Succession Beda

7/28/2019 Succession Beda

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San Beda College of Law Anthony Escasinas53

MEMORY AID IN CIVIL LAW

CIVIL LAW COMMITTEECHAIRPERSON:Romuald PadillaASST.CHAIRPERSON: Vida Bocar, Joyce VidadEDP: Alnaiza Hassiman, Dorothy GayonSUBJECT HEADS:Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. RhodoraFerrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Ste phenQuiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), An thony Purganan(LTD),Ma. Ricasion Tugadi (Conflicts of Law)

SUCCESSION

SUCCESSION A mode of acquisition by virtue

of which the property, rights andobligations to the extent of thevalue of the inheritance, of aperson are transmitted throughhis death to another or otherseither by his will or by operationof law.(Art. 774)

Kinds:1. Testamentary or Testacy (by will);2. Legal or intestacy (by operation of

law based on the decedentspresumed will);3. Mixed (Partly Testamentary and

Legal); and4. Partition inter vivos (to a certain

degree).

Elements:1. DECEDENT (subjective element)2. SUCCESSORS (subjective element)

a. Heirs - those who are called tothe whole or to an aliquotportion of the inheritance either

by will or by operation of law1) Voluntary those institutedby the testator in his will, tosucceed to the inheritanceor the portion thereof ofwhich the testator can freelydispose.

2) Compulsory or Forced thosewho succeed by force of lawto some portion of theinheritance, in an amountpredetermined by law,known as the legitime.

3) Legal or Intestate thosewho succeed to the estate ofthe decedent who dieswithout a valid will, or tothe portion of such estatenot disposed of by will.

b. Devisees or legatees - persons towhom gifts of real or personalproperty are respectively givenby virtue of a will

NOTE: The distinctions betweenheirs and devisees/legatees aresignificant in these cases:

1. Preterition (pretermission)2. Imperfect disinheritance3. After-acquired properties4. Acceptance or non-

repudiation of thesuccessional rights.

3. DEATH OF THE DECEDENT (casualelement)

Moment when rights to succeed are

transmitted (Art 777) However, a person may bepresumed deadfor the purpose ofopening his succession (see rules onpresumptive death). In this case,succession is only of provisionalcharacter because there is alwaysthe chance that the absentee maystill be alive.

4. Inheritance (objective element);

NOTE: Whatever may be the time whenactual transmission takes place,

succession takes place in any event atthe moment of the decedents death.(Lorenzo vs. Posadas 64 Phil 353)

SUCCESSION INHERITANCERefers to the legalmode by whichinheritance istransmitted to thepersons entitledto it

Refers to theuniversality orentirety of theproperty, rightsand obligations ofa person who died

Inheritance includes:1. PROPERTY, RIGHTS AND

OBLIGATIONS NOT EXTINGUISHED BYDEATHGeneral rules on rights andobligations extinguished by hisdeatha) Rights which arepurely personal

are by their nature and purposeintransmissible for they areextinguished by death (e.g.those relating to civilpersonality, family rights,discharge of office).


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b) Rights which are patrimonial orrelating to property aregenerally part of inheritance asthey are not extinguished by

death.c) Rights of obligations are bynature transmissible and mayconstitute part of inheritanceboth with respect to the rights ofthe creditor and as regards tothe obligations of the debtor.

2. ALL WHICH HAVEACCRUED THERETOSINCE THE OPENING OF SUCCESSION(Article 781 Civil Code)

I. TESTAMENTARY SUCCESSION

A. CONCEPT

WILL - an act whereby a person ispermitted, with the formalitiesprescribed by law, to control to a certaindegree the disposition of his estate totake effect after his death (Art. 783)

NOTE: Thus, a document that does notpurport to dispose of ones estate eitherby the institution of heirs or designationof devisees/legatees or, indirectly, byeffecting a disinheritance, is not to begoverned by the law on testamentarysuccession but by some other applicablelaws.

Kinds of Wills:1. Notarial or ordinary2. Holographic

Characteristics of a Will:1. UNILATERAL2. STRICTLY PERSONAL ACT - The

disposition of property is solelydependent upon the testator.

NOTE: The following acts MAY NOT beleft to the discretion of a third person:(Article 785, 787 Civil Code)duration or efficacy of the designation of

heirs, devisees or legatees;determination of the portions which they

are to take, when referred to byname; and

determination of whether or not thetestamentary disposition is to beoperative.

NOTE: However, the following acts MAYbe entrusted to a third person: (Article786 Civil Code)

a. distribution of specific propertyor sums of money that he may leavein general to specified classes orcauses; and

b. designation of the persons,institutions or establishments towhich such property or sums are tobe given or applied.

3. FREE AND VOLUNTARY ACT Any viceaffecting the testamentary freedom can

cause the disallowance of the will.4. FORMAL AND SOLEMN ACT Theformalities are essential for the validityof the will.5. ACT MORTIS CAUSA6. AMBULATORY AND REVOCABLE

DURING THE TESTATORS LIFETIME7. INDIVIDUAL ACT Two or morepersons cannot make a single joint will,either for their reciprocal benefit or foranother person. However, separate orindividually executed wills, althoughcontaining reciprocal provisions (mutual

wills), are not prohibited, subject to therule on disposicion captatoria.8. DISPOSITION OF PROPERTY

B. INTERPRETATION OF WILLS (ARTS.788-792)The testators intent (animus testandi),as well as giving effect to such intent, isprimordial. It is sometimes said that thesupreme law in succession is the intentof the testator. All rules of constructionare designed to ascertain and give effectto that intention. It is only when theintention of the testator is contrary tolaw, morals, or public policy that itcannot be given effect.

In case of doubt, that interpretation bywhich the disposition is to be operativeshall be preferred. That construction isto be adopted which will sustain anduphold the will in all its parts, if it canbe done consistently with theestablished rules of law.


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Kinds of Ambiguities: (Article 786)1. LATENT OR INTRINSIC AMBIGUITIES that which does not appear on the faceof the will and is discovered only by

extrinsic evidence.2. PATENT OR EXTRINSIC AMBIGUITIES that which appears on the face of thewill itself

NOTES:

There is no distinction betweenpatent and latent ambiguities, in sofar as the admissibility of parol orextrinsic evidence to aidtestamentary disposition isconcerned.

Extrinsic evidence to explainambiguities in a will cannot includeoral declarations of the testator asto his intention.

The validity of a will as to its formdepends upon the observance of lawin force at the time it is made. (Art.795).

If a law different from the law inforce at the time of the execution ofthe will goes into effect before orafter the death of the testator, sucha law shall not affect the validity of

the will, provided that such will wasduly executed In accordance withthe formalities prescribed by law inforce at the time it was made.

AFTER-ACQUIRED PROPERTY (Art. 793)Gen. Rule: Property acquired during theperiod between the execution of the willand the death of the testator is NOTincluded among the property disposedof.Exception: When a contrary intentionexpressly appears in the will

NOTE: This rule applies only to legaciesand devises and not to institution ofheirs.

C. TESTAMENTARY CAPACITYrefers to the ability as well as thepower to make a will.- must be present at the time of theexecution of the will.

Requisites:

1. At least 18 years of age2. Of sound mind, i.e., the ability to

know:

a. the nature of the estate to bedisposed of;

b. theproper objects of his bounty;and

c. the character of thetestamentary act.

NOTE: The law presumes that thetestator is of sound mind, UNLESS:a. he, one month or less, before makinghis will, was publicly known to beinsane; orb. was under guardianship at the time of

making his will. (Torres and Lopez deBueno vs. Lopez 48 Phil 772)

In both cases, the burden of provingsanity is cast upon proponents of thewill.

Effect of Certain Infirmities:1. mere senility or infirmity of old age

does not necessarily imply that aperson lacks testamentary capacity;

2. physical infirmity or disease is notinconsistent with testamentarycapacity;

3. persons suffering from idiocy (thosecongenitally deficient in intellect),imbecility (those who are mentallydeficient as a result of disease), andsenile dementia (peculiar decay ofthe mental faculties whereby theperson afflicted is reduced to secondchildhood) do not possess thenecessary mental capacity to make awill;

4. an insane delusion which will renderone incapable of making a will maybe defined as a belief in things whichdo not exist, and which no rationalmind would believe to exist;

5. if the insane delusion touches tosubject matter of the will,testamentary disposition is void.

6. a deaf-mute and blind person canmake a will (i.e. Art. 807-808). Ablind man with a sound and disposingmind can make a holographic will.

7. an intoxicated person or personunder the influence of drugs maymake a will as there is no complete

loss of understanding.


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Exception: where the testator hasused intoxicating liquor or drugsexcessively to such an extent as toimpair his mind, so that at the time

the will is executed, he does notknow the extent and value of hisproperty, or the names of personswho are the natural objects of hisbounty, the instrument thusexecuted will be denied probate forlack of testamentary capacity.

D. FORMALITIES OF WILLS(EXTRINSIC VALIDITY)

COMMON FORMALITIES1. Every will must be in writing; and

2. Executed in a language or dialectknown to the testator.

SPECIAL FORMALITIESI. NOTARIAL OR ORDINARY WILLa. SUBSCRIPTION made at the end

thereof by the testator himself or bythe testator's name written by someother person in his presence and byhis express direction; Subscription refers to the

manual act of testator and alsoof his instrumental witnesses of

affixing their signature to theinstrument.

b. ATTESTATION AND SUBSCRIPTION -(evidenced by an attestationclause) by 3 or more crediblewitnesses in the presence of thetestator and of one another; Attestation consists in the act of

witnesses of witnessing theexecution of the will in order tosee and take note mentally thatsuch will has been executed inaccordance with requirementsprescribed by law.

ATTESTATION SUBSCRIPTION1. an act of the

senses1. an act of thehand

2. mental act 2. mechanical act3. purpose is to

render availableproof duringprobate of will

3. purpose isidentification

c. MARGINAL SIGNATURES affixed bythe testator or the person requested

by him to write his name and theinstrumental witnesses of the will oneach and every page thereof, exceptthe last, on the left margin;

Exceptions to the rule that all of thepages of the will shall have to besigned on the left margin by thetestator and witnesses::

(1) in the last page, when the willconsists of two or more pages;(2) when the will consists of only onepage;(3) when the will consists of twopages, the first of which contains allthe testamentary dispositions and issigned at the bottom by the testator

and the witnesses and the secondcontains only the attestation clauseduly signed at the bottom by thewitnesses.

The inadvertent failure of onewitness to affix his signature to onepage of a testament, due to thesimultaneous lifting of two pages inthe course of signing, is not per sesufficient to justify denial of probate(Icasiano vs. Icasiano II SCRA 422).

d. PAGE NUMBERINGS Writtencorrelatively in letters placed on theupper part of each page;

NOTE: This is not necessary when all ofthe dispositive parts of a will are writtenon one sheet only.

e. ACKNOWLEDGMENT Done before anotary public by the testator and theinstrumental witnesses.

NOTE: The notary public before whomthe will was acknowledged cannot beconsidered as the third instrumentalwitness since he cannot acknowledgebefore himself his having signed the will.If the third witness were the notarypublic himself, he would have to avow,assent, or admit his having signed thewill in front of himself. To allow suchwould have the effect of having only twoattesting witnesses to the will whichwould be in contravention of Arts. 805and 806. (Cruz vs. Villasor 54 SCRA 31)


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MANNER OF SIGNING: The use of any signature, marks or

design intended by the testator toauthenticate renders the will

sufficiently signed by the testator. A signature by mark will be sufficient

even if at the time of placing it, thetestator knew how to write and isable to do so.

It is sufficiently signed by writing hisinitials, or his first name, or he mayuse even an assumed name.

A complete signature is not essentialto the validity of a will, provided thepart of the name written was affixedto the instrument with intent toexecute it as a will.

ATTESTATION CLAUSE- memorandum or record of factswherein the witnesses certify that thewill has been executed before them, andthat it has been executed in accordancewith the formalities prescribed by law. Absence of this clause will render

the will a nullity.

It must state the following ESSENTIALFACTS:

1. the number of pages used upon

which the will is written;HOWEVER, even if number of pages isomitted in the AC BUT if there is anacknowledgment clause which states thenumber of pages or the will itselfmentioned such number of pages, it maystill be considered valid applying theLiberal Interpretation of the law.(Tabuada vs. Rosal)

2. the fact that the testator signedthe will and every page thereof,

or caused some other person towrite his name, under hisexpress direction, in thepresence of the instrumentalwitnesses;

When the testator expressly causedanother to sign the formers name,this fact must be recited in theattestation clause. Otherwise, thewill is fatally defective. (Garcia vs.Lacuesta 90 Phil 489)

3. that the witnesses witnessed and

signed the will and all the pages

thereof in the presence of thetestator and of one another.

TEST OF PRESENCE: Not whether

they actually saw each other sign,but whether they might have seeneach other sign had they chosen todo so considering their mental andphysical condition and position withrelation to each other at themoment of inscription of eachsignature. (Jaboneta vs. Gustilo)

In the case of an ordinary or attestedwill, its attestation clause need notbe written in a language or dialectknown to the testator since it does

not form part of the testamentarydisposition.

The language used in the attestationclause likewise need not even beknown to the attesting witnesses.Art. 805 merely requires that, insuch a case, the attestation clauseshall be interpreted to saidwitnesses. (Caneda vs. CA 222 SCRA781)

Effects of defects or imperfections inthe Attestation Clause: If the defect of the attestation

clause goes into the very essence ofthe clause itself or consists in theomission of one, some, or all of theessential facts, and such omissioncannot be cured by an examinationof the will itself, the defect issubstantial in character, as aconsequence of which the will isinvalidated.

However, In the absence of bad

faith, forgery, fraud, or undue andimproper pressure and influence,defects and imperfections in theform of attestation or in thelanguage used therein shall notrender the will invalid if it is provedthat the will was in fact executedand attested in substantialcompliance with Art. 805 (formalrequirements). This is known as theDOCTRINE OF LIBERALINTERPRETATION (Art. 809)


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Purposes of requiring witness to attestand to subscribe to a will:1. identification of the instrument2. protection of the testator from fraud

and deception3. the ascertainment of thetestamentary capacity of thetestator.

NOTE: Certain points to consider(Tolentino)1. Mere knowledge by testator that

another is signing, and acquiescing init, there being no expressdirection, is NOT sufficient.

2. Not required that the name of theperson who writes the testators

name should also appear on the will;enough that testators name iswritten.

3. If the required numbers of attestingwitness are competent, the fact thatan additional witness, who wasincompetent also attested to thewill, cannot impair the validity.

4. Immaterial in what order the actsare performed provided thesignature or acknowledgment by thetestator and the attestation of thewitnesses be accomplished in one

occasion, and as part of onetransaction.

5. The law refers to page and not tosheet or leaf or folio, so every pageused in the will should be signed onthe left margin.

6. An attestation clause need be signedONLY by the witnesses and not bythe testator as it is a declarationmade by the witnesses.

7. date of will:a. ordinary will: not an essential

part;b. holographic will: an essential

part.8. Failure or error to state theplace of

execution will not invalidate thewill.

9. Signing of a will by the testator andwitnesses and acknowledgmentbefore a notary public, need not bea single act.

10.Testamentary capacity must alsoexist at the time ofacknowledgment.

ADDITIONAL REQUIREMENTS FORSPECIAL CASES1. Deaf or deaf-mute testator:

a) personal reading of the will, if

able to do so; ORb) if not possible, designation of 2persons to read the will andcommunicate to him, in somepracticable manner, thecontents thereof. (Article 807)

2. Blind testator: Double-reading requirement:a. first, by one of the subscribing

witnesses, ANDb. second, by the notary public

before whom the will isacknowledged. (Article 808)

Art. 808 applies not only to blindtestators but also to those who, forone reason or another are incapableof reading their wills (e.g. poor,defective or blurred vision).

In a case where the testator did notread the final draft of the will, butthe lawyer who drafted thedocument, read the same aloud inthe presence of the testator, 3witnesses, and notary public, theCourt held that the formal

imperfections should be brushedaside when the spirit behind the lawwas served though the letter wasnot. (Alvarado vs. Gaviola 226 SCRA347)

WITNESS TO NOTARIAL WILLS(ARTS. 820 & 821)Requirements:1. of sound mind;2. able to read and write;3. not blind, deaf or dumb;

4. at least 18 years of age;5. domiciled in the Philippines;6. has not been convicted of

falsification of a document, perjury,or false testimony

NOTE: A witness need not know thecontents of the will, and need not beshown to have had a good standing in thecommunity where he lives. Also, theacknowledging notary public cannot beone of the 3 minimum numbers ofwitnesses.


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Interested witness A witness to a will who is

incapacitated from succeeding fromthe testator by reason of a

devise/legacy or other testamentarydisposition therein in his favor, or infavor of his spouse, parent, or child.However, his competence as awitness subsists.

2. HOLOGRAPHIC WILL (Article 810)a. entirely written by the hand of

the testator;b. entirely datedby the hand of the

testator; andc. entirely signed by the hand of

the testator.

NOTE: The law exacts literalcompliance with these requirements.HENCE, THE DOCTRINE OF LIBERALINTERPRETATION CANNOT BE APPLIED.

Nevertheless, the Court held in acase that as a general rule, thedate in a holographic will shouldinclude the day, month, and year ofits execution. However, when thereis no appearance of fraud, bad faith,undue influence and pressure andthe authenticity of the will isestablished and the only issue iswhether or not the date FEB./61appearing on the will is a validcompliance with Art. 810, probate ofthe holographic will should beallowed under the principle ofsubstantial compliance. (In thematter of Intestate Estate of Andresde Jesus and Bibiana Roxas de Jesus,134 SCRA 245)

Rule in case of insertion, cancellation,erasure or alteration: Testator must authenticate the same

by his FULL SIGNATURE. (Article 814)

NOTE: In the case of Kalaw vs. Relova(134 SCRA 241), the holographic will indispute had only one substantialprovision, which was altered bysubstituting the original heir withanother, but which alteration did notcarry the requisite of full authenticationby the full signature of the testator, the

effect must be that the entire will is

voided or revoked for the simple reasonthat nothing remains in the will afterthat which could remain valid.

Effects of words written by anotherand inserted in the words written bythe testator:a. If the insertion was made after the

execution of the will, but withoutthe consent of the testator, suchinsertion is considered as notwritten, because the validity of thewill cannot be defeated by themalice or caprice of third person.

b. If the insertion after the executionof the will was with the consent ofthe testator, the will remains valid

but the insertion is void.c. If the insertion after the execution is

validated by the testator by hissignature thereon, then the insertionbecomes part of the will, and theentire will becomes void, becauseof failure to comply with therequirement that it must be whollywritten by the testator.

d. If the insertion made by a thirdperson is made contemporaneous tothe execution of the will, then thewill is void because it is not written

entirely by the testator.

Probate of Holographic Will1. If UNCONTESTED, requires that at

least 1 witness who knows thehandwriting and signature of thetestator explicitly declare that thewill and signature are in thehandwriting of the testator; if nowitness, expert testimony may beresorted to.

2. IfCONTESTED, requires at least 3 ofsuch credible witnesses, if noneexpert witness.

NOTE: Where the testator himselfpetitions for the probate of hisholographic will and no contest is file,the fact that he affirms that theholographic will and the signature are inhis own handwriting, shall be sufficientevidence thereof. If the holographic willis contested, the burden of disprovingthe genuineness and due executionthereof shall be on the contestant.


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A photostatic or xerox copy of a lostor destroyed holographic will may beadmitted because the authenticity ofthe handwriting of the deceased can

be determined by the probate court,as comparison can be made with thestandard writings of the testator.(Rodelas vs. Aranza, 119 SCRA 16)

GOVERNING LAW ON FORMALITIES1. As to time: The validity of a will as to its form

depends upon the observance of thelaw in force at the time it is made.Its intrinsic validity, however, isjudged at the time of thedecedents death by the law of his

nationality.

2. As to place:a. Filipino testator executing a will in

the Philippines: Philippine lawb. Filipino testator executing a will

outside of the Philippines: either1) The law of the country in which

it is executed; or2) The law of the Philippines.

c. Alien testator executing a will in thePhilippines: either1) The law of the Philippines; or

2) The law of the country of whichhe is a citizen or subject.

d. Alien testator executing a willoutside of the Philippines: either1) The law of the place where it is

executed; or2) The law of the place in which he

resides; or3) The law of his country; or4) The law of the Philippines.

Aspects of the will governed byNational Law of the Decedent (Article1039 and Article 16 Civil Code)a. Order of successionb. Amount of successional rightsc. Intrinsic validityd. Capacity to succeed

Joint will a single testamentaryinstrument which contains the wills oftwo or more persons, jointly executed bythem, either for their reciprocal benefitor for the benefit of a third person

--will of 2 or more persons is made in thesame instrument and is jointly signed bythem

Mutual wills wills executed pursuant toan agreement between two or morepersons to dispose of their property in aparticular manner, each in considerationof the other--separate wills of 2 persons, which arereciprocal in their provisions.

Reciprocal wills- wills in which thetestators name each other asbeneficiaries under similar testamentaryplans

NOTE: A will that is both joint andmutual is one executed jointly by two ormore persons, the provisions of whichare reciprocal and which shows on itsface that the devises are made inconsideration of the other. Such isprohibited.

Reasons:1. will is purely personal and unilateral

act2. contrary to the revocable character

of a will

3. may expose the testator to undueinfluence, and may even induce oneof the testators to kill the other.

NOTE: Joint wills executed by Filipinosin a foreign country shall not be valid inthe Philippines, even though authorizedby the foreign country in which they mayhave been executed (Article 819 CivilCode).

This prohibition is applicableonly in joint wills executed by Filipinosin a foreign country; it does NOT APPLYto joint wills executed by aliens.

E. CODICIL AND INCORPORATION BYREFERENCE

CODICIL A supplement or addition to a will,

made after the execution of a willand annexed to be taken as a partthereof, by which any dispositionmade in the original will is


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explained, added to, or altered.(Article 825)

NOTE: To be effective, it must beexecuted as in the case of a will. Its

execution has the effect of republishingthe will as modified.

INCORPORATION BY REFERENCE(ART 827) Contemplates only lists of

properties, books of accounts, andinventories.

Provisions which are in the nature oftestamentary dispositions must becontained in the will itself.

Requisites for a valid incorporation by

reference: (ART 827)1. The document or paper referred to

in the will must be in existence atthe time of the execution of thewill;

2. The will must clearly describe andidentify the same, stating amongother things the number of pagesthereof;

3. It must be identified by clear andsatisfactory proof as the documentor paper referred to therein;

4. It must be signed by the testator and

the witnesses on each and everypage, except in case of voluminousbooks of account or inventories.

F. REVOCATION OF WILLS ANDTESTAMENTARY DISPOSITIONS

REVOCATION An act of the mind, terminating the

potential capacity of the will tooperate at the death of the testator,manifested by some outward or

visible act or sign, symbolic thereof.Such right to revoke a will cannot bewaived or restricted.

LAWS WHICH GOVERN REVOCATION(ART 829)1. If the revocation takes place in the

Philippines, whether the testator isdomiciled in the Philippines or insome other country, it is valid whenit is in accordance with the laws ofthe Philippines

2. If the revocation takes place outside

the Philippines, by a testator who is

domiciled in the Philippines, it isvalid when it is in accordance withthe laws of the Philippines

3. Revocation done outside the

Philippines, by a testator who doesnot have his domicile in thiscountry, is valid when it is doneaccording to the:a. laws of the place where the

will was made, orb. laws of the place in which the

testator had his domicile at thetime of revocation;

MODES OF REVOCATION (ART 830)1. By implication of law:

a. legal separation revokes

testamentary provisions in favorof the offending spouse;

b. preterition revokes theinstitution of heir;

c. judicial action for recovery ofdebt revokes a legacy ofcredit/remission of debt;

d. transformation, alienation, orloss of bequeathed propertyrevokes a legacy of suchproperty;

e. act of unworthiness by an heir,devisee/legatee revokes

testamentary provisions in hisfavor;

f. if both spouses of thesubsequent marriage acted inbad faith, said marriage shall bevoid ab initio and testamentarydispositions made by one infavor of the other are revokedby operation of law (Art. 44,Family Code); and

g. void ab initio or annulledmarriages revoke testamentarydispositions made by one spousein favor of the other (Art. 50,Family Code).

2. By some will, codicil, or otherwriting, executed as provided in caseof wills, which may either be:a. Express when there is a

revocatory clause expresslyrevoking the previous will or apart thereof

b. Implied when the provisionsthereof are partially or entirelyinconsistent with those of the

previous will


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NOTE: While express revocation may beeffected by a subsequent will, or acodicil, or a nontestamentary writingexecuted as provided in case of wills,

implied revocation may be effected onlyby either a subsequent will, or a codicil.

3. By burning, tearing, cancelling, orobliterating the will.Requisites:a. testamentary capacity at the

time of performing the act ofdestruction;

b. intent to revoke (animusrevocandi);

c. actual physical act ofdestruction;

d. completion of the subjectivephase; and

e. performed by the testatorhimself or by some other personin his presence and expressdirection

(THE LIST IS EXCLUSIVE.)

NOTE: The act of revocation is apersonal act of the testator. He cannotdelegate to an agent the authority to dothe act for him. Another person,however, may be selected by him as an

instrument and directed to do therevocatory acts in his presence. Adestruction not accomplished in thetestators presence is an ineffectiverevocation of the will.

DOCTRINE OF PRESUMED REVOCATION Whenever it is established that the

testator had in his possession or hadready access to the will, but uponhis death it cannot be found orlocated, the presumption arises thatit must have been revoked by him byan overt act.

Where it is shown that the will wasin custody of the testator after itsexecution, and subsequently, it wasfound among the testators effectsafter his death in such a state ofmutilation, cancellation orobliteration as represents asufficient act of revocation, it willbe presumed in the absence ofevidence to the contrary, that suchact was performed by the testator

with the intention of revoking thewill.

DOCTRINE OF DEPENDENT RELATIVE

REVOCATION (ART 832) A revocation subject to a condition

does not revoke a will unless anduntil the condition occurs. Thus,where a testator revokes a willwith the proven intention that hewould execute another will, hisfailure to validly make a latter willwould permit the allowance of theearlier will.

Where the act of destruction isconnected with the making of

another will so as fairly to raise theinference that the testator meantthe revocation of the old to dependupon the efficacy of the newdisposition intended to besubstituted, the revocation will beconditional and dependent upon theefficacy of the new disposition; andif for any reason, the new willintended to be made as a substituteis inoperative, the revocation failsand the original will remains in fullforce (Vda. De Molo vs. Molo 90 Phil

37).

Revocation by mistake A revocation of a will based on a

false cause or an illegal cause is nulland void. Thus, where a testator bya codicil or later will, expresslygrounding such revocation on theassumption of fact which turns outto be false, as where it is stated thatthe legatees/devisees named thereinare dead, when in fact, they areliving, the revocation does not takeeffect.

G. REPUBLICATION AND REVIVAL OFWILLS

REPUBLICATION The act of the testator whereby he

reproduces in a subsequent will(express) the dispositions containedin a previous will which is void as toits form, or he executes a codicil(constructive) to his will.


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Its purpose is to cure the will of itsformal defects.

NOTES:

To republish a will void as to itsform, all the dispositions must bereproduced or copied in the new orsubsequent will;

To republish a will valid as to itsform but already revoked theexecution of a codicil which makesreference to the revoked will issufficient.

Effects of Republication by virtue of aCodicil:1. Codicil revives the previous will

2. The old will is republished as of thedate of the codicil makes it speak,as it were, from the new and laterdate.

3. A will republished by a codicil isgoverned by a statute enacted to theexecution of the will, but which wasoperative when the codicil wasexecuted.

REPUBLICATION REVIVAL

1. Takes place byan act of thetestator

1. Takes place byoperation of law.

2. Corrects extrinsicand intrinsicdefects.

2. Restores arevoked will

REVIVAL The restoration to validity of a will

previously revoked by operation oflaw (implied revocation).

PRINCIPLE OF INSTANTER

The express revocation of the firstwill renders it void because therevocatory clause of the second will,not being testamentary in character,operates to revoke the previous willinstantly upon the execution of thewill containing it.

NOTE: In implied revocation, the firstwill is not instantly revoked by thesecond will because the inconsistenttestamentary dispositions of the latterdo not take effect immediately but onlyafter the death of the testator.

H. ALLOWANCE AND DISALLOWANCE OFWILLS

PROBATE

A special proceeding mandatorilyrequired for the purpose ofestablishing the validity of a will.

The statute of limitations is notapplicable to probate of wills.

Questions determinable by the probatecourt: (ICE)1. identity of the will;2. testamentary capacity of the

testator at the time of the executionof the will; and

3. due execution of the will.

GENERAL RULE: In probateproceeding, the courts area of inquiry islimited to an examination of, andresolution on the extrinsic validity if thewill, the due execution thereof, thetestatrixs testamentary capacity andthe compliance with the requisites orsolemnities prescribed by law. Theprobate court cannot inquire into theintrinsic validity of testamentaryprovisions.

EXCEPTION: Practical considerations,e.g. when the will is intrinsically void onits face.

In Nuguid vs Nuguid (17 SCRA 449),the Supreme Court held that, if thecase were to be remanded forprobate of the will, nothing will begained. On the contrary, thislitigation would be protracted. Andfor aught that appears in the record,in the event of probate or if thecourt rejects the will, probabilityexists that the case will come uponce again before us on the sameissue of the intrinsic validity ornullity of the will. RESULT: waste oftime, effort, expense, plus addedanxiety.

In Nepomuceno vs CA (139 SCRA207),the Court ruled that the courtcan inquire as to the intrinsicvalidity of the will because therewas an express statement that the

beneficiary was a mistress.


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NOTES: Criminal action will not lie against

the forger of a will which had beenduly admitted to probate by a court

of competent jurisdiction. (Mercadovs. Santos 66 Phil. 215)

The fact that the will has beenallowed without opposition and theorder allowing the same has becomefinal and executory is not a bar tothe presentation of a codicil,provided it complies with all theformalities for executing a will. It isnot necessary that the will andcodicil be probated together as thecodicil may be concealed by an

interested party. They may beprobated one after the other.(Macam vs. Gatmaitan 60 Phil 358)

When a will is declared void becauseit has not been executed inaccordance with the formalitiesrequired by law, but one of theintestate heirs, after the settlementof the debts of the deceased, pays alegacy in compliance with a clause inthe defective will, the payment iseffective and irrevocable (Article

1430, NCC; Natural Obligations).

Grounds for Disallowance of a Will (ART839)1. Formalities required by law have not

been complied with;2. Testator was insane, or otherwise

incapable of making a will, at thetime of its execution;

3. Will was executed through force orunder duress, or the influence offear, or threats;

4. Will was procured by undue andimproper pressure and influence, onthe part of the beneficiary or ofsome other person;

5. Signature of the testator wasprocured by fraud;

6. Testator acted by mistake or did notintend that the instrument he signedshould be his will at the time ofaffixing his signature thereto.

NOTE: GROUNDS ARE EXCLUSIVE.

Fair arguments, persuasion, appealto emotions, and entreaties which,without fraud or deceit or actualcoercion, compulsion or restraint do

not constitute undue influencesufficient to invalidate a will.(Barreto vs. Reyes 98 Phil 996)

Burden is on the person challengingthe will to show that such influencewas exerted at the time of itsexecution.

To make a case of UNDUEINFLUENCE, the free agency of thetestator must be shown to have beendestroyed; but to establish a groundof contest based on FRAUD, freeagency of the testator need not be

shown to have been destroyed. Allegations of fraud and undue

influence are mutually repugnantand exclude each other; their joiningas grounds for opposing probateshows absence of definite evidenceagainst the validity of the will(Icasiano vs. Icasiano 11 SCRA 422)

REVOCATION DISALLOWANCE

1. voluntary act ofthe testator.

1. given by judicialdecree.

2. with or withoutcause.

2. must always befor a legal cause.

3. may be partial ortotal.

3. always totalexcept: when theground of fraud orinfluence forexample affectsonly certainportions of thewill.

I. INSTITUTION OF HEIRS

(ARTS. 840-856)

INSTITUTION An act by virtue of which a testator

designates in his will the person orpersons who are to succeed him inhis property and transmissible rightsand obligations. (Art 840)

The proper test in order todetermine the validity of aninstitution of heir is the possibility offinally ascertaining the identity of


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the instituted heir by intrinsic orextrinsic evidence.

PRESUMPTIONS

1. Presumption of Equality Heirsinstituted without designation ofshares shall inherit in equal parts.This is limited only to the casewhere all of the heirs are of thesame class or juridical condition, andwhere there are compulsory heirsamong the heirs instituted, it shouldbe applied only to the disposablefree portion.

2. Presumption of Individuality Whenthe testator institutes some heirsindividually and others collectively,

those collectively designated shallbe considered as individuallyinstituted, unless it clearly appearsthat the intention of the testatorwas otherwise.

3. Presumption of Simultaneity whenthe testator calls to the succession aperson and his children, they are alldeemed to have been institutedsimultaneously and not successively.

INSTITUTION BASED ON A FALSE CAUSE(Article 850)

GENERAL RULE: The statement of afalse cause for the institution of an heirshall be considered as not written. Reason: Generosity of the testator is

the real cause of the testamentarydisposition.

EXCEPTION:If it appears from the faceof the will that the testator would nothave made the institution had he knownthe falsity of the cause. Example: Where the person

instituted is a total stranger to thetestator, it is obvious that the realcause of the testamentarydisposition is not the generosity ofthe testator but the fact itself whichturned out to be false.

REQUISITES FOR THE ANNULMENT OFINSTITUTION OF HEIRS:1. cause of institution of heirs must be

stated in will;2. cause must be shown to be false;3. it must appear from the face of the

will that the testator would not have

made the institution had he knownthe falsity of the cause.

Where the one-sentence will

institutes the petitioner as the sole,universal heir and preterits theparents of the testatrix, and itcontains no specific legacies orbequests, such universal institutionof petitioner, by itself, is void.Intestate succession ensues. (Nuguidvs. Nuguid, et al. 17 SCRA 449)

PRETERITION (ART. 854) Omission in the testators will of

one, some, or all of the compulsoryheirs in the direct line, whether

living at the time of the execution ofthe will or born after the death ofthe testator.

Requisites:1. The heir omitted must be a

compulsory heir in the direct line;2. The omission must be complete and

total in character; and3. The compulsory heir omitted must

survive the testator.

There is no total omission

when:a. A devise/legacy has been given

to the heir by the testatorb. A donation inter vivos has been

previously given to the heir bythe testator; or

c. Anything is left from theinheritance which the heir mayget by way of intestacy.

NOTE: In the above cases, theremedy of the heir is completion oflegitime under Art. 906, in case thevalue of the property received is lessthan the value of the legitime.

Effects of Preterition:1. It annuls the institution of heir;2. The devises and legacies are valid

insofar as they are not inofficious;and

3. If the omitted compulsory heirshould die before the testator, theinstitution shall be effectual,without prejudice to the right of

representation.


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NOTE: In case of omission withoutpreterition, the rule in Art. 855 shouldbe followed. The suggested alternatephrasing of Dr. Tolentino to the said

article is: The share of the compulsoryheir omitted in a will must be firsttaken from the part of the estate notdisposed of by the will, if any; if that isnot sufficient, so much as may benecessary must be taken proportionallyfrom the shares of the heirs given tothem by will.

PRETERITION DISINHERITANCE

1. deprivation of acompulsory heir of

his legitime is tacit

1. deprivation of acompulsory heir of

his legitime isexpress.

2. may be voluntarybut the lawpresumes that it isinvoluntary

2. alwaysvoluntary.

3. law presumesthat there has beenmerely an oversightor mistake on thepart of the testator.

3. done with alegal cause.

4. omitted heir getsnot only his legitimebut also his share inthe free portion notdisposed of by wayof legacies/ devises.

4. if disinheritanceis not lawful,compulsory heir ismerely restored tohis legitime.

Where the deceased left nodescendants, legitimate orillegitimate, but she left forced heirsin the direct ascending lineherparents, and her holographic willdoes not explicitly disinherit thembut simply omits them altogether,

the case is one of preterition ofparents, not a case of ineffectivedisinheritance. (Nuguid vs. Nuguid17 SCRA 449)

NOTE: Preterition of the survivingspouse (SS) does not entirely annul theinstitution of the heir since SS is not acompulsory heir in the direct line.However, since Article 842 protects thelegitime of the SS, the institution ispartially annulled by reducing the rightsof the instituted heir to the extent

necessary to cover the legitime of SS.(Tolentino)

EFFECT OF PREDECEASE

--an heir who dies before the testatorshall transmit no right to his own heirs(rule is absolute with respect to avoluntary heir)--what is transmitted to therepresentatives of compulsory heir is hisright to the legitime and not to the freeportionEFFECT OF INCAPACITY--A voluntary heir who is incapacitatedto succeed from testator shall transmitno right to his own heirs.--compulsory heir may be represented,

but only with respect to his legitime

EFFECT OF REPUDIATION--whether voluntary or compulsory, theheir who repudiates his inheritancecannot transmit any right to his ownheirs.

J. SUBSTITUTION OF HEIRS(ARTS 857-870)

SUBSTITUTION The act by which the testator

designates the person or persons totake the place of the heir or heirsfirst instituted (Tolentino). It may beconsidered as a subsidiary andconditional institution.

Kinds:1. Simple or Common (that which

takes place when the testatordesignates one or more persons tosubstitute the heirs/s instituted incase such heir/s should die beforehim, or should not wish, or should beincapacitated to accept theinheritance)

2. Brief or Compendious: brief (thereare two or more persons designatedby the testator to substitute for onlyone heir), compendious (one heir isdesignated to take the place of twoor more heirs)

Instances when substitutiontakes place:

a. instituted heir predeceases the

testator;


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b. incapacityof the instituted heirto succeed from the testator;and

c. repudiation of the inheritance.

Effect of substitution:General rule: once the substitutionhas taken place, the substitute shallnot only take over the share thatwould have passed to the institutedheir, but he shall be subject to thesame charges and conditionsimposed upon such instituted heir.Exceptions:(1) When the testator has expresslyto the contrary;(2) When the charges or conditions

are personally applicable only to theheir instituted.

3.FideicommissaryRequisites:

a. First heir (fiduciary) called to thesuccession.

b. An obligation clearly imposed uponsuch first heir to preserve theproperty and to transmit it to thesecond heir.

c. Second heir (fideicommissary) towhom the property is transmitted by

the first heir. Without the obligation clearly

imposing upon the first heir thepreservation of the property and itstransmission to the second heir,there is no fideicommissarysubstitution (Rabadilla vs. CA 334SCRA 522)

NOTE: Pending transmission of property,the fiduciary is entitled to all the rightsof a usufructuary, although thefideicommissary is entitled to all therights of a naked owner.

Limitations:a. Substitution must not go beyond one

degree from the heir originallyinstituted.

b. Degree means degree ofrelationship.

c. Fiduciary and fideicommissary mustbe living at the time of the death ofthe testator.

d. Substitution must not burden the

legitime of compulsory heirs.

e. Substitution must be madeexpressly.

A fideicommissary substitution isvoid if the first heir is not related in

the 1st

degree to the second heir(Ramirez vs. Vda. De Ramirez 111SCRA 704)

K. CONDITIONAL, MODALTESTAMENTARY DISPOSITIONS, ANDTESTAMENTARY DISPOSITIONS WITH ATERM (ART 871-885)

GENERAL RULE: The institution of anheir may be made 1) conditionally, 2) fora term, or 3) for a certain purpose orcause (modal). Conditions, terms, and

modes however, are not presumed; theymust be clearly expressed in the will.The condition must fairly appear fromthe language of the will. Otherwise, it isnot binding.

LIMITATIONS:1. The testator cannot impose any

charge, burden, encumbrance,condition, or substitution whatsoeverupon the legitime of compulsoryheirs.

2. Impossible conditions and those

contrary to law or good customs arepresumed to have been imposederroneously or through oversight,thus, are considered as not imposed.

3. An absolute condition not tocontract a first marriage is alwaysvoid and will be considered as notwritten.

4. An absolute condition not tocontract a subsequent marriage isgenerally void, unless imposed upona widow or widower by the deceasedspouse or by the latters ascendantsor descendants. Even so, however,the legitime of the surviving spousecannot be impaired.

An absolute condition not tocontract marriage when validlyimposed is resolutory in character.Consequently, if the testatorinstitutes his wife as heir subject tothe condition that she will nevermarry again, she immediatelyacquires a right to the inheritance

upon the death of testator, but if


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she violates the condition bycontracting a 2nd marriage, she losesher right to said inheritance.

NOTE: However, the following relativeconditions regarding marriage have beenconsidered as valid and binding:

a. generic condition to contractmarriage;

b. specific condition to contractmarriage with a determinateperson; and

c. specific condition not tocontract marriage with adeterminate person.

5. Any disposition made upon the

condition that the heir shall makesome provisions in his will in favor ofthe testator or of any other personshall be void (disposicioncaptatoria).

6. Conditions imposed by the testatorupon the heirs shall be governed bythe rules established for conditionalobligations in all matters notprovided for by the law onsuccession.

Kinds of Conditions

1. Potestative Condition dependsexclusively upon the will of the heir,devisee, or legatee, and must beperformed by him personally.

2. Causal Condition depends upon thewill of the heir, devisee, or legatee,but upon the will of a third person.

3. Mixed depends jointly upon the willof the heir, devisee, or legatee andupon chance and/or will of a thirdperson.

Fulfillment of Conditions:1. Potestative Conditions must be

fulfilled after the death of thetestator (except when it has alreadybeen fulfilled and is of such naturethat it cannot be repeated);

2. Causal or mixed conditions may befulfilled eitherbefore or aftersuchdeath, unless the testator hasprovided otherwise.

MODAL INSTITUTION (INSTITUCION SUBMODO) Attachment by the testator to an

institution of heir, or to a devise or

legacy, of a statement of the:a. object of the institution;b. application of the property left

by testator; orc. charge imposed by him.

NOTES:

When in doubt as to whether there isa condition or merely a mode,consider the same as mode.

When in doubt as to whether there isa mode or merely a suggestion,consider same only as a suggestion.

The condition suspends but doesnot obligate; the mode obligatesbut does not suspend (for he whoinherits with a mode is already anheir; one who inherits conditionallyis not yet an heir)

DOCTRINE of CONSTRUCTIVEFULFILLMENT: When without the faultof the fault of the heir, an institucionsub modo cannot take effect in the exactmanner stated by the testator, it shallbe complied with in a manner mostanalogous to and in conformity with hiswishes.

NOTE:

If the condition is casual, thedoctrine is not applicable since thefulfillment of the event whichconstitutes the condition isindependent of the will of the heir,devisee/legatee. If the condition ispotestative or mixed, the doctrine isapplicable.

L. LEGITIMES (ARTS 886 914)LEGITIME That part of the testators property

which he cannot dispose of becausethe law has reserved it for certainheirs who are, therefore, calledcompulsory heirs.


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The course of action to enforce alegitime accrues upon the death ofthe donor-decedent since it is onlythen that the net estate may be

ascertained and on which basis, thelegitime may be determined.(Imperial vs. CA 316 SCRA 313)

NOTE: One half of the estate is alwaysreserved for the primary or secondarycompulsory heirs. The other half is whatis termed under the NCC as the freeportion from which the legitime of theconcurring compulsory heirs are taken.This free portion is different from thedisposable free portion over which thetestator has testamentary control. The

disposable free portion is that whichremains after the legitime has beencovered.

COMPULSORY HEIRS (CH) Those for whom the legitime is

reserved by law, and who succeedwhether the testator likes it or not.They cannot be deprived by thetestator of their legitime except bydisinheritance properly effected.

Kinds of Compulsory Heirs:

1. Primary those who haveprecedence over and exclude otherCH. E.g. LCD.

2. Secondary those who succeed onlyin the absence of the primary CH.E.g. LPA or IP.

3. Concurring those who succeedtogether with the primary orsecondary CH. E.g. ICD and SS.

If the testator isa LEGITIMATE

person

If the testator isan ILLEGITIMATE

person

1. Legitimatechildren anddescendants(LCD)

1. Legitimatechildren anddescendants(LCD)

2. In default ofthe foregoing,legitimateparents andascendants(LPA)

2. Illegitimatechildren anddescendants(ICD)

3. Survivingspouse (SS)

3. In default ofthe foregoing,illegitimateparents only

(IP)

4. Illegitimatechildren anddescendants(ICD)

4. Survivingspouse (SS)

NOTES:

See Sections 17 & 18 of R.A. 8552. By force of the Family Code,

adopted children are deemedlegitimate children of the adopters.

By force of the Family Code, ICwithout distinction and so long astheir filiation is duly established orproved in accordance with law, areeach entitled to 1/2 of the legitimeof a LC, thus abrogating the 5:4 ratiobetween natural and non-natural IC.

RULES:1. Direct descending line

a. Rule of preference between linesb. Rule of proximity

c. Right of representation adinfinitum in case of predecease,incapacity, or disinheritance (LC:LD only; IC: both LD and ID)

d. If all the LC repudiate theirlegitime, the next generation ofLD succeed in their own right

2. Direct ascending linea. Rule of division by linesb. Rule of equal division

3. Non-impairment of legitime

TABLE OF LEGITIMES

SURVIVOR LEGITIME NOTES

LC Divide by the# of LC,whether theysurvive aloneor withconcurringCH.

1 LCSS

2 or more

LC

equal to 1


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SS LC

LCIC

of 1 LC

LCSSIC

of 1 LC

All theconcurring CHget from thehalf freeportion, theshare of theSS havingpreferenceover that ofthe IC, whoseshare maysufferreduction prorata because

there is nopreferenceamongthemselves.

LPA Whether theysurvive aloneor withconcurringCH.

LPAIC

IC succeed inthe inequal shares.

LPASS

LPASSIC

1/8

IC Divide equallyamong the IC.

SSIC

1/31/3

SS 1/3 ifmarriage is inarticulomortis anddeceasedspouse dieswithin 3 mos.after themarriage.

IP

IPAny child

-excluded-It depends

Childreninherit in theamountsestablished in

the foregoingrules.

IPSS

Only theparents are ofIC areincluded.Grandparentsand otherascendantsare excluded.

STEPS IN DETERMINING THE LEGITIMEOF COMPULSORY HEIRS:1. Determination of the gross value of

the estate at the time of the deathof the testator;

2. Determination of all debts andcharges which are chargeableagainst the estate;

3. Determination of the net value ofthe estate by deducting all the debtsand charges from the gross value ofthe estate;

4. Collation or addition of the value ofall donations inter vivos to the netvalue of the estate;

5. Determination of the amount of thelegitime from the total thus found;

6. Imputation of the value of alldonations inter vivos made tocompulsory heirs against theirlegitime and of the value of alldonations inter vivos made tostrangers against the disposable freeportion and restoration to thehereditary estate if the donation is

inofficious; and7. Distribution of the residue of the

estate in accordance with the will ofthe testator

COLLATION1. Fictitious mathematical process of

adding the value of the thingdonated to the net value of thehereditary estate (Art. 908 and Arts.1061-1077).

2. Act of charging or imputing suchvalue against the legitime of the


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compulsory heir to whom the thingwas donated (Arts. 1061-1077).

3. Actual act of restoring to thehereditary estate that part of the

donation which is inofficious in ordernot to impair the legitime ofcompulsory heirs.

RESERVA TRONCAL (ART 891) The reservation by virtue of which

an ascendant who inherits from hisdescendant any property which thelatter may have acquired bygratuitous title from anotherascendant or a brother or sister, isobliged to reserve such property forthe benefit of relatives who are

within the 3rd

degree and who belongto the line from which such propertycame.

It constitutes as an exception toboth the system of legitime and theorder of intestate succession.

Purposes:1. To reserve certain property in favor

of certain persons;2. To prevent persons outside a family

from acquiring, by some chance oraccident, property which otherwisewould have remained with the said

family;3. To maintain a separation between

paternal and maternal lines.NOTE: Considering the rationale forreserva troncal which is to ultimatelyrevert ownership of property thatoriginally belongs to a line of relativesbut which by force of law passes to adifferent line, the reserva would have noreason to arise where the ascendantswho acquire the property themselvesbelong to the line of relatives fromwhich the property was, in turn,acquired by the descendant.

Requisites:1. The property should have been

acquired by operation of law by anascendant (reservista) from hisdescendant (propositus) upon thedeath of the latter.

2. The property should have beenpreviously acquired by gratuitoustitle by the descendant (propositus)from another ascendant or from a

brother or sister (originator).

3. The descendant (propositus) shouldhave died without any legitimateissue in the direct descending linewho could inherit from him.

Personal elements:1. Originator the ascendant, or

brother or sister from whom thepropositushad acquired the propertyby gratuitous title (e.g. donation,remission, testate or intestatesuccession);

2. Propositus the descendant who diedand from whose death the reservistain turn had acquired the property byoperation of law (e.g. by way oflegitime or intestate succession). The

so-called arbiter of the fate of thereserva troncal.

3. Reservista the ascendant, notbelonging to the line from which theproperty came (Justice Vitug) that isthe only compulsory heir and isobliged to reservethe property.

NOTE: Dr. Tolentino is of the view thateven if the reservista and the originatorbelong to the same line, there is still anobligation to reserve.4. Reservatarios the relatives of the

propositus within the 3rd degree and

who belong to the line from whichthe property came and for whosebenefit the reservation isconstituted. They must be related byblood not only to the propositus butalso to the originator.

NOTE: All personal elements must bejoined by bonds of legitimaterelationship.

NOTE: In determining the right of thereservatarios over the reservableproperty, there are 2 events to consider:1. Death of propositus: all qualified

reservatarios acquire an inchoateright. Reservista owns the propertysubject to a resolutory condition.

2. Death of reservista: survivingreservatarios acquire a perfect right.

NOTE: The NCC did not provide for therules on how the reservatarios wouldsucceed to the reservista. However, thefollowing rules on intestacy have been

consistently applied:


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a. Rule of preference between linesb. Rule of proximityc. Right of representation

(provided that the

representative is a relative ofthe descendant- proposituswithin 3rd degree, and that hebelongs to the line from whichthe reservable property came)

d. Full blood/double share rulein Art. 1006

Property subject to reservation:must be the same property whichthe reservista had acquired byoperation of law from propositusupon the death of the latter and

which the latter, in turn hadacquired by gratuitous title duringhis lifetime from another ascendant,brother/sister.

Obligations of Reservista:(1) To make an inventory of all

reservable property;(2) To appraise value of all

reservable movable property;(3) To annotate in Registry of

property the reservablecharacter of all reservable

immovable property;(4) To secure by mortgage (a)

restitution of movables notalienated, (b) payment ofdamages caused by his fault ornegligence, (c) return of pricereceived for movables alienatedand (d) payment of value ofimmovable alienated.

A reservatorio may dispose of hisexpentancy to the reservableproperty during pendency of thereserve in its uncertain andconditional form. If he dies beforethe reservista, he has nottransmitted anything, but if hesurvives such reservista, thetransmission shall become effective.

A will may prevent the constitutionof a reserva. In case of testatesuccession, only the legitime passesby operation of law. The propositusmay, by will, opt to give the

legitime of his ascendant without

giving to the latter properties he hadacquired by gratuitous title fromanother ascendant, or brother orsister. In such case, a reserva troncal

is avoided.However, if the ascendant wasnot disentitled in the will to receive suchproperties, the reserva minima rule(proportional reserva) should befollowed. The rule holds that allproperty passing to the reservista mustbe considered as passing partly byoperation of law and partly by will of thepropositus. Thus, one half of theproperties acquired by gratuitous titleshould be reservable, and the other halfshould be free.

Causes for Extinguishment of ReservaTroncal:1. Death of reservatarios;2. Death of all relatives of propositus

within the 3rd degree who belong tothe line from which the propertycame;

3. Loss of the reservable property forcauses not due to the fault ornegligence of the reservista.

4. Waiver or renunciation by thereservatarios;

5. Prescription of the right of thereservatarios, when the reservistaholds the property adversely againstthem in the concept of an absoluteowner;

6. Registration by the reservista of theproperty as free property under theLand Registration Act

M. DISINHERITANCE (ART 915 923) A testamentary disposition by which

a person is deprived of, or excludedfrom, the inheritance to which hehas a right.

A disinheritance properly effectedtotally excludes the disinherited heirfrom the inheritance. Thedisinherited heir is deprived not onlyof the legitime but also of such partof the free portion that would havepassed to him by a previous will(which is revoked, as inconsistentwith, the subsequent disinheritance)or by intestate succession.


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Requisites:1. Effected only through a valid will;2. For a cause expressly stated by law;3. Cause must be stated 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 thatthere can be no doubt as to hisidentity.

Effects of Disinheritance:

1. Deprivation of the compulsory heirwho is disinherited of anyparticipation in the inheritance

including the legitime.2. The children/descendants of the

person disinherited shall take his orher place and shall preserve therights of compulsory heirs withrespect to the legitime.

3. The disinherited parent shall nothave the usufruct or administrationof the property which constitutesthe legitime.

IMPERFECT DISINHERITANCE A disinheritance which does not have

one or more of the essentialrequisites for its validity.

Effects:1. If testator had made disposition of

the entire estate: annulment of thetestamentary dispositions only in sofar as they prejudice the legitime ofthe person disinherited; does notaffect the dispositions of thetestator with respect to the freeportion.

2. If testator did not dispose of the free

portion: compulsory heir is given allthat he is entitled to receive as ifthe disinheritance has not beenmade, without prejudice to lawfuldispositions made by the testator infavor of others.

3. Devises, legacies and othertestamentary dispositions shall bevalid to such extent as will notimpair the legitime.

IMPERFECTDISINHERITANCE

PRETERITION

1. The person

disinherited may beany compulsory heir

1. The person

omitted must be acompulsory heir inthe direct line

2. Always express 2. Always implied

3.Always intentional 3. May beintentional orunintentional

4. Effect: Partialannulment ofinstitution of heirs

4. Effect: Totalannulment ofinstitution of heirs

Common Causes for Disinheritance ofchildren or descendants, parents orascendants, and spouse:1. When the heir has been found guilty

of an attempt against the life of thetestator, his/her descendants orascendants, and spouse in case ofchildren and parents;

2. When the heir has accused thetestator of a crime for which the lawprescribes imprisonment for 6 yearsor more, if the accusation has beenfound groundless;

3. When the heir by fraud, violence,intimidation, or undue influencecauses the testator to make a will orto change one already made;

4. Refusal without justifiable cause tosupport the testator who disinheritssuch heir.

Peculiar Causes for Disinheritance1. Children/Descendants:

a. When the child/descendant hasbeen convicted of adultery orconcubinage with the spouse of

the testator;b. Maltreatment of the testator by

word or deed by thechild/descendant;

c. When the child/descendant leadsa dishonorable or disgracefullife; Conviction of a crime whichcarries with it a penalty of civilinterdiction.


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2. Parents/Ascendants:a. When the parents have

abandoned their children orinduced their daughters to live a

corrupt or immoral life, orattempted against their virtue;b. When the parent/ascendant has

been convicted of adultery orconcubinage with the spouse ofthe testator;

c. Loss of parental authority forcauses specified in the Code; and

d. Attempt by one of the parentsagainst the life of the other,unless there has beenreconciliation between them.

3. Spouse:

a. When the spouse has givencause for legal separation; Whenthe spouse has given grounds forthe loss of parental authority.

Revocation of Disinheritance:1. Reconciliation;2. Subsequent institution of the

disinherited heir; and3. Nullity of the will which contains the

disinheritance.

NOTE: Once disinheritance has been

revoked or rendered ineffectual, itcannot be renewed except for causessubsequent to the revocation or basedon new grounds.

RECONCILIATION It is the resumption of genuine

cordial relationship between thetestator and the disinherited heir,approximating that which prevailedbefore the testator learned of thecause for disinheritance, reciprocallymanifested by their actionssubsequent to the act ofdisinheritance.

A subsequent reconciliation betweenthe offender and the offendedperson deprives the latter of theright to disinherit, and rendersineffectual any disinheritance thatmay have been made. (Art. 922)

NOTES:

Mere civilitywhich may characterizetheir relationship, a conduct that isnaturally expected of every decent

person, is not enough. In order to be effective, the testator

must pardon the disinherited heir.Such pardon must specifically referto the heir and to the acts causingthe disinheritance. The heir mustaccept the pardon.

No particular form is required. Itmay be made expressly or tacitly.

NOTE: Where the cause fordisinheritance is likewise a ground forunworthiness to succeed, what is the

effect of a subsequent reconciliationupon the heirs capacity to succeed?1. If disinheritance has been made:

Rule on reconciliation applies. Thedisinheritance becomes ineffective.

2. If disinheritance has not been made:Rule on reconciliation does notapply. The heir continues to beincapacitated to succeed unlesspardoned by the testator under Art.1033. The law effects thedisinheritance.

N. LEGACIES AND DEVISES (ARTS. 924 959)

Persons charged with legacies anddevises:(1) compulsory heir;(2) voluntary heir;(3) legatee or devisee;(4) estate

NOTES:

If the will is silent with regard to the

person who shall pay or deliver thelegacy/devise, there is apresumption that such legacy ordevise constitutes a charge againstthe decedents estate.

Since legacies and devises are to betaken from the disposable freeportion of the estate, thus, theprovisions on institution of heirs aregenerally applicable to them.


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STATUS OFPROPERTY GIVEN BY

LEGACY/DEVISE

EFFECT ON THELEGACY/DEVISE

1. Belonging to thetestator at the time ofthe execution of thewill until his death

Effective

2. Belonging to thetestator at the time ofthe execution of thewill but alienated infavor of a 3rd person

Revoked

3. Belonging to thetestator at the time ofthe execution of the

will but alienated infavor of thelegatee/deviseegratuitously

No revocation.There is a clearintention to

comply withlegacy or devise.

4. Belonging to thetestator at the time ofthe execution of thewill but alienated infavor of the legatee ordevisee onerously

Legatee/deviseecan demandreimbursementfrom the heir orestate

5. Not belonging to thetestator at the timethe will is executed buthe has ordered that thething be acquired inorder that it be givento the legatee/devisee

Effective

6. Not belonging to thetestator at the timethe will is executedand the testatorerroneously believedthat the thingpertained to him

Void

7. Not belonging to thetestator at the timethe will is executed butafterwards becomes hisby whatever title

Effective

8. Already belonged tothe legatee/devisee atthe time of theexecution of the willeven though anotherperson may haveinterest therein

Ineffective

9. Already belonged tothe legatee or deviseeat the time of theexecution of the will

even though it mayhave beensubsequently alienatedby him

Ineffective

10.Testator hadknowledge that thething bequeathedbelonged to a thirdperson and thelegatee/deviseeacquired the propertygratuitously after theexecution of the will

Legatee/deviseecan claim nothingby virtue of thelegacy/devise

11.Testator hadknowledge that thething bequeathedbelonged to a thirdperson and thelegatee/deviseeacquired the propertyby onerous title

Legatee/deviseecan demandreimbursementfrom the heir orestate

ART. 911 ART. 950

Order ofpreference:

(LIPO)

Order of preference:(RPSESO)

1. Legitime ofcompulsoryheirs

2. Donations intervivos

3. Preferentiallegacies ordevices

4. All otherlegacies ordevicespro

rata

1. RemuneratoryL/D

2. Preferential L/D3. L for support4. L for education5. L/D of a specific,

determinate thingwhich forms a partof the estate

All otherspro rata

Application: Application:

(1) When thereduction isnecessary topreserve thelegitime ofcompulsory heirsfrom impairmentwhether there are

(1) When there areno compulsory heirsand the entire estateis distributed by thetestator as legaciesor devises; or


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donations intervivos or not; or(2) When,although, the

legitime has beenpreserved by thetestator himselfthere aredonations intervivos.

(2) When there arecompulsory heirs buttheir legitime hasalready been

provided for by thetestator and thereare no donationsinter vivos.

NOTES:

In case of reduction in the abovecases, the inverse order of paymentshould be followed.

When the question of reduction isexclusively among legatees anddevisees themselves, Article 950governs; but when there is a conflictbetween compulsory heirs anddevisees and legatees, Article 911applies.

GROUNDS FOR REVOCATION OFLEGACIES AND DEVISES (ART 957)1. Testator transforms the thing

bequeathed in such a manner that itdoes not retain either the form orthe denomination it had.

2. Testator by any title or for any causealienates the thing bequeathed, orany part thereof, it being understoodthat in the latter case the legacy ordevise shall be without effect onlywith respect to the part alienated.Except: when the thing should againbelong to the testator afteralienation.

3. Thing bequeathed is totally lostduring the lifetime of the testator,or after his death without the heirsfault

4. Other causes: nullity of the will;noncompliance with suspensiveconditions affecting the bequests;sale of the thing to pay the debts ofthe deceased during the settlementof his estate.

NOTE: LIST IS NOT EXCLUSIVE

II. LEGAL OR INTESTATESUCCESSION

That which is effected by operationof law in the absence or default of awill.

CAUSES OF INTESTACY1. If a person dies without a will, or

with a void will, or one which hassubsequently lost its validity;

2. Absence of an institution of heir;3. Partial institution of heir. In such

case, intestacy takes place as to theundisposed portion (mixedsuccession);

4. Non-fulfillment of suspensivecondition attached to the institutionof heir;

5. Predecease of the instituted heir;6. Repudiation by the instituted heir;7. Incapacity of instituted heir;8. Preterition. Intestacy may be total

or partial depending on whether ornot there are legacies/devises;

9. Fulfillment of resolutory condition;10. Expiration of term or period of

institution;11. Non-compliance or impossibility of

compliance with the will.

NOTE: In all cases where there has beenan institution of heir, follow theI.S.R.A.I. order of Justice Paras. If theInstitution fails, Substitution occurs. Ifthere is no substitute, the right ofRepresentation applies in the directdescending line to the legitime if thevacancy is caused by predecease,incapacity, or disinheritance. The rightofAccretion applies to the free portionwhen the requisites in Art. 1016 are

present. If there is no substitute, andthe right of Representation or Accretiondoes not apply, the rules on Intestatesuccession shall

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