Wills and Succession

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN Succession Definition 1. Generic or General - the transmission of rights and properties from one person to another. - In this sense, succession may be A. Inter vivos (effective after death) B. Mortis Causa (effective during the lifetime) 2. Technical - succession is restricted to succession mortis causa Succession referred to in the Civil Code, Title IV and Article 774 In this limited sense, succession denotes the transfer of title to property under the laws of descent and distribution, taking place only on the death of a person. Kinds of Succession 1. As to effectivity a) Succession inter vivos (i.e. Donation) b) Succession mortis causa (Art. 728, Art. 774) Cross refer to: Donation Inter vivos Donation Mortis Causa Similar to Succession inter Similiar to Succession vivos mortis causa Transfer by gratuitous title Transfer of property by during the lifetime of the gratuitous title and it is transferor or donor or intended to take effect giver after the death of the transferor or donor or giver The act is immediately Nothing is conveyed to or operative even if actual acquired by the donee execution may be deferred until the death of the until the death of the donor-testator donor Governed by the law on Governed by the law on donation and must succession and must observe the formalities of observe the formalities of donation will. The distinguishing characteristics of a donation mortis causa are the following: (Ganuelas vs. Cawed) a) No title or ownership is conveyed to the transferee before the death of the transferor; b) The transfer should be revocable by the transferor at will i. Revocability may be indirectly provided by means of a reserved power in the donor to dispose of the properties conveyed

c) That the transfer should be void if the transferor should survive the transferee Further characteristics (Villanueva vs. Branoco) d) The specification in the deed of causes whereby the act of the donor may be revoked indicates that the donation is inter vivos; e) The designation of the donation as mortis causa, or a provision sin the deed to the effect that the donation is to take effect at death are not controlling criteria, such statements are to be construed together with the rest of the instrument, in order to give effect to the real intent of the transferor; and f) That in case of doubt, the conveyance should be deemed donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed 2. As to whether a will exists or not a) Testamentary Succession - there is a will b) Intestate or Legal Succession - no will c) Mixed Succession 3. As to the transferees of the property a) Compulsory Succession (refers to the legitime) b) Voluntary Succession (refers to free disposal) 4. As to the extent of rights and obligations involved a) Universal Succession - covering all juridical relations involving the deceased b) Particular Succession - covering only certain items or properties 5. Special Succession a) Contractual Succession - kind where the future husband and a future wife give to each other future property, effective mortis causa by means of a marriage settlement Article 774. Succession is a mode of acquisition by virtue of which the property, right and obligations to the extent of the value of the inheritance, of a person are transmitted through his death or others either by his will or by operation of law. Art. 774 speaks of succession mortis causa. Element of Succession Mortis Causa a. Mode of Acquisition or ownership 2 Kinds of Acquisition 1|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN

b.

c. d. e.

1. Original Mode - no prior owner, res nullius (i.e. Occupation, intellectual creation 2. Derivative Mode i. There is an original owner ii. Ownership is transferred to another (i.e. Testate and Intestate Succession) Transfer of property, rights, and obligations to the extent of the value of the inheritance of a person called grantor or transferor, decedent, testator, or intestate Transmission is through death; not during life Death - the operative act which opens succession Transmission to another person called grantee, or transferee, heir, legatee, or devisee By will (testamentary) or by operation of law (legal succession) 2 Kinds of Wills 1. Notarial Will - attested and subscribed by 3 or more witnesses with attestation clause, and acknowledged before a notary public 2. Holographic Will - will entirely written, dated and signed by the testator; this is subject to no form

According to Section 7, Artcile XII of the 1987 Philippine Constitution: “Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.” General Rule: Aliens cannot acquire lands of public domain and private lands. Exceptions: 1. Hereditary succession 2. In the case of naturalized Filipino citizens Testate Estate of Ramirez vs. Ramirez Held: We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the Constitution. Bases for Succession 1. Natural Law  obliges a person to provide for those he would leave behind  this is a consequence of family relations  a recognition of the natural law of consanguinity, or of blood, and the natural affection of a person toward those nearest him in a relationship 2. Socio-economic Postulate - To prevent wealth from becoming inactive or stagnant, this is essential from an economic standpoint to enable social economy to be firm 3. Implicit attributes of ownership would be imperfect if one should not be allowed to dispose of his property when he is already dead. This is in consequence of rights to property. Article 728. Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession. Article 775. In this Title, “decedent” is the general term applied to the person whose property is transmitted through succession whether or not he left a will. If he left a will, he is also called testator. Subjective Elements of Succession 1. Decedent - the person whose property is transmitted through succession, whether or not he left a will. A. Testator - if the decedent left a will B. Intestate - if he left no will 2. Heirs - those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation of law A. Devisee - a person to whom a gift of real property is given by virtue of a will B. Legatee - a person to whom a gift of personal property is given by virtue of a will Article 776. The inheritance includes all the property, 2|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN rights and obligations of a person which are not extinguished by his death. Inheritance vs. Succession Inheritance Succession Inheritance is the property Succession is the manner or right acquired. by virtue of which the property or right is acquired. The universality of all the The legal mode by which property, rights and property, rights and obligations constituting obligations are the patrimony of the transmitted. decedent which are not extinguished by his death. The objective element of The objective element of Succession. which is Inheritance.  Under our law, no succession shall be declared unless and until a liquidation of the assets and debts left by the decedent shall have been made and all his creditors fully paid.  Until a final liquidation is made and all debts are paid, the right of the heirs to inherit remains inchoate.  Under the Rules of Procedure, liquidation is necessary in order to determine whether or not the decedent has left any liquid assets which may be transmitted by his heirs. Subjects/Objects of Succession 1. Property - includes real and personal properties as well as the accessions to the property accruing thereto from the moment of death 2. Rights - those that are not extinguished by death and are therefore transmissible mortis causa 3. Obligations - not extinguished by death Nota Bene: Inheritance does not include everything that belongs to the deceased at the time of his death. It is limited to his property, rights and obligations not extinguished by his death. The law qualified which are not extinguished by death because there are rights and obligations which are extinguished by death. 1. Properties a) These include real and personal properties b) Transferee will also own accessions to

the

property accruing from the moment of death to the time of the actual receipt of the transferee c) Human corpse in not a property and therefore not part of the estate notwithstanding RA 7170 or Organ Donation Act of 1991 which allows under certain conditions the granting to certain entities of a person’s organs after death. i. The donation of organs or parts of body shall be donated by will or deeds of donation. This is what is called as legacy as it involves personal/movable property RA 7170 Section 6 provides for Persons who may become legatees or donees: 1. Any hospital, physician, or surgeon a) For medical or dental education, research, advancement of medical or dental science, therapy or transplantation 2. Any accredited medical or dental school, college, or university a) For education, research, advancement of medical and dental science, or therapy 3. Any organ bank storage facility a) For medical or dental education, research, therapy, or transplantation 4. Any specified individual a) For therapy or transplantation needed by him These are the persons or specific institutions which can be recipients of organs and their specific purposes. It cannot be for sentimental reasons but has to be the reasons mentioned by law. In order to effectuate a legacy of a human body, the strict observance of Section 8 is required: 2. Rights a) Patrimonial rights can be transmitted by succession i. Patrimonial rights - rights that relate to property Patrimonial Rights Transmissible by Succession 1. Contractual Rights, i.e. those arising from a contract of lease  When the lessor dies, their rights will not be extinguished but will be passed on to his heirs. These heirs will now collect the rent. 3|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN When the lessee dies, his heirs will continue the lease and remain in possession within the lease period. 2. Right of Insurance  Provided, that the designation of the beneficiary is irrevocable 3. Right to file an action for forcible entry or unlawful detainer  A property owner may file an action for unlawful detainer against a usurper. Even if the owner dies during the pendency of the action, the said action is not extinguished because the rights of the owner or possessor are transferred to his heirs. 4. Right to compel execution of public document  Provided that the contract is valid and enforceable under the Statute of Frauds. 5. Right to recover possession 6. Right to civil liability  The heirs may file an action to recover damages in behalf of the victim who died prior to the institution of the action. 7. Action to claim legitimacy Article 173 of the Family Code provides: “The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.” This means that an illegitimate child may establish filiations during his lifetime. However, should the child die during minority or becomes insane, his heirs may bring the action for filiation within 5 years. Patrimonial Rights not transmissible by Succession 1. When stipulated in the contract a) The stipulation will govern b) Although the contract is transmissible, there is no prohibition to the parties to provide for the extinguishment of the contract in case either or both of the parties die. 2. Usufruct a) Article 603 provides that usufruct is extinguished by the death of the usufructuary, unless a

contrary intention clearly appears. 3. Contract of Agency a) Article 1919 provides that the agency is extinguished by the death, civil interdiction, insanity, or insolvency of the principal or of the agent. Exception: When the agency is coupled with an interest (i.e. with a mortgage), in that case the death of the parties will not extinguish the agency. 4. Law on Tenancy (RA 3844) A. Old Ruling: Right to Tenancy is not extinguished by death. B. Prevailing Ruling: A tenant under the Agrarian Law has the right in the land on which he is a tenant. In order for right to tenancy to be enforced, there must be an election as to who would succeed in such right. If no selection is made, then the right to tenancy is NOT transmissible. 5. Purely Personal Rights  Generally, they cannot be transmitted by succession because they are extinguished by the death of the decedent.  Examples are: a. Parental Authority – intransmissible although in the Family Code, there are persons who are authorized to exercise substitute parental authority, but such is not succession. b. Marital Rights c. Action for Legal Separation d. Right to receive support e. Right to vote f. Right to become a partner in a Partnership – the death of a partner dissolves the partnership; it is based on trust and confidence g. Guardianship h. Right to Annuity (Refer to Art. 2027 below) i. Right to revoke donation by reason of ingratitude j. The right to Public or Private Offices  Public office is a public trust. It is a privilege, not a right. Article 2027. No annuity shall be claimed without first proving the existence of the person upon whose life the 4|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN annuity is constituted. Annuity is a special kind of insurance. In an ordinary insurance, the person upon whose life the annuity is constituted dies; the heirs will receive the benefit. In annuity, the one insured shall start to receive the benefits by reaching the age of 60 or 65. The basis of the annuity is the life or existence of the person receiving the annuity. But when he dies, the heirs cannot claim for the continuance of the annuity. Article 777. The rights to the succession are transmitted from the moment of the death of the decedent. Efficient Cause of the Transmission of Successional Rights  The expressed will and testament or the presumed will as provided by law Conditions for the Transmission of Successional Rights (Paras) 1. That indeed there has been death, either actual or presumed 2. That the rights or properties are indeed transmissible or descendible 3. That the transferee is a. Still alive (no predecease) b. Willing (no repudiation) c. Is Capacitated to inherit Condition of the Transmission of Successional Rights  The fact of the decedent’s death o In respect to succession, it is more than a condition; it is the very reason for the manifestation of the will of the decedent o It is the final cause of the transmission of Successional rights  The moment of death is the decisive moment when the heirs acquire a definite right to the inheritance whether such right is pure, conditional, or with a term  Acquisition shall always retroact to the moment of said death  After the death of the decedent, anyone of the heirs may enter into a contract with respect to his share in the inheritance even before partition has

been effected. o This is so because his right with respect to the inheritance is already in the nature of a vested right. o He may also sell his undivided share in the inheritance or even donate it.  Conversely, before the death of the decedent, no heir may enter into a contract with respect to his future share in the inheritance o This is because prior death, the heirs have only a mere hope or expectancy, absolutely inchoate in character, to their share in the inheritance o Any contract entered into with respect to future inheritance would have no object and as a consequence, would be inexistent from the beginning. o Art. 1374 of the Civil Code declares that “no person can enter into a contract with respect to future inheritance, except in cases expressly authorized by law”. It is therefore a condition that before there can be succession in general, there should be death. 2 Kinds of Death 1. Actual Death 2. Presumptive Death Actual Death: RA 7170 An Act Authorizing The Legacy or Donation Of All Or Part Of A Human Body After Death For Specified Purposes (j) Death - the irreversible cessation of circulatory and respiratory functions or the irreversible cessation of all functions of the entire brain, including the brain stem. A person shall be medically and legally dead if either: 1. In the opinion of the attending physician, based on the acceptable standards of medical practice, there is an absence of natural respiratory and cardiac functions and, attempts at resuscitation would not be successful in restoring those functions. In this case, death shall be deemed to have 5|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN occurred at the time these functions ceased; or 2. In the opinion of the consulting physician, concurred in by the attending physician, that on the basis of acceptable standards of medical practice, there is an irreversible cessation of all brain functions; and considering the absence of such functions, further attempts at resuscitation or continued supportive maintenance would not be successful in resorting such natural functions. In this case, death shall be deemed to have occurred at the time when these conditions first appeared. The death of the person shall be determined in accordance with the acceptable standards of medical practice and shall be diagnosed separately by the attending physician and another consulting physician, both of whom must be appropriately qualified and suitably experienced in the care of such parties. The death shall be recorded in the patient’s medical record. Presumptive Death: 2 Kinds 1. Ordinary Presumptive Death – 10-year period, one disappeared under normal conditions (Art. 390) 2. Extraordinary Presumptive Death – 4-year period, the absence occurred qualified by great probability of death (Art. 391) Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventyfive years, an absence of five years shall be sufficient in order that his succession may be opened. (n)

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or

aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n) General Rule: In order that an absentee is presumed dead for the purpose of opening his succession, it is necessary that he must have been absent for at least 10 years, it being unknown whether or not he still lives. Exceptions: 1. The absentee disappeared after the age of 75 years, in which case an absence of 5 years shall be sufficient to open his succession 2. If the absentee disappeared under one of the 3 circumstances enumerated in Art. 391, in which case absence of 4 years shall be sufficient a. A person on board a vessel lost during a sea voyage, or an airplane which is missing, who have not been heard of for 4 years since the loss b. A person in the armed forces who has taken part in war, has been missing for 4 years c. A person who has been in danger of death under other circumstances and his existence has not been known for 4 years Precise Moment of Transmission General Rule: The time when the absentee died proven in accordance with the ordinary rules of evidence. If not possible, he is deemed to have died at the time of the expiration of the period designated by law. Exception: If absentee disappeared under any of the extraordinary circumstances enumerated in Art. 391, being under the danger of death, he is deemed to have died at or about the time when he disappeared. Eastern Shipping Lines vs. Lucero and NLRC Held: The rule on presumption should yield on the rule 6|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN on preponderance of evidence. It is already very clear that Captain Lucero died in the incident so there is no point in waiting for 4 years before we presumed that he is already dead. There are facts known or knowable from which death can be inferred. On the other hand, even if the 4-year period had already lapsed and the presumption had already set in, but the facts to the contrary would now arise or that the person has reappeared, then the rule on presumption should be set aside. Art. 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (194) Effect of Absentee’s Return or Appearance If the absentee appears, or without appearing his existence is proved, he shall recover a. his property in the condition in which it may be found; and b. the price of any property that may have been alienated or acquired therewith. But he cannot claim for fruits or rent. Some Effects of Transmission of Rights from Death  Prior to a person’s death, his heirs mere have an inchoate right to his property. Therefore, during his lifetime, the heirs have no right of disposition or alienation over said properties. (Tordilla vs. Tordilla)  After death, the heirs own the property, subject to the decedent’s liabilities. Therefore, they may dispose of the properties, and this is so, even if in the meantime, the properties are under administration. (Barretto vs. Tuason)  Indeed, there is no doubt that an heir can sell whatever right, interest, or participation he may have in the property under administration. This matter certainly comes under the jurisdiction of the probate court, and if the seller-heir should die in the meantime, pending the said probate proceedings, the validity of the sale should NOT be threshed out in a separate action. (Dolores C. Vda. de Gil vs. Agustin Cancio)

 A declaration may be made even BEFORE all debts, expenses, and taxes have been paid. What is prohibited prior to such payment is the assignment or distribution of the residue of the deceased’s estate. (Ngo The Hua vs. Chung BIat Kang)  Pending liquidation of the estate, the heirs are entitled to certain allowances for their support, and these, in the proper cases, are chargeable against the estate. (Dolores C. Vda. De Gil va. Agustin Cancio)  While it is true that “future inheritance” cannot be sold, it is valid for an heir, after the testator’s death, to sell his share in the estate even pending its liquidation, for here the inheritance is “present” and no longer “future”. (Mondonido vs. Roda)  Similarly, a donation of said property AFTER the predecessor’s death but BEFORE a judicial declaration of heirship, is NOT a donation of “future property”. Hence, it is valid. (Osorio vs. Osorio and Ynchausti Steamship Co.) Distinguish Emptio rei speratae from Emptio spei Emptio rei Emptio spei speratae As to subject Sale of an Sale of a mere matter expected thing hope or expectancy that the thing will come to existence; Sale of the hope itself Effect of the Sale is subject to Sale produces existence of the condition effect even if the the thing sold that the thing thing does not will exists; if it come into does not, then existence, unless there is no it is a vain hope contract As to what is The uncertainty The uncertainty uncertain is with regard to is with regard to the quantity and the existence of quality of the the thing thing and not as to the existence of the thing 7|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN Object of sale

Object is a future Object is a thing present thing which is the hope or expectancy

Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. (n) Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. (n) Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n) Kinds of Succession 1) Testamentary Succession – that which results from the designation of an heir, made in a will executed in a form prescribed by law a) It must be noted that the designation of an heir is not essential for the validity of a will b) What is essential is that the succession must be effected through the testator’s will executed in the form prescribed by law 2) Intestate Succession – effected by operation of law in default of a will, or even when one is made, if it has not been made in accordance with the formalities prescribed by law a) It is the presumed will of the decedent as provided by the law itself which governs 3) Mixed Succession – effected partly by will and partly by operation of law a) When the testator makes a will which does not dispose all of his property i) Testamentary succession shall take place with respect to that part of his property which he has disposed of in his will, while legal succession shall take place with respect to that part which he has not disposed of. 4) Contractual Succession – this is an exception to Art. 1347 of the Civil Code which provides that “no contract may be entered into regarding future inheritance except in cases expressly authorized by law”. a) Under Art. 130 of the Code, future spouses may

give or donate to each other in their marriage settlements their future property to take effect upon the death of the donor and to the extent laid down by the provisions of the Civil Code relating to testamentary succession. i) It is in reality a contractual disposition mortis causa ii) Distinction from Testamentary – testamentary dispositions must be contained in a will executed with the formalities prescribed by law, while in contractual succession under Art. 130, the disposition does not have to be contained in a will. But it is essential that it is executed in accordance with the form prescribed for donations by reason of marriage. Thus, it must comply with the Statute of Frauds. Some Rules on Testamentary Succession a. Testamentary succession may be done through a will or through a codicil b. The will or codicil may be: 1. Notarial  Ordinary, attested, or acknowledged 2. Holographic  Handwritten by the testator from beginning to end, complete with date and signature c. In case of doubt, testamentary succession is preferred to legal or intestate succession (Art. 791) Art. 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. (n) Extent of Inheritance in conjunction with Art. 776… Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659) The inheritance of a person includes: 1. All of his property which are existing at the time of his death; 2. All of his transmissible rights and obligations which are existing at the time of his death; and 8|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN 3. All of the property and rights which may have accrued to the hereditary estate since the opening of the succession (1) Property in existence at decedent’s death  This can only refer to those properties which are available for distribution among the persons called to the inheritance AFTER settlement or liquidation  The body or mortal remains of the decedent cannot be considered as part of the inheritance inasmuch as it is not property  It must be noted that RA No. 349, as amended by RA 1056, a person may validly grant to a licensed physician, surgeon, known scientist, or any medical or scientific institution, AUTHORITY to detach at any time after the grantor’s death, any organ of his body, and to utilize the same for (a) medical, (b) surgical, or (c) scientific purposes. Requisites for a Valid Grant or Authorization 1. Must be in writing; 2. Specify the person to whom or the institution to which the grant is given; 3. Specify the organ to be detached; 4. Specify the use or uses of the organ to be employed; and 5. Be signed by the grantor and two disinterested witnesses  If all requirements have been complied with, the grant an authorization shall be binding upon the executor or administrator, successors of the deceased, and members of his family. (2) Transmissible Rights and Obligations  All transmissible rights and obligations which the person called to such inheritance succeed after the settlement of liquidation of his estate Rules/Guidelines in Determining of the Transmissible/Intransmissible Character of Right or Obligation 1. Rights relative to persons and family or purely personal rights are, by nature, INTRANSMISSIBLE in character. – not included in the inheritance

2. Rights relative to property or patrimonial rights are generally TRANSMISSIBLE in character. – included in the inheritance a. EXCEPT: intransmissible by operation of law. i.e. personal and legal usufructs and personal easements 3. Rights arising from obligations or rights of obligations, whether contractual or otherwise, are generally TRANSMISSIBLE in character. – included in the inheritance a. EXCEPT those arising from contracts which by their very nature are intransmissible, or made intransmissible by agreement of parties and by operation of law. Some rights and obligations which are intransmissible 1. Rights and obligations between husband and wife; 2. Property relations between husband and wife; 3. Action for legal separation; 4. Action to compel acknowledgment of a natural child; 5. Action to obtain judicial declaration of illegitimate filiation of an illegitimate child who is not natural; 6. Parental authority or patria potestas; 7. Rights of a guardian; 8. Right to receive and obligation to give support; 9. Right to hold public office as well as the right to exercise a profession or vocation; 10. Right of usufruct; 11. Right of personal easement; 12. Rights and obligations arising from a contract of partnership; 13. Rights and obligations arising from a contract of agency; and 14. Criminal responsibility Monetary Obligations  Under the New Rules of Court, only monetary obligations or claims for money must be filed within the time limited by the rules against the estate of the decedent; otherwise, they are barred forever.  It is only these claims filed which must be liquidated in the testate or intestate proceedings  After liquidation, the court having jurisdiction, on application of the executor or administrator, or a person interested in the estate, and after hearing 9|Page

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN

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upon notice shall assign the RESIDUE of the estate to the persons entitled to the same, naming them and the proportions and parts to which each is entitled. (Sec. 5, Rule 88 of the New ROC) Under our rules of procedure, monetary obligations of the decedent can only be charged against his estate and not against his heirs. (Pavia vs. De la Rosa) The claims or obligations which can be charged against the estate of the decedent after his death are those monetary obligations contracted by the decedent himself during his lifetime and not those contracted by his heirs.  Thus, the creditor of one of the heirs has no standing or legal personality to intervene in the testate or intestate proceedings for the settlement of the estate of the decedent by filing a motion praying that the participation of such heir in the inheritance should be sold in order to pay for the obligation. This is because the creditor is not a creditor of the decedent but of the heir, and, therefore, is entitled to proceed against the participation of such heir only AFTER the settlement or liquidation of the estate of the decedent. (Litonjua vs. Montilla) Monetary obligations cannot be included in the inheritance. Other obligations may form part of the inheritance, i.e. those arising by operation of law from patrimonial rights which are adjudicated to the heirs after liquidation of the estate, such as those connected with (a) ownership, (b) possession, or (c) real easements.  Such obligation are chargeable against the heirs, but ONLY to the extent of the value of the property which they may have received from the decedent.  Example: Decedent assigned a property to a creditor, but such assignment is not registered. Subsequently, the property is adjudicated to his heirs. The transaction is not a monetary obligation, thus, it is binding between parties and such assignment can still be invoked against the heirs and their privies.

(3) Accretions  Inheritance also includes any property or right which may have accrued thereto since the opening of the succession. Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n) Transferees in Testamentary Succession a. Heirs – if they succeed by universal title, to all or a fraction or aliquot part of the properties, rights, and obligations b. Legatees and Devisees – if they succeed by particular title to cash or to a particular or specified item or thing in the inheritance 1. Legatees – if they succeed to a particular PERSONAL property 2. Devisees – if they succeed to particular REAL properties Distinguish Heirs from Devisees/Legatees Heir Devisee/Legatee Are called to succeed to an Are always called to indeterminate or aliquot succeed to individual items portion of the decedent’s of property hereditary estate Called to succeed either by Called to succeed by means if a will means of a will only (testamentary) or by operation of law (compulsory and legal) Distinguish Voluntary Heir from Devisee/Legatee Voluntary Heir Devisee/Legatee Called to succeed to an Called to succeed to indeterminate or aliquot individual items of portion of the testator’s property hereditary estate Succeeds by universal title Succeeds by particular title Both are called to succeed by means of a will Both are chargeable against the disposable free portion of the testator’s estate 2 Classes of Heirs in Testamentary Succession 1. Voluntary Heir 10 | P a g e

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN 

An heir called to succeed to the whole or an aliquot part of the disposable free portion of the hereditary estate by virtue of the will of the testator 2. Compulsory Heir  An heir called by law to succeed to a portion of the testator’s estate known as the legitime 2 Parts of Hereditary Estate in Testamentary Succession 1. Legitime  The legal portion over which the testator has no testamentary control because the law has already reserved it for certain heirs 2. Free Portion  The disposable portion which the testator has absolute testamentary control and which may be disposed of by will in favor of any person not disqualified by law to succeed  In legal or intestate succession, all heirs are called legal or intestate heirs 2 Classification of Intestate or Legal Heirs 1. Those who inherit by their own right; and 2. Those who inherit by the right of representation Devisees/Legatees – persons to whom gifts of real and personal property are respectively given by virtue of a will  Only possible in testamentary succession  Always succeeds to individual items or property by means of a particular or special title  Devisee/Legatee is a charge against the free portion of the testator’s property Possibility of Dual Status  If in the will, a compulsory heir is given more than is legitime, he assumes a DUAL status: a. Insofar as his legitime is concerned, he is a COMPULSORY heir b. Insofar as the excess is concerned, he is a VOLUNTARY heir Importance of Distinction 1. In case of preterition or pretermission in the testator’s will of one, some, or all of the compulsory heirs in the direct line



According to Art. 854 of the Civil Code, the effect of preterition is to annul entirely the institution of heirs, but legacies and devisees shall be valid insofar as they are NOT inofficious 2. Art. 856 provides that if a compulsory heir dies ahead of the testator, his legitime is inherited by his own child. On the other hand, the child of a voluntary heir who predeceases or dies ahead of the testator gets nothing from said testator. 3. In case of imperfect or defective disinheritance  According to Art. 918 of the Code, the effect is to annul the institution of heirs to the extent that the legitime of the disinherited heir is prejudiced, but legacies and devices shall be valid insofar as they are NOT inofficious 4. In case the properties are acquired by the testator after the execution of the wil  According to Art. 793 of the Code, such properties are NOT, as a rule, included among the properties disposed of unless it should expressly appear in the will itself that such was the testator’s intention  This rule is applicable only to legacies and devises and not to institution of heirs Testamentary Succession Art. 783. 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 this estate, to take effect after his death. Will (Definition)  is a disposition made by a competent testator in the form prescribed by law, or property over which he has legal power of disposition, which disposition is of such nature as to take effect AFTER his death (Page)  is an instrument by which a person makes a disposition of his property to take effect after his death, and which is, in its own nature, ambulatory and revocable during his life. (Jarman)  According to Bigelow, a will is 1. A written instrument; 2. Duly executed and attested; 3. By which a competent person makes 11 | P a g e

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN 4. 5. 6. 7. 8.

A voluntary disposition Of property In favor of another competent person To take effect after the maker’s death Meantime being revocable

Essential Elements and Characteristics of a Will Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. Personal Character of Wills  The making of the will cannot be delegated or left in whole or in part to the discretion of a 3 rd person, or accomplished through the instrumentality of an agent or attorney  The mere act of drafting or writing of the will does not fall within the purview of the prohibition  Thus, it has been held that who does the mechanical work of writing the will is a matter of indifference. The fact that the will was typewritten in the office of a lawyer is of no consequence (Castaneda vs. Alemany) Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. Testamentary Acts cannot be delegated/left to the discretion of a 3rd person 1. The duration of the designation of heirs, devisees, or legatees; 2. The efficacy of the designation; and 3. Determination of the portions which they are to take when referred by name Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. Distinguish Art. 785 and 786 Art. 785 Art. 786

Enumerates in absolute terms the different things which the testator cannot do The names of particular persons are given

Enumerates by way of exception the different things which he may do A class or a cause is what is specified

In the designation of specified classes or causes, the following are entrusted to 3rd persons: a. The distribution (partition or delivery); b. Designation of who will receive and how much has been set aside for the purpose Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative.  This article strengthens the rule that the making of a will is strictly a personal act.  This prohibits the testator from making a testamentary disposition which would allow another person to determine whether it is to be operative or not.  The act of determining whether a testamentary disposition is to be operative or not is not exactly testamentary in character, it is evident that the delegation of such act to a 3rd person would be tantamount to allowing the testator to substitute the will of a 3rd person for his own, which is precisely what the law intends to prevent. Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n)  Under this rule, the construction is to be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rules of law.  If the language used is reasonably susceptible of 2 different interpretations, one which will defeat, and the other sustain, the provisions, the doubt is to be resolved in favor of the construction which will give effect to the will, rather than the one which will defeat it.  The provision applies only in case of DOUBT. If no doubt exists, and the disposition is clearly illegal, same should not be given effect. 12 | P a g e

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n) Kinds of Ambiguity in a Will 1. Latent or Intrinsic Ambiguity – that which does not appear on the face of the will, and is discovered only by extrinsic evidence. This kind of ambiguity arises  When there is an imperfect description of the heir, legatee, or devisee  When there is an imperfect description of the gift being given;  When only one recipient is designated but it turns out that there are 2 or more who fit to the description 2. Patent or Extrinsic Ambiguity – that which appears on the face of the will itself, by examining the provision itself, it is evident that it is not clear.  In this case, the extrinsic evidence, as well as the will itself may be examined, but not the oral declaration of the testator, to ascertain the testator’s intent. What kind of ambiguity is referred to by Art. 789? 1. First clause – refers to a latent or intrinsic ambiguity  “imperfect description or when no person or property exactly answers the description”  This ambiguity is cured by examining: i. The will itself; ii. Extrinsic evidence such as written declarations of the testator.  Extrinsic evidence taken from the alleged oral declarations of the testator should NOT be allowed, as this can result in fraud, confusion, and unfairness to the dead man whose words may be distorted or perjured.

2. Second clause – refers to a patent or extrinsic ambiguity  “when an uncertainty arises upon the face of the will”  This may be cured by examining i. The words of the will; ii. The circumstances under which the will was made, clearly allowing written declarations of the testator, but disallowing oral declarations of the testator as such would be hearsay and therefore inadmissible as evidence. It is submitted that the NCC really provides for no difference in the curing of latent or patent ambiguities.  If a legatee is pointed out by name in the will, the fact that he is referred to as the natural son of a 3rd person does not necessarily make the legacy conditional upon proof of such relationship, the reference being descriptive merely. Of course, had it clearly been shown to be a condition, the answer would have been different. (Del Rosario vs. Del Rosario)  In the interpretation of wills, when an uncertainty arises on the face of the wills, as to the application of only of its provisions, the testator’s intention is to be ascertained from the words of the wills, taking into consideration the circumstances which it was made. Such construction as will sustain and uphold the wills in all its parts must be adopted. (Rabadilla vs. CA) Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a) Rules for Interpretation of Words a. Ordinary words have their ordinary meaning EXCEPT if there is clear intention that another meaning was used, provided that other meaning can be determined. 13 | P a g e

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN b. Technical words have technical meanings EXCEPT i. If there is a contrary intention ii. If it appears that the will was drafted by the testator alone, who did not know the technical meaning  Reason: Wills drafted by experts like lawyers are construed more strictly than those made by ordinary laymen.  An idiomatic translation is preferred to a literal translation since the former expresses more clearly the testator’s desire. (Dionisio vs. Dionisio)  If the testator’s intention is manifest from the context of the will and surrounding circumstances, but is obscured by inapt and inaccurate modes of expression, the language will be subordinated to the intention; and in order to give effect to such intent, the court may depart from the strict wording, and read a word in a sense different from that which is ordinarily attributed to it. (Rodriguez vs. CA) Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n)  The will must be interpreted as a whole.  While testacy is preferred over intestacy, this is true only if the will has been validly made. Priority/Preference of Testate Over Intestate Proceedings  Testate proceedings take precedence over intestate proceedings for the same purpose  If in the course of intestate proceedings, it is found that the decedent left a will, proceedings for the probate of the will should replace the intestate proceedings, even if at that state, an administrator had already been appointed, the latter being required to render his final accounts and to turn over the estate to the executor subsequently named.  This is without prejudice to the fact that if, the will be disallowed, the intestate proceedings should be resumed.

Art. 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. (n) Effect of Invalid Dispositions a. Even if one disposition or provision is invalid, it does not necessarily follow that all others are also invalid. b. The exception occurs when the various dispositions are indivisible in intent or nature Art. 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. (n) General Rule on After-acquired Properties  What are given by the will are only those properties already possessed and owned by the testator at the time the will was made, not those acquired after.  Example: In 2014, X made a will “giving Y all my lingerie”. In 2014, X had 15 lingerie, but in 2015, when X died, HE had at the time of his death 30 lingerie. How many will Y get?  Answer: Y will get only 15 lingerie, because the rest were acquired after the making of the will. Exceptions to the General Rule a. It is expressly appears in the will that it was the intention to give such after-acquired properties b. If the will is republished or modified by subsequent will or codicil, in which case, the properties owned at the time of the repudiation/modification shall be given  One effect of the codicil is that the will must be construed, for this purpose, as having been made in the year of the execution of the codicil. c. If at the time the testator made the will he erroneously thought that he owned certain properties, the gift of said properties will not be valid, unless after making the will, said properties will belong to him.  Example: In 2014, X made a will “giving Y 14 | P a g e

Wills and Succession Ateneo de Davao University Based on the Lectures of Atty. Yangyang-Espejo, CPA, De Leon, Paras, & Manresa 2014 TSN my 6 lingerie”. However, at that time, one of the lingerie was not really his. Therefore, ordinarily, Y should only get 5 at the time X dies. But if after making the will, X becomes the owner of the 6th lingerie, and at X’s death, he was the owner of the 6 lingerie, all of said 6 lingerie will be given to Y. d. Legacies of credit or remission are effective only as regards that part of the creditor or debt existing at the time of the death of the testator.

get only properties owned at the time of the institution. The after-acquired properties will have to go to the legal heirs by intestate succession.  This article however should apply only to legatees and devisees.

Legacy of a Credit Example: X is the creditor of Y to the amount of P 1M. X made a will in 2003 giving his credit to Z. If by 2006, at X’s death Y has paid already P600,000 to X, how much will Z get? Answer: Only the remaining P400,000, which still exists at X’s death. If Y borrowed additional P600,000 instead of paying, how much shall Z get? Answer: Only the original P1,000,000 since the extra P600,000 will be “after-acquired property”. Art. 935 cannot apply because it contemplates a credit that is reduced, not increased. Legacy of Remission Example: X is the creditor of Y to the amount of P 1M. X made a will in 2002 remitting or waiving Y’s debt. This is a legacy of a remission of a debt, in favor, naturally, of the debtor. If in 2004, Y who does not know of the provision of the will, and pays P600,000 to X, how much is the legacy of remission? Answer: Only P400,000 because this is the debt still remaining at the time of X’s death, including interests due, if any. Nota Bene: It is important to know how much exactly is the legacy, in order to determine whether or not it is inofficious or impairs the legitime. 

Art. 793 also applies on institution of heirs which will 15 | P a g e