2332521 Ateneo Central Bar Operations 2007 Civil Law

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ATENEOCENTRALBAROPERATIONS 2007

Civil LawSUMMER REVIEWER

Adviser:Dean Cynthia del Castillo Head:Joy Ponsaran, Eleanor Mateo; Understudy:Joy Tajan, John Paul Lim;Subject Head:Polaris Rivas;

SUCCESSION

CHAPTER 1: GENERAL PROVISIONS

ELEMENTS OF SUCCESSION1. Decedent2. Successors

a. Heirs those who are called to the whole orto an aliquot portion of the inheritance eitherby will or by operation on law

b. Devisees or Legatees persons to whomgifts of real or personal property arerespectively given by virtue of a will.

3. Death of the Person However, a person maybe presumed dead for the purpose of opening hissuccession (see rules on presumptive death). Inthis case, succession is only of provisionalcharacter because there is always the chancethat the absentee may be alive.

4. Inheritance is the subject matter of Succession

it includes: Property and transmissible rights and

obligations

Existing at the time of his death

AND those which have accrued theretosince the opening of succession.

RIGHTS EXTINGUISHED BY DEATH1. Support2. Usufruct3. Those arising from personal consideration4. Personal easements5. Partnership rights

6. Agency7. Life Annuity

Succession Inheritance

Refers to the legalmode by whichinheritance istransmitted to thepersons entitled to it.

Refers to theuniversalityor entiretyof the property, rightsand obligations of aperson who died.

KINDS OF SUCCESSION1. Testamentary that which results from the

designation of an heir, made in a will executed in

the form prescribed by law2. Legal or Intestate that which takes place by

operation of law in the absence of a valid willSUCCESION - Is a mode of acquisition byvirtue of which the property, rights andobligations to the extent of the value of theinheritance, of a person are transmittedthrough his death to another or others eitherby his will or by operation of law (Art. 774)

3. Mixed that which is effected partly by will andpartly by operation of law

KINDS OF HEIRS1. Compulsory those who succeed by force of

law to some portion of the inheritance, in anamount predetermined by law, of which theycannot be deprived by the testator, except by avalid disinheritance

2. Voluntary or Testamentary those who are

instituted by the testator in his will, to succeed tothe portion of the inheritance of which the testatorcan freely dispose

3. Legal or Intestate those who succeed to theestate of the decedent who dies without a validwill, or to the portion of such estate not disposedof by will

CHAPTER 2: GENERAL PROVISIONS ON WILLS

ELEMENTS OF A WILL1. It is an act;

2. whereby a person is permitted;3. with the formalitiesprescribed by law;4. to controlto a certain degree;5. the dispositionof his estate;6. to take effect afterhis death.

KINDS OF WILLS:1. Notarial an ordinary or attested will2. Holographic a handwritten will

COMMON REQUISITES BETWEEN THE TWOWILLS:1. must be in writing and2. in a language or dialect known to the testator

CHARACTERISTICS OF A WILL:1. Unilateral2. Strictly Personal act

a. Acts which may not be left to the discretion ofthird persons (Articles 785 AND 787):

i. Duration or efficacy of the designation ofheirs, devisees or legatees;


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ii. Determination of the portions which theyare to take, when referred to by name;and

iii. Determination of whether or not thetestamentary disposition is to be

operativeb. Acts which may be entrusted to third persons(Article 787);

i. Distribution of specific property or sumsof money that he may leave in general tospecified classes or causes; and

ii. Designation of the persons, institutions orestablishments to which such property orsums are to be given or applied.

3. Free and voluntary act4. Formal and solemn act5. Act mortis causa6. Ambulatory and revocable during the testators

lifetime7. Individual act

INTERPRETATION OF WILLS

1. Animus Testandi- The testators intent (animustestandi), as well as giving effect to such intent isprimordial. EXCEPT: when the intention of thetestator is contrary to law, morals or public policy.

2. In case of doubt, the interpretation by which thedisposition is to be operative or will sustain anduphold the will in all its parts shall be adopted,provided that it can be done consistently with the

established rules of law.

3. Ambiguit ies in Wil ls Intrinsic or extrinsicevidence may be used to ascertain the testatorialintent of the testator. EXCEPT: the oraldeclarations of the testator as to his intentionsmust be excluded because such testimony wouldbe hearsay.

4. After Acquired Proper ty - Property acquiredduring the period between the execution of thewill and the death of the testator is NOTincludedamong the property disposed of. EXCEPT: When

a contrary intention expressly appears on the will.NOTE: This rule applies only to legacies anddevisees and not to institution of heirs

TESTAMENTARY CAPACITY

1. All persons who are not expressly prohibited bylaw

2. 18 years old and above

3. Of sound mind, at the time of its execution; Atestator is considered of sound mind if he knowsat the time of making of the will the following:a. Natureof the estate to be disposed ofb. Proper objectsof his bounty

c. Characterof the testamentary act

Supervening capacity or incapacity does notaffect the will because the validity of a will isdetermined at the time of the execution of thewill.

LEGAL PRESUMPTION IN FAVOR OFSOUNDNESS OF MIND

GENERAL RULE: The law presumes that thetestator is of sound mind

EXCEPT:a. When the testator, one month or less, before

making his will was publicly known to beinsane; or

b. Was under guardianship at the time of themaking of his will. (Torres and Lopez deBueno vs. Lopez, 48 Phil. 772)

CHAPTER 3: FORMS OF WILL

1. NOTARIAL WILL a valid notarial will:a. Must be in writing and in a language or

dialect known to the testator

b. Subscribed at the end by the testator himselfor by the testators name written by someother person in his presence, and by hisexpress direction

c. Attested & subscribed by three or morecredible witnesses in the presence of thetestator and of one another

Mandatory Part: The signing on everypage in the witnesses presence

NOTE: Test of presence is not whetherthey actually saw each other sign, butwhether they might have seen each other

sign had they chosen to do soconsidering their mental and physicalcondition and position with relation toeach other at the moment of inscriptionof each signature.

Directory Part: The place of thesignature, i.e. the left margin; thesignature can be affixed anywhere on thepage.


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d. Each and every page, except the last, must besigned by the testator or by the person requestedby him to write his name, and by the instrumentalwitnesses of the will, on the left margin.Signatures on the left margin on each and every

page NOT REQUIRED:i. In the last page, when the will consists of twoor more pages;

ii. When the will consists of only one page;iii. When the will consists of two pages, the first

consists of all the testamentary dispositionand is signed at the bottom by the testatorand the witnesses and the second containsonly the attestation clause duly signed at thebottom by the witnesses.

e. Each and every page of the will must benumbered correlatively in letters placed on theupper part of each page.

Mandatory Part: Pagination by means of aconventional system.

Directory Part: The pagination in letters onthe upper partof each page

f. It must contain an attestation clause, stating thefollowing:a. The number of pages used upon which the

will is writtenb. The fact that the testator signed the will and

every page, or caused some other person towrite his name, under his express direction,in the presence of the instrumental witnesses

c. All the instrumental witnesses witnessed andsigned the will and all its pages in thepresence of the testator and of one another

g. It must be acknowledged before a notary publicby the testator and the witnesses

ATTESTATION v. SUBSCRIPTION

The attestation clause need not be written ina language or dialect known to the testatornor to the witnesses since it does not formpart of the testamentary disposition

The attestation clause need only be signedby the witnesses and not by the testator as itis a declaration made by the witnesses.

ADDITIONAL REQUISITES FOR VALIDITY

a. If the Testator be Deaf or Deaf-Mute:

i. Testator must personally read the will, ifable to do so;

ii. Otherwise, he shall designate twopersons to read it and communicate tohim, in some practicable manner, itscontents (Art 807)

b.If the Testator be Blind: The will shall be readto the testator twice -

i. Once by one of the subscribingwitnesses

ATTESTATION SUBSCRIPTION

1. act of the senses 1. act of the hand

2. mental act 2. mechanical act

3. Purpose is to render

available proof during theprobate that such will hadbeen executed inaccordance with theformalities prescribed bylaw

3. Purpose is for

identification

4. Found after theattestation clause at theend or last page of the will

4. Found at the left sidemargin of every page ofthe will

Icasiano vs. Icasiano, II SCRA 422 theinadvertent failure of one witness to affix hissignature to one page of the original will due tothe simultaneous lifting of two pages in thecourse of signing is not per se sufficient to

justify denial of probate when the duplicate willshows

Cruz v. Villasor, 54 SCRA 31- the notarypublic cannot be counted as one of the attesting

witnesses

Subscription - The manual act of instrumentalwitnesses in affixing their signature to theinstrument.

At testat ion Anact of witnessing execution ofwill by testator in order to see and take notementally those things are done which thestatute requires for the execution of a will andthat the signature of the testator exists as afact.


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ii. Once by the notary public before whomthe will is acknowledged (Art 808)

NOTE: Articles 807 and 808 aremandatory, failure to comply with eitherwould result in nullity and denial of

probate.

2. HOLOGRAPHIC WILL a holographic will isvalid if it is:

a. In writing and in a language or dialect knownto the testator

b. Entirely written, dated, and signed by thehand of the testator himself

c. Dispositions of the testator written below hissignature must be dated andsigned by himin order to validate the testamentarydispositions. (Art 812)

EXCEPT: In case of dispositionsappearing in a holographic will which aresigned without being dated, where the lastdisposition has a signature and a date,such date validates the dispositionspreceding it, whatever be the time of priordispositions

A holographic will is subject to no otherform, and may be made in or out of thePhilippines, and need not be witnessed.(Art 810)

PROBATE OF HOLOGRAPHIC WILL

a. There must be at least one witness. EXCEPTION: If the will is contested, at

least three of such witnesses shall berequired (merely directory). In the absenceof such competent witness and if the courtdeems it necessary, expert testimony may beresorted to.

b. who knows the handwriting and signature ofthe testator

c. must explicitly declare that the will and thesignature are in the handwriting of the

testator. (Art 811) NOTE: This article applies only to post

mortem probates and not to ante mortemprobates since in such cases the testatorhimself files the petition and will identify thedocument himself.

INSERTION, CANCELLATION, ERASURE OR

ALTERATION IN A HOLOGRAPHIC WILL

a. If made after the execution of the will, butwithout the consent of the testator, suchinsertion is considered as not writtenbecause the validity of the will cannot bedefeated by the malice or caprice of a thirdperson

b. If the insertion after the execution of the willwas with the consent of the testator, the willremains valid but the insertion is void.

c. If the insertion after the execution is validatedby the testator by his signature thereon, thenthe insertion becomes part of the will, and theentire will becomes void, because of failureto comply with the requirement that it mustbe wholly written by the testator

d. If the insertion made by a third person ismade contemporaneous to the execution ofthe will, then the will is void because it is notwritten entirely by the testator

WHO MAY BE A WITNESS TO A WILL Anyperson may be a witness provided he is:

a. Of sound mindb. Of the age of 18 years or morec. Not blind, deaf or dumbd. Able to read and writee. Domiciled in the Philippinesf. Have not been convicted of falsification of a

document, perjury or false testimony

CHAPTER 4: LAWS GOVERNING VALIDITY OF AWILL

1. FORMAL VALIDITY

a. If the testator is a Filipino and the will isexecuted in the Philippines then its formalvalidity is governed by the CC of thePhilippines

b. If the testator is a Filipino and the will isexecuted in a foreign country, then its formalvalidity is governed either:

Gan v, Yap, 104 Phil 509 in the probate of aholographic will, the document itself must beproduced; a lost holographic will cannot beprobated. Exception: When copy of the will isproduced


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i. By the law of the place where the willwas made

ii. By the CC of the Philippines

c. If the testator is a foreigner and the will isexecuted in the Philippines, then its formalvalidity is governed either:

i. By the CC of the Philippinesii. By the law of his own country

d. If the testator is a foreigner and the will isexecuted in a foreign country, then its formalvalidity is governed either:

i. By the law of the place where the willwas made

ii. By the law of his own countryiii. By the law of the country where he

residesiv. By the CC of the Philippines

2. SUBSTANTIVE VALIDITY

ASPECTS OF THE WILL GOVERNED BYNATIONAL LAW OF THE DECEDENT:

a. Order of successionb. Capacity to succeedc. Amount of successional rightsd. Intrinsic validity (Art 16)

Intrinsic validity

VALIDITY OF JOINT WILLS

Two or more persons cannot make a will jointly,or in the same instrument, either for theirreciprocal benefit or for the benefit of a thirdperson. (669)

NOTE: Joint wills executed by Filipinos in aforeign country shall not be valid in thePhilippines, even though authorized by the lawsof the country where they may have beenexecuted.

CHAPTER 5: AMENDMENTMENT, REVOCATIONAND REPUBLICATION OF WILLS

AMENDMENT OF WILLS

1. Notarial only through a codicil

2. Holographic in three waysa. Dispositions may be added below the

signature, PROVIDED that said dispositions

are also dated and signed, and everything iswritten by the hand of the testator himself

b. Certain dispositions or additional matter maybe suppressed or inserted PROVIDED thatsaid cancellation is signed by the testator

and written by the hand of the testatorhimselfc. Through a codicil which may either be

notarial or holographic

ELEMENTS OF A CODICIL

1. It is a supplementary or addition to a will2. made after the execution of the will3. and annexed to be taken as a part thereof4. by which any disposition in the original will may

be explained, added to or altered

REQUISITES FOR INCORPORATION BYREFERENCE

1. the document or paper referred to in the will mustbe in existence at the time of the execution of thewill

2. the will must clearly describe and identify thesame, stating among other things the number ofpages thereof

3. it must be identified by clear and satisfactoryproof as the document or paper referred totherein

4. it must be signed by the testator and thewitnesses on each and every page, except in

case of voluminous books of account orinventories

REVOCATION OF WILLS

1. By operation of law instances of revocation byoperation of law:a. decree of legal separationb. preteritionc. legacy or credit against third person or

remission of debt was provided in will andsubsequently, testator brings action againstdebtor

d. substantial transformation of specific thingbequeathed

e. when heir, devisee or legatee commits any ofthe acts of unworthiness

2. By the execution of a will, codicil or other writingexecuted as provided in case of willsa. EXPRESS When there is a revocatory

clause expressly revoking the previous will ora part thereof


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b. IMPLIED When the provisions thereof arepartially or entirely inconsistent with those ofthe previous wills

3. By burning, tearing, canceling, or obliterating the

will with the intention of revoking it, by thetestator himself, or by some other person in hispresence, and by his express direction.REQUISITES:a. Testamentary capacity at the time of

performing the act of destruction;b. Intent to revoke (animus revocandi);c. Actual physical act of destruction;d. Completion of the subjective phase; ANDe. Performed by the testator himself or by some

other person in his presence and expressdirection

LAWS WHICH GOVERN REVOCATION1. If the revocation takes place in the Philippines

whether the testator is domiciled in thePhilippines or not,a. Laws of the Philippines

2. If the revocation takes place outside thePhilippines, by a testator who is domiciled in thePhilippines,a. Laws of the Philippines

3. Revocation done outside the Philippines by atestator who is not domiciled in this country,a. Laws of the place where the will was made;

orb. Laws of the place in which the testator had

his domicile at the time of the revocation.

REVOCATION BASED ON A FALSE OR ILLEGALCAUSE

Revocation based on a false or illegal cause isnull and void. REQUISITES:

a. The cause must be concrete, factual and notpurely subjective

b. It must be falsec. The testator must not know of its falsityd. It must appear from the will that the testator

is revoking because of the cause which isfalse.

Art. 834. The recognition of an illegitimate childdoes not lose its legal effect, even though thewill wherein it was made should be revoked.

Ar t. 837. If after making a will, the testatormakes a second will expressly revoking the first,the revocation of the second will does not revivethe first will, which can be revived only byanother will or codicil.

FACTS DEMONSTRATING ART 837

In 1985, X executed Will 1

In 1987, X executed Will 2, expressly revokingWill 1

In 1990, X executed Will 3, revoking Will 1

CONCLUSION ON THE FACTS

The Revocation of Will 2 by Will 3 does not reviveWill 1

This demonstrates the theory of instantrevocationbecause the revocatory effect of thesecond will is immediate upon the first will

NOTE: This article only applies where therevocation of the first will by the second will isexpress.

REPUBLICATION AND REVIVAL OF WILLS

If the testator wishes to republish a will that isvoid as to form, the only way to republish it is toexecute a subsequent will and reproduce it

The testator need only execute a subsequent willor codicil referring to the previous will if the

testator wishes to republish a will that is either:a. Void for reason other than a formal defectb. Previously revoked

REPUBLICATION REVIVAL

Takes place by an act ofthe testator

Takes place byoperation of law

Corrects extrinsic andextrinsic defects

Restores a revoked will

Ar t. 832 A revocation made in a subsequentwill shall take effect, even if the new will shouldbecome inoperative by reason of the incapacityof the heirs, devisees or legatees designatedtherein, or by their renunciation.

EXCEPTION: Molo v. Molo, (90 Phil 37),When the testator provides in the subsequentwill that the revocation of the prior one is

dependent on the capacity or acceptance ofthe heirs, devisees, or legatees instituted in thesubsequent will (dependant relativerevocation)


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CHAPTER 6: ALLOWANCE AND DISALLOWANCEOF WILLS

1. PROBATE OF A WILL

a. A special proceeding required for the purpose ofestablishing the validity of the will.b. Probate of a will is mandatoryc. The probate court can only inquire into the

extrinsic validity of testamentary provisions,which include the following:

i. That the testator was of sound and disposingmind

ii. That his consent was not vitiatediii. That the will was signed by the required

number of witnessiv. That the will is genuine

KINDS OF PROBATE1. Post-Mortem after the testators death2. Ante-Mortem during his lifetime

FINAL DECREE OF PROBATE

Once a decree of probate becomes final inaccordance with the rules of procedure itbecomes Res Judicata

It is conclusive as to the due execution of the will(extrinsic validity only)

2. DISALLOWANCE OF WILL - grounds fordisallowance of a will:

a. If the formalities required by law have notbeen complied with;

b. If the testator was insane, or otherwisementally incapable of making a will, at the

time of its execution;c. If it was executed through force or under

duress, or the influence of fear, or threats;d. If it was procured by undue and improper

pressure and influence, on the part of thebeneficiary or of some other person;

e. If the signature of the testator was procuredby fraud;

f. If the testator acted by mistake or did notintend that the instrument should be his will

at the time of affixing his signaturethereto.(Art 839)

REVOCATION DISALLOWANCE

Voluntary act of the

testator

Given by judicial decree

With or without cause Always for a legal cause

May be partial or total Always total EXCEPTwhen the ground of fraudor influence for exampleaffects only certainportions of the will

CHAPTER 7: INSTITUTION OF HEIRS

INSTITUTION OF HEIR1. It is an act by virtue of which a testator

designates in his will

2. the person or persons who are to succeed him inhis property and transmissibleEXCEPTION: Nuguid v. Nuguid, 17 SCRA449, the probate court may pass upon theintrinsic validity of the will when its probatemight become an idle ceremony if on the willsface it appears to be intrinsically void.

3. rights and obligations

REQUISITES FOR A VALID INSTITUTION OF HEIR1. Designation in will of person/s to succeed

a. Directory - designation of name andsurname

b. Mandatory identity of the heir must beestablished, otherwise void disposition,unless his identity becomes certain.NOTE: If there is ambiguity in thedesignation, the designation must beresolved by discerning the testators intent. If

the ambiguity cannot be resolved, intestacyto that portion results.

2. Will specifically assigns to such person aninchoate share in the estate.

3. The person so named has capacity to succeed4. The will is formally valid5. No vice of consent is present6. No preterition results from the effect of such will

THREE PRINCIPLES IN THE INSTITUTION OFHEIRS1. Equality heirs who are instituted without a

designation of shares inherit in equal parts

2. Individuality heirs collectively instituted aredeemed individually named unless a contraryintent is proven

3. Simultaneity when several heirs are instituted,they are instituted simultaneously and notsuccessively

RULES ON A PERSONS RIGHT TO DISPOSE OFHIS ESTATE


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1. If one has no compulsory heirs:a. He can give his estate to any person

qualified to inherit under himb. However, he must respect restrictions

imposed by special laws

2. If one has compulsory heirs:a. He can give only the disposable portion tostrangers

b. Legitimes of compulsory heirs must berespected

REQUISITES FOR THE ANNULMENT OFINSTITUTION OF HEIRS:1. Cause of institution of the heirs must be stated in

will2. Cause must be shown to be false3. It appears from the face of the will that the

testator would not have made the institution had

he known the falsity of the cause.

RULES ON INSTITUTION OF ALIQUOT SHARELESS THAN OR IN EXCESS OF THE WHOLEESTATE:

1. Intestacy Results ifa. the heir institutes an aliquot portion of the

estateb. to only one heir If the heir institutes several

heirs to an aliquot part of the2. Each heirs share shall be proportionally increased:

a. There are more than one instituted heirb. The testator intended the heirs to inherit the

whole estatec. The aliquot parts of each share do not cover

the whole inheritance3. Each heirs share shall be proportionally

decreased:a. There are more than one instituted heirb. The testator intended the heirs to inherit the

whole estatec. The aliquot parts of each share exceed the

whole inheritance

PRETERITION

1. There must be an omission of one, some or all ofthe heir/s in the will

2. The omission must be that of a COMPULSORYHEIR

3. Compulsory heir omitted must be of the DIRECTLINE

4. The omitted compulsory heir must be LIVING atthe time of testators death or must at least havebeen CONCEIVED before the testators death

5. The omission must be complete and totalin character. : There is no omission if

a. A devise or legacy has been given to the heirb. A donation inter vivos has been previously

given to the heirc. Anything is left from the inheritance which the

heir may get by way of intestacy

EFFECTS OF PRETERITION:1. The institution of heir is annulled2. Devises and legacies shall remain valid as long

as they are not inofficious3. If the omitted compulsory heir should die before

the testator, the institution shall be effectual,without prejudice to the right of representation

DISTINGUISH PRETERITION FROMDISINHERITANCE

PRETERITION DISINHERITANCE

Deprivation of acompulsory heir of hislegitime is tacit

Deprivation of thecompulsory of his legitimeis express

May be voluntary butthe law presumes that itis involuntary

Always voluntary

Law presumes thatthere has been merelyan oversight or mistakeon the part of thetestator

Done with a legal cause

Omitted heir gets notonly his legitime but alsohis share in the freeportion not disposed of

by way of legacies ordevises

If disinheritance isunlawful, compulsory heiris merely restored to hislegitime

CHAPTER 8: SUBSTITUTION OF HEIRS

CLASSES OF SUBSTITUTION:

1. Vulgar or Simple the testator may designateone or more persons to substitute the heir orheirs instituted in case such heir or heirs should:a. die before him (PREDECEASE)b. should not wish, (RENOUNCE) orc. should be incapacitated to accept the

inheritance (INCAPACITATED)2. Brief or Compendious two or more persons

may be substituted for one; and one person fortwo or more heirs

3. Reciprocal if heirs instituted in unequal sharesshould be reciprocally substituted, the substituteshall acquire the share of the heir who dies,renounces, or incapacitated, unless it clearlyappears that the intention of the testator wasotherwise. If there are more than one substitute,


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they shall have the same share in the substitutionas in the institution

4. Fideicommissary Substitution - if the testatorinstitutes an heir with an obligation to deliver toanother the property so inherited. The heir

instituted to such condition is called the first heiror fiduciary heir, the one to receive the property isthe fideicommissary or second heir

REQUISITES FOR A FIDEICOMMISSARYSUBSTITUTION:1. A fiduciary or first heir instituted entrusted with

the obligation to preserve and to transmit to afideicommissary substitute or second heir thewhole or part of the inheritance

2. Such substitution must not go beyond onedegree from the heir originally instituted

3. The fiduciary or first heir and the second heir areliving at the time of the death of the testator

4. The fideicommissary substitution must beexpressly made

5. The fideicommissary substitution is imposed onthe free portion of the estate and never on thelegitime

NOTE:Pending the transmission of the property,the fiduciary is entitled to all the rights of ausufructuary although the fideicommissary isentitled to all the rights of a naked owner.

CHAPTER 9: CONDITIONAL TESTAMENTARYDISPOSITIONS AND DISPOSITIONS WITH A

TERM

TESTAMENTARY DISPOSITIONS1. Condition future or uncertain event, or a past

event unknown to the parties, upon which theperformance of an obligation depends

2. Term the day or time when an obligation eitherbecomes demandable or terminates

3. Modal Institut ion the statement of theinstitution; application of the property left by thetestator or the charge imposed on him

4. Disposicion Captatoria condition that the heirshall make some provision in his will of the

testator or of any other person (prohibitedbecause it will make the making of the will acontractual act)

5. Causal Condition condition us casual if itdepends upon chance and/or upon the will of athird person

6. Mixed Condition - It is mixed if it depends bothpartly upon the will of the heir himself and uponchance and/or the will of a third person

7. Potestative Condit ion one the fulfillment ofwhich depends purely on heir

8. Suspensive term one that merely suspendsthe demandability of a right. It is sure to happen

9. Caucion Muciana bond or security that shouldbe given in favor of those who would get the

property if the condition not be complied with

INTERPRETATION

When in doubt whether there is a condition ormerely a mode, consider the same as mode

When in doubt as to whether there is a mode ormerely a suggestion, consider same only as asuggestion

The condition suspends but does not obligate,the mode obligates but does not suspends (for hewho inherits with a mode is already an heir; onewho inherits conditionally is not yet an heir.)

RULES ON POTESTATIVE, CASUAL AND MIXEDCONDITIONS

1. POTESTATIVE

Positive Potestative Condition:

General Rule must be fulfilled as soon as theheir learns of the testators death

EXCEPTIONa. the condition was already complied with at

the time the heir learns of the testators deathb. the condition is of such nature that it cannot

be fulfilled againNegative Potestative Condition:

Heir must give security to guarantee the return ofthe value of property, fruits, and interests, incases of contravention

2. CASUAL OR MIXED

Positive

GENERAL RULE may be fulfilled at any othertime (before testators death), unless testatorprovides otherwise.

If ALREADY FULFILLED at the time of

execution of the willa. If testator unaware of fact of fulfillment-

deemed fulfilledb. If testator aware thereof

i. If it can no longer be fulfilled again deemed fulfilled

ii. If it can be fulfilled again must befulfilled again

Constructive Compliancea. if casual not applicable


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b. if mixed i. If dependent partly on chance not

applicableii. If dependent partly on will of third party

1. if 3rd

party interested applicable

2. if 3

rd

party not interested notapplicable

EFFECTS OF SUSPENSIVE CONDITION OR TERM

The estate shall be placed under administrationuntil

1. condition is fulfilled2. until it becomes certain condition will never be

fulfilled3. until arrival of the term

CONDITIONS PROHIBITING MARRIAGE

1. If a first marriage is prohibited conditionconsidered always as not imposed

2. If a subsequent marriage is prohibited asimposed by the deceased spouse or by his/herascendants or descendants - valid

3. if a subsequent marriage is prohibited andimposed by anyone else- considered not written

CHAPTER 10: LEGITIMES

The portion of the decedents estate reserved bylaw is called the legitime.

The heirs for whom the law reserves such portion

are called compulsory heirs.

CLASSES OF COMPULSORY HEIRS

1. Primary those who have precedence over andexclude other compulsory heirs

Legitimate children and descendants(legitimate), with respect to their legitimateparents and ascendants

2. Secondary those who succeed only in theabsence of the primary heirs

Legitimate parents and ascendants(legitimate), with respect to their legitimate

children and descendants3. Concurring those who succeed together with

the primary or the secondary compulsory heirs

Widow or widower (legitimate) the survivingspouse referred to is the spouse of thedecedent.

NOTE:a. Mere estrangement is not a ground for

the disqualification of the survivingspouse as heir

b. Effect of decree of legal separation:

i. On the offending spouse disqualifiedii. On the innocent spouse no effect

c. Death of either spouse during thependency of a petition for legal

separation dismissal of the case Illegitimate children and descendants

(legitimate or illegitimate)

Testator is a LegitimatePerson

Testator is anIllegitimate Person

Legitimate children anddescendant

Legitimate children anddescendants

In default of theforegoing, legitimateparents and ascendants

Illegitimate parents andascendants

Surviving spouse In default of the

foregoing, illegitimateparents only

Illegitimate children anddescendant

Surviving spouse

GENERAL RULES IN ASCERTAINING LEGITIMES

1. Direct descending linea. Rule of preference between linesb. Rule of proximityc. Right of representation ad infinitum in case of

predecease, incapacity or disinheritance2. Direct ascending line

a. Rule of division by lineb. Rule of equal division

3. Non-impairment of legitime - Any compulsoryheir who was given title less than his legitimemay demand that the same be completed (Art906)EXCEPTIONS:a. If the predecessor gave the compulsory heir

a donation inter vivos and provided that itwas not charged against the legitime (Art1062)

b. Testamentary dispositions made by thepredecessor to the compulsory heir, unless

the testator provides that it should beconsidered part of the legitime.

SHARES OF COMPULSORY HEIRS

1. Legitimate Children or Descendants -

Share of legitimate childrenand descendants

of the net estate

Free portion of the net estate


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2. Legitimate Parents and Ascendants

Share of legitimate parentsand ascendants

of the net estate

Free portion of the estate of the net estate

3. One legitimate child or descendant; Survivingspouse;

Share of a legitimate child of the net estate

Share of the surviving spouse of the net estate

Free disposable portion of the estate

4. Illegitimate child ren, legitimate child ren;

Share of children anddescendants

of the net estate

Share of each illegitimatechildren

of the legitime of eachlegitimate children orascendant

Free portion Whatever remains

5. Two or more legitimate child ren or descendant;surviving spouse

Share of legitimate children of the net estate

Share of the survivingspouse

Portion equal to the legitimeof each of the legitimatechildren or descendant

Free disposable portion Whatever remains

6. Legitimate parents or ascendants; Survivingspouse

Share of legitimate parents or

ascendants

of the net estate

Share of the surviving spouse of the free portion

Free disposable portion of the estate

7. Illegitimate child ren, surviving spouse

Share of illegitimate children 1/3 of the net estate

Share of surviving spouse 1/3 of the net estate

Free portion 1/3 of the net estate

8. Legitimate parents or ascendants; Illegitimatechildren


of the net estate

Illegitimate children of the net estate

Free portion of the estate

9. Surviving spouse; Legitimate children anddescendant; Illegitimate children

Share of legitimate childrenand descendants

of the net estate

Surviving spouse Equal to the portion of thelegitime of each legitimatechild

Illegitimate children of the share of eachlegitimate child

Free portion Whatever remains

10. Surviving spouse; Legitimate parents orascendants; Illegitimate children


of the net estate

Surviving spouse 1/8 of the estate

Illegitimate children of the estate

Free portion 1/8 of the estate

11. Surviving spouse only; Exception: Marriage inarticulo mortis

Surviving spouse only of the net estate


Surviving spouse only(marriage in articulo mortis)

1/3 of the net estate

Free portion 2/3 of the estate

12. Illegitimate children only.

Share of illegitimate children of the net estate


13. Illegitimate parents on ly; With illegit imate andlegitimate children or descendant; With survivingspouse.

Share of illegitimate parentsonly

of the net estate


Share of illegitimate parents of the net estate

Share of the survivingspouse

of the estate


STEPS IN DETERMINING THE LEGITIME OFCOMPULSORY HEIRS:

1. Determination of the gross value of the estate atthe time of the death of the testator;2. Determination of all debts and charges which are

chargeable against the estate;3. Determination of the net value of the estate by

deducting all the debts and charged from thegross value of the estate;

4. Collation or addition of the value of all donationsinter vivos to the net value of the estate;

5. Determination of the amount of the legitime fromthe total thus found;


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6. Imputation of all the value of all donations intervivos made to compulsory heirs against theirlegitimes and of the value of all donations intervivos made to strangers against the disposablefree portion and restoration to the hereditary

estate if the donation is inofficious.7. If legitime is impaired, the following reductionsshall be made:a. First, reduce pro-rata non-preferred legacies

and devises, and the testamentarydispositions.

b. Second, reduce pro rata the preferredlegacies and devises

c. Third, reduce the donations inter vivosaccording to the inverse order of their dates

8. Distribution of the residue of the estate inaccordance with the will of the testator.

CHAPTER 11: RESERVA TRONCAL

It constitutes as an exception to both the systemof legitime and the order of intestate succession.

PURPOSE OF RESERVA TRONCAL:

1. To reserve certain properties in favor of certainpersons;

2. To prevent person outside a family fromacquiring, by some chance or accident, propertywhich otherwise would have remained with thesaid family;

3. To maintain a separation between paternal andmaternal lines.

REQUISITES OF RESERVA TRONCAL

1. The property should have been acquired byoperation of law by an ascendant(RESERVISTA) from his descendant(PROPOSITUS)upon the death of the latter.NOTE: by operation of law is limited tosuccession, either by legitime or intestacy

2. The property should have been previouslyacquired by gratuitous title by the propositusfrom another ascendant or from a brother orsister (ORIGINATOR).

NOTE: gratuitous encompasses transmissions bydonation and succession.

3. The propositus should have died without anylegitimate issue in the direct descending line whocould inherit from him.

NOTE: Nieva v. Alcala, 41 Phil 495, allrelationships must be legitimate

PERSONAL ELEMENTS

1. ORIGINATOR the ascendant, brother or sisterfrom whom the propositus had acquired theproperty by gratuitous title

2. PROPOSITUS The descendant who died andfrom whose death the reservistas in turn hadacquired the property by operation of law. The socalled ARBITER OF THE FATE OF THERESERVA TRONCAL.Note: Prepositus canterminate the reserva by:

Reserva Troncal - The reservation by virtue ofwhich an ascendant who inherits from hisdescendant any property which the latter may haveacquired by gratuitous title from another ascendantor a brother or sister, is obliged to reserve theproperty form the benefit of relative within the 3

rd

degree and who belong from the same line fromwhich the property came from.

a. Substituting or alienating the propertyb. By bequeathing or devising it either to the

potential reservista or to other third personc. By partitioning it and assigning the property

to parties other than the reservista3. RESERVISTA The ascendant, not belonging to

the line from which the property came that is theonly compulsory heir and is obliged to reservethe property.

4. RESERVATARIOS The relative of thepropositus within the 3rg degree and who belongto the line from which the property came and forwhose benefit reservation is constituted. Theymust be related by blood not only to thepropositus but also to the originator.

NOTE:The Civil Code did not provide for therules on how the reservatarios wouldsucceed to the reservista. However, thefollowing rules on intestacy have beenconsistently applied:

a. Rule of preference between the linesb. Rule of proximity

c. Right of representation provided that therepresentative is a relative within the 3

rd

degree, and that he belongs to the line fromwhich the reservable property came

d. full blood/double share rule in Article 1006

NOTE: Gonzales v. CFI, 104 Phil 479, thereservista had no power to appoint, by will, whichreservatarios were to get the reserved property


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RIGHT OF THE RESERVATARIOS OVER THERESERVABLE PROPERTY

1. Death of Propositus qualified reservatario

merely acquire an inchoate right. The reservistasown the property subject to the resolutorycondition

2. Death of Reservista surviving reservatariosacquire a perfect right.

RIGHT OF THE RESERVISTA OVER THERESERVABLE PROPERTY

1. The right of the reservista over the reservedproperty is one of ownership

2. The ownership is subject to a resolutory condition3. the right of ownership is alienable4. The right of ownership is registrable

Reserva Maxima Rerserva Minima

Much of the potentiallyreservable property aspossible must be demedincluded in the part thatpasses by operation oflaw

Every single property inthe Prepositus estatemust be deemed topass, partly by will andpartly by operation oflaw, in the sameproportion that the partgiven by will bears to thepart not so given

Maximizes the scope ofreserva

Minima finds wideracceptance here

EXTINGUISHMENT OF RESERVA TRONCAL1. The death of the Reservista2. Thedeath of the all the Reservatorios3. Renunciation by all Reservatorios, provided none

is born subsequently4. Total Fortuitous loss of the reserved property5. Confusion or merger of rights6. Prescription or adverse possession

CHAPTER 12: DISINHERITANCE

CAUSES OF VACANCY IN SUCCESSION

1. Disinheritance - The testator creates it himself2. Repudiation - The heir does something3. Incapacity/Predecease - Something happens to

the heir

HOW VACANCIES ARE FILLED

1. Substitution

2. Representation3. Accretion

DISINHERITANCE

1. Heir is being deprived of his legitime.2. Only in cases of testate succession.3. Counterpart in intestate is unworthiness.4. Will containing disinheritance must be probated.5. Effect: Heir loses legitime.6. However, the disinherited heir can be

represented in the legitime.a. Only in the descending line, never in the

ascendingb. In collateral line, only with respect to

nephews and nieces.7. In the free portion, SAI8. Even if validly disinherited, heir can still be validly

restored in the legitime by RECONCILIATION.9. Reconciliation when in speaking terms again,

no particular form10. In unworthiness, there must a pardon in writing to

remove incapacity to inherit. However, it does nothave to be in a will.

11. If grounds for disinheritance and unworthinessare common, reconciliation does not erase thefact that the heir is unworthy.

12. As long as there is reconciliation, it should beconsidered to have revoked the inheritance aswell as the unworthiness.

13. Ineffective disinheritance v. Preterition

REQUIREMENTS FOR VALID DISINHERITANCE

1. Effected only through a valid will;2. For a cause expressly stated by law;3. Cause must be expressly state in the will itself;4. Cause must be certain and true;5. Unconditional;6. Total; AND7. The heir disinherited must be designated in such

a manner that there can be no doubt as to hisidentity.

GROUNDS FOR DISINHERITANCE

Grounds for Disinheritance Common To AllCompulsory Heirs

1. Attempt on the life of testator, spouse,ascendant, descendanta. Conviction necessaryb. In case of spouse, giving cause for legal

separation, no conviction neededc. Include both attempted and frustrated.


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d. Attempt on life of relatives, may beconsummated.

2. Accusation of a crime with penalty of sixyears or more.a. Penalty imposable, not actually imposed.

b. Made by the heir in a proceeding as acomplainant or witness in a criminal case.c. Found to be groundless, false.d. Groundless court should make a positive

finding that the testator has not committedthe crime. It is then false.

e. Chismis not the one referred here, it isoutside criminal proceeding.

3. Induce testator to make/change the will .a. Will purely personalb. Vices of consent.c. It does not punish the result but the

interference in the making/changing of thewill.

d. Will + disinheritance (will making)e. Will + amended will + disinheritance (will

changing)4. Support unjusti fiably not given.

a. Must prove obligation to give supportb. Spouses: mutual obligation to give supportc. Reason must be unjustifiable

Grounds for Disinheritance Common betweenAscendants and Descendants

Adul tery and Concubinage with the spouse ofthe testator

1. It must be the heir who committed such liaison2. With the legal spouse of the testator3. Not necessarily incestuous4. Applicable to both legitimate and illegitimate

descendant

Grounds for Disinheritance Common Ascendantand Spouse (in addition to A, B)

Loss of parental authority

1. Causes: Arts. 230, 231, 232 of the Family Code

2. Ascendant of testator3. Spouse has given cause for loss of parental

authority.4. No actual deprivation, but it must exist. It means

that the act is committed which may be a causefor loss of parental authority over their commonchildren, EXCEPT for those enumerated in A.

5. There are no common grounds between spouseand descendants.

Grounds for Disinheritance Only againstDescendant

1. Maltreatment of testatora. By word slander, offensive language,

insult, libel. May be spoken or written.b. By deed no need for violence,something which caused the testator tobe humiliated. Laying hands if not underattempt on life.

2. Leading a disgraceful life(or dishonest)i.e., daughter living with a married man,estafadora, prostitutes, drug dealers, drugaddict.

3. Commission of crime which carries with it thepenalty of civil interdiction

a. Descendant convicted of crime with civilinterdiction. Necessarily imposable, notactually imposed.

b. Reclusion temporal, reclusion perpetua.

Ground for Disinheritance Only againstAscendants (Parents)

1. Abandonment by parentsa. Willfully left the children to fend for

themselvesb. Abdication of parental duties.c. Only refers to abandoned child.d. Induced daughters to lead a disgraceful life

also applicable to sons.2. Attempt on the life of one parent against

another parent.a. Parent v. parentb. Even if parents are not married, it is still a

ground.c. No need for conviction. As long as the heir

can prove that there is an attempt.d. They do not need to be spouses. However,

the testator must be a common child.

Grounds for Disinheritance Only against spouse refers to legal spouses on ly, legally married toeach other

1. Giving cause for legal separationa. No need for previous convictionb. Prove infidelity if cause is contestedc. No need to prove grounds unless contested

by the heir.d. Legal separation instituted but not

terminated, OKe. If there is already a decree:

i. Ground is conclusiveii. But, there is a need to disinherit


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iii. Effects: Guilty spouse is not entitled toinherit.

f. See 10 causes under the Family Code.2. Support refusal to give support to the children

a. Offended the testator

b. Common children of the testator and thespousec. Spouse refuses to give support to the childd. Parents share in support of their common

children. Refusal of the other spouse causesdamage to the other. (testator)

IMPERFECT DISINHERITANCE

EFFECTS OF IMPERFECT DISINHERITANCE

1. If the testator had made disposition of the entireestate; annulment of the testamentary dispositiononly in so far as they prejudice the legitime of theperson disinherited; does not affect thedispositions of the testator with respect to thefree portion

2. If the testator did not dispose of the free portion;compulsory heir given all that he is entitled toreceive as if the disinheritance has not beenmade, without prejudice to lawful dispositions

made by the testator in favor of others3. Devisees, legacies and other testamentary

dispositions shall be valid to such extent as willnot impair the legitime

IMPERFECTDISINHERITANCE

PRETERITION

Person disinherited may beany compulsory heir

The person omitted mustbe a compulsory heir in thedirect line

Always express Always implied

Always intentional May be intentional orunintentional

Effect: partial annulment of

institution of heirs

Effect: total annulment of

institution of heirs

REVOCATION OF DISINHERITANCE1. Reconciliation2. Subsequent institution of the disinherited heir3. Nullity of the will which contains the

disinheritance

NOTE: Where the ground for disinheritance isalso a ground for unworthiness to succeed, what

is the effect of a subsequent reconciliation uponthe heirs capacity to succeed?

1. If disinheritance has been made: Rule onreconciliation applies, the disinheritancebecomes ineffective

2. If disinheritance has not been made: The rule onreconciliation does not apply, the heir continuesto be incapacitated to succeed unless the testatorpardoned him under Art. 1033.

CHAPTER 13: LEGACIES AND DEVICES

PERSONS CHARGED WITH LEGACIES ANDDEVICES:

Imperfect Disinheritance - Disinheritance whichdoes not have one or more of the essentialrequisites for its validity.

1. Compulsory heir;2. Voluntary heir;3. Legatee or devisee;4. Estate.

If the will is silent as to who shall pay or deliverthe legacy/devise, there is a presumption thatsuch legacy or devise constitutes a chargeagainst the decedents estate

Since legacies and devises are to be taken fromthe disposable free portion of the estate, theprovisions on institution of heirs are generallyapplicable to them

ORDER OF PAYMENT IN CASE ESTATE ISINSUFFICIENT TO COVER ALL LEGACIES ANDDEVICES

1. Remuneratory legacies or devises2. Legacies or devises declared by the testator to

be preferential3. Legacies for Support4. Legacies for Education5. Legacies or devises of a specific, determinate

thing which forms a part of the6. estate7. All others, pro-rata

WHEN LEGACY/DEVISE CAN BE REVOKED BYOPERATION OF LAW

1. If the testator transform the thing bequeathed ordevised in such a manner that it does not retainits form and denomination

2. If the testator, by any title or for any cause,alienates the thing bequeathed or devised or anypart thereof

3. If the thing bequeathed or devised is totally lostduring the lifetime of the testator, or after hisdeath without the heirs fault


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4. If the legacy is a credit against a third person orthe remission of a debt, and the testator,subsequent to the making of the will brings anaction against such debtor for payment

VALIDITY AND EFFECT OF LEGACY/DEVISEPlease Refer to Succession Table 1

GROUNDS FOR REVOCATION OF LEGACIES ORDEVISES

1. Testator transforms the thing bequeathed in sucha manner it does not retain either the form or thedenomination it had.

2. The testator by any title or for any causealienates the thing bequeathed, or any partthereof, it being understood that in the latter casethe legacy or devise shall be without only withrespect to the part alienatedEXCEPT: when the thing should again belong tothe testator after alienation.

3. The thing bequeathed is totally lost during thelifetime of the testator, or after his death withoutthe heirs fault;

4. Other Causes: nullity of the will; noncompliancewith suspensive conditions affecting thebequests; sale of the thing to pay the debts of thedeceased during the settlement of his estate.

CHAPTER 14: GENERAL PROVISIONS ON LEGALOR INTESTATE SUCCESSION

CAUSES OF INTESTATE SUCCESSION INGENERAL

1. In the absence of applicable valid willa. Annulment of institution of heirs.b. When will loses its validity.c. Testator did not make any will.

d. Will not probated.e. Revocation.f. Preterition

2. In the absence of qualif ied heirsa. Ineffective disinheritance (a portion)b. Repudiation (one or all)c. Incapacityd. Disinheritancee. Institution subject to conditions

i. Suspensive condition did not happenii. Resolutory condition happens.

iii. Expiration of term or period of institution

BASIC PRINCIPLES IN INTESTATE SUCCESSION

1. Intestate heirs always related by blood.

Except:a. Spouse - not related by blood, stranger in thefamily

b. Adoptive relation adopter/adopted, fictionby law created by adoption, purely personal

c. State in the event no heir can inherit.2. The nearer excludes the farther (rule of

proximity) the relative nearest in degreeexclude the farther one.

3. Direct l ine is always preferredover collateral4. Ascending line is always preferred over collateral5. Descending line is always preferred over

ascending and collateral lines.6. Rule of equal division the relatives who are

in the same degree shall inherit in equal sharessame classException:a. Descending line difference in class in the

cases of legitimate or illegitimate filiation.i. In case of paternal/maternal linesii. Collateral half or full blood

b. Ascending line the shares are dividedequally between maternal and paternal lines,which could result to unequal shares whenthere is only one grandparent in the maternalline while both grandparents survived in thepaternal side.

NOTE: In all cases where there has been aninstitution of heirs, follow the I.S.R.A.I. order ofJustice Paras. If the Institution fails, Substitutionoccurs. If there is no substitute, right ofRepresentation applies in the direct descending lineto the legitime of the vacancy is caused bypredecease, incapacity or disinheritance. The right of

Accretion applies to the free portion when therequisites in Article 1016 are present. If there is nosubstitute, and the right of representation or accretiondoes not apply, the rule of Intestate succession shalltake over.

REPRESENTATION - Instances whenRepresentation Occurs:

1. Predecease2. Incapacity of Unworthiness3. Disinheritance

NOTE: In case of repudiation, accretion takesplace.

Sayson v. CA, 205 SCRA 324, although arenouncer cannot be represented, he canrepresent the person whose inheritance he has

renounced.


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IN WHAT KINDS OF SUCCESSIONREPRESENTATION OPERATES

1. Legitimes

The children and descendants of the persondisinherited shall take his or her place and shallpreserve the rights of compulsory heir withrespect to the legitime (Art 923)

And only when the heir to be represented:a. Predecease, becomes incapacitated, or was

disinherited by the testator.b. Is a compulsory heir.c. No right of representation if the heir to be

represented is a voluntary heir.2. Intestate succession

Representation occurs in all intestate estate. Alllegal heirs may be represented when proper. (Itis not proper only when the heir to berepresented repudiated his share in theinheritance)

IN WHAT LINES DOES REPRESENTATIONOBTAIN

1. Legitime- in the direct descending line only.Representation does not exist in the ascendingline. Hence, the father cannot represent the son

in the inheritance from the grandfather.2. Intestacy:

a. In the direct descending line.b. In the collateral line, it takes place only in

favor of the children of brother or sisters(nieces and nephews of the decedent, notgrand-nieces or grand-nephews). NOTE: Ifall the brothers and sisters are disqualified,the nephews and nieces shall inherit percapita.

REPRESENTATION OF ILLEGITIMATE ORADOPTED CHILDREN

1. If the child to be represented is legitimate onlylegitimate children and descendants canrepresent him.

2. If the child to be represented is illegitimate bothlegitimate and illegitimate children/descendantscan represent him.

2. An adopted child can neither represent nor berepresented

QUALIFICATIONS TO REPRESENT

1. The representative himself must have capacity tosucceed the decedent

2. The representative need not be qualified tosucceed the person represented.

HOW REPRESENTATION OPERATES

Division shall be made PER STIRPES.

THE SUCCESSIONAL BARRIER

An illegitimate child has no right to inherit abintestato from the legitimate children andrelatives of his father or mother; nor shall suchchildren or relatives inherit in the same mannerfrom the illegitimate child. (Art 992)

The Barrier rule only applies if there is a

legitimate and illegitimate relation. Example: A isthe legitimate son of B. C is the illegitimate son of

A. C cannot inherit from B if A predeceases, orbecomes incapacitated or be disinherited by B.

CHAPTER 15: ORDER OF INTESTATESUCCESSION

INTESTATE HEIRS

1. Legitimate Children/Descendants2. Illegitimate Children/Descendants

3. Legitimate Parents/ Ascendants4. Illegitimate Parents5. Surviving Spouse5. Brothers, Sisters, Nephews, Nieces6. Other Collaterals to the 5

thdegree

7. State

RULES OF EXCLUSION AND CONCURRENCEPlease Refer to Succession Table 2

Factual Situation Division

If all the children are

disqualified

All grandchildren still

inherit per stirpesIf all the brothers /sistersare disqualified

Nephews and niecesinherit per capita

Teotica v. Del Val, 13 SCRA 406, therationale why an adopted child can neitherrepresent or be represented is because the

legal relationship created by the adoption isstrictly between the adopter and the adopted


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WHEN DECEDENT HAS NO HEIRS

1. Assignment and Disposition of Assetsa. if decedent is a resident of the Philippines at

any time

i. Personal property to the municipality oflast residenceii. Real property where situated

b. If decedent was never a resident of thePhilippines

i. Personal and real property whererespectfully situated

2. How Property is to be Useda. For the benefit of public educational and

charitable institutions in the respectivemunicipalities/cities

b. Alternatively, at the instance of an interestedparty, or motu proprio, the court may orderthe permanent trust for the benefit of theinstitutions concerned

CHAPTER 16: PROVISIONS COMMON TOINTESTATE AND INTESTATE SUCCESSION

RIGHT TO ACCRETION

1. In Testamentary Successiona. Predeceaseb. Incapacityc. Repudiationd. Non-fulfillment of suspensive condition

imposed upon instituted heire. Ineffective testamentary disposition

2. In Intestate Successiona. Predecease of a legal heir (only when

representation does not apply)b. Incapacity of legal heir (only when

representation does not apply)c. Repudiation by a legal heir

ELEMENTS OF ACCRETION IN TESTAMENTARYSUCCESSION

1. Two or more persons are called to the same

inheritance, or to the same portion thereof, proindiviso (aliquot share)a. In cases of legacy or devise, as long as there

is no specific designation of the specificshare of each legacy or devise.

b. Not necessarily equal.c. Once a certain specific part of the free

portion has already been specificallyearmarked, there is no accretion and there isno express provision on accretion.

d. But, it is okay to earmark parts of the freeportion as long as no specific property hasbeen designated.

NOTE: The heir to whom the portion goes bythe right of accretion takes it in the same

proportion that they inherit

2. Renunciation, predecease or incapacity of one(or more but less than all) of the instituted heirs.

FUNDAMENTAL PRINCIPLES IN ACCRETION

1. Accretion in testate succession only takes place inthe free portion. No accretion in the legitimebecause when the compulsory heir repudiates hislegitime, the other co-compulsory heir inherits therepudiated share in their own right and notthrough accretion. If the cause of the vacancy isPID, representation will occur.

2. Accretion also takes place in cases of deviseesand legatees and usufructuaries under the sameconditions established for heirs.

3. Accretion is subordinate to substitution, becausesubstitutes are instituted by the testator; hence,express will prevails over presumed will.

NOTE: if there is neither accretion norsubstitution in testamentary succession, the partleft vacant will lapse into testacy

4. The one that the heir gets from accretion can berenounced separate from the inheritanceattributed to the heir who will renounced theaccrued inheritance.

CAPACITY TO SUCCEED

The following are capable of succeeding:

1. Natural Personsa. General Rule must be living when

succession opens. NOTE: It is enough thatthe heir, devisee or legatee be alreadyconceived in accordance with Arts 40 and 41,to be considered living.

b. If institution subject to a suspensivecondition successor must be living both

when decedent dies and when thecondition happens

c. If institution subject to a suspensive term must be alive only at the moment ofdecedents death, successor need not bealive when the term alives.

2. Juridical Personsa. Organizations or associations which

possess juridical personality


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WHO ARE INCAPABLE OF SUCCEEDING

1. Those Prohibited underArt 1027a. Priest who heard the confession of the

testator during his last illness, or the minister

of the gospel who extended spiritual aid tohim during the same period

b. Relatives of such priest or minister of thegospel within the 4

th degree, the church,

order, chapter, community, organization, orinstitution to which such priest or ministermay belong

c. Guardian with respect to testamentarydispositions given by a ward in his favorbefore the final accounts of the guardianshiphave been approved, even if the testatorshould die after the approval thereof;EXCEPT if the guardian is his ascendant,

descendant, brother, sister, or spoused. Attesting witness to execution of will, theirspouses, parents, children or any oneclaiming under such witness, spouse,parents or children

e. Physician, surgeon, nurse, health officer ordruggist who took care of the testator duringhis last illness

f. Individuals, associations, and corporationsnot permitted by law to inherit

2. Those prohibi ted under Art 739from giving andreceiving donation from each other.a. Those made between persons who were

guilty of adultery or concubinage at the time

of the donation;b. Those made between persons found guilty of

the same criminal offense, in considerationthereof;

c. Those made to a public officer or his wife,descedants and ascendants, by reason of hisoffice.

3. The following are incapable of succeeding byreason of unworthiness:a. Parents who have abandoned their children

or induced their daughters to lead a corruptor immoral life, or attempted against theirvirtue;

b. Any person who has been convicted of anattempt against the life of the testator, his orher spouse, descendants, or ascendants;

c. Any person who has accused the testator ofa crime for which the law prescribesimprisonment for six years or more, if theaccusation has been found groundless;

d. Any heir of full age who, having knowledge ofthe violent death of the testator, should fail toreport it to an officer of the law within a

month, unless the authorities have alreadytaken action; this prohibition shall not applyto cases wherein, according to law, there isno obligation to make an accusation;

e. Any person convicted of adultery or

concubinage with the spouse of the testator;f. Any person who by fraud, violence,intimidation, or undue influence should causethe testator to make a will or to change onealready made;

g. Any person who by the same meansprevents another from making a will, or fromrevoking one already made, or whosupplants, conceals, or alters the latter's will;

h. Any person who falsifies or forges asupposed will of the decedent. (756, 673,674a)

NOTE: The cause of unworthiness shall bewithout effect if the testator had knowledgethereof at the time he made the will, or if,having known of them subsequently, heshould condone them in writing. (757a)

ADDITIONAL NOTES

1. The capacity to succeed is governed by the lawof the nation of the decedent.

2. Persons not incapacitated by law may succeedby will or ab intestato.

3. If the heir excluded from the inheritance byreason of incapacity is a compulsory heir, and if

such compulsory heir has children ordescendant, the latter shall acquire theincapacitated heirs right to the legitime (byrepresentation.).

4. A testamentary provision in favor of a disqualifiedperson, even though made under the guise of anonerous contract, or made through anintermediary, shall be void. (755)

ACCEPTANCE OF INHERITANCE Two k inds:

1. Expressa. Public Documentb. Private Writing

2. Tacit Acceptancea. When heir sells, donates, or assigns his right.b. When heir renounces it for the benefit of one

or more heirs.c. When renunciation is in favor of all heirs

indiscriminately for considerationd. Other acts of tacit acceptance:

i. Heir demands partition of the inheritance


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ii. Heir alienates some objects of theinheritance

iii. Under Article 1057, failure to signifyacceptance or repudiation within 30 daysafter an order of distribution by the

probate court.

CHARACTERISTICS OF REPUDIATION

1. Free and Voluntary Act2. Irrevocable once made and cannot be impugned,

except in cases vitiating consent.3. Retroactive

REQUISITES FOR A VALID REPUDIATION

1. Heir repudiating must be certain of two thingsbefore repudiating:a. Death of the person from whom he is to

inherit;b. Right to the inheritance.

2. Who may repudiate? Any person having thefree disposal of his property.

3. How is repudiation made? The repudiation ofthe inheritance shall be made in a public orauthentic instrument, or by a petitionpresented to the court having jurisdiction over thetestamentary or intestate proceedings.a. If the heir repudiates the inheritance to the

prejudice of his own creditors, the latter maypetition the court to authorize them to acceptit in the name of the heir.

b. If an heir is both a testate and legal heir,repudiation of the inheritance as a testateheir, he is understood to have repudiated inboth capacities. However, should herepudiate as a legal heir, without knowledgeof being a testate heir, he may still accept theinheritance as a legal heir.

NOTES: If renounced in favor of other heirs,does it mean acceptance? It depends:

a. If specific heir whether or not renouncingheir receives anything, considered as

acceptance on the part of the heir. There aretwo transfers.

b. If gratuitousi. In favor of all his co heirs indiscriminately

- there is repudiation because heirdeemed to have not accepted. Hence,accretion takes place.

ii. In favor of all co-heirs but in proportiondifferent from those they would receiveby accretion: considered as tacitacceptance.

iii. If gratuitous in favor of one or some ofhis co-heirs deemed conveyance infavor of the co-heirs specified, hencethere is acceptance.

c. If onerously:

There is no repudiation Transfer considered to be with

consideration

There are also tax implications becausethere are two transfers.

COLLATION

Collation is the act by virtue of which, thepersons who concur in the inheritance bringback to the common hereditary mass theproperty which they have received from him,so that a division may be effected according to

law and the will of the testator.

To collate is to bring back or to return to thehereditary mass, in fact or by fiction, propertywhich came from the estate of the decedent,during his lifetime, but which the law considersas an advance from the inheritance.

PROPERTIES OR RIGHTS RECEIVED BYCOMPULSORY HEIR NOT SUBJECT TOCOLLATION

1. Property left by will2. Property which may have been donated by an

ascendant of the compulsory heir3. Property donated to the spouse of the

compulsory heir4. Expenses for support, education, medical

attendance even in extraordinary illness,apprenticeship, ordinary equipment or customarygifts

5. Expenses incurred by parents in giving theirchildren a professional, vocational, or othercareer

6. Wedding gifts consisting of jewelry, clothing andoutfit, given by parents or ascendants, so long asthey do not exceed 1/10 of the disposable portion

OPERATIONS RELATED TO COLLATION

1. Collation adding to the mass of the hereditaryestate the value of the donation or gratuitousdisposition

2. Imputing or Charging crediting the donationas an advance on the legitime (if the donee is a


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ATENEOCENTRALBAROPERATIONS2007compulsory heir) or on the free portion (if thedonee is a stranger)

3. Reduction determining to what extent thedonation will remain and to what extent it isexcessive or inofficious

4. Restitution return or payment of the excess tothe mass of hereditary estate.

PERSONS OBLIGATED TO COLLATE

GENERAL RULE: compulsory heirs

EXCEPT:a. When the testator should have so expressly

provided; andb. When the compulsory heir should have

repudiated his inheritance

CHAPTER 17 : PARTITION AND DISTRIBUTIONOF ESTATE

WHO MAY PARTITION

1. Decedent himself during his lifetime by an actinter vivos or by will;

2. Heir themselves;3. Competent court; 3

rd person designated by the

decedent

WHO CAN DEMAND PARTITION

1. Compulsory heir;2. Voluntary heir3. Legatee or devisee;4. Any person who has acquired interest in the

estate

WHEN PARTITION CANNOT BE DEMANDED(PAPU)

1. When expressly Prohibited by the testator himselffor a period not exceeding 20 years;

2. When the co-heirs Agreed that the estate shall

not be divided for a period not exceeding 10years, renewable for another 10 years;

3. When Prohibited by law;4. When to partition the estate would render it

Unserviceable for the use for which it is intended.

NOTE: Partition Inter Vivos it is one thatmerely allocates specific items or pieces ofproperty on the basis of the pro-indiviso shares

fixed by law or given under the will to heirs orsuccessors.

EFFECTS OF INCLUSION OF INTRUDER INPARTITION

1. Between a true heir and several mistaken heirs Partition is VOID

2. Between several true heirs and a mistaken heir transmission to mistaken heir is VOID

3. Through error or mistake; share of true heir isallotted to mistaken heir partition shall not berescinded unless there is bad faith or fraud on thepart of the other persons interested, but the lattershall be proportionately obliged to pay the trueheir of his share

NOTE:Partition with respect to the mistakenheir is VOID.

IMPORTANT PERIODS TO REMEMBERPlease Refer to Succession Table 4

Documents

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