Will and Succession; From the Lectures of Atty. Sebastian Art 774. Succession is a mode of Acquisition by virtue of which the property, rights and obligation to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by will or by operation of law.

What are the modes of acquisition? (OLD TIPS)O OccupationL LawD DonationT TraditionI Intellectual propertyP PrescriptionS Succession

Inheritance of a person consists of property, transmissible rights and obligations that survive the persons death.

In the old code such was a virtual subrogation, there was no limit as to Property, Transmissible Right and Obligations (PRO); but under the NCC the obligations will be to the extent of the hereditary share.

Art 391. (Presumption of death for purposes of succession)

1. A person on board a vessel lost during a sea voyage or on aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;2. A person in the armed forces who has taken part in war, and has been missing for four years; and3. A person who has been in danger of death under other circumstances and his existence has not been known for four years; 4. BUT (Under ART 390) IF SUCH IS AN ABSENTEE it is 10 years to open up succession, unless he disappeared after 75 years of age, 5 years will be sufficient.

Estate of Hemady vs. Luzon Surety;Article 774 provides that by succession, the properties, rights and obligations of a deceased person are transmitted through his death to his heirs either by his will or by operation of law. Hemady holds that the contingent liabilities of the decedent are part of the obligations transmitted by his death to his heirs. Accordingly, contingent claims against the estate of a deceased person arising from the decedent's contractual undertakings under various indemnity agreements executed in favour of various persons and entities are money claims which may be proved against his estate and/or heirs. These contingent claims may be proved during settlement proceedings by an indemnified surety even if in the meantime, no actual liability on the part of an indemnified surety has arisen by reason of actual payment made under the suretyship agreement. Accordingly, Hemady holds that the contingent obligations of a deceased person arising from his personal guaranty are not extinguished by his death.

Thus, GR: Contracts are binding on the heirs as well due to NCC Art. 1311, which refers to the Principle of Relativity of Contracts;

Exception: When the obligation becomes intransmissible by the following1) The nature of the obligation;2) Stipulation of Law; or3) Stipulation of the parties

Pacio v. Billon;Properties not validly conveyed by a person during his lifetime will form part of his estate upon his demise. Pacio holds that a parcel of land which was not validly donated (propter nuptias) by the husband to the wife did not leave his patrimony, and therefore formed part of his inheritance upon his demise.(It must be remembered in this case the mistake here was the application of the codes)

Uson v. Del Rosario;Article 777 provides that the right to the succession are transmitted from the moment of the death of the decedent. Accordingly, Uson holds that the inheritance pertains to the heirs from the moment of the death of the ancestor as completely as if the ancestor had executed and delivered to the heirs a deed for the same before his death. This transmission takes place by operation of law;NCC was to be applied retroactively but could not impair vested rights. Since Faustino died before the NCC took effect, the illegitimate children could not inherit because the recognized family had a vested right in the properties. (Art 2253.)

Bonilla v. Barcena;The transmission of the hereditary estate from the decedent to the heirs takes place from the moment of the death of the decedent. A prior judicial declaration of heirship is not necessary to perfect the transmission. Bonilla holds that claims to or rights over property which were initiated by the decedent during his lifetime by appropriate court proceedings are not extinguished by his death. These claims or rights over property are transmitted to his heirs upon his death, thus may substitute the decedent in the said case.

Butte v. Manuel Uy & Sons Inc. (Yung small portion that ended up getting the whole- mayaman toh)The right of legal redemption under Article 1620 of the Civil Code is property. Thus, where a decedent dies without having exercised a right of redemption (and provided it has not expired), the said right shall be transmitted to his heirs upon his death. In this event, the right of redemption is part of the inheritance. However, where the right of redemption was acquired after the death of the decedent, the same pertains to the heirs directly in their individual capacities, and not derivatively from the decedent. Butte makes a clear distinction as to when the right of redemption is part of the hereditary estate, and when it is not. Accordingly, Butte clarifies the issue as to who may exercise the right of redemption.

De Borja v. De Borja;The right to the inheritance is transferred to the heirs precisely at the moment of the death of the decedent. From such time, the heirs are deemed to be the owners of the same. De Borja confirms that from the moment of death of the decedent, the heirs begin to enjoy all the attributes of ownership, including the right to dispose (jus disponendi). De Borja holds that the pendency of the probate proceeding is no bar to the exercise of such proprietary rights, since ownership over the hereditary estate has vested in the heirs from the time of the death of the testator.De Borja must be distinguished from the prohibition against disposicion captatoria in Article 875 of the Civil Code. Likewise, it must be reconciled with the provision of Article 784 which states that the making of a will is a strictly personal act of the testator. NHA v. Almedia; (skipped) Go Ong v. CA (model case of how things should be)She took out a loan based on certain land from the ACP after her husband died, now she claims that the loan is void since there was no judicial notice. As per the SC: the mortgage is valid up to the conjugal share and hereditary rights of the surviving spouse. (nothing more than your supposed to get) Important principle: we can dispose from the moment of death.*Theoretically you can mortgage part of your undivided share, but in reality no one would do that.

Reganon v. Imperial (new law patterned to this case)You can garnish or attach share of an heir BUT you cannot garnish or attach a specific property, since the hereditary share has not been liquidated and you dont know if he will get that specific property. But we must also distinguish between heir and legatee, who can be subject to garnishment or attachment.

Salvador v. Sta. Maria (a case borne out of stupidity and laziness)Sale is contended to be void, due to simulation and no payment actually made. There are two cases here in the same court house but different branches; the seller/owner dies.Seller/Owner ----------------------- Buyer

Branch IIBranch I

1) Handled probate of the will 1) Action for reconveyance (23 people involved in the will) (21 people as substitutes)3) Decision of the court is to give them 2) went to the CA, who had the property reconveyed The land to the 21 substitute, since supposedly the contract is void

6) 21 did not want to give land, since the decision of the court is final and executor and they have valid title The problem here 9 people in the will where not substituted and the decision was final & executor. SC said 21, your rights are derived from the owner or better yet his estate; subs lang kayo, thus no ownership* As per sir: Tanga ang CA, they should have it ordered it back to the estate and not to the 21 substitutes

Ramirez v. Baltazar ( Rights of the heirs)The creditors initiated settlement proceedings against the estate; Diawan, the deputy clerk of court was made administrator of the estate since Ramirez failed to qualify. Diawan initiated a trial by commissioners which was allowed by the court without providing notice to the heirs, heirs in turn was not present since they had no idea of such proceeding. Diawan was receiving uncontested evidence from the creditors as commissioner. The duty of the administrator is to defend the estate, what Diawan was doing was receiving evidence against estate that he is suppose to defend. SC: IF the administrator does not want to do the job as he should, the heirs have a right to assert and protect their interest despite their being an administrator assigned.

Requisites for extra judicial settlement1. No will2. No debts3. Heirs are of legal age In any case, if such gets questioned, you still bring it to court.

ART 777. The rights to the succession are transmitted from the moment of death of the decedent.

Puno v. Puno Enterprises (Art. 777 not applied)The illegitimate child succeeding from his fathers death, has rights over the property of his father upon the moment of death of said father. The father had shares of stock within Puno Enterprises. Now the child wishes to inspect the companys books. The SC held: Despite Art. 777, which is inherent from the point of death, one still cannot obtain the right to the property right away in certain instances. The illegitimate child got his right over the property BUT his right as a shareholder is something else, thus he cannot check the books of the company and until properly registered as a shareholder as per the Corporation Code. Lesson: though he may have under Art. 777 acquired rights to the stock, he may not inspect the books for the corporation code provides those who could inspect are stockholders of record, meaning those names listed in the Stock & Transfer Book; thus until your name is listed there, there is no rights to such

Reyes v RTC (Art 777 not applied even if shareholder) Almost the same facts as Puno, but here the son who has a stockholder himself in the company wanted to look into the records of the mother. Naturally the company denied the sons request for inspection, since the share he requested to inspect was his mothers. The SC decision was: Your (PRO) that you inherit are inchoate. As per SC, the estate has to go through liquidation first to pay the debts. As per Atty. Sebastian: The use of Inchoate is WRONG!!! Remember the case of Butte? You do not need to pay the obligations with the property and rights that you inherited, thats why Angela was able to get the whole property!!! Thus the property and rights are not inchoate until you pay the obligations since you can choose to pay out such in order to maintain the property as a whole. This is also wrong for tax and debt reasons. (For Bar purposes unless you can properly defend dont use).

Santos v. Lumbao (difference of ideal share from specific prop ) They bought an ideal share or proindiviso share of the property from Rita and then spouses Lumbao built a house on a portion of the property they bought. The SC held: what they bought was an ideal share and not a specific portion of the property, they should have not done that but in any case they cannot be denied to a portion of the property. An approved project of partition is required. Blas v. Santos (Future Inheritance) read the case before exams (pg.55 ng scra?)When the 1st wife died, the property was not divided thus when he remarried the PR of wife 1 was infused with the PR of wife 2. To make sure there would be no quarrel in the family of the testator between his kids from his 1st marriage and wife 2, a compromise agreement was made. The wife gets half and then her half will go back to the kids upon her death. Wife 2 agreed to such. The relatives of wife 2 questioned such as an agreement to future inheritance which by law is void. SC Held: that what wife 2 compromised where her own shares that she rightfully received.

Example of future inheritance

Henry C --------------- Big Boy such becomes a future inheritance and is VOIDWorth $6 Billion can inherit $1 Billion Takes out a loan based on the $1Billion he can inherit for 10M a year 5% Interest

Art. 781 (relate to Art 440 accrue) Under Art. 440, the accession follows the principal. Succession is a mode of acquisition, once you acquire the property you own such, and with it its fruits as an owner. Which is why you file the fruits not as an amended estate tax but rather as part of your income tax return. Art 781 has a purpose nonetheless For 1) Taxes & 2) for the creditors

Objects Meaning they cannot claim the fruits unless the creditors are paid As per Atty. Sebastian: is it a stupid provision? NO stupid lang ang pagsulat

Art. 793 (Property acquired after making the will) As per Atty. Sebastian: Para no problem: if any other property not listed to be divided this way The Difference between Art 781 and Art 793.781793

As to applicationNo other application except to ensure payment of debtIs to still give the testator the opportunity to decide

When it takes placeAfter the opening of SuccessionRefers to properties gain after making the will during the testators lifetime

TestatrixDeadAlive

In relation to Art 793, application How can you still distribute the totality of your estate? Institution of heirs ---- fractional parts Requests (Legacy or Devise) Specific personal prop or specific real prop respectively

Characteristics of a valid will (usual bar question)1. Purely Personal What can be and cannot be delegated; (the what, the who, and the determination of the portions to give are dispositions which cannot be delegated;2. Mortis Causa;3. Dispositive of Properties must dispose of P&R, if not it is not a valid will;4. Ambulatory it is an act of liberality, thus it can be revocable any time;5. Free Act done without duress; Under Obligations and Contracts what are the essential requisites for a valid contract(a) Consent - characteristics of a valid consent1. FREEa. There is no undue influence (Art. 1337)b. There is no violence (Art. 1335)c. There is no intimidation (Art. 1335)2. INTELIGENCE; andAll required for consent a. There is no mistake (Art. 1331)to be proper3. SPONTANEOUSa. There is no Fraud (Art. 1338)(b) Subject; and(c) Cause6. Unilateral Act there is only one person talking and what he wants is what should happen; as compared to a contract which requires 2 or more for a meeting of the minds;7. Formal follows the formalities provided by the code in Art. 804-808 and Art 810;8. Statutory Right you can make a will only since the law allows you to do so. As per Atty. Sebastian: no need human rights and& crap daw to explain it.

Art 785 (what can be and cannot be delegated) What can be delegated to a 3rd person is the (1) the distribution of specific property or sums of money that he may leave in general to specified classes or causes and also (2) the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. If a 3rd person is disqualified, since he is not a reputable person, the trinity of corruption will take his place. Municipal Mayor, Municipal Judge of the same Municipality & the Municipal Treasurer.

Dizon-Rivera v. Dizon (Testamentary Preference) The testatrix purposely divided her property so that there can be no co-ownership, thus no project partition was done. The heirs fought since the distribution was not even. The estate was assessed at 1.8M and what was given to Marina was 1,148,000.00, thus the legitimes of the other 7 were affected. Marina wanted to pay-off missing amounts to complete the legitimes of her siblings, other heirs wanted more, SC agreed with Marina. SC said, Control of disposition, the testator wanted to favour one of the heirs over the others, who are we to question such, the testamentary preference of the testatrix must be preserved, furthermore, Art. 906 to add to what is missing in the legitime.

Art. 789 (Ambiguities) Patent Ambiguity (Apparent) by reading the will, you see the problem; Latent Ambiguity (Non-Apparent) it is in the execution of the will that you will then see the problem. How do you cure the ambiguity Rule 130 sec. 9 of the Rules of Court; Parole Evidence Rule What is written in the agreement of the parties cannot be over-tuned by oral proclamation. There are exemptions Extrinsic Evidences to such Thus we must first look into the will in its totality, then when there is no chance to resolve such, we go to extrinsic evidence (intention first) What is extrinsic evidence All kinds of evidence except oral declarations or testimonies of the testator. Why no oral testimonies are allowed Testatrix cannot refute such, being dead (Dead mans statute rule in Evidence)

Testate Estate of Adruna Maloto v. CA (Extrinsic Evidence) Made a will but later got angry with the heirs, had the will burned by the maid, in doing so the requisites for revoking a will by burning was not met, thus no actual revocation; thus a working draft of the said will submitted by the Atty. for probate was accepted as extrinsic evidence of the said will.

Villafor v. Juico Don Nicholas left his properties to Fausta with a condition that if she would ever remarry after his death, the said properties would go to Leonor. Fausta on her part never remarried and when she died left everything to Juico (the supposed lover). Leonor laid claim to the properties to which Juico contended that when the properties were transferred to Fausta she became absolute owner and had the right to do whatever she pleased with the said properties SC: what she got was a usufruct being what she got was the right to use and possess and not naked title, if Nicholas wanted to give it to Fausta, he could have done so without conditions, thus the interpretation that is to be followed is what gives effect.

What you look for in a will in terms of validity.

Extrinsic (as to FORM) form, capacity, due executionWILLIntrinsic (as to SUBSTANCE) substantive provision

Probate only looks at the extrinsicForm1) Time Law in place (what the law is) at the time of the execution of the will.2) Place Philippine law or Law of where your locatedSubstance1) Time What the law is at the time of death2) Place National Law.

Bellis v Bellis (Law in play making of the will vs. when the testatrix died) The formal validity of a will depends upon the observance of the law in force at the time of execution of the will. On the other hand the substantive validity of the dispositions therein are governed by the laws in force at the time of death of the testator.

Who can write a will? Natural person, 18 years of age and of sound mind Requisites for sound mind:1) He knows the nature of his estate; though because of Art 2) Proper objects of his bounty (knows who is going to get such); and 799 not necessary req3) The character of the testamentary act anymore (need not In perfect mental health)

De Guzman v. Intestate of Franciso Benitez The important factor here is that the medical records of the testator influenced the factual findings of the probate court. Lee v. Tambago ( 3 fold objective of the formalities of a will) Lee accused Tambago of notarizing the will without the formalities of law being followed. Lee claims that there is no actual will, since no residence certificate was obtained, no copy of the will can be found in the archive and the signatures of the witnesses may be forged. Residence Certificate use to be a valid form of identification, under new law govt id with picture is needed. (pero TIN is allowed, WTF?) The Atty. Herein denied such but by blanket denial (Thus under RoC becomes admission) SC agreed with Lee and gave the 3 FOLD DOCTRINE OF THE FORMALITIES OF A WILL as provided, which are as follows:1) To close the door on fraud;2) To prevent substitution of pages; and3) To guaranty the wills authenticity. Why do we have so many stringent rules for succession that are not applied in other form of documents such as contracts? Lesson: A will is actually a dead man speaking to us, since the testatrix is dead he cannot challenge authenticity duh! As per Atty. Sebastian there are 2 things wrong with the decision1) The only actual issue in the case was if the will was actually notarized, Justice Corona did not answer the said question instead he gave out a definition of a will and the requirements of such. What is the relation to the issue? I dont know but thanks for the 3 fold objective that came from interpreting such.2) Tanga! How can anyone say that as a rule, if there is no residence certificate and was written in the acknowledgement was the testatrix old residence certificate, the will is not valid? The purpose of a residence certificate is for identification of those who are witnesses in front of the notary only? Magisip-isip naman sila.Atty. herein should have been disbarred, bobo kasi!

Definition of acknowledgement before a notary public Jurat sworn statement/ affidavitsThis is what the notary should Acknowledgement Deed/ Contracts attach or affix. Thus must be remembered a will is not a statement but rather a deed (disposition of prop)

Suroza v Honrado (language must be understood) The opening paragraph of the will it was stated in English that the testator understood English but in the concluding paragraph it stated the will was read and translated to Filipino for the testatrix. This coupled with the fact that she did not sign such will but rather thumb marked it, infers that she was actually illiterate. Atty. Sebastian: The reason for the language or the dialect must be known to the testator is because of the 3 fold rule held in Tambago. Because of the bad faith or fraud, how can you now be sure of its authenticity? The judge here made a stupid decision, the heir lost out, thus only correct to go after him, dapat ma disbar din toh, isa pa tong tanga!

Reyes v. De Vidal ( Disputable presumption) Testatrix died and a will, there was no descendants or ascendants only sibling involved, where one got and the other did not. Lower court ruled against the probate citing language not known to the testator, since there was no admission that the testatrix knew the language in the will. SC: you do not need to state if the language is known to the testatrix since there is a disputable presumption that they do in deed know. In the case at hand, first of all it should have been presumed that testator knew Spanish and the other siblings who contest such, must now bare the burden of proof to show otherwise. But what really killed this case was the fact the atty. was bobo submitting a letter that showed the testator had written such in Spanish, who submits contrary evidences to your own claim?

Balonan v. Abellana (for 3rd persons, where to put testators name) The will here in was written at the bottomJuan Abello and not Anacelto Abellanawho happens to be the testator. The will is then denied probate since it wasvoid for not following Art 805; which requiresthat the testator himself shall affix his signature or by the writing of the testators name for a 3rd person. Atty. Sebastian: the reason for such is technical;It is to clarify whose will it is or better said who is the actual testator of the will (substantial compliance cannot apply herein); it does not matter who signed such, what matters is the name of the testator, it can always be clarified as to who signed such anyway in the attestation clause.

Garcia v Lacuesta ( Dont lie, admit mistakes) What was written in the will is simply his name. The problem came about in relation with the attestation clause which said it was signed by the testator himself as accompanied to what was stated in the will under the testators name, which said at the request of the testator. This created doubt if the testator did actual sign such. Because of the doubt and + mark beside the name of the testator that is claimed to be his signature, there can be no assumption of compliance. Atty. Sebastian: To better understand this case you have to look into historical aspects of such, which first in the 40s and 50s people were more trustworthy thus it was accepted the + mark was a mark of an illiterate and was accepted as their signature. Secondly the testator was not an illiterate, the lawyer only claimed such to say there was no doubt, which is wrong; SC took it out on the testator will being that the lawyer lied, so dont lie, if you made a mistake admit it and they might show favour upon you.

Nera v. Rimando (Test of Presence) There was 2 rooms, a big room and a small room that could notAccommodate everyone. Thus all but one of the witnesses wereIn the small room with the testator. Thus a question if the third Witness actually witness the execution of such will. SC: The test of presence does not ask whether they actually saw each The others sign, but whether they might have seen each other sign; in the case at bar, though the 3rd witness was in a separate room such in itself would not be necessarily the factor for the failure of the test, it is that, coupled with the fact that there was a curtain that blocked his view that caused the failure of the test of vision and proximity. It must be remembered a witness has 2 capacities: 1) to attest and 2) to subscribe; both of which must be done in the presence of the testator, witnesses and of one another.

Taboada v. Rosal (Attestation v. Subscription) There is a will which consist of 2 pages. The 1st page contained the entire testamentary disposition which was signed at the bottom by the testatrix alone and by the 3 witnesses on the left margin. The 2nd page contained the attestation clause and the acknowledgement. The Issue herein is the fact it must be subscribed at the bottom of the will. SC: The denial of probate was wrong and emphasized the difference of attestation and subscription and their purpose as well. Attestation consist in the witnessing of the execution of the will and to take note mentally that the requisites of the will were followed. Subscription is the signing of the paper for the purpose of identification.

Icasiano v. Icasiano (good idea to keep a copy) One of the pages of the will was not signed by one of the witnesses, thus the wills authenticity was questioned. SC: There is a duplicate original which has all the signatures on all pages of the will, the said duplicate cures the defect, furthermore this case was a mere oversight, witness could be correct in saying that she might have lifted it and flipped 2 pages by accident. Carbon copy used carbon completely Duplicate copy - the documents are copied but the signatures are all original Note: no computers pa back then! Atty. Sebastian: emphasized that fraud and undue influence are mutual repugnant and exclude Each other, their joining as grounds for opposing probate (as like in this case), shows an absence of definite evidence against the validity of the will. Art. 1338 provides for what is fraud voluntary act Art. 1337 for undue influence non-voluntary act In other words BOBO ang lawyer, cant be the same.

Cargo v. Cargo (Attestation Clause must be signed below) This case must be correlated with the Taboada case wherein The placing of the signature was at question. The difference in this case is what is concerned was theAttestation page, which serves a different purpose as Explained in the Taboada case Since the signature was on the left margin and not at the Bottom of the page, the will is void for the formalities of the Law must be followed. Atty. Sebastian: An attestation is a statement of a witness thatIf it is not signed, then it is as if there is no attestation for in turn there is no actual statement made because of the lack of the signature. The purpose of an attestation clause is for the witness to admit that the formalities of law was without a doubt followed.

Lopez v Liboro ( 2 page sequence) The will consists of 2 pages. The first page for the Dispositions, the other for the attestation Art. 805 requires that the pages be numbered, in orderTo prevent pagination/substitution of the pages. It must be noted: this case was covered under the oldCode, which does not require a notary public but the Reasoning is still sound nonetheless. (If there is a notary there will be other ways to redeem the said defects. As per the SC: the 1st page clearly follows the 2nd, thus there is no pagination and possible fraud was avoided.

Samaniego-Celada v. Abena (Attestation Clause is part of the will) It is being argued that the will consist of 2 pages but the attestation clause state 3 pages. Error in the attestation clause as to the number of pages is not necessarily fatal. Atty. Sebastian: Bobo! Dont even know how this got to the SC or even why it is assumed the attestation clause is not part of the will. There are really 3 pages, and without the 3 page which is the attestation clause, the will is void, so duh kasama yan!

Abada v. Abaja ( no. of witnesses need not be stated on the attestation clause) The facts are too long, the main point as to succession is even if the attestation clause does not state the number of witnesses, if it can be seen in the will that there was 3, then there is substantial compliance (seen in the sense 3 signed duh!) Lesson: Art 809 provides for the liberalization of interpretation in the Attestation Clause, thus it must be remembered substantial compliance only happens in regards to the attestation clause. Reason for such: Is the fact that the Attestation Clause is not an act of the testator but of the witnesses combined, thus should not fault the testator as much as possible.

Azuela v. CA (Stupidity/bayaran) There are 3 defects in the case at bar that the court overlooked. 1st the AC did not state the no. of pages As per SC, cannot apply Taboada since in Taboada the number of pages is stated elsewhere in the will, in this case it is not. 2nd AC, witness did not sign at the bottom Completely forgot or ignored the principle laid down in Cargo. 3rd The notary attached a mere jurat instead of an acknowledgment Atty. Sebastian, first of all nilagdaan ko at ninotario ko ngayon 10 ng Hunyo is not even enough to be a jurat, being in a jurat there is a statement the such is to certify that such is the truth as you know it. Furthermore, in the will everything was left to Felix the nephew who supposedly took care of the decendent, despite the fact the decendent had a daughter in the states and the grandchildren, meaning the will should have been set aside since the decendants were petirited. (thus obvious bayaran).

De Ramos v. CA (credibility) Main issue is if the testimony of the 2 witnesses who opposes to what they have attested to, will be good enough to deny probate of the will. Decision of the SC; Since the attestation clause is placed there to ensure that all formalities be complied with and beyond such the lawyer was involved in every stage before passing it to another lawyer who notarized such, both lawyers gain nothing, nor is there any showing of mischief on their part. Relate to function of notary. As per Atty. Sebastian, there was 2 problems: (1st) is the credibility of the 2 witnesses; and (2nd) Parole Evidence Rule when the terms of an agreement (includes wills) have been reduced to writing, it is considered as containing all terms agreed upon and there can be, between the parties and their successor in interest, no evidence of such terms other than the contents of a written agreement. (Rule 130 sec. 19 of the rules of court there are exemption also).

Garcia v. Gatchalan (Article 806 is a must) Art 806 must be followed, the will must be notarized before a notary public by the testator and instrumental witnesses. This is to make sure the will is authentic but void for non-compliance.

Cruz v. Villasor (Notary as a witness also stupid if notarizes such) Issue here stems from the fact that one of the instrumental witnesses is also the notary who notarized the will, thus there is a question now as to the fact of whether there was a lack of witnesses to the execution of the will. Lesson: A notary cannot be a witness to what he is supposed to notarize himself. Atty. Sebastian: Bobo, claro ng 806 notarized before the notary public; to notarize is an act of swearing that such is the truth, how do swear under oath to yourself? Bobo talaga! More so the function of a notary public is to guard against any illegal or immoral arrangements, in the said case such purpose was defeated.

Guerero v. Bihis (It is the responsibility of the testator to check the authority of the notary) The will was notarized in QC but the notary was commissioned only for Caloocan City. SC: the will is void despite the fact it could be authentic, for lack of authority of the notary to notarize such, the testator should have checked the credentials. Atty. Sebastian: Mga tanga what part of before a notary dont people understand, wag magtamadtamad at puntahan na lang yung notario sa office niya to notarize.

Gabucan v. Manta (Doc Stamps) Atty. Sebastian: Court should have just ordered the doc stamp requirement to be complied with instead of denying probate Lesson: get doc stamps for what documents need doc stamps, mura lang naman yun!

-------------------------------------------- End Art 804 806 -----------------------------------------------------

Art 807. (Deaf or Deaf-Mute Testator) If the testator be deaf, or deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, some practicable manner, and the contents thereof.

Art 808. (Blind Testator) If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged.

Garcia v. Vasquez (what is blind in the legal sense) The issue herein is to determine is whether or not the testator is blind for purposes of Art. 808. The witness said she saw the testator read the will silently but the doctor on the other hand testified that because of her glaucoma she would not have been capable to read the will, despite being able to relatively see things. (lost portion) Alvarado v. Gaviola (Substantial Compliance blind) Like the previous case, testator had glaucoma, SC ruled though that there was substantial compliance despite the fact the provision of law as provided in Art 808 were not complied with, specifically the two readings, 1 by a subscribing witness and by the notary; SC used Art 809. As basis for the substantial compliance. Atty. Sebastian: Substantial compliance should only be in regards to the Attestation Clause, as provided by Article 809. Article 1234 of the NCC (law on substantial compliance) As per Tolentino, The following are the requirements of substantial Compliance:1. Attempt in good faith to apply such;2. No wilful deviation;3. Deviation must be slight; and4. Deviation must be technical or unimportant. Atty. Sebastian comment: the ruling was most likely made because of the illegitimate son, to ensure that he would not inherit just like the testator wanted; but the manner of how the SC did it was still wrong.

Gil v. Murciano Art. 809 enunciates the doctrine of liberal interpretation; Absence of bad faith, forgery, fraud or undue influence or other defects, such will not render the attestation clause invalid and if the will is in fact proven to be executed and attested, substantial compliance will do. In the case at bar, it was not stated in the attestation clause if the testator signed in the presence of the witness but was stated that such happened in the body of which, thus the SC allowed such under substantial compliance.

Caneda v. CA Affirmed the ruling in Gil v. Murciano but denied probate; the circumstances of the case play a vital part. The involves a reconstituted will that was obtained from the records of appeal (from the CA), since the original was lost due to the war. SC did not allow such due to the lack of the original copy of the will.

Roxas v. De Jesus (Holographic will and the date requirement) The holographic will is being questioned in the case since what was written in the said will was FEB/61 as the date instead of the required format which is MM/DD/YR, as stated by the old code. The said will was also in a form of a letter to her children. Atty. Sebastian: The decision is correct pero tang-ina substantial compliance ulit! Why is the date important?1. To check if there is testamentary capacity at the time of the execution of the will;2. Testamentary Capacity referring to the fact testator is at least 18 years of age and is with sound mind.3. Thus depending on the situation of the testator the year alone will do.

Labrador v CA (Position of the date) The case at bar involves a holographic will that is not dated specifically but is nonetheless the date can be found in the body of the will in the 2nd page. Atty. Sebastian: Article 810 does not in any case prescribe where the date should be, thus it is for all extensive purpose allowed. The Secrecy of the holographic will is allowed Atty. Sebastian: the purpose of the holographic will or any will is to create preferences, such preferences makes it understandable to want to keep the will secret. para yung mga ibang membro ng pamilya ninyo hindi kayo gagaguhin kasi maskonti yung bibigay ninyo sa nila.

Gan v. Yap (Need the will itself) The holographic will was lost; it was claimed that 5 people had read it and the testator wrote it in secrecy since she was afraid of her husband. SC: The will itself must be submitted in order that Article 810 be considered complied with, it is needed to check the genuiness of the hand writing, without such, its genuiness cannot be established. Atty. Sebastian: Mga Gago talaga, rehearsed pa yung testimony ng 5, parang they tried to memorize everything. Lesson ditto always submit the will for probate. Side comment: Decision cited photostatic copy, such are not valid anymore, still need the original now.

Rodelas v. Aranza (Photocopy not allowed and why) In this case the holographic will was also lost. SC cited in footnote 8 of the Azola case which said a machine copy should be allowed, thus the SC sent the case back to the trial court. Atty. Sebastian: Still need the will itself to prove authenticity. How do you prove authenticity? With the handwriting in the original copy What do you look for in the original?1. The strokes;2. The pressure applied to the document; and3. Speed applied in writing such. Such can only be seen in the original, not in the photocopy! Action there is a plaintiff and a defendant, where the results will declare one or the either the winner of the case. Special Proceeding There is no plaintiff and defendant here instead what you try to establish here is the existence of a right, fact or status; thus there is no winner necessarily; Atty. Sebastian: The Rodelas decision is WRONG!!! They did not have to disturb the principle laid down in Gan v. Yap; furthermore such was a special proceeding, they didnt have to decide the way they did to make a winner, mga bobo!

Azola v. Singson (contested Art. 811 of the 3 witness rule making such DIRECTORY only) Art. 811 is clear, if the holographic will is contested 3 witnesses must be presented but if uncontested only one is required. The issue in the case is whether the 3 witness rule directory or mandatory in nature. Atty. Sebastian: The great JBL Reyes took pains to properly explain why the rule is DIRECTORY, pointing out that is not as to the quantity of witnesses but rather the quality of the witness that is important. What makes or breaks such is the credibility of the witness. Thus if all but one of the witnesses died, it would still be enough provided that the remaining witness is credible.

Codoy v. Calugay (contested Art. 811 of the 3 witness rule making such MANDATORY only) In this case there 6 witnesses that were presented, all of which were not credible at all, thus the SC correctly ruled that it should be denied. Atty. Sebastian: The Justice who decided the case, Justice Pardo whose background in law comes from the fact he served in COMMELEC (kaya mahina sa civil law), made an error in the manner of how the case was decided. Pardo basically made the 3 witness rule mandatory based on the word shall. His reasoning as compared to JBL Reyes in the Azola is out classed (mahina talaga yan). Further comment: The rule or doctrine of law on how the SC is to overturn a previous decision, is that it must be En Banc, which in the case at bar did not happen, division lang siya, bobo talaga ba!

Rivera v. IAC ( Joke time lang case) This was an attempt to look into the 3 witness rule once again but was aborted when it was found out the said illegitimate child was actually an imposter.

Probate is for Testamentary Succession There are 2 parts that take place in a testamentary succession.

Part 1 Probate Proper (this and only this happens in a probate court proceeding) Must satisfy the followingI. Capacity which checks if the testator was 1st of proper Age and 2nd of sound mind.II. Formalities As to Notarial Wills Art 804-806 As to Holographic Wills Art. 810III. Credibility as to witnesses and documentsIV. Free Will If all is satisfied, then the court shall issue a probate order which in turn conclusively proves (items I-IV). Note: all Items must be present in the will. Note: a probate order is a FINAL order, thus the remedy for such will never be certiorari but instead appeal.

Part 2 Partition Refers to the Substantive Portion of the will.

Kalaw v. Relova ( must sign changes to a holographic will) Art 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (Note: only for holographic wills). In the case at bar, testator wrote a will where Rosa was an heir but later due to rumour mongering which did not put the testator the testator at ease, the testator decided to cross her name off and write above it Gregorio instead.Problem herein was that there was no signature as toThe correction as provided for in Art 814. There is no question that the hand writing is authentic,The issue here is whether or not Rosa will get theInheritance since the alteration to the will was Not signed by the testator. SC ruled: Rosa cannot inherit based on the rules on Revocation (Article 830) and Gregorio cannot inherit Based on Article 814.

Ajero v. CA Ajero upholds the proposition that article 813 & 814 do not form part of the requisites for formal or extrinsic validity of the holographic will, thus failure on the part of the testator to observe the requirements of Art. 813 & 814 will not justify the disallowance of the will, but relevant provisions may be disallowed Proof is not appropriate in Part 1 (Probate proper), where only the 4 are looked into.

VDA. De Perez v. Tolete What was probated abroad under foreign law, does not automatically become accepted here. Proof stated in Art. 816 is required.

Joint Will A joint will is where 2 or more people make a will in a single instrument. Such will is VOID, since the characteristic of the will being purely personal is violated. Why? You run the risk where one spouse over powers the other spouse with undue influence if allowed.

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

Art. 16 of the New Civil Code. however, intestate and testamentary succession and to the amount of successional rights and to the intrinsic validity shall be regulated by National law

Property Lex Situs law of the place where the thing is found. Exception for testamentary and/or intestate succession Order of succession Amount of Successional Rights National laws of the decendent; in Intrinsic Validity of testamentary provisions re to this lex celebrasionis shall yield.

De La Cerna v. Rebaca (Joint will that got through) A joint will of the spouse was accepted and probated, no one challenged such, thus partition was and it became final and executory. When it was submitted again the 2nd time around when the wife died for the estate of said wife the court ruled that such will is null and void for being a joint will. SC, the final judgement in the 1939 (the first case) an error in judgement as it is, has obtained finality thus cannot be disturbed, but said error does not bind the court on account of the other spouse (the wife). Atty. Sebastian: This will had to be resubmitted since the wife died under the New Civil Code, but if it was somehow allowed to go through now (despite its illegality but like the situation of the husband), you can have both probated at the same time, since the new code allows probate ante mortem, which the old code did not.

Qualifications of a witness to a notarial will1. Of sound mind; For capacity and the age also for showing2. At least 18 years of age;ones maturity3. Must not be blind, deaf or dumb;4. Must be able to read and write; To help the proceeding move faster and 5. Must be domiciled in the Philippines;for better witnesses6. Must not have been convicted of falsification of a document, perjury or false testimony; Credibility7. A witness who is NOT a notary at the same time Cruz v. Villasor

Relate such to the 3 credible witness (Art. 805) and Competent Witness (Art. 820 and 821)

Gonzales v. CA (Credibility is determined by the court) The witnesses were objected despite their meeting the criteria of Art. 820 & 821, the argument is that they might be competent but they are not credible. SC ruled, credibility does not need to be proved by the witnesses; in fact that is the task of the trial court to determine such, what may be proved is the competence (can be inferred also) Sir: ang desperado naman yung atty. masaya siya! Another example of a case that should have never gone all the way to the Supreme Court.

Article 823. What happens when the witness is a beneficiary in the will as well? When the witness is also a beneficiary, he will remain a valid witness but the provision on the beneficiary is void. Void as to the witness himself, his spouse, ascendants and descendants, and anyone claiming under such person and ss, asc &dsc. Why? The law considers it as an attempt to bribe the witness, the witness may be tempted to do whatever to get the will to pass probate. Exception: when there are 3 other witnesses not including him in the 3. (4 or more duh!)

Article 1027 4 (Those who are incapable of succeeding) Any attesting witness spouse, parents or children or anyone claiming under such witness, spouse, parent or children. It does not provide for an Exemption (conflicting laws) Art. 1027 4 is an attack on ones capacity Art. 823 is an attack on the legacy or devise it self Atty. Sebastian: I am of the opinion the incapacity is absolute but there is still no decision on such, so masaya kayo ulet!

Article 824. When the creditor is a beneficiary also, it is allowed for him to be a witness to the will Atty. Sebastian: The reason for such is that the interest is not due, the fact the debt is secured through the debtors estate, thus no interest. (He will get what is his no matter what, yun lang); BUT it must be under a written stipulation, if it is not stipulated, tantamount to a donation., then it cannot proceed anymore (Have no Idea what is being discussed here, sorry had too much to drink)

Doctrine of Incorporation by Reference The requisites as provided by Art. 827 are as follows:1) The document or paper referred to in the will must be in existence at the time of the execution of the will;2) The will must clearly describe and identify the same, stating among others the number of pages thereof;3) It must be identified by clear and satisfactory proof as the document or paper referred therein; and4) It must be signed by the testator and the witnesses on each and every page, except in cases of voluminous books of accounts or inventories.5) Atty. Sebastians example: Yung mga bumbay, the 5/6 Everything he lent is/are account receivables (AR), if there are 1,300 customers with their own ARs, merely use the article to include the listahan into the will.------------------------------------------ MIDTERMS COVERAGE END----------------------------------------- Revocation

Testamentary capacity is required and it must be ambulatory Why must it be ambulatory? Making a will is an act of liberality and cannot be given effect until death, thus he should get to choose to keep or remove some from the will.

How to Revoke a Will

FIRST, By Implication of Law needs a statutory provision (THERE ARE ONLY 7)1) Art 936. Revoked if testator brings action for payment of debts (READ!); must connect with Art 935 where: Inherit a legacy of credit Accounts receivable legacy of remission Condonation of debt2) Art 957. Provides 3 effects which make legacies and devises ineffective:I. Change of form of the subject (ex: Flour was left as a legacy but it was later made into bread;II. Change of title (ex: A legacy of a car was stated but later sold) exception though as to such is through the right of repurchaseIII. Specific property is totally lost (ex: there was a legacy of a car than ondoy happened) 3) Art 1032. Incapable of succession by reason of unworthiness ( 4 does not apply since there is no law)

4) Art 43 5. Spouse who contracted a subsequent marriage in bad faith, cannot inherit from the innocent spouse relate to Art 42- reappearance of absent spouse.5) Art 44. Where both spouse of subsequent marriages acted in bad faith Marriage is void, thus donations and testamentary dispositions made in favour of the other are revoked by operation of law.6) Art 50. (Must be connected with 2,3,4 & 5 of Article 43 and Article 44) Splitting of properties, legitimes and alike.7) Art 63 4. Legal separation, offending spouse cannot inherit from the innocent spouse.

SECOND, By subsequent will or codicil (can be done in 2 ways)1) Implied Revocation Example: 2001------ Will 1 made ------- Institutes A as universal heir2011------ Will 2 made ------- Institutes B as universal heir Being there is no reconciliation based on the facts, thus the latter expression of intent is given effect and the former is revoked 2) Express Revocation Example:2001 --- Will 1 made ------ Institutes A as universal heir2011 --- Will 2 made ------ States I revoke 2001 will; all to B The 2nd will must be intrinsically valid (as to form); If the 2nd will is denied probate the 1st will can be submitted for probate (Theory of dependent relative revocation) Requirements: A) it must be express and B) revocatory will must be valid. The difference of the 2, in regards to a 3rd subsequent will Implied2012 Will 3 made --- States I revoke will 2 such will make will 1 operative again (it is revived) Express2012 --- Will 3 made --- States I revoke will 2 Despite what is stated will 1 is not revived, since will 2 in its revocating clause expressly revokes will 1 (thus cannot be revived). Third, Overt Acts Requisites for Overt acts ( as provided in the Adriana Maloto Case)I. Intent to revoke;II. Testamentary Capacity;III. Preformed the overt act which is authorized by law; and IV. Substantive completion.

What are the overt acts mentioned by the codal? (only 4) 1) Burning, 2) tearing, 3) cancelling, or 4) obliterating the will with the intention of revoking it. Atty. Sebastian: Is scissoring allowed? In a 1950s case the tribunal supremo or the Spanish supreme court said yes but no case yet in the RP Is pouring acid the same as burning, since the subjective phase is complied with? NO, it should only be the four stated acts, but lucky for you there is no authority on it yet. Subjective phase depends on the state of mind of the testator.

Doctrine of Republication (To make the will valid) (2 ways to republish) 1st, void as to form (Art. 804-806, 807 & 808 and 810) Remedy: Redo it again correctly the next time around or for holographic wills rewrite the said will; ONLY IF IT IS VOID 2nd, Lost its validity revoked Remedy: Execute a codicil;I revive the (no. of pages) will which was revoked on (date) By mere reference.

Art 832.2001 --- A is the universal heir2011--- I revoke will 1, all to BBut B repudiates. What Article 832 says, A cannot get such on the count of Bs repudiation or incapacity, will stays in effect. Exception: If A is also an intestate heir, get from there.

Revocation based on False Cause There is a revoking will - what you do is deny such, show that the testator falsely known such, to which if he knew the truth he would not have done such This is hard to do because of the parole evidence rule Thus it is important that the 2nd will state the reason for revocation. But in overt acts, no parole evidence rule unlike another will or codicil, parole evidence is a must. Cannot rely on oral testimony Dean Mans Statute

Rodriguez v. Rodriguez (The need to probate a will) There was a will, and following such will there was an inheritance and partition wherein the heir took possession of what they were given under the will but there was no probate the happened. The issue is if a will not submitted to probate would support a claim of ownership and get the title for the property. Article 838 requires probate. Atty. Sebastian: Palpak yung pagkusulat ng decision. J. Ynares Santiago attacked the issue incorrectly going after the right to dispose in the case forgetting the fact the testator here was still alive. Bobo.

Heirs of Rosendo Lasam v Umengan It emphasizes the necessity of probate, without which, a purported will cannot be the source of any right and could not be relied upon to establish the right of possession.Turingan H Lasaw

(4 Children) (2 Children)

Niece, Vicenta; claims 4/6 Claim that father willed them all Since she bought out the other 3 heirs

Vicenta won; no probate of the will (since it was lacking formalities) plus she had a deed of donation and 3 deeds of sale with her. Gallanosa v. Arcangel In the case at bar there was a probate order which was final. In a probate proceeding probate is limited to testamentary capacity and due execution of the will; thus final on 3 things 1. Testamentary capacity, 2. Formalities of the will; and 3. Identity; making these 3 now uncontestable. Wanted to annul the will and reopen probate. Law does not allow to reopen probate proceedings and there is no such thing as annulment of the will.

Maninang v. CA (exception to the exception Nuguid) Testator Clemensia made a holographic will, in which she left everything to Solidad Maninang & husband Pamping and she did not recognize Bernardo as her adopted child. Bernardo claims he was peterited thus the will is null & void and the will cannot go to probate while the contention of Maninang is that probate looks only into the extrinsic validity thus there is no basis for Bernardos claim to stop probate and moreover he was also disinherited. Bernardo correctly cited the case of Nuguid v. Nuguid and Balanay v. Martinez which allowed the court to delve into intrinsic matters before determining the extrinsic matters when the situation calls for such. SC in this case said the will should not be denied on dubious grounds as a matter of public interest, if not what would be the point of having a probate proceeding to begin with. Atty. Sebastian: the GR is probate is only extrinsic; exception to the rule Nuguid v. Nuguid; exception to the exception Maninang v. CA. Before the family code PD 603 adoption, legitimacy was based on blood, thus cannot confer such to an adopted child. SIDE NOTE, SC DIFFERENTIATED PETERITION FROM DISINHERITANCE.

Petrition consists of the omission by the testator in the will of one of the forced heirs, whose effect shall anull the institution of heirs in Toto with exception to devices and legacies. Disinheritance - is a testamentary disposition depriving a compulsory heir of his share, the effect of such; In the case of INEFFECTIVE DISINHERITANCE shall anull the institution of heirs but only as far as it prejudices the disinherited heir

Pastor Jr. v. CA (Title of ownership in probate proceedings) Atty. Sebastian: This a case where corruption in the judiciary is obvious. Spanish father, Alvaro Pastor, left to his illegitimate child, Quemada, 30% of a mining claim. Originally the mining claim was held by Pastor and two others. What happened here was that the process was not followed. The holographic will was probated, wherein the judge gave 30% to Quemada but did not resolve anything else after such and even worse the court made Quemada was made administrator. (gago yung judge) The importance of the case is the jurisdiction of a probate court to determine the issue of ownership. G.R.: The court should not rule on ownership but rather only extrinsic validity only of the will itself. Exception: For the purpose of determining whether a certain property should or should not be included in the inventory of the estate properties, the probate court may pass upon the title thereto, but such determination is provisional and not conclusive and is subject to the final decision in a separate action to resolve title.

Quasha & Nolasco Law Office v. LCN Construction Corp. (Advance distribution and bond) Sec. 2 of Rule 109 of the Rules of Court Advance distribution of the property is allowed when the court deems it proper and just, permit that such part of the estate as may not be affected by the controversy or upon appeal be distributed among the heirs, upon compliance of Rule 90 of the Rules of Court. Section 1 of Rule 90 of the Rules of Court Distribution is allowed, provided they give a bond to be set by the court, conditioned for payment of said obligation when the court directs such.

Jimenez v. IAC The probate court as a rule cannot pass with finality on issues affecting ownership of the property; the case at bar provides though that the said limitation applies to proceedings in intestacy also. The intestate court can award such provisionally and the parties are not bound be res judicata to institute a separate and subsequent independent action on the matter.

Ozaeta v. Cuartero (undue influence must be substantiated) The case is in regard to the estate of Palanca. Manuel Roxas was the administrator of the estate but was later replaced by Ozaeta, who is rumoured to have resigned early from the CA to become the administrator of such. The validity of the will was challenged, there was a claim that undue influence on the part of one of the heirs (Rosa) took place. The presence of undue influence being a vice of consent should make the will void. SC The allegation of undue influence must be substantiated by competent evidence of such. Mere inferences resulting from the circumstance will not suffice, especially when the will was attended by respectable members of the bar (Roxas and Ozaeta). Moreover, after living with Rosa, he left and resided elsewhere for 5 years, giving the decedent time to rethink the will without the said influence. Thus even if there was undue pressure and influence to be proved, the contents of the will would have been deemed ratified, if having be given ample opportunity to revoke the same. Undue pressure and influence is a frame of mind, if such stops, he can now act on his own and do as he pleases.

Coso v. Fernandez (mere influence is NOT enough) Mere influence is not sufficient to invalidate a will. The influence must overpower and subjugate the mind of the testator so as to destroy his free agency and make him express the will of another, rather than his own. Atty. Sebastian: SC made a mistake in giving the mistress a portion.

Pascual v. De la Cruz (repugnant of one another) skipped case Twin grounds were alleged FIRST was undue influence and the SECOND was fraud, the court here only considered the undue influence which fell short of the standard thus the will was allowed probate. Pick one, cannot have both grounds since one ground is repugnant of the other ground herein.

Ortega v. Valmonte skipped case Roberts v. Leonidas skipped case

Nepomuceno v. CA (Intrinsic validity, exemption) While the general rule is that the probate courts area of inquiry is limited to the extrinsic validity of the will, practical considerations may compel the probate court to pass upon matters of intrinsic validity, where a testamentary provision is void on its face, probate court may pass upon such provision for the purpose of proving the nullity of such.

Dorotheo v. CA The case distinguishes between the extrinsic and intrinsic validity of the will. It holds that the admission of a will to probate does not necessarily mean the provisions of the will can be given effect. Even as the probate order is issued, it is not a guaranty that the testamentary dispositions is valid. Extrinsic is one thing, intrinsic is another.

Article 839, 3 grounds for disallowing the will. First. Lack of capacity; Second. Lack of formalities; Third. Vice of consent (force, duress, fear or threats and fraud) Barreto case (not assigned) not wrong to influence, what is wrong is undue influence; pressure alone or influence alone is not enough to invalidate the will.

Institution of heirs, 2 ways to distribute Institution The beneficiary is the heir to receive an aliquot part and not specific property. Bequest Beneficiary is Devisee who is to receive a specific real property Legatee who is to receive a specific personal property.

Requisites of the institution of heirs a) It is extrinsically valid (3);b) Dispositions are intrinsically valid;c) No vice of consent in making the institution;d) The institution of heir is made personally; ande) The institution of heir is specifically named of identifiable

Art 886 (Preserves the legitime for the compulsory heirs) Atty. Sebastian: This is primitive, most countries do not this. How do you institute an heir? State the name or make him/her identifiable Objective is to specify a person Must be born or conceived when testator dies Since succession opens from the moment of death, the entitlement only begins then. Can you institute an unknown person? Yes, provided it is unknown but certain later. How is the sharing? Institutes a, b & c to the entire estate worth 150K HeirsSharesTotal A 1/3 50K B 1/3 50K As willed by the testator C 1/3 50KTotal: 150k What is A is a legitimate heir? HeirsSharesTotal A +25 75KAtty.: this is a suggestion, in order to B -12.5 35.5Kallow as much as possible the will C -12.5 35.5Kof the testator to apply.

Since the 50K each is what the testator wants, it should be first done, since this is his wish and it should be respected. THEN we get a total of 25K from B & C equally to complete the legitime. This applies only if it is not stated that the legitime is to be paid separately, thus if asked in the bar it depends on the question.

If the testator institutes brothers and sisters where some are full and others are half-blood? Article 848, they are inherently equal unless provided otherwise. Article 1006 for intestacy, full blood gets double the share of the half-blood (2:1)

Article 849. (When the testator calls to the succession a person and his children, they are deemed to have been instituted simultaneously) Ex: Toto and his children and there are 6 children, they acquire it together. Thus, if the estate is 240K it will be 7 240 = 34.2 each This article was made if not only Toto would acquire such which would be generally void unless under Art. 863.

False Cause GR: gratuitous transmission of property based on a false cause does not make such transmission void, thus just simple ignore such. Exception: if it shown that the testator would not have done such transmission if he had known that such was false. 2 things to remembera) The cause must be stated; andb) You are limited to the parole evidence rule and the dead man statute rule.

Austria v. Reyes (False Causes) Establishes the rule on false causes, which are as follows:1. Disregard such, unless can be proven testator would not give such if he knew the truth.2. Check if the cause is stateda. If not disregard.b. If it is, is there substantial evidence of such; if there is none disregard it will be classified as inference and conjectures only.

Preference on testamentary over intestate succession. The migration to intestate creates vacancies. Remember DRIP D Disinheritance (controlled by the testator) R - Repudiation I Incapacitynot controlled by the testator P Predecease

Remedies (1) Substitution - an act controlled by the testator limitation: no legitime (2) Repudiation limitation: The heir of the heir who repudiates has no right of representation. (3) Accreation Inherent and taken from the free portion (only when these 3 cannot take place do we go intestate.

Other Theories Paras ISRAI I Institution, S Substitution (if not appropriate), R Representation (if not appropriate), A Accreation, and still cannot be I Intestate. Puno The theory of Paras is good but in complete since there are time you do not need to go to SRA in ISRAI which is in cases of P Peterition, and R Reserva Troncal. Thus PRISRAI Atty. Sebastian it is still in complete. PRISRAIRA (not sure of my notes is r is for representation again and A for accreation again, must research)

Article 851 & 852 Are examples of vacancies caused not by DRIP but rather failure in math Para sa mga tanga sa math.

Article 851 (example) Given:a. Total estate 150Kb. Will states no Compulsory heirsc. Institutes X , Y 1/3 and Z 30K Numbers Equivalent:X 1/2 of 150 = 75K Does not match the estate of 150KY 1/3 of 150 = 50K and cannot subtract 5 to make 150KZ 30K = 30K Thus share must be adjusted. Total = 155K

Formula to adjust the share(Total inheritance x share of heir) Total distribution

X - = 72.5

Y - = 48.3 Total = 149.82

Z - = 29.02

Another Example same given but now X and Y X = 37,500 45K missing, cannot just add the said amount.Y = 37,500must apply the same formula toZ 30Kincrease the shares.Total = 105,000X (150,000 x 37,500) 105,000 = 53, 571.42Y (150,000 x 37,500) 105,000 = 53, 571.42Z (150,000 x 30,000) 105,000 = 42, 857.14 Total = 149,999.94 Peterition The Philippines is the only country that does legitime (California does also but not a country). This is made effective through Article 906, 854 and 1061 of the Civil Code, all of which aims to protect the legitime. Article 906 add is missing Article 854 peterition Article 1061- collation Requisites of Peterition(1) There is total omission (2) of a Compulsory Heir (3) in the direct line and (4) he/she must be alive or conceived at the time of death.

Reyes v. Barreto Datu (What is meant by total omission for peterition) In the case, he received something thus, 906 is the correct article to apply. Total omission requires1. Heir who was excluded got nothing by will;2. Gets nothing by intestacy (free portion fits);3. Nothing by way of advances like donations (as per NCC every donation is considered an advance)4. Support but must distinguish from FC and NCC, thus must distinguish between support and gift, since gift can stop peterition.

Article 856 (there are only 3 compulsory heirs)1. Descendants Legitimate Illegitimate Adopted2. Ascendants Grandparent Parent3. Spouses

Balanay v. Martines & Nuguid v. Nuguid Heir must be alive to be peterited, since there is no chance to inherit if you are dead, thus when succession opens he must be present. Conceived child is deemed born (300 days? And Art.41, access required)

Nuguid v Nuguid (exception to the extrinsic validity) While Article 854 annuls merely the institution of heirs, the court is justified in declaring the entire will void if the only testamentary disposition in the questioned will is the institution of the universal heir. In such a case, the effect of nullification of the testamentary disposition would be the same as the nullification of the will itself. Balanay v. Martinez (extrinsic first then substantive) Unless the nullity is patent on its face, the probate court should first pass upon the extrinsic validity of the will itself before passing upon its substantive validity.

In peterition you annul the institution of heirs completely. Thus heirs gone but legacies and devises remain, so long they do not prejudice the legitime.

Aznar v. Duncan ( peterition and legacy and devise) Article 854 can no longer be claimed if the testator gave by way of will, a legacy or devise, thus not deemed peterited. Additionally foreign law not proven so RP law applied (Art. 906 should be applied).

Cayetano v. Leonidas (no peterition for a foreign testator) There is no peterition in case of a foreign testator who omits his/her compulsory heirs in the direct line. Seangio v. Reyes (disinheritance is a property disposition) Where the sole disposition of a purported will is the disinheritance of a compulsory heir, the disinheritance is considered a property disposition. The failure of the testator to institute an heir or to even mention by name any of the compulsory heir, per se, does not constitute peterition. Especially here in this case were the only compulsory heirs mentioned as a witness.

Acain v IAC Surviving spouse should not be peterited and adopted child also, as they were herein Atty. Sebastian: Intentionally omitted the institution is void Invalid disinheritance institution is not void, it only affects the legitime Peterition may also be accidental

Seatwork Set of facts:Net estate 210Heirs A, B & Cwho are legit kidsX gets 80 by willY - gets 40 by will Impairment of the legitime

There are only 2 types of substitution, Simple and Fideicommisary Substitution.

Simple SubstitutionI. Brief only has 1 substituteII. Compendious There are at least 2 substitutesIII. Reciprocal (69 hehehe)

Implementation Brief is the usually case and it is one is to one, property to A with B as a substitute to cover RIP (R Repudiation, I Incapacity, and P Predecease) of A.

Compendious ABC OrNote: A will only get Bs share in case of RIP B C A Reciprocal Legacy or DeviseNote: RIP of B does not give the entire amount to X and Y 75 = 37.5 each

- A & B Subs for and X & Y; X & Y subs for A & B Note: Legitime computed separately.

Seatwork The facts:1) A is the sub for B & C and B & C are the subs for A;A repudiates;A, B & C are voluntary heirs; andEstate is 210.Divide the estate.

2) Same set of facts but nowInstead of voluntary heirs they are all legitimate children and have different shares as provided.

Fideicommisary Substitution (FCS) The goal is to prevent perpetuities in succession. Transfer of property in succession from One generation to another Example: UK succession line of the crown Perpetuities was allowed in the old code but is no longer allowed in the Civil Code because of the concept of juridical capacity. Juridical capacity begins at birth and ends through death and since your dead you cannot own anything, one of the exemptions is Fideicommisary substitution What happens in FCS? Upon death of the testator, 2 heirs simultaneously inherit. 1st heir has the right to the beneficial use of what was inherited. 2nd heir, when the time designated has elapsed or if the 1st heir dies, he/she will receive the thing inherited. Requisites for FCS1. Institution of 2 heirs only, to inherit simultaneously;2. The relationship of the 2 heirs is one generation apart (father-son and son-father);3. At the time of death of the testator the heirs must be alive or conceived; 4. Made in an express manner; and Can be done in 2 ways Such is directly stated; or He states 1st heir is to use and preserve for the 2nd heir5. The substitution cannot burden the legitime (Art 886) Ramirez v. Ramirez SC ruled that one generation apart means parent (1st) heir then child (2nd heir) OR Child (1st heir) the parent (2nd heir).

Article 869. A provision whereby the testator leaves to a person in whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives to various persons not simultaneously but successively, the provisions of Article 863 shall apply. As per Atty.: an example of which is where title is not given usufruct.

Are the heirs in FCS co-owners? No because of how it is titled in the papers. If the 1st heir dies, the 2nd heir receives it under a simple substitution but if the 2nd heir dies, the 1st heir gets it completely. (double check)

Since the 1st heir does get ownership over the property, can he have it titled? Yes he can, but he still has the obligation to preserve and transmit to the 2nd heir. There is no decision issued by the Supreme Court yet, to clarify if the 1st heir is a trustee. As per Atty. Sebastian: the 1st heir is not a trustee but rather an owner. The institution is not a mere usufruct, it is rather an obligation subject to a resolutory term (due to the certainty of death at the least). Succession is a mode of Acquisition, thus the attributes of ownership exists, but such is limited by the testator in terms of to preserve and transmit.

Can you alienate the FCS? There is no case law on the matter yet. At first glance the answer should be No. Atty. Sebastian (opinion only): If the 1st heir sells such to someone in good faith and for value under the law of sales it should prosper (but not under the law on negotiable instruments it wont prosper). Thus it should also be ok to sell such property but subject to a resolutory term, so the 2nd heir can still get it after.

Rights of the 2nd heir To inherit simultaneously with the 1st heir; The right to use is suspended (thus as per Atty.: the 1st heir has a better right than the 2nd heir)

Article 867 provides for what is void and prohibited. FCS is will not take effect if:

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

If the substitution is void but the institution is valid then the will is not affected but not vice-versa. If the FCS is to be put in the title, it should read as X (1st heir), subject to FCS, to Y (2nd heir). If the 2nd heir predeceases the 1st heir (DOUBLE CHECK REQUIRED) It shall go the heirs of the 2nd heir but not through right of representation but inherit it in his own right, from the 2nd heir and not from the first heir.

What is a condition a future and uncertain event (or unknown past event). What is a term a future but certain event. Institution refers to an aliquot part not a legacy or devise.

Example of a term Suspensive 10 years after Ts death. Resolutory up to 2019; return everything but the fruits.

Example of a condition Suspensive A passes 2106 Bar Exams. Resolutory While you remain single. Impossible condition 4 impossible conditions1. Physical impossibility2. Legal impossibility3. By public order, policy, good customs and morals4. Contrary to the laws of nature 2 types of impossible conditions Absolute only the obligation becomes void, set aside only the impossible one. Shows the perversity of the Testators mind, never intended to give The law penalizes the testator for making a mockery of such. Relative it is allowable

Rodriguez v. CA (impossible condition) As per Justice Fernando follow what the dead wants, yield obedience, thus in the case at bar the testamentary disposition prohibiting the alienation of the property was not held to be void BUT the same provision in the excess of 20 years was held void.

Impossible Conditions as to time. The best example here is the Dangerous Drugs Act. Shabu was not illegal at that time Thus if valid, then after becomes not valid = loss of the thing due At the time said condition was made, it was impossible = such is void even if repealed.

As to the time for succession As per Sanchez Roman seen in the execution of the will, from that point the perversity was obvious thus it is void. As per Ricardo Puno In or during the fulfilment of the condition, we only make a judgement as to its impossibility when the moment arrives, example when man goes to the moon. Note: Puno sounds good but does not refute Sanchez Roman furthermore there is no decision to what is correct.

Suspensive Condition You inherit right away but your right to claim is inchoate (administrator while you wait). If such condition can no longer be fulfilled then substitution, accreation and the last option to be applied intestacy.

Disposcision Captatoria They make a condition that each other will, will the other. Making the will contractual in character, thus is void. Alienatory Contract fulfilment depends on chance. Only the survivor gets, thus it becomes like gambling. The important factor here is that there is someone that is required to make a will. It is only wrong if such agreement is stated in the will, in order to show each other that they did put such provision.

Potestative Condition Absolutely dependent on the will of the heir. Casual Mixed part will and part chance

Suspensive Term The property will be under the care of the intestate heirs

Cannot appoint an interim heir for it will be violative of Article 863 The transfer contemplated in Art. 863 is in reference to the one degree apart rule thus only 2 transfers. Resolutory Condition Return everything including the fruits

Resolutory TermIntestate heirs that must be alive at the time of death ofTestator.

Term that is to be enjoyed by he who is named in the will.

Rabiddilla v. CA (Modal Institution Lease, Sell and etc. but do what is obligated) Rabidilla received a devise of a sugar land, with the obligation to give Coscoluela 75 export grade and 25 local grade picols of sugar, totalling to 100 picols or 6,000 kilos. Rabidilla died and his heir did not continue to give the picols. SC said, the language of the will is one of a lifetime obligation, thus the obligation of Rabidilla is now an obligation of the heir until Coscoluela dies. (PRO) This is a Modal Institution, meaning the institution imposes an obligation upon the heir or legatee/devisee but it does not affect the efficacy of his right of succession. As compared to a Condition, which must take place or be fulfilled in order for the heir to be entitled to succeed. Condition suspends but does not obligate, mode obligates but does not suspend. If there is a conflict the presumption is that it is a modal institution not a condition.

LEGITIMES

Francisco v. Francisco-Alfonso (legitime it is not a product out of generosity but rather one because of statutory law). Simulated contracts of sale to the illegitimate children, where no consideration was given based on the fact they had no capacity to pay, in order to hide such propertyfrom the legitimate daughter. SC, Legitime is a portion of the estate reserved by law forFor the compulsory heirs; the attempt to deprive someone of their rightful legitime is not tolerated by law.

Castro v. CA (as to the illegitimate child, liberal application) There is no question that the said child is an illegitimate child, therefore she is a compulsory heir thus deserves to inherit under law. SC, applied the more liberal provisions of the family code as the basis for such, stating Article 256 of the Family Code provides retroactive effect insofar as it does not prejudice or impair vested or acquired rights.

Tayag v. CA (as to illegitimate child, strict application) Same facts, same law but SC here ruled differently Which way to go, hell if I know.

Legitime Go ahead and distribute for the legitime does not affect your right to give but ensures that there is amount reserved to be claimed by the compulsory heir.

SEATWORK A, B and C are heirs C is a universal heir but not a Compulsory heir.

Thus, the distribution of what is willed ok and is valid. Correct distribution is A gets 1/3, B gets 1/3 and C gets 1/3 What is willed does not clash with the legitime.

Article 887 has a mistake (corrected it in the codal, check it out) Connect with Art 992, Segregation of legitimate and illegitimate family

(Art 887 lc/ld inherit from lp/la etc.)

Article 992. Segregation of mistressIllegitimate and legitimatefamily law presumes animositybetween the two families. Legitimate is supposed to believethat such are a blemish on their name;oppression against the illegitimate THE IRON WALL, Thus, X cannot inherit from the 3 Illegitimate child in the Civil Code was changed by the Family Code, there were 3 classes then Natural child by legal fiction - attempt to marry but void (1/2 of LC) Acknowledged Natural Child needs fathers recognition or judicial order (1/2 of LC) Acknowledged Spurious Child parents who have impediments to marry (2/5 of LC)NOTE: NO LONGER EXISTS WITH THE FC

Baritua v. CA (Legitimate parent excluded by legitimate child and spouse) Decedent died in a motor vehicle accident. The family of the victim settled the case to which the parents of the decedent were not pleased about. SC, while legitimate parents are considered Compulsory Heirs of the legitimate child, they are Secondary Compulsory Heirs and only inherit in default of the legitimate children and descendants, thus they have no right to request/demand for indemnification for the death of their deceased child.

Van Dorn v. Romillo Jr. (Effect as to divorce) A foreign divorce validly obtained by a foreign national in a foreign court against a Filipino spouse produces the same effect in the Philippines. The Obiter Dictum here is what is important - it suggests that the divorce decree should likewise terminate the status of the foreign spouse as a compulsory heir of the Filipino Spouse.

3 types of Compulsory Heirs1. Primary Legitimate Children and Descendants (including adopted child);2. Secondary Parents and Ascendants; and3. Concurring Those who do not exclude each other (like spouse and illegitimate children).NOTE: Connect and memorize with table of legitimes.

Liquidating If on 8/31/88 and after Family Code, thus if no prenup ACP, BUT if before Family Code it is CPG. Compulsory Heirs: 1) Legitimate/Adopted & illegitimate child IF NONE 2) parents, if their dead other ascendants IF NONE 3) Surviving Spouse.

Article 36 of the Family Code: Declaration of Nullity not annulment Children are still legitimate (still Primary CH) Atty.: this is weird nullity nga tapos legitimate pa rin? Surviving Spouse is not a CH.

Legal Separation The innocent spouse can inherit from the guilty spouse but the guilty spouse is incapacitated to inherit from the innocent spouse.

How to Divide

Step 1) if there are Primary Compulsory Heirs Divide in half 2) Divide between portions provided specifically per Class heir LC and adopted child by default and if None LP or legitimate ascendant.

If any remains, under the control of the testator.

Given: Estate is 120K; A is an illegitimate child; B and C are Legitimate children with a Surviving Spouse.

Step 1) 120 2 = 60 (which is now the strict legitime) Step 2) 60 (strict legitime) 2 (for B and C) = 30 Step 3) SS gets same as B & C = 30Step 4) 30 (share of LC) 2 = 15 share of illegitimateThus, the movement for computation is from strict legitime to free portion as seen in the diagram. Seatwork Same facts only there are more illegitimate children D, E, and F

The illegitimate by law should get of the LC which in this case would be 15; BUT 15 x 4 = 60 which is more than what the estate can provide for in the said situation. The legitime of the illegitimate children cannot be met.The legitime of the LC is protected, the legitime for the SS is protected but the legitime for the ILC are not protected. No such thing is legitimes since it is all part of the estate.

The Para Frag Test (copied the damn thing but I dont understand it, so good luck)

Illegitimate share of the LC = ratio is 2:1 (make such as points)

If there are more LC, share of SS gets smaller and the share of the Free Portion gets bigger.

If the succession goes on a downward motion its per capita Then just divide then and there.

If succession is going up then its per stilpes for the paternal line & maternal line.

Exclusionary Rule When there are LC or ADC; parents and others are excluded.

Article 900 share of a surviving spouse Surviving Spouse share in Articulo Mortis is 1/3 if spouse died within 3 months of marriage. UNLESS, they cohabitated for 5 years prior without any impediment to marry. Atty. Sebastian: ang gulo ng article na to; since despite the article if the only survivor is the widow or widower, she or he shall be entitled to of the hereditary estate of the deceased spouse and the testator may freely dispose of the other half. It should also be applied in intestate succession being it is the LEGITIME that is involved.

Seatwork Facts: estate is 360 SS, A, B, and C A, B and C are LC There is a SS D E F I J K A, B and C have children G H

Divide the estate.

If one of the children dies (A,B & C) their heir will representThem and they divide the share among each other. But if A, B and C disinherited their children inherit in their Own right thus 180/8 is what happens What about the share of the spouse? There is no law as toSuch but as to PARAS the SS still gets 60, it (disinheritanceOr repudiation should not affect 3rd party share.

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Legitime Article 886, refers only to a minimum share for the Compulsory Heir. Thus, even if you say in the will, I will give you of the estate and that such is the same as the legitime, the objective is met. If the testator said give A, B, C, D, E, and F equally and only B and C are legitimate children, this is the steps to be followed:1. Do what the testator asks;2. Check if the legitime of B and C are affected; and3. If affected reduce others share to make room for the legitime, IF NOT AFFECTED then apply what the testator had said in its entirety.(DO THIS DISTRIBUTION SUBJECT TO ALTERATIONS)

As a rule the Legitime cannot be burdened. EXCEPT (4):1. Article 1083. Testator can set a period wherein the property cannot be partitioned, provided said period does not exceed 20 years. Example: a building - testator wanting to preserve its commercial value applies Article 1083.2. Article 1080. A person, in the interest of his/her family desires to keep any agricultural, industrial or manufacturing enterprise intact, can do so by ordering that the legitime of the other children to whom the property is not assigned to be paid in cash.3. Article 159 of the Family Code Family Home shall continue for a period of 10 years or for so long as there is a minor beneficiary and heirs cannot partition it unless the court finds a compelling reason to do so.4. Reserva Troncal.

Legitime is created as a general rule at the moment