WILLS - PARAS BOOK SUMMARY.pdf

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

WILLS & SUCCESSION TITLE IV Succession

b.

CHAPTER 1 General Provisions ARTICLE 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (n)

•

Succession is a derivative mode of acquisition

Bases of Succession 1. Natural Law 2. Socio-economic postulate – prevents wealth from being stagnant 3. Attribute of ownership

•

Foreigners can acquire lands in the Philippines only in case of hereditary succession, which is succession by operation of law and not by a will Kinds of Succession I. As to effectivity: a. Inter vivos (donation) – effective during the lifetime of the person b. Mortis causa (succession) – effective upon the death of the person • If a deed is a donation, there are certain formalities that must be observed • If a deed is succession, the formalities will be different. If it is a will, the person intended it to be a succession and the formalities shall comply with the formalities of a will 2 Types of Will: i. Notarial Will ii. Holographic Will 3 distinguishing characteristics of a donation mortis causa: 1. It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing: the transferor should retain ownership (full or naked) and control of the property 2. Before his death, the transfer should be revocable by the transferor at will, ad nutum but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed 3. The transfer should be void if the transferor should survive the transferee If these 3 characteristics are present, the document is not a deed of donation but rather, it is a will. It must comply with the formalities of a will II. As to whether or not there is a will: a. Testamentary or Testate Succession – if a person leaves a will b. Intestate or Legal Succession – if a person dies without leaving a will III. As to the transferee or the recipient of the property a. Compulsory succession or succession to the legitime – Part of property which cannot be disposed of to anybody because that portion is reserved to his compulsory heirs.

Compulsory heirs are the persons who cannot be deprived of their inheritance regardless of the will of their decedent. Voluntary succession or the succession to the free portion – If a person dies, his estate shall be divided into 2 parts. One part is the legitime which is reserved for his compulsory heirs and the other part is the free portion which he can give to anybody

IV. As to the extent of right and obligations involved: a. Universal succession or succession by an heir is the succession to the universality or the aliquot portion of the estate of the decedent b. Particular succession which is succession to the specific portion of the property of the decedent c. Contractual succession happens when future husbands and wives give to each other in their marriage settlement future property, which shall be effective upon their death d. Freak succession is where there is still succession even without the intervening effect of succession. This happens when in a decree of annulment or separation or nullity of the marriage, the spouses are ordered to deliver to their children their presumptive legitime. 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 the testator. (n)

•

The decedent is the person whether or not he left a will

•

The testator is the person who died who left a will

who

died

ARTICLE 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659)

• Inheritance is different from succession because the latter is a mode of acquisition, by virtue of which the property, rights and obligations are transmitted. • Property, as defined by law, may be subject of succession except the following: 1. Those which are outside the commerce of men or which are not owned by men (res nullus) 2. Those which are owned by everyone (res communes) 3. Those which are prohibited by law 4. Any property which is not capable of appropriation • The ownership of organs may be transferred by donation or by will. Even if the formalities of the will are not complied with, as long as the donation was made in good faith, the will or donation is not valid. It shall be given effect since the important element is that the will was made in good faith. RIGHTS Purely Personal Rights GENERAL RULE: It is not transmissible since it is extinguished by death EXCEPTION: It is transmissible: Article 173 Family Code – The action to claim legitimacy may be brought by the child during

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

his 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.

Examples: right to parental authority marital rights right of a Chinese merchant right to vote Patrimonial rights • These are rights which refer to property GENERAL RULE: Transmissible Examples: action for forcible entry/unlawful detainer action to recover property EXCEPTIONS: Extinguished by death as provided by law or agreement by the parties (ex. agency, commodatum, contract of lease) OBLIGATIONS GENERAL RULE: Transmissible EXCEPTIONS: 1. Purely personal 2. Non-transferable by law

of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) ARTICLE 391 (New Civil Code). 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) ARTICLE 43 (New Civil Code). If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. (33)

•

3.

Non-transferable by contract or agreement between the parties. Examples of obligations extinguished by death: 1. Obligation to pay taxes 2. Criminal liability

3. Right to give support Debts (2 views) 1. Not transmissible since it is actually the estate of the deceased which pays the debts 2. Transmissible because the shares of the heirs are reduced by the payment of the debts (preferred view) ARTICLE 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a)

• Death is a condition for the transmission of a right by succession.

•

While your parents are still alive, their properties are still owned by them. What you have is merely an inchoate right or an expectancy. It is not an absolute right. Conditions for the transmission of a successional right: 1. There should be death (actual or presumed) of the transferor 2. The rights or properties are transmissible 3. The transferee is alive Presumed Death • Under ordinary circumstances, 10 years • After the age of 75, 5 years In these 2 instances, the moment of death is reckoned after 5 or 10 years, whichever is applicable. • Under extraordinary circumstances, 4 years In this instance, the moment of death is reckoned from the moment of disappearance. ARTICLE 390 (New Civil Code). 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

If there are circumstances which point to the time of the actual death of the person, then, that time wherein there is proof should be flowed and not the presumptions.

• In theory, the heirs can immediately dispose of their properties when the decedent dies because of Article 777. But in reality, you cannot since the will has to be probated first. • If you are the sole heir, all you have to do is execute an Affidavit of Self-Adjudication and follow the process provided by law • If there is more than one heir, they may execute and Extrajudicial settlement among themselves and follow the process provided by law ARTICLE 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. (n) ARTICLE 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)

Conditions for Testamentary Succession: 1. There must be a will 2. There should be a designation of heir 3. There must be observance of the formalities required by law. PRINCIPLES IN TESTAMENTARY SUCCESSION

1.

TESTAMENTARY SUCCESSION IS PREFERRED OVER INTESTATE SUCCESSION When there is a will, the will has to undergo probate. Probate is a proceeding wherein you determine whether or not the will was validly executed and whether or not the will was executed by person who has testamentary capacity. There is no prescriptive period in the probate of will as long as there is a will.

2.

DOUBTS MUST BE RESOLVED IN FAVOR OF TESTACY If there is doubt as to the validity of a will, the interpretation wherein the will is given effect should be preferred. Legal or Intestate Succession 1. There is no will 2. The will is not valid at all

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 780. Mixed succession is that effected partly by will and partly by operation of law. (n)

When mixed succession occurs: 1. When the testator fails to dispose all of his properties in a will 2. When the will does not validly dispose of all the property of the testator ARTICLE 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n)

•

This article refers to after-acquired properties. Those are acquired from the moment of death onwards will belong to the devisee, legatee or the heir to whom the property was given. Inheritance includes: • The property, transmissible rights and the transmissible obligations of the decedent to the extent of the value of the inheritance; and • Those properties, or rights or obligations, if any, which have accrued since the opening of the succession. ARTICLE 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)

Heirs • Those who succeed to the universality of the rights, properties and obligations of the decedent • They are not given specific portions of the property but aliquot shares Kinds of Heirs:

•

Compulsory or forced heirs are persons who are not deprived of their inheritance unless there are causes to disinherit them and the causes are provided by law. LEGITIME is that portion of the property, rights and obligations of the decedent which you cannot just dispose of because the law reserved it for the compulsory heirs.

• •

Devisee succeeds to real properties immovable properties of the decedent

HEIRS 1. Succeed by general right or universal title to all or an aliquot part of the estate 2. Heirs exist both in testamentary succession and intestate succession 3. The heir, if compulsory, succeeds to the inheritance regardless of the will of the decedent 4. Quantity cannot be determined until after liquidation of properties of the estate 5. Heirs represent the juridical personality of the deceased, acquiring his property, rights and obligations 6. Heirs succeed to the remainder of the estate after all the debts, devisees and legatees have been paid

Legatee or Devisee

2. Legatees and devisees exist only in testamentary succession 3. Legatees and devisees succeed only by testator’s will 4. Quantity can easily be determined 5. Legatees and devisees do not represent the juridical personality of the deceased because it acquires only properties 6. Legatees and devisees succeed only to the determinate thing or amount given

CHAPTER 2 Testamentary Succession SECTION 1 Wills SUBSECTION 1 Wills in General

•

PRETERITION happens when a direct line or a compulsory heir is omitted form the will. The effect is the will cannot be given effect. So, there shall be intestacy wherein the will is disregarded and as if the person died without a will.

LEGATEES & DEVISEES 1. Succeed by special or particular title

Importance of distinguishing heirs from legatees and devisees: 1. When there is preterition, the instituted voluntary heirs do not get anything. The legatees/devisees retain the properties given to them as long as the legitime is not impaired. 2. When there is invalid disinheritance, the instituted voluntary heir gets nothing while the one who received properties by way of legacy or devise retains the property given to them as long as the legitimes of the compulsory heirs are not impaired.

Legal or intestate heirs are heirs who inherit by operation of law. The person dies without a will. Voluntary, testamentary or testate heirs are heirs who will inherit because of the will of the decedent.

•

or

Distinctions between Heirs & Legatees and Devisees:

•

All compulsory heirs are legal heirs. But not all legal heirs are compulsory heirs. When a person dies without a will, then, the compulsory heirs succeed by operation of law. If there is a will but the will is not valid, then, the compulsory heirs succeed by operation of law since the will is disregarded. • The free portion may be given to anybody except those who are prohibited by law to inherit from the decedent. If there is a will, the free portion is given to the voluntary heirs

Legatee succeeds to personal properties

ARTICLE 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 his estate, to take effect after his death. (667a)

• The making of a will is an act by which a person is permitted by law to repose his property effective upon his death. It is not a mode of transferring property because that is succession. It does not also consist of property, rights and obligations because that is inheritance.

•

A will is an instrument wherein certain dispositions are made by persons to effect mortis causa • Thus, it may be an or an instrument Elements of a Will:

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1. It is strictly a personal act It cannot be delegated to a third person. The disposition of the will should be the disposition of the person. Since it is personal, will-making shall not be made in public. Even if a will is acknowledged before a notary public, a will is not a public document. Even a notary public is not required to keep a copy of the will. 2. There must be animus testandi (intent to make a will) One should know that the effect of such document is to transfer one’s properties to a particular person mentioned in the document. 3.The making of a will is a statutory right, not a natural right 4.It is a solemn or formal act For the will to be valid, each form shall comply with the rules prescribed by the New Civil Code. 5.It is a unilateral act The testator cannot condition the validity of his will upon the consent of another. 6.The testator must be capacitated to make a will 7.It is free from vitiated consent 8.It is essentially revocable and ambulatory 9.It is an individual act, as distinguished from a joint act The will must contain the act of only one person. Joint will are prohibited. 10. It disposes of the testator’s estate in accordance to his wishes 11. It is effective mortis causa ARTICLE 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a)

• Holographic wills are supposed to be entirely written, dated and signed in the hands of the testator. Even the mechanical act of drafting the will cannot be delegated to a third person • As to notarial wills, the mechanical act of drafting the will can be delegated to a third person. But the content of the will must be the disposition of the testator himself ARTICLE 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. (670a)

Testamentary acts which cannot be delegated to third persons: 1. The duration of designation of the heirs, devisees or legatees 2. The efficacy of the designation of the heirs, devisees or legatees 3. The determination of the portions which the heirs, devisees, or legatees are to take, when refereed to by name ARTICLE 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. (671a)

• What is entrusted to a third person is the distribution of specific property or sums of money Requisites of Article 786: 1. The testator entrusts to a third person

2.

The distribution of specific property or sums of money

3.

These specific property or sums of money are left in general to specific classes or causes 4. There is the designation of the persons, institutions or establishments to whom such property or sums of money are to be given or applied Distinction between Article 785 and Article 786: Article 785 The heirs, legatees devisees are named.

or

There is no specific property or sums of money. What is delegated is the determination of the portion which shall go to the named heir, legatee or devisee.

Article 786 There is no such heir, legatee or devisee that is named There is specific property or sums of money. There is a determination of the persons, establishments or institution or to whom the specific property or sums of money is to be given or applied.

ARTICLE 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. (n)

Article 785 This refers more to the institution of the heirs.

Article 787 This refers more on the designation or disposition of the properties. This is not valid because the disposition is subject to the will of a 3rd person. Whether or not a disposition shall be valid cannot be left to the will of a 3rd person.

ARTICLE 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)

• The will must be interpreted liberally in favor of validity • In the interpretation of the will, the wishes of the testator is the first and principal law ARTICLE 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)

2 KINDS OF AMBIGUITY 1. PATENT OR EXTRINSIC AMBIGUITY – appears on the face of the will itself. 2. LATENT OR INTRINSIC AMBIGUITY – does not appear on the face of the will. Ambiguity is discovered by examination outside the will. 4 kinds of Latent or intrinsic ambiguity 1. Imperfect description of the heirs, legatees or devisees 2. Imperfection description of the property to be given 3. When 2 or more persons meet the description

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

4. When 2 or more things/properties meets the description How to resolve the ambiguities? 1. Intrinsic Evidence – You cure the ambiguity by examining the will. You examine the words used in the will. 2. Extrinsic Evidence/Evidence Aliunde – Evidence that is not found in the will but found outside of the will, such as letters, documents, persons or investigation Oral evidence • Supposed oral declarations of the testator cannot be used because the testator is already dead • Oral testimonies of other persons can be used for as long as they are not testifying on the supposed oral declarations of the testator Dead Man’s Statute • In an action where a claim is filed against the estate, where the plaintiff is the claimant and the defendant is the executor of the deceased person, both parties are prohibited to testify as to something which the deceased said in his lifetime ARTICLE 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 the will was drawn solely by the testator, and that he was unacquainted with such technical sense. (675a)

Ordinary Terms GENERAL RULE: Give it an ordinary or literal meaning EXCEPTION: If there is an intention to give it another meaning Technical Terms

•

These are used by persons engaged in specialized activities in certain fields or profession GENERAL RULE: Give it a technical meaning EXCEPTIONS: 1) If the testator himself made the will and it is very clear that he is unacquainted or unfamiliar with the term 2) If it is really the intention of the testator to give the technical word an ordinary meaning ARTICLE 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)

2 parts of Article 791: 1. The will must be interpreted as a whole 2. Testacy favored over intestacy ARTICLE 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n)

GENERAL RULE: The invalid dispositions will not affect the valid ones. The will remains valid. EXCEPTION: Entire will is invalidated or the valid dispositions are invalidated is if it is the intention of the testator that both the valid and invalid dispositions are to be indivisible, such that the other dispositions cannot be given effect if the other dispositions turn out to be invalid.

ARTICLE 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n)

• Article 793 covers those after-acquired properties after the execution of the will up to the time of the death • Article 78 covers properties arising from the moment of death onwards • Article 793 only applies to devices and legacies and not to inheritance because inheritance comprises the universality or an aliquot portion of the estate GENERAL RULE: Only those properties owned by the testator at the time of the execution of the will are included. Those acquired after the execution of the will are excluded. EXCEPTIONS: 1. If the testator expressly provides in his will that properties acquired AFTER the execution of the will are included. 2. Article 836 – the effect of the execution of a codicil 3. Article 930 – legacy or device belonging to another person is void as a general rule because the testator cannot give what he does not own. But if the testator later acquires the ownership, the legacy or devise can be given effect 4. Article 935 – legacy of credit or remission of debt ARTICLE 794. Every devise or legacy shall convey all the interest which the testator could devise or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n)

GENERAL RULE: All of the testator’s rights in a property are transmitted because it is presumed that the testator intended to dispose his whole interest in the property. EXCEPTIONS: 1. If it clearly appears in the will that the testator merely intend to convey a less interest 2. If the testator clearly provided that he conveys a greater interest 3. The testator can also give property which he knows is not owned by him ARTICLE 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)

Kinds of validity of wills: 1. FORMAL or EXTRINSIC VALIDITY – refers to the forms and solemnities and the formalities that have to be conformed and complied with in the execution of the will. 2. INTRINSIC VALIDITY – refers to the legalities of the provisions of wills. EXTRINSIC VALIDITY ARTICLE 17 NEW CIVIL CODE. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

promulgated, or by determinations or conventions agreed upon in a foreign country. (11a)

Extrinsic Validity can be viewed from 2 points: a. Viewpoint of TIME – the extrinsic validity of a will depends upon the observance of the law enforced at the time the will is made, not at the time of death and not at the time of probate. Testator cannot possibly and is not expected to know what laws will govern in the future. b. Viewpoint of PLACE/COUNTRY i. Testator is a Filipino who executes a will in the Philippines – Philippine laws shall be applied ii. Testator is a Filipino who executes a will abroad before the diplomatic or consular officials of the Philippines – Philippine laws shall be applied iii. Testator is a Filipino who executes a will abroad not before a diplomatic or consular officials of the Philippines A. Law of the place where he may be – Article 815 B. Law of the place where he executes the will – Article 17 C. Philippine law – Article 815 iv. Testator is an alien who executes a will abroad A. Law of the place where the will is executed – Article 17 B. Law of the place of his residence or domicile – Article 816 C. Law of his own country or nationality – Article 816 D. Philippine law – Article 816 v. Testator is an alien who executes a will in the Philippines A. Law of the place where the will is executed (Philippines) – Article 17 B. Law of his own country or nationality – Article 817 ARTICLE 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) ARTICLE 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) ARTICLE 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n)

•

with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a)

Example: A will was executed in 1910 without giving anything to his illegitimate child. If he died under the Old Civil Code, the illegitimate child does not have a successional right. If he died under the New Civil Code, illegitimate children have successional rights. Since the testator died during the effectivity of the New Civil Code, the will is intrinsically void. b. Viewpoint of PLACE/COUNTRY – law enforced is the national law of the decedent ARTICLE 16 NEW CIVIL CODE. Real property as well as personal property is subject to the law of the country where it is situated. iatdc2005 However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)

2 Proceedings if a person dies with a will: 1. Probate proper – proceeding instituted to determine the genuineness and authenticity of a will. It is concerned only with the extrinsic validity of the will. 2. Distribution proceedings – intrinsic validity of the will is considered GENERAL RULE: Foreign laws may not be taken judicial notice of and has to be proven like any other fact in dispute between the parties in any proceeding EXCEPTIONS: 1. If the foreign laws are within the actual knowledge of the court; or 2. When these laws have been considered before by the court in a previous case and the parties do not oppose as to the consideration of the court as to the existence of the foreign law. Instances when the intrinsic validity of wills of foreigners is governed by Philippine laws 1. DOCTRINE OF PROCESSUAL PRESUMPTION In the absence of evidence of foreign laws, it is presumed that it is the same as Philippine law. 2. RENVOI DOCTRINE (referring back) The testator is a Philippine resident and a national of another country. The national law of the decedent says that the intrinsic validity of a will should be governed by the domiciliary law or the law of his residence or domicile. Hence, Philippine law will be applied.

The legislature cannot validate a void will

INTRINSIC VALIDITY Intrinsic Validity can be viewed from 2 points: a. Viewpoint of TIME – law enforced at the time of the death of the decedent ARTICLE 2263 NEW CIVIL CODE. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance

SUBSECTION 2 Testamentary Capacity and Intent

•

Testamentary power refers to the right or privilege given by the state to the individual to execute wills.

•

Testamentary capacity refers to the qualification of a person to execute a will. • A person may have testamentary power but no testamentary capacity

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

• There are persons who have testamentary capacity but they do not have testamentary power, like in some other countries • But they may be used interchangeably KINDS OF TESTAMENTARY CAPACITY 1. Active Testamentary Capacity – refers to the qualifications of persons to execute wills 2. Passive Testamentary Capacity – refers to the qualifications of persons to receive by virtue of a will. This would be discussed more exhaustively under the chapter on the capacity to succeed. ARTICLE 796. All persons who are not expressly prohibited by law may make a will.

•

Testamentary capacity is the general rule

ARTICLE 797. Persons of either sex under eighteen years of age cannot make a will. (n)

How do you compute 18 years? 1. Theory under the Spanish Law Under the Spanish law, the 18th birthday should have passed or commenced before the person can execute a will. We follow Spanish Law 2. Theory under the American Law It is sufficient that the day preceding one’s birthday has already commenced. 3. Theory under the Civil Code You are already 18 years old 4 days before your birthday because under the Civil Code, 1 year is 365 days. And in 18 years, there are 4 leap years. So, 4 days prior to your birthday, under the Civil Code, you are already 18 years of age. ARTICLE 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. ARTICLE 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n)

3 Requisites of a sound mind: 1. The testator must know the nature of the estate to be disposed of 2. He must know the proper objects of his bounty 3. He must know the character of the testamentary act Degrees of Mental Incapacity or Incapacity 1. Idiots – IQ average of 25; congenitally and intellectually deficient; considered as of unsound mind in succession 2. Imbecile – IQ average of 26 to 50; mentally deficient; considered as of unsound mind in succession 3. Moron – IQ average of 51 to 70; they can do reading and writing; they can be self-supporting; considered as of sound mind in succession GENERAL RULE: Testamentary incapacity invalidates the whole will EXCEPTION: If the incapacity proceeds from a delusion on a particular subject and the product of such delusion might be declared invalid without affecting other portions of the will ARTICLE 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to

be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n)

When testator is presumed of unsound mind: (1) When the testator, one month, or less, before making his will was publicly known to be insane; (2) When the testator was judicially declared insane before making his will; (3) When the testator has Insanity of a general or permanent nature shown to have existed at one time. How to establish evidence of soundness of mind? 1. You may use the testimony of the notary public 2. The testimony of the attesting witnesses 3. The testimony of the attending physician 4. The testimony of other witnesses ARTICLE 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n)

•

Testator must be of unsound mind AT THE TIME of the execution of the will

•

This is the PRINCIPLE OF SUPERVENING CAPACITY

ARTICLE 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) ARTICLE 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. (n)

What can the married woman or man disposed of in a will? 1. He/she may dispose of his/her separate property; or 2. He/she may dispose of his/her share in the conjugal/community property.

•

If the spouse disposes of the entire community property, the disposition is only valid with respect to the portion pertaining to the share of the spouse who is the testator. The remaining portion becomes invalid. But if the spouse knows that he or she has no right to dispose of the share or his or her spouse but still he or she provides in the will that such portion or the entire portion be given to a certain person, in that case, you will learn later on that it is valid. What is to be done is for the estate to acquire the other portion. SUBSECTION 3 Forms of Wills 2 Kinds of Wills: 1. ORDINARY OR NOTARIAL WILL – that which requires, among other things, an attestation clause and acknowledgement before a notary public. This will is ordinarily executed with the aid of a lawyer. There are witnesses and attestation clause. 2. HOLOGRAPH OR HOLOGRAPHIC WILL – wills which are ENTIRELY written, dated and signed in the handwriting of the testator. This also requires NO attestation clause or witnesses or acknowledgment. ARTICLE 804. Every will must be in writing and executed in a language or dialect known to the testator. (n)

•

No such thing as oral wills in the Philippines

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

Nuncupative Wills are wills orally made by testator in contemplation of death and before competent witnesses. Nuncupative wills are not recognized in the Philippines. • The presumption is that the testator knew the language used in writing the will • There is no statutory requirement that the will should allege that the language used therein is understood by the testator

•

There is no need to state in the Attestation clause that the will is in the language or dialect known to the testator

•

That the will is in a language known to the testator can be proved by extrinsic evidence or even by parol or oral evidence • If the will is executed in the locality where the testator lives, it is presumed that indeed the testator during his lifetime knew or understood the language or dialect in that locality • The testator must know the language or dialect. No amount of interpretation or explanation will cure the defect

•

Attesting witnesses are not required to know the language used in the body of the will ARTICLE 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n)

1. Article 805 only applies to notarial wills 2. The requirements under Article 805 are to be strictly construed Formal Requirements under Article 805: 1. Subscribed at the end by the testator himself or the testator’s name is written by some other person in the presence and under the express direction of the testator • Subscription means the physical act of signing • E-signatures cannot be affixed in a will because e-signatures are applicable only to transactions and contracts • Signature must appear not the physical end but at the logical end of the will • The presence of additional dispositions in a notarial will after the signature of the testator invalidates the entire will because it affects the form 2. Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another • “in the presence of the testator and of one another” – not actually seeing but in a position to see if you want to see without any physical obstruction ATTESTATION

SUBSCRIPTION

Consists in witnessing the testators execution of the will in order to see and take note mentally that those things are done which the statutes require for the execution of the will and that the signature of the testator exist as a fact. Mental act of the senses. You see, smell, feel etc.

The signing of the witnesses name upon the same paper for the purpose of identification of such paper as a will executed by the testator.

The purpose is to render available proof of the authenticity of the will and its due execution. The act of the witnesses

The purpose identification.

To attest a will is to know that it was published as such and to certify the fact required to constitute an actual or legal publication.

Tests a. b. c. d.

Mechanical act of the hand. is

May be the act of the testator when the testator signs the will or the witnesses if the witnesses affixed their signature in the will. To subscribe a paper published as a will is only to write on the same paper then names of the witnesses for the sole purpose of identification.

of Presence Test of vision Test of position Test of mental apprehension Test of available senses

3. The testator or the person requested by him to write his name and the credible witnesses of the will shall sign each and every page of the will, on the left margin, except the last page • Marginal witnesses are also the subscribing witnesses • Purpose of the signing at the left-hand margin of the will is to identify the pages and to prevent fraud GENERAL RULE: Absence of signature on the first page of the will invalidates the will. EXCEPTIONS: 1. If the will contains only one page, then logically that one page already has the signature of the testator because he is required to sign at the end of the disposition and that also contains the signatures of the witnesses in the attestation clause. 2. Inadvertent lifting of pages. 4. All the pages shall be numbered correlatively in letters placed on the upper part of each page • As long as it the page number has a physical location, the will is still valid. The page number may even be incorporated in the text of the document itself

•

If the will has only one page, the will is valid because you can easily detect whether there is loss of pages because if the one page is lost then there is no will to speak of • Purpose of numbering the pages of a will: a) To guard against fraud; b) To forestall any attempt to suppress or substitute any of the pages;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

c) To afford means of detecting the loss of any of its pages; d) To prevent any increase or decrease in the pages. ATTESTATION • It is the act of witnessing the execution of the will. It is a mental act.

•

Attestation clause is that clause of an ordinary or notarial will wherein the witnesses certify that the instrument has been executed before them and the manner of execution of the same • What do the subscribing witnesses attest to? 1. They attest to the genuineness of the signature of the testator 2. They attest to the due execution of the will • What should the attestation clause state? 1. The number of pages used upon which the will is written 2. The fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction; 3. The signing by the testator or by the person requested by him in the presence of the instrumental witnesses; and 4. That the instrumental witnesses witnessed and signed the will and all he pages thereof in the presence of the testator and of one another. ARTICLE 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. (n)

•

Acknowled gment is a statement made by the notary public that the testator and the witnesses have personally come before him, that they voluntarily executed the will and that they understood the contents.

•

“To acknowledge” means to admit, to avow, to own as genuine • A holographic will need not be acknowledged before a notary public • The testator acknowledges the execution of the will. The witnesses acknowledge the attestation clause. • Acknowledg ment need not be made in the presence of the testator and each and everyone of the witnesses. It is just required that the testator and the witnesses appear before the notary public, not actually at the same time • It is not required that the notary public before whom the will is acknowledged be present during the execution of the will • Absence of an acknowledgment is a fatal defect ARTICLE 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) ARTICLE 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and

again, by the notary public before whom the will is acknowledged. (n) ARTICLE 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805. (n)

•

Article 809 gives the rule on substantial compliance with respect to the attestation clause

•

There is substantial compliance when there has been an HONEST ATTEMPT on the part of the testator to comply with the formal requisites provided by law but the compliance is only substantial and not literal but the purpose of the law is substantially accomplished although not strictly followed

•

As to marginal signatures, there is no particular requirement that it should really appear on the left margin because the only purpose of marginal signatures is for identification. • As to attesting signatures, the attesting witnesses are supposed to own the statements mentioned in the attestation clause. Therefore, their signatures should appear at the bottom of the attestation clause. If you just write on the margin, the purpose here is not to own the statements mentioned here but just to identify this page, later on, as the same page which you attested before. Requisites of Article 809: 1. The defects and imperfections refer to the form of the attestation or the language used therein; 2. There is no bad faith, forgery or fraud, or undue or improper pressure and influence; 3. The will was executed and attested in substantial compliance with all the requirements; and 4. The fact of such execution and attestation is proved. Defects or imperfections excused under Article 809: 1. Defects/imperfections in the form of attestation clause; 2. Defects/imperfections in the language used in the attestation clause. Formal requisites to be observed in the execution of Notarial Wills: 1. The will must be in writing (Article 804); 2. It must be in the language or dialect known to the testator; 3. The will must be signed by the testator or by another person in his presence or under his express direction (Article 805); 4. That the signing by the testator or by the person under his express direction and in his presence must be done in the presence of at least 3 instrumental witnesses; 5. That the will is attested and subscribed by at least 3 credible witnesses in the presence of the testator and of each and every one of them; 6. That the will must be signed by the testator and by at least 3 credible witnesses on the left hand margin on each and every page;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

7. That the will must be numbered correlatively in letters; 8. That the signing by the 3 witnesses must be done in the presence of the testator and each and every one of them; 9. There must be an Attestation clause stating therein the number of pages upon which the will is written, a statement that the testator signed the will or another person signed the will under the express direction of the testator; 10. The will is signed at the left margin by the testator and the 3 instrumental witnesses in the presence of the testator and of one another; 11. The will must be acknowledged before a notary public (Article 806); 12. The will must be read twice by 2 persons designated by the testator if the testator is deaf or deaf-mute (Article 807); 13. If the testator is blind the will must be read to him once, by one of the subscribing witnesses, and again, by the notary public (Article 808); and 14. There must be substantial compliance with all the requirements of the law (Article 809). ARTICLE 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a)

•

A holographic will is a will that is entirely written, dated and signed by the hand of the testator himself • It is important to know the date of execution because after the effectivity of the Spanish Civil Code, which was overtaken by the Code of Civil Procedure August 7, 1901 – August 1950 – holographic wills, during that period, were not allowed.

•

Strictly speaking, in notarial wills, attestation clause is not part of the will because it contains no dispositions. The fact that the attestation clause is typewritten will not invalidate the will. Requisites in the execution of holographic wills: 1. It must be written in a language or dialect known to the testator 2. It must be ENTIRELY written by the testator; 3. It must be dated in the hand writing of the testator; 4. It must be signed in the hand writing of the testator; and 5. It must be with animus testandi. ARTICLE 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (691a)

testator. EXPLICIT meaning you must possibly and unconditionally declare

•

If probate is CONTESTED, at least 3 of such witnesses should be presented • A photocopy or carbon copy of a holographic is allowed GENERAL RULE: The requirement of presenting an expert witness is discretionary on the part of the court. EXCEPTION: It is mandatory when after the presenting witnesses who allegedly know the hand writing of the testator, the court still is not convince as to the authenticity and genuineness of the will then the court should require expert testimony. ARTICLE 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n)

•

If there is no signature and date, then it is presumed that the testator has no testamentary intent as to his additional dispositions

•

If dated without signature, the additional disposition is void. If signed only without date, the additional disposition is void. But the holographic will itself is not affected

•

With respect to notarial wills, the presence of these additional dispositions will invalidate the entire will because in a notarial will, the signature should appear at the logical end. Those additional dispositions after the signature will invalidate the entire will. ARTICLE 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n)

•

If the dispositions are merely signed without the date, and the last disposition is signed and dated, the effect is that it validates the disposition preceding it.

•

If the additional dispositions in a holographic will are not in the handwriting of the testator and they are not signed by the testator, then, these additional dispositions are not valid but the will itself remains valid.

•

But, if these additional dispositions are signed by the testator, the testator is owning or adopting the additional dispositions as his own. They will now form part of the will because it now owned by the testator or adopted. In that case, the entire will is void. The will now is not entirely in the handwriting of the testator.

•

Signed but not dated and the last disposition is signed and dated – validated

•

•

Date only and the last disposition is dated and signed – only the last disposition is valid, all the previous dispositions are void because the law says signed not dated. Only the disposition unsigned is invalid. • Not signed and not dated even if the last disposition is signed and dated – void

•

ARTICLE 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n)

•

Probate is the allowance of the will by the court after its due execution is proved Questions addressed during probate proceedings: question of identity, question of testamentary capacity and question of due execution If probate is UNCONTESTED, one witness who knows the hand writing of the testator must be presented and who must explicitly declare that the will and the signature are in the handwriting of the

•

The insertion, cancellation erasure or alteration mentioned in Article 814 are the ones written in the hand writing of the testator

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

Insertion, cancellation, erasure or alteration, is not per se prohibited as long as they are authenticated by the full signature of the testator • If the insertion, cancellation, erasure or alteration does not bear the signature of the testator: GENERAL RULE: Only the erasure or insertion is void. The entire will itself is valid. EXCEPTION: When this insertion, cancellation, erasure or alteration is made in an essential part of the will. When this insertion, cancellation, erasure or alteration will affect the essence of the will then not only the insertion, cancellation, erasure or alteration is void but the entire will itself. *** Articles 815, 816 and 817 were previously discussed under extrinsic validity of wills from the viewpoint of place or country ARTICLE 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669)

•

JOINT WILL is one wherein the same testamentary instrument is made as the will of 2 or more persons and it is jointly executed and signed by them.

•

MUTUAL WILLS or RECIPROCAL WILLS are wills of 2 persons wherein the disposition of one is made in favor of the other and the other also makes dispositions in favor of the other. This is also called TWIN WILLS. The Mutual or reciprocal wills are embodied in separate instruments.

•

When the 2 dispositions are made in the same will, it becomes a joint will. Now, we have a Joint and Mutual will. When you have a Joint and Mutual will, it is prohibited under Article 818. • Article 818 may cover a joint and mutual will or joint will wherein the benefit is not for the 2 parties who execute the will but for a third person.

•

Not all mutual and reciprocal wills are joint wills.

1st view: It is valid because if it is allowed under his national law, it should be allowed here in the Philippines under Art 817. 2nd view: By reason of public policy, it is void because under Article 17, our laws cannot be subrogated by the laws promulgated in other countries. SUBSECTION 4 Witnesses to Wills ARTICLE 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code. (n)

• A blind person, under Article 808, can be a testator. But he cannot be a witness ARTICLE 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. (n)

Qualification of witnesses to a will: 1. He must be of sound mind 2. At least 18 yrs of age 3. Not blind, deaf or dumb 4. Able to read and write; 5. Domiciled in the Philippines 6. Not convicted of falsification of document, perjury of false testimony Essential elements of domicile: 1. The fact of residing, or the physical presence in a fixed place 2. The intention of remaining permanently, or the animus manendi • These disqualifications apply only if the will is executed in the Philippines • Conviction here should be by final judgment

Why are joint wills not allowed? 1. It tends to convert a will into a contract 2. It destroys the character of wills as a strictly personal act 3. It runs counter to the idea that wills are essentially revocable or ambulatory; 4. It may subject one to undue influence. It induces Parricide. 5. It makes probate more difficult especially if the testators dies at different times.

•

ARTICLE 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a)

•

• Joint wills executed by a Filipino in a foreign country are not valid in the Philippines, even though allowed in the place of execution

•

Article 819 is not applicable to foreigners executing their will. If a joint will is executed by a foreigner abroad and it is valid in the place of execution, it shall be recognized by our courts, because of lex loci celebrationes (law of the place of execution). If it is valid in the place of execution it is valid here in the Philippines. • If a joint will is executed by a Filipino and a foreigner, the will is void as to the Filipino and valid with respect to the foreigner. • If a foreigner executes a joint will in the Philippines:

If pardoned and the pardon is by reason of innocence then you become qualified again to become a witness to a will because when you were acquitted because of innocence, that means you are trustworthy as witness.

•

If the pardon is by reason of an executive clemency, you are still disqualified because the pardon erases only the penalty or the civil consequences of the conviction but it does not change the fact that you are dishonest and untrustworthy. A notary public cannot be one of the attesting witnesses ARTICLE 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n)

•

As long as the witness is qualified at the time of the execution of the will, it does not matter if subsequently he becomes incapacitated. The validity of the will remains. ARTICLE 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n)

•

This article refers to an attesting witness to the execution of the will but at the same time he is a devisee or legatee in that will • The will is still valid but he is disqualified from receiving the devise or legacy

•

Even if the attesting witness is not the devisee or legatee himself but his spouse, the parents, the child of that witness, so the mother of the attesting witness, the will is still valid but such person cannot receive the legacy or devise • But this article will not apply if there are more than 3 witnesses.

•

In voluntary heirs, the inheritance which they are to receive under the will is void. Voluntary heirs are those who receive by virtue of the liberality by the testator but they do not receive something if the testator does not provide for them. • As to compulsory heirs, they may still get their legitime. But with respect to the free portion accorded to the compulsory heirs in the will, it is void if such compulsory heir is also one of the 3 witnesses. ARTICLE 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n)

• A creditor is not disqualified to receive if the testator provides in the will that such portion shall be given to the said creditor as payment for an obligation. Whether or not he is instituted in the will, the creditor is entitled to be paid for his credit.

SUBSECTION 5 Codicils and Incorporation by Reference ARTICLE 825. A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered. (n)

• The validity of the codicil depends upon the validity of the will

•

If the provisions of the will and the codicil are inconsistent, the codicil should prevail because the purpose of a codicil is to amend, alter, or add to a previously executed will. CODICIL When you execute a codicil after you execute a will, the codicil is taken as a part of the will.

The codicil explains, adds to, supplements, and alters the provisions in the original will. The codicil may revoke only a PART of the original will. Because a codicil is taken as a part of the

NEW WILL When you say after executing the first will, you again execute another will then the new will exists independently of the original will and without reference to the original will. Has no regard to the previous will, it does not explain, or add to, or supplement the original will. . When you execute a new will, the ENTIRE previous will is revoke as a general rule. When you execute a new will, they are separate.

original will, then the original will and the codicil are taken as one.

The one other.

revoking

the

ARTICLE 826. In order that a codicil may be effective, it shall be executed as in the case of a will.

2 kinds of Codicil: 1. NOTARIAL CODICIL – it follow the rules required by law for notarial will. 2. HOLOGRAPHIC CODICIL – it follow the rules required by law for holographic will

•

If the codicil does not follow the requirements of the law, the codicil is void. But the invalidity of the codicil will not affect the validity of the will. ARTICLE 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (n)

•

This is the Rule on Incorporation by Reference. It is incorporation of an intrinsic or separate document or paper into a will by reference so as to become a part thereof and probated as such. Requisites of Incorporation by Reference: 1. The document or paper referred to in the will must be in existence at the time of the execution of the will. 2. The will must clearly describe and identify the same, stating among other things the number of pages thereof 3. It must be identified by clear and satisfactory proof as the document or paper referred to therein 4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories Requirements to be stated in the face of the will: 1. The fact that you are referring to the document or paper 2. The clear description and identification of the document 3. The number of pages Requirements to appear on the face of the document to be incorporated or being referred to: 1. The signature of the testator; 2. The signature of the witnesses Requirements that can be proved by extrinsic evidence: 1. That the document is inexistence at the time of the execution of the will; 2. That the document is the one being referred to in the will. GENERAL RULE: Only notarial wills shall have incorporation by inference because: 1. These documents under Article 827 have to be signed by the testator and the

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

witnesses. In notarial wills, there are witnesses. In holographic wills, there are no witnesses. 2. In a notarial will, the contents can either be in the handwriting of the testator, typewritten or a combination. When you say documents to be incorporated into the will, these documents may either be typewritten or in the hand of the testator. EXCEPTION: It may be a holographic will: 1. When the holographic will has at least 3 witnesses, there can be incorporation by reference because by then, the subscribing witnesses in the holographic will, although a surplusage, can sign the document to be incorporated. 2. Even if there are no witnesses but the document to be incorporated are entirely written, signed and dated in the hand of the testator. In this case, what we have is a purely holographic will. You may have a valid incorporation by reference. SUBSECTION 6 Revocation of Wills and Testamentary Dispositions ARTICLE 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a)

•

Revocation is an act of the mind terminating the potential capacity of a will to operate at the death of the testator manifested by some outward and visible act or sign symbolic thereof GENERAL RULE: The testator can always revoke his will during his lifetime EXCEPTION: If the testator during his lifetime loses testamentary capacity or becomes of unsound mind. ARTICLE 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n)

•

If the revocation is made within the Philippines we only have to comply with the Philippine law regardless of the nationality or domicile • If the revocation is made outside the Philippines by a non-resident (Filipino or foreigner): 1. The law of the place where the will was MADE (not where the will is revoke) 2. The law of the place of the place of DOMICILE of the testator • If the revocation is made outside the Philippines by a resident (Filipino or foreigner): 1. The law of the place of the REVOCATION 2. The law of the place of DOMICILE • In revocation, the national law has no revocation ARTICLE 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n)

3 ways of revocation: 1. By implication of law 2. By some will, codicil, or other writing executed as provided in case of will (by subsequent instrument) 3. By means of an overt act Acts considered by law as an act of revocation: 1. Article 957 of the NCC – When after the testator has made a will, he sells, donate the legacy or devise 2. Article 106 of the FC – Provisions in the will in favor of the spouse who has given cause to legal separation 3. Article 1032 of the NCC - When an heir, legatee or devisee commits an act of unworthiness 4. Article 936 of the NCC – When a credit has been given as a legacy is judicially demanded by the testator 5. Article 854 of the NCC – Preterition Kinds of Revocation by Subsequent Instrument: 1. EXPRESS REVOCATION – When the new will or codicil contains a revocatory clause. 2. IMPLIED REVOCATION – When the provisions in the subsequent wills or codicil are completely inconsistent with the provisions in the previous will. Requisites for the application of revocation by subsequent instrument: 1. There must be testamentary capacity AT THE TIME of revocation 2. The subsequent instrument must be valid 3. The subsequent will or instrument must contain a revocatory clause or be incompatible with the former will thereby showing intent to revoke 4. The subsequent will or instrument must be admitted to probate Requisites for the application of revocation by an overt act: 1. The testator has testamentary capacity AT THE TIME of performing the act 2. The act must be any of the overt act mentioned under Article 830: a. BURNING – It is not required that the whole instrument is completely burned. Even if only a portion of the document is burned, it is considered to be an act of revocation. b. TEARING – either you tear or cut by means of your hands or scissors. A slight cut or a slight tear is sufficient to be considered an act of revocation. The greater the cut the greater is the presumption that there is animu revocandi on the part of the testator. If the codicil is torn, it is an act of tearing and both the will and codicil are revoked because a codicil is part of the will. c. CANCELING – when you place a mark or a line across the writings. If you place a mark or a line on the spaces, there is no cancellation. d. OBLITERATI NG – it is when you erase thru eraser or like you blot out. If what is blotted out is just some provisions, these provisions are considered to be revoked but the will remains valid

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

3.

4. 5.

The act must be a completed act (at least a completion of the subjective phase of the overt act) GENERAL RULE: Even if the tearing is not complete or the burning is not complete then there is an act of revocation. EXCEPTION: When the testator starts burning his will but he realized that he really does not want to revoke his will. So before the will is completely burned, he desists from burning and that is voluntary desistance on his part. In this case, even if the will contains a slight burn or slight tear there is NO ACT OF REVOCATION because of the voluntary desistance by the testator. There must be intent to revoke or animus revocandi The revocation must be done by the testator himself or by some other persons in his presence and under his express direction

•

PRESUMPTION: been revoked

A duly executed will has not

•

Burden of proof that the will is revoked lies upon the one who opposes the probate of the will which that person alleges has been revoked What should be proven during the probate of a lost or destroyed notarial will: 1. Establish compliance with the formalities required by law under Articles 804-809 of the NCC 2. Prove that the will was inexistent at the time of the death of the testator or that it was fraudulently destroyed or lost without the knowledge of the testator or it was accidentally lost or destroyed by the testator without intent to revoke. 3. Prove the contents clearly and distinctly by copies or without copy by recital of content by some document or the testimony of the witnesses ARTICLE 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the later wills. (n)

• Article 831 talks about Implied Revocation made in a subsequent instrument

•

There is IMPLIED REVOCATION when the testator, after having executed a will executes another will or codicil which the will or codicil does not contain a revocatory clause but its contents are inconsistent with the former will then there is implied revocation ARTICLE 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a)

•

Article 832 is the DOCTRINE OF ABSOLUTE REVOCATION

•

On the other hand, the DOCTRINE OF DEPENDENT RELATIVE REVOCATION is where the act or destruction is connected to the making of a will so as squarely to raise the inference that the testator meant the revocation of the old would depend 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 is in full force and effect • There is no revocation by overt act if the destruction of the first will was prompted by a false belief that the subsequent will executed was valid

•

If the destruction is AFTER the execution of the subsequent will, the Doctrine of Dependent Relative Revocation applies. He destroyed the 1st will after having executed the 2nd will.

•

But if he destroyed the 1st will LONG BEFORE the execution of the subsequent will, you can no longer apply the doctrine. The will here was destroyed by an overt act, so it is absolute. ARTICLE 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)

•

Article 833 is another aspect of the Doctrine of Dependent Relative Revocation. You revoke the will based on a false belief

•

When the revocation is made by a subsequent instrument the false cause must be stated in the face of the will ARTICLE 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (741)

• Recognition takes place immediately upon the execution of the will • Recognition is not disposition of property SUBSECTION 7 Republication and Revival of Wills REPUBLICATION It is the re-establishment by the testator of previously revoked will or one invalid for want of proper execution as to form or for other reasons so as to give validity to said will It involves the act of the testator. There is a will previously revoked or a will valid as to form or a will invalid for any other cause

REVIVAL It is the reestablishment to validity by operation of law of a previously revoked will. It involves the act of law, operation of law. A will previously revoked.

ARTICLE 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. (n)

•

Article 835 gives the rule on express republication or republication by reexecution

•

Republication is the re-establishment by the testator of a previously revoked will or one invalid for want of proper execution as to form or for other reasons so as to give validity to said will

•

If the testator previously executed a void will and he would want to give life to this void will, then he has to republish his will.

•

Or, if previously, the testator revoked his will and he would like to give life to this revoked will. So, he has to republish his will. 2 Kinds of Republication: 1) EXPRESS REPUBLICATION/ REPUBLICATION BY RE-EXECUTION is a republication in a subsequent will a previous one which is void as to form (Article 835) 2) IMPLIED REPUBLICATION/REPUBLICATION BY REFERENCE is the execution by a codicil referring to a previously revoked will or a will valid as to form but void because of some extrinsic defects like lack of testamentary capacity (Article 836)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n)

•

If the old will is void as to form, the only way to republish it is by re-execution.

•

If old will is void but not as to form because the testator lacks testamentary capacity, it can be republished by re-execution or it can be republished by reference.

ARTICLE 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. (739a)

•

There is no revival if the first will is expressly revoked by the 2nd will

•

There is revival if the first will is IMPLIEDLY REVOKED by a second will

•

PRINCIPLE OF INSTANTER states that when the will is EXPRESSLY revoked by a 2 nd will, the revocation of the 2nd will by the 3rd will will not revive the 1st will. This is because revocation takes effect immediately. It does not wait for the death of the testator to become effective because revocation does not take the form of testamentary disposition. SUBSECTION 8 Allowance and Disallowance of Wills ARTICLE 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's death shall govern. i The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n)

•

Probate is the act or process of proving before a competent court the due execution of an instrument purported to be the last will and testament of a deceased for its allowance by the said court, that is, for its official recognition and the carrying out of its provision in so far as they are in accordance with law. • A probate proceeding is a special proceeding. It is a proceeding in rem.

•

In a probate proceeding, the inquiry as a General Rule is limited only to the EXTRINSIC VALIDITY of the will • Extrinsic validity means: 1. whether or not the testator was of sound mind when he executed the will 2. whether or not he is 18 years or above

•

ANTE MORTEM PROBATE means a probate done during the lifetime of the testator

•

POST MORTEM PROBATE means a probate done after the death of the testator 2 aspects of POST MORTEM PROBATE: 1. PROBATE PROPER is only concerned on the due execution of the will and the testamentary capacity of the testator 2. DETERMINATION OF THE LEGALITY OF THE PROVISION AND THE DISTRIBUTION OF THE ESTATE. GENERAL RULE: During probate proper, the probate court HAS NO JURISDICTION to entertain other issues except on issues on whether or not the will was duly probated in compliance with the formalities required by law and whether or not the testator has testamentary capacity at the time he executed the will EXCEPTION: Summary on issues that may be passed upon by the probate court (intrinsic validity): 1. Ownership a. when the testator has disposed of property which is not his; or b. whether or not a certain property is included in the estate. 2. Filiation a. whether or not the oppositor has personality to intervene; or b. whether or not the will has been revoked 3. Whether or not there was preterition  But decisions of the court pertaining to these questions are only provisional. Matters that may be passed upon by the probate court: 1) Questions of identity 2) Due Execution 3) Question as to the testamentary capacity PROBATE OF HOLOGRAPHIC WILL In the probate of holographic wills, if there is no contest, it is enough that at least 1 witness explicitly declares that the will is in the handwriting and signature of the testator. When the will is contested, there must be at least 3 of witnesses. In the absence of such witnesses, expert testimony may be resorted to or even if there is no contest, still expert testimony may be resorted to.

PROBATE OF NOTARIAL WILL In the probate of notarial wills, when there is no contest, at least 1 subscribing witness should testify as to the execution of the will. When there it is contested, ALL of the subscribing witnesses plus the notary public must testify. If all of the subscribing witnesses and the notary public are: 1.dead; 2.insane; or 3.they are all absent in the Philippines or 4.testify against the due execution of the will; or 5.they do not remember having attested the execution of the will; or 6.they are of doubtful credibility then, other witnesses may be resorted to.

LOST/DESTROYED HOLOGRAPHIC WILL When it comes to a

LOST/DESTROYED NOTARIAL WILL In notarial wills, even if

3.

whether or not the will complied with the formalities under Articles 804-809 with respect to notarial will 4. whether or not the will is entirely written, dated and signed in the handwriting of the testator with respect to holographic will

•

The rule on ESTOPPEL and the STATUTE OF LIMITATION do not apply in probate • Probate is MANDATORY • Extrajudicial Settlement is NOT allowed when there is a will

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

holographic will, there must be a photocopy or carbon copy of the holographic will. If there is no copy of the holographic will, even if the reason why the holographic will was lost or destroyed was due to the act of another person without intent to revoke on the part of the testator still, no probate of the holographic will may be allowed because there is no copy.

there is no copy, the notarial will may be probated because the contents of a notarial will may be proved by the testimonies of at least 2 witnesses to clearly and distinctly proved the contents of the notarial will. NB: As long as there is no animus revocandi on the part of the testator.

ARTICLE 839. The will shall be disallowed in any of the following cases: (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. (n)

•

These grounds are exclusive. However, despite the exclusivity given, it seems that there are other grounds which are minority, revocation and forgery. 1st ground: • In case of notarial wills, formalities under Articles 804-809

•

2nd

ARTICLE 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (n)

•

entirely written, signed and dated in the handwriting of the testator b. in the language known to the testator c. must be executed at the time when holographic wills are allowed ground: This ground refers to the soundness of mind of the testator at the time of execution of the will ground:

Requisites for an institution to be valid: 1. The will must be extrinsically valid

2. 3.

• • •

5th

•

6

th

Fraud is the use of insidious words or machinations to convince a person to do what ordinarily he would not have done. • There is an intent to make a will ground: • The testator is acting because of his mistake and the testator has no intent to make a will • There is no intent to make a will

REVOCATION A voluntary act of the testator. May be with or without cause. May be partial or total.

DISALLOWANCE Given by judicial order Must always be for legal a cause. Always total.

A will is valid even though it does not contain an institution of an heir Such institution should not comprise the entire estate Even though the person so instituted should not accept the inheritance or should be incapacitated to succeed

ARTICLE 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a)

• •

This connotes the idea of coercion, mental or physical 4th ground: Undue Influence connotes the idea of coercion by virtue of which the judgment of the testator is displaced, and he is induced to do that which he otherwise would not have done. ground:

The institution must be intrinsically valid The institution must be effective

ARTICLE 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764)

• •

Institution refers to the free portion

Characteristics of an instituted heir? 1. The instituted heir constitutes the relation of the personality, to continue the personality of the testator but only in relation to the inheritance without being personally liable for the death of the testator. 2. The instituted heir acquires the right limited to the disposable portion and he cannot impair the legitime.

In case of holographic wills it must be:

a.

•

3rd

SECTION 2 Institution of Heir

This article is called the freedom of disposition But this freedom of disposition is not absolute because when there are compulsory heirs, the testator has to observe the portion pertaining to the compulsory heirs

ARTICLE 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772)

• • •

The best way to designate the heir is by name or surname Even if the name is omitted, the designation is still valid as long as such person can be identified If there are 2 or more 2 persons instituted and they have the same name or corresponds to the same description, Article 789 can be applied: ARTICLE 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

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

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)

•

ARTICLE 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)

•

Article 843 mentions mentions errors.

•

Errors in the name, surname or circumstances would not matter as long as ultimately the court can identify who are really the heirs intended by the testator Any manner maybe resorted to determine the person instituted except oral declaration made by the testator

•

omissions.

Article

844

ARTICLE 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)

•

An unknown person is one that cannot be identified. He is not necessarily a stranger

•

A disposition in favor of an unknown person who cannot be identified cannot be given effect

ARTICLE 846. Heirs instituted without shares shall inherit in equal parts. (765)

• •

designation

of

Article 846 refers to PRINCIPLE OF EQUALITY It is presumed that the testator intended to give equal shares to the heirs instituted. Otherwise, he would have specifically mentioned the shares of the heirs had he intended that each heir shall get different portion or unequal portions

GENERAL RULE: Heirs instituted without designation of shares shall inherit in equal parts. EXCEPTION: Article 846 cannot apply when there are compulsory heirs. ARTICLE 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a)

• •

• •

This article refers to the PRINCIPLE OF INDIVIDUALITY As long as the intention to have the estate collectively distributed does not appear in the will, the presumption is individual institution When there are compulsory heirs, you have to first satisfy the portion pertaining to the legitime of the compulsory heirs. INSTITUTION refers to FREE PORTION

ARTICLE 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a)

Remember that brothers and sisters are not compulsory heirs although they are legal heirs When the testator institutes his brothers and sisters whether or full blood or half blood they are deemed to have been instituted equally

INTESTATE SUCCESSION The shares of the brothers or sisters of the full blood, is twice as much as those of the half blood. So here there is a presumption that the affection of the testator for the brothers and sisters of the full blood is greater than those of the half blood

TESTATE SUCCESSION There is NO presumption.

such

ARTICLE 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (771)

•

This article is known as the PRINCIPLE OF SIMULTANEITY

•

There is only a presumption. There is nothing which can prevent the testator from providing in his will that the institution shall be successive and not simultaneous.

ARTICLE 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a)

GENERAL RULE: The statement of a false cause for the institution of an heir shall not vitiate the institution. The false cause shall always be considered as not written. The law presumes that in giving a legacy or devise or inheritance, the real motivation or the real cause is the liberality or generosity of the testator not he false cause. EXCEPTION: Unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.

•

According to some authorities in succession, the statement of Illegal cause for the institution will not invalidate the institution. The illegal cause is deemed not written.

ARTICLE 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies, if the testator has instituted several heirs each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n)

•

Aliquot part means a fraction interest

•

Article 851 should be applied when there is NO INTENTION on the part of the testator to give the remaining part of the estate. So, only the specific portions mentioned.

or undivided

ARTICLE 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

In Article 852, the intention of the testator is to give the entire estate to the instituted heir or heirs but the shares given to the instituted heirs when added do not comprise the entirety of the estate

Problem1 Q: A, B and C are instituted as heirs: A = 1/4, B = 1/4 and C = 1/4. The testator says that he is giving the entire estate to A, B and C. The estate is worth P120,000. Does the institution comprise the entire estate? No, because the institution only amounts to 3/4. How do we divide the estate among A, B and C? A: A = P30,000 B = P30,000 C = P30,000 ------------P90,000 P120,000 - 90,000 = P30,000 P30,000 / 3 = P10,000 Total share of: A = P30,000 + 10,000 = P40,000 B = P30,000 + 10,000 = P40,000 C = P30,000 + 10,000 = P40,000 -----------P120,000 Problem2 Q: A = 1/6, B = 1/8, C = 2/3. The estate is worth P120,000. A: A = (P120,000 / 6) * 1 = P20,000 B = (P120,000 / 8) * 1 = P15,000 C = (P120,000 / 3) * 2 = P80,000 ------------P115,000 A = (20,000 / 115,000) * 5,000 = P 869.565 B = (15,000 / 115,000) * 5,000 = P 652.179 C = (80,000 / 115,000) * 5,000 = P3,478.826 ---------------P5,000.00 Total share of: A = P20,000 + 869.565 = P20,869.565 B = P15,000 + 652.179 = P15,652.179 C = P80,000 + 3,478.862 = P83,478.862 -----------------P120,000.00 ARTICLE 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n)

•

Article 853 is the reverse of Article 852

Problem1 Q: A =1/4, B = 1/8, C = 2/3. The estate is worth P120,000. A: A = 1/4 * P120,000 = P30,000 B = 1/8 * P120,000 = P15,000 C = 2/3 * P120,000 = P80,000 -----------P125,000

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a)

•

•

Requisites of Preterition 1. The omission from the inheritance must be total or complete • No preterition in the following situations: a. If the compulsory heir is given a devise or a legacy, he is not considered preterited even if the legacy or devise is worth less than the legitime of the compulsory heirs. b. If the estate is worth P100T but the testator says, “I hereby institute my heir to one-half of my estate.” That is the only provision in the will. For example, A is a son, an heir. There is no preterition even if A is not mentioned because something is being left for A in the inheritance. c. As long as there is still a balance after all the provisions in the will have been given effect, there are still undisposed properties which the omitted compulsory heir may partake so there is no preterition. 2. The omission must be the compulsory heir in the direct line • Compulsory heirs: 1. The children whether legitimate or illegitimate 2. The parents in the absence of the children • A spouse is a compulsory heir but NOT in the direct line • By fiction of law, an adopted child is a compulsory heir in the direct line 3. The omitted compulsory heir must survive the testator.

•

If the omitted heir died ahead of the testator, there is no preterition because by reason of his early death, he is deemed not to have inherited from the testator

•

However, the omitted compulsory heir dies ahead and he has children who can represent him. There is representation wherein the representative is exalted to the position of the one they are representing. In this case, there is preterition. If there was a donation given to the compulsory heir during the lifetime of the testator, and such heir is omitted from the will, there is no preterition because he is not omitted from the inheritance. There must be omission from the inheritance, not merely from the will.

•

A = (P30,000 / 125,000) * 5,000 = P1,200 B = (P15,000 / 125,000) * 5,000 = P600 C = (P80,000 / 125,000) * 5,000 = P3,200 Total share of: A = P30,000 - 1,200 = P28,800 B = P15,000 - 600 = P14,400 C = P80,000 - 3,200 = P76,800 ------------P120,000 ARTICLE 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

PRETERITION is the total omission generally due to mistake or oversight by the testator in his will of one, some or all of the compulsory heirs in the direct line living at the time of the testator’s death. The omission may be voluntary or involuntary

•

The donations made to compulsory heirs during the lifetime of the testator, upon the death of the testator, the values of these donations are brought back to the value of the estate through collation.

Effects of Preterition 1. It shall annul the institution of heir (Article 854)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2.

The legacy or devise shall be valid in so far as they are not inofficious (do not impair the legitime).

ARTICLE 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. (1080a)

•

Article 855 talks about the share of a child or descendant omitted in the will.

•

This article can also be applied when what is at hand is merely an impairment of the legitime, so, you just have to complete the legitime.

•

Article 855 talks only of the legitime. concern of the Free Portion.

It has no

ARTICLE 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a)

•

The term voluntary heir here covers also legacies or devises. So, if a legacy or devise is given, it transmits nothing to the heir of the voluntary heir if the voluntary heir dies before the testator GENERAL RULE: If a compulsory heir is predeceases, is incapacitated or renounces or repudiates the inheritance, he transmits nothing to his own heirs. EXCEPTION : Right of Representation • This article speaks of an heir who predeceased the testator, incapacity and one who renounces the inheritance. But this article applies by analogy to DISINHERITANCE. A compulsory heir who is disinherited shall transmit no right to his own heirs except when there is Right of Representation. SECTION 3 Substitution of Heirs ARTICLE 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (n)

•

Article 857 speaks of substitution where there is appointment of another heir in default of another heir instituted. If the first heir cannot inherit for reasons provided for by law, then the testator may appoint a substitute in place of the original heir. The substitute will instead get the inheritance which should have pertained to the original heir

•

In substitution, there are also instances wherein both heirs, the original heir and the substitute inherit. That is covered by the case of what we call the FIDEICOMMISSARY SUBSTITUTION

•

As such, substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted or AFTER SUCH HEIR either one after the other or all at the same time.

2 Concepts of Substitution: 1. Direct Substitution – only one inherits. If the original heir defaults, then the substitutes inherit. (Article 857) 2. Indirect Substitution – the inheritance is assumed by 2 heirs. So, one inherits after the

other. (Fideicommissary substitution – Article 863) Purposes of substitution 1. To avoid intestate succession 2. To prevent the descent of the estate of the testator to whom the testator does not want to succeed him in his property whether by right of representation, or by right of accretion or by right of intestate succession 3. To allow the testator greater freedom to help or reward those who by reasons of services rendered are more worthy of his affection and deserving of his bounty than intestate heirs 4. To enable the testator to make arrangements for his succession in the manner most convenient for him 5. To realize some honorable purpose of the testator like the maintenance of the property within his property because in substitution, the testator to some extent may preserve the property within the confines of his own immediate family and prevent the estate from descending to the other legal heirs like the brothers or sisters •

You can have a substitute for a legatee or devisee because Article 857 applies to the free portion and not to the legitime

ARTICLE 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary. (n)

• • • •

Simple or Common - Article 859 Brief or Compendious –Article 860 Reciprocal – Article 861 Fideicommissary – Article 863

ARTICLE 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. (774)

•

The substitute inherits from testator, not from the person substituted

•

Under Article 859, if the original heir dies ahead of the testator or renounces the inheritance or becomes incapacitated then the substitution shall be effective even if the disposition is silent as to the cause of the substitution.

•

“Unless the testator has otherwise provide” : thus, the testator here is not precluded from providing other causes other than predecease, incapacity and renunciation

•

But if the disposition is silent, then it is presumed that the 3 causes mentioned under Article 859 are the ones being referred to by the testator

•

Substitution must be EXPRESSLY provided by the testator. No presumption that there is substitution.

Article 860. Two or more persons may be substituted for one, and one person for two or more heirs.

•

Article 860 talks about Brief or Compendious Substitution

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

BRIEF SUBSTITUTION is when 2 or more persons may be substituted for one heir (plurality of substitutes)

•

COMPENDIOUS SUBSTITUTION is when 2 or more heirs are instituted and one is appointed as substitute for all heirs originally instituted. (plurality of persons substituted)

•

But in compendious substitution, the substitute is for ALL the heirs. The substitute inherits if all the heirs die ahead of the testator, renounces the inheritance or becomes incapacitated.

•

If only one dies, renounces or is incapacitated, the concept of accretion is applied unless there are representatives

ARTICLE 861. If 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. (779a)

• •

Article 861 refers to Reciprocal Substitution where all the heirs are constituted as the substitutes of one another. Example 1: If the share of A is P 30,000 and the share of B is P 10,000, if A dies ahead of the testator, B will get A’s share even if A’s share is greater than B, unless the testator EXPRESSLY provides that the substitution of B to the share of A is only to the extent of the inheritance by B.

•

•

Fideicommissary substitution is an indirect substitution, where both heirs inherit one after the other

Example of a fideicommissary substitution: The testator has 2 heirs A and B. A first succeeds to the property, first acquired or enjoyed the property. But the enjoyment of A is subject to the condition that he should preserve the property and later on, upon conditions given by the testator, either upon death or repudiation or upon certain period, A will now transmit the property to B, the second heir. Both A and B enjoy the property. Although A here merely enjoy uses of the property, he is like a usufructuary because he cannot own the property because of his obligation to transmit the property to B. Aside from enjoying the property, B also owns the property with all the rights pertaining to an owner. Because of the obligation of A to preserve and transmit, A: 1. cannot absolutely alienate the property inter vivos or mortis causa 2. cannot make a will providing that the properties is given to another person Requisites of fideicommissary substitution: 1. The fideicommissary substitution must be expressly made How? a. By providing the name of the fideicommissary substitute or that this is a fideicommissary substitution b. By providing the obligation to preserve and obligation to transmit 2. There must be a first heir (fiduciary, fiduciaro, heredero or trustee)

Example 2: If there are more than 2 persons instituted where the estate is P 300,000 and the heirs are A, B and C. A’s share is P 100,000, B’s share is P 50,000 and C’s share is P 150,000. If A dies ahead of the testator, B and C shall have the same share in substitution as in the institution. Institution Substitution Total A (100T) B P 50T 50/200 * 100T = P 25T P 75T C P150T 150/200 * 100T = P 75T P 225T

A trustee or a trust has no right to enjoy the property

ARTICLE 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless the testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. (780)

USUFRUCTUARY Required to furnish a bond

GENERAL RULE: The substitute shall be subject to the same charges and conditions imposed upon the instituted heir. EXCEPTIONS: 1. When the testator has expressly provided the contrary 2. When the charges or conditions are only personally applicable to the person instituted

•

The first heir must have the capacity to inherit and has the obligation to preserve and transmit the estate in whole or in part TRUSTEE (TRUST)

Not entitled to refund.

Simple substitution, brief or compendious substitution and reciprocal substitution are examples of direct substitution, where the substitute inherits in default of the heir originally instituted. Their enjoyment of the property is in the alternative.

FIDUCIARY The fiduciary is not required to furnish a bond or security. Entitled to refund for expenses and for the increase in the value of the property by reason of its improvements

3.

There must be a second heir (fideicommissary or fideicomisario or beneficiary or cestui que trust)

ARTICLE 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a)

•

FIDUCIARY (FIRST HEIR) A fiduciary, although he has the obligation pertaining to a trustee in a trust, he can enjoy the property

•

The second heir receives the property from the first heir but the 2nd heir actually inherits from the testator, not from the first heir

•

The 2nd heir must be capacitated to inherit from the testator. He must not die ahead of the testator, must not be unworthy, and must not repudiate the inheritance from the testator. 4.

The second heir must not be beyond one degree from the first heir or the heir originally instituted

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2 views as to what “one degree” means: a. Some authorities before interpreted one degree as one transfer. b. Later on, it was clarified that degree means generation. One degree means one generation apart. The 1st heir and the 2nd heir must not be beyond one degree or one generation apart. You count one generation from the first heir not from the testator. The 2 nd heir must either be child or a parent of the first heir. • There is only fideicommissary substitution in natural persons

•

There can be no fideicommissary substitution in juridical persons because there is no generation to speak of when it comes to juridical persons 5. Both of the 1st heir and the 2nd heir must be living at the time of the death of the testator or at least conceived. ARTICLE 41 NEW CIVIL CODE. For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a)

ARTICLE 864. A fideicommissary substitution can never burden the legitime. (782a)

•

Legitime is imposed by law so the testator cannot deprive his heirs of their legitime and he cannot circumvent the law on legitime by imposing conditions, charges, burdens and substitutions upon the legitime

•

The rights of the compulsory heirs to their legitime are absolute except when there is a cause for disinheritance The fideicommissary substitution is only limited to the free portion

•

ARTICLE 865. Every fideicommissary substitution must be expressly made in order that it may be valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (783)

Obligations of the fiduciary: 1. to preserve the property 2. to deliver the property to the 2nd heir

he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784)

•

As long as the first heir and the second heir did not predecease the testator, then, their rights become vested upon the death of the testator

•

Whether the 2nd heir dies ahead or after the 1 st heir, this would not defeat the right of the 2 nd heir to inherit.

•

If the 2nd heir dies ahead of the 1st heir, his rights shall pass to his own heirs

•

The second heir can sell the property even if he still cannot enjoy the property because the usufruct still belongs to the 1st heir. This is because the second heir acquired his title as naked owner upon the death of the testator. But the buyer is also subject to the right of the first heir to enjoy the property.

ARTICLE 867. The following shall not take effect: (1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in Article 863; (3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in Article 863, a certain income or pension; (4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. (785a)

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir

•

(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863

•

Any perpetual prohibition on the fiduciary to alienate the property is just okay because in the first place he is prohibited from alienating the property

•

If only for a period example 10 years, he is prohibited from disposing the property for 10 years but after 10 years he can alienate BUT ONLY to the 2ND HEIR

•

If the testator says in his will that he is prohibiting his heirs from alienating the property forever, it is void insofar as it exceeds the 20th year. If it is up to 100 years, it is valid only up to 20 years. Prohibition to alienate is only up to the first degree

•

3.

If the institution is SILENT as to the date when the delivery should be made, it should be MADE AT THE TIME OF DEATH OF THE FIDUCIARY or 1ST HEIR. If there is a period stated by the testator, then, that period should be followed. to make an inventory of the property

Deductions the fiduciary can make out of the property: 1. legitimate expenses 2. credits 3. improvements ARTICLE 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though

The fideicommissary substitution must be an obligation. If it is just a suggestion or an advice, then that is not fideicommissary substitution. When we say obligation, the heir has no choice but to comply.

•

(3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in Article 863, a certain income or pension

• •

The successive payments shall only be limited to those heirs one degree from the first heir This paragraph applies if the obligation to pay is successive, not simultaneous

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator • This is not allowed because we do not know what were the instructions made by the testator to such person ARTICLE 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786)

•

If the fideicommissary substitution is not valid because the obligation to preserve and transmit were not expressly made or because the second heir dies ahead of the testator, there is no more fideicommissary substitution. The first heir will still get the property. It becomes a simple substitution. ARTICLE 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of article 863 shall apply. (787a)

• •

•

•

•

•

If the testator gives the usufruct to A and the naked ownership to B, this is valid If the testator gives the naked ownership to A and to B and C the usufruct, remember in Property that the usufruct in favor of as many persons who will claim successively is not allowed If the testator gives to A the naked ownership and the usufruct to B and when B dies, C will succeed B to the usufruct and if C dies, D will succeed to the usufruct, then, the transfer from B to C is valid. But C to D is no longer valid because it is beyond the limit under Article 863. If B, C and D are just friends, from B to C and C to D, all are not valid because are not one degree. If he gives the usufruct to various persons successively, then, it will partake the nature of a fideicommissary substitution. The heirs will be bound by the provisions of Article 863 insofar as the degree is concerned. The first person who enjoys the usufruct and the second person enjoying the usufruct should not be beyond one degree, if we are talking of successive enjoyment of property. If it is simultaneous, we do not have to observe the rules on fideicommissary substitution

ARTICLE 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. (n)

•

Article 870 provides the period within which the testator may limit the disposition of his property which is only up to 20 years only.  If 20 years valid.  If MORE than 20 years, what is void is merely the excess.



If the prohibition is silent, it is considered as 20 years. The same is true if the prohibition is forever.

SECTION 4 Conditional Testamentary Dispositions and Testamentary Dispositions With a Term ARTICLE 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a)

•

There is no need of institution in the case of legitime because regardless of the intention of the

•

testator, the compulsory heirs are entitled to their legitimes Institution refers to the free portion

4 Kinds of Institution: 1. Simple or Pure Institution – It is an institution that takes immediately after the death of the testator. It is absolute and not subject to any condition, charge or burden. 2. Conditional Institution – It is an institution which is subject to a condition. There are different kinds of condition, e.g. as to cause, as to effect, as to mode. Conditional institution can be found in Articles 871-877 and Articles 883884 3. Institution with a Term – It is an institution that which is subject to a term which must necessarily come, although not known when. An example is when the testator institutes A as an heir but A will only receive the inheritance 5 years after the death of the testator. It is sure that A will receive the inheritance but only upon the death of the testator. 4. Modal Institution – It is an institution that which for a certain purpose or cause or that which is provided under Articles 882 and 883.

•

CONDITION in Obligations and Contracts is a future or uncertain event or a past event unknown to the parties

•

CONDITION in Succession is a future or uncertain event or a past event unknown to the parties upon which the acquisition or extinguishment of a right under a testamentary disposition is made subject The condition must be express

•

•

A TERM is a day or time which necessarily comes although it may not be known when

Kinds of Condition: 1. As to Cause a. Potestative Condition the fulfillment depends exclusively upon the will of the heir, devisee or legatee. b. Casual Condition - depends upon chance or the will of a third person c. Mixed Condition - depends partly upon the will of the heir and partly upon chance or the will of a third person. 2. As to Effect a. Suspensive Condition the happening of which gives rise to the inheritance b. Resolutory Condition the happening of which extinguishes the right to the inheritance. 3. As to Mode a. Positive Condition to do something that would happen. b. Negative Condition to do something that will not happen or that should not be done. 4.

As to Form a. Express Condition b. Implied Condition

ARTICLE 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

•

The legitime should not be impaired There is only one prohibition which can be imposed upon the legitime and that is, the testator can validly provide that the legitime should not be partitioned/divided for a period not exceeding 20 years. Although it is not really considered an impairment because the properties are still properties of the compulsory heirs although they shall not divide the properties for more than 20 years.

ARTICLE 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a)

•

Article 873 talks of impossible conditions imposed in the institution of heirs

•

In succession, when there is an impossible or illegal condition then, the institution is still valid. Just disregard the impossible or illegal condition. This is because in succession, the underlying reason for the institution is the liberality of the testator and not really the illegal or impossible condition. The legality or illegality of the condition is to be determined at the time when the condition is to be performed

•

ARTICLE 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. (793a)

•

Article 874 refers to the prohibition to marry or remarry

•

RELATIVE PROHIBITION is allowed. But if this would amount to an absolute prohibition like to marry for 60 years then it is not allowed. An example is prohibition to marry or re-marry a particular person or prohibited to marry a particular time

•

ABSOLUTE PROHIBITION is not allowed. An example is prohibition to marry or re-marry anybody or prohibited to marry at all The effect of an absolute prohibition is that it will be considered as not written and shall be disregarded

•

Exceptions to Absolute Prohibition a. When the condition is imposed upon the spouse by a deceased spouse b. If imposed by the ascendants or descendants of a deceased spouse to the spouse of a deceased spouse

•

Even if it is the deceased spouse who provides for the prohibition, that prohibition will not apply to the legitime of the spouse. Only that which pertains to her as a voluntary heir (free portion) is forfeited

•

In the 1st paragraph of Article 874, the property is not yet enjoyed. In the 2nd paragraph, there is already the right of usufruct or allowance or some personal prestation. That is allowed but it is only limited to usufruct, allowance or personal prestation. If it is not among these 3, it is not considered as a valid prohibition.

ARTICLE 875. Any 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 shall be void. (794a)

•

Article 875 is CAPTATORIA

•

Disposition Captatoria is when the testator in his will institutes A as his heir provided that A will also give the testator a certain property or give to the son of the testator certain property

•

It is prohibited the controlling motive or the main consideration in succession is the liberality of the testator. If you make that kind of provision, then you are making testamentary privilege as a contractual privilege. You are turning your will into a contract. Both the institution and the condition are VOID If it is a Deed of Donation, there is no disposition captatoria since the law refers to a will

• •

what

we

call

DISPOSITION

ARTICLE 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator's death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again.

•

POTESTATIVE CONDITION is the condition the fulfillment of which depends upon the sole will of the debtor (in obligations and contracts) or of the heir (succession)

Potestative Condition in Obligations and Contract Valid But when it is suspensive at the same time on the part of the debtor, it is not valid. This means that the obligation will arise if subject to a condition which is to be fulfilled by the debtor. That is what is potestative and suspensive. It is not valid because naturally the debtor would not fulfill the condition because if the condition is fulfilled then he is obliged already because he is the debtor

Potestative Condition in Succession Valid because the heir is naturally interested in fulfilling the condition. So even if potestative and suspensive, the condition is still valid.

•

The potestative condition is to be complied with as soon as the heir learns of the testator’s death because since the will is revocable during the lifetime of the testator, it would be useless for the heir to comply with the condition knowing that it may be revoked by the testator anytime

•

Only substantial compliance is required because it is presumed that by imposing a purely potestative condition the testator trusted the heirs enough to comply with the condition

•

As a general rule, if already complied with by the heir, it must be complied with again unless it is of such a nature that it cannot be complied with again

ARTICLE 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. (796)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

• •

Article 877 talks about casual or mixed condition

•

MIXED CONDITION is a condition which depends upon 1. the will of the heir AND upon chance; or 2. the will of the heir AND upon the will of a 3rd person

•

Example of a mixed and casual condition: “I hereby give to A my jewelry provided that A will bear a child”

•

There must be actual or strict compliance because by subordinating the condition upon chance, the testator presumably did not trust the heir enough

CASUAL CONDITION is a condition which depends upon chance and/or upon the will of a third person

ARTICLE 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. (799a)

• •

Article 878 talks about suspensive term

•

When the disposition is subject to a suspensive term, it means that the heir is sure to inherit but the demandability of the inheritance is just suspended. The heir is not prevented from acquiring his right when the institution is subject to a suspensive term. The right of the instituted heir becomes vested from the moment of the death of the testator, although the enjoyment of the property is just suspended. What is suspended is just the demandability of the inheritance but his right to demand becomes vested upon the moment of death.

A term is a day certain which must necessarily come although it may not be known when

•

In a suspensive condition, unless the condition is fulfilled, the instituted heir acquires no right to the inheritance.

• •

In TERM, the rights will pass

•

When institution is subject to a condition, the acquisition of rights must be determined AT THE TIME OF THE FULFILLMENT OF THE CONDITION. So, at the time of the fulfillment of the condition when the heir is already dead then, there is no right to speak of. The testator can institute can heir subject to a resolutory term because the law does not prohibit it

•

In CONDITION, until after the condition is fulfilled, then the heir instituted has no right to demand.

ARTICLE 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. (800a)

•

If the heir contravenes the condition, the heir will now return what he or she received by way of inheritance and all the fruits and interest

•

When monthly allowance, monthly pension, monthly income, usufruct or personal prestation are given by way of inheritance and the heir is prohibited from doing something, otherwise, he shall forfeit the inheritance, there is no requirement of giving a security. If the heir contravenes the condition, the heir is not obliged to return the fruits and interest because in this example we apply by analogy Article 874 wherein no security is required and the heir is not required to return the fruits and interest.

ARTICLE 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. (801a)

•

Article 880 refers to a situation wherein the institution is subject to a suspensive condition or term

•

When the institution is subject to a suspensive term or a suspensive condition, the heir instituted will NOT get the inheritance right away. The heir instituted still will have to wait for the arrival of the term or for the happening of the condition. Pending the arrival of the term or the happening of the condition, the property but shall be placed under administration.

•

As to who will be selected as the administrator, the provisions of the Rules of Court in Special Proceedings must be complied with. Those who are preferred in the appointment as administrators are also the legal heirs.

•

The property is also placed under administration if is bond is not furnished

ARTICLE 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a)

•

This article speaks for the appointment of administrator, which are discussed in Special Proceedings

•

Administrator is a person appointed by the court to take care of the properties of the testator who died without a will

•

Executor is the person provided by the testator in his will who will take care of his properties pending settlement of his estate

Article 879 talks of NEGATIVE POTESTATIVE CONDITION, a condition that is purely dependent upon the will of the heir, devisee or legatee which consists of not doing or not giving something Under this article, inheritance is immediately demandable from the moment of death of the testator

ARTICLE 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. (797a)

•

But, the heir or devisee must give a caucion muciana

•

•

CAUCION MUCIANA is the security given by an heir who is subject to a potestative condition which is negative or who is subject to the condition which consist in not doing or not giving something

Article 882 refers to MODAL INSTITUTION (2001 Bar Question)

•

MODAL INSTITUTION is the institution wherein the statement of the object of the institution, or the application of the property left by the

•

•

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention.

•

If the heir does not comply with the object or the attestation and the purpose of the institution, the heir forfeits the inheritance

•

If the institution is subject to a mode, the heir immediately enjoys the property

•

The heir is required to furnish a security so that he will do what has been imposed by the testator

•

If there is doubt as to whether the institution is a mode or condition, it is resolved in favor of a mode because we have to consider that the real reason in the institution is the liberality of the testator According to Paras, if there is a doubt as to whether it is a mode or a suggestion, it is considered as a suggestion because it is less burdensome

•

MODE This refers to: a. t he object of the institution; b. t he application of the property; and c. c harge Heir immediately enjoys the property upon the death of the testator, provided he has furnished security It is obligatory upon the instituted heir and so, he has to comply with the object of the institution or the burden imposed by the testator. The failure to do so would result in the forfeiture of the inheritance When you are in doubt, treat the same as a mode because when there is a condition, the burden is heavier. A mode merely obligates but does not suspend.

CONDITION If it refers to other things, you can say that they are conditions.

Heirs do not enjoy the property after the death of the testator but only upon the fulfillment of the condition It is not obligatory upon the part of the heir because the condition may or may not happen

•

• •

•

fulfilling when a so that testator

ARTICLE 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. (791a)

•

An example of the same rule on conditions applied both to succession and obligations and contracts is an institution subject to a resolutory condition. Just like in obligations and contracts, the heir immediately enjoys the property. But upon the fulfillment of the resolutory condition the heir ceases to enjoy the property. The happening of the condition gives rise to the extinguishment of the right to the inheritance

•

If there are specific provisions in succession referring to conditions and these conditions are not the same as in obligations and contracts, the provisions in succession shall prevail

•

In succession, an impossible condition shall be considered as not written and so, the institution shall still be given effect. In obligations and contracts, if the obligation is subject to an impossible condition both the condition and the obligation are annulled

•

ARTICLE 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. (805)

• But if the condition happens, the burden is heavier because a condition obligates AND suspends.

ARTICLE 883. When without the fault of the heir, an institution referred to in the preceding article 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. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. (798a)

•

•

that other persons prevented him from his obligation. Example of constructive fulfillment is third person cuts the hand of the heir such heir cannot paint a portrait of the anymore.

Article 883 talks about substantial compliance or constructive fulfillment Without the fault of the heir instituted, the obligation cannot be fulfilled by the heir exactly in the manner stated by the testator. But as long as it is substantially in accordance with the obligation imposed then the institution will take effect. Example of substantial compliance is when the heir is obligated to paint a portrait of the testator but the portrait is not an exact resemblance of the testator. Nevertheless, there is substantial compliance. Even if the obligation cannot be fulfilled with, still, it is as if it is fulfilled by constructive fulfillment. The instituted heir should not be prejudiced by the fact

This article talks about an institution subject to either a suspensive term or resolutory term

•

If it is subject to a suspensive term, the demandability of the property inherited shall be suspended until after the arrival of the term. If in the meantime the instituted heir dies before the arrival of the term, his rights shall pass on to his own heirs because the heir already acquired rights to the property from the moment of death although the demandability is just postponed.

•

If the institution is subject to a resolutory term, immediately after the death of the testator, the heir enjoys the property and upon arrival of the term the heir shall return the property. Instances wherein the legal heirs or the instituted heirs are to give a security: 1. When the institution is subject to a suspensive term, the legal heirs can enjoy the property pending the arrival of the term provided that the legal heirs shall give security (Article 885); 2. In modal institution, the heir instituted subject to a mode shall give security before the heir can enjoy the property (Article 882); and 3. When the institution is subject to a negative potestative condition or consists in not doing or not giving then the heir instituted must also give a security which is called caucion muciana (Article 879).

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

SECTION 5 Legitime

children, it is when the ascendants or parents inherit. It is either the legitimate children or descendants, parents or ascendants. They will not concur.

Simpler Table of Legitime (from the book of Paras) Illegitimate Children – 1/3 Surviving Spouses – 1/3 Illegitimate children – ¼ Surviving Spouse – 1/8 Legitimate Parents – ½ Illegitimate Children – ¼ Legitimate Parents – ½ Legitimate Parents – ½ Surviving Spouse – ¼ Illegitimate Parents – ¼ Surviving Spouse – ¼ Illegitimate Child alone – ½ Legitimate Parents alone –½

•

Illegitimate Parents – ½ Surviving Spouse – ½, 1/3, ½ Legitimate Child alone – ½ 1 Legitimate Child – ½ Surviving spouse – ¼ 2 or more legitimate children – ½ Surviving spouse - same as 1 legitimate child Legitimate Child – ½ Illegitimate child – ½ of each legitimate child

ARTICLE 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (806)

•

When it comes to foreigners, the intrinsic validity of the will shall be governed by the national law of the decedent. So, if in their country there is no system of legitime, the will is still valid. • Philippines follows a system of legitime

•

The purpose of providing for legitimes is to protect the compulsory heirs of the testator because the testator by his passion, prejudice might just omit his compulsory heirs. ARTICLE 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in article 287. Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a)

•

This has been already qualified by the Family Code because the Family code does not mention acknowledged natural children or natural children by legal fiction. We only have legitimate children and illegitimate children.

•

Article 887 enumerate compulsory heirs

who

are

the

Illegitimate children concur with legitimate children. They concur with the parents or ascendants. They concur with the surviving spouse. Illegitimate children are concurring compulsory heirs • Brothers and sisters are not compulsory heirs ARTICLE 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (808a)

• The legitime of legitimate children is ½ of the net hereditary estate • The legitime of the surviving spouse and illegitimate children shall be taken from the free portion. What remains is the free disposal • Tip: Compute first the legitime of the children before the spouse provided there are 2 or more legitimate children ARTICLE 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants. The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (809a)

•

The legitime of legitimate parents is ½ of the net hereditary estate. It is the same because legitimate parents inherit in the absence of legitimate children.

•

If the parents are legitimate, they are excluded only by the presence of legitimate children. They concur with illegitimate children. • But if the parents or ascendants are illegitimate, they are excluded even by the presence of illegitimate children or descendants. ARTICLE 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor. If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. (810)

• This is the inheritance of the parents or ascendants

•

Observe the rule on proximity – the nearer relatives exclude those who are farther • In the ascending line, there is no right of representation • Always remember to divide equally between the maternal side and the paternal side

•

The word compulsory means that the testator cannot deprive the heir of their share but the heir has the liberty whether or not to accept the inheritance. It is not compulsory upon the heirs to accept but is compulsory upon the testator to provide something for his heirs.

•

The primary compulsory heirs the legitimate children, widow or widower, and illegitimate children. They inherit all at the same time. They concur with each other.

•

The legitimate parents are secondary compulsory heirs. In the absence of legitimate

ARTICLE 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (871)

•

Article 891 talks about RESERVA TRONCAL

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

• The purpose of reserve troncal is to prevent the property of one family from falling into the hands of another family • The concepts of reserve troncal is to return the property from where it originally came from

•

The concept of reserva troncal is actually a burden or restriction or a charge on the legitime of the ascendant. Parties involved in Reserva Troncal: 1. Origin of the property 2. Propositus 3 Reservor or reservista 4. Reservees or reservatorios Origin

Reservor

Reservees

Propositus ORIGIN

•

The origin must be a legitimate relative, either the legitimate mother or father or ascendant or legitimate half-brother or half-sister • It cannot be full blood brothers and sisters because there would be no distinction as to the line.

•

The property transferred from the origin to the propositus must be OWNED by the origin PROPOSITUS

•

The propositus must be a descendant of the origin or of the half brother or half sister. It must be a legitimate relationship.

•

The transfer from the origin to the propositus should be by gratuitous title, which is either the origin donated the property to the propositus or the propositus inherited the property from the origin.

•

The propositus, there being no obligation to reserve yet on his part, can just dispose the property to anybody. He can use the property or he can destroy the property. That is why the propositus is called the ARBITER of the reserve because it is within the hands of the propositus whether or not the reserve will arise. If the propositus will destroy the property, then reserva troncal cannot arise. If the propositus reserves the property until his death, then reserve troncal may arise. If the propositus has children of his own, then reserve troncal cannot arise.

•

Upon the death of the propositus, the obligation to reserve will now arise. The propositus died with no issues and no children, then, the same property received from the origin is transferred to the reservor (ascendant) by OPERATION OF LAW.

•

When the propositus died with a will, what is transferred by operation of law is the portion corresponding to the legitime of the reservor. If there is NO will, the entire property is transmitted to the reservor by operation of law.

•

The very same property received by the propositus from the origin must be the same property transferred to the reservor • If the origin (ascendant) left an insurance policy where the propositus was the beneficiary, there is no reserve if the cash received by the propositus was inherited by his mother because the proceeds from the insurance policy were not received by the propositus from the origin but from the insurance company. RESERVOR

•

The reservor is not merely a usufructuary. He is the full owner of the property. He can alienate, donate or pledge the property. He owns the property but his ownership is subject to a RESOLUTORY CONDITION. Upon the happening of the resolutory condition, the ownership of the reservor will be extinguished.

•

The resolutory condition is that upon the death of the reservor, there must be reservees or relatives of the descendant propositus who are LIVING AND WITHIN THE 3RD DEGREE OF CONSANGUINITY from the descendant propositus. Upon the happening of this resolutory condition, the ownership of the reservor is extinguished.

•

But the disposition again is also subject to the resolutory condition that upon the death of the reservor (ascendant), if there are living reservees, then the effect of the alienation becomes ineffective.

•

If the reservor sold the property to a third person, the obligation of the reservor, if it is a personal property, is not to return but the estate of the reservor must pay the value to the reservees.

•

If what was sold was a real property, if the 3 rd party is NOT innocent, as such that he knows that the property is subject to the reserve troncal, then that 3rd party is obliged to return the properties to the reservees.

•

But if the 3rd party is an innocent purchaser or innocent mortgagor, then the right of the reservees consists of demanding payment from the estate of the reservor or demanding payment from the Assurance Fund under the Land Registration Authority.

•

Obligations of the reservor during the subsistence of the reserve: 1. The reservor must make an inventory of the property received by operation of law from the descendant; 2. He must register the inventory with the Registry of Property; 3. If the property received from the descendant is Real property, then the reservor has the obligation to furnish a bond, mortgage or security to insure the safe delivery of the property to the reservees who might be living at the time of the death of the reservor; 4. If the real property is already registered, then the reservor is obliged to annotate the reserve. He must do this within 90 days from the time he received the property from the descendant or from the time the court makes a decision that the reservor is entitled to receive the property. If the reservor does not make the annotation, then the reservees have the right to file an action to compel the reservor to make the annotation but they must wait after the lapse of 90 days. The annotation itself is sufficient protection or if there is no annotation, bond, security, or mortgage must be furnished. 5. The reservor also must not substitute the property with another. The same property received from the origin and from the descendant must be same properties to be given to the reservees Exceptions: 1. If the property is sold to the innocent purchaser for value, in effect the obligation of the reservor is substituted with the obligation to pay money to reserve;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2.

If the property is lost or destroyed without the fault of the reservor, then the obligation is extinguished.

•

The reservees may intervene in the land registration proceeding not for the purpose of opposing the registration but for the purpose of having their claim to the reserva being annotated to the title • If the reservees did not intervene in the said proceedings, within 1 year, they can file for a review of decree of registration so that they can cause the annotation thereof. But they can no longer do so beyond the 1-year period if the purchaser is innocent. If the purchaser is not innocent, the 1-year period does not apply. The purchaser may still be obliged to return the property because knowledge is equivalent to registration. RESERVEES

•

Reservees are 3rd degree relatives of the propositus.

•

Upon the death of the reservor, if there are still relatives within the 3rd degree of the propositus who are still living, then the ownership of the reservor is extinguished and the property will now go to the reservees.

•

The reservees inherit from the propositus, not from the reservor. The reservor is actually a conditional heir of the propositus. • The reservees already have rights to the property but their inheritance is subject to the condition that they must be living at the time of the death of the reservor.

•

During the lifetime of the reservor the reservees can compel the reservor to furnish bond, security, mortgage or to annotate the reserva because they already inherit such property although conditional. But the right of action of the reservees commences only from the death of the reservor. As long as the reservor is alive, if the reservor sells the property to the 3rd person, the reservees cannot impugn the sale made by the reservor. They only have the right to demand that the reservor annotate the reserva or that the reservor give security, bond or mortgage. • Reservees can sell the property themselves even if the reservor is still alive.

•

This is not a case of future inheritance because the reservees inherit not from the reservor but from the propositus. This is a case of sale of future property or emptio rei speratae. The sale of future property is valid subject to the condition that it should exist. ARTICLE 1461 NEW CIVIL CODE. Things having a potential existence may be the object of the contract of sale. The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the thing will come into existence. The sale of a vain hope or expectancy is void. (n)

How to know that a relative is within 1st, 2nd or 3rd degree? 1st degree: parents, 2nd degree: grandparents, brothers and sisters 3rd degree: great grandparents, uncles and aunts, nephews and nieces

•

Collateral relatives are uncles brothers & sisters, nephews & nieces

•

&

aunts,

Relatives in the direct line are parents, grandparents and the great grandparents

• Reserva troncal determines only a class of relatives who would be entitled to the property after the death of the testator. But as to who will specifically be entitled to the property, follow the rule on legal or intestate succession • In legal or intestate succession, the nearer relatives exclude the farther. Those who are in the descending line are favored than those who are in the ascending line. And those who are in the direct line are favored other than those who are in the collateral line. The obligation of the reservor’s estate upon his death if the property deteriorates includes: 1. reimburse the reservees for the value of the deterioration from the security furnished by the reservor; or 2. claim reimbursement from the estate of the reservor. 2 theories on the value of the reserva: 1. Under the theory of RESERVA MAXIMA, all that can be embraced or included in the legitime shall be considered as reservable property. 2. Under the theory of RESERVA MINIMA, only HALF of the property received from the origin to the descendant is transferred to the ascendant reservor as legitime. Example: Propositus inherits a land worth P500,000. Upon his death, he also has P 1M worth of properties aside from the P 500,000.The descendant propositus has no issues and thus, all his properties will go to his father (ascendant). The descendant made a will giving all his properties to his father. If the father has no other properties, how much should be the value of the properties came from the propositus should the reservor (father) reserve in favor of the reservees?

•

The legitime of the ascendant is P750,000, which is from P 1.5 M divided by 2. Under the theory of reserve maxima, the reservable property is that which can be embraced in the legitime. As such, the entire P 500,000 is reservable because it can be embraced in the whole legitime worth P 750,000. Out of the legitime, P 500,000 is reservable and P 250,000 is property owned by the descendant.

•

Under the theory of reserva minima, only half of the property received from the origin to the descendant is reservable. So, half of P 500,000 and half of P 1M will be part of the legitime, which is equal to P 750,000. Thus, the reservable property is only P 250,000, which is half of the property received from the origin to the descendant. Example: Propositus inherits a land worth P 1M. Upon his death, he also has P 500,00 worth of properties aside from the P 1M.The descendant propositus has no issues and thus, all his properties will go to his father (ascendant). The descendant made a will giving all his properties to his father. If the father has no other properties, how much should be the value of the properties came from the propositus should the reservor (father) reserve in favor of the reservees?

•

The legitime of the ascendant is P750,000, which is from P 1.5 M divided by 2. Under the theory of reserve maxima, the reservable property is that which can be embraced in the legitime. As such, only P 750,000 is reservable because it is only up to such amount that can be embraced in the whole legitime worth P 750,000.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

Under the theory of reserva minima, only half of the property received from the origin to the descendant is reservable. So, half of P 1M and half of P 500,00 will be part of the legitime, which is equal to P 750,000. Thus, the reservable property is only P 500,000, which is half of the property received from the origin to the descendant.

•

The reserva maxima theory is more in keeping with Article 891. Reserva minima is more in keeping with equity and justice. What is followed is reserva minima. If there is no will: • The entire property which came from the other ascendant is reservable because the entire property was transferred to the ascendant by operation of law because there is no will. So, the entire P 500,000 is reservable from the first example and the entire P 1M is reservable from the second example if there was no will.

•

When there is a will, only that part which corresponds to the legitime is transferred by operation of law. • But if there is no will then everything is reservable How is reserva maxima extinguished? 1. Upon the death of reservoir

2.

Upon the death of ALL the would-be reservees ahead of the reservoir 3. Upon the loss of the reservable properties without the fault or negligence of the reservoir 4. Upon prescription – Adverse possession as against reservees by the reservoir or a stranger of the reservable property as free from reserva for 30 years if it is a real property and 8 years if it is a personal property. In order for prescription to run, the fact that the reservor repudiates or hold the property free from the reserva must be communicated to the reservees, the reservees must know that the reservor is holding the property as free from the reserva otherwise there will be no prescription. 5. Upon registration under the Torrens System as free from the reservation. 6. Upon renunciation or waiver by ALL reservees AFTER the death of the reservoir • Reservable property is not extinguished by the government. It will just continue on the indemnity or just compensation • If the reservable property is insured and then, destroyed, there is reserve on the insurance indemnity or proceeds thereof Bar Question: What do you understand by the DELAYED INTESTACY THEORY? This is the theory that is applied in RESERVA TRONCAL. Remember, in RESERVA TRONCAL, the reservor inherits from the propositus. The reservee also inherit from the propositus. However, the inheritance by the reservee from the propositus is delayed until after the death of the reservor. The inheritance of the reservee from the propositus is by virtue of legal or intestate succession. Remember, even if the propositus dies testate or with a will, that only refers to the inheritance of the reservor. But, with respect to the reservee, what governs is the law on legal or intestate succession. That is the concept of DELAYED INTESTACY – when the resolutory condition of the reservor is fulfilled, the properties are distributed to the reservees as if they are inheriting from the propositus at the time of the

fulfillment of the condition. Since there is no will, then, the reservees inherit by virtue of intestate succession, the decedent being the propositus. The inheritance of the reservees are delayed. ARTICLE 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (834a)

•

If there is only one legitimate child, the legitime of the surviving spouse would be ¼ of the net hereditary estate to be taken from the free portion

•

The guilty spouse shall be disqualified from inheriting from the innocent spouse but the innocent spouse can still inherit from the guilty spouse. • If there are 2 or more legitimate children, the surviving spouse can inherit from the deceased even if there was legal separation and the deceased spouse gave cause for the legal separation ARTICLE 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate. (836a)

•

In here, the surviving spouse concurs with the legitimate ascendants. There are no legitimate children

•

The share of the legitimate ascendant is onehalf. The share of the surviving spouse is ¼ to be taken from the free portion • In order to memorize effectively, you have to memorize first the share of the surviving spouse. ARTICLE 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (n)

• In this scenario, the survivors are the spouse and the illegitimate children. • The share would be 1/3 each. The remaining 1/3 would be the free portion. • The share of the surviving spouse is not taken from the free portion • The legitimes of the legitimate children and the legitimate parents would always be ½ • The legitimes of the surviving spouse and the illegitimate children may vary. ARTICLE 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (840a)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

Note that under the Family Code, there are no longer acknowledged natural, natural child by legal fiction. We only have legitimate or illegitimate children.

•

With respect to illegitimate children, they are entitled to one-half of the share of one legitimate child

•

In the distribution of legitimes, you first have to satisfy the legitime of legitimate children and then, the surviving spouse which should be taken from the free portion. And whatever remains, divide it equally among the illegitimate children ARTICLE 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a)

• In this scenario, the illegitimate children survive with the legitimate parents of the testator • ½ to the parents and ¼ to the illegitimate children

•

Illegitimate children DO NOT exclude the legitimate parents or ascendants whereas legitimate children excludes legitimate parents or ascendants ARTICLE 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. (n)

•

The widow or the surviving spouse concur with legitimate children and illegitimate children • If there is only 1 legitimate children, the surviving spouse gets ¼

•

If there are 2 or more legitimate children, the spouse shall be entitled to a share which is equivalent to a share of one of the legitimate child • For the illegitimate children, the share would be ½ of the share of 1 legitimate child

ARTICLE 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article. (n) ARTICLE 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n)

• The survivors here are the legitimate parents, illegitimate children and the spouse. • To the legitimate parents ½, to the illegitimate children ¼ to be taken from the free portion and to the surviving spouse 1/8 to be taken from the free portion. ARTICLE 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (837a) If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the

legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n)

•

The only survivor here is the spouse

GENERAL RULE: The spouse shall be entitled to ½ of the net hereditary estate if he/she is the only survivor. EXCEPTION: The spouse shall be entitled to 1/3 if: 1. The marriage was celebrated in articulo mortis and 2. the other spouse died within 3 months from the celebration of the marriage

•

The spouse who is at the point of death during the marriage must be the one who should die

•

The cause of death must be the very same reason why the marriage was in articulo mortis EXCEPTION TO THE EXCEPTION: Surviving spouse gets 1/2 even if the testator or the testatrix died within 3 months from time of celebration of marriage wherein the couple had been living previously as husband and wife for more than 5 years

•

This provision is only true with respect to testate succession. When it comes to intestate or legal succession, this provision does not apply. ARTICLE 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator. (842a)

•

The only survivors here are the illegitimate children. They are entitled to ½ of the estate. The other half is considered as the free portion. ARTICLE 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a)

•

If the illegitimate child died ahead of his parents and he also has his own children legitimate or illegitimate, all of these children will inherit by Right of Representation. They will get whatever rights their parents have.

•

The right of an illegitimate child passes to his children whether legitimate or illegitimate.

•

In the case of a legitimate child, his own illegitimate child cannot represent. ARTICLE 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n)

• The parents under this article are the illegitimate parents (parents of an illegitimate child)

•

The presence of legitimate children will exclude the legitimate parents. But legitimate

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

parents, in the absence of legitimate children, will concur with the illegitimate children.

•

With respect to the illegitimate parents of the testator, they are excluded by the presence of the children of the testator whether his children are legitimate or illegitimate. • The illegitimate parents are only secondary compulsory heirs because they inherit their legitimes only in the absence of the legitimate or illegitimate children or descendants of the decedent • Article 903 refers to only to illegitimate parents and not to other ascendants like the parents of the illegitimate parents.

•

Thus, the rule here is different from the case of the grandparents of a legitimate child, for they may inherit in default of both legitimate parents ARTICLE 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. (813a)

• Even without the will of the testator, the compulsory heirs are always entitled to their legitimes

•

The only way to deprive the compulsory heirs of their legitime is by expressly disinheriting them in a will, wherein the legal cause therefore shall be specified. • Only the Free portion of the estate that the testator can give away is subject to certain condition, substitution or burden.

•

But the law states except in cases expressly specified by law. Burdens that the testator may impose on the legitime: In accordance with law: 1. A prohibition to partition the legitime is valid for a period not exceeding 20 years 2. Reserva Troncal is also a burden insofar as the legitime of the reservor or reservista is concerned. ARTICLE 905. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. (816)

•

During the lifetime of the testator, the heirs only have inchoate right over the properties of the testator as well as to their legitime • The right to their legitime only becomes vested when the testator dies

•

•

You can waive your right to the inheritance and that can be executed because from the moment of death of the testator, the right of heirs to the estate already becomes vested even if there is still no distribution. ARTICLE 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. (815)

•

Article legitime

906

talks

about

completion

of

•

In this case, a compulsory heir has been given his legitime by means of donation, condonation, remission, devise, legacy as long as the giving of the title is gratuitous COMPLETION OF LEGITIME (Article 906) Part of the estate is given to the compulsory heirs although the amount is equivalent to the legitime but less than the legitime. All you have to do is to give whatever amount that is lacking. The will remains

PRETERITION There is total omission so nothing is given to the compulsory heir during the lifetime or in the will, nothing at all in the inheritance. We annul the institution of heirs. The will is invalidated but legacies and devises which are not inofficious shall be respected.

ARTICLE 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. (817)

•

Article 907 talks about testamentary disposition that impair or diminish the legitime of compulsory heirs

•

By analogy, this article applies to donation inter vivos. Donations which impair (donation inter vivos) the legitime shall be reduced on petition of the compulsory heirs.

•

When you apply inofficious donation, only the compulsory heirs can assail that the donation shall be reduced because it impairs their legitime.

•

The creditor cannot petition that donation inter vivos which are inofficious be reduced ARTICLE 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. (818a)

There can be no renunciation or compromise that can be made based upon a right that is yet an expectancy or an inchoate right • Even if the compromise is made among the compulsory heirs themselves, such compromise would still not be valid. • There can be renunciation of or compromise on present legitime because the subject matter is no longer a future inheritance

• If you do not arrive at the correct net hereditary estate, all your computation of the legitimes would be wrong

•

•

To reconcile with a waiver of a hereditary right, a waiver of hereditary right is executed after the death of the testator. Hereditary right means your right to the inheritance. But in Article 905, we are talking here of future inheritance or future legitime executed during the lifetime of the testator.

•

You add the donations made during the lifetime of the testator. That is the process of COLLATION. • In collation, you do not actually return the property physically but only the value thereof is considered as part of the estate Donations are collated because it would easy for the testator to circumvent the law legitime by donating all his properties during lifetime so that nothing would be left for compulsory heirs at the time of his death.

be on his his

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

Donations which are inofficious cannot be assailed by creditors except when the donation is in fraud of the creditor

•

The value to be considered is the value of the property donated at the time it was donated, not the value upon the death of the testator • Remember that donations to spouses are void. Since it is void, it is still part of the estate and so, there is nothing to collate because it was not deducted Example: Donations X P 100,000 Y P 350,000 Estate: Less: Debts Taxes Add: Donations (X) Donations (Y) NET HEREDITARY

Estate: P2,500,000 Debts: 250,000 Taxes: 150,000 P 2,500,000

ARTICLE 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. (847a)

( 250,000) ( 50,000) ---------------P 2,100,000 100,000 350,000 ---------------ESTATE ========

This is not inofficious because it can be accommodated in the free portion. Assuming that the testator in his will made a legacy to M worth P 500,000. The testator is survived a by a spouse, a legitimate child and an illegitimate child. A donation to Y worth P 350,000 was also made. Legitimate child P 1,275,000 Spouse 637,500 (1,275,000/2) Y 350,000 Illegitimate child 637,500 The estate is already consumed with what due to the legitimate child, the spouse and the illegitimate child. In this case, there is no more free portion left. Thus, the donation becomes inofficious. In addition, the legacy to M cannot be given effect because there is no free portion anymore

P 2,550,000

Remedies provided for by law in assuring that the compulsory heirs would receive their legitime: 1. Preterition where even if the testator omits the compulsory heirs in his estate, the law assures that the compulsory heirs would still receive their inheritance. 2. Collation where even if the testator already dispose all his properties during his lifetime, still, the compulsory heirs are assured of their legitime. ARTICLE 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (819a)

•

Remember that in succession, a stranger is one who is not a compulsory heir of the testator

•

Donations made to strangers during the lifetime of the testator are charged to the free portion. • Donations to strangers should be collated, otherwise, the legitime of the compulsory heirs will be impaired • If there is no free portion to speak of, the donation becomes inofficious. As such, there has to be a reduction or a return of the property donated. Example: Same data as in the previous example in Article 908 Legitime = P 2,550,000 / 2 = P 1,275,000 Donation made to X is considered as an advance. Upon distribution, he will only receive P 1,175,000. Donation made to Y shall be charged to the free portion: P 1,275,000 – 350,000 = P 925,000 The remaining free portion is P 925,000 because the testator already disposed P 350,000 in advance.

ARTICLE 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime. (3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)

Order of priority: 1. Legitime 2. Donations 3. Preferred legacy or devise; and 4. All other pro-rata Steps to be followed under Article 911: 1. Determine the Net Hereditary Estate (NHE); How? Gross Estate Less: Debts & charges Plus: Donations subject to Collation 2. Determine the legitime of the compulsory heirs based on #1; 3. Add total value of all of all the legitimes of all the compulsory heirs; 4. Deduct the total value of the legitimes in #3 from the Net Hereditary Estate in #1 to arrive at the free disposal; 5. Charge the donations to compulsory heirs to their legitimes. In case of excess of donations over the legitime, charge excess to free disposal; 6. Charge the donations to strangers to the free disposal; 7. Charge PREFERRED legacies/devises to free disposal; 8. Charge all other legacies/devises to free disposal; 9. In case free disposal is insufficient, reduce the legacies, donations etc in the order of priority. How? 1. Donation to strangers;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

2. 3.

and the devisee will just pay the compulsory heirs for such value

If there is still an excess, then you charge the legacies & devises; If still insufficient, all others.

•

If the reduction absorbs more than ½ of its value, it shall go to the compulsory heirs and the compulsory heirs will just pay the devisee for such value

• Article 911 is when there are compulsory heirs AND/OR there are donations subject to collations Example: Net Hereditary Estate P 2,550,000 Donations: Legitimate child P 100,000 X (friend) 350,000 M (legacy) 500,000 N (devise) 200,000 Testator is survived by a spouse and a legitimate child. Legitimate child Spouse Free Portion

P 1,275,000 637,500 --------------P 637,500

•

If it is exactly ½ of its value, the real property shall go to the devisee if you apply the article literally, you would be defeating the intent of the testator. The devisee will just pay the compulsory heirs for the value ARTICLE 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. (822)

•

If the legatee or devisee does not want to exercise the right under Article 912, the other parties (heir or devisee) may exercise the right on behalf of the party who does not wish to exercise the right

The free portion is not sufficient to accommodate the donation, the legacy, and the devise. Donations are preferred as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will. Free Portion Donation to X (friend) Remaining Free Portion

P 637,500 350,000 -----------P 287,500

The remaining free portion is to be distributed prorata since the testator did not prefer a certain devise or legacy.

•

If none of the parties have the interest to exercise the right or reimbursement or retention, the property may just be sold at a public auction at the instance of any interested party such as a creditor of the estate ARTICLE 914. The testator may devise and bequeath the free portion as he may deem fit. (n)

•

After all the legitimes of the compulsory heirs have been satisfied, including the surviving spouse and the illegitimate children, the free disposal may be given by the testator to anybody provided that there is no prohibition by law. • If he gives the free disposal to his concubine, that is not allowed

Legacy: 5/7 x 287,500 = P 205, 357.14 Devise: 2/7 x 287,500 = P 82, 142.86

•

If there are preferred legacy or devise, for example, the testator says that the legacy to M is preferred, therefore, of the P287,500 remaining, this will all be given as legacy to M. The whole P 500,000 cannot be given because the net estate is not sufficient. But because it is preferred, it shall be given ahead of the devise. In that case, the devise will not be given anymore. • If there were 2 or more donations, they shall be respected equally if made at the same time. It shall be apportioned the same with the legacy and devise, which means pro-rata.

•

If there were 2 or more donations made on different dates, the earlier one shall be respected. The more recent donations are less preferred than the donations earlier made because there is a presumption that it was made first. This means that the testator has more preference or affection for that person to whom he made that first donation. That is if the donations are made on different dates. ARTICLE 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb onehalf of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them. The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime. (821)

• In this case, the devise subject to reduction cannot be conveniently divided

•

According to Article 912, if the reduction does not absorb ½ of its value, it shall go to the devisee

Review on LEGITIME • MEMORIZE the legitime of the compulsory heirs • For easy memorization, maybe, you first start with the legitime of the surviving spouse because the legitime of the surviving spouse varies according to the other concurring heirs. 1.

Surviving spouse with 1 legitimate child Legitimate child =½

=¼

2. If there are 2 or more legitimate children, the share of the surviving spouse changes: Surviving spouse = share of 1 legitimate child Legitimate child = 1/2 3.

Spouse surviving with the parents of the testator: Surviving spouse = ¼ Parents =½ If there are illegitimate children: Surviving spouse = 1/8

4.

Spouse survives with illegitimate children only: Surviving spouse = 1/3 Illegitimate children= 1/3

5.

If If other If •

the spouse is the only survivor =½ marriage celebrated articulo mortis and the spouse died within 3 months = 1/3 they have been living together for 5 years = ½ Legitimate children always ½

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

Legitimate parents always ½

•

Illegitimate children always ½ of the share of 1 legitimate child unless there are many illegitimate children and the estate is not enough to accommodate their share. In that case, divide the remainder among the illegitimate children. SECTION 6 Disinheritance ARTICLE 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (848a)

• Article 915 talks about the consequence of being disinherited

•

DISINHERITANCE is the process or act, thru a testamentary disposition of depriving in a will any compulsory heir of his legitime for true and lawful causes.

• •

Disinheritance refers only to a compulsory heir

Disinheritance is made through a testamentary disposition. There must be a will.

•

There is no disinheritance in legal or intestate succession, only in testate succession

•

Disinheritance can be made only for causes expressly stated by law Ways of depriving the compulsory heir of his legitime 1. Disinheritance (Article 915)

2.

Repudiation of the inheritance - the act of the heir himself 3. Incapacity by reason of unworthiness

4.

Predecease - the actual or presumptive death of the heir 5. Loss of the estate 6. When the death or charges are equal to or more than the value of the estate ARTICLE 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849)

Requisites for a valid disinheritance: 1. The disinheritance must be made in valid will

• •

•

The disinheritance can also be effected by virtue of a codicil Disinheritance can also be made in a separate will

Disinheritance can also be made in Incorporation By Reference 2. The disinheritance must be made expressly, not impliedly 3. There must be a legal cause for the disinheritance 4. The disinheritance must be made for a true cause 5. The disinheritance must be for and existing cause • A conditional disinheritance is not allowed: “I will disinherit my son if he will kill me in the future” • But a conditional revocation of disinheritance is allowed: “My son attempted for my life. I will disinherit him. But if he will ask for my forgiveness, I will revoke the disinheritance” 6. The disinheritance must be total or complete 7. The cause must be stated in the will itself 8. The heir disinherited must be clearly identified, so that there will be no doubt as to who is really being disinherited 9. The will in which the disinheritance is stated must not have been revoked, at least in so far as the disinheritance is concerned

ARTICLE 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (850) ARTICLE 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a)

•

Article 918 talks of invalid disinheritance

Instances wherein there is ineffective disinheritance: 1. Disinheritance without specification of the cause 2. For a cause which is not a true cause 3. For a cause not given in law Consequence disinheritance

if

there

is

an

invalid

•

It shall annul the institution of the heirs but in so far as only for the purpose of completing the legitime of the compulsory heir • But the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime EXAMPLE # 1: The testator instituted A and B in his will and disinherited C for the reason that C is ugly . A, B and C are all his legitimate children. His estate is worth P 120,000. The effect is it shall annul the institution of heirs insofar as only it may prejudice the legitime of the invalidly disinherited heir. Legitime = P 120,000 / 2 = P 60,000 Legitime of each child = P 60,000 / 3 = P 20,000 Distribution: C = P 20,000 (legitime) A = P 20,000 + 30,000 = P 50,000 B = P 20,000 + 30,000 = P 50,000 EXAMPLE # 2: Same example with additional data that X is given a legacy of P 30,000 cash. C = P 20,000 A = P 20,000 + P 15,000 B = P 20,000 + P 15,000 X = P 30,000 • Remember, in the order of distribution, the devise or legacy shall be given ahead of the inheritance. PRETERITION The omission may be either intentional or unintentional as long as the deprivation is total. With cause or without cause Annuls the institution May exist with or without a will. Q: How does preterition exist without a will?

VALID DISINHERITANCE Disinheritance is always intentional because it has to be provided for in the will. The cause must be provided for by law. (Articles 920 & 921 NCC) The disinherited heir inherits nothing from the legitime & the free portion. There must always be a will

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

A: During the lifetime of the testator, he can make donations and the donations will be collated later on. If during his lifetime, he gave all his properties to one of his children. So upon his death, there is nothing left. So upon his death, there is no will but still there is preterition because there is omission. The institution is always void

PRETERITION The institution of heirs is completely annulled If there is legacy, he the devise long as inofficious

a devise or will receive or legacy as it is not

It is important to distinguish whether the person is an instituted heir or a devisee or legatee

•

• •

The institution will be followed unless there is another cause for not following the institution which is not because of the disinheritance but for other causes. IMPERFECT DISINHERITANCE The institution remains valid, but must be reduced insofar as the legitime has been impaired Devises, legacies or other testamentary dispositions shall be valid. Even if the person is just an instituted heir, he will still receive his share or inheritance. Even if the person is just an instituted heir, as long as the institution does not prejudice the legitime of the invalidly disinherited heir, then, that heir shall receive the inheritance

ARTICLE 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

•

Article 919 talks about the grounds disinheritance

Under Article 919, the person who is disinherited is a child or descendant of the testator, whether that child is legitimate or illegitimate (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants

• •

(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless • The accusation be groundless

•

The crime being referred here is against anybody Accusations referred in this paragraph: 1. It may include the institution of a criminal action 2. You testify in a case against your parents or ascendants involving a crime which carries a penalty of 6 years or more 3. Statements wherein you affirm the accusations made against your parents, ascendants. (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator • The law here says convicted of adultery or concubinage, unlike the ground in legal separation where preponderance of evidence is sufficient • There has to be conviction (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made • There has to be another will made (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant

•

There is final judgment or conviction already At the time of the execution of the will, it is not necessary that the judgment is final

The determination whether or not the refusal of the child is without just cause will depend upon the means of the child and the necessity of the ascendant

(6) Maltreatment of the testator by word or deed, by the child or descendant

•

This ground of maltreatment is present only with respect to disinheritance of a descendant

(7) When a child or descendant leads a dishonorable or disgraceful life

•

for

•

He can be found guilty and the judgment may become final after the death as long as it becomes final. Disinheritance can be given effect once the judgment becomes final already. There must be an intent to kill. Even if the descendant is just an accomplice or accessory, this paragraph applies Even if the law says attempt, the more reason that frustrated and consummated stages are to be included

• •

What is dishonorable or disgraceful life is a question which is addressed to the judgment of the court but generally, the act must not be an isolated or single act It has to be a way of life The child or descendant may be a male or a female

(8) Conviction of a crime which carries with it the penalty of civil interdiction

•

Generally, crimes which are punishable by death penalty, reclusion perpertua and reclusion temporal, all of these carry with it the accessory penalty of civil interdiction

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate: (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; (2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (6) The loss of parental authority for causes specified in this Code; (7) The refusal to support the children or descendants without justifiable cause; (8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. (756, 854, 674a)

•

This article deals with disinheriting an ascendant

•

The disinherited heir grounds stated in the will

may

the

causes

controvert

the

(1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue

•

Abandonment here does not even have to amount to a crime as long as he has already deprived his child of the basic necessity or he has not been seen for a number of years

•

Abandonment refers to either physical, educational or moral as long as you neglect your child This may be applied by analogy to sons

•

(2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made • Numbers 2, 3, 4, and 5 are the same as those in Article 919 (6) The loss of parental authority for causes specified in this Code

•

In this case, this should refer to those causes by which the parent or ascendant is at fault. These causes are provided for in Article 330 and 332 of the Civil Code.

ARTICLE 330 NEW CIVIL CODE. The father and in a proper case the mother, shall lose authority over their children: (1) When by final judgment in a criminal case the penalty of deprivation of said authority is imposed upon him or her; (2) When by a final judgment in legal separation proceedings such loss of authority is declared. (169a) ARTICLE 332 NEW CIVIL CODE. The courts may deprive the parents of their authority or suspend the exercise of the same if they should treat their children with excessive harshness or should give them corrupting orders, counsels, or examples, or

should make them beg or abandon them. In these cases, the courts may also deprive the parents, in whole or in part, of the usufruct over the child's property, or adopt such measures as they may deem advisable in the interest of the child. (171a)

• •

A child under parental authority cannot execute a will If the parent regains parental authority, there are 2 views: 1. The disinheritance will remain notwithstanding that the parent has regain his or her parental authority because the reason for the disinheritance is not really the loss of parental authority but the cause for the loss of parental authority. 2. The disinheritance is already deemed ineffective because upon the death of the child there is really no more loss of parental authority.

(7) The refusal to support the children descendants without justifiable cause • The same with Article 919

or

(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. • The child, the son, the daughter or the grandchild may disinherit his parent who has attempted against the life of the other parent • No need for conviction because the law says attempt, so mere attempt

•

But if there is a reconciliation between the parents, then, the child cannot anymore disinherit because if the offended party has deemed it proper to forgive the other spouse, then, with more reason the child because he is not the party directly offended

ARTICLE 921. The following shall be sufficient causes for disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)

When the separation

• •

spouse

has

given

cause

for

legal

In this case, there is yet no decree of legal separation but only the occurrence of the cause for legal separation. You do not have to secure a decree of legal separation first before you can disinherit your spouse who has given ground

Grounds for Legal Separation: ARTICLE 55 NEW CIVIL CODE. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article the term "child" shall include a child by nature or by adoption. (97a)

•

Note that even if there is merely an attempt against the life of the other spouse, it can be a ground for disinheritance because it is a ground for legal separation. In this ground, there is no conviction, but mere attempt

•

But under Article 921, paragraph 1, take note that what it provides is conviction: “When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants”

•

If one of the spouses attempt against the life of a common child or descendant, there has to be conviction in order that it may constitute a ground for disinheritance because it is not a ground for legal separation

•

If there already has been a decree of legal separation, there is no more need to disinherit the offending spouse because by operation of law, the inheritance given to the other spouse is revoked and he or she is also disqualified from inheriting from the innocent spouse. ARTICLE 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856)

•

Reconciliation is the mutual restoration of feelings to the status quo. It is a bilateral act. The offended party must be able to forgive and the offender must be able to accept the forgiveness.

•

If there is disinheritance and subsequently there is reconciliation, then the disinheritance becomes ineffectual • There is no reconciliation if it is merely a general pardon wherein the testator forgives all who have offended him because such is a unilateral act of the testator How is disinheritance revoked? 1. There is subsequent reconciliation (so the disinheritance shall be ineffective) 2. By making the disinherited heir an instituted heir 3. By the revocation of a will containing disinheritance 4. By the disallowance of a will containing the disinheritance

ARTICLE 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the

disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. (857)

•

Article 923 talks about the representation of the heirs disinherited heir

right of of the

EXAMPLE: Testator has 2 children, A and B. A has 2 children, C and D. A is disinherited. Even if A can no longer inherit, C and D will now represent A but only with respect to the legitime of A. The fault of A should not be imputed against A’s heirs.

•

An heir who has been disinherited can be represented

•

PER CAPITA means one inherits in his own right. In the example, B inherits in his own right.

•

PER STIRPES means one inherits by virtue of representation. In the example, C and D inherit as representatives of A

•

When there is a will, representation takes place only with respect to the legitime

•

But if there is no will, representation pertains to the ENTIRE portion

•

A will containing only a disinheritance is an indirect disposition. It is a valid will • PRINCIPLE: When there is a will, the representation of the heir of the disinherited heir will only be to the EXTENT OF THE LEGITIME. But with respect to the free portion, that goes to the instituted heir UNLESS the will does not dispose of the entire property and that there is intestacy the own heirs of the disinherited heir may still part of the free portion

•

The disinherited heir who is represented has no usufruct or administration of the property which constitutes the legitime. Even if his own children will get the property which he should have gotten had he not been disinherited, he cannot use it and he cannot administer it

•

There is no representation with respect to the spouse. right of representation pertains only to the descending and direct line

•

There is no right of representation in the ascending line SECTION 7 Legacies and Devises ARTICLE 924. All things and rights which are within the commerce of man may be bequeathed or devised. (865a)

• Everything can be bequeathed or devise as long as within the commerce of man Things which cannot be bequeathed or devised: 1. Res Communes 2. Property of Public Dominion 3. Property of Public Use 4. Res Nullus 5. Illicit things 6. Purely Personal or Intransmissible Rights ARTICLE 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. (858a)

GENERAL RULE: When the will is silent, the estate has the duty of effecting the legacy or devise EXCEPTION: If the testator charges his heirs with the legacy or devise, then ALL of the heirs, including the legatees or devisees, has the duty of effecting the legacy or devise. The value of the legacy or devise given by the heirs shall be proportion to the shares which they received. EXCEPTION TO THE EXCEPTION: But is a SPECIFIC HEIR or LEGATEE OR DEVISES is charged with the burden of giving this legacy or devise, then that legatee, devisee, or heir alone shall bear the burden of giving out the legacy or devise. Even the compulsory heirs may be charged with the burden of the legacy or devise but it should not exceed the amount of the free portion given Kinds of Legacy 1. LEGACY PROPER – The estate has the duty to give the legacy. 2. PRE-LEGACY – The duty is given to the estate but the gift is given to a specific heir or legatee. The legacy is made specific or determinate so a car, a house and lot but still the duty to give the legacy or devise is upon the estate. 3. SUB-LEGACY/SUB-DEVISE – this is the one referred to under Article 925, when a legacy is charged to an heir, or a legatee or a devisee. ARTICLE 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit. (859) ARTICLE 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent. (n)

• Even if they are solidarily liable, the heir who is not negligent can demand reimbursement form the one who was negligent • If the thing is lost through a fortuitous event, the heirs do not have any obligation to deliver. • If it is intentional, there is no solidary liability. The one who is at fault is the only one liable. ARTICLE 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind. (860)

•

If indeterminate or generic, the heir bound to deliver is liable for eviction. There is warranty against eviction because being indeterminate or being generic, the heir charged should not have delivered thing which is defective.

•

If specific, the heir is not liable because his duty is merely to deliver what the testator has chosen. It is beyond the power of the heir, legatee or devisee charged. He is merely charged with he duty of delivering the very same thing mentioned by the testator. He has no liability for eviction. ARTICLE 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety. (864a)

GENERAL RULE: The legacy or devise shall be valid only to that portion which is owned by the testator EXCEPTION: If the testator EXPRESSLY declares that he gives the thing in its entirety

•

Article 929 presupposes that the testator knows that he is not the full owner of the thing but still he has interest or he is a part owner

•

The knowledge of the testator can be proved by the will itself or by evidence aliunde (evidence oustside the will).

•

But if the testator wants to give the property in its entirety, he must expressly provide it in the will. ARTICLE 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a)

ARTICLE 929 The testator is a partowner or has a part interest AND he knows that he a part interest or ownership in the thing bequeathed or devise.

ARTICLE 930 The testator has no interest whatsoever but he erroneously believed that he owns the property.

ARTICLE 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. (861a)

Article 930 The testator does not own the property but he erroneously believed that he owns the property If the owner of the property demands an excessive price or refuses to alienate the property then, that is the time when the estate, or the heir, legatee or devisee charged with the duty of giving shall give a reasonable or just value of the thing.

Article 931 The testator knows that the property is not his and he makes an ORDER that the property shall be given to the devisee or to the legatee. If there’s an order, the estate, or the heir, legatee or devisee charged MUST ACQUIRE it and give it to the legatee or devisee.

•

If the testator knows that he does not own the property but gives it to the devisee or legatee and there is no order that it shall be acquired by the estate, the devise or legacy is still valid but the estate, or the heir, legatee or devisee charged with the duty of giving the property has a choice. He may have or acquire the property and give it to the legatee or devisee or he may just pay the just value. • If there is an order, follow the order • But if the owner of the property does not want to alienate the property, the heir or the estate must pay the just value

•

If there is no order that it shall be acquired by the estate, the estate has the choice. He may just acquire the property or pay the just value thereof.

•

The order that the thing belonging to another be acquired NEED NOT BE EXPRESS. It may be implied.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Remember the difference: • Article 929 – he owns only a part of the thing • Article 930 – he does not own the thing and he does not know that he does not own the thing • Article 931 – he does not own the thing but at the time of the execution of the will, he knew that he was not the owner of the thing ARTICLE 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. (866a)

•

This article talks of a thing given as a devise or as a legacy which at the time of the execution of the will already belongs to the legatee or devisee

•

The point to remember is THE TIME OF THE EXECUTION OF THE WILL

•

In this case, the legacy or devise would be void because it would be a legal impossibility for the testator to give to the legatee something that the legatee already owns

•

Even if the thing is mortgaged to another person, the mortgagor still remains to be the owner of the thing. The legacy or devise will still be void.

•

the will the the

But if there is an order from the testator that thing be saved from the mortgage, the legacy be valid only to such extent. Upon the death of testator, the estate has to pay the debt so that property may be saved from the mortgage.

ARTICLE 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him. If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. (878a)

•

1st paragraph: At the time of the execution of the will, the legatee or devisee is the owner

•

2nd paragraph: At the time of the execution of the will, the legatee or devisee is NOT the owner. He can still get something if he acquires the property subsequently by virtue of onerous title. If it was acquired by gratuitous title, he can claim nothing from the estate of the testator.

before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will. Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee. (867a)

• Here, the property devised or bequeathed is subject to a pledge or mortgage to secure a recoverable debt • The estate has the obligation to free the land from the mortgage • This will apply even if the mortgage was made after the execution of the will or before

•

The estate has no obligation to free the property from the burden imposed by a bond because this article only applies to a pledge or a mortgage or anything which secures a recoverable debt. If the property bond is constituted upon a property, that is not a recoverable debt.

•

The same thing if the property is leased. The estate has no obligation to free the land from the lease. The lease is not a pledge or a mortgage.

•

In these cases, the legatee or devisee has the obligation to respect the lease or have the obligation to respect the property bond ARTICLE 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one. In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. (870a)

•

This article refers to LEGACY OF CREDIT and LEGACY OF REMISSION

•

In Legacy of Credit, the testator (creditor) has some receivables from X (debtor). In his will, the testator provides that if upon his death, the said obligation is not yet paid, then, A will have the right to whatever amount is paid by X or A may proceed against X.



The law says “only as regards that part of the credit or debt existing at the time of the death of the testator”



When property is acquired after the execution of the will but before the death, those properties will not pass to the heir (Article 793)

•

This also applies even if at the time of the execution of the will, the testator was the owner of the thing. What should be reimbursed? 1. If thru sale – the price paid therefore

2. 3. 4.

If thru barter – the value of the thing exchanged If thru an onerous donation (there is consideration, not pure liberality) – the value of the burden imposed If thru adjudicacion en pago – the value of the credit, interest and cost

Who reimburses? 1. The estate if no one has been charged in particular 2. The heir, legatee, or devisee who has been charged ARTICLE 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt

•

In Legacy of Remission, the testator provides upon his death that whatever obligation X has at that time is already condoned or remitted.



This refers to only such part existing at the time of the death of the testator



This legacy of remission stands in the same status as donation because when the testator dies, the value of the debt should be added or collated to the gross estate



The legacy of remission also carries with it the duty of the estate of the testator to give the legatee an acquittal, like a note indicating that the legatee has no more debt

ARTICLE 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it,

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death. The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871)

•

This is an example of REVOCATION BY OPERATION OF LAW • The law presumes that by filing the action for collection, the testator is no longer interested to give the legacy

•

“Action” means judicial action. Mere demand letter is not sufficient. For the law to set in or for us to presume that there is revocation by operation of law, there has to be a judicial action.

•

A legacy that belongs to the legatee or devisee is void. Even if the legatee pledged the car to the testator, but, that is just a pledge. There is no grant of ownership to the testator. The legatee remains to be the owner of the car. So, the status of the legacy is void.

•

But, as a consequence of that legacy, the law presumes that the testator is said to extinguish the pledge already. The legatee cannot enforce the legacy but he may enforce, as a legal consequence, that the pledge is now extinguished.

•

Under Article 936, although there is a legacy of remission and legacy of credit, still there is no warranty on the part of the testator as to the existence or legality of the credit or as to the solvency of the debtor. ARTICLE 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones. (872)

• This article specifically talks about legacy of release or remission of debt

•

Only those existing at the time of the execution of the will

•

The value of the debt remitted should not exceed the portion which the testator can freely dispose of. It must not exceed the free disposal. ARTICLE 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares. In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise. (873a)

• In this case, the testator is the debtor • The reason for the legacy is presumed as the liberality of the testator

•

But if it is expressly declared by the testator that the legacy or devise shall be applied to the debt, then, it may be given effect • But, if it is another kind of property, you cannot force the creditor to accept something which is not the obligation ARTICLE 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n)

•

In this case, the testator is allotting a certain amount of money in payment of his obligation which he believes to exist, but in fact does not exist

•

As such, it is considered as not written because the giving here is impelled by the wrong belief by the testator

• If it is as payment for an obligation, the estate shall pay only the exact amount which is due

•

If the debt of prescribed but the payment thereof in effect because this OBLIGATION

the testator has already testator provided for the his will, it should be given is governed by NATURAL

ARTICLE 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged. If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs. Once made, the choice is irrevocable. In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)

•

Article 940 talks about right of choice in an alternative legacy or devise

•

This is just like in alternative obligations wherein the delivery of one of the prestations is sufficient to extinguish the entire obligation

•

It is the heir upon whom the obligation to give the legacy or devise is imposed or if, for instance there is no heir charged in particular, the executor or administrator of the estate, who has the obligation to deliver • If before making the choice, the heir, the legatee or devisee dies, the right to make the choice shall be exercised by the heirs of such heir, legatee or devisee. • This is not a personal right. This is a transmissible right.

•

Once the heir burdened exercised the right of choice, then the legacy or devise ceases to become an alternative one. It becomes pure and simple legacy.

•

Moreover, once the choice is exercised, that choice becomes irrevocable

•

In alternative legacies or devises, the rule in obligations and contracts with respect to alternative obligations, is also applied but only in a suppletory manner because the supreme law here is really the will of the testator. If anything in the rule in obligations and contract conflicts with the will of the testator, then the will of the testator shall prevail. ARTICLE 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate. A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)

•

This article talks about the difference in the rule on generic/indeterminate personal property and generic/indeterminate real property • The estate has the obligation to deliver such personal property which is of middle quality. This depends upon the status of the estate or upon the situation

•

But if you are talking of an immovable property, if there if there is no other immovable property in the estate, then, the devise is void.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

• The period to reckon if there is really such king of thing existing in the estate of the testator is at the time of the death of the testator ARTICLE 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a)

• This article also talks about alternative legacy or devise GENERAL RULE: The right of choice belongs to the estate, or the heir or legatee or devisee EXCEPTION: If the testator will give the right of choice to the heirs or legatee or devisee favored

•

The legatee or devisee can actually choose things which are of superior quality or inferior quality or medium quality. There is no obligation on his part to choose only the one which is of medium quality. ARTICLE 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a)

•

This is a reiteration of Article 940

Limitations of the right of choice: (in alternative legacies/devisees or in generic/indeterminate legacies/devisees) 1. The choice is limited to things alternatively the object of legacy or devise. If it is a generic legacy of a car, he can choose only a car. He cannot choose a house. 2. He cannot choose an illegal or impossible thing or that which could not have been intended by the testator. 3. No right of choice when among legacies or devises only one is practicable. ARTICLE 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently. A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided. If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate. If the testator during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a)

• LEGACY OF EDUCATION GENERAL RULE: The legacy of education lasts up to the age of majority (18 years old) EXCEPTION: Beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently • LEGACY OF SUPPORT GENERAL RULE: As long as the legatee is alive the legacy for support lasts EXCEPTION: The testator can provide otherwise

•

If the legacy is charged against the estate, then it should not exceed the value of the free disposal

•

But if the legacy is charged against an heir or another legatee, then the value should not exceed the inheritance of that heir or legatee charged with the legacy for support or education

ARTICLE 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a)

•

The heir can petition for his allowance or pension after the death of the testator for the 1st installment and for the following ones, which shall be due at the beginning of each period When do you petition? 1. The will must be admitted to probate 2. After the will is admitted to probate, the legatee can petition the court for the delivery to him of the allowance provided that the debts and taxes of the estate have been paid first. ARTICLE 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. (868a)

•

If the thing is subject to usufruct, the estate has no obligation to free the thing from the usufruct because the legatee or devisee has to respect the usufruct • This is related to Article 934 • As long as the charge or burden is not to secure a recoverable debt, that shall pass on to the heirs, legatees or devisees ARTICLE 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs. (881a)

•

A pure and simple legacy or devise is one that is immediately demandable upon the death of the testator. It is not subject to a condition, a term or a mode

•

As long as the testator is already dead, the right of the legatee or devisee becomes vested already. If the legatee or the devisee dies prior to the delivery of the legacy or devise, his heirs may enforce the legacy or devise.

•

It is different if the legatee or devisee dies ahead of the testator. In that case, the heirs of the legatee or devisee cannot demand from the estate. When it comes to the free portion, there is no right of representation.

•

If the property is specific, then you acquire the property from the testator’s death

•

If the property is generic, then from the time of the selection. Although you have right to the legacy or devise from the time of death but as to the property itself, you have the right over the property from the time of selection

•

If it is alternative, from the time of selection also

•

If it is to be acquired from a stranger, from the time of acquisition • If the legacy or devise is subject to a condition, as long as the condition is fulfilled, it retroacts to the death of the testator

•

If the legacy or devise is subject to a term, if the legatee or devisee dies prior to the arrival of the term, he acquired the right from the time of death but the right to the property vests only upon the arrival of the term

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death. From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a)

•

This talks about specific or determinate thing

•

If a parcel of land is devised, growing fruits and crops at the time of the death of the testator shall be included in the delivery to the devisee. Those which are already harvested or gathered no longer form part of the devise or legacy. Only the growing crops are included, by virtue of accession. • Unborn offsprings are also included • Uncollected income are also include. Uncollected income are income that should have accrued after the death of the testator

•

•

RIGHT OF ADEMPTION is the process of giving effect inter vivos to a disposition mortis causa. He wants to give effect to the legacy intervivos which is disposition mortis causa during the lifetime of the testator because the testator says the legacy is to be effective if and only if I have not done this during my lifetime. ARTICLE 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. (884a)

• In Article 949, the devise or legacy is a generic thing

•

Money is generic, unless serial number is provided 

•

The interest accrues only from the time of default. There is default when there is already demand.

Accrued means it is already due and demandable • After-acquired properties (under Article 793) are not to be included because they were acquired after the institution of the will up to the time before the death of the testator

GENERAL RULE: The right to the fruit does not pertain to the legatee/devisee prior to selection and even after the death of the testator EXCEPTION: If the testator expressly provides that the legatee/devisee will still get the fruits prior to selection

ARTICLE 781 NEW CIVIL CODE. 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)

ARTICLE 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata. (887a)

ARTICLE 793 NEW CIVIL CODE. 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)

•

2nd paragraph provides that from the moment of death, the legatee or devisee becomes the owner. We have the principle of res perit domino, wherein the owner bears the risk of the loss. But he shall also bear the benefit of the improvement.

•

But if the loss is by fault of anyone other than the legatee/devisee, apply the rule on quasi-delict or obligations and contracts.

•

Example: If there is a delay in the delivery of the thing given as legacy/devise and the legatee/devisee already demanded for it, and the thing is lost before the delivery, the estate, the heir or legatee or devisee burdened shall bear the loss. • The heir of the legatee/devisee in Article 948 need not pay the testator for the expenses with respect to the production under Article 443. The testator is not considered as a third person. The legatee/devisee is merely succeeding to the rights of the testator Article 443 NEW CIVIL CODE. He who receives the fruits has the obligation to pay the expenses made by a third person in their production, gathering and preservation.

Applicability of Article 948: 1. Simple and pure legacy/devise 2. Legacies and devises subject to resolutory condition 3. Legacies and devises subject to suspensive condition in view of the retroactive effect of the condition once it is fulfilled Bar Question: What is a Right of Ademption?

•

Article 950 talks about the order of payment if the estate is not sufficient to pay all the legacies or devises (RPSESA) • R – remuneratory legacies or devises P - preferred S - support E - education S – specific things A – all others 1. Remuneratory legacies or devises

•

Those which are made by the testator in consideration of the service made by the legatee or devisee but that which does not constitute a recoverable debt 2. Preferred legacy or devise

•

Those which are declared by the testator to be preferred 3. Support

•

Under the Family Code, support comprises everything indispensable – food, shelter, clothing, education. • In succession, if we are talking of support, we do not include education 4. Education 5. Specific Legacy or Devise

•

Even if it is specific legacy or devise but it is not yet on the estate and it is to be acquired from another person or another estate, it is not included in the legacy or devise of a specific determinate thing. If the legacy/devise is to be taken from another person to be given to the legatee/devisee, that falls under “all others prorata” 6. Among all other pro-rata

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Order under Article 911: 1. Legitime

2. 3.

4.

Donations inter vivos Preferred legacies/devises All others pro rata

Article 911 This article is applied when there is/are compulsory heir/s AND/OR there are donations inter vivos

Article 950 This article is applied when there NO compulsory heirs and their legitimes are in danger of being impaired AND/OR there are NO donations inter vivos. All you have to do is, among the legacies/devises which of them should be given priority over the other. If there are compulsory heirs but their legitimes are not impaired, you apply Article 950.

•

If there are no compulsory heirs, there is no need to collate the donations because the purpose of collation is only to determine the legitime. ARTICLE 951. The thing bequeathed shall be delivered with all its accessions and accessories and in the condition in which it may be upon the death of the testator. (883a) ARTICLE 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value. Legacies of money must be paid in cash, even though the heir or the estate may not have any. The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime. (886a)

• The obligation of the heir, legatee, devisee or estate charged is to deliver the very same thing to be given

•

The estate cannot just discharge the legacy or devise by paying the value of the thing devised or bequeathed

• The debts and obligations of the estate must first be paid and afterwards, if there is excess, we now have the delivery of the legacy, devise or inheritance. ARTICLE 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)

•

This article refers to one legacy or devise, which partly onerous and partly gratuitous

•

The devisee cannot just accept the part which has no burden imposed and repudiate the part which is onerous

•

But he can choose to accept the onerous and reject the gratuitous part

•

If the legatee or devisee dies, his right may be exercise by his heirs ARTICLE 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both. Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both. (890a)

•

Article 955 refers to two or more legacies or devises

•

The same rule - the legatee or devisee cannot renounce the onerous and accept the gratuitous.

•

If both are onerous or gratuitous, he can just accept or renounce both or either, unless the testator intends that the two legacies or devises shall be inseparable

•

•

A compulsory heir who is a legatee or devisee, may waive his inheritance and accept the legacy or either way, accept the inheritance and renounce the legacy or accept both or renounce both

•

ARTICLE 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. (888a)

If the legacy is for cash, even if the estate has no cash, the estate has to sell property so that it may generate cash • Even in alternative legacies/devises, you have to deliver the thing which is contemplated within the selection The burdened heir, legatee/devisee or the estate shall bear the expenses for the delivery of the thing bequeathed or devised. If he is a compulsory heir, the expenses should not such as to affect the legitime of compulsory heir. ARTICLE 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. (885a)

•

There should be an authority by the court that the thing shall now be delivered to the legatee or devisee

•

A legatee or devisee, from the moment of death, theoretically, is already entitled to the legacy or devise. But he cannot immediately demand the delivery because there has to be proceedings conducted. • We are talking of testate proceedings because this is legacy or devise.

•

If the legatee or devisee does not want to accept or cannot accept or is disqualified from accepting, it shall be merged into the mass of the estate. It shall go by way of legal succession, subject to the rights of substitution and the rights of accretion

•

Remember that we have the rule on ISRAI as to the order which has to be followed in case there is vacancy in the portion inherited: 1. INSTITUTION 2. SUBSTITUTION 3. REPRESENTATION 4. ACCRETION 5. INTESTATE SUCCESSION ARTICLE 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of Article 928. (869a)

•

Article 957 talks of revocation of a legacy or devise by operation of law. Because of the act performed by the testator, the law presumes that there is revocation. 1. TRANSFORMS THE THING





The thing here refers to a specific thing because if it is a generic thing then you do not know prior to selection which of the thing in the estate of the testator is being bequeathed or devised The transformation must be IN FORM (appearance of the thing) or IN DENOMINATION (name being given to the thing)



When the testator transforms the thing such that it does not retain the form or the denomination it had, then, there is REVOCATION of the legacy or devise and the legacy/devise becomes ineffective 2. ALIENATES THE THING  The alienation made by the testator should be made with the intent to part with the thing  If the testator alienates PART of the property then the revocation is only as to the part alienated. So only partial not entire revocation

 





If after the alienation the thing should again belong to the testator, the law says “the legacy or devise shall not thereafter be valid” Even if the alienation was void by reason of nullity of the contract so that the property returns to the testator, still the legacy or devise shall not be valid If the alienation was annulled because there was fraud or intimidation or mistake on the part of the testator, the devise would be valid because the law presupposes a voluntary alienation by the testator If the reacquisition shall have been effected by virtue of the exercise of the right repurchase, the devise or legacy would still be valid



The right to repurchase must be included in the contract of sale itself or in the contract wherein the testator alienated the thing devised or bequeathed because if it is an absolute sale and then, subsequently, he repurchases the property, the devise should be void or it is revoked  If subsequently, the legatee or devisee acquires the thing devised or bequeathed, then, it depends whether or not his acquisition is by onerous title or by gratuitous title 3. LOST OF THE THING





A thing is considered LOST when it perishes, goes out of commerce or disappears in such a way that its existence is unknown or it cannot be recovered The thing is lost WITHOUT the fault of the testator





If the loss is the fault of the heir charged with the obligation to deliver, then, the heir has the obligation to pay the legatee for the value of the thing lost When the thing is not specific, it is generic or determinate, then the choice pertains to the estate or the legatee/devisee or the heir charged, in which case they should not deliver a thing which has defect

ARTICLE 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n)

•

This article is related to Article 789 and 844

•

If there is a mistake as to the name of the thing, it is still possible to determine what is the thing referred to by the testator as a devise or legacy. You can use the rules of interpretation, especially, those rules in latent or patent ambiguity. • So, the devise or legacy remains valid ARTICLE 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree. (751)

•

Article 959 talks of a COLLECTIVE INSTITUTION, wherein there is a disposition made in general terms in favor of the testator’s relatives

•

Under this article, the only rule to be followed is the RULE OF PROXIMITY, the nearer relatives exclude the farther. • There is no right of representation here and we do not follow the rule that those who are in the descending line are favored over those in the ascending line and that those who are in the direct line are favored over those who are in the collateral line. We just follow one rule.

•

The law recognizes only those who are within the 5th degree within the collateral line as the legal relatives of the testator. If there are no relatives within that line, then, the estate shall be given in favor of the State.

•

If it is a direct line, there is no limit. But if you are talking of a collateral line, only within the 5th degree of consanguinity.

•

If the testator’s words are “to all those who are entitled thereto”, he would be referring to the legal or intestate heirs. We follow the rule on intestate succession and thus, we are not limited by only one rule on proximity.

•

If the testator says “I am giving this house and lot to the relatives of my wife”, Article 959 cannot be applied because Article 959 only refers to the testator’s relatives. CHAPTER 3 Legal or Intestate Succession SECTION 1 General Provisions ARTICLE 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

• will • the

Article 960 gives you the instances when there be legal or intestate succession In legal or intestate succession it is based on presumed will of the testator

1. Without a will, void will or subsequently lost its validity



If a person dies without a will, his estate will go by legal succession



The will becomes void when it does not comply with the formalities required by law



By virtue of the revocation, the will loses validity. Therefore, you cannot give effect to the will and the estate will be disposed of by way of intestacy 2. No institution of heir



An example is when the will only provides for disinheritance wherein the will is effective as to the disinheritance and the rest of the estate shall go by intestate succession



The will does not dispose of all the property belonging to the testator. In this case, there is mixed succession 3. Suspensive condition is not fulfilled, predecease, repudiates



Suspensive condition is one wherein the institution is subject to the fulfillment of a condition. If the condition does not happen, the institution cannot be given effect.



If the heir dies ahead of the testator and there is no representative to succeed, then, there is intestate succession



In case of repudiation, there being no substitution, no representative and no right of accretion then, there is intestacy. 4. Incapacity



If incapacitated, it shall go by way of legal succession

Other instances where legal succession takes place: 1. Preterition 2. Improper disinheritance

3. 4.

or

intestate

Fulfillment of a resolutory condition Arrival of the resolutory period

Forced Succession Succession to the legitime regardless of the will of the testator. Even if it is against the desire of the testator, but the heirs are compulsory heirs then, the testator has to give to these compulsory heirs.

Legal/intestate succession The dispositions provided for by because it is based on presumed will of testator.

•

This article does not yet talk about the preference or order but as to who are entitled to the estate in default of testamentary heirs

•

Not all legal/intestate heirs are compulsory heirs. But all compulsory heirs are legal heirs. • Brothers and sisters are legal heirs but they are not compulsory heirs

•

There is no disinheritance in legal succession because disinheritance occurs only when there is a will and that the will must be a valid will

•

But there is EXCLUSION where legal heirs who are NOT compulsory heirs are not given anything in the will • Even if you can exclude a legal heir who is not a compulsory heir, you cannot exclude the State

•

If you do not have heirs within the 5 th degree then, the property has to go to the State

•

There is representation of the excluded legal heirs Kinds of exclusion: 1) Express Exclusion 2) Implied Exclusion ARTICLE 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines. (921a)

RULE ON PROXIMITY

•

The legal and intestate heirs of the decedent are legitimate children and descendants, illegitimate children or descendants. In the

The nearer excludes the farther

RULE OF EQUAL DIVISION GENERAL RULE: Relatives in the same degree shall inherit in equal share EXCEPTIONS: (1) Article 1006 with respect to the relatives of full blood and half blood. In legal succession, the full blood relatives are entitled to twice as much as those of the half-blood relatives. (2) Article 987 concerning the division between the maternal and paternal lines (3) Right of representation (4) In legal succession and the same in testamentary succession, illegitimate children only get ½ of the share of one legitimate child.

are law the the

ARTICLE 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a)

•

absence of the legitimate children, the legitimate parents or ascendants, we have the surviving spouse and the state.

SUBSECTION 1 Relationship ARTICLE 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915)

•

Relationship is blood (consanguinity) or marriage (affinity) tie uniting a person to another person ARTICLE 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a) ARTICLE 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. (917) ARTICLE 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a) ARTICLE 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. (920a) ARTICLE 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. (922) ARTICLE 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. (923)

• This article talks about what happens when there is repudiation

•

The person who repudiates the inheritance CANNOT be represented SUBSECTION 2 Right of Representation ARTICLE 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (924a)

Instances where there is right of representation: 1) Predecease 2) Incapacity 3) Disinheritance

•

The right of representation takes place in both testate and intestate succession

•

Disinheritance is only in testate succession because you have to have a will

•

In testate succession, representation covers only the legitime

•

In legal or intestate succession, the right of representation, when proper, covers ALL that the person being represented would have inherited

• • •

ARTICLE 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (n)

•

Representative inherits not from the person represented but from the person to whom the person represented would have inherited ARTICLE 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (925)

• In the collateral line, the right of representation takes place only in favor of the children of brothers or sisters (nephews or nieces) • Right of representation never takes place in the ascending line ARTICLE 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. (n)

•

The representative must be capacitated to inherit ARTICLE 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (926a)

•

Remember that PER STIRPES means inheritance by all those within the group inheriting in equal shares ARTICLE 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927) ARTICLE 976. A person may represent inheritance he has renounced. (928a)

him

whose

ARTICLE 977. Heirs who repudiate their share may not be represented. (929a)

• A renouncer may represent but he may not be represented • A renouncer, for motives of his own, does so voluntarily. His act of repudiation takes away his right to dispose of the property • In cases of incapacity or disinheritance, however, the loss is involuntary. The children of the incapacitated or disinherited person should not be deprived of the right of representation. They should not suffer for having an unworthy parent SECTION 2 Order of Intestate Succession SUBSECTION 1 Descending Direct Line

•

The right of representation covers not only the properties but also the transmissible rights and obligations • In adoption, the relationship that is created is only between the adopter and the adoptee • If the adopter dies ahead of his parents, the adoptee cannot represent the adopter

The adoptee can inherit from the adopter An adopted child cannot represent Neither may an adopted child be represented

ARTICLE 978. Succession pertains, in the first place, to the descending direct line. (930)

•

Descendants are preferred

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

• The nearer excludes the farther • Compulsory heirs, with the legitimate descendant, are concurrent intestate heirs ARTICLE 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. (931a) ARTICLE 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. (932)

• This is true even if the children come from different marriages, for after all, the dead parent is the common parent ARTICLE 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation. (934a) ARTICLE 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (933)

• When the children are ALL dead, the grandchildren inherit by right of representation, provided that representation is proper • When ALL the children repudiate, there is no right of representation and therefore the grandchildren inherit in heir own right, per capita and in equal portions ARTICLE 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by article 895. (n)

• The shares of the illegitimate children are to be taken only from the half, which is the free portion ARTICLE 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption, shall be his legal heirs. (n)

•

The adopted child shall become the legal heir of his adoptive parents and shall also remain the legal heir of his natural parents • In case of the death of the adopted child, his parents and relatives by nature, and not by adoption, shall be his legal heirs SUBSECTION 2 Ascending Direct Line ARTICLE 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. (935a)

• Parents and ascendants referred to in this article should be legitimate ARTICLE 986. The father and mother, if living, shall inherit in equal shares. Should one only of them survive, he or she shall succeed to the entire estate of the child. (936) ARTICLE 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half

shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. (937)

SUBSECTION 3 Illegitimate Children ARTICLE 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. (939a) ARTICLE 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a)

• Descendants in this article refers to legitimate and illegitimate descendants, since the law does not distinguish • The grandchildren inherit by right of representation in order not to prejudice the children left ARTICLE 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a)

• According to Paras, it is believed that Articles 989 and 990 apply not only to predecease but also to incapacity and disinheritance • In repudiation, there is no right of representation ARTICLE 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. (942, 841a)

•

If illegitimate children survive with legitimate ascendants, the sharing would be one-half • When there are illegitimate children and no legitimate children, the legitimate ascendants inherit half in intestate succession • When there are legitimate children, legitimate ascendants are excluded

•

Although illegitimate children are placed 3rd in the order of intestate succession, the presence of the legitimate descendants and ascendants does not exclude them. They are concurring intestate heirs. GENERAL RULE for all cases of PARTIAL INTESTACY: Charge the legacies to the intestate shares of those given by law on intestate succession more than their respective legitimes, without impairing said legitimes. Moreover, the charging must be proportionate to the amount in the intestate share over and above that given by law as legitime. ARTICLE 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a)

•

Article 992 is the Principle of Absolute Separation with the legitimate family and the illegitimate family. There is Reciprocal prohibition. This is prohibition is also called the IRON-CLAD BARRIER. • If the person to be represented is an ILLEGITIMATE, he can be represented by his legitimate and illegitimate children • If the person to represented is a LEGITIMATE child, he can only be represented by his own legitimate children

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Articles 902, 989 & 992 General Rule: These speak of the successional right of illegitimate children which rights are transmitted to their descendant upon their death whether legitimate or illegitimate.

Article 992 Exception: Even if illegitimate children have the right to succeed from their parents they cannot inherit from the RELATIVE of their parents.

Table of Intestate Shares: Illegitimate Children – ½ Surviving Spouse – ½ Illegitimate Children – ¼ Surviving spouse – ¼ Legitimate Parents – ½ Illegitimate Children - ½ Legitimate Parents – ½ Legitimate Parents – ½ Surviving Spouse – ½ Illegitimate Parents – ½ Surviving Spouse – ½ Surviving spouse – ½ Brothers & nieces, nephews & nieces – ½

Illegitimate Child alone – ALL Legitimate Parents Alone – All Illegitimate Parents Alone – All Surviving Spouse Alone All Legitimate Child Alone – All 1 Legitimate Child – ½ Surviving spouse – ½ 2 or more legitimate child ) Surviving spouse ) Co nsider spouse as 1 legitimate child and divide estate by total number

ARTICLE 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike. (944a) ARTICLE 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse, who shall be entitled to the entire estate. If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half. (945a)

Heirs of the ILLEGITIMATE CHILD: 1. Legitimate children and other legitimate descendants 2. Illegitimate children and other descendants 3. Illegitimate parents; ( NB: An illegitimate child has no legitimate ascendants) 4. Surviving spouse 5. Illegitimate brothers and sisters subject to article 992; 6. Nephews & nieces subject to rule in article 992 (because nephews & nieces who are legitimate cannot inherit from the illegitimate child.) 7. Other collateral relatives up to the 5th civil degree of consanguinity 8. The State Heirs of the LEGITIMATE CHILD: 1. Legitimate children and heir legitimate descendants 2. Legitimate parents and other legitimate ascendants 3. Illegitimate children and their descendants

4.

Surviving spouse, without prejudice to the rights of brothers & sisters, nephews & nieces should there be any

5. 6. 7. 8.

Brothers & sisters subject to Article 992. (Illegitimate brothers & sisters cannot inherit from him) Nephews & nieces subject to Article 992; Collateral relatives up to the 5th degree subject to Article 992 The State.

•

Legitimate children excludes the parents, brothers & sisters, nephews & nieces and other collateral relatives

•

Legitimate children concur with the spouse • Illegitimate children concur with the spouse • Illegitimate excludes brothers & sisters, nephews & nieces of the deceased

•

Parents also excludes the brothers & sisters, nephews & nieces and other collateral relatives • Parents concur with the surviving spouse • Surviving spouse concur with the brothers & sisters or nephews & nieces of the deceased SUBSECTION 4 Surviving Spouse ARTICLE 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under Article 1001. (946a) ARTICLE 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children. (834a)

• Article 996 speaks of “children”, and does not expressly provide for a case when there is only one legitimate child, unlike in the case of the legitime • If there is only one legitimate child concurring with the surviving spouse and there are no other relatives, both will get equal intestate shares, in accordance with the clear intent of the law to consider the spouse as a child ARTICLE 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. (836a) ARTICLE 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. (n) ARTICLE 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. (n) ARTICLE 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth. (841a) ARTICLE 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

• Brothers and sisters do not concur with recognized illegitimate children of the deceased. In fact, the former are excluded by the latter. ARTICLE 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles. (n)

Rules for SURVIVING SPOUSE:  The decedent and the surviving spouse must be legally married.  The surviving spouse must not be the guilty party when there is legal separation.



There must be a decree of legal separation. If there is no decree, she is not disqualified but she can be disinherited.



If there is a reconciliation between the surviving spouse and the decedent prior to the death of the decedent, even if there is a decree of legal separation, the surviving spouse is now qualified.



In intestate succession there is no similar rule on death in articulo mortis.



If there is a surviving spouse with 1 legitimate child and 1 illegitimate child, there is no such provision in intestate succession applicable in this case. The rule is, give ½ to the legitimate child then the illegitimate child gets ½ of the share of the legitimate child (same as testate succession). The spouse gets the remainder (which is ¼) because in testate succession the spouse gets ¼.



If there is partial intestacy, you charge the legacy/devise to the share of one gets more by intestacy than by testacy. In testate, the share of the spouse concurring with the parent is ¼, while in intestacy ½. As long as the legitime of the surviving spouse is not impaired. SUBSECTION 5 Collateral Relatives

ARTICLE 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a)

• The collaterals referred to in this article are intestate, but not compulsory heirs • Among said collaterals, the nearer excludes the farther • Collaterals cannot inherit in the presence of descendants ARTICLE 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947) ARTICLE 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948)

• Although it is a fact that brothers and sisters of a decedent, and their children, are collateral heirs, they are not given any share in the inheritance if there is a will instituting the widow as the sole heir of the estate ARTICLE 1006. Should brothers and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949)

• The relative of the full blood does not exclude the relatives of the half-blood

ARTICLE 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950) ARTICLE 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for brothers and sisters of the full blood. (915) ARTICLE 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. (954a)

• If the deceased is survived by children of a predeceased full blood sister, and by children of a predeceased half blood brother, each of the first group gets twice the share of each of the second group • The absence of brothers, sisters, nephews, and nieces of the decedent is a precondition of the other collaterals ARTICLE 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line. (955a)

•

The collateral relatives are the brothers, sisters, nephews and nieces, and the uncles and aunts and cousins. Rules for COLLATERAL RELATIVES:



The nearer relative excludes the farther subject to the right of representation when proper.



If they are all in the same degree, those who are in direct line are preferred over those who are in the collateral line  If both are in the direct line, those who are in the descending line are favored over those who are in the ascending line. That is why the descendants excludes the parents or ascendants.  If both are in the collateral and the same degree, those who are in the descending are favored over those in the ascending. That is why the nephews & nieces are favored over the uncles & aunts.  All of the brothers & sisters on the full blood will inherit in equal shares.  Those who are in the half blood, as long as married, not illegitimate, entitled to ½ of the share of the full blood.  With respect to the heirs in the collateral line, the right of representation extends only to the nephews & nieces (children of brothers & sisters).



Grandnephews & nieces and the great grandnephews & nieces can no longer represent.



Between uncles & aunts vis-à-vis the nephews & nieces, the nephews & nieces are preferred

SUBSECTION 6 The State ARTICLE 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. (956a)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1. ARTICLE 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. (958a)

• Rule 91 (Escheats) of the Rules of Court shall be observed ARTICLE 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a)

• While the State actually inherits, still assignment of the properties to the proper municipalities must be made • The law makes a distinction as to whether or not the deceased resided in the Philippines ARTICLE 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold, the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. (n)

•

In the absence of ALL those in the direct line and ALL those within the 5th degree in the collateral line, the State succeeds

•

CADUCIARY RIGHT is the right of the state to succeed • A claim must be filed within 5 years from the date the property was delivered to the State CHAPTER 4 Provisions Common to Testate and Intestate Successions SECTION 1 Right of Accretion ARTICLE 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n)

•

Accretion is based on the presumed will of the testator that he prefers to give certain properties to certain individuals rather than that the property shall go by way of intestacy • Accretion is proper in both testate and intestate succession • In testate succession, it is proper only with respect to the free portion • In intestate succession, it is proper with the entire portion

2. 3.

4.

There is only one inheritance, devise or legacy (unity of object); Plurality of subjects – there must be at least 2 or more heirs, devisees of legatees instituted. There is a vacant portion – meaning, one of the heirs, devises, legatees instituted cannot succeed. Acceptance of the portion accruing by the person entitled. (If there is no acceptance the share will go by way of intestacy.)

•

There is unity of object when two or more persons are called to the same inheritance. The property is not divided and the heirs, devisees or legatees are called to the entire estate pro indiviso • If there is already a specification ( north portion, south portion), accretion is not proper

•

With respect to money or fungible goods, as long as the share of devisee, legatee or heir is not earmarked, there is still unity of object ARTICLE 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. (982a) ARTICLE 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (983a)

In testamentary succession, accretion is proper if the vacancy is caused if one of the heirs: 1. Predeceased 2. Incapacitated; 3. Repudiates the inheritance 4. If the suspensive condition is not fulfilled 5. Failure to identify one particular heir ARTICLE 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. (981)

• •

This treats of accretion in intestacy One who renounces cannot represented

ARTICLE 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (n)

•

In intestate succession, accretion is proper if the vacancy is caused by repudiation or incapacity (subject to the right of representation) • There is no accretion in intestate succession if the vacancy is caused by disinheritance ARTICLE 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (984)

• This is the same in substation. The rights and obligations shall pass to the others to whom the shares will accrue EXCEPTIONS: Requisites of Accretion:

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

1. 2.

If the testator expressly provide that the other heirs will not be subject to the same rights and obligations If the rights and obligations are personal to the heir whose portion becomes vacant

ARTICLE 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger. Should the part repudiated be the legitime, the other coheirs shall succeed to it in their own right, and not by the right of accretion. (985)

• There can be no accretion insofar as the legitime is concerned • Accretion, if it takes place, concerns only the free portion ARTICLE 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (986)

•

This illustrates the order of preference (ISRAI)

ARTICLE 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. (987a)

SECTION 2 Capacity to Succeed by Will or by Intestacy ARTICLE 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914)

•

CAPACITY TO SUCCEED is the ability to inherit and retain property obtained mortis causa • Capacity to succeed is governed by the law of the nation of the decedent Bar Question: What matters are governed by the national law of the decedent? Under Article 15: 1. The order of succession 2. The amount of successional right

3. 4.

The intrinsic validity of provision The capacity to succeed.

the

testamentary

ARTICLE 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (n)

•

Natural persons must be living AT THE TIME that the succession opens or AT THE TIME OF THE DEATH

•

But the word “living” includes those at least conceived (Article 41). A conceived child is deemed to have live from the moment of the complete separation from mother’s womb. • But if the child has an intra-uterine life LESS THAN 7 MONTHS, he should be considered alive if the child does not die WITHIN 24 HOURS.

•

In representation, the representative must also be living or at least conceived at the moment the succession opens

ARTICLE 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. (746a)

• •

Juridical persons inherit only by WILL

Under article 1026, some of these entities are not juridical persons. Juridical personality is acquired when it is registered. • Article 1026 grants capacity to succeed even to non-juridical persons

•

The STATE inherits by will or by intestacy by virtue of its caduciary right

ARTICLE 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; (2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; a (6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a)

1. Priest or Minister





 





to safeguard the right of the heirs who may be defrauded by the sinister and undue influence which may be exercised by some priest and minister over a dying man The will must be made DURING THE LAST ILLNESS of the testator LAST ILLNESS means the illness of which the testator dies or the illness which immediately preceded the death of the testator The will must be made AFTER the confession The priest must hear the confession. If he merely extends spiritual aid, that is not considered as confession. BUT with respect to the minister, the giving of spiritual aid disqualifies the minister. It does not matter whether the illness is long, lingering or short as long as there is great possibility of death



The disqualification under this paragraph does not extend to the legitime, intestacy and dispositions which do not extend to a testamentary benefit 2. Relatives of such pries or minister within the 4th degree, the church, organization, etc. 3. Guardians  This refers to both to guardians over the property and guardians of the person



As long as the final account has not been approved, the guardian is prohibited from being an heir, legatee/devisee of the testator

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras





What is important is that at the time of the making of the will, the final accounts have not been approved. It does not matter that he is no longer the guardian at the time of death. The prohibition only applies when the institution is during the subsistence of the guardianship prior to the approval of the final account



Unlike the priest, the relatives (spouse, ascendant, descendant, brother or sister) are not disqualified, For the priest up to the 4th degree they are disqualified. 4. Attesting witnesses



If you give a legacy or devise only, the legacy or devise is void but the witness is still qualified



But applying Article 823, if there are 3 other witnesses who are competent, then the witness to whom the legacy or devise is given is capacitated to inherit 5. Physicians, surgeons, etc  The will must be made DURING the LAST ILLNESS and AFTER THE CARE had commenced  The disqualification does not apply if the physician or nurse is a compulsory heir 6. Individuals, associations and corporations not permitted by law to inherit • Article 1027 still applies even if it is proved that there was no undue influence on the part of the priest, guardian, or physician

•

Article 1027 provides for a conclusive presumption. Being conclusive, you cannot present controverting evidence ARTICLE 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. (n)

•

6.

No place is specified or date is fixed for the prayers

ARTICLE 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality. (749a)

• •

This is disposition in favor of the poor

This refers only to the poor living in the domicile of the testator at the time of his death, unless the testator has provided otherwise • The institution is for the poor in general.

•

When the testator says a poor of a definite locality, then the poor in that place. • Insane persons have no testamentary capacity

•

But with respect to being heirs, insane persons are capacitated • Incapacity should be construed strictly Who will designate the persons who considered poor? 1. The person designated by the testator; 2. The executor; 3. Three people by majority vote

are

This is incapacity by reason of public morality

Applying the law on succession, the following donations shall be void: 1. When the testator and the recipient are guilty of adultery or concubinage 2. When the testator and the recipient are guilty of the same criminal offense in consideration thereof 3. Those made by the testator to a public officer, or his wife, descendant and ascendant by reason of his office ARTICLE 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in article 1013. (747a)

•

Article 1029 is commonly called the Institution of the Soul. The soul is considered as an entity which does not have a juridical personality but may otherwise inherit Requisites for the institution of the soul: 1. The disposition must be for prayers and pious works 2. The prayers and pious works must for the benefit of the testator’s soul 3. The disposition must be in general term 4. It does not specify the application 5. No particular person is charged with the duty of giving the money or property

Kinds of Incapacity 1. ABSOLUTE INCAPACITY – You cannot inherit from anybody under any circumstance. 2. RELATIVE INCAPACITY – You can inherit only from certain persons or can only inherit certain properties under certain circumstances. Classes under Absolute Incapacity 1. Article 1026 last paragraph : “All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same.” 2. Article 1027 paragraph 6 : “Individuals, associations and corporations not permitted by law to inherit.” 3. Those who lacks juridical personality Classes under Relative Incapacity 1. Article 1027: Incapacity by reason of possible undue influence 2. Article 1027 paragraphs 1-5: Incapacity by reason of public policy 3. Article 1028 Incapacity by reason of public policy and morality 4. Article 1032: Incapacity by reason of unworthiness. ARTICLE 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. (755)

•

This article applies only to incapacity by reason of possible influence and Incapacity by

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

reason of public morality. With respect to incapacity by reason of unworthiness, Article 1031 will not apply ARTICLE 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a)

2nd paragraph: Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants  The incapacity must be measured AT THE TIME of death of the testator  Such person is not incapacitated if the attempt against the wife of the testator was made after the death of the testator 4th paragraph: Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation  18 years old is the legal age but 21 is the full age  Death must be violent. It must be caused by a crime



Under the last sentence, paragraph 4 applies only when there is an obligation to make an accusation but there is no law in the Philippines which obliges anyone to make an accusation because in criminal cases, it is People of the Philippines versus the criminal. It is the State which prosecutes. As of the present, paragraph 4 has no application. 5th paragraph: Any persons convicted or adultery or concubinage with the spouse of the testator



The person convicted is the one incapacitated, he is the unworthy. The spouse of the testator is not incapacitated or unworthy. But the infidelity of the spouse constitutes a ground for disinheritance. If there is a decree of legal separation, by law, the spouse who is guilty is disqualified from inheriting.  If there is now reconciliation between the guilty spouse and the innocent spouse after the decree of legal separation has been granted, the decree shall be set aside so the spouse will now be reinstated to succeed to capacity. 8th Paragraph: Any person who falsifies or forges a supposed will of the decedent.  Article 1032 applies to both testate or intestate succession  When it is the compulsory heir who becomes unworthy, the compulsory heir loses the legitime and all other rights pertaining to the

legitime and as well to the free portion. But the incapacitated heir can be represented. ARTICLE 1033. The causes of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a)

•

This article CONDONATION

talks

Condonation / Pardon It is the unilateral of the testator.

about

PARDON

OR

Reconciliation It is a bilateral act. There must be forgiveness and the heir must accept.

Rules for Condonation:

•

•

If the testator already knew the cause of the unworthiness at the time of making the will but still he provides something for that unworthy heir in the will, there is now an IMPLIED CONDONATION. The will in which the implied condonation is made must be valid and it must not be revoked in order that there is implied condonation because implied condonation is dependent on the will.

•

If knowledge comes only AFTER the execution of the will, condonation must be in writing. This is EXPRESS CONDONATION

•

If the cause for unworthiness is also a ground for disinheritance, the rule on disinheritance applies. Thus, reconciliation is enough. There is no requirement that the testator should condone it in writing. But if there is no disinheritance and there is only act of unworthiness, if the testator knew of the act only after the execution of the will, there has to be condonation in writing. The only instance wherein an incapacitated heir is restored to capacity by the mere act of reconciliation is when there is a decree of legal separation the guilty spouse becomes incapacitated. But when there is subsequent reconciliation the decree shall be set aside and the spouse will now be restored to capacity.

•

ARTICLE 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. (758a)

• In case of a suspensive conditional institution, the heir must be capacitated BOTH: 1. At the time of the testator’s death 2. At the time the condition is fulfilled ARTICLE 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. (761a)

• In disinheritance, if a person is disinherited he can still be represented.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

But the disinherited parent shall have no usufruct and administration of the property received by the representative (Article 923).

•

This same rule applies to incapacity. The incapacitated heir can still be represented but the incapacitated heir has no right of usufruct or administration over the property received by the representative. ARTICLE 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. (n)

•

The unworthiness must be declared by the court ARTICLE 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity for any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. (n) ARTICLE 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together with its accessions. He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. (760a)

•

Articles 1037 and 1038 speak of the rights and obligations of the excluded unworthy heir ARTICLE 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n) ARTICLE 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. (762a)

of the property, rights and obligations which are transmitted to him thru the death of the decedent

•

Repudiation is the act by which the person called to succeed to the inheritance manifest his unwillingness to succeed to the same

•

Rights may be waived provided that the waiver is not contrary to law, morals, public policy, good customs or prejudicial to the right of the person recognized by law. This is applicable in acceptance and repudiation. • No person can be forced to accept the generosity of another

•

Repudiation and acceptance are subsequent to the death of the decedent. But their effects retroact from the moment of death.

•

If you accept or repudiate before the death of the decedent, it is void because it involves future inheritance. Moreover, a will is essentially revocable so, the acceptance or repudiation is premature GENERAL RULE: Acceptance and repudiation once made are irrevocable EXCEPTION: When it was made through any of the causes that vitiate consent or when an unknown will appears. • Acceptance may be EXPRESS, TACIT or PRESUMED • Repudiation being an act of disposition, it requires greater capacity and more formalities than acceptance

•

Repudiation of hereditary rights partakes the nature of donations

•

Acceptance of inheritance does not make the heir personally liable for the debts and obligations of the decedent

•

Acceptance and Repudiation must absolute, thus, not subject to condition

be

•

ARTICLE 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. (991)

•

Requisites:

The action for declaration of incapacity and recovery of the inheritance shall be brought WITHIN 5 YEARS from the time the DISQUALIFIED heir took possession of the property Only those who have an interest who will either stand to gain or lose by the exclusion of the incapacitated heir can bring the action SECTION 3 Acceptance and Repudiation of the Inheritance ARTICLE 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. (988)

•

Acceptance and repudiation must be a free and voluntary act • The presence of vitiated consent gives rise to their revocability • There can be partial acceptance and partial repudiation • Even the legitime may be repudiated since no one can be compelled to accept the generosity of another ARTICLE 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. (989)

1.

The heir must be certain of the death (actual or presumed) of the decedent 2. The heir must be certain of his rights to the inheritance 3. The heir must have free disposal of his property ARTICLE 1044. Any person having the free disposal of his property may accept or repudiate an inheritance. Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in article 1030. (992a)

HEIRS MINORS

•

Acceptance is the act by which a person called to succeed to the inheritance of a decedent either by will or by law manifests his assent to the receipt POOR

WHO MAY ACCEPT Minors can be represented by their parents or guardians (Minor himself cannot accept) Acceptance

WHO MAY REPUDIATE The repudiation by the parents/guardian s must be with judicial approval for it to be valid.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

CORPORATIONS/ ASSOCIATIONS/ ENTITIES PUBLIC OFFICIAL/ ESTABLISHMENT S MARRIED WOMAN

DEAF-MUTE Who can read and write DEAF-MUTE who cannot read or write

must be made by the person designated by the testator or in his default, follow the order made in Article 1030. (Justice of the Peace, Mayor, Municipal Treasurer) May be made by the lawful representative . Must be with the approval of the government May accept on her own without the consent of her husband May accept personally or thru an agent Must be made by the guardian (because deaf mute who cannot read and write has no juridical capacity)

(3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. (1000)

•

Article 1050 enumerates the instances wherein there is tacit acceptance

• The lawful representative may repudiate with court approval. With the approval of the government May repudiate on her own without the consent of her husband. May repudiate personally or thru an agent. Must be made by the guardian with court approval

ARTICLE 1045. The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary. (993a) ARTICLE 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government. (994) ARTICLE 1047. A married woman of age may repudiate an inheritance without the consent of her husband. (995a) ARTICLE 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval. (996a) ARTICLE 1049. Acceptance may be express or tacit. An express acceptance must be made in a public or private document. A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir. Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. (999a)

•

The acts of mere preservation or administration do not constitute acceptance because these acts are not acts of dominion ARTICLE 1050. An inheritance is deemed accepted: (1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs;

Under the 2nd paragraph, take note that the renunciation must be in favor of one or some but not all. When you renounce in favor of one or some, you are actually choosing who will receive. You are exercising dominion over your share and it is an act of ownership. Thus, there is tacit acceptance

•

Under the 3rd paragraph, if you renounce in favor of your co-heirs of ALL indiscriminately but you were paid, then there is tacit acceptance because why would they pay you if you do not own the share you are giving to them. BUT the portion renounced should not devolve to the other heirs who would succeed by virtue of accretion if the renunciation is gratuitous. ARTICLE 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. (1008)

How do you repudiate? 1. Repudiation by public document 2. When repudiation is embodied in an authentic document 3. By petition presented in court having jurisdiction over the testamentary or intestate proceeding ARTICLE 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. (1001)

•

The creditors can accept in behalf of the heirs only if the heir repudiates and the repudiation prejudices the creditors

•

But in that case, creditors cannot accept the entire inheritance, devise /legacy. Only the amount sufficient to cover the credit. ARTICLE 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. (1006)

• The death of the heir should be after that of the decedent in order that Article 1053 may be applied ARTICLE 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it. (1007a)

• If all the heirs accept, there is co-ownership • If one of them repudiates, there is accretion or substitution if there is a substitute ARTICLE 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity. (1009)

• An heir is both a testamentary heir and an intestate heir • If you renounced your share in testamentary succession, it follows that you also renounced your share in legal succession

•

If at the time of your being legal or intestate heir, you already knew that you are instituted as testamentary heir, you are deemed to have repudiated both. But if at the time that you are renouncing your being an intestate or legal heir, you do not know that you are also instituted heir in a will, then you are not deemed to have renounced your institution in the will because the presumption is that the shares of the heir in legal succession is just based on the presumed will of the testator. ARTICLE 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the causes that vitiate consent, or when an unknown will appears. (997) ARTICLE 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance. If they do not do so within that time, they are deemed to have accepted the inheritance. (n)

• Within 30 days, you must signify your acceptance or repudiation. Otherwise, the presumption is you have accepted the inheritance

• •

Article 1057 refers to presumed acceptance Article 1050 refers to tacit acceptance SECTION 4 Executors and Administrators

ARTICLE 1058. All matters relating to the appointment, powers and duties of executors and administrators and concerning the administration of estates of deceased persons shall be governed by the Rules of Court. (n) ARTICLE 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for that purpose, the provisions of articles 2239 to 2251 on Preference of Credits shall be observed, provided that the expenses referred to in article 2244, No. 8, shall be those involved in the administration of the decedent's estate. (n) ARTICLE 1060. A corporation or association authorized to conduct the business of a trust company in the Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward. (n)

SECTION 5 Collation ARTICLE 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. (1035a)

•

COLLATION means computing or adding certain values to the estate, and charging the same to the LEGITIME

•

COLLATION also means computing or adding certain values to the estate, and charging the same to the FREE PORTION

ARTICLE 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (1036) ARTICLE 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. (1037) ARTICLE 1064. When grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property. They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. (1038)

Items which are not subject to collation: 1. If the testator provides that the donation shall not be collated, but subject to the rule that it should not impair the legitime of the other compulsory heirs 2. If the compulsory heir repudiated his share in the inheritance. The donation will not be revoked but if it is inofficious, the heir who repudiated the inheritance will pay or give back the value to the other compulsory heirs whose legitimes are impaired. 3. Those given to voluntary heirs, legatees and devisees. The donations given to them will be charged to the free portion. If it will impair the legitime of the other compulsory heirs, it has to be reduced. (Article 1063) 4. Expenses incurred by the parents in giving their children the professional, vocational or other career (Article 1068) 5. Wedding gifts (Article 1070) GENERAL RULE: Expenses incurred by the parents in giving their children the professional, vocational or other career is not charged to the legitime of the compulsory heirs but only to the free portion EXCEPTION: If the parents expressly provide that it shall be charged to the legitime ARTICLE 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. (1044)

•

These items are charged to the free portion but subject to the limitation that they should not exceed 1/10 of the free portion ARTICLE 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. (1039) ARTICLE 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (1040) ARTICLE 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. (1041)

•

SUPPORT includes education but Article 1067 separates support and education

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

•

Education under this article means only up to HIGH SCHOOL education because there is separate provision under Article 1068 as to professional, vocational and other careers Items which are not collated to the legitime and to the free portion because they are not included in the computation in the net hereditary estate: 1. Properties received from the testator by the children of the heir (Article 1065) 2. Donations by the testator to the spouse of the compulsory heir (Article 1066) – If the donation was made to the spouses jointly, ½ is subject to collation pertaining to the share of the heir 3. Expenses for support, education, medical attendance

ARTICLE 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. (1042a)

•

When you give your child elementary or high school education , this is not generosity but a Moral Obligation on you part ARTICLE 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation. (1043a) ARTICLE 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. (1045a)

• Only the value at the time of the perfection of the donation should be collated ARTICLE 1072. In the collation of parents, one-half shall be brought father, and the other half, to that of one alone shall be brought to inheritance. (1046a)

a donation made by both to the inheritance of the the mother. That given by collation in his or her

1. 2. 3.

Property of the same nature, class and quality If no property of the same nature, cash or security Other property as may be necessary shall be sold at public auction

Rules for movables: 1. Property of the same nature, class or quality

2.

If none, the equivalent value of the property

•

When the property donated is a MOVABLE property, there is NO RIGHT to sell at a public auction ARTICLE 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened. For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. (1049)

•

In donation, there is immediate transfer of ownership. Thus, the fruits and interest from the time of the donation up to the death of the testator shall belong to the donee • The fruits from the time of the death of the testator shall pertain to the estate ARTICLE 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value. The donee who collates in kind an immovable, which has been given to him, must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition is effected. As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. (n)

•

This article talks RETURNING IN KIND

the

RULES

FOR

•

When there is collation “in kind” (return of the property or the value), the other heirs should reimburse the donee for the necessary expenses

•

You have to reimburse the heir of the value of the improvements

•

The donee has the right to remove the improvements which are for his own pleasure if the removal will not impair the property donated

ARTICLE 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. (1047)

ARTICLE 1077. Should any question arise among the coheirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. (1050)

ARTICLE 1074. Should the provisions of the preceding article be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash nor marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction. If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. (1048)

• Questions on collation do not interrupt distribution – as long as adequate security is given • Only properties received by gratuitous title may be the subject of collation • When the estate proceedings have not yet reached the stage of partitioning and distributing the property, any question of collation that is brought up can be regarded as having been prematurely raised

•

Article 1073 and article 1074 are the RULES OF EQUALIZATION IN COLLATION Rules for immovables:

SECTION 6 Partition and Distribution of the Estate SUBSECTION 1 Partition

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n) ARTICLE 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. (n)

• •

Article 1079 defines PARTITION

Before partition, there is co-heirship. heirship is dissolved by partition.

This co-

How partition is made? 1. JUDICIAL PARTITION 2. EXTRA-JUDICIAL PARTITION ARTICLE 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a)

•

This is refers to Extra-judicial Partition by the Decedent

•

This is subject to the limitation that the legitimes of the compulsory heirs should not be impaired Kinds of extra-judicial partition by decedent: 1. By acts inter vivos There is no requirement or no formalities required. In partition, there is no transfer of ownership. There is merely a physical determination of the portion to be given to the heir. 2. By will Formalities are required. Kinds of extra-judicial partition by heirs: 1. Orally This is binding only between the heirs themselves who are participants 2. By public instrument This is binding even against the 3rd person. Limitations of extra-judicial partition: 1. There are no debts; 2. That everyone is of legal age or represented by guardian. ARTICLE 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs. i The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatory, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. (1057a)

•

This is what you call the appointment of the MANDATARY

•

MANDATARY is a person entrusted to make the partition

•

The heirs are not bound by the partition made by the mandatory. The heirs may accept or they may reject.

•

In case of conflict, the court may settle the conflict

Requirements in order that there is valid partition by the mandatary: 1. The mandatary should not be a co-heir because if he is one of the co-heirs his partition may be tainted with impartiality. 2. In case one of the heirs is subject to guardianship, it is required that there be notifications to the co-heirs, creditors, legatees or devisees 3. There has to be inventory of the estate ARTICLE 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. (n)

•

There is no specific time as to when partition is to be effected as long as it is intended to put an end to indivision or to end the co-ownership ARTICLE 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the coownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs. (1051a)

GENERAL RULE: Heirs, whether compulsory or voluntary, can demand partition EXCEPTION: When the testator has forbidden the partition of the estate. But this prohibition shall not exceed 20 years. Instances when the heirs may partition even if before 20 years: 1. When any of the causes for the termination of the partnership (e.g. death) 2. If the heirs themselves mutually agree to partition 3. Upon order of the court for compelling reasons and upon petition of the heirs ARTICLE 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with; and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. (1054a)

• A voluntary heir whose institution is subject to a condition cannot demand partition before the fulfillment of the condition. The other heirs concurring with such voluntary heir may demand partition provided they given security or cash bond to safeguard the rights of the conditional heirs GENERAL RULE: The right to demand partition does not prescribe EXCEPTION: When one of the heirs adversely possesses the property and he has complied with all the requirements for acquisitive prescription ARTICLE 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (1061)

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

ARTICLE 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. (1062)

• Note that if even ONE heir should demand a public auction, this must be done ARTICLE 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. (1063)

Reimbursement made by co-heirs: 1. Income and fruits 2. Useful and necessary expenses 3. Damages thru malice or neglect ARTICLE 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the coheirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (1067a)

•

This article talks about LEGAL REDEMPTION

Requisites for the exercise of legal redemption: 1. There are two or more heirs 2. There is a sale of hereditary right • There must be a sale or other onerous disposition • The sale must be voluntary or forced as in the case of sales on execution 3. The buyer must be a stranger 4. The sale must be made BEFORE partition 5. At least one co-heir must demand partition

•

If all of the of the co-heirs demand partition, they shall be allowed to redeem the proportionate share pertaining to them 6. The demand must be made within one month from Notification in Writing 7. The redemptioner must reimburse the price of the sale GENERAL RULE: The right of legal redemption is a PERSONAL RIGHT. They cannot assign or sell this right. EXCEPTION: If the heir who wants to exercise the right of legal redemption dies prior to the exercise, his right may be transmitted to his own heirs. ARTICLE 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. (1065a) ARTICLE 1090. When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title. (1066a)

• “Title” here refers to the document evidencing the right of ownership and not to the right itself Order of preference as to whom title shall be delivered if some properties remain undivided: 1. The one having the largest interest 2. If all of them have the same interest, the oldest heir

SUBSECTION 2 Effects of Partition ARTICLE 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. (1068) ARTICLE 1092. After the partition has been made, the coheirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. (1069a)

• For warranty against eviction to be enforceable, it is enough that there be a burden or encumbrance that must be respected. It is not necessary that the heir be deprived full ownership • Eviction here does not have to be by final judgment before recourse to the warranty can be sought, as long as no heir objects Effects of partition: 1. Once there is partition, the heirs will be the exclusive owners of the thing given to them or delivered to them (Article 1091) 2. There is a reciprocal and proportionate warranty (Article 1092) ARTICLE 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (1071) ARTICLE 1094. An action to enforce the warranty among co-heirs must be brought within ten years from the date the right of action accrues. (n)

• The period of exercise of the warranty is 10 years ARTICLE 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. The warranty of the solvency of the debtor can only be enforced during the five years following the partition. Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (1072a)

•

This is Warranty as to Insolvency • There is a warranty of insolvency provided that the debtor was solvent at the time of the partition, not later • Such warranty is good for 5 years, following the date of partition • There is no warranty for bad debts. An heir accepts them at his own risk

ARTICLE 1096. The obligation of warranty among co-heirs shall cease in the following cases: (1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired; (2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

(3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (1070a)

SUBSECTION 3 Rescission and Nullity of Partition ARTICLE 1097. A partition may be rescinded or annulled for the same causes as contracts. (1073a) ARTICLE 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least onefourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. (1074a) ARTICLE 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (1075)

GENERAL RULE: In order that that you may be justified in asking for rescission on the account of lesion, the deduction must at least be ¼. If it is less than ¼, you can only ask for a completion. EXCEPTION: If the partition is made by the TESTATOR, even if the deduction is less than ¼, you cannot ask for rescission EXCEPTION TO THE EXCEPTION: 1. When the legitime of the compulsory heirs has been impaired. 2. If the intent of the testator is for his partition to be rescinded should there be lesion ARTICLE 1100. The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. (1076)

• If brought after more than 4 years, the action for rescission will fail • The 4-year period begins to run not from the time of the project of partition but from the time there is court approval ARTICLE 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share. (1077a)

•

The defendant heir, despite a proper ground for rescission, is given an option: 1. To indemnify the plaintiff – This may be made by • payment in cash or • delivery of the thing of the same kind. 2. New partition ARTICLE 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. (1078a)

• restitution

Rescission

requires

mutual

ARTICLE 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (1079a)

ARTICLE 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. (1080)

• This involves a preterition of compulsory heirs, not in the institution, but in the partition of one or more objection • Preterition of an object in a will gives rise to mixed succession. Preterition of an object in the partition does not give rise to rescission. GENERAL RULE: Such preterition in the partition will NOT cause rescission. EXCEPTION: If there was 1. Fraud 2. Bad faith ARTICLE 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. (1081a)

•

This speaks of an intrusion of a stranger in the partition

•

The partition in this case is not completely void.

•

Only the part corresponding to the non-heir is void.

SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles, Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras

Success is not the key to happiness. Happiness is the key to success. If you love what you are doing, you will be successful. - Albert Schweitzer