Wills Transcription

SUCCESSION Lecture By: Dean Navarro

TABLE – OF – CONTENTS BASIC PRINCIPLES ............................................................

2

WILLS

DISPOSITIONS with a TERM ...…………………………..

44

LEGITIMES …………………………………………………

49

Wills in General .........................................................

6

Reserva Troncal ……………………………………..

51

Testamentary Capacity and Intent ..........................

8

Collation ……………………………………………..

57

DISINHERITANCE …………………………………………

63

Form of Wills Notarial Will .................................................

10

LEGACIES and DEVISES ………………………………….

67

Holographic Will ..........................................

17

LEGAL or INTESTATE SUCCESSION …………..............

72

Witnesses to Wills ......................................................

22

Right of Representation …………………………….

73

Codicil and Incorporation by Reference ..................

23

Intestate Shares ……………………………………...

75

Revocation ..................................................................

25

PROVISIONS COMMON to TESTATE

Republication and Revival ........................................

28

and INTESTATE SUCCESSIONS ………………………...

78

Allowance and Disallowance .....................................

29

Right of Accretion …………………………………...

78

INSTITUTION of HEIRS ......................................................

32

Capacity to Succeed …………………………………

82

SUBSTITUTION of HEIRS ...................................................

37

Acceptance and Repudiation ……………………….

86

CONDITIONAL DISPOSITIONS and

Transcribed by: Bjone Favorito

PARTITION and DISTRIBUTION of ESTATE ………….. 87

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BASIC PRINCIPLES

One of the Basic Principles in Succession is the Primacy of the Decedent or the Will. To a certain extent, that is somehow mitigated by the provisions on legitime. Because while, generally speaking, the testator has the right to give his property to anyone he wants and do with it as he pleases, to a certain extent, that right is mitigated by the provisions on legitime – kung meron ka compulsory heirs, you cannot simply dispose of your entire estate in favor of any one whom you choose. The law reserves a certain part of your estate for your compulsory heirs. That’s the reason why, as a general rule, Testacy is preferred over Intestacy. Theories in Succession 

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One theory is that succession is simply an Extension of the Right of Ownership. In other words, if you are the owner of the property, you should also have the right, not only during the lifetime but even after death, to determine who will benefit from your properties. Another theory is that succession is based on the Right of the Family. The basis is Family Co-ownership. As we acquire properties, we have our families with us, who helped us amassed wealth. The third theory is a combination of both theories.

The law says it is a mode of acquisition. Therefore it is, by itself, a separate distinct mode of acquiring ownership. That being the case, succession is sufficient to transfer, convey and vest ownership in a person. 774 also say there is transmission through his death. You only have succession, testate or intestate, if and when there has already been death. Hence, death is essential for there to be either testate or intestate succession. But what is death? When is a person considered dead? For our purposes, a person is considered dead when there has been a total permanent irreversible cessation of essential bodily functions. From the point of view of the law, there is no such thing as temporary death. If a person is rushed to the hospital at 7:00am caused by a massive heart-attack and two doctors proclaimed him dead – DOA. The doctors signed the death certificate, and the person was taken home by his relatives. At 11:00am the same morning, he suddenly sits up and ask for food. Was there succession from 7:00am to 11:00am when he appeared to be dead? NO, no such thing as temporary death.

What is Succession? The law gives us a codal definition in Art. 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. Transcribed by: Bjone Favorito

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In succession, there are so-called Subjective and Objective Elements. Subjective – the person who died, and those who succeed him (the heirs, legacies, devises). Objective – the inheritance In this connection, remember the very important article – 777: The rights to the succession are transmitted from the moment of the death of the decedent. If a person dies at 7:00pm, from that very moment, succession rights are already transmitted. Best illustration of principle is the old case of Lorenzo vs. Posadas – a person died, and in his will he said “I give all my properties to my nephew, but only after 10 years from the time of my death”. At the mean time, his properties will be administered by his executor. The question which arose is: in determining the amount of the taxes due, which should be used as basis? The value of the properties at the time of death, or at the end of the 10-year period? Applying 777, it should be the value at the time of death, because it is at that moment when there is a transmission of successional rights. Of more recent vintage, there is the case of Locsin vs CA – this is much in resemblance with the case involving the estate of Do a Chito Madrigal. In both cases, the survivors were only nephews and nieces. During the lifetime of the decedent, practically all of the properties were disposed of. Nung namatay, konting konti nalang natira sa estate. Sabi ng mga heirs “paano naman kami? Wala nang natira, if those properties had not been disposed of during the lifetime, we would have inherited them”. Their problem is Art.777 – they are only entitled to such estate as existed as the moment of death, because it is only at that moment where there is a transmission of successional rights. However, if the survivors had

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been compulsory heirs entitled to legitimes, that’s a different story. You would then have to go through the process of collation. For there to be succession, it is not always required that you actually see the person lying in estate. Sometimes, there can be succession even in the basis of Presumptive death. We remember the situations when a person is presumed dead for purposes of succession: We have Ordinary Absence and Extraordinary Absence. Ordinary – after an absence of 10 years, the absentee is presumed dead. However, there is a provision intended for senior citizens – if you disappear after the age of 75, presumed dead only in 5 years. Extraordinary – situation where a person disappears under circumstances where there is great danger or risk of death (Art. 391), only 4 years. Once the presumption has arisen, when is death deemed to have occurred? Ordianry – at the end of the period Extraordinary – at the start of the period Whether ordinary or extraordinary, you have to wait for the period to expire before the presumption would arise. Example: A rode an airplane on January 1. The flight is supposed to be from Manila to Davao, but never reached Davao, and had been missing ever since its departure. Despite searches conducted, it could not be found. For purposes of succession, A is presumed dead after 4 years. If asked “kailan kaya namatay ‘to?” chances are, he died on the same day, January 1, because an airplane cannot remain indefinitely flying in the air. So the rule is based on common sense. Page 3

Succession may be Testate, Intestate or Mixed. Testate – if it is based on a will. Intestate – if there is no will, or the same is void based on the provisions of the law on intestate succession. Mixed – if partly by will, and partly by operation of law as where the testator did not dispose of his entire estate by will. He disposed only 40% of his properties by will, the rest had no provision covering them in the will. Thus, the 60% will be governed by intestate succession, the 40% percent, by his will. Tandaan, wala na ngayon yung Contractual Succession, with the advent of the Family Code. It was called as such because it allowed the future spouses to give to each other properties mortis causa through their marriage settlement. The settlement is a contract, and yet under the old civil code, they were allowed to give properties through each other. Wala na yan, yung tatlo nalang (Testate, Intestate and Mixed). Remember the distinctions between Heirs on the one hand, and Legatees and Devisees on the other. Why? Because under certain provision of succession, they are treated differently. So we must know, is he an heir, legatee or devisee?

Some provisions where they are treated differently, and where the legal consequences would be radically different:

Under the same provision, however, legacies and devises will be respected as long as they are not inofficious. So, kung nagkaroon ng Preterition, and you happen to be an heir, patay kang bata ka, wala kang mamanahin. But if you happen to be a legatee or devisee, meron ka parin makukuha. Illustration: Assume X has one legitimate child - S. He dies with a will where there are only two provisions: (1) “I give my friend F P10,000; (2) I give the rest of my estate to my friend G.” X’s total hereditary estate is P120,000 and S is not mentioned in the will. Assume further that during the lifetime of X, he had given nothing to S. How do we distribute the estate? Since there is preterition, we have to apply article 854. In the case of F, he is obviously a legatee. Therefore, under 854, his legacy will be respected if it is not inofficious. Out of P120,000, the legitime of S is P60,000. The other half is the free portion. A legacy or devise will be considered inofficious if it exceeds the free portion. The legacy of F is thus valid, as there would still remain P50,000 in the free portion. But to whom will the remaining P50,000 go? To G, as provided in the will? Or to S? Answer: To S. Why? Because under 854, once there is preterition, it will result in the annulment of the institution of heirs. It is as if nobody was instituted as an heir. Therefore G has no legal basis for receiving anything, he ends up with nothing because he is considered an heir.

Most important is Preterition under art. 854 – the omission of one, some or all of the compulsory heirs in a direct line will result in the annulment of the institution of heirs.

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When is a person considered an Heir? If he is given the entire estate or a fractional or aliquot part of the estate. He is considered a Legatee if he is given, by way of will, a specific or determinate item of personal property; and a Devisee if what is given is a determinate item of real property. In case there is preterition, I would rather be a legatee or devisee, rather than an heir. However, it does not mean it is always better to be a legatee or devisee.

Note that the general rule in 793 applies only to legacies and devises. It does not apply to instituted heirs. Therefore, if the testator says in his 1985 will “I leave my entire estate to my friend F” and at that time his entire estate consisted of 5 cars. When he died 20 years later, his entire estate consisted of 5,000 cars. How many cars is F entitled to? 5,000 because in this case, F is not a mere legatee or devisee, but an instituted heir.

When would it be better to be an heir? In cases of afteracquired properties, for example. These are the properties referred to in article 793 – those acquired after the execution of the will and before the death of the testator. What is the rule? After-acquired properties shall only pass thereby as if the testator had possessed them at the time he made his will if it expressly appears upon the face of the will that such was his intention. Thus, the General Rule: they do not go to the testamentary beneficiary concered. Exception: express provision of the will to the contrary effect. Suppose, in the will of X he said “I give to my friend F, all of my cars”. At that time, he had 5 cars. Upon death, F is entitled to 5 cars. Suppose that after making the will, X acquired 4,995 additional cars, how many cars will F be entitled to? Still 5 cars, applying the general rule. If X provided to give all his cars, as well as any other cars which he may hereafter acquire, then it clearly appears on the face that his intention is to give even the afteracquired cars.

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WILLS in GENERAL What is a Will? Article 783 gives a codal definition – it is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. From the provisions, we can deduce certain fundamental characteristics of a will: It is a strictly personal act – we have to do it personally and cannot delegate its making to another, even with an expressed power of attorney. It cannot be accomplished through the instrumentality of an agent or attorney. The testamentary disposition should come from the testator himself. As a matter of fact, the testator is prohibited from making testamentary dispositions whose validity or compliance will depend upon the will of another person. For example, in article 787 – the testator cannot make a disposition in such a way that another person will have the power to determine whether it shall be operative or not. You cannot say in the will “I hereby give my house and lot and farm in Bulacan to my brother, provided my wife will agree”. Note the provisions of 786 – the testator is permitted by the law to give in general specific property or sums of money to a class or a cause, and also to delegate the actual distribution to a third person. You can say “I leave the amount of P100M for the street children of Metro Manila. I leave the distribution of that amount to my executor.” Then the executor by himself can determine who the specific street children to be benefited. But I cannot say “I authorize my executor to get from my estate as much as he may deem Transcribed by: Bjone Favorito

necessary, and to distribute the same to the street children of Manila.” Hindi pwede yan, it must be specific property or sums of money. However, the moment that the testator refers by name the testamentary beneficiaries, forget about 786. You apply 785 – the duration or efficacy of the designation of heirs, legatees and devisees or the determination of the portions which they are referred to take, when referred to by name, cannot be delegated to a third person. So remember, in 786 – the beneficiaries are specified cause or class. In 785 – the beneficiaries are specific names of institutions or individuals. Thus, You cannot say “I hereby bequeath P100 M to San Beda, UP and Ateneo, and I leave it to my executor to determine how much will be given to each of them.” Because the beneficiaries were referred by name, 785 prohibits leaving to the discretion of a third person the duration or efficacy of the designation or the determination of the portions which the named beneficiaries will get.

There are two general types of ambiguity: Patent – ambiguity which is obvious or apparent from a mere reading of the testamentary provision. Ex.: (1) “I give to two of my five brothers my house and lot in Quezon City” Malabo agad, sino dun? He did not even bother to name who these two brothers are. Whatever happens, the principal rule in testamentary succession is always the ascertainment of the intention of the testator. What is the solution? Intrinsic evidence, as well as Extrinsic evidence, but excluding the oral declarations of the testator. Intrinsic – those found in the will itself, like the other Page 6

provisions of the will. Extrinsic – evidences other than the will itself, but excluding the oral declarations of the testator. Hindi pwedeng during the contest as to who the “two brothers” are, all five bothers will be presenting 100 witnesses each, because it will be hearsay and fundamentally dangerous and risky. At that point, the testator is dead and in no position to object the witnesses. What about letters? Pwede yan. Latent – those that are not obvious Ex.: “I give my first cousin Jose Santos my house and lot in Quezon city”. The provision is very clear. But assume, however, that after the death lima pala ang first cousin n’ya na pare-pareho pangalan Jose Santos? In some families there are certain favorite names. What now? Same solution – intrinsic evidence – you read the other provisions which may clarify the ambiguity. Or you may resort to extrinsic evidence, but then again, excluding oral declarations of the testator.

subsequent changes in the law, they will generally not affect the validity of the will. Exception – if the subsequent law provides for retroactivity. Exception to the exception – even if retroactivity is provided for, if in the mean time, prior to the effectivity of the new law, the testator has died. Why? Because in that case, we apply 777, upon the death of the testator, successional rights would have been transmitted and are already in the nature of vested rights, which cannot be impaired by a subsequent change in the law even where retroactivity is provided for.

You give the words of the will their ordinary grammatical sense. Technical words, you give them their technical sense UNLESS it is clear that the will was prepared by the testator all by his lonesome self and that he used certain technical words without realizing the technical meaning of those words.

Recall the general rule that testacy is preferred over intestacy. If there are two ways of interpreting a will, you avoid the one which will result in intestacy. You always try to have testacy. Note in 785 – the validity of a will as to its form depends upon the law in force at the time of execution. If there are Transcribed by: Bjone Favorito

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TESTAMENTARY CAPACITY and INTENT

Basic Requirements: At least 18 years of age – hindi pwedeng kulang kahit na ilang araw lang. The testator must have already celebrated his 18th birthday. If the testator made his will two days before his 18th birthday, that is not a valid will. Must be of Sound Mind – remember the codal definition of “soundness of mind” under 799, specially paragraph (2) – to be of sound mind, all that the law requires is that the testator, at the time he makes his will, should know: (1) the Nature of the estate to be disposed of; (2) the Proper objects of his bounty; and (3) the Character of the testamentary act. As long as the testator knows all of these three, at least in a general way, then he has testamentary capacity. The law is even more categorical in paragraph 1, it is not required that the mind be wholly uninjured or unimpaired by disease or any other cause. In other words, kahit na may konting topak, pwede parin, as long as he satisfies the minimum requirements in 799. Nature of the estate – the testator must know, in at least a general way, what his properties are. He may remember that he has a house and lot in Quezon City, even if he cannot remember the exact address, it will be sufficient. He remembers that he has a substantial deposit in a certain bank. He may not remember the exact amount, as long as he knows that it is quite substantial, that should be considered sufficient. Transcribed by: Bjone Favorito

The presumption is always on the soundness of mind. We can always invoke that presumption in our favor. But that is a disputable presumption and may sometimes be reversed. When will this be? If the testator, one month or less prior to the making of the will, was publicly known to be insane. Then, the presumption is that he was not of sound mind, and he who alleges otherwise would have the burden of proof. In the same line, if the testator made his will after he has already been placed under guardianship precisely because of unsoundness of mind, then the presumption is that he did not have soundness of mind at the time of execution of his will. Proper Objects of his Bounty – means that at the time of the execution of the will, the testator must still know who are persons closest to him, his close relatives, the individuals who, by nature of their close relationship to the testator, would have the natural right to expect something from him. If at the time of execution, the testator could not even recognize his own wife and children, then he would no longer be capacitated to make a valid will. Character of Testamentary Act – he must know that he is making a last will and testament. That it is this document which will be used as basis for distributing his estate when he dies. He should know that it should be within his power as testator to revoke his will anytime before his death. Supposing that a person believes in the existence of unseen beings, for example dwarves or elves and even claims that he talks to these creatures. Is he necessarily incapacitated to make a will? I do not think so. Mere belief in the existence of these unseen spiritual

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beings will not necessarily render a person incapacitated to make a will. There is minimum, but no maximum age in making a will, just like in marriage. Even if the testator is already 110 years old, amoy lupa na, he can still make a valid will. He may be suffering from a host of diseases, lahat ng klaseng sakit nasakanya – pneumonia, diabetes, heart condition, hypertension – that does not incapacitate him to make a valid will, as long as he is still able to meet the basic requirements under 799. How about drug addicts? YES, as long as at the time of execution of the will, they still knew the nature of the estate to be disposed of, proper objects of their bounty and character of the testamentary act. The same thing may be said with respect to alcoholics. The capacity to make a will must be possessed at the time of execution. As long as the testator was capacitated to make a valid will at the time of execution, his will is valid, even if he subsequently becomes incapacitated. If X made a will at the age of 22, and at that time he was of sound mind, but 2 years thereafter he became insane and had died in the state of insanity, his will should be allowed. What matters is when he made the will, he was fully capacitated to make one. Conversely, if at the time of execution, the testator did not have capacity, even if he subsequently acquires capacity, his will remains invalid. If X made his will at the age of 17, and he died 10 years later at the age of 27, his will is invalid.

Transcribed by: Bjone Favorito

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FORM of WILLS

First rule is in 804. We do not have oral wills. All wills must be in writing. The law does not specify the material to be used. In the case of a holographic will, any material may be used. You may write it on a piece of paper, on the ceiling, on a wall, anything, even sa balat ng pakwan. I remember a case in US, where there was a farmer tilling his farm with a tractor. Perhaps the slope was just too much that the tractor overturned and the farmer was pinned down and he realized he was dying. And so, he got a sharp object and scratched on a metal part of the tractor “everything to my wife”, placed a date and signed. That is a valid holographic will. With the technological advances we have, practically every household has a video camera. Even then, it is not sufficient for a person to simply dictate his will in a recorded video.

If there is a dispute later on, the people opposing the probate of the will says “this will is in English, the testator does not know English.” That would necessitate the presentation of evidence, which can come from the outside, not necessarily from the will itself. The petitioner may present witnesses who will testify that the testator actually knew and spoke English – that is admissible. Though not necessary for the validity of the will, it would not harm to include a statement which reads “I hereby publish this last will and testament in English, a language known to me.”

In 804, the law is categorical when it said that the will must be executed in a language or dialect known to the testator. Therefore, if the will was written in English but the testator knew only Filipino, but the lawyer who drafted the will fully explained, translated and interpreted everything to the testator completely – that remains an invalid will. The law is not satisfied with mere translations or interpretations. It must be in a language or dialect known to the testator. Reason? No matter how good the interpreter or translator may be, certain nuances of language are always lost in the process of translation or interpretation. It is not necessary, however, that the will itself should contain a statement to the effect that it is in a language or dialect known to the testator. Transcribed by: Bjone Favorito

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Notarial Will Found in 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 first important thing we should remember in paragraph 1 is that: it tells us, in very clear language, that it 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. The requirement, therefore, for the subscription or signing at the end of the will, is an essential requirement for validity. If the will is 5 pages, and the testator affixed his signature in each and every page thereof in the left margin, but did not sign at the end of the will, that is NOT a valid will, because it fails to comply with an essential requirement. Where is the end of the will? When the law mentions the “end of the will”, it refers not to the physical end but to the logical end. Meaning, after the last testamentary disposition. So if there are 10 testamentary dispositions, the end of the will is after disposition number 10. Sa baba nun is the end of the will, that is where the testator should affix his signature. The law allows the affixing of the testators name by a third person, but remember the two requirements: (1) it must be done in the presence of the testator; (2) and by his express direction Both requisites must concur, otherwise the will is void. Transcribed by: Bjone Favorito

If the testator is Juan Santos, and the person requested by him to write his name is Pedro Santiago, how should the latter comply with 805? He should not forget to write the testator’s name – yun ang pinaka importante. So, pwede nyang isulat “Juan Santos - by Pedro Santiago” If he wrote “by Pedro Santiago” only, without “Juan Santos” that is NOT VALID. Maliwanag ang batas – tastator’s name. If he wrote only “Juan Santos” and did not bother to write his own name, that is VALID, as long as in the attestation clause, the fact that Pedro Santiago wrote the testator’s name in his presence and by his express direction is stated. Otherwise, without this statement of fact in the attestation clause, the will is VOID. The testator is the one required to sign his will at the end and on the left margin of all of the pages of the will. In signing his will, the testator may use his usual signature. He can also use his initials – pag maraming pages yung dokumento, usually you don’t use your full signature in authenticating the pages of the document, you simply use shortcuts like the initials. If the testator happens to be a writer or artist, he can use his penname. Or if he is a movie star, he can use his screen name rather than his legal name – that is permitted. Can the testator use a nickname? For example the testator only has 9 fingers because sinalag nya yung bolo nung kaaway nya, and since then he was known as “putol”. Can he use that nickname in the will? Yes. In the law on wills, “signature” is taken from the word Signum which means “sign” or “mark”. Can the testator sign the will with his thumb mark? Pwedeng pwede yan. Kung gusto nyang medyo maiba, yung mark of Page 11

his bigtoe ang ginamit nya – pwede rin yan. Extreme example: Supposing he is very romantic fellow, and he uses his lips with the intent to sign the will with the imprint of his lips. Would that be a valid will? Yes, as long as it can be established that he intended to use that as his sign or mark. A Notorial Will should have three or more credible witnesses. The law uses the adjective “credible” – is it necessary, during the probate of the will, that there must first be preliminary proof that the witnesses are credible individuals in the sense that they enjoy a high degree of respectability, reputation of probity and honesty in the community? No. the SC held: when the law says “credible witnesses”, it simply means qualified or competent. So there is no need for a preliminary proof as to the reputation of the witnesses. Can there be more than three witnesses? Yes, even more than 10, but should not be less than three. If it only has two witnesses, that is not a valid will. Paragraph 2 states that: the testator or the person requested by him to write his name 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 testator and the witnesses are required to sign each and every page of the will, except the last, on the left margin. Supposing they wanted to be different, they signed on the right margin. Pwede ba ‘yon? Oo, pwede yon. They signed on the bottom margin, or at the top margin – pwede parin ‘yon, as long as

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each page has the marginal signature of the testator and the three witnesses. Supposing that it is a 5-page will which is perfectly executed, except that on page 3, you don’t find the signature of the testator on any of the margins. Should the will be allowed? In this connection, you have the case of Icasiano vs Icasiano. In the case, the oppositor practically threw everything against the petitioner. On page 3 of the original will, there was a missing signature – that of one of the witnesses. The oppositor claims forgery on the signature of the testator, undue influence, fraud and failure to comply with the formalities because the one witness had no signature on page 3. The petitioner presented the duplicate original, and such was perfectly signed by the testator and the witnesses in all the places required. They contended that if the original cannot be probated, then let’s just probate the duplicate original. The SC said: we are not convinced that the will is a forgery. The mere fact that the oppositors alleged both fraud and undue influence in one and the same opposition, simply shows how weak their position is, because these two are mutually exclusive – they cannot exist together. If they are opposing the allowance of the will because of the absence of signature of one of the witnesses on page 3, there is no reason why they should also oppose the probate and allowance of the duplicate original, which, after all, contains all the required signatures at all of the appropriate places. It would seem, under the circumstances, that the failure of one of the witnesses to sign on page 3 was simply due to inadvertence caused by the simultaneous lifting of two pages. Now, if you’re asked a problem where page 3 of a 5-paged will does not have the marginal signature of either one of the witnesses or the testator, should the will be allowed? I submit that Page 12

the ruling in Icasiano should be limited only to the precise circumstances which are obtained in that case, and the more important thing in the case is that there was a duplicate original. There can be no doubt that there was a validly executed will because of such duplicate original. If, on the other hand, you only have one copy of the will, and that single original copy lacks one of the required marginal signature, I submit, following earlier rulings of the SC, the will should be disallowed. In other words, the ruling in Icasiano has not done away with the previous rulings of the SC in many cases where the will was invalidated because of the absence of the required marginal signatures. It should not be interpreted to mean that we can now do away with the requirement of marginal signatures on each and every page, as expressly mandated in 805.

All of the pages should be numbered correlatively in letters placed on the upper part of each page. The precise location of the numbering is NOT essential for validity. If they placed the numbering on the lower part, left margin or right margin, ok yun basta may numbering. What is meant by “numbering correlatively in letters”? You spell out, instead of simply writing the Arabic numeral. If you want to follow the provision literally, you write the word “one”, next page “two” – yan ang correlative numbering in letters. If the testator wrote the Arabic numeral “1” and “2”, pwede rin yan. That will not affect the validity of the will, you can even use roman numerals, even letters of the alphabet, as long as there is correlative numbering. Supposing that it is a 5-page will, pages 2, 3, 4 and 5 are numbered. Page 1 is not numbered, should the will be allowed? Yes. Transcribed by: Bjone Favorito

Why? Because even if page 1 is not numbered, there can be no doubt which is page 1 – it contains the title of the document

The witnesses are required to sign, among other things, on the left margin of each and every page of the will. Just like the testator, the witnesses can also sign with their nicknames, thumb marks, etc.. as long as in reality, they know how to read and write because one of the requirements for witnesses is that they should know how to read and write. Would it make any difference if the witnesses signed the will ahead of the testator? Example, the testator asked the witnesses to sign ahead, and they all did, including in the attestation clause. Only after they had signed, did the testator sign the will. Should that be a valid will? I think the better view is that: as long as there is no interruption, as long as everyone signed during one single continuous occasion, the will should be VALID. Actually, the thrust of those who believe otherwise is that: if the witnesses signed ahead of the testator, they are actually attesting to a falsehood because they will be signing in the attestation clause that “the foregoing will was, among other things, signed in our presence by the testator.” Eh hindi pa naman nagaganap yun because the testator has not yet signed. I repeat, the better view, and the SC said so in Caneda vs CA, as long as everyone signed during one single uninterrupted continuous occasion, the will should be considered valid.

If, however, the testator invited the witnesses to his residence on January 1, and asked them to sign his will without his signature yet thereon. He then said “let’s meet again on January 6”. And it was on January 6 only when he signed the will. I submit, in Page 13

that case, the will should not be allowed because it is clear that when the witnesses attested the execution of the will, they were attesting to a falsehood because the testator had clearly not yet signed as of January 1. If a third person has been asked by the testator to write his name on the will under his express direction and in his presence, the mere silence of the testator or his failure to object to the signing by a third person is NOT the express direction contemplated by law.

If the testator is very sick, and his lawyer, who had earlier drafted the will in accordance with his instructions, told the testator, in the presence of the three witnesses “Mr. Testator, I don’t think you are in a position to sign this will yourself. Unless you have an objection, I will sign this will for you”. Later on, the testator just stared at the lawyer. Sabi ng lawyer “O, wala syang objection, so I will sign the will for him”. That is NOT a valid will, there is no express direction. Mere failure to object and mere silence is not express direction. The express direction, however, need not be done verbally. If the lawyers asks the testator “Mr. Testator, do you want me to sign this will for you?” and the testator nodded – pwede na ‘yon. That is already an express direction. It must be done in the presence of the testator. If the testator orders his lawyer “Atty, ipirma mo na pangalan ko dyan.” And the three witnesses were there, but it was too crowded in that small hospital room so the lawyer and the witnesses went to another room to sign. That is not a valid will because the signing by the third person must be done in the presence of the testator.

Transcribed by: Bjone Favorito

Supposing the testator was really very sick, he dictated to his lawyer the provisions of his will and the latter drafted. He then said “Atty, I want you to sign the will for me.” The lawyer encoded the will in his office and rushed back to the hospital with the finished print, but upon return, the testator was already unconscious and sunk into a comma. Inside the room of the testator, and with the three witnesses, the lawyer affixed the testator’s name as was earlier instructed to him. Is that a valid will? NO, because while it was done in close proximity to the testator, the requirement of presence was no longer satisfied. Why? The testator was no longer conscious of what was going on. “Presence” requires not just physical proximity, the absence of any obstruction, but also requires a consciousness or awareness of what is going on.

The presence of the notary public is not required at the time of the actual signing of the will by the testator and the witnesses. When it comes to the acknowledgement of the will, syempre nandun na yung notary public. 805 provides, in paragraph 3, the matters which are required to be stated in the attestation clause. So what are these? (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 in the presence of the instrumental witnesses; and; (3) the fact that the instrumental witnesses signed the will and all the pages thereof in the presence of the testator and of one another.

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Supposing that an essential fact required is not stated in the attestation clause, as it does not state the total number of pages of the will – is it necessarily invalid? Or is it still possible to probate that will? If what is missing in the attestation clause can be found in another part of the will, it may still be allowed. As long as what is missing can be found in another part of the will. For example: total number of pages is not stated in the attestation clause, but in the notarial acknowledgement, it is stated – that is substantial compliance.

Supposing that the total number of pages is not stated in the attestation, but in the last paragraph of the will, just above the testator’s signature, it says “..my last will and testament consisting of 5 pages...”, can the will be allowed? Yes, because while an element is missing in the attestation clause, it is nonetheless, found in another part of the will itself. In other words, there is no need to introduce extrinsic evidence. Supposing that the attestation clause does not categorically state that the testator signed each and every page of the will, but provides only that “the foregoing will was signed by the testator”. Can the will be allowed? Yes, as long as each and every page of the will, in fact, contains the testator’s signature. The failure to state expressly that the testator signed every page of the will may be deemed cured if, upon examination of the will, each and every page thereof bares the signature of the testator. But if what is lacking in the attestation clause is the fact that the testator signed in the presence of the witnesses, that defect will NOT be cured even if you find the testator’s signature appearing on each and every page of the will side by side with that of the witnesses. Because the mere fact that the signature of the testator Transcribed by: Bjone Favorito

appears on each page beside the signature of the witnesses will NOT prove that the testator affixed his signature in the presence of the witnesses. If, for example, the testator invites the three witnesses to his residence on January 1, tells them “I will make my will, and I want you to be my witnesses. Here is my will, I already signed it, here is my signature on each page and at the end.” Is that a valid will? NO, the mere admission or acknowledgement by the testator that the signatures already appearing on the will are his, is not enough. The law requires that the signature of the testator be affixed in the presence of the witnesses.

When is there Presence? When there is close physical proximity and the parties are situated in such a way that there is no physical obstruction which would prevent one from seeing the other by simply turning his gaze to the proper direction. I am signing the will in this table, you are one of the witnesses and you happen to be standing by the door inside the room, and there was a commotion going on in the hall way, so you were looking out. Is there signing in your presence? Yes. The law does not require the testator and witnesses to actually see each other sign to satisfy presence. All that is required is that they could have seen each other sign, there being NO physical obstruction, by simply turning their gaze towards the proper direction. If the testator signed the will in the same room with the three witnesses, but while the testator was signing, one of the witnesses was busy watching a movie in the television or was busy texting so

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the testator signed without him looking. Is there signing in the presence of that witness? YES.

If the testator is blind, how do we satisfy the requirement of presence? Through the use of other senses. What other senses can you possibly use? Sense of touch – Hindi naman kelangan akapin ng testator yung witness habang pumipirma. He may hold the will while it is being signed by the witness, and sense, through his fingertips, the action being done by the witness. Or the witness may give him a running account of what is going on.

805 says – if the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Supposing that the attestation clause is in a language not known to the testator, should the will be allowed? YES. While it is not possible to have a notarial will without an attestation clause, nonetheless, the fact remains that the attestation is the act of the witnesses, not of the testator. Assume a 5-page will. Page 5 contains only the attestation clause. The testator signed at the end of the will on page 4, and also, together with the witnesses, on the left margin of pages 1-4. On page 5, however, you only find the signatures of the witnesses. Should the will be allowed? Yes. Since page 5 contains only the attestation clause, the testator has nothing to do with that page. Assume again a 5-page will. The testator and the witnesses signed on the left margin of pages 1-5. The witnesses, however, did not sign below the attestation clause, but only on the left margin of Transcribed by: Bjone Favorito

the page containing the clause. Should the will be allowed? NO. It is clear in Azuela case. As pointed out by the SC: without the witnesses’ signature at the end of the attestation clause, the will is void because the requirement for marginal signatures is a separate distinct requirement from the requirement that there should be an attestation clause. The signatures of the witnesses simply comply with the requirement for marginal-signature. That is not compliance with the requirement that there should be an attestation clause. An attestation clause not signed by the witnesses is not valid – the will should also be considered invalid.

The will must be acknowledged before a notary public. You don’t have a valid notarial will without this. The notary public need not be present at the time of actual signing of the will by the testator and the witnesses. As a matter of fact, it is perfectly valid if the date of the execution of the will stated therein is different from the date of acknowledgement. The will can be made today, and acknowledged a week later – that does not affect the validity of the will. The notary public, before whom the will is acknowledged, must be properly authorized to act. If the will is acknowledged before a notary public in Quezon city, but his notarial commission is for the area of Caloocan, that is not a valid will. Wala kang karapatan mag notaryo sa labas ng teritoryo mo, otherwise the will is void. This is because a notary public is bereft of power to perform any notarial act outside the area of his notarial commission. Nangyari na ito in the case of Guerrero, the notarial commission was in Caloocan and it was acknowledged before him in Quezon city – that is clearly VOID.

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The notary public is not required to retain a copy of the will or file one with the office of the Clerk of Court. Ordinarily, when you acknowledge a document before a notary public, the latter will get at least two copies. One, for his own file, the other to be submitted to the Clerk of Court which issued its notarial commission. The purpose is to preserve the secrecy of the will. Not just the testator, but the witnesses as well, must acknowledge before the notary public. However, they are not required to do so in each others’ presence, unlike in execution where everyone must sign in the presence of each other. The testator can acknowledge on Jan.1, one witness on Jan.2, another on Jan.3 – still valid because presence is not required. If one of the three witnesses is also a notary public who notarized the will, that is not a valid will. Because the notary public cannot dichotomize himself and assume two different personalities, one as a witness, and another as the notary public. If there are 4 witnesses, and the will is acknowledged before one of them, then it can be valid because there are three other witnesses to the execution of the will.

If the testator is deaf or a deaf-mute, 807 applies – he must personally read the will, if able to do so; otherwise, he shall designate two persons to read the will, and to communicate to him in some practicable manner the contents thereof. It is the testator who will designate the two people who will read the will, and thereafter, communicate to him the contents thereof. The law somehow assumes that some mode of communication is possible between the illiterate testator and the two Transcribed by: Bjone Favorito

persons. And while the law does not categorically so state, it is understood that the two individuals will communicate the contents one after the other. Hindi naman pwedeng sabay yung dalawang tao nag kukumpas sa testator – isa isa lang.

If the testator is blind, the will must be read to him twice – the law even specifies who should do the reading – once, by one of the witnesses, an again, by the notary public before whom the will is acknowledged. If the will is read only once to the testator, it is not a valid will. It is not for the testator to waive a second reading – that is a mandatory requirement which must be complied with, otherwise the will is invalid. The purpose is to prevent the commission of fraud. If the testator is illiterate, walang specific na provision, but I submit: the same rule should be applied as with blind testators. Kase ang illiterate testator, para din bulag yan. Kahit na ipag wagwagan mo sa harap ng mata nyan yung will, hindi nya mababasa. Those are just meaningless signs and symbols as far as he is concerned. So, the will must be read to him twice. Remember the case of Alvarado where the testator was blind. The will was read only once. Not only that, it was not read by the notary public nor by one of the witnesses. Ang nag basa was the lawyer who drafted it, and yet the will was allowed. Why? Because while the lawyer was reading the will, they were all sitting around the table – the notary public and the three witnesses – and they each had a copy of the will, so they were following the lawyer’s reading word for word. After reading, the testator said “that is my will”, so it was signed accordingly and acknowledged before the notary public. Page 17

The Court said there was substantial compliance with the requirement of the law, walang duda. 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 the requirements of 805 – that is the Doctrine of Liberal Interpretation.

Transcribed by: Bjone Favorito

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Holographic Will

A Holographic Will must be entirely written, dated and signed by the hand of the testator. If the testator does not have hands, and he uses his mouth to write, can he make a holographic will? YES, “hand of the testator” should not be taken literally. If he uses his foot to write, it is still a valid holographic will. Remember that you cannot have a valid holographic will unless it is dated. It is not valid without a date. Ideally, it should have a complete date, with month, day and year. But, as already been held by the SC, even if only the month and the year is indicated, that it sufficient, in the absence of any indication of bad faith, forgery or fraud. In one case, the date was written only as “Feb/61” – that was considered as valid date. The problem is when, supposing the testator made two wills in the same month, parehong “Feb” ang date. How do you determine which is the later will? No problem if the provisions are consistent with each other. But supposing they are inconsistent? The date may be placed anywhere in the will. In the case of Labrador, there was not even a separate date. It was simply mentioned in passing in one of testamentary provisions. The SC said it was sufficient, the fact remains that there was a date although it was simply mentioned in passing.

You also remember the requirements when it comes to the probate of a holographic will as to the number of witnesses. You’ll find this in 811 – if there is no opposition, at least one witness who is familiar with the handwriting and signature of the testator must be presented to identify the will. If there is an opposition, at least three such witnesses shall be presented. In an earlier case, the SC has considered the requirement of three witnesses as merely directory. In the case of Azuala, three witness rule in case of opposition is not mandatory. Why? Because the availability of three witnesses who are all familiar with the handwriting and signature of the testator is something which is not totally within the control of the petitioner. For all you know, even if the petitioner looks far and wide for such witnesses, he may not be able to locate three who can truthfully assert under oath that they are familiar with the handwriting and signature of the testator. That is the reason why the law allows for the presentation of expert witnesses. In the later case of Codoy and Ramunal, however, the SC, basing its decision on the use of the word “shall”, held that the requirement was mandatory. You cannot probate a holographic will unless you can present either an original copy, or at least a photocopy. Why? Because the only guarantee of authenticity of a holographic will is the fact that it is supposed to be entirely written, dated and signed by the hand of the testator. The court, therefore, must always be given the opportunity to examine the will and determine whether it is in fact in the handwriting and signature of the testator.

Can a blind man make a holographic will? YES, as long as he knows how to write. Transcribed by: Bjone Favorito

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If the one and only copy of a holographic will has already been lost, so that there is no existing copy, notwithstanding that it only had one provision and a number of people had seen it, forget about the probate of that will. You need at least a photocopy, otherwise forget about probate. The testator may sign his holographic will, just like a notarial will, with his full signature, initials, nickname, stage name, etc.

When it comes to any Alterations or Insertions, however, the law is categorical when it requires – for any insertion or cancellation or alteration in a holographic will, it must be authenticated with the full signature of the testator. Therefore, insertions, alterations or cancellations cannot be authenticated by using any other signature than the testator’s full signature. “Full signature” means the usual customary signature of the testator. It does not necessarily have to include the complete name and surname – only the usual and customary, as opposed to the initial or shortened version.

Remember the provisions of 812 and 813 – if the testator makes additional dispositions in a holographic will, the additional dispositions must be signed and dated; otherwise they are not valid. Where should the testator sign his holographic will? The law does not categorically state, unlike with notarial will, where the signature must be. But 812 indicates where the testator should sign. Transcribed by: Bjone Favorito

Why? Because it says dispositions in a holographic will appearing or written below the signature of the testator must be dated and signed in order to be valid as testamentary dispositions. In other words, the law assumes that the last thing you will find in a holographic will is the testator’s signature. That is the reason why the law makes the testator’s signature the point of reference in so far as additional dispositions are concerned. So, just like a notarial will, although the law does not specifically states, the testator should also sign at the end of the holographic will or after the last testamentary disposition. If the testator made the following will: May 7, 1985 “I give everything to Sheryll Gonzales” Signed: Bjone Favorito That would be a valid holographic will. If he makes additional dispositions “I give P10,000 to Aldrian David” “I give my house to Cromwell Recto” These two additional dispositions are NOT valid. Why? Because the law requires that they should be dated and signed. The fact that they are not valid, however, does not affect the validity of the will – it remains valid. Supposing that the first and second disposition is signed but only the second is dated. Both dispositions are valid. Since the preceding disposition is signed but not dated, the date appearing on the last disposition will operate to validate the former. Reason? The law can assume that these two dispositions were actually made at the same time.

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If the preceding disposition, however, is dated but not signed, and the last disposition has both a date and a signature, only the last disposition is valid. The former will not be validated. The provision provides – if the preceding disposition is signed but not dated, and the last disposition has both a date and a signature, all of the preceding dispositions signed but not dated, will be validated. The reverse is not true – if the preceding dispositions are dated but not signed, the last disposition, even if both dated and signed, will not validate the former. Why? Because in this case, the law cannot assume that they were made at the same time – may kanya kanyang petsa.

As previously mentioned, any insertions or cancellations in a holographic will must be authenticated with a full signature of the testator. In our previous example, let us assume that Bjone crossed out the name of Sheryll and inserted “Anne”, ang lumalabas, he wants his heir to be Anne Gonzales instead of Sheryll. However, he does not authenticate it with his full signature. Who will be considered as the duly instituted heir? Answer is NEITHER of them. Why? In the case of the insertion of “Anne”, that is an obvious invalid insertion because of the absence of authentication. So can’t we consider the cancellation of Sheryll’s name an invalid cancellation and treat it as if she is still the instituted heir? The point is that the principle rule in testamentary succession is always the ascertainment of the intention of the testator. If we give the entire estate to Sheryll by invalidating the cancellation for lack of authentication, we will be ignoring the obvious “change of heart” on the part of the testator, and that cannot be done. Transcribed by: Bjone Favorito

If a third person makes an insertion in a holographic will, what will be the consequence? Tolentino says there are four possible scenarios: (1) Insertion is without the knowledge and consent of the testator – you simply ignore the insertion, as if it was not written and the will remains valid (2) Insertion is with the consent of the testator – the will remains valid but the insertion is void. (3) Insertion is with consent and was authenticated by the testator with his signature – the entire will is void. Reason – by authenticating the insertion made by the third person, the insertion becomes a part of the will, thus, will no longer satisfy the fundamental requirement that it should be entirely written by the hand of the testator (4) Insertion is simultaneous with the execution of the will – the entire will is void; same reason as (3). If a holographic will has some provisions which contains alterations that are not duly authenticated, you only invalidate the affected provisions or the particular insertions concerned. The other provisions which are not altered will remain valid.

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With respect to the applicable law – if a Filipino wants to make a will here in the country, he can only follow one law – the Civil Code of the Philippines.

What is a Joint Will? It is a single will executed by two or more testators. The use of a single sheet of paper does not necessarily make it a joint will.

If a Filipino is abroad and he wants to make a will, what formalities can he observe? He can observe the law of the place of execution – Lex Loci Celebracionis – applying 17 and 815 of the NCC: the forms and solemnities of contracts, wills, and other public documents shall be governed by the law of the place where they are executed.

If H wrote his will on a paper, and on the back page, his wife W wrote her will, that is not a joint will. Those are two separate distinct wills. But if they wrote only one will and they both signed it, it is prohibited and void for Filipinos, even if you execute it at a place where joint wills are allowed.

If the Filipino is abroad, can he make his will in accordance with the formalities prescribed by the Civil Code? Yes. The Code does not categorically and expressly authorize Filipino citizens abroad to make their wills abroad in accordance with the formalities prescribed by Philippine laws, but it allows foreigners who are abroad to make their wills in accordance with the formalities prescribed by Philippine laws. If foreigners are allowed to make their wills abroad as such, there is no reason why Filipino citizens abroad should not be allowed to do the same. If an alien is here in the Philippines and he wants to make a will, what formalities can he follow? Those prescribed by Philippine laws or those of his own country. An alien abroad, however, has four choices: (1) laws of his nationality; (2) those of his domicile; (3) laws of the place of execution; or (4) those prescribed by Philippine laws. However, when it comes to Filipino citizens, regardless of where they may be, they can never make a joint will. Basta pinoy ka, kahit sang lupalop ka pa ng mundo mag punta.

Transcribed by: Bjone Favorito

Assume that spouses H and W executed a joint will while in Brazil where joint wills are valid for spouses. Valid? Nope, void. Supposing, however, that W is a Brazilian model and H is a Filipino. While in Brazil, they made a joint will. Is it still void? Valid in so far as W is concerned, but void as to H. If both of them are Brazilians, we can recognize the joint will. If both of them are Brazilians but they made the joint will here in the Philippines, can we recognize it? Two views: (1) Void for being contrary to public policy; (2) Valid – NCC allows foreigners in the Philippines to make a will in accordance with their national laws. What about the intrinsic validity of wills? It is always the national laws of the decedent which must be followed. Remember the four aspects of succession which are ALWAYS governed by the national law of the decedent: The first three in Art.16, the fourth in Art.1039: (1) order of succession; (2) amount of successional rights; (3) intrinsic validity of testamentary provisions; and (4) capacity to succeed. Regardless of what the testator may say in his will – if, for example, a Korean testator wants his estate to be distributed under Philippine laws, it will still be Korean Law which will govern.

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WITNESSES to WILLS

an heir. There would, just the same, be the temptation to testify falsely because he would have an economic interest in the allowance of the will.

What are the Qualifications? (1) Sound Mind (2) Not less than 18 years of age (3) Able to read and write (4) Not blind, deaf or dumb (5) Domiciled in the Philippines (6) Not previously convicted of falsification, perjury or false testimony

The enumeration of the persons in 823 is exclusive. Sino lang yan? – the witness, his spouse, parent or child. If, instead, his grandfather was the one given a legacy or devise – that should be considered valid.

823 – if there is a legacy or devise in a will given to one of the witnesses to that will, or to his parent, spouse or child, that legacy or devise is considered void, insofar as that witness, his spouse, parent, child or anyone claiming under them, is concerned; unless there are three other competent witnesses to the execution of the will. If A, B and C are the witnesses to the execution of the will of X, and in that will, X gave A a legacy of P50M – the will is valid. A remains a qualified witness pero sorry nalang sya, he will not be able to get that legacy even assuming that the estate has sufficient assets. Under 823, that legacy is considered void. The purpose is to remove any temptation on the part witnesses, who may have been given something under the will, to testify falsely. Supposing that instead of being given a legacy or devise, one of the three instrumental witnesses is instituted as an heir. In the previous example X says “I give A 1/8 of my estate.” Will A be able to get his share? He will not. Although the law expressly mentions only legacy or devise, there is no reason why 823 should not apply to Transcribed by: Bjone Favorito

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CODICIL and INCORPORATIONS by REFERENCE

Ano yang Codicil na yan? It is a supplement or addition to a will, whereby the provisions in an earlier will are added to or modified, altered or explained. You only make a codicil if you already have a will. The execution of a codicil presupposes that there is a previously existing will, which you then supplement through such codicil. Formalities? Same as with wills. Therefore, you can either make a Notarial Codicil or a Holographic Codicil. If the will which you want to alter is notarial, it does not necessary follow that the codicil should also be notarial. A notarial will can be modified by a holographic codicil and vice versa. Ano naman itong Incorporation by Reference? This is merely for the convenience of the testator. Lalo na yung ‘sangkatutak ang mga pagmamayari. If they already have existing lists or inventories of properties with proper descriptions, they don’t have to actually reproduce this long list in their last will and testament. They can simply incorporate them by reference under the provisions of 827.

Transcribed by: Bjone Favorito

Remember the requisites for a valid incorporation by reference: (1) the paper or document to be incorporated must already be in existence at the time of the execution of the will; (2) the will must clearly describe the paper or document, stating, among other things, the number of pages thereof; (3) it must be established, by clear and satisfactory evidence, as the paper or document referred to in the will; (4) the paper or document must be signed by the testator and the witnesses on each and every page, except in the case of voluminous books of accounts and inventories. Because of the fourth requirement, the question has arisen: Can there be incorporation by reference in a holographic will? Some say NO, because there are no witnesses in a holographic will. But what if there are witnesses? It’s possible for a holographic will to have witnesses, and their presence does not invalidate it and merely considered as surplusage. Still, others maintain: while it is possible to have incorporation by reference in a holographic will, it is necessary that the paper and document should also be entirely in the handwriting of the testator. Upon incorporation, the paper or document will be taken as part of the will. If what is incorporated is not in the testator’s handwriting, it may affect even the validity of the holographic will itself. At any rate, that is one of the open questions and disputed points in succession.

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827 or incorporation by reference should never be used for the purpose of incorporating testamentary provisions for they must always be contained in the will itself. Those will not be valid testamentary provisions. Example, you typed testamentary provisions which you intent to include in your will. 10 years later, you decide to finally make your will. So you went to your lawyer and said “gagawa tayo ng will, ito na mga provisions na gusto ko, nagawa ko na dati pa.” Sabi ni lawyer “Sige, let’s just incorporate them by reference.” – that is not a valid incorporation. Those provisions are invalid because when it comes to testamentary provisions, they must be contained in the will itself.

Transcribed by: Bjone Favorito

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REVOCATION

The right to revoke a will is one of the basic prerogatives of a testator. A will is essentially revocable being ambulatory in character. As long as the testator lives, he can revoke it anytime and he does not even need any reason for it. All that is necessary is that he intends and actually revokes his will. There are various ways of revoking a will: (1) By implication of law; (2) By executing another will or codicil or other writing executed as in the case of wills; (3) By physical act of destruction coupled with intent to revoke – Animus Revocandi. And the law specifies four physical acts of destruction: (a) burning; (b) tearing; (c) cancelling; and (d) obliterating. The enumeration is exclusive. By implication of Law – you find these instances scattered in the provisions of the Civil Code and Family Code. Examples: Legal separation – the provisions in the will of the innocent spouse in favour of the guilty spouse are revoked by operation of law, but not vice-versa. In preterition – the institution of heirs is revoked or annulled where there is complete omission of one, some or all of the compulsory heirs in the direct line. In legacy of a credit or remission of a debt and the testator brings an action against the debtor, the legacy of credit or remission of the debt is revoked. In case of transformation, alienation or loss of the thing under 957 – that results in the legacy or devise becoming ineffective. Transcribed by: Bjone Favorito

In case there is unworthiness under 1032 – the unworthy heir cannot inherit. The provisions in his favor are rendered ineffective. When both spouses contract the marriage in bad faith under 44 of the Family Code. When the marriage is declared void ab inito under 50 of FC. By another will – if you execute another will expressly revoking a previous will or if there are inconsistencies between an earlier will and a subsequent will. By the physical acts of destruction – there must always be the corresponding intent to revoke. A physical act of destruction without a corresponding intention to revoke will not produce a valid revocation. If the testator, while looking for something to start the fire in his kitchen in order to cook, inadvertently burned his will – that is not a valid revocation, there is no intent to revoke. Conversely, not all of the intention, without the corresponding physical act of destruction, will produce a valid revocation. If the testator, fuming mad and angry with his heir, calls his neighbors and says “I am, as of this moment, revoking this will. My heir will not inherit under this will.” Dinuraan pa nya yung will, and then he suddenly collapse suffering a massive heart attack – there is no valid revocation. He may have the intention but it must always be coupled with the physical act of destruction of burning, tearing, cancelling or obliterating. If the testator, with all due solemnity, gathers all his friends and says “I am revoking this will. Patay na ‘ito. Ililibing natin Page 26

ngayon.” and he digs a hole and buried the will. Is there a valid revocation? NO, there is no physical act of destruction. Burying is not one of the acts mentioned. Although in one case, the SC considered the act of crumpling the will and throwing it as sufficient to produce a revocation. But civilists have agreed, the enumeration is really exclusive. To revoke a will by burning, you don’t have to completely burn the will. Even if only the edges are burnt in such a way that not a single word of the will was affected by the fire – that is considered already as sufficient to revoke. When it comes to tearing, the slightest tear is sufficient as long as it is coupled with the necessary intent to revoke. Even if the tear extended only up to the margins, and not a single word was affected by the tearing – that will produce a valid revocation. Instead of tearing, you can use a paper shredder – revocation din yan, or you can use a pair of scissors. How do you revoke a will by cancelling? By crossing out the lines. How does cancelation differ from obliteration? In the latter, the words can no longer be read – binubura. In cancellation, they are simply crossed out with whatever lines you may use – crisscrosses, spirals, etc. As a matter of fact, one of the simplest ways of revoking a will through cancellation is by crossing out the signature of the testator at the end of the will. In a very real sense, you strike at the heart of the will – that will operate to revoke the entire will. However, writing the word “cancelled” along the margin of the will is revocation not by cancellation, but through “other writing.”

Transcribed by: Bjone Favorito

In connection with revocation, it is entirely possible that the testator may have made several copies of his will, which is usually the case. If he wants to revoke his will, does he have to retrieve all copies? No, he can simply destroy the copy that he has – that will produce a valid revocation. Supposing that the testator changes his mind while revoking his will. He has instituted you as heir to the bulk of his estate. When you visited him to have a chat, you started discussing but at a certain point you disagreed to something – kung mas masarap kainin ang isda kung may kamatis o sibuyas. Before you knew it, you were both shouting at each other. Napikon ang testator, he got his will, waived it in front of you and said “you are not going to inherit a single centavo from me.” He tore the will once, then threw the pieces to the floor. At that point you realized what had happened, so you begged for forgiveness and said “Please do not revoke your will”. The testator had reconsidered and said “sige pulutin mo yung will and lets use scotch tape to paste them together”. Can that will still be allowed? NO, because when the testator changed his mind, the act was already subjectively complete. His act of throwing the will to the floor shows that, insofar as he is concerned, consumatum est – natapos na, he did not intend to go any further, thus, it is already a completed act. If he changes his mind at that point, it is too late. You cannot restore validity to a will, which has already been revoked by tearing, by simply taping the pieces together – Humpty Dumpty rule. Supposing, however, that the testator was still in the process of revoking his will, tearing the will three times and about to make a fourth one when you pleaded to him, and he stops. He forgives you and said “let’s tape the pieces together”. Can that will still be allowed? YES, because the act was not yet subjectively complete when the testator changed his mind. He intended to tear it the fourth Page 27

time when he was prevailed upon not to do so. Therefore, if the testator changes his mind at the time the act was not yet subjectively complete, there is no valid revocation.

Another rule we have to remember is the Doctrine of Dependent Relative Revocation. If the testator revokes a will with the present intention of making a new one immediately and as a substitute, and he is unable to make the new will or, able to do so, but the same fails to take effect for any reason or cause, it is presumed, in the absence of evidence to the contrary, that the testator would have preferred his old will rather than intestacy. In other words, when the testator revokes his will under this doctrine, he does so conditionally. Ano ang condition? That a new one will be effective. Kaya kung hindi sya nakagawa ng bagong will, or if the new will fails to take effect, then it is presumed that he would rather die with his old will than to die intestate. Best illustration is the case of Molo vs Molo, which is a very old case but up to now is still the best illustration of this doctrine. Here was a man who made his first will in 1918. In that will, he gave practically his entire estate to his wife. In 1939, he made another will where he expressly revoked his earlier will but still giving the bulk of his estate to his wife. After he died, the wife presented his 1939 will for probate. Unfortunately it was disallowed by the probate court for failing to comply with the formalities prescribed by law. She then returned with the 1918 will, but could not present the original copy. The best she could produce was a duplicate thereof. The oppositors claims that the reason why she could not present the original was because her husband already Transcribed by: Bjone Favorito

revoked it by destroying the original copy. The SC held: even assuming that the oppositor’s claim was true, under the doctrine of dependent relative revocation, it should be understood and presumed that the revocation of the 1918 will was conditioned upon the effectivity of the 1939 will. Since the later will failed to take effect, it is presumed that the husband would have preferred his 1918 will to intestacy. Another point – sometimes revocation may be presumed depending on the circumstances. For example: There is evidence to the effect that the will was in the possession of the testator. After the death of the testator, the will is found among his possessions in a tattered and torn condition. The presumption is that the testator revoked his will. Or if, after his death, the will could not be found, and there was evidence that he was the one in possession of it, it may be presumed that the testator revoked his will. You also remember 833 – a revocation based on a false or illegal cause is not valid. The important thing here is that: before you can invoke 833, it is necessary that the cause for the revocation must be stated in the will. If the testator simply revokes a will, even assuming that the cause for the revocation is false or illegal, but did not state the cause in the will itself, there will be no basis for any invocation of 833. Example: The testator instituted his friend X as heir to the bulk of his estate in his 1995 will. 10 years later, the testator heard that X was already long dead. Thinking that this was true, he makes another will in 2005 and said “I hereby revoke my 1995 will.” After the death of the testator, X appears and learns of the revocation, and was told by the testator’s close friends that the only reason why the Page 28

testator revoked his old will was because of the erroneous belief that X was already dead. Can X question the validity of the revocation? NO, there is no basis, because the testator simply revoked his will without stating the cause therefore, thus, no basis for invoking 833. Even if a will is revoked, any recognition of an illegitimate child contained in that will is not affected, because the recognition of an illegitimate child is not in the nature of a testamentary disposition subject to the sole will of the testator. Recognition creates a status, thus, there must be a certain element of stability, insofar as the status of individuals is concerned.

Transcribed by: Bjone Favorito

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REPUBLICATION and REVIVAL

and the 1990 will, which is to be given effect? The 1985 will, because it is now the later expression of the testator’s will due to republication.

Republication is brought about by the act of the testator, while Revival is brought about by the law.

Remember that republication through a codicil is not possible if the earlier will is void because of form.

Remember the two ways of republishing a will: (1) By executing a codicil to the will being republished – the will is republished as modified by the codicil. (2) By reproducing the provisions of an earlier will in a subsequent will. If the previous will is void as to form, the only way of republishing the provisions contain therein is by copying them in a new will. You cannot republish the provisions contained in a will which is void as to form by simply executing a codicil to that will.

Thus, in the previous example, if the testator made his 1985 will when he was only 16 years old. In 1992, he makes a codicil modifying the 1985 will. Is the 1985 will republished? YES, it is not defective or void as to form, only the capacity is the problem. The republication is valid. If, however, the 1985 will does not contain an attestation clause, it is not possible to republish it through a codicil. Kung gusto mo i-republish, you’ll have to copy those provisions in a subsequent will.

What is the effect of republication? A will which is republished by a codicil speaks as of the date of the codicil. In other words, it is as if the will was made at the time of the execution of that codicil, and that may have some legal consequences. Let’s assume that the testator made his will in 1985. He makes another will in 1990. Further assume that the provisions of these two wills are inconsistent with each other. If the testator dies with these two wills, which one will be given effect? Of course, the 1990, because it is the later expression of the testator’s intent. Let’s assume, however, that in 1992, the testator made a codicil saying “I hereby modify the following provisions in my 1985 will”. What is the effect? The mere execution of the codicil has the effect of republishing the 1985 will as modified. This means, it is as if the 1985 will was actually made in 1992. Assuming there are still irreconcilable conflicts between the provisions of the modified will Transcribed by: Bjone Favorito

When it comes to revival, isa lang naman provision dyan, yung 837. The only thing you ask yourself is this: How was the first will revoked by the second will? If the first will was expressly revoked by a second will, forget about revival. Even if the second will is itself revoked by a third will, the first will not be revived. If, however, the first will is merely impliedly revoked by a second will, then the moment the second will is revoked by a third will, the first is revived.

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ALLOWANCE and DISALLOWANCE

There are some important points which I want to emphasize: 1. Probate is mandatory – as long as person dies leaving a will, the probate of that will is mandatory. An unprobated will does not produce any effect. Why mandatory? It is a matter of public policy designed to protect not only the interest of the heirs and other beneficiaries under the will, but also to protect the interest of the testator. If it is not mandatory, nobody will bother to make a will anymore if your relatives can simply disregard the will and you’ll not be in any position to protest, you are 6 feet below the ground. 2. Probate is imprescriptible – there is no time limit for the institution of probate proceedings because the law itself mandates the probation for being a matter of public policy, thus, the same law could not have set any time limit. Otherwise, that public policy would be defeated. 3. There are only three matters which can be properly inquired into by the probate court during the probate proceeding proper: (1) Capacity – Did the testator possess the necessary capacity when he made the will?; (2) Identity – Is this document really the last will and testament of the testator?; (3) Due Execution – Were the formalities prescribed by law for the valid execution of a will followed? Yan lang tatlong bagay ang pwedeng pagusapan during the probate proper.

Transcribed by: Bjone Favorito

At that point, it is not proper for the probate court to inquire into the intrinsic validity of the testamentary provisions. Under exceptional circumstances, however, the SC has allowed a departure from that general rule. When would that be? Where it is obvious that a testamentary provision is clearly void, and a probate would be a waste of time because the only provision in the will happens to be void. The best example is the case of Nugid – the testatrix, in a very simple will, gave her entire estate to one of her siblings. Yun lang ang provision. The parents of the testatrix were still alive and were not mentioned in the will, they were clearly preterited. The SC held that it is useless to go ahead with the probate of this will because it is already clear that the only provision in that will is not effective for preterition. Bakit pa tayo mag sasayang ng oras? You might as well decide, on the basis of what appears in the face of the will, whether or not the institution of that heir is valid. Another illustration is the case of Nepomuceno – here was a married man. The problem was that he had a mistress of long standing for about 20 years. When he made his will, he named his mistress and gave her certain properties. The order of the court for the probate of the will was appealed. CA held: the will is valid, but this provisions in favor of the mistress are void. The mistress went to the SC, claiming that the CA was erroneous because at this point only, they should not be resolving the instrinsic validity of the provisions in her favor. The SC held: the CA did not commit an error because it was plain, upon the face of the will, that the provisions in favor of the mistress are null and void. Under 739, you cannot donate to people whom you are guilty of adultery or concubinage, and that article has been incorporated by reference in the law on testamentary dispositions. Page 31

Probate may be Post-Mortem – during the lifetime of the testator, or Anti-Mortem – after his death.

There are certain advantages and disadvantages in both. If you probate your will during your lifetime, the advantage is that if there are any defects in the will, you can still correct your will or make a new will if what you had done turns out to be invalid. The disadvantage, however, is that there is premature disclosure of the testamentary dispositions. So yung mga kamag-anak mo malalaman na kung ano lamang ng will mo, and if some of them feel that they have not been given a fair share, baka mapadali ang meeting mo with the Lord. Once a will has been allowed, or the allowance of the will has attained finality, that is conclusive as to its due execution. Meaning, it cannot be disputed later on, whether it is invalid or a forgery. Classic illustration of the application of this principle is Mercado vs. Santos – there was woman who died. Her husband presented her will for probate and was allowed by the probate court. 16 months later, the relatives of the wife instituted criminal proceedings against the husband, alleging that he is guilty of falsification for forging the will of his wife. The SC held: it is too late in the day, because the probate of the will is conclusive as to its due execution. That means it necessarily includes the authenticity of all the signatures appearing in that will.

The provision of a will cannot be the subject of a compromise agreement. The Court made it clear in Rabadilla vs. CA. Why? Because Transcribed by: Bjone Favorito

the will is the expression of the intention of the testator as to the manner in which he wants his property to be disposed of. His wishes must be strictly followed. If a compromise agreement will be allowed, providing for a different manner of division, that will defeat the purpose of making a will.

Grounds for Disallowance of a Will These grounds provided under 839 is exclusive. There are no other grounds aside from those mentioned therein. In connection with undue influence, when is this present? You will notice that this is also a cause for vitiation of consent in contracts. If you look at the decisions of the SC, it is very difficult to find a case where they actually found undue influence. In succession, as far as I know, there was only one case where they found undue influence. I refer to the case of Revilla vs CA, which I can be discussing later. Why is this so? Because man is a social being, we do not live in isolation from each other. As a result of our daily interaction with different people, we are bound to influence other people in the same way that other people are bound to exercise some measure or degree of influence over us. But as long as the influence does not overpower our own will, and it is not subjugated by the will of another, there is no undue influence. A father has four children – A, B, C and D. After his death, it is discovered that in his will he gave A, B and C only their legitimes and gave the rest to his youngest, D. The distribution is obviously unequal. Will the mere inequality of distribution, by itself, prove undue influence? NO. The SC had pointed it out in Icasiano. Page 32

Why? Because the principal reason why people make wills, is precisely because they do not want their legal heirs to inherit equally. If you are a parent who wants your children to inherit equally, why bother to make a will? You might as well die intestate because, under the rules of intestacy, your children will inherit equally. Supposing in the previous example that it can be proved, through the testimony of neighbors, that the testator made his will while he was living with his youngest son D. There is even testimony to the effect that the neighbors would constantly hear D pleading with his father to give him more than his brothers. Will that establish undue influence? NO, as long as there is no evidence that would show that the father lost his freedom of choice. In the case of Revilla, was an old man, Don Cayetano Revilla, who was the owner of valuable pieces of real estate here in Metro Manila. He was not married, and his closest relatives were his nine nephews and nieces who were all siblings. Don Cayeto made a will which was presented for probate and allowed during his lifetime. In that will, everything was divided fair and square, he gave each of his nephews and nieces 1/10 of his estate, the remaining 1/10 was dedicated for the upkeep and maintenance of a chapel in Bulacan. After his death, the eldest nephew suddenly came out with a supposed second will where Don Cayetano supposedly gave the eldest nephew anything, and nothing to any of his siblings, not even for the chapel. However, it was established that at a certain point, that eldest nephew was able to take full control over Don Cayeto. There even was a point when he isolated the old man from his brothers and sisters, took him to a certain residence where no one could not visit him. The other siblings, at a certain point, even had to secure a court order to visit him. The SC held: here is a case where there was undue influence when the eldest nephew took control of Transcribed by: Bjone Favorito

the old man. And that undue influence was, in turn, used by him to foist the fraud upon the old man, to make him sign that supposed second will, without the old man realizing that he was signing another last will and testament. Moral of the story? Moderate your greed.

There was this rather humorous case where a will was disallowed. Kaso ng katangahan. I refer to Calde vs CA – a will was presented for probate. Of course, in probate, the three witnesses were called to testify. All three witnesses were asked how many pens were used in signing the will. All of them, one after the other, answered “just one”. The will was disallowed because, looking at its face, kitang kita mo na iba’t ibang tinta ang pinang pirma dun sa will, e hindi ba naman katangahan yun? What was the consequence? The Court said those three witnesses were not really present when the will was signed, otherwise they would have known that more than one pen was used.

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INSTITUTION of HEIRS

You can have a valid will even if nobody is instituted as heir. In other words, you can simply give out your properties through legacies and devises. But of course, it is always better if you institute somebody as an heir, especially to the net remainder of your estate, because you can never anticipate what your properties will be at the time you die. If you make a will, you do not die the next day. It would probably take another 10 or 20 years before you finally kick the bucket. In the mean time, you may acquire other properties, so you could not properly foresee exactly what properties you may acquire later. Otherwise, there is a great possibility that several of your properties will pass to your legal heirs through intestate succession. To have a valid institution of heirs, it is not really essential that you include the complete name and surname of the heir. The rule of thumb is: as long as it is possible to determine the identity of the heir by some event or circumstance – that would be a valid institution. For example “I give the entire free portion of my estate to the incumbent president of Lex Leonum Fraternitas at the time of my death” Sino yun? Hindi naten alam. But there is an event or circumstance by which the identity may become known. Supposing that the institution is super malabo – “I give ½ of my estate to some Leonum members” sino yung “some” na yun? That is considered as a disposition in favor of an unknown person. That disposition is void, and the properties given to these unknown persons will instead be merged with the mass of the estate and given to the legal or intestate heirs of the testator. Transcribed by: Bjone Favorito

You remember that under 786, the testator can make a disposition of specific property or sums of money in favor of a class or a cause. “I leave P50M for the charitable institutions in Metro Manila” – pwede yan. “I give P10M for the street children of Manila” – pwede yan. Remember the rule of equal division under 846 – heirs instituted without designation of shares will inherit equally. However, the legitimes should always be protected. Assume that X, the testator, says in his will “I hereby institute A, B and C as my heirs.” X does not have any compulsory heirs. The estate is P120,000. Since A, B and C had been instituted as heirs without designation of shares, we apply the rule on equal division. They will inherit equally – P40,000 each. Suppose that A is actually a legitimate child of the X. In that case, do not make the mistake of applying 846 directly, otherwise it will result in the impairment of the legitime of A. As a compulsory heir, A is entitled to ½ of the estate – P60,000. What do you do with the P60,000 free portion? That is where you apply the rule on equal division – P20,000 each for A, B and C. If X institutes “A, B, C and the children of D” as heirs, and D happens to have 3 children – E, F and G, the heirs collective designated are considered individually instituted. Meaning, you divide P120,000 by 6. Each of them receives 1/6, because although E, F and G have been collectively designated, they are deemed individually instituted.

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Let us assume that X says “I institute A, B, C and D as my heirs. A will get ½, and B will get ¼ of my estate.” How will we distribute the P120,000? Since he specified the shares of A and B, then we follow the will – A will get P60,000, B will get P30,000. We apply the rule of equal division to the remainder – the remaining P30,000 will go to C and D in the amounts of P15,000 each. Supposing that X says “I institute A, B, C and D as my heirs. A will get ½, B will get ¼, and C will get ¼.” He did not specify the share of D. In this case, again we follow what he specifically states in the will. A gets P60,000, B gets P30,000, C gets P30,000 and D gets nothing. It turns out parang binola lang siya when he was instituted, because when X specified the shares of A, B and C, it already covered the entire estate. If X says “I hereby give A ½ of my estate. I give B ¼ of my estate.” Again, we follow the will – A will get P60,000, and B will get P30,000. There remains P30,000, to whom should this go? It should go to the legal heirs. If the testator, in instituting the heirs, stated their fractional parts, and such parts together do not cover the entire estate, then the part not disposed of by will should go the legal heirs, subject to their legitime. It is different if there is a clear intention to give the entire estate to the instituted heirs. but the fractional parts do not seem to cover the entire estate. That is time when you go into a proportional increase. If X says “I give my entire estate to A and B. A will get ½, and B will get 1/4.” That is a very clear indication that his intention is to give the entire estate to A and B. Nakalimutan nya ang kanyang fractions, akala nya ½ and ¼ will already cover the entire estate. So

Transcribed by: Bjone Favorito

papaano ang proportional increase? In forming your fractions, you start by following what the will said: You give ½ to A – P60,000. ¼ for B – P30,000. *(This portion is slightly different from the actual audio, as Dean’s explanation is difficult to translate because he was illustrating with the board while lecturing this part.) What you want to get is their proportional or pro rata share. To get their ratio, first we add their shares to arrive at the Total which will be your denominator: A – P60,000 B – P30,000 Total is P90,000. We then get their ratio by dividing their original share by the total: A – 60,000 / 90,000 = 6/9 B – 30,000 / 90,000 = 3/9 It would be easier if you can simplify the fractional share. In this case, the simple form is: A – 2/3, B – 1/3. In other words, their ratio is 2:1 or “2 is to 1” for A and B, respectively. Now that we have their ratio, we apply it to the remaining portion by multiplying it so that we can arrive at the proportional increase: A – 6/9 (or 2/3) x 30,000 = 20,000 B – 3/9 (or 1/3) x 30,000 = 10,000 We add this increase to their original share, thus, what they will ultimately get is: A – 60,000 + 20,000 = P80,000 B – 30,000 + 10,000 = P40,000 The proportional decrease is just the opposite – napasobra. “A is given ½, B is given another ½, and C is given ¼”. In that case you go into a proportional decrease, again, according to their share.

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One of the important points in institution of heirs, if not the most, is Article 854 – Preterition. There is preterition if a compulsory heir in the direct line is completely omitted in the will, and nothing has been given to him by the testator by gratuitous title even during his lifetime. What is the purpose of this rule? Why did the law says that if there is preterition, the institution of heirs is annulled? Bakit hindi nalang sinabi “if somebody is omitted, the omitted heir will still get his legitime.” But no, the law said complete annulment of heirs. The original concept of preterition was that this was simply due to forgetfulness – nakalimutan lang ng testator yung compulsory heir, hindi sinadya. Therefore, the law assumes that if the testator had simply remembered that heir, he would not have made the kind of institution of heirs that he did. The question is: What if the omission was done intentionally? Can that still be considered as preterition? The Court answered in Ventura vs. Ventura, where the decision was divided 3-2. The majority said: Intentional omission is still preterition. What happened in the case was – Gregorio Ventura had 2 legitimate children by a previous marriage. Later on, Gregorio and his 2 children from the first marriage had a grave dispute, reaching a point where Gregorio even denied paternity to them, but the two was still able to establish their legitimate filiation. In the meantime, Gregorio made a will which he presented for probate during his lifetime. In that will, he did not give anything to his two children. Therefore, omission of the two was clearly intentional. The question was, is that preterition? The SC anwered in the affirmative, even when it was done intentionally. The dissenters in the decision says that is no longer preterition, but rather imperfect disinheritance.

my love and affection from here until eternity.” That is still preterition basta walang binigay. Binanggit ka nga, wala naman binigay sa’yo. The compulsory heir who is omitted must be a compulsory heir in the direct line. If you omit your spouse, sinadya mong walang ibigay sa asawa mo, that is not preterition. Because your spouse, although a compulsory heir, is not in the direct line. When do you say that you belong to the direct line? If you are related to each other as parent or child, or as ascendant or descendant – yun lang ang direct line, lolo, apo, etc. – direct line yan, asawa hindi. If the omitted compulsory heir is an adopted child – maliwanag, preterition yan. Because an adopted child has basically the same rights and position in the law as a legitimate child. If the omitted child is an illegitimate child, that is also preterition. Because even illegitimate children are compulsory heirs in the direct line. If there are no children, especially legitimate ones, but the parents are alive, the parents, in that case, are compulsory heirs. And if they are omitted, that is preterition.

If a compulsory heir in the direct line is mentioned in the will, for example the testator said “I give my youngest son D, all of Transcribed by: Bjone Favorito

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The omission must be total and complete – kahit na ano, walang naibigay gratuitously to the omitted heir. If a compulsory heir in the direct line is completely omitted in the will of the testator, but during his lifetime he had donated something to that compulsory heir, there is no preterition. For the same reason, if the omitted heir in will stands to receive something by way of intestate succession, there is no preterition. For example, A is the child of the testator X. In his will he said “I give my friend G 9/10 of my P120,000 estate.” A was not mentioned. Is there preterition? None. Why? The law said: If the will does not dispose of the entire estate, what do you do with the part not disposed? You give it to the legal or intestate heirs. There is an indisposed portion of 1/10, so kahit anong mangyari may matatanggap pa si A – that prevents preterition. Of course A will be entitled not just to 1/10, but also to the completion of his legitime, which is ½ of the estate. In this case, you apply 855. Supposing in the same case, X said “I give A, by way of legacy, P5,000, the rest of my estate to G as my heir.” Is there preterition? None. Because the omission, again, is not total and complete. There is a legacy of P5,000 – that prevents preterition. But again, also subject to A’s entitlement of his legitime.

What is the effect of preterition? It will annul the institution of heirs, but legacies and devises will be respected insofar as they are not inofficious. Using the previous example, X dies with a will with only two provisions “I give my friend F P10,000, the rest of my estate to my friend G.” A, X’s son was not mentioned, and no donations had Transcribed by: Bjone Favorito

been made to him during the lifetime of X. A’s omission, being a compulsory heir in the direct line, is total and complete, thus, is a clear case of preterition. Applying 854, what will be the effect? The institution of G is annulled. The legacy in favor of F will be respected insofar as it is not inofficious. When is a legacy considered inofficious? If it exceeds the free portion. Legitime of A is P60,000, the free portion is the other P60,000. The P10,000 legacy given to F can be contained in the free portion, there is even an excess of P50,000 – this will go also to A. G ends up with 0 because his institution as heir has been annulled by reason of preterition. If the omission is not total and complete, there will be no preterition, thus, you don’t apply 854

What is the effect of the predecease of the omitted heir? Lets assume that X has 2 children, A and B. B has a son, C. In the will of X, he said “I give my entire P120,000 estate to my son A.” B is not mentioned and nothing has been given to him, therefore, he is preterited. However, B dies ahead of X. What is the effect? Paragraph (2) of 854 – if the omitted heir should die ahead of the testator, the institution of heir shall be effectual, without prejudice to the right of representation. The last phrase is subject to two varying interpretations: First view – C, the child of B, will be entitled to the legitime. The rest of the estate will go to A. So, legitimes here is ½ of P120,000. Meaning the P30,000, which B would have received, will now go to C. The rest of the estate of P90,000 will go to A.

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Second view – there is still preterition in this case, which will annul the institution of heirs. Why? Applying the principle in 777 – the rights of succession is transmitted from the moment of death, you determine the person’s compulsory heirs as of the moment of death because it is at that moment when there is transmission of successional rights. Thus, at the moment of X’s death, who were his compulsory heirs? A and C. You don’t talk of B anymore, he is already dead. C is a compulsory heir in the direct line, and his complete omission in the will gives rise to preterition, which should result in the annulment of the institution of A. Therefore, the estate should be distributed P60,000 each to A and C, by intestate succession. I submit, that is the better view. If there is an omission of a compulsory heir, but such omission does not amount to preterition, you don’t apply 854, you apply 855.

testator. In the case of the purely voluntary heirs, they get everything because of the will, so if there is anyone who should suffer a reduction, it should be them. But again, if it is clearly a preterition, you cannot apply 855.

Remember the basic principle under 856 – a voluntary heir who dies ahead of the testator transmits nothing to his own heirs. Let’s assume that X has no compulsory heirs, and then says in his will “I give my entire estate to my friend F.” And F happens to have 2 children, A and B. However, F dies before X. What rights, if any, will A and B get? Nothing, because F is purely a voluntary heir.

Unfortunately, 855 seems to be one of the more problematic provisions in the Civil Code as a result of faulty codification. Why? Because it only says – 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 will. Question: Supposing that the omitted compulsory heir is not a child or descendant? What rule are you going to apply if not 855? It should have been – the share of a compulsory heir omitted in a will... – hindi lang child or descendant, must first be taken from the part of the estate not disposed of. If that is not sufficient, so much as may be necessary, shall be taken proportionally from the shares of the other compulsory heirs. Why take it from the compulsory heirs only? Supposing there are voluntary heirs together with the compulsory heirs instituted by the testator? If there is anyone who should suffer a reduction, it should be the voluntary heirs. Because compulsory heirs get their legitimes from force of law, not by reason of the will by the Transcribed by: Bjone Favorito

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SUBSTITUTION of HEIRS

We have said that testacy is preferred over intestacy, and the law, as much as possible, would want to give primacy to the will of the testator. As part of the right of disposition of the testator, the law allows the testator to designate substitutes. The testator may institute someone as an heir, and at the same time, is allowed to designate somebody as substitute. Para kung may mangyaring aberya sa instituted heir, or legatee or devisee concerned, somebody will be able to take his place. There are various types of substitution: (1) Simple – one on one. Ex.: A is instituted as heir, B is designated as substitute. (2) Brief – there are 2 or more substitutes for a single heir. Ex.: testator institutes A as heir, and designates B and C as his substitutes. (3) Compendious – one substitute for 2 or more heirs. (4) Reciprocal – For example: A, B and C are instituted as heirs, and at the same time, shall reciprocally be the substitutes of each other. If anyone of them predeceases, repudiates, or becomes incapacitated, the other two will be the substitutes. (5) Fideicommissary – to be discussed later on.

by the testator. Thus, if the testator says “I institute A as my heir, and I designate B as his substitute in case A should predecease me.” Then it is understood that there will be substitution only if A predeceases. If not, and instead, A repudiates, will there be substitution? There will be none, because the testator specified that substitution will take place only in case of predecease. If there are several heirs, and they are, at the same time, designated as reciprocally the substitutes of each other, and a vacancy occurs, 863 provides – the substitutes shall, at the same share as the substitution, as in the institution. Ano ibig sabihin non? They will have the same proportional shares. Let’s assume that X has no compulsory heirs and says “I institute as my heirs A, B and C, but A will get ½, B and C will get ¼ each; and at the same time, I designate them reciprocally as the substitutes of each other.” Assuming that the estate is P600,000, A gets P300,000, B and C gets P150,00 each. Assume further that B predeceases, so substitution will now take place. The law provides that they will have the same share in the substitution as in the institution – that simply means they will have the same proportional shares. The proportion between A and C is “2 is to 1” (2:1). Meaning, 2/3 of P150,000 will go to A, the 1/3 to C – P100,000 to A and P50,000 to C.

If the testator does not specify the causes for the substitution, it is understood that substitution will take place in case of RIP (repudiation, incapacity, predecease). The testator may specify, and in such case, substitution will only take place upon the occurrence of the particular cause specified Transcribed by: Bjone Favorito

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One important thing in substitution ay yung tinatawag na Fideicommissary substitution. When will this happen? When the testator institutes a first heir, known as the fiduciary heir, and imposes upon him the absolute obligation to preserve and transmit the properties given to a second heir, known as the fideicommisary substitute. Both the first and the second heir must be living at the time of death of the testator, and the substitution should not go beyond one degree from the heir originally instituted. The basic concept and requirements for a valid fideicommissary substitution are found in 863 – the substitution must not go beyond one degree from the heir originally instituted. What is meant by one degree? To the so-called traditionalists, one degree means blood relationship. Thus, you can only have a fideicommissary substitution if the fideicommissary substitute is either the parent or the child of the fiduciary heir, because only the parent or a child can satisfy the one-degree limitation. Under this view, there can be several transfers of the property, as long as all of these subsequent transferees are first degree relatives of the first heir. For example: first transfer would be to the father of the fiduciary heir. The next transfer would be to a son of the fiduciary heir. The next will be the mother. then to the daughter. Under the so-called modern view, “one degree” means transfer. Under that view, there can only be one transfer. You don’t have to be related by blood to each other, basta isang transfer ok yan.

Transcribed by: Bjone Favorito

Finally, the SC held in Ramirez vs. Ramirez, that “one degree”, in fideicommissary substitutions, means relationship. That should have completely settled the whole thing. There came the case of Aranas vs Aranas, which is being invoked by some in saying that the ruling in Ramirez has already been abandoned. I will explain later on. Let’s assume that X has no compulsory heirs and says “I give my entire estate to my friend A as my universal heir. But I order him to preserve all of the properties I’m giving him, and to transmit these properties to his son C.” Assume that C has 2 children, D and E. That would be a fideicommissary substitution. A is the fiduciary heir, and C is the fideicommissary substitute. The testator has imposed upon A the absolute obligation to preserve and to transmit the properties intact to a second heir. C is also a first degree relative of A, so it is valid. Upon the death of X, all his properties will go to A – the fiduciary heir. What is the nature of the right of A over these properties? Basically, the rights of a mere usufractuary. Pwede nyang gamitin, he can gather the fruits, etc., but he cannot alienate or dispose. For how long will A hold these properties? If the testator specified the period, that should be followed. For example, the testator says “A will only hold the properties for 5 years, and, thereafter, shall be transmitted to C.” If the testator did not specify as, example, he simply said “A should preserve and transmit these properties to his son C.” Then the time of transmission would depend upon A. If, after holding for only 2 years, he already wants to transmit, ok lang walang problema, it all depends upon him. The longest period that A can hold these properties would only be up to the time of his death. Page 40

Supposing, using again the previous example, that C died in 1995 and A dies in 1998. In other words, C, the fideicommissary heir, died ahead of the fiduciary heir. What will now happen? The rights of C would now pertain to D and E, provided that A and C were alive when X died. Because, remember, in a fideicommissary substitution, it is expressly required in 863 that both the first and the second heir should be alive at the time of death of the testator. Why? Because in a fideicommissary substitution, both the first and the second heir inherit directly from the testator. Never make the mistake of thinking that the second heir inherits from the first heir – that is wrong. And when does the second heir inherit from the testator? At the moment of the testator’s death. So even if the second heir, the fideicommissary substitute, dies ahead of the first heir, it is not a problem because the second heir actually acquires rights from the moment of death of the testator, and he is able to transmit them to his own heirs– that is made clear in 866. Take note that a fideicommissary substitution cannot burden the legitime. If the first heir happens to be a compulsory heir, a fideicommissary substitution can only be established with respect to his share of the free portion. Pag dating sa kanyang legitime, hindi pwedeng subject to a fideicommissary substitution. Why? Because the legitime is something which goes to a compulsory heir not because of the will, but by force of law – it is something beyond the power of the testator to control. That is the reason why the legitime cannot be made subject to any condition, encumbrance or substitution. Suppose that X is the testator. A had two sons, B and C. In X’s will, A was instituted as a fiduciary heir and C is a fideicommissary substitute. Let’s assume that when A died, he did Transcribed by: Bjone Favorito

not have any properties other than those which came from X under the fideicommissary substitution. Can B, the other son of A, claim part of those properties as his legitime from A? NO. Those properties were given to A under a fideicommissary substitution, therefore, those properties should go only to C. Suppose that A has many unpaid debts when e died. Can his creditors run after those properties? NO. At best, all that A has over those properties would be the rights of a usufructuary. Assume that what X said was “I give all of my properties to A but , upon his death, whatever shall remain of those properties shall go to his son C.” Is that a case of fideicommissary substitution? NO. Why? There is an implied authority to dispose. There is no obligation to preserve and transmit all of the properties. That is what happened in the case of PCIB vs Escolin – the testatrix died with a will where she said “I give all of my properties to my husband, except for a certain one in Texas. Whatever will remain in the properties I am giving to my husband will pass to my relatives.” That is not a fideicommissary substitution because there is no obligation to preserve. As a matter of fact, there is an implied authority to dispose. Supposing that what happened was that the testator gives ½ of a parcel of land to a niece, and the other half to the brothers of the testator. He also said “upon the death of my niece, whether before or after my own death, the ½ given to her will pass to my brothers or, if they are dead, to their own heirs.” Is there a fideicommissary substitution? There is none. The facts are similar to Crisologo vs Singson – in the case the SC held: there is no fideicommissary substitution because you Page 41

can only have such in either of two ways: (1) by expressly calling it by that name; (2) by imposing upon the first heir the absolute obligation to preserve and transmit the properties to a second heir. Outside of these two situations, there is no fideicommissary substitution. Then what kind of substitution is this? That should be considered as a simple substitution. Let’s assume that X institutes A and B as the heirs in a fideicommissary substitution, saying “I institute A as fiduciary heir, and B as the fideicommissary substitute.” B dies in 1995. X dies 1998. In other words, when X died, B was already dead. Is there a fideicommissary substitution in this case? NO. Remember one basic requirement in 863 is that both the first and second heir must be living at the time of the testator’s death. The question is, will A be able to inherit? YES. Why? Because of 868 – the nullity of the fideicommissary substitution does not prejudice the right of the first heir to inherit. The fideicommissary clause will simply be disregarded Supposing that it is the other way around. It was the first heir who died ahead of the testator. When X died, only B was alive. Can B inherit? Strictly speaking, B cannot, because there is no provision in favor of the second heir similar to 868. But I submit, the better view is that B should be allowed to inherit. We consider this as no longer a case of fideicommisary substitution because it was no longer valid, and thus shall be considered as merely a simple substitution. Why? Go back to a basic principle – in testamentary succession, the principal guide is always the intention of the testator. When the testator designated A and B as heirs in a fideicommissary substitution, what was his intention? That the properties will ultimately end up with B. The first heir only has temporary rights over the property. Thus, the intention will best be served if we Transcribed by: Bjone Favorito

consider it as a simple substitution, and as such, if the instituted heir dies ahead of the testator, the substitute takes his place. Always remember the restrictions and limitations under 863 – (1) one degree; and (2) the first and second heir must be living at the time of death of the testator. These are incorporated by reference in other provisions. For example, in 869 – if the testator gives the naked ownership of a property to one person, and he gives the usufruct of the same property to several persons not simultaneously but successively, it should not go beyond the limits set in 863. Thus, if the testator says “i give my farm in Bulacan to my friend F. But I give the usufrucuary of that farm to A for a period of 5 years, to A’s son B for another period of 5 years, and to C, the son of B, for another period of 5 years.” Here, naked ownership of that farm has been given to F, but the usufruct has been given to several persons successively, therefore, it cannot go beyond the limit set in 863. How do we apply the restrictions? All of the must be living at the time of death of the testator, and it cannot go beyond one degree from the heir originally instituted. Therefore, only A and B will get to enjoy the usufruct because C is already two degrees away from A. The same restrictions and limitations are imposed to 867. For example, if the testator gives his estate or a part thereof to an heir, but orders him to give to several persons successively a certain income or pension – it cannot go beyond the limits set in 863. So if the entire estate is given to F but was ordered to give A P10,000 monthly for 5 years, then P10,000 monthly to B for another 5 years, and another to C – only A and B will be entitled to the income. C is already two degrees away from A, the first beneficiary.

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The maximum period that the testator can order indivision or prohibit alienation is 20 years. A testator is not allowed to perpetually prohibit the alienation of property Supposing that the testator prohibits perpetually, stating “I my entire estate to my friend F, but I prohibit him, as well as any of his heirs, from ever disposing any of the properties forever.” That is not a valid provision. But for the first 20 years at least, that should be respected. After 20 years, it can be disregarded. However, if the property is given under a fideicommissary substitution, the 20 year limitation does not apply. Meaning, if X says “I give my entire estate to A, but I order him to preserve and transmit the properties to his son B.” X has already died more that 20 years ago, but A was still holding the properties. Can A dispose of the properties? NO. Even if more than 20 years had elapsed, there is the overriding prohibition based on fideicommissary substitution. He is obligated to continue preserving intact all of the properties.

870 was the principal bone of contention in the case of Aranas vs Aranas, which I earlier mentioned. In the case, there was a catholic priest, Fr. Aranas. He died with a will wherein he disposed of his properties in favor of his relatives. However, there was a certain group of properties which he particularly emphasised saying “with respect to these properties, they will be under the administration of my nephew Vicente. As administrator, Vicente will be entitled to ½ of the fruits of the properties.” Vicente, in reality, was made a usufructuary in that sense. The will further provides “Vicente will continue as such administrator until he dies, or until his refusal to go on as administrator. Upon the death of Vicente, or upon his refusal to continue as administrator, the next administrator will be Transcribed by: Bjone Favorito

one of the children of my brother Carmelo, to be chosen by Carmelo, and if Carmelo is already dead, his children will select from among themselves who will take the place of Vicente.” Upon the death of Fr. Aranas, some of the relatives questioned the validity of this provision on the ground that it violates 870 because according to them, it amounts to a perpetual prohibition to alienate. The SC held: there is no violation of 870. There is nothing which prevents Vicente of disposing of the fruits or even of transferring his rights as usufructuary. At any rate, Vicente is still alive and still willing to serve as administrator-usufructuary, thus, the provision should be respected. If Vicente dies, that is the time when the properties can be properly disposed of subject to the limitations under 863 on fideicommissary substitution. How does this relate to fideicommissary? Remember in the case of Ramirez, the SC categorically said the meaning of “one degree” is relationship by blood. If we consider 869, this is obviously a case of successive usufructs. Between Vicente and any of the children of Carmelo, they are not first degree relatives. Thus, if it would be allowed that the next usufructuary will be one of Carmelo’s children, it would change the meaning of “one degree”. That is the reason why some had raised some doubts as to the continued validity of the Ramirez ruling. But I have always maintained: one degree is still relationship. Why? Hindi naman yan ang pinag talunan ditto e, the issue here was whether or not there was a violation of 870, not the meaning of one degree. Moreover, I do not think my reading of Aranas tells me that the court did not categorically rule that the next usufructuary can actually be one of the children of Carmelo, because what the court said was that Vicente was still alive and that only upon his death can the properties be disposed of, subject to the limitations of 863. In effect, the SC said “Buhay pa naman. Saka na naten pag usapan kung pwede yan pag namatay”.

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CONDITIONAL TESTAMENTARY DISPOSITIONS and TESTAMENTARY DISPOSITIONS with a TERM

A Condition is a future and uncertain fact or event. A term or period is something which will necessarily come to pass, although we may not exactly know when. Kinds of Condition: (1) Potestative – if the fulfillment of the condition depends upon the sole will of a party; (2) Casual – if the fulfillment depends upon the will of a third person or upon chance; (3) Mixed – depends partly upon the will of a party, and party upon the will of a third person and/or chance. The testator is allowed to impose conditions. It is part of his right of disposition. An heir may be instituted, or a legacy be given, subject to a condition. The condition, however, cannot be an impossible or illegal condition. Supposing that the condition imposed is impossible, what is the effect? No effect, the heir will still inherit. For example, the testators says “I give my best friend F ½ of my estate subject to the condition that within 6 months from the time of my death, he will demonstrate his ability to fly without using any mechanical devise.” F does not have to kill himself trying to fulfill that condition. He will still inherit. Would it make any difference if the testator says “In no case can F inherit unless he demonstrates his ability to fly.”? It does not. The rule is – impossible conditions attached to testamentary Transcribed by: Bjone Favorito

dispositions are simply ignored and disregarded. Same rule as in the case of donations, because testamentary dispositions and donations are essentially predicated upon the generosity or liberality of the donor or testator.

There is a special rule when it comes to a condition of an absolute prohibition to contract marriage: (1) First marriage – an absolute prohibition to contract a first marriage cannot be validly imposed – yung hindi pa nakatikim, hindi pwedeng pag bawalan in an absolute manner. If it is a relative prohibition, pwede yan. Examples: A is instituted as heir subject to the condition that he will not marry until he reaches the age of 25 – pwede yan. Maria is given ¼ of the estate subject to the condition that she will not marry until reaching the age of 75 – hindi pwede yan, kahit na mayroong termino. Pag pinag antay mo ang babae hanggang 75 bago mag asawa, para ka narin nag prohibit absolutely – the circumstances must be considered. My friend F is given ½ of the estate subject to the condition that he will not marry a Bicolana – pwede, relative ‘yon. There is just one situation that I have always maintained that an absolute prohibition may be considered valid: For example, I have a priest friend – bawal mag asawa mga ‘yan diba? And I said “I hereby institute my friend Fr. P as heir, subject to the condition that he will never marry.” I think that is a valid condition. Why? I am not imposing anything new burden on him. I am simply asking him to remain where he has voluntarily placed himself, and I assume he voluntarily undertook that burden when he had himself ordained.

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(2) Second marriage – mga nakatikim na, gusto tumikim ulit. General Rule: an absolute prohibition cannot be validly imposed. Kung walang kadala dala, gusto ulit – edi sige. Exception: only certain individuals are allowed to validly impose the absolute prohibition. Sino? The deceased spouse, his or her ascendants and descendants. Why are they allowed? That is very understandable – kung ikaw ba naman may asawa, malamang ayaw mong mag asawa ulit yung asawa mo pag namatay ka. This reminds me of a story. There was a golfer, so he had a lot of golf sets. When he was dying, he told his wife “honey, when I am gone, I want you to marry again.” “No, I don’t want to; you are the only love of my life” said the wife. “But I want you to be happy, and I want someone to take care of you. You can even give your new husband my gold sets.” The wife replied “the problem is you are right handed, but he is left handed.” So why are they allowed? Because the law gives due consideration to the sensibilities not only of the deceased spouse, but also to his or her ascendants and descendants, who may not want another person to take the place of the deceased spouse. Let’s assume that H had two wives W1 and W2, one after the other. The parent of W1is A, the parent of H is B, the parent of W2 is C. During the first marriage, they had two children, D and E. The children during the second marriage was F and I. Of course, H married W2 after the death of W1.

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Now, W2 has just died. Of course, there is no question that W2 is just allowed to impose the prohibition on H, being the deceased spouse. If C should make a will wherein he gives a property to X, can he also impose that condition? YES. What about F and I, can they also impose that condition on their father? YES, as descendants of the deceased. What about B? NO. He is the ascendant of the surviving spouse, not of the deceased spouse. What about D and E? They cannot impose the prohibition anymore, because it is no longer W1 who is deceased here. As a matter of fact, nakapag asawa na nga ulit si H. Assume that H and W2 did not have any children and C is already dead. In other words, upon death of W2, only H is the compulsory heir. If W2 said in her will “I give my entire estate to my husband H, but I do not want him to marry again.” However, 6 months after, H contracted another marriage. Did he violate any condition? NO. A mere expression of a wish or a desire does not amount to the imposition of a condition. Using the same facts of the immediately preceding example, assume instead that W2 said “I give my entire estate to my husband, subject to the condition that if he marries again, he will lose everything.” Is there a valid imposition of a condition? YES. If H marries again, will he lose everything? NO. Why not? Remember, he was given the entire estate. He gets part of it as legitime – such part cannot be subject to any condition, encumbrance or substitution. Page 45

The legitime goes to the compulsory heir not because of the will, but because of the law. In that case, H will only lose the free portion, he retains the legitime.

Remember what a Disposition Captatoria is – if the testator gives property to an heir subject to the condition that he (the heir), in his own will, makes a disposition either in favor of the testator or a third person, such condition is null and void. This is because succession cannot be the object of a contract. You are not allowed to control the will of another person by imposing that kind of a condition.

the condition to be fulfilled again. UNLESS the condition is of such nature and character that once fulfilled, it cannot be done again. For example, the condition is “to be an heir, my friend must earn a master’s degree.” At that time, the testator knew that his friend already has such degree. Should his friend earn another master’s degree? YES. Supposing the testator said “I give my friend F ½ of my estate as heir, subject to the condition that not later than 5 years after my death, he should take and pass the Bar Exams.” The testator knew that his friend was is already a lawyer, gusto nya ulit pakunin ng Bar – ay hindi na pwede. The condition is not possible of fulfillment again, the Supreme Court will not allow you.

If the testator imposed a potestative condition, when should the condition be fulfilled? Since the fulfillment depends upon the sole will of the heir, it may fulfilled as soon as the heir learns of the death of the testator. After all, it depends upon his sole will. If the condition, on the other hand, is casual or mixed, when should it be fulfilled? It may be at any time before or after the death of the testator. If, during the execution of the will, the testator did not know that the casual or mixed condition he imposed has already been fulfilled, what is the rule? Does it have to be fulfilled again? NO. It is already deemed complied with. If instead, at the time the testator made his will, he knew that the casual or mixed condition he was imposing has already been fulfilled but he imposed it anyway, it can only mean that he wants

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Will the recognition of a legitimate child stated in a will still be effective when said will is disallowed? It would depend upon the reason for the disallowance. If, for example, it was disallowed because it was proved that it was a complete forgery and was not really executed by the supposed testator, then I do not think that that recognition can be given any effect – that is not a recognition effected by the testator himself. But if it is an authentically signed recognition made by a person, you can consider the will as an authentic document instead of considering it as a last will and testament. There are various ways of effecting recognition. Assume there are two wills, the second will expressly revokes the first – that implies that the second will, where the express revocation is contained, is a valid will. Therefore, there is no room for the application of dependent relative revocation. On the other hand, if there is merely an implied revocation, it also implies that you have two valid wills, the provisions of which are inconsistent with each other – that also necessarily implies that both wills are valid. Otherwise, if the second will is not valid, then you don’t even talk of an implied revocation. The doctrine would more specifically apply to revocations effected through physical acts of destruction coupled with intent to revoke. Because if you are talking of revocation effected through another will, that implies that the second will is a valid will. But the basis of the doctrine is that the revocation is dependent upon the validity of the second will, or the ability to make a second will.

Transcribed by: Bjone Favorito

Disposition made by a testator subject, not to a condition, but to a suspensive term or period. Example: “I give my friend A ½ of my properties as heir, but he will get it only after 5 years from the time of my death.” That is subject to a suspensive period. What is suspended is merely the demandability, not the effectivity of the insituttion. Consequently, even if the instituted heir dies before the arrival of the suspensive term or period, he would already have acquired rights which he can transmit to his own heirs. During the term or period of suspension, what will be done with the property in the mean time? For example: The testator said “I give ½ of my estate to my friend F, but only after 5 years from my death.” While you are waiting for the expiration of the period, what will you do with the properties? There is a conflict between 880 and 885. According to 880 – if the institution is subject to a suspensive term or condition, the property will, in the mean time, be placed under administration. However, according to 885 – if the institution is subject to a suspensive term, the property will, in the mean time, be given to the legal heirs of the testator. Alin ba talaga kuya? It should be 885. As long as the institution is subject to a term or period, whether suspensive or resolutory, the applicable provision is 885. The references to a term or period in 880 is erroneous. To borrow the language of Justice J.B.L. Reyes, “these references to a term or conflict in 880 were inserted by an unknown genius in the code commission (he was very sarcastic about it) and thereby creating an irreconcilable conflict with 885.” Page 47

So, applying 885, since the period is suspensive, during the 5-year period, the legal heirs will get to enjoy the property having the same rights as usufructuaries. Upon arrival of the 5th year, it will be given to the instituted heir. Under 885 – before the legal heirs can take possession of the properties, they are required to post a security in order to guarantee that the properties will be transmitted intact to the instituted heir upon arrival of the term or period. On the other hand, if the institution of the heir is subject to a resolutory term or period, as for example, the testator instead said “I give my properties to my friend F, but he will enjoy it only for a period of 5 years.” Upon the death of the testator, the instituted heir will get the properties. And upon the arrival of the resolutory term or period, his rights are extinguished – the properties will now go the legal or intestate heirs of the testator. If you are instituted under a suspensive condition, apply 880 – prior to the fulfillment of the condition, while waiting if whether or not the condition will be fulfilled, what will be done with the properties? Under administration ‘yan. The heir is not allowed to secure the properties even if he is able and willing to post a security.

What is a Modal Institution? You have the provisions of 882. When is it considered modal? If the testator specifies the: (1) object of the institution, (2) charges to be satisfied by the heir; or (3) application of the property.

What is the legal consequence? How does this work? If the institution is modal, the instituted heir is immediately entitled to the properties given to him under the will even before he has satisfied the charges or object specified by the testator. For example the testator says “I give my best friend F the entire free portion of my estate, but I order him to use 20% of the income of these properties for the purpose of putting up and maintaining a charity clinic.” That is a modal institution. The testator specified the object of the institution, as well as the charges imposed on the heir. So upon the testator’s death, F will immediately be entitled to the properties given to him even before he puts up the clinic. He is required, however, to post a security to answer for the return of the property, as well as all the fruits and interests due thereon, in case he does not comply with the wishes of the testator.

Remember the difference between a mode and a condition: Mode – obligates but does not suspend. You are obligated to comply with the orders of the testator but you are immediately entitled to the properties, subject to the posting of a security. Condition – suspends but does not obligate. A good illustration of a modal institution is Rabadilla vs. CA. In that case, the testatrix executed a codicil to her will wherein she said “I give a parcel of land to Dr. Rabadilla, but I order him to give to my relatives 100 piculs of sugar annually.” – that is, according to the SC, a modal institution.

The moment the testator specifies these three, that will be a modal institution. Transcribed by: Bjone Favorito

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LEGITIMES

Rules of thumb: (1) Legitimates are always entitled to ½ (2) Any class surviving alone – ½ - basta walang kahati, isang klase lang (3) Spouse surviving alone – ½ - kung walang ibang compulsory heirs. Exception to (3) – If the marriage was solemnized in articulo mortis, and the testator died within 3 months, the law looks with suspicion at that marriage and reduces the legitime of the surviving spouse to only 1/3. Why? During the marriage, the testator is at the point of death. (Take note, articulo mortis is at the point of death, not merely with a danger of dying – there is a difference) Kase baka naman kaya mo lang pinakasalan ‘yan dahil alam mo na isang bulate nalang ang ‘di pumipirma bago mamatay ‘yan. Thus, the marriage might have been impelled by economic considerations lalo na kung mayaman yung himamatayin, para kang nanalo sa lotto nyan. Exception to the exception – even if the marriage was contracted in articulo mortis and the testator died within 3 months, if the parties has been living together as husband and wife for at least 5 years, the law raises back the legitime to ½. Baka naman totoong may pag ibig because of their cohabitation. For the exception to apply, it is necessary that the marriage is in articulo mortis. If H and W were married healthy in 7:00am, and during the honeymoon at 7:00pm of the same day, H suffered a massive heart attack and dies, the legitime of W is ½ assuming she is Transcribed by: Bjone Favorito

the only compulsory heir. It does not matter that the marriage lasted only for several hours, because it was not in articulo mortis. The dying party should be the one who actually dies. Example, H and W were married in articulo mortis on January 1, W was dying. Even the doctor said that she can die any minute. Syempre hindi sila nag honeymoon on January 1, himamatayin nga si W. In the mean time, H nursed W back to health. By Feb.14, W was well enough in perfect health, so they finally had their honeymoon. That evening of Feb14, H suffered a heart attack and died. What is the legitime of W? still ½, because it was W who was dying during the celebration of marriage but it was H who died within 3 months. Kelangan yung himamatayin yung mamatay otherwise you don’t apply the exception.

The presence of legitimate children and descendants, even an adopted child, excludes the legitimate parents and other ascendants. Survivors – Legitimate parents, Illegitimate children and Spouse: ½ to the legitimate parents; ¼ to the illegitimate children; only 1/8 to the spouse. Medyo agrabyado ang spouse. Nagka anak sa labas na nga asawa nya, mas malaki pa minana. The reason is that something must be left for the free disposal of the testator. Between the spouse and the illegitimate children, the law would rather give a larger share to the illegitimate children because, chances are, marami yan at maghahati hati pa sila, isa lang naman ang surviving spouse.

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Survivors – Illegitimate children and Spouse: 1/3 for both Survivors – Illegitimate parents and Spouse: ¼ for both Survivors – Illegitimate grandparents and Spouse: the illegitimate grandparents are not compulsory heirs, ½ for the surviving spouse. Remember that, whether under the law on legitimes or in intestate succession, in the direct ascending line, in case the decedent is an illegitimate person, succession stops at the illegitimate parents. Let us assume GF, the illegitimate grandfather of X, died. Can X inherit from GF? YES. An illegitimate descendant can inherit. But suppose it is GF who survived the death of X, can GF inherit from X? NO, ang state ang makikinabang dyan. So I repeat – in illegitimate persons, succession in the direct ascending line stops at the illegitimate parents.

the legitimate children, you then give to the surviving spouse – the same as one legitimate child, thus, also P30,000. Under the Family Code, C, D, E, F, G and H are supposed to get ½ of the share of a legitimate child. So theoretically, they each should get P15,000. However, you have P30,000 left in the estate. What is the net consequence? They would just have to share the P30,000, thus, since there are 6 of them, they each get P5,000. Survivors – One legitimate child and Spouse: ½ to the legitimate child ¼ to the spouse. Thus, there will be a free disposal of ¼. Survivors – Illegitimate children: ½ - any class surviving alone Survivors – 2 legitimate children and Spouse: ½ for legitimate children to be divided equally to them. After determining the share of each child, give the same to the spouse Quick Summary:

Under the Family Code, illegitimate children are entitled to a legitime which is ½ of that given to the legitimates. However, it may happen that they may end up with less than ½ - kung makulay ang buhay ng decedent. For example: X is survived by W – his wife, A and B – his legitimate children, and C, D, E, F, G and H – illegitimate children. The estate is P120,000. How much would be the legitimes? When it comes to distribution, always give preference to the legitimate children. You give first to the legitimate children their ½ legitime, which is P60,000 – thus, A and B gets P30,000 each. After satisfying Transcribed by: Bjone Favorito

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Reserva Troncal What is Reserva Troncal? It is a reservation established by law for the benefit of certain relatives within the 3rd degree who belong to the line from which the property came. The purpose is to return property, which was somehow strayed from one family to another, back from where it originally came. Assume: A and B are married; C and D married; E and F are the children of A and B; G and H are the children of C and D. F and G got married and had a child, X. thereafter, F died.

A, the grandfather, donated a parcel of land to X, his grandson. Later on, X died intestate. His entire estate, including the land from A, went to G, his mother. Without Reserva Troncal, who will get the land if G dies? C and D, and upon their death, it will go to H and down his line. In other words, without Reserva Troncal, that parcel of land, which might have belonged to the family of A since time in memorial, would be forever lost and would now belong to another family simply because of the accident of death – that I died intestate ahead of G, without any legitimate issues.

Transcribed by: Bjone Favorito

Therefore, the purpose of Reserva Troncal is to return the property back to the line from where it originally came – ibalik dun sa pamilyang pinanggalingan yang naliligaw na pagmamay ari na ‘yan. Using the same illustration, the land is subject to a reservation established by law in favor of the relatives of X within the 3rd degree, and who belonged to the line from which the property came. G is the Reservista – the person obliged to reserve; X is the Propositus – the descendant from whom the ascendant acquired property by operation of law, which property previously came by gratuitous title from another ascendant, brother or sister. A is the Origin – The person from whom that property originally came. The reservation is established in favor of Reservatarios – the relatives of X within the 3rd degree, and belonging to the line from which the property came. So, who are qualified reservatarios in this case? C and D, while they are 2nd degree relatives of X, are out – they obviously do not belong to the line from which the property came. How do you count the number of degrees? You simply count the generations for those in the direct line. For those who belong in the collateral line, you ascend to the common ascendant before going to the collateral relative concerned. In this case, who is the common ascendant of X and H? Si C at si D. So counting up to C and D, then down, H is thus a 3rd degree

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relative, but still out as reservatario for not belonging in the line from which the property came. If A, the origin, is still alive, can he be a reservatario? YES. That is in fact the most ideal situation – walang duda that the property had “come home” if it returns to the origin. So A is qualified if still living.

Therefore, I submit that to be qualified as a Reservatario, you must satisfy a dual blood relationship: (1) you must either be the origin yourself, or related by blood to the origin. (2) you must be related by blood within 3 degrees to the descendant propositus.

What about E? YES. He belongs to the line from which the property came because he is the son of the origin, and he is a 3rd degree relative of X. What about B, the grandmother of X? There are actually two views, but I submit that the better view is that B is not qualified as a reservatario. Why? The purpose of Reserva Troncal is to return the property back to the family from where it originally came – that’s the family of A. Assuming that A died. If we consider B as a qualified reservatario, then upon the death of G survived by B and E, B will be the one entitled to the property. Because in determining who among the reservatarios will get the property, we apply the other rules of succession such as “nearer excludes the further,” “direct line preferred over the collateral line.” B is a 2nd degree relative in the direct line, while E is only a 3rd degree relative in the collateral line. The problem is if lola B, may asim pa, nag asawa ulit kay Mr.Z, at nagka anak pa, which is not an entirely impossible thing – you can become a grandmother at the age of 42 or 45, pwede pa manganak ‘yan. If she is considered as a qualified reservatario and gets the land, and later on she dies, there is a possibility that the land will pass to Z and Z’s children. Has it returned to the family from which it came? NO, the purpose of reserva troncal will not be served.

Transcribed by: Bjone Favorito

Before there can be a reserva, there must be at least two transfers of property: The first transfer is from the ascendant, brother or sister, to the descendant propositus. That first transfer must be by gratuitous title – donation, succession, basta libre. The second transfer is from the descendant propositus to the ascendant reservista. This time, the transfer must be by operation of law – this can only be had in either of two ways: first, if the ascendant inherits property as his legitime; second, if the ascendant inherits property by intestate succession. Those are the only two possible ways by which an ascendant can acquire property by operation of law from a descendant. It is only when an ascendant has acquired property from a descendant by operation law that the reserva starts. The first transfer from ascendant is either downwards or horizontal. If the origin is an ascendant, pababa ‘yan. If the origin is a brother or sister, horizontal ‘yan. The second transfer, from the descendant propositus to the ascendant reservista by operation of law, is always upwards.

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If in the previous illustration, X is still alive, is there already a reserva? None yet. Thus, while X is the owner of the land, it is considered a completely free property not subject to any reservation and totally in the control of X. He may sell, alienate or otherwise dispose of it because there is no reservation yet.

To illustrate, using the previous case: if X had a legitimate child, G will not be entitled to a legitime. The same thing may be said in the case of intestate succession – if X dies leaving a legitimate child, his entire estate will go to that child by operation of law, none to G.

Assume X sells that land, after it was donated to him by his grandfather, to Carlo for P5M, and just 3 days after the sale X dies. Having died intestate, his entire estate including the P5M was inherited by his mother G. Will there be a reserva over the P5M? NO. We do not allow substitution in reserva troncal. In other words, unless it is the very same property which previously came from an ascendant, brother or sister by gratuitous title, which is subsequently inherited by operation of law by another ascendant, there is no reserva troncal. But there may be a reserva regardless of what kind of property it may be – even on money, as long as it is the very same property which previously came by gratuitous title from an ascendant, brother or sister and which had subsequently been acquired by another ascendant through operation of law.

That is the reason why according to some, one of the requisites of a reserva troncal is that the descendant must leave no legitimate issues – because there is no way that an ascendant can acquire property from him by operation of law if he has legitimate issue of his own.

Therefore, if X is still alive and still has that land, it is within his power to determine whether or not there will be a reserva troncal later on. As said by some civilists: the descendant is the arbiter of the reserva. He has the power of life and death over the reserva. If he does not want the reserva to arise later on, he can simply dispose the property – that will effectively prevent the reserva because it will no longer be the very same property. If he gets married and he has a legitimate issue, for example he had a child; reserva troncal is no longer possible. Why? Because if the descendant has a legitimate issue, there is no way that his ascendant can acquire property from him by operation of law.

Transcribed by: Bjone Favorito

It is only when G acquires the property (the parcel of land) from X by operation of law that the reserva starts automatically. While the property is in the possession of the reservista and is already reserved for A and E, what is the nature of the right of such reservista? Is he just like the fiduciary heir in a fideicommissary substitution, having the rights of a usufractuary? NO. The reservista is actually the owner of the property under reserva troncal. But that ownership is subject to the threat of extinction subject to a resolutory condition. What is the resolutory condition? If there are, at the moment of death of the reservista, surviving reservatarios. If, at the time of death of G, there are surviving reservatarios, then the rights of G are extinguished and transferred to the reservatarios. Can G, the reservista, sell the reserved property during his lifetime? YES. But that sale is subject to the same resolutory condition.

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What about the reservatarios? During the lifetime of G, can A and E also sell the property? YES. But that sale is subject to a suspensive condition. So, if in one sale G the reservista sold the property reserved to Lito, and on the other hand, the reservatarios sold the same property to Tolits, who will have better rights as between Lito and Tolits? The answer would be: “it depends” kung sino mas magaling mag dasal. Why? In the case of Lito, he will have to pray hard that G will outlive all the reservatarios. In the case of Tolits, he will pray that any of the reservatarios will outlive the reservista. Assuming the previous illustrative facts, will there be any difference if the land in the estate of X originally belonged to D? For example, it turns out A and D were childhood sweethearts before. Long time ago, D actually donated the land to A, never imagining that someday their children would marry each other, and that they would have a common grandchild, and the facts of the original illustration then ensued. The question is, will there be a reserva troncal? YES. Will there be a change in the reservatarios? NO. The same reservatarios – A and E. Why? In reserva troncal, we do not concern ourselves with the remote source of the property. Our inquiry only goes back to the origin – wala na tayo pakialam kung saan nanggaling yan before the origin, thus, no change in the qualified reservatarios.

In reserva troncal, the reservation is established by law in favor of a class. Who are included in that class? All relatives of the descendant propositus within 3 degrees and who belong to the line from which the property came. In determining who among the members of that class will Transcribed by: Bjone Favorito

actually get the property once the reservista dies, we apply the other rules of succession such as “rule of preference between lines” or “rule of proximity” or even “representation” provided that the representative is himself a relative within 3 degrees counted from the descendant propositus.

Diagram for the next illustration:

Let us assume that B married twice. First marriage was with A, and they had three children, the second marriage is with C also with three children. The parent of A is D, the parent of B is E, and the parent of C is F. B is dead. E donated a parcel of land to J. Later on, J died intestate, and his entire estate, including that land from E, was inherited by his mother C. Is there reserva troncal? YES. There had been two transfers – the first is from an ascendant to a descendant through gratuitous title, and the second is from the descendant upwards to the ascendant by operation of law, thus, the land is covered by reserva troncal.

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If C dies, and E is still alive, the property will go to E. Why? Although J has many relatives within 3 degrees, E will exclude all of them. Rule of preference between lines – direct ascending line is preferred over the collateral line. Let’s assume that E is dead. If C dies, who gets the property? All the relatives of J within 3 degrees and who belong to the line from which the property came are considered qualified reservatarios – G, H, I, K, and L are 2nd degree relatives. Same thing with M, N, O, P, Q, R, S, T, and U because they are 3rd degree relatives. Do they all belong to the line from which the property came? YES. G, H, I, K and L are all descendants of E – their common grandparent. Thus, they will divide the property. In dividing the property, distribution is not equal because among the reservatarios, the other rules of succession will apply. What specific rule will apply here? The rule of double share for full-blood collaterals – full-blood brothers and sisters are entitled to twice as much as half-blood siblings. Thus, each of the half-blood siblings of J will get 1/7, while each of the full-blood siblings will get 2/7. If G and L is dead, M and U can represent them. Even in reserva troncal, representation is allowed, as long as the representative is himself a relative within 3 degrees of the descendant propositus. Thus, the 1/7 of G will go to M and the 2/7 of L will go to U – they inherit by representation. By the way, this is the only situation where there is representation in the collateral line. Generally, there is no representation in the collateral line and this is the only exception – when nephews and nieces survive with at least one uncle or aunt. M and U are nephews who survived with their uncles and aunts H, I and K. If all of the siblings of J are dead, the only survivors would be the nephews and nieces. This time, the nephews and nieces will Transcribed by: Bjone Favorito

be inheriting in their own right. As such, the division will be per capita, not per stirpes, but still applying the rule of double share for ful-blood collaterals. The latter rule applies not only to brothers and sisters, but also to nephews and nieces – hanggang dun lang, grand nephews and nieces – hindi na yan. Thus, S, T and U will get twice as much as M, N, O, P, Q and R – 1/12 for each of the half-blood nephews and 2/12 for each of the pure-blood nephews and nieces. If M is dead but is survived by V, and U is dead survived by W, V and W will no longer participate. They cannot represent M and U. Why? There is no right of representation in favor of grand nephews and grand nieces. Moreover, the reservation is established only in favor of the relatives of J within 3 degrees – V and W are already 4th degree relatives, thus, cannot participate anymore.

Let’s go back to the previous illustration where X is the descendant propositus. Let us further assume that when X died intestate, his entire estate was worth P10M comprising of the land donated by A which was worth P4M and other properties from other sources worth P6M. Thus, the entire P10M is inherited by G. Will there be reserva troncal? YES. Will the reserva cover the entire estate? NO, the other properties did not come from an ascendant, brother or sister by gratuitous title, and only the land will be covered by the reserva. Will the reserva cover the entire land? YES. Why? X died intestate, meaning the entire estate passed by operation of law to G. Therefore, every single item within that estate which previously came through gratuitous title from an ascendant, brother or sister will be completely covered by the reserva. You don’t apply the reserva minima and maxima if the descendant propositus died intestate. You only apply either reserva maxima or reserva minima if the descendant propositus died with a will. Page 55

Let us assume that X died with a will stating “I give my entire estate to my mother G.” Under the theory of Reserva Maxima – as much of the reservable property as can be contained in the legitime. In other words, hangga’t kakasya yang land sa legitime, isaksak mo sa legitime. So the legitime of G is ½ of P10M or P5M and the land which is P4M can be contained in the legitime. So, under the theory of reserva maxima, the entire land is reservable. The Reserva Minima takes into account the fact that all of these properties passed to G partly by will, and partly by operation of law. So, ½ of the land passed by will and the other half passed by operation of law. Therefore, under the theory of Reserva Minima, only ½ of the land is subject to the reserva.

(3) Loss of the property without the fault of the reservista. (4) Waiver by all of the reservatarios – if for example there are 10 qualified reservatarios and 9 of them had already waived, but there remains one who does not want to waive, the reserva troncal continues in its entirety. (5) Prescription (6) If the reserved property is somehow registered as a free property as when the reserva was not annotated in the title, especially so when it has already been acquired by innocent purchasers for value who had relied on the certificate of title.

Which is the better view? On one hand, Maxima would better serve the purpose of Reserva Troncal because the entire property can return to the blood-line from which it came. But Minima, on the other hand, is more fair and reasonable as it does not ignore the fact that the properties had been transmitted partly by will and partly by operation of law. Just remember, these two theories are relevant only when the descendant propositus dies with a will. Otherwise, or if he dies intestate, forget about maxima and minima.

How is the Reserva extinguished? (1) Death of the reservista – the rights of the reservista is terminated and passed to the reservatarios. (2) Death of all of the reservatarios – kailangan lahat mamatay, pag may isang matira sakanya mapupunta yung reserved property. Transcribed by: Bjone Favorito

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Collation

Recall the provisions of 905 – there can be no waiver of future legitime, and there can be no valid compromise with respect to future legitime. Any such waiver or compromise is considered to be void, but the compulsory heir concerned is obliged to bring to collation whatever he may have received by virtue of the waiver or compromise. This brings us to the concept of Collation – ano ba ito? When a person dies, whether with a will or intestate, there is always a process of collation. There are actually three meanings of the term, as used in the Civil Code. First meaning: collation as Addition – meaning, the value of all properties which were gratuitously disposed of by the descedent during his lifetime are added to the estate. In other words, it is the mathematical process of adding the value of such properties to the estate. Second meaning: collation as Charging or Imputation – all gratuitous dispositions made in favor of compulsory heirs are generally charged against their legitimes and considered as an advance of the legitime. Gratuitous dispositions made in favor of third persons who are not compulsory heirs are, on the other hand, charged against the free portion. Third meaning: collation as the Actual Restoration of the property. But commentators and civilists are practically unanimous in saying that this is not really collation. This happens only when a donation is held to be totally inofficious, the property itself would then had to be returned. Transcribed by: Bjone Favorito

Thus, we concern ourselves with only the first two meaning of collation – in the sense of addition, and in the sense of charging or imputation. In collation as a process of addition, the purpose of adding the value of all gratuitous dispositions made by the decedent during his lifetime to his estate is to determine the total hereditary estate which will, in turn, be the basis for determining the legitimes of the compulsory heirs. The Civil Code gives us specific rules on collation. I refer to 1061 to 1077. Practically all gratuitous dispositions are subject to collation. There is only one situation where certain gratuitous dispositions made are completely not subject to collation, I refer to the provisions of 1067 – ‘yan lang. In the other provisions within 1061 to 1077, if the law says “shall not be subject to collation” it only means that it will not be charged against the legitime, but it will still be collated in the sense of addition. It is only in 1067 that the law means exactly and absolutely not subject to collation. So what are these items under 1067? (1) Support; (2) Education; (3) Medical attendance, even in the case of extra-ordinary illness; (4) Apprenticeship; (5) Customary gifts; and (6) Ordinary equipment This means, if you are confined in a hospital and got admitted in ICU, and your father spent P3M for the hospitalization, Page 57

the P3M will not be considered in the distribution of the estate when your father dies. It will not be added to the value of the estate, and will completely be ignored.

‘yan, milyon ang ibibigay dyan. Election expenses are charged against the legitime of the child concerned. Same thing with fines and indemnities paid by the parents for their children.

Lahat ng nakain mo, kahit malakas ka pa kumain simula nung maliit ka, support ‘yan – not covered by collation, you don’t have to worry.

Donations given to a daugther-in-law or a son-in-law are charged against the free portion. This is because an in-law, regardless of the fact that you are the favorite in-law, is not considered an heir and not entitled to any legitime.

Customary gifts like yearly birthday gifts and pamasko – those will not be subject to collation. Pag dating sa Education, we distinguish between tertiary or college and the education before that. 1067 covers only up to highschool level, this will completely not be subject to collation. Pero yung na gastos sa’yo pagdating mo ng college, that is covered not by 1067 but 1068 – expenses incurred by the parents in giving their children professional, vocational or other career. So even then, you don’t have to worry. In other words, the value or the amount spent by your parents in sending you to college will be added to the estate, but when it comes to charging or imputation, that is not considered as an advance on your legitime. That is chargeable against the free portion. Kasama dyan yung incidental expenses, not just the tuition. Like yung mga nagastos sa pag bili ng mga libro for example, is generally not chargeable to the legitime but rather against the free portion, UNLESS otherwise provided by the parent, in which case, whatever the parent would have spent if the child simply stayed at home will be taken into account; or UNLESS there is a clear impairment of the legitime of other compulsory heirs.

May mga magulang na mahilig magpa kandidato ng kanilang mga anak kahit wala naman kapana-panalo. Gagastahan Transcribed by: Bjone Favorito

Donations given to grandchildren, you remember the special rule – Assume that X has two children A and B, then B had a son C. X donated a parcel of land to his son B, and also donated to his grandson C a car. X dies. The value of the land will have to be collated together with the value of the car. When the time to charge or impute the donations has come, the value of the land will be imputed or charged against the legitime of B. The value of the car will be charged against the free portion. This is because C will not inherit – buhay pa yung tatay nya. Let us assume, however, that B sold the land to Z. After selling the land, he spent the entire proceeds thereof in just one whole night at the casino – ubos yung P10M, and then he dies. C will now be inheriting from X. Under this situation, even if C did not benefit from that land, he is obliged to bring into collation not only the value of the car, but also the value of the land – that is the rule for grandchildren. In this regard, you have the provisions of 1064. Remember also the special rule for wedding gifts consisting of jewelry, clothing and outfits under 1070 – to the extent that they do not exceed 10% of the free portion, these wedding gifts consisting of jewelry, clothing and outfit will be charged against the free portion. Any excess over the 10% limitation will be charged against the legitime of the child concerned.

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Take note that if the testator had donated a property to a compulsory heir, and in the deed of donation he said “This donation is irrevocable.” That donation is still subject to collation. This was made clear by the SC in Deroma vs CA.

Let’s assume that X has four legitimate children: A, B, C and D. W is the wife of D, and E is the son of B. During the lifetime of X, he made the following dispositions and incurred the following expenses: (1) spent P300,000 for the hospitalization of A; (2) spent P30,000 for the campaign of B in running for public office; (3) gave to grandson E a ring worth P10,000; (4) gave to daughter-in-law W a bracelet worth P20,000; (5) gave D jewelry worth P40,000 on account of wedding; (6) spent P10,000 for C’s college education. X died with a will wherein he said “I institute my four children as my heirs.” His gross estate is P1M, and had debts amounting to P500,000. So what should be done in distribution? First step: deduct the debts and other charges from the gross estate. You are then left with a net estate of P500,000. Next is collation in the sense of addition – you add the value of all gratuitous dispositions. Applying 1067, we completely ignore item (1). Thus we only collate (2) to (6), the total amount of which is P110,000. Supposing that the bracelet given to W, although worth P20,000 only before, is now worth P200,000, what amount should be collated? Remember, when it comes to collation, it is always the Transcribed by: Bjone Favorito

value of the property at the time of the donation. Any subsequent increase or diminution will be for the account of the donee. So we add P110,000 to the net of P500,000, arriving at a total hereditary estate of P610,000. Next step: after determining the total hereditary estate, you are now ready to determine the legitimes of the compusolry heirs based on the total hereditary estate which was arrived at only after collation. Thus, the legitime of the legitimate children – ½ of P610,000. A, B, C and D will each be entitled to P76,250. Since the legitime is half, the other P305,000 is our free portion. Next step: collation again. This time, in the sense of imputation or charging. We will go through one by one the items which we had earlier collated. Election expense for B – charge to legitime, thus deduct P30,000 from the P76,250. This is considered an advance to his legitime. P10,000 worth ring of E – B is still alive, thus, the value of the ring will be charged against the free portion. The bracelet given to W – basta in-law, considered a donation to a stranger. Charge again against the free portion. Wedding gift of jewelry to D – under 1070, up to 10% of the free portion is charged against the free portion, the rest will be against the legitime of the heir concerned. The 10% is P30,500 and the value of the gift is P40,000 resulting to an excess of P9,500. That excess will be charged against D’s legitime. C’s college education – we apply 1068, meaning we generally charge it to the free portion, unless otherwise provided by the parent or unless impairment of legitimes.

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After all of these deductions, we are left with P234,500 in the free portion. What do we do with this? Divide by four – giving us P58,625, which will be added to each of their legitime. The total amount to be received by all of them is P500,000, which must always be equal to the Net Estate. Summary:

Let’s assume that X has two legitimate children A and B, one illegitimate child C, and a surviving spouse W. Further assume that sometime in 1975, A, the eldest, demanded from his father his inheritance. X relented and agreed, giving A a parcel of land at which time was worth P20,000 evidenced by a compromise agreement between the two of them wherein A waived his right to any future inheritance from X. When X died subsequently, he left a will where he said “I institute as my universal heirs my children B and C.” W and A were not mentioned. Before proceeding, is there preterition? NO, because A already had received something and W is not a compulsory heir in the direct line. At his death, X’s gross estate was P200,000 and debts amounting to P100,000, thus, having a net estate of P100,000. We then collate the value of the land donated in 1975. If that land is already worth P2M, we still collate only P20,000. Therefore, our total hereditary estate is P120,000. Having determined the THE, we now determine the legitimes. Kasama parin si A sa pag determine ng legitimes becaue that waiver or compromise is not valid. A and B is therefore entitled to P30,000 each as a legitimate child by way of legitime. The surviving spouse is entitled to the same share as one legitime child, thus, also P30,000. Being illegitimate, C is entitled to ½ of the share of a legitimate child or P15,000. The remaining P15,000 will go to whom? That will go to B and C because they are the instituted heirs. Thus, they both get an additional P7,500. We also collate, in the sense of charging or imputation, the value of P20,000 which was earlier donated to A. Therefore, while A is entitled to a legitime of P30,000, what will actually be given to him is only P10,000, kasi matagal na nya natanggap yung P20,000 – yan ang ibig sabihin ng charging or imputation.

Transcribed by: Bjone Favorito

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Summary:

Second, they come ahead in time than the legacies and devises – priority in time is priority in right. Thus, only after you have charged the donations inter vivos against the free portion, should you attempt to satisfy the legacies and devises in the will. As among the legacies and devises, what is the order of preference in satisfying them? This is very simple: You first satisfy those which are expressly declared preferencial by the testator. Second, all others pro rata – yun lang. How do we apply these rules? Example: Let us assume that X has three legitimate children A, B and C, and W as the surviving spouse. During his lifetime, he made the following donations inter vivos: 1975 – a parcel of land worth P20,000 to his son A; 1988 – another parcel of land worth P70,000 to his friend F;

In distributing the estate, the principal provision or rule to take into account is 911. Whatever happens, the legitimes of the compulsory heirs will always have to be protected. If, in the will of the decedent, there are legacies and devises, and during his lifetime he also made various donations inter vivos, and the free portion is not sufficient to completely cover the value of all legitimes and the legacies and devises, what is the rule? Preference is given to the donations inter vivos. Before you even attempt to charge the legacies and devises against the free portion to satisfy them, unahin mo muna i-charge sa free porions yung donations inter vivos? Why are they preferred as against legacies and devises? First, because donations inter vivos are basically irrevocable. You cannot allow the testator to, in effect, revoke his earlier donations by simply giving so many legacies and devises. Transcribed by: Bjone Favorito

X made a will wherein he instituted A, B, C and W as his heirs. In the same will, he made the following legacies and devises: House and lot worth P70,000 to friend G; Car worth P30,000 to friend H; P60,000 Cash to friend I. Total legacies and devises is P160,000. When X died, he had a gross estate of P400,000 and debts amounting to P40,000, thus, net estate is P360,000. Again, next step is collation as addition. Do not ever make the mistake of collating legacies and devises, nasa will ‘yan e, hindi pa naibigay ‘yan. We collate only the two donations, giving us a total hereditary estate of P450,000.

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For the legitimes, half of the THE is P225,000, divded by three, giving us P75,000 for each of the legitimate children and P75,000 also for W having the same as one legitimate child. Thus, total legitimes is P300,000. If we deduct the total legitimes from the THE, we will be left with a free portion of P150,000. We now go through collation as imputation. Against what part of the estate do we charge the donations given to A? To the legitime, thus, while his legitime is P75,000, he will now get only P55,000. The next is the P70,000 land donated to F – this is chargeable against the free portion, leaving it with a balance of only P80,000. Note what I said earlier – before we even attempt to satisfy the legacies and devises, inuuna natin i-charge against the free portion the donations inter vivos. This is what I meant when I said earlier that donations inter vivos are preferred over legacies and devises. The P80,000 remainder will be given to the legacies and devises. Obviously they cannot all be fully satisfied, and since the testator did not express any of them to be preferred, they all be reduced proportionately. If the testator had said that the legacy in favor of I is a preferred legacy, then you give P60,000 to I and the remaining P20,000 ang pag hahatian ni G and H. In the absence of any express preference, all of them will be reduced proportionately. As a matter of fact, it is very clear that reduction is exactly ½ because from a needed P160,000, only P80,000 is available. So, the P70,000 is reduced to P35,000 and so on.

Transcribed by: Bjone Favorito

This illustration brings us to 912 – if the devise consists of real property which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb ½ of its value. In a contrary case, it will go to the compulsory heirs, with the corresponding obligation to reimburse each other. Having the reduction of exactly ½, the question now is who will get the house and lot? Will it go the heirs of X with the obligation to pay P35,000 to G, or vice-versa? If we apply 912 literally, it would seem that the property should go to the heirs. 912 says that it will go to the devisee if the reduction does not absorb ½ of its value. Thus, if it is exactly ½ literally, dapat mapunta sa heirs. But I think the better view expressed by Justice Paras and Tolentino is that: if the reduction is exactly ½, it should go to the devisee. Why? We go by the intention of the testator, and such intention is obviously that the house and lot to go to the devisee. As much as possible, we should respect that intention. What about the car? It is personal property, not real, but then again, it is also a property which cannot be conveniently divided. What rule would apply? Although 912 mentions only devises of real property, I do not see any reason why the same rule should not also be applied to legacy of personal property which cannot be conveniently divided. Otherwise, what rule are you going to apply? Thus, 912 applies will equal force to a legacy of personal property which cannot also be conveniently divided.

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DISINHERITANCE

You can only deprive a compulsory heir of his legitime through a valid disinheritance, and you can only have a valid disinheritance through a valid will. Suppose a father gets very angry at his son because of the latter doing something terribly wrong, he said “You will not inherit anything from me. I am disinheriting you.” – wala ‘yon. A disinheritance can be made only through a valid will. The cause for the disinheritance should be stated in the will and must be one recognized by law. For example, a father said in his will “I disinherit my youngest son because he looks more like our neighbor than me” – that is not a valid disinheritance. The disinheritance must be based on an existing cause, it must already be committed. It cannot be made conditional or upon the happening of an event. For example, the father says “If my daughter should live a dishonorable and disgraceful life, she will be disinherited.” E wala pa naman ginawang anomalya yung kanyang anak. But three months later, the daughter eloped with the family driver who is a married man, and they started cohabiting. Is there a valid disinheritance? NO. When the disinheritance was made, there was no existing cause. Of course, it must also be a true cause. While a disinheritance cannot be made conditionally, the revocation of the disinheritance may be made conditional. For example, the daughter has eloped with a married man and is cohabiting with him. So the father says “I hereby disinherit my Transcribed by: Bjone Favorito

daughter because she is living a dishonorable and disgraceful life. If, however, she should mend her ways, leave that man, and return to our home and serve me well, then this disinheritance shall be revoked.” Is there a valid disinheritance? YES, because there, what is conditional is not the disinheritance itself, but the revocation. A disinheritance cannot be partial. Why? Because disinheritance is based on the offense committed against the testator. The testator is offended or he is not, hindi pwede sabihin na “half-offended” lang. A father cannot say “I disinherit my son because he maltreated me, and I deprive him with respect to ½ of his legitime.” – that is not a valid disinheritance, the son will still be able to inherit. By the way, who has the burden of proof if the disinherited heir questions the validity and basis of the disinheritance? It is on the other heirs who wants to uphold the disinheritance.

You find the Grounds for a valid Disinheritance in 919 for children or descendants, 920 for parents or ascendants, and 921 for a spouse. Let us go over some of these grounds, anyway many of them are common grounds. One of the grounds for children or descendant – if the child or descendant has been found guilty of an attempt on the life of the testator, his spouse, ascendants or descendants. “Found guilty” implies that there is a conviction by final judgement. Mere attemept is sufficient. If you try to kill your brother and you are found guilty therefor, your father can disinherit you because you are guilty of an attempt against the life of a descendant of the testator. Page 63

Supposing you are extended an absolute presidential pardon, can you still be disinherited? YES. The absolute pardon does not erase the offense which you have already committed against the testator. You attempted to kill your father, but you were not prosecuted because your family wanted to avoid a scandal. Can you be validly disinherited? YES. Not because of conviction, but for maltreatment which can be by means of either words or deeds. Minura mura mo yung tatay mo sa harap ng maraming tao – that is maltreatment, you can be validly disinherited.

Another ground – if a child or descendant accuses the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be groundless If you testify in a criminal case against your father, and your father is subsequently acquitted by the court because of reasonable doubt, can you be validly disinherited? I do not think so because acquittal based on reasonable doubt means that the accusation is not entirely groundless.

Another is – when a child or descendant is convicted of adultery or concubinage with the spouse of the testator – Let’s say you are 26 years old. Your father, who is a widower, marries a sweet young thing of 21, at tinalo mo yung step mother mo and you are convicted. That case is covered in the provision – it does not necessarily involve incest.

Transcribed by: Bjone Favorito

If a child or descendant, without justifiable cause, refuses to support the parent or ascendant who disinherits him – if you look at this provision, at first glance, it appears that this ground is useless. Why? What is the basis of support? Necessity as well as the corresponding ability on the part of the person who is obliged. In other words, a parent can demand support from a child only if the parent does not have money to support himself, and the child, on the other hand, has the means to provide support. Otherwise, if the parents have money, he would not even have the right to demand support from the child because the basis of support is necessity. Example, your father does not have any money, thus, demanded support from you. Without justifiable cause, you refuse to support him, so he disinherits you. Anong nawala sa’yo? Wala naman siya pera e, ikaw yung mayroon, so may nawala ba? Meron din, for all you know, maybe the following week he wins P200M in the lotto, tapos ka, you are validly disinherited. Therefore, it is not an entirely useless ground. There is the risk of losing inheritance to subsequently acquired properties.

Leading a dishonorable or disgraceful life – in this connection, remember that this ground requires the element of habituallity or continuity. A child or descendant cannot be disinherited with this ground upon the testimony of a single act. For example a father comes home unexpectedly early one afternoon, and, to his shock, he caught his favorite daughter having the time of her life in her own bed with the family driver who is a married man. There is no basis for disinheriting that daughter – it is only a single act. Ibang usapan na if the daughter actually cohabits

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with that married man – that is already leading a dishonorable or disgraceful lfe.

unless there has been a reconciliation between the two of them. “You cannot be more popish than the pope.”

Mere conviction of an offense which carries with it civil interdiction – the offense need not be committed against the testator or any close family member, it may have been done against a total stranger. What is the reason for this? Because civil interdiction is merely an accessory penalty attached only to afflictive penalties. When you are convicted of an offense which carries with it civil interdiction, that means you must have done something terribly wrong, and having committed a very serious offense, there is deemed to be a very wide moral chasm which separates you from your parent.

If, however, after your father tried to kill your mother, he was prosecuted and convicted by final judgement, I submit that despite the reconciliation between them, you can still disinherit your father. Not on the basis of (8) of 920, but on (2) – on the basis that the parent or ascendant had been convicted of an attempt against the life of a testator, his spouse, ascendants or descendants UNLESS, there has been a reconciliation between your father and yourself. Because then, the general rules on reconciliation under 922 would apply – reconciliation will deprive the offended party of the right to disinherit, and will also render ineffective any disinheritance previously made. When is there reconciliation? Reconciliation is much more than mere pardon. A lot of people on their death beds would generally extend an absolute general pardon to all the people who may have offended them which is quite natural for persons who are at the brink of death – that is not the reconciliation contemplated of. Reconciliation means that the pardon is extended to the offender and the offender accepts the pardon, and there is a restoration of the former relations between the parties – that is reconciliation.

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.

The first one in the grounds for parents and ascendants is – when the parents have abandoned their children or induced their daughters to lead a corrupt or immoral life or had attempted against their virtue With respect to abandonment, it applies to both male and female members of the family. The second part, inducement to lead a corrupt or immoral life or attempt against their virtue, applies only to female members of the family – daughters and granddaughters. Mere attempt of one parent against the life of the other – gives the children and descendants the right to disinherit the parent. If your father tried to kill your mother, you can disinherit your father, Transcribed by: Bjone Favorito

Remember one of the grounds of disinheriting a spouse is if a spouse has given cause for legal separation – this used to be under the Civil Code, but now under 55 of the Family Code, sangkatutak ang grounds for legal separation. Even mere alcoholism, repeated physical violence or even grossly abusive conduct are grounds for disinheritance. Mahilig ka makipag inuman sa kabarkada mo sa bahay ninyo, at pag lasing ka na tatawagin mo asawa mo “Hoy tabachoy, lagyan mo nga ng pulutan dito” pag paulit-ulit ‘yan grossly abusive conduct na ‘yan. You can be disinherited for giving Page 65

cause for legal separation. Just have a run down on the grounds for legal separation, as there is nothing complicated about them I call your attention to 923 – if a person is disinherited, but he happens to have children and descendants, his children and descendants will be able to get at least the legitime. What is the reason for this? The law is just being fair and equitable and even compassionate to the children of a validly disinherited heir. If your grandfather validly disinherits your father, it means your father must have done something terribly wrong, mabibigat yang grounds for disinheriting a child or descendant especially in a Filipino or Asian culture. It also means you are very unfortunate that you have that kind of father. If the law would not allow you to inherit, not even the legitime, that’s double jeopardy – sobra sobrang parusa ‘yun. As it is, you are already unfortunate for having that kind of a parent, so the law allows you to get the legitime that your father would have inherited.

this case, D will not just get his legitime. He will share together with A, B and C the P120,000 by way of intestacy, thus, each of them gets P30,000. Let us assume this time that the testator said “I disinherit my son D.” without specificying the cause, and “I give my entire estate to my children A, B and C.” so there is no preterition. This is where D would be limited to his legitime. Legitime for the children is ½ of the estate, which is P60,000, thus, each of them is entitled to a legitime of P15,000. The other P60,000 in the free portion, under the testament of X, shall go to A, B and C only, thus, each of the three will get a total of P35,000, while D only gets P15,000. Supposing that D is validly disinherited – he does not get anything. But if he has two children E and F, the legitime of P15,000 will go to them under 923.

If a compulsory heir is invalidly disinherited, what does he inherit? The usual answer is, he still gets his legitime. An imperfectly disinherited heir is entitled at least to his legitime. But there may be situations where he will get something more than his legitime. When would that be? If the testator did not validly dispose of his free portion. In that case, the imperfectly disinherited heir will get not just his legitime, but also his entire intestate share. Let’s assume that X has four legitimate children A, B, C and D. He says in his will “I disinherit my son D.” without saying why – that is imperfect. Then he says “I institute as my sole and universal heirs my children A and B.” C is not mention, he is obviously preterited. He leaves an estate of P120,000, how do we distribute? In Transcribed by: Bjone Favorito

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LEGACIES and DEVISES

Can the testator give, by way of a valid legacy or devise, something which he does not own? YES, as long as the testator knows that he is not the owner. If the testator gives out, by way of legacy or devise, something which he erroneously thought he owned, the legacy or devise is void, UNLESS he subsequently acquires the thing by whatever title. If I said “By way of legacy, I give you my building at 1710 Donada Street, Pasay.” Akala ko saakin, hindi pala. Is there a valid devise? NO. But two years after the execution of the will, I bought that building from the owner, and I remained the owner thereof until my death. Is there now a valid devise? YES. My subsequent acquisistion has cured the defect.

The testator cannot also give something which already belongs to the legatee or devisee. For example “I give X, by way of legacy, the car with the plate PUO-117” when I made my will, he was already the owner of that car – there is no valid legacy. Would it make any difference if after I executed my will, X sold the car to a third person? NO. The legacy remains void even if the legatee or devisee subsequently alienates the thing, UNLESS the legatee or devisee alienates the thing in favor of the testator himself. The subsequent acquisition of the testator should be considered as a clear indication of his intention to validate his legacy or devise.

Transcribed by: Bjone Favorito

Supposing that I give you, by way of devise, the building located at 1710 Donada St., Pasay, which I knew was owned by Mr.ODC – alam kong s’ya at hindi ako ang may ari. Is there a valid devise? YES. There is an implicit order for my estate to acquire it from Mr. ODC so that it can be given to you. But what if Mr. ODC does not want to sell it? You will just be given the value of the property. I say in my will “although I am the owner of only ½ of the building at 1710 Donada St., Pasay, the other half belonging to Mr. ODC, I give the entire property to my friend Eugene.” Is there a valid devise? YES. Does the devise cover the entire property? YES. With respect to the ½ already belonging to me, there is no problem. To the half belonging to Mr. ODC, there is an implied order to acquire that ½ so that it can also be given to you. Supposing that before my death, the co-ownership is terminated and, in the agreement I entered with Mr. ODC, we agreed that the entire property will belong to him and I was paid the value of my ½ interest, thus, when I died, the entire property belonged to Mr. ODC. Is there still a valid devise in favor of Eugene? YES. There is still a valid devise with respect to the ½ belonging to Mr. ODC. With respect to the ½ I used to own, there is no longer a valid devise because there has been a revocation by alienation when I agreed that the entire property will be given to Mr. ODC. By way of devise, I give you the building in 1710 Donada St., Pasay, which I knew is currently owned by Mr. ODC. You did not know that I had that provision in my will and you bought that property from Mr. ODC two years after the execution of my will, so after my death, you were already the owner of the building. Would you have any rights under such circumstances? YES. Since you bought the property, you are entitled to reimbursement of the price Page 67

you paid for your purchase. If, however, Mr. ODC simply donated that property to you, you have no right to claim any reimbursement because your acquisition would have been by gratuitous title.

If the property given is pledged or mortgaged to secure a recoverable debt, regardless of whether the pledge or mortgage was constituted before or after the execution of the will, the estate is obliged to pay the debt and to free the property from that pledge or mortgage – Although 934 mentions only pledge or mortgage, the same rule applies in the case of antichresis where the security given for a loan is real properties delivered to the creditor, and the creditor is allowed to gather the fruits with the obligation to apply the fruits to the payment of principal and interest, pursuant to a written agreement. Any other charge on the property will go with it. So if there are easements existing on the property – not covered by 934, so no obligation on the part of the estate to work for the extinguishment of the easement. 934 covers only those encumbrances which are constituted on property to secure a recoverable debt.

In case of a legacy of a credit or a condonation of a debt, remember the rule – these legacies are rendered ineffective the moment the testator brings an action for the recovery of the debt. For example, D owes me P1M and I said in my will “I give my friend F by way of legacy my credit of P1M against D.” that is a legacy of a credit. If I bring an action for collection against D prior to my death, the legacy is rendered ineffective.

Transcribed by: Bjone Favorito

There must have been an actual case filed, hindi pwedeng demand letter lang. D owes me P1M and I say in my will “I hereby give D, by way of legacy, the condonation of his debt of P1M.” That is a legacy of condonation. If I bring an action against him, that is also rendered ineffective.

If the testator is a debtor, and he gives a legacy to his creditor, the latter will be entitled to collect not just his credit but also the legacy. I owe you P40,000. In my will, I said “I am giving you, by way of legacy, P30,000.” How much can you collect all in all from the estate? P70,000 – you can collect your credit of P40,000, and the legacy of P30,000. Supposing that I said in my will “I order that the legacy of P30,000 be applied to your credit.” How much can you collect then? P40,000 – only the amount of the credit. Even if you are able to collect the P30,000 legacy, you should apply it to your credit, thus, you are still entitled to P10,000.

You distinguish the rules applicable to a legacy of generic personal property and a devise of a generic real property – If the testator gives, by way of legacy, generic personal property, and after his death, it is discovered that the estate did not own any property of that kind, there is still a valid legacy.

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For example the testator said “I give my friend F, by way of legacy, a car.” After the death of the testator, wala naman pala syang kotse. Is there a valid legacy? YES. The estate will simply acquire a car and give it to F. In the case of a devise of a generic real property, if there is no property of that kind in the estate, the devise is void. For example, the testator said “I give my friend F, by way of devise, 10 hectares of rice land.” After the testator’s death, it is discovered that, while he owns hundrends of hectares of sugar and coconut land, he did not own a single square meter of rice land – the devise is void, applying the provisions of 941.

Remember the rules for legacies for support and education – a legacy for education lasts even beyond the age of majority, until the legatee is able to finish some professional or other course, provided he pursues his studies diligently. – a legacy for support lasts during the entire lifetime of the legatee. When does a legatee or devisee acquire a right? With respect to pure and simple legacies and devises, the legatee and devisee acquires a right from the moment of death of the testator. But what about ownership, as distinguished from the right? When does the said legatee or devisee acquire ownership of the thing? Again, if the legacy or devise is pure or simple, and the thing given belongs to the testator, then ownership should be considered acquired also at the moment of the testator’s death.

Transcribed by: Bjone Favorito

In 911, we discussed earlier that if the free portion is not sufficient to cover all the legacies and devises, what is the order of preference? First, the preferential legacies and devises, and second, all others pro rata. In 950, however, we come across another order of preference which is quite longer. The order is: (1) Remuneratory legacies and devises; (2) Preferential legacies and devises; (3) Legacies for Support; (4) Legacies for Education; (5) Legacies and devises of specific and determinate things which form part of the estate; and (6) All others pro rata. The question is, when do you apply the order of preference in 950? Only when the conflict is exclusively among the legacies and devises. In other words, when there are no legitimes to be protected and no donations inter vivos, at puro sa legacies at devises lang ang conflict – that’s the time you apply 950. Otherwise, if there are donations inter vivos, you apply 911. By the way, when is a legacy or devise considered remuneratory? The same concept with remuneratory donation – if it is intended to recompense previous services which does not constitute demandable debts. For example pinamanahan mo yung kaklase mo na palagi nag didikta sa’yo pag nag rerecite ka – that is remunatory. Yung kapit-bahay mong doktor na palagi mo kinukunsulta sa umaga, at dahil kapit-bahay nireresetahan ka ng walang bayad – if you give him something by way of your will, that will be remuneratory in character.

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957 gives us three situations or causes which would render the legacy or devise ineffective: (1) Transformation; (2) Alienation; and (3) Loss. When is there transformation? If the thing given by way of legacy or devise is changed in such a way that it has not retained its form or denomination. In these sense, the meaning of form is physical appearance, and denomination is the name by which the thing is called. For example, if a table has been given to you by way of legacy, but before the testator’s death, the testator used the table as wood material in making a chair – that is transformation, there is a change in the physical appearance and in the denomination. The testator gave you, by way of devise, his farm in Bulacan. Before his death, he converted that farm into a resort wherein he constructed pools and cottages – that is also transformation which renders the devise ineffective. You were given, by way of legacy, a ring with a diamond piece. Before the death of the testator, he had that ring converted into a necklace or pendant – your legacy has been rendered ineffective.

When it comes to alienation, the only question you ask is: Did the testator intend to permanently part with the ownership of the thing? If the answer is YES – forget about the legacy or devise, it has been rendered ineffective.

If the Loss took place during the lifetime of the testator, the legacy or devise is ineffective regardless of the cause of the loss. For example, the testator gives you, by way of legacy, a grand piano. One day before his death, because of his frustrations ibinalibag nya yung piano or he burned the piano. Regardless of the cause of the loss, as long as it took place during the lifetime of the testator, it will render the bequest in your favor ineffective. If the loss occurred after the death of the testator, you should determine the cause. If the loss is caused by a Fortuitous event, without the fault of the heirs, it renders the bequest in your favor ineffective. But if the loss happened because of the fault of any of the heirs, you can recover the value of the property. As a matter of fact, that is one of the circumstances under the law where solidarity is imposed. Thus, if several heirs take possession of the hereditary estate after the death of the testator, they are solidarily liable for any loss.

If the testator gives you something in his will, and later on he sells that thing – the legacy or devise in your favor is rendered ineffective by alienation. UNLESS the alienation is temporary in character, as in the case of a sale with a right to repurchase and he in fact repurchased it.

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Last point under this topic is 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. The only rule applicable here is the rule on proximity, the other rules like preference between lines or representation does not find applicability here. You simply count the number of degrees, whoever are the nearest relatives in terms of degrees, whether in the direct or collateral line, sya ang mag mamana.

Notice that neither did we apply the preference between lines. Ordinarily in succession, the ascending line is preferred over the collateral line. But as said, other rules are not applicable, only proximity find application in 959.

However, be careful in applying this provision. If, for example, the testator X says in his will “I give my house and lot in Quezon City to those who are entitled thereto.” You do not apply 959 in this case. What do you apply? You give it to those who are entitled thereto under intestate succession. If, however, he instead said “I give my house and lot in Quezon City to my relatives.” 959 would be applicable. Assume further that his relatives are the following: His father (F)is dead but his Grandfather (GF) is still alive; His Uncle (U), the brother of his father, is also alive; A and B, his two brothers are still alive; His third brother C is dead, but is survived by a son D; and His wife (W) is still alive. Applying 959, we consider those who are nearest in degree, thus, we simply count each of their degrees: GF – 2 degrees A and B – 2 degrees U – 3 degrees D – 3 degrees So who will inherit? GF, A and B. What about D, can he not represent C? NO, there is no representation under 959.

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INTESTATE SUCCESSION

Intestate Succession is much simpler than Testamentary Succession. You just remember certain important points. Remember the rule on Preference between lines – that is an underlying principle in intestate succession – the direct descending line is preferred over the direct ascending line. On the other hand, the direct ascending line is preferred over the collateral line. This is the reason why if there are legitimate children or descendants, the legitimate parents or ascendants are excluded. If there are no children and descendants but there are parents and ascendants together with brothers and sisters of the deceased, the parents and ascendants exclude the brothers and sisters, who are merely collateral relatives.

Also remember the rule on Proximity – the nearer relatives exclude the more distant ones. This rule, however, must always yield to the order of intestate succession. Kahit na mas malapit ka, kung meron mas mataas ang rango sa’yo in the order of intestate succession, sorry ka. Thus, we should also remember the Order of Intestate Succession – there are two: the regular and the irregular order. You apply the regular order if the deceased is a legitimate person. Irregular order, on the other hand, is for an illegitimate person.

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Thus, numbers (1), (4) and (5) are common in both orders. The irregular order is shorter by one number. After number (5), the next is already the (6) State. In the regular order, number (6) is other collateral relatives within the 5th degree, the state is only number (7). In the regular order, number (2) is the legitimate parents and ascendants, then number (3) is the illegitimate children and other descendants. Itong parents at illegitimate children, magkabaliktad ang position sa irregular order. But take note, in number (3) of the irregular order, only the illegitimate parents are considered legal heirs, the other ascendants are not considered – the same rule as I earlier said in legitime. Pag ang namatay ay illegitimate person, the direct ascending line is hanggang illegitimate parents lang ang rights.

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Some of these heirs can concur, pwede mag sabay, while some exclude the others.

classes are in the 3rd degree, the uncle is excluded by the presence of C and D – proximity yields to the order of succession.

The legitimate children and other descendants excludes the legitimate parents and other ascendants, but they do not exclude the illegitimate children and the surviving spouse.

In connection with proximity, we also have to take into account the rules of Representation. Why? Because by the right of representation, a further relative becomes just as near.

The surviving spouse does not exclude the brothers and sisters. If the survivors are the spouse, brothers and sisters, what is the distribution? ½ for each class. But the surviving spouse excludes the other collaterals, as well as the state.

Right of Representation

Brothers, sisters, nephews and nieces exclude the other collateral relatives. If you die being survived by your brother and by a first cousin, the first cousin is excluded. The presence of illegitimate children in the irregular order is enough to exclude the illegitimate parents. If the person who dies is illegitimate, and he is survived by his illegitimate children, his illegitimate parents are excluded.

We previously said that the rule of proximity yields to the order of succession. Let’s assume that X is the decedent and he dies intestate. He is survived by his uncle U, his two nephews C and D – the children of his predeceased brothers A and B. If you count the number of degrees separating U, as well as C and D, from X, you will notice that they are all three degrees away. Ordinarily, if you are separated with the same number of degrees from the decedent, you should all inherit equally. But the fact remains that under the order of intestate succession, C and D belongs to category (5). The uncle, although also a 3rd degree relative, belongs to category (6). The presence of category (5) excludes those in (6). Thus, although both Transcribed by: Bjone Favorito

What are the rules of representation? (1) There is representation not just in intestate succession, but even in testamentary succession, but in the latter case, representation applies only to the legitime. If a compulsory heir is given a part of the free portion and he dies ahead of the testator, leaving his own children and descendants, he cannot be represented by such children and descendants insofar as the free portion is concerned. But he can be represented by those children and descendants insofar as his legitime is concerned. (2) There is representation only in the direct descending line, and NEVER in a direct ascending line. Your grandfather cannot represent your father. (3) There is no representation in the collateral line, EXCEPT when only the nephews and nieces survive with at least one uncle or aunt. (4) There is no representation in case of Repudiation. An heir who repudiates cannot be represented. If your father repudiates an inheritance from your grandfather, you cannot represent your

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father. However, an heir may represent him whose inheritance he has previously repudiated. To illustrate: X dies survived by his children A and B, and by C his grandson with B. Subsequently, B repudiates his inheritance from X, thus, C cannot represent B and everything will go to A. Let’s assume that B predeceased X. When B died, C repudiated the inheritance from B. Later on, X dies. Can C represent B insofar as the inheritance from X is concerned? YES. An heir can represent him whose inheritance he has earlier repudiated.

Another important point – if the person to be represented is a legitimate, the representative must also be legitimate. On the other hand, if the person to be represented is an illegitimate, the representative may either be legitimate or illegitimate.

Let’s assume that X has two children: A is legitimate; and B is an illegitimate. A has two children of his own: C who is legitimate; and D who is illegitimate. B also has two children: E who is legitimate; and F who is illegitimate. A and B both died ahead of X, thus, when X died, he was survived by C, D, E and F. Who can inherit by representation? In the case of A, only C can represent him because he is a legitimate, therefore his representative must also be legitimate. D is Transcribed by: Bjone Favorito

not allowed, you have the barrier between legitimates and legitimates under 992 – an illegitimate child cannot inherit ab intestato from the legitimate children or the other relatives of his parent, neither can those relatives inherit from him. In the case of E and F, they can both represent B because B is himself illegitimate. In the case of this line, according to Justice Jurado, F is a son of a gun, B is a bigger son of a gun, and X is the biggest son of a gun of them all, so no problem, there is no barrier. But even in the exercise of a right of representation, do not forget, the ratio of “two is to one” (2:1) should always be observed between legitimates and illegitimates. Thus, if B is supposed to receive P30,000 – P20,000 will go to E, while F will only get P10,000. The ratio should always be maintained.

Grandchildren always inherit by right of representation, EXCEPT if all of the children repudiates – that is the only time when grandchildren can inherit in their own right, applying the provisions under 969. Kapag lahat ng anak nag repudiate, at ang natira puro mga apo, applying 969, they are the next in degree, thus, they will inherit in their own right, not by right of representation. Therefore, the distribution will not be by stirpes but per capita.

I have earlier mentioned 992 – the barrier between legitimates and illegitimates, and that the reason is that there is supposed to be an animosity between them where the former looks down on the latter as a “product of sin” while the latter looks with Page 74

envy upon the former. However, the barrier applies only in intestate succession. If you have an illegitimate half-brother, there is nothing which can prevent you from instituting him as an heir. Also be careful on instances like the case of DelaMerced – in that case, there were brothers and sisters A, B, C and D. B had an illegitimate son S. Upon the death of A, his siblings B, C and D inherited his estate. Later on, B died, and upon his death, his son was claiming his entire estate. C and D opposed and said “teka muna, karamihan ng properties dyan ay galing kay A. You are illegitimate, you cannot inherit these properties.” Would they be correct, applying 992? NO. Instead, what should apply here is 777 – from the moment of death of A, successional rights were transmitted to B, C and D. Thus, when B died, the properties which he inherited from A were already his own. S is not inheriting from the legitimate relatives of his father B, but from his own illegitimate parent, thus, he is clearly entitled to inherit.

Intestate Shares Rule of Thumb: the legitimates always get ½, whether they be legitimate children or, in their absence, legitimate parents and ascendants. Survivors – Legitimate parents, Illegitimate children and Spouse: ½ to Legitimate parents ¼ to Illegitimate children ¼ to surviving spouse

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Survivors – Spouse and Brothers & Sisters, Nephews & Nieces ½ to Spouse ½ to Brothers & Sisters, Nephews & Nieces Basta sa intestate succession, walang matitira, unlike in the case of legitimes. This is somewhat similar to a “closing-out sale” – everything must go. Survivors – One legitimate child and Spouse: ½ to each of them. Survivors – Illegitimate children and Spouse: ½ to Illegitimate children, and other half to the spouse. Survivors – Legitimate children and Illegitimate children: For the distribution in this case, you have two theories – the concurrence and the exclusion. I suggest you follow the former. Let’s assume that X dies with two legitimate children A and B, and two illegitimate children C and D. The estate is P120,000. X dies intestate. Whether it is concurrence or exclusion, the safe thing for you to do is first give them their legitimes – always make sure that the legitimes are not impaired. We know that the ratio between legitimates and illegitimates is “2:1”, but do not apply this ratio directly. Why? If you do so, there would be a possibility that the legitime of the legitimates might be impaired in cases where there are numerous illegitimates and only few legitimates. So to make sure there will be no impairment, you first give them their legitimes. Thus, ½ of P120,000 is P60,000 – A and B are entitled to P30,000 each. Under the Family Code, the illegitimates are entitled to ½ of that of the legitimates, thus, P15,000 each for C and D. There would

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then be a remainder of P30,000. This remainder is where concurrence and exclusion would vary.

with respect to the part of the estate not disposed of by will, intestate succession will govern.

Under the exclusion theory, the P30,000 shall go to A and B to the exclusion of C and D. Why? Because they are first in the order of intestate succession. Thus, A and B gets an additional P15,000 each.

Without the legacy of P10,000, the distribution would have been: ½ or P60,000 to A and B; ¼ or P30,000 to C and D; and another ¼ will go to W. The problem with the existence of the legacy is the question of where to get this P10,000? From whose share? Remember the rule in a situation such as this – you satisfy the legacy by deducting it from the intestate share of the legal heir whose intestate share is bigger than his legitime.

Under the concurrence theory, the P30,000 will be spread out among all of them following the proportion of 2:2:1:1 to A, B, C and D, respectively. Thus, 1/6 or P5,000 each would go to C and D, and 2/6 or P10,000 each would go to A and B. Therefore, A and B will end up with P40,000 each; C and D will end up with P20,000 each. Note that the ratio of 2:1 is maintained – that is the concurrence theory, which, I submit, is the better theory because it takes into account the ratio which is established by law between legitimates and illegitimes.

When it comes to Adopted children, just treat the adopted child just like a legitimate child.

Another point I want to stress is the problem of Partial Intestacy or Mixed Succession. Let’s assume that X dies with a will that has only one provision wherein he said “I give P10,000 to my friend Kiko.” He dies with an estate of P120,000. He is survived by his legitimate parents A and B, his wife W, and his two illegitimate children C and D. This is obviously a case of mixed succession, because, while he had a will, it did not dispose of the entire estate. Thus, the rule is – Transcribed by: Bjone Favorito

One by one, we first go to the legitimate parents. The legitime of A and B is ½ or P60,000, while their intestate share is also ½, thus, hindi natin pwede bawasan because A and B are entitled to nothing less than that ½. We cannot just deduct the P10,000 from P120,000 then simply distribute the remainder according to ½, ¼ and ¼ – mali ‘yon. Anything less than P60,000 would amount to an impairment of legitime. Let’s go now to the illegitimate children. Their legitime is ¼ or P30,000, while their intestate share is also ¼, thus, hindi ulit pwede bawasan. To the surviving spouse this time. W’s legitime is only 1/8 or P15,000, while her intestate share, however, is ¼ or P30,000. If we deduct the P10,000 legacy from her intestate share, she will still receive P20,000 which is still more than her legitime. Thus, this is how we satisfy the legacy, because her legitime would not be impaired even after the charge.

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Recall the rule of double share for full-blood collaterals which we discussed earlier in reserva troncal – full-blood brothers, sisters, nephews and nieces gets twice as much as that of the halfblood brothers, sisters, nephews and nieces. Remember that this rule applies only to brothers, sisters, nephews and nieces, and does not apply with other collateral relatives such as grandnephews, grandnieces, first-cousins, etc. – pag dating sa mga ‘yan there is no distinction between full-blood and half-blood.

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PROVISIONS COMMON to TESTATE and INTESTATE SUCCESSION

One of the most common here would be Accretion. What is the Right of Accretion? As defined in 1015 – it is a right by virtue of which, when there is a vacancy in inheritance caused by predecease, incapacity or repudiation, in case two or more persons are called to the same inheritance, legacy or devise, the vacant portion is given to his coheirs, co-legatees or co-devisees. Illustration: I said in my will “I give my house and lot in Leonumville to my friends A, B and C.” In this case, there is unity of object – only one property is given, and plurality of subjects – it is given to more than one individual. If A should predecease me, his 1/3 share will go by accretion to his co-devisees B and C.

I said in my will “I give the entire free portion of my estate to A, B and C.” But A is incapacitated, or later on repudiates. His 1/3 share will thus go the B and C by right of accretion.

or to the same portion thereof, pro indiviso; and (2) that there is a vacancy caused by RIP (Repudiation, Incapacity or Predecease) When is there Accretion in Intestate Succession? The law provides in 1018 – in legal succession, the share of the person who repudiates shall always accrue to his co-heirs. But what about incapacity and predecease in intestate succession? Is there also a right of accretion? Actually it is a disputed point. In one school of thought – there is accretion, applying 1016 by analogy. The other view is that there is no accretion in intestate succession in case of incapacity and predecease. Why? 1018 mentions only repudiation. If the intention is to include predecease and incapacity, the law would have expressly mentioned them too. Moreover, some civilists like Justice Jurado says “In reality, there is no vacancy in intestate succession in the case of predecease and incapacity, but only in repudiation.”

Can there be accretion if what is given is money or other fungible things? YES. As long as there has been no ear-marking – this means physical segregation. Thus, if I say in my will “I give the balance of my savings account in BPI to my friend A, the balance of my current account in Metrobank to my friend B, and to C the money which I keep in my filing cabinet at home.” If A dies ahead of me, will there be an accretion in favor of B and C? NO, because there had been earmarking.

1016 gives us the Requisites for Accretion for Testamentary Succession (1) two or more persons are called to the same inheritance Transcribed by: Bjone Favorito

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There problem arises in determining when to apply accretion, and when to apply the other rules of succession in dealing with vacancies. In order for us to discuss further, we need to briefly go over everything that we had discussed so far and look at the subject Succession at a higher vantage point. What is the underlying principle in the law of Succession? Based on one of the theories, succession is merely an extension of the rights of ownership. Consequently, another basic underlying principle which actually permeates the law on succession is the primacy of the will of the testator. Because of this, it is testacy rather than intestacy which the law categorically prefers. Therefore, the first thing to do in succession is simply to determine the will or intention of the testator. Applying that criterion, we first follow the will. Thus, we give the properties to those instituted as heirs, given legatees or devisees – that is the number 1 rule, sundin ang gusto ng testator. Legitimes are, however, off-limits to the testator – hindi nya pwedeng pakialaman ‘yan. The only way that he can legally prevent a compulsory heir from inheriting is through a valid disinheritance. But generally, the legitime is beyond the reach of the testator.

However, the legitime cannot be made subject to any substitution, condition or any encumbrance. Thus, if there is a vacancy caused by RIP, insofar as the legitime is concerned, there can be no substitution. Instead, what you can apply are the rules of representation. When it comes to other portions such as the free portion or legacies and devises purely voluntarily given, substitution ang iaapply mo. If representation is not proper under the circumstances, or if there is no substitute, and there came a vacancy, what is your next option? Dyan papasok ang accretion – give it to the co-heirs, colegatees or co-devisees. But what if there are no more qualified co-heirs, what are you supposed to do with the vacancy? The last option is always intestate succession – give it to the legal or intestate heirs. Is it still possible that there be no more legal or intestate heirs left? NO. Remember that in both regular and irregular order, nasa buntot ang ating kabalikat sa kaunlaran – the State is always there. For example, in the case of a legitimate person, if you do not have any relative left within 5 degrees from you, the State will inherit your estate.

Thus, after giving what is due to the instituted heirs, legatees and devisees, we give the legitime to the compulsory heirs. The power of disposition of the testator includes not only the power to institute or designate his heirs, legatees and devisees, but is also given by law the right to name the substitutes in case of RIP.

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To further simplify the application of rules and provisions in case of vacancy in succession, consider the following graph:

To illustrate an application of the graph, let’s assume that X has four legitimate children A, B, C and D. C has two legitimate children E and F. D has one legitimate child G. X dies with a will wherein he instituted all his children as his heirs to his entire estate of P120,000. C, however, predeceased, and D repudiated. How do we distribute?

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Your starting point should always be with “how the distribution would have been if there was no vacancy.” Thus, without vacancy, A, B, C and D would have received their legitimes as well as their shares in the free portion because the entire estate was given to them. Their legitimes would have been P15,000 each as compulsory heirs and their share in the free portion as voluntary heirs would have been also P15,000 each, giving them a total of P30,000 each. Applying the graph, we first deal with C the predeceased. To whom will his P15,000 legitime go? E and F by way of representation – this is the first applicable rule in legitimes, thus, P7,500 to each of them. What about the P15,000 share of C in the free portion as a voluntary heir? Look first if there is a substitute designated by the testator – wala, so the next option is accretion. Who are the co-heirs of C? They are A and B, you forget about D because he repudiated. Thus, P7,500 each to A and B by right of accretion. Next is the share of D in the free portion as a voluntary heir. Again, is there a substitute? Wala, so accretion tayo, si A and B nanaman ang co-heirs. The P15,000 share of D as a voluntary heir will be shared by A and B at P7,500 each by way of accretion. Finally, the P15,000 legitime of D. An heir who repudiates cannot be represented. Wala din siyang co-heirs, he is the only one called to that legitime. You have no choice but to give it to the legal or intestate heirs of X. Who are these? A and B, as well as E and F by right of representation. Thus, the P15,000 will be divided into three parts – 1/3 or P5,000 each for A and B, then E and F will divide the share which would have pertained to C if he did not Transcribed by: Bjone Favorito

predeceased, therefore they will each get P2,500 each to be added to their P7,500 share in their represented legitime of C. In the ultimate account, E and F will end up with P10,000 each, while A and B will end up with P50,000 each.

If it is intestate succession, it will be easier. The starting point is the same – determine the distribution if there were no vacancies. Thus, since there are four legitimate children, you simply divide the entire estate by four – each one would have received P30,000 as intestate share. Kanino mapupunta yung P30,000 vacant share of C? It should go to his representatives. Does he have qualified representatives? YES, E and F. Thus, by right of representation, each of them gets P15,000. What about the repudiated P30,000 share of D? That belongs to A and B by right of accretion, thus, P15,000 to each of them. Therefore, A and B will end up with P45,000 each, while E and F will each get P15,000. It is always much simpler if the vacancy occurs in intestate succession because, for one thing, you don’t distinguish between legitime and free portion but rather to the entire estate.

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CAPACITY to SUCCEED

In the case of Natural persons, they can only succeed if they were living at the time of the opening of the succession. Remember, however, that even an unborn but already conceived child can already inherit, provided that it is born later under the conditions specified by the law. If the child had an intra-uterine life of less than 7 months, it must survive for 24-hours from the time of separation from the maternal womb – there is “separation” when the umbilical cord is cut. If the child had an intra-uterine life of 7 months or more, all that the law requires is that it should be alive at the time of separation from the maternal womb – even if it dies five minutes later. With respect to Non-Natural persons or entities and associations, it is possible for them to inherit even if they do not actually have a separate juridical personality. For example, associations for religious, scientific, cultural, educational or charitable purposes under 1026 can inherit. There may be dispositions made in general terms for prayers and pious works for the benefit of the soul – the “soul” does not have juridical personality, but it is allowed to actually benefit under a will. There may be provisions in favor of “the poor” in a locality. Recall the provisions of 43 of the Civil Code – if there is a doubt, as between two or more persons who are called to succeed each other, as to who died first, whoever alleges the death of one ahead of the other must 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. However, this provision does not preclude the application of the rules of representation. Transcribed by: Bjone Favorito

For example, nobody knows who, between the father and the son, died first, but the son happens to have his own children and descendants. I submit that the children and descendants, in this case, can inherit from the grandfather by the right of representation.

1027 enumerates certain individuals who are incapacitated to inherit: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who rendered spiritual aid to him during the same period – the incapacity extends to the relatives of the priest within the 4th civil degree, as well as to the church, chapter and community organization to which he belongs. The basis of this prohibition is the possibility of undue influence. If the testator confessed to five different priests during his last illness, all five becomes incapacitated. In other words, the confession need not be the last confession. As long as it was made during the last illness, the priest who heard it will be incapacitated. However, if the priest did not hear the confession, as when they would instead pray the rosary or read the bible together during visits, the priest will not be incapacitated. He must have actually heard the confessions. For ministers of other religious denominations, it is sufficient that they had extended a spiritual aid to him during the same period.

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Thus, if a protestant pastor visited the testator during the latter’s last illness, and they read the sacred scriptures and prayed together – that will be sufficient to incapacitate the pastor, but not for a catholic priest. Supposing that the testator had a friend who is a priest Fr. P. He made his will while he was very healthy, wherein he gave part of his estate to his priest friend. During his last illness, he called his friend Fr. P to hear his confession. Can Fr. P still inherit after hearing his confession? YES, the incapacity would not attach. Why? There is no possibility of undue influence – matagal na nagawa yung will eh. Thus, 1027 does not affect the legitime. If a compulsory heir is incapacitated under this provision, he can still get his legitime. Why? Because there is no possibility of undue influence insofar as the legitime is concerned. Why not? The legitime is something which is totally beyond the control of the testator, whether he likes it or not it will go the compulsory heirs. 1027 does not also apply to intestate succession, but only in testamentary succession. This is because the law repeatedly uses the word “testator” and again, there is no possibility of undue influence when it comes to intestate succession. It is the law itself which mandates how the estate will be distributed depending upon who the survivors are. (3) Guardians with respect to their wards, if there are dispositions made by the ward before the final accounts of the guardianship have been approved – remember that in this provision, there is a built-in exception: 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.

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(4) Any attesting witnesses to the execution of the will, their spouse, parents or children, or any one claiming under them – this is simply a reiteration of 823, therefore, it should be read in conjunction with the latter article. Thus, there should also be an exception: UNLESS, there are three other competent witnesses to the execution of the will. (5) Physicians, surgeon, nurse, health officer or druggist – hindi ‘yan adrug adik o durugista, that is the pharmacicst – if they took care of the testator during his last illness – they must have actually taken care of the testator during that period. If a doctor was simply consulted by the attending physician, but not actually treated the testator, he is not incapacitated. There is an interesting question – Suppose that the doctor who took care of the testator during the last illness was the latter’s own son, does the incapacity apply to that son? There are two different views. According to the first view, if the doctor or nurse who took care of the testator during his last illness is a close relative like a son, the incapacity should not apply. Why? The true Filipino’s first impulse is to rush to the side of a dying parent. If you happen to be a doctor or a nurse and you do not take care of your own dying parent, the entire barangay will ostracize you. The other view says that the son, who is also the doctor who took care of this father during the last illness, is incapacitated. Why? Because there does not seem to be an intention on the part of the legislature to exempt close relatives. In comparison, (3) expressly provided for an exception – that it does not apply to guardians who are closely related to the ward. If it was intended by the legislature to recognize a similar exception in (5), they would have expressly done so. Page 83

Assume that X is survived by the following: (1) his first cousin FC – a 4th degree relative (2) his three children A, B and C Fr. A is a priest, who heard his father’s confession during X’s last illness. The will was made during that period, wherein he said “I give my entire estate to my three children, A, B and C.” Dr. B is a doctor, who took care of his father during the same period. X died with an estate of P120,000. How do we distribute? First point, as I said, 1027 does not affect the legitime. Thus, there is no question that they will still receive their legitimes despite their incapacity. Bakit si C nasama? He is a relative of the priest within the 4th degree, hagip din sya nun, pero hindi si FC. Does this mean that the entire free portion would go to FC? NO. What are you supposed to do with the vacancies created? You apply the rules of intestate succession, and the first in the order of intestate succession, whether regular or irregular, is legitimate children and descendants. Thus, the entire estate will still end up with A, B and C. I repeat, 1027 does not apply and is without prejudice to intestate succession.

In 1029 – a disposition made for prayers and pious works, in general terms, will mean a 50-50 division. 50% to the church or denomination to which the testator may belong, and the other 50% will be given to the State for the purposes mentioned in 1013 (for the benefit of public schools, charitable institutions,etc.) You don’t apply the 50-50 rule if the testator specified the application. Thus, if what the testator said was “I leave the P100M for prayer and pious works for the benefit of my soul.” – you apply the rule. But he said “I leave P100M for prayers for the benefit of my Transcribed by: Bjone Favorito

soul. In this connection I order that there should be 1,000 masses for me everyday all throughout the Philippines in different parishes and churches, there should be special prayers for me every tuesday in St. Anthony’s shrine, every wednesday in Baclaran, every thursday in St.Jude, and every friday in Quiapo.” Then the entire P100M will be spent on what he specified – you do not apply the 50-50 rule.

Just to emphasize a point regarding the adopted child. Generally, you treat an adopted child just like a legitimate child. When it comes to inheritance from the adopted child, will the natural parents still inherit anything from him? Actually, this is a disputed point. But, I am inclined towards the view that you still apply the Family Code provisions despite the very broad language of Sec.18 of the Domestic Adoption Law which provides that “all legal ties,(xxx) are terminated and they shall have reciprocal rights of succession…” but the heading of that section states “Parental Authority” Thus, I submit that the old rule under the Family Code should still apply – if both adopter and natural parents survive, they should divide equally. Whatever share that is supposed to go in the ascending line between the parents, share it 50-50. Along the same line, I submit that the old rule still holds true when it comes to representation. An adopted child cannot represent, neither can an adopted child be represented. Adoption creates a relationship strictly only between the adopter and the adopted. The latter does not become related in any way to the relatives of the adopter and vice-versa.

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The law enumerates in 1032 persons who are considered incapable of succeeding by reason of Unworthiness. Just go over these familiar provisions, many of them are also grounds for disinheritance.

pardon can only come about if the unworthy heir is instituted in the will of the testator, the latter having full knowledge of the facts constituting the unworthiness. Since there is no express or implied pardon, S is still unworthy, thus, cannot inherit.

In (5) any person guilty of adultery or concubinage with the spouse of the testator – note that the spouse is not incapacitated to succeed for unworthiness. Frankly, I do not understand why. Assume that X has only one living relative, his brother B. X is married to a very beautiful lady. He comes home unexpectedly early one afternoon and catches, in their own conjugal bed, his wife and his only brother having the time of their lives. X files a case against them and the two are convicted of adultery. Later on, X dies intestate, leaving millions in money and property. To who will his estate go? His unfaithful wife will inherit everything, to the exclusion of his brother. If his brother was not rendered unworthy, he would have gotten half.

Suppose that after the S’ conviction by final judgement, X disinherited him. But before the death of X, they was reconciliation between them. This time, he can. Why? When the father disinherited his son, the father invoked and submitted himself to the rules of disinheritance. One of the principles of disinheritance in 922 is that a reconciliation between the offender and the offended party deprives the offended party of the right to disinherit, and renders ineffectual any disinheritance previously made. Thus, in this case, the rule should apply. But if X did not disinherit, there is no basis for the application of the rule of disinheritance.

According to some civilists, the reason is that the law presumes in favor of the solidarity of marriage, and would rather leave it to the testator to decide whether he will disinherit his spouse – anong solidarity, kinaliwa na nga eh. What’s the moral of the story? First thing is to make a will disinheriting your spouse.

As of what moment should the capacity of the heir be determined? We again use 777 as basis, thus, the heir must be capacitated as of the moment of death of the decedent because it is at that moment that there is transmission of successional rights.

Supposing that S is the son of X. S was convicted of an attempt against the life of his own father X – that is a ground for disinheritance and a cause for unworthiness. X did not disinherit his son. However, before the death of X, there was a tearful reconciliation between them. The question is: can S inherit? NO. He is unworthy. To erase unworthiness, you need an express or implied pardon. An express pardon must be in writing, while an implied Transcribed by: Bjone Favorito

If, however, the institution, legacy or devise is subject to a suspensive condition, there will be two moments to consider: moment of death; and moment of the fulfillment of the condition. In that case, capacity should be possessed at both moments. Otherwise, the heir, legatee or devisee does not inherit.

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In 1039, remember the four aspects of succession which are always governed by the National Law of the decedent, regardless of where the property may be: under 16 of the Civil Code, (1) Order of Succession; (2) Amount of Successional rights; (3) Intrinsic validity of testamentary provisions; and, under 1039, capacity to succeed.

ACCEPTANCE and REPUDIATION

Just remember that every gratuitous disposition, whether by donation or succession, needs Acceptance. Nobody can force his generosity down your throat. You may be the poorest man, but if you do not want to accept the generosity of another, no one can force you to do so. The law has some high regard for individual personal dignity. Acceptance and Repudiation should be free and voluntary acts, and they always retroact to the moment of death. Why? Again, because of 777. The law does not want to have any interregnum insofar as ownership of property is concerned – that is the reason for retroactivity. Acceptance may be express or implied. It can also be either in a public or private document.

If an heir executes an act of ownership which otherwise he could not lawfully do, he is deemed to have impliedly accepted.

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Note 1050 where the law enumerates three situations when there would be implied acceptance. (1) if an heir executes an act of ownership – if he sells, assigns or donates his share. Hindi nya pwedeng gawin yun if he is not the owner; (2) if there are several heirs and one of them renounces his share gratuitously in favor of one or more but not all of his co-heirs – again, that is an exercise of an act of ownership because he is selecting who will benefit from his share. So even if the renunciation is gratuitous, he will be deemed to have accepted the inheritance. (3) if an heir renounces for a price – binenta nya ‘yun, he is deemed to have accepted. But if he renounces gratuitously and it is done indiscriminately in favor of his co-heirs, and his co-heirs are the very same persons who would have acquired his vacant share under accretion, he is not deemed to have accepted. One of the rights granted to creditors under 1052 – if an heir renounces his share in the inheritance but he has unpaid creditors, such creditors are allowed to accept up to the extent of their respective credits – this is obviously for their protection. It is easier to accept than to repudiate. You can even accept by not doing anything. If an heir does not act within 30 days from an order of distribution, he is deemed to have accepted the inheritance.

Repudiation may be made in a public document or in an authentic instrument or by filing the corresponding manifestation with the settlement court. “Authentic instrument” is one whose genuineness cannot be doubted. Page 86

PARTITION and DISTRIBUTION of ESTATE

Prior to partition, the heirs are actually co-owners of the property which they have inherited. Partition is intended to bring about an end to the state of indivision. It may be done by the heirs themselves, even extra-judicially under certain conditions. They can have an ordinary action for partition or in the settlement proceedings. Usually this is the last thing done by the settlement court – the approval of the project of partition, sometimes the court would even have to appoint a commissioner to make the proposed partition. A testator can make the partition, as a matter of fact, under 1080 of the New Civil Code, a person is allowed to make a partition of his estate during his lifetime either by will or through an act inter vivos. As stated by J.B.L. Reyes “this is sui generis – one of a kind” if a person makes a partition of his estate while he is still alive, pambihira yang dokumentong ‘yan. He is free to revoke or change it before his death, but if he does not, that partition is to be respected as long as the legitimes of the compulsory heirs are not impaired. 1080 takes on added significance in the light of certain decisions of the SC. I refer to those decisions where the Court considered void wills as valid partitions. The best example would be the case of Mang Oy vs C.A., a ponentia of Justice Isagani Cruz – there was an old igorot man who realized that death was upon him, thus, he decided to make a will. In that will, he distributed specific properties to specific heirs. He then called his children to read his will and the latter all agreed to comply with such will. They even went to a notary public and executed a Transcribed by: Bjone Favorito

document stating that “We have read the will of our father and we all agreed to abide by the provisions of that will.” Later on the old man passed away, and his will was never probated. A problem arose when some of the children wanted to get the properties given to the others, which is one of the tragic things that can happen in any family. Upon reaching the SC, the Court held: that will is void and ineffective, but it can be considered as a valid partition under what is now 1080. Does this mean that we can now safely and conveniently forget about 804 to 814 na pinag hirapan naten memoryahin? Not necessarily. For a void will to be considered a valid partition under 1080, two essential conditions must be present: (1) the will must, in reality, be a partition – meaning the will must give out specific property to specified heirs or individuals in such a way that if you follow the will, there will be no co-ownership. (2) the beneficiaries named in that void will must at least be legal heirs – if they are total strangers, there is no way that they can acquire ownership over the properties given to them under the void will. Why? Because the law enumerates the modes of acquiring ownership, and partition is not one of them. You always need a mode to acquire ownership. If the beneficiaries are at least legal heirs, they would have a mode of acquiring ownership – that is succession.

Effects of Partition Upon partition, there is mutual reciprocal warranty among the heirs with respect to title and quality of the portions allocated to them under the partition.

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The action to enforce this warranty prescribes in 10 years from the date the cause of action accrues.

Because everything should really go to him – walang karapatan yung third person.

Remember the three situations where there is no warranty among the heirs, which you’ll find in 1096: (1) if it was the testator himself who made the partition, UNLESS there is an impairment of the legitimes of compulsory heirs, or UNLESS it is clear that his intention is otherwise; (2) if there is an express agreement among the heirs that there will be no warranty among them; (3) if the eviction is due to causes which arose after the partition.

If there are two or more heirs, then a third person gets included in the partition, then the partition is void only with respect to the share given to the third person.

A partition is a contract, and just like any other, it is subject to rescission on the ground of lesion or damage. What is the amount of the lesion or damage? The same as in ordinary actions for rescission of contracts. If an heir receives property whose value is less by at least ¼ than that which he is legally entitled to, then he may ask for a rescission. The prescriptive period is 4 years from the time the partition is made, which is the same with that of ordinary contracts.

Worst case scenario – there are several heirs, one of them is omitted, and his share is instead given to a third person. In this case, it does not necessarily follow that the partition will be rescinded in the absence of bad faith or fraud. The portion given to the third person should instead be given to the omitted heir. Thus, there will be a corresponding obligation on the part of the heirs who participated in the partition to proportionately contribute to the share of the omitted heir. In his connection, remember the case of Viadonon vs CA – a father and three of his children entered into a partition, excluding a fourth child who was mentally retarded. Later on, the Court said: it does not mean that the entire partition is void under 1104, unless it is clear that there is bad faith or fraud. But the heirs who participated in that partition is obligated to contribute proportionately to the share of the omitted heir.

In 1104 and 1105, what will be the consequences in case an heir is omitted or a stranger is included in the partition? If there is only one heir, but somehow he enters into a partition with a third person, the entire partition is void. Why?

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