitimate child

1 for each illegitimate child Legitimes wouldn’t be impaired 1

6 LEGITIMATE CHILDREN, ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE Intestate Heir Legitimate children

SHARE AS LEGITIME ½

SHARE AS FREE DISPOSAL Remaining portion of   estate, if any after paying legitimes to be

TOTAL INTESTATE SHARE Whole estate divided by the ratio of 2:1 for each legitimate child and

Illegitimate children Surviving sp spouse

½ share of each legit child Same share as as on one legitimate child

TOTAL

Varies depending on no. of illegitimate children

divided by the ratio of  2 for each legitimate child 1 for each illegitimate child (see above) Same share as a legitimate child, provided legitimes are not impaired Varies depending on no. of illegitimate children

illegitimate child respectively 1 for each illegitimate child (see above) Same share as a legitimate child, provided legitimes are not impaired 1

7 LEGITIMATE PARENTS ALONE Intestate Heir Legitimate parents TOTAL

SHARE AS LEGITIME ½ ½

SHARE

AS

FREE DISPOSAL ½ ½

TOTAL INTESTATE SHARE 1 1

8 LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN Intestate Heir Legitimate parents Illegitimate children TOTAL

SHARE AS LEGITIME ½ ¼

SHARE

AS

¾

FREE DISPOSAL ¼

TOTAL INTESTATE SHARE ½ ½

¼

1

9 LEGITIMATE PARENTS AND SURVIVING SPOUSE Intestate Heir Legitimate parents Surviving spouse TOTAL

SHARE AS LEGITIME ½ ¼ ¾

SHARE

AS

FREE DISPOSAL ¼ ¼

TOTAL INTESTATE SHARE ½ ½ 1

10 LEGITIMATE PARENTS, SURVIVING SPOUSE AND ILLEGITIMATE ILLEGITIMATE CHILDREN Intestate Heir Legitimate parents Surviving spouse Illegitimate children TOTAL

SHARE AS LEGITIME ½ 1/8 ¼

SHARE

AS

FREE DISPOSAL 1/8

7/8

TOTAL INTESTATE SHARE ½ ¼ ¼

1/8

1

11 ILLEGITIMATE CHILDREN ALONE Intestate Heir Illegitimate children alone TOTAL

SHARE AS LEGITIME ½

SHARE

AS

½

FREE DISPOSAL ½

TOTAL INTESTATE SHARE 1

½

1

12 ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE Intestate Heir Illegitimate children Surviving spouse TOTAL

SHARE AS LEGITIME 1/3 1/3 2/3

SHARE

AS

FREE DISPOSAL 1/6 1/6 1/3

13 SURVIVING SPOUSE

TOTAL INTESTATE SHARE ½ ½ 1

Intestate Heir Surviving spouse TOTAL

SHARE AS LEGITIME ½ or 1/3 ½ or 1/3

SHARE

FREE DISPOSAL ½ or 1/3 ½ or 1/3

AS

TOTAL INTESTATE SHARE 1 1

14 ILLEGITIMATE PARENTS ALONE Intestate Heir Illegitimate parents TOTAL

SHARE AS LEGITIME ½ ½

SHARE

AS

FREE DISPOSAL ½ ½

TOTAL INTESTATE SHARE 1 1

15 ILLEGITIMATE PARENTS AND SURVIVING SPOUSE Intestate Heir Illegitimate parents Surviving spouse TOTAL

SHARE AS LEGITIME ¼ ¼ ½

SHARE

AS

FREE DISPOSAL ¼ ¼ ½

TOTAL INTESTATE SHARE ½ ½ 1

16 SIBLINGS, NEPHEWS AND NIECES ALONE (SPECIAL KIND OF COLLATERAL RELATIVES) Intestate Heir Siblings, nephews, nieces TOTAL

SHARE AS LEGITIME ½

SHARE

AS

½

FREE DISPOSAL ½

TOTAL INTESTATE SHARE 1

½

1

17 SURVIVING SPOUSE, SIBLINGS, NEPHEWS AND NIECES Intestate Heir Surviving spouse Siblings, nephews, nieces TOTAL

SHARE AS LEGITIME ½

SHARE

½

AS

FREE DISPOSAL ½

TOTAL INTESTATE SHARE ½ ½

½

1

ORDER OF CONCURRENCE IN THE CASE OF AN ADOPTED CHILD (Art. 190, FC) SURVIVORS Legitimate children Illegitimate children Surviving spouse Legitimat Legitimate e parents parents or ascendants ascendants or illegitim illegitimate ate parents and

SHARE As in the case of ordinary intestate succession

Adopter Legitimat Legitimate e parents parents or ascendants ascendants or illegitim illegitimate ate parents Adopter

½ ½

Surviving Spouse Legitimate parents or ascendants Adopter

½ ½

Illegitimate children or descendants Legitimate parents or ascendants Adopter

½ 1/3

Surviving spouse

1/3

Illegitimate children or descendants Adopter alone Collateral blood relatives

1/3 Entire estate As in the case of ordinary intestate succession

½

III. PROVISIO PROVISIONS NS COMMON COMMON TO TESTAMENT TESTAMENTARY ARY AND INTESTATE INTESTATE SUCCESSIONS A. ACCRETION

DEFINITION OF ACCRETION (Art. 1015, CC) -

It is a right by virtue of which when when two two or or more more pers person ons s are are cal calle led d to to the the same same inhe inheri rita tanc nce, e, devi devise se or lega legacy cy the the part part assi assign gned ed to one one who who reno renoun unce ces s or or can canno nott rec recei eive ve his his sha share re or who who died died bef befor ore e the the testator is adde added d or inco incorp rpor orat ated ed to that that of his his co-he co-heir irs, s, co-d co-dev evis isee ees, s, or co-l co-leg egat atee ees. s.

-

EFFECT OF PREDECEASE, INCAPACITY, DISINHERITANCE OR REPUDIATION IN TESTAMENTARY AND INTESTATE SUCCESSION CAUSE OF VACANCY Predecease

TESTAMENTARY SUCCESSION LEGITIME FREE PORTION 1. Representation 1. Accretion 2. Intestate 2. Intestate Succession Succession

Incapacity

1. 2.

Representation Intestate Succession

Disinheritance

1. 2.

Representation Intestate Succession

Repudiation

Intestate Succession

1. 2.

INTESTATE SUCCESSION

Accretion Intestate Succession

1. 2.

Repr Repres esen enta tati tion on Intestate Succession

1. 2.

Repr Repres esen enta tati tion on Intestate Succession

-

Accretion

-

Accretion

B. CAPACITY TO SUCCEED REQUISITES FOR CAPACITY TO SUCCEED BY WILL OR BY INTESTACY (Art. 1024 – 1025, CC) 1. 2.

The heir, heir, legatee legatee or devisee devisee must be living living or in existence existence at the the moment the the succession succession opens; opens; and He must must not not be incapa incapacita citated ted or disqualifi disqualified ed by law law to succee succeed. d.

WHO ARE INCAPABLE OF SUCCEEDING 1.

BASED ON UNDUE INFLUENCE OR INTEREST (Art. 1027, CC) - PIGRAP

a. Priest who heard the last confession of the testator during his last illness, or the minister of  the gospel who extended spiritual aid to him during the same period;  b. Individuals, associations and corporations not permitted by law to inherit; c. Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; except if the guardian is his ascendant, descendant, brother, sister, or spouse; elatives of the priest or minister of the gospel within the fourth degree, the church, order, d. R elatives chapter, chapter, community, community, organizati organization, on, or institut institution ion to which such priest priest or minister minister may belong;

e. Attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; f. Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness. 2.

BASED ON MORALITY OR PUBLIC POLICY (Art. 739, CC) a. Thos Those e made made in favor favor of a pers person on with with whom the test testat ator or was was guil guilty ty of adulte adultery ry or concubinage at the time of the making of the will. b. Those made in considera consideration tion of a crime crime of which both the testator testator and the beneficiar beneficiary y have been found guilty. c. Those Those made in favor favor of a public public officer officer or his spouse spouse,, descen descendan dants ts and asc ascend endant ants, s, by reason of his public office.

3.

BASED ON ACTS OF UNWORTHINESS (Art. 1032, CC) – See table under disinheritance

PARDON OF ACTS OF UNWORTHINESS EXPRESS Made Made by the the exec execut utio ion n of a docum documen entt or any any writing in which the decedent condones the cause of incapacity Cannot be revoked

IMPLIED Effected when the testator makes a will instituting the unworthy heir with knowledge of the cause of  incapacity Revoked when the testator revokes the will or the institution

C. ACCEPTANCE AND REPUDIATION OF INHERITANCE INHERITANCE

CHARACTERISTICS CHARACTERISTICS – VIR (Articles 1041 – 1042, 1056, CC) 1.

Voluntary and free

2.

Irrevocable except if there is vitiation of consent or an unknown will appears

3.

R etroactive etroactive

REQUISITES (Art. 1043, CC) 1. 2.

certai certainty nty of deat death h of the decede decedent nt certai certainty nty of of the righ rightt to the the inheri inheritan tance ce

1.

Acceptanc Acceptance e involves involves the confirmatio confirmation n of transmission transmission of successi successional onal rights, rights, while repudia repudiation tion renders such transmission ineffective. Repudiation Repudiation is equivalen equivalentt to an act act of disposi disposition tion and and alienati alienation. on. The publicity publicity requir required ed for repudiatio repudiation n is necessary necessary for the the protection protection of other other heirs heirs and also of  creditors.

ACCEPTANCE VS. REPUDIATION 2. 3.

FORMS OF ACCEPTANCE (Articles 1049 – 1050, CC) 1.

Express Acceptance – one made in a public or private document.

2.

Tacit Acceptance – one resulting from acts by which the intention to accept is necessarily implied or from acts which one would have no right to do except in the capacity of an heir. Examples would be when the heir sells, donates or assigns his right, when the heir demands partition of the inheritance, when the heir alienates some objects of the inheritance, etc.

FORMS OF REPUDIATION (Art. 1051, CC) 1.

in a public instrument acknowledged before a notary public; or

2.

in an authentic authentic document document – equi equiva vale lent nt of an indu indubi bita tabl ble e writ writin ing g or a writ writin ing g whos whose e authenticity is admitted or proved; or

3.

by petition presented presented to the court having having jurisdicti jurisdiction on over the testament testamentary ary or intestat intestate e proceeding

HEIRS IN TWO CAPACITIES (Art. 1055, CC) -

-

If a pers person on is is cal calle led d to to the the same same inhe inheri rita tanc nce e as an heir heir by wil willl and and by by law law and and he he rep repud udia iate tes s the inheritance in his capacity as a testamentary heir, he will be considered to have also repudiated the inheritance as a legal heir. If he he rep repud udia iate tes s it it as a leg legal al hei heir, r, wit witho hout ut his his bein being g a tes testa tame ment ntar ary y heir heir,, he may may stil stilll acce accept pt it in the latter capacity.

D. COLLATION (Articles 1061 – 1077, CC) CONCEPT OF COLLATION -

To colla ollate te is to bri bring bac back or or to to re return turn to the the her hered ediitar tary ma mass in fact or by fiction prop proper erty ty whi which ch cam came e from from the the est estat ate e of the the dec deced eden ent, t, dur durin ing g his his life lifeti time me by by dona donati tion on or or other gratuitous title but but whic which h the the law law con consi side ders rs as an adva advanc nce e from from the the inh inher erit itan ance ce.. It is is the the act act by vir virtu tue e of whi which ch,, the the comp compul ulso sory ry hei heirr who who conc concur urs s with with oth other er com compu puls lsor ory y heirs in the inheritance bring back to the common hereditary mass the the pr proper operty ty whic which h th they may may hav have e re receiv ceive ed fr from the tes testat tator so that that a div divis isio ion n may may be effe effect cted ed acco accord rdin ing g to to law law and and the the will will of the the test testat ator or..

OPERATIONS RELATED TO COLLATION 1.

Collation – adding to the mass of the hereditary estate the value of the donation or gratuitous disposition.

2.

Imputing or Charging – crediting the donation as an advance on the legitime (if the donee is a compulsory heir) or on the free portion (if the donee is a stranger).

3.

Reduction – determining to what extent the donation will remain and to what extent it is excessive or inofficious.

4.

Restitution – return or payment of the excess to the mass of hereditary estate.

PERSONS OBLIGED TO COLLATE 1.

General Rule: compulsory heirs Exceptions: a. when the testator testator should should have have so so express expressly ly provided provided b. when the the compulsor compulsory y heir should should have have repudia repudiated ted his his inheritan inheritance ce

2.

Grandc Grandchil hildre dren n who survive survive with their their uncles, uncles, aunts, aunts, or first first cousins cousins and inheri inheritt by right right of  representation *Note: Grandchildren may inherit from their grandparent in their own right, i.e., as heirs next in degree, and not by right of representation if their parent repudiates the inheritance of the grandparen grandparent, t, as no living person person can be represen represented ted except in cases cases of disinheri disinheritanc tance e and incapacity in which case grandchildren are not obliged to bring to collation what their parent has received gratuitously from their grandparent.

1. 2. 3.

Any property property or right right received received by gratuitou gratuitous s title during during the testat testator’s or’s lifetim lifetime. e. All that that they they may have have received received from from the the decedent decedent during during his his lifetim lifetime. e. All that that their their parents parents would would have have brought brought to collat collation ion if alive. alive.

WHAT TO COLLATE

PROPERTIES NOT SUBJECT TO COLLATION 1.

Absolutely no collation

a.

2.

Expenses for support, education (only elementary and secondary), medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts. (Art. 1067, CC) Generally not imputable to legitime a. Expenses Expenses incurred incurred by parents parents in giving giving their childre children n professiona professional, l, vocational vocational or other other career unless the parents so provide, o r unless they impair the legitime.

 b.

Wedding Wedding gifts by parents parents and ascendants ascendants consistin consisting g of jewelry, jewelry, clothing, clothing, and outfit outfit except when they exceed 1/10 of the sum disposable by will.

E. PARTITION AND DISTRIBUITON DISTRIBUITON OF OF ESTATE (Articles 1078 – 1105, CC) CONCEPT OF PARTITION (Art. 1079, CC) -

It is th the separation, division an and as assignment of a thi thing ng held eld in in com comm mon amon among g th those ose to to who whom m it it may may belo belong ng.. The thing itself or its value may be div divided ded.

WHO MAY EFFECT PARTITION 1. 2. 3. 4.

decedent, during his lifetime by an act inter vivos or by will heirs comp compet eten entt cour courtt third third perso person n design designate ated d by the the deced decedent ent

1. 2. 3. 4.

compu ompullsor sory heir heir volu volun ntar tary he heir lega legate tee e or or dev devis isee ee any person person who has has acquire acquired d interes interestt in the estat estate e

WHO CAN DEMAND PARTITION

WHEN PARTITION CANNOT BE DEMANDED – PAPU 1.

when expressly Prohibited by the testator for a period not exceeding 20 years

2.

when the co-heirs Agreed that the estate shall not be divided for a period not exceeding 10 years, renewable for another 10 years

3.

when Prohibited by law

4.

when to partition the estate would render it Unserviceable for the use for which it is intended

1. 2. 3.

The prohibiti prohibition on to partition partition for a period period not exceeding exceeding 20 years years can be imposed imposed on the legitim legitime. e. If the prohibit prohibition ion to the parti partition tion is for for more than than 20 years, years, the exces excess s is void. Even if a prohibiti prohibition on is imposed, imposed, the heirs heirs by mutual agreeme agreement nt can still still make the partitio partition. n.

PROHIBITION TO PARTITION

PARTITION INTER VIVOS (Art. 1080, CC) -

It is is one one that that mer merel ely y allo alloca cate tes s spec specif ific ic ite items ms or or piec pieces es of of prop proper erty ty on on the the basi basis s of the the pr proindiviso shares fixed by law or given under the will to heirs or successors.

EFFECTS OF INCLUSION OF INTRUDER IN PARTITION 1. Betw Betwee een n a true true heir heir and and sev sever eral al mist mistak aken en heir heirs s – part partit itio ion n is is voi void. d. 2. Betwee Between n seve several ral true true heirs heirs and a mist mistake aken n heir heir – tran transmi smissi ssion on to mistak mistaken en heir heir is void void 3. Thro Throug ugh h erro errorr or mis mista take ke,, shar share e of tru true e heir heir is is allo allott tted ed to to mist mistak aken en hei heirr – part partit itio ion n shal shalll not be rescinded unless there is bad faith or fraud on the part of the other persons interested, but the latter shall be proportionately obliged to pay the true heir of his share. The partition with respect to the mistaken heir is void.

A VOID WILL MAY BE A VALID PARTITION 1.

If the the will will was in fact fact a parti partitio tion n

2.

If the the benefic beneficiari iaries es of the void will will were were legal heirs

IMPORTANT PERIODS TO REMEMBER  1 month or less before making a will 20 years 5 years from delivery to the State 1 month 5 years from the time disqualified person took possession 30 days days from from issu issuan ance ce of orde orderr of dist distri ribu buti tion on 1 month form written notice of sale 10 years

5 years from partition 4 years form partition

Testator, i f p ub ublicly known to be i ns nsane, b ur urden of   proof is on the one claiming validity of the will Maximum period testator can prohibit alienation of   dispositions To claim property escheated to the State To report knowledge of violent death of decedent lest he be considered unworthy Action for declaration of incapacity & for recovery of  the inheritance, devise or legacy Must Must sign signif ify y acce accept ptan ance ce/r /rep epud udia iati tion on othe otherw rwis ise, e, deemed accepted Right to repurchase hereditary rights sold to a stranger by a co-heir To en enforce wa warranty of of ti title/quality of of pr property adjudicated to co-heir from the time right of action accrues To en enforce wa warranty of of so solvency of of de debtor of of th the estate at the time partition is made Action for rescission of partition on account of lesion