SUCCESSION

SUCCESSION A mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. Kinds: 1. Testamentary or Testacy (by will); 2. Legal or intestacy (by operation of law based on the decedents presumed will); 3. Mixed (Partly Testamentary and Legal); and 4. Partition inter vivos (to a certain degree). Elements: 1. Death of the decedent However, a person may be presumed dead for the purpose of opening his succession (see rules on presumptive death). In this case, succession is only of provisional character because there is always the chance that the absentee may still be alive. 2. Inheritance (objective element); 3. Successors (subjective element) a. Heirs i. voluntary ii. compulsory or forced iii. legal or intestate b. Devisees or legatees The distinctions between heirs and devisees/legatees are significant in these cases: 1. Preterition 2. Imperfect disinheritance 3. After-acquired properties 4. Acceptance or non-repudiation of the successional rights.

a. duration or efficacy of the designation of heirs, devisees or legatees; b. determination of the portions which they are to take, when referred to by name; and c. determination of whether or not the testamentary disposition is to be operative. However, the following acts may be entrusted to a third person: a. distribution of specific property or sums of money that he may leave in general to specified classes or causes; and b. designation of the persons, institutions or establishments to which such property or sums are to be given or applied. 3. Free and voluntary act Any vice affecting the testamentary freedom can cause the disallowance of the will. 4. Formal and solemn act The formalities are essential for the validity of the will. 5. Act mortis causa 6. Ambulatory and revocable during the testators lifetime 7. Individual act Two or more persons cannot make a single joint will, either for their reciprocal benefit or for another person. However, separate or individually executed wills, although containing reciprocal provisions (mutual wills), are not prohibited, subject to the rule on disposicion captatoria. 8. Disposition of property B. INTERPRETATION OF WILLS The testators intent (animus testandi), as well as giving effect to such intent, is primordial. It is sometimes said that the supreme law in succession is the intent of the testator. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. Follow the rules prescribed under Arts. 788 to 792. C. TESTAMENTARY CAPACITY The capacity must be present at the time of the execution of the will. Requisites: 1. At least 18 years of age 2. Of sound mind, i.e., the ability to know: a. the nature of the estate to be disposed of; b. the proper objects of his bounty; and c. the character of the testamentary act. The law presumes that the testator is of sound mind, unless: a. he, one month or less, before making his will, was publicly known to be insane; and b. was under guardianship at the time of making his will.

I. TESTAMENTARY SUCCESSION
A. CONCEPT WILL An act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate to take after his death. Thus, a document that does not purport to dispose of ones estate either by the institution of heirs or designation of devisees/legatees or, indirectly, by effecting a disinheritance, is not to be governed by the law on testamentary succession but by some other applicable laws. Kinds: 1. Notarial or ordinary; and 2. Holographic. Characteristics of a will: 1. Unilateral 2. Strictly personal act - The disposition of property is solely dependent upon the testator. The following acts may not be left to the discretion of a third person:

D. FORMALITIES OF WILLS (EXTRINSIC VALIDITY) COMMON FORMALITIES 1. Every will must be in writing; and 2. Executed in a language or dialect known to the testator. SPECIAL FORMALITIES 1. Notarial or ordinary will a. Subscription At the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction; b. Attestation and subscription (evidenced by an attestation clause) by 3 or more credible witnesses in the presence of the testator and of one another; c. Marginal signatures Affixed by the testator or the person requested by him to write his name and the instrumental witnesses of the will on each and every page thereof, except the last, on the left margin; d. Page numberings Written correlatively in letters placed on the upper part of each page; e. Acknowledgment Done before a notary public by the testator and the instrumental witnesses. ATTESTATION CLAUSE A memorandum or record of facts wherein the witnesses certify that the will has been executed before them, and that it has been executed in accordance with the formalities prescribed by law. It must state the following essential facts: 1. the number of pages used upon which the will is written; 2. the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses; and 3. that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. Test of Presence: Not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. ADDITIONAL REQUIREMENTS FOR SPECIAL CASES 1. Deaf or deaf-mute testator: a) personal reading of the will, if able to do so; or if not possible, a) designation of 2 persons to read the will and communicate to him, in some practicable manner, the contents thereof.

2. Blind testator: Double-reading requirement; first, by one of the subscribing witnesses, and the second, by the notary public before whom the will is acknowledged. DOCTRINE OF LIBERAL INTERPRETATION In the absence of bad faith, forgery, fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with Art. 805 (formal requirements). WITNESS TO NOTARIAL WILLS 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 A witness need not know the contents of the will, and need not be shown to have had a good standing in the community where he lives. Also, the acknowledging notary public cannot be one of the 3 minimum number of witnesses. Interested witness: A witness to a will who is incapacitated from succeeding from the testator by reason of a devise/legacy or other testamentary disposition therein in his favor, or in favor of his spouse, parent, or child. However, his competence as a witness subsists . 2. Holographic will a. entirely written by the hand of the testator; b. entirely dated by the hand of the testator; and c. entirely signed by the hand of the testator. The law exacts literal compliance with these requirements. Hence, the doctrine of liberal interpretation cannot be applied. GOVERNING LAW ON FORMALITIES As to time: The validity of a will as to its form depends upon the observance of the law in force at the time it is made. Its intrinsic validity, however, is judged at the time of the decedents death by the law of his nationality. As to place: 1. Filipino testator executing a will in the Philippines: Philippine law 2. Filipino testator executing a will outside of the Philippines: either a. The law of the country in which it is executed; or b. The law of the Philippines. 3. Alien testator executing a will in the Philippines: either a. The law of the Philippines; or b. The law of the country of which he is a citizen or subject.

4. Alien testator executing a will outside of the Philippines: either a. The law of the place where it is executed; b. The law of the place in which he resides; c. The law of his country; or d. The law of the Philippines. E. CODICIL REFERENCE AND INCORPORATION BY

CODICIL A supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered. To be effective, it must be executed as in the case of a will. Its execution has the effect of republishing the will as modified. INCORPORATION BY REFERENCE (Art. 827) Contemplates only lists of properties, books of accounts, and inventories. Provisions which are in the nature of testamentary dispositions must be contained in the will itself. F. REVOCATION OF WILLS TESTAMENTARY DISPOSITIONS AND

2. By some will, codicil, or other writing, executed as provided in case of wills, which may either be: a. Express when there is a revocatory clause expressly revoking the previous will or a part thereof b. Implied when the provisions thereof are partially or entirely inconsistent with those of the previous will; and 3. By burning, tearing, canceling, or obliterating the will. Requisites: a. testamentary capacity; b. intent to revoke; c. actual physical act of destruction; d. completion of the subjective phase; and e. performed by the testator himself or by some other person in his presence and express direction The list is exclusive. DOCTRINE OF PRESUMED REVOCATION Whenever it is established that the testator had in his possession or had access to the will, but upon his death it cannot be found or located, the presumption arises that it must have been revoked by him by an overt act. DOCTRINE OF DEPENDENT RELATIVE REVOCATION A revocation subject to a condition does not revoke a will unless and until the condition occurs. Thus, where a testator revokes a will with the proven intention that he would execute another will, his failure to validly make a latter will would permit the allowance of the earlier will. G. REPUBLICATION WILLS AND REVIVAL OF

REVOCATION An act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward or visible act or sign, symbolic thereof. MODES OF REVOCATION 1. By implication of law: a. legal separation revokes testamentary provisions in favor of the offending spouse; b. preterition revokes the institution of heir; c. judicial action for recovery of debt revokes a legacy of credit/remission of debt; d. transformation, alienation, or loss of bequeathed property revokes a legacy of such property; e. act of unworthiness by an heir, devisee/legatee revokes testamentary provisions in his favor; f. if both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and testamentary dispositions made by one in favor of the other are revoked by operation of law (Art. 44, Family Code); and g. void ab initio or annulled marriages revoke testamentary dispositions made by one spouse in favor of the other (Art. 50, Family Code).

REPUBLICATION The act of the testator whereby he reproduces in a subsequent will (express) the dispositions contained in a previous will which is void as to its form, or he executes a codicil (constructive) to his will. REVIVAL The restoration to validity of a will previously revoked by operation of law (implied revocation). PRINCIPLE OF INSTANTER The express revocation of the first will renders it void because the revocatory clause of the second will, not being testamentary in character, operates to revoke the previous will instantly upon the execution of the will containing it. In implied revocation, the first will is not instantly revoked by the second will because the inconsistent testamentary dispositions of the latter do not take effect immediately but only after the death of the testator.

H. ALLOWANCE AND DISALLOWANCE OF WILLS PROBATE A special proceeding mandatorily required for the purpose of establishing the validity of a will. Questions determinable by the probate court: 1. identity of the will; 2. due execution of the will; and 3. testamentary capacity of the testator at the time of the execution of the will.

testator but the fact itself which turned out to be false. PRETERITION Omission in the testators will of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. Requisites: 1. The heir omitted must be a compulsory heir in the direct line; 2. The omission must be complete and total in character; and 3. 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 testator b. A donation inter vivos has been previously given to the heir by the testator; or c. Anything is left from the inheritance which the heir may get by way of intestacy. In the above cases, the remedy of the heir is completion of legitime under Art. 906, in case the value of the property received is less than the value of the legitime. Effects: 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 heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation. In case of omission without preterition, the rule in Art. 855 should be followed. The suggested alternate phrasing of Dr. Tolentino to the said article is: The share of the compulsory heir omitted in a will must be first taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the heirs given to them by will. J. SUBSTITUTION OF HEIRS SUBSTITUTION The act by which the testator designates the person or persons to take the place of the heir or heirs first instituted (Tolentino). It may be considered as a subsidiary and conditional institution. Kinds: 1. Simple or Common; 2. Brief or Compendious; 3. Reciprocal Instances when substitution takes place: a. instituted heir predeceases the testator; b. incapacity of the instituted heir to succeed from the testator; and

GENERAL RULE: The probate court cannot inquire into the intrinsic validity of testamentary provisions. EXCEPTION: Practical considerations, e.g. when the will is intrinsically void on its face.
Note: When a will is declared void because it has not been executed in accordance with the formalities required by law, but one of the intestate heirs, after the settlement of the debts of the deceased, pays a legacy in compliance with a clause in the defective will, the payment is effective and irrevocable (Art. 1430, NCC; Natural Obligations). I. INSTITUTION OF HEIRS INSTITUTION An act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. PRESUMPTIONS 1. Presumption of Equality Heirs instituted without designation of shares shall inherit in equal parts. 2. Presumption of Individuality When the testator institutes some heirs individually and others collectively, those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. 3. Presumption of Simultaneity when the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. INSTITUTION BASED ON A FALSE CAUSE GENERAL RULE: The statement of a false cause for the institution of an heir shall be deemed not written. Reason: Generosity of the testator is the real cause of the testamentary disposition. EXCEPTION: If it appears from the face of the will that the testator would not have made the institution had he known the falsity of the cause. E.g. Where the person instituted is a total stranger to the testator, it is obvious that the real cause of the testamentary disposition is not the generosity of the

c. repudiation of the inheritance. 4. Fideicommissary Requisites: a. First heir (fiduciary) called to the succession. b. An obligation clearly imposed upon such first heir to preserve the property and to transmit it to the second heir. c. Second heir (fideicommissary) to whom the property is transmitted by the first heir. The fiduciary is entitled to all the rights of a usufructuary, while the fideicommissary is entitled to all the rights of a naked owner. Limitations: a. Substitution must not go beyond one degree from the heir originally instituted. b. Degree means degree of relationship. c. Fiduciary and fideicommissary must be living at the time of the death of the testator. d. Substitution must not burden the legitime of compulsory heirs. e. Substitution must be made expressly. K. CONDITIONAL, MODAL TESTAMENTARY DISPOSITIONS, AND TESTAMENTARY DISPOSITIONS WITH A TERM GENERAL RULE: The institution of an heir may be made 1) conditionally, 2) for a term, or 3) for a certain purpose or cause (modal). Conditions, terms, and modes however, are not presumed; they must be clearly expressed in the will. LIMITATIONS: 1. The testator cannot impose any charge, burden, encumbrance, condition , or substitution whatsoever upon the legitimes of compulsory heirs. 2. Impossible conditions and those contrary to law or good customs are presumed to have been imposed erroneously or through oversight, thus, are considered as not imposed. 3. An absolute condition not to contract a first marriage is always void and will be considered as not written. 4. An absolute condition not to contract a subsequent marriage is generally void, unless imposed upon a widow or widower by the deceased spouse, his ascendants or descendants. Even so, however, the legitime of the surviving spouse cannot be impaired. However, the following relative conditions regarding marriage have been considered as valid and binding: a. generic condition to contract marriage; b. specific condition to contract marriage with a determinate person; and c. specific condition not to contract marriage with a determinate person. 5. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void (disposicion captatoria).

6. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by the law on succession. MODAL INSTITUTION (INSTITUCION SUB MODO) Attachment by the testator to an institution of heir, or to a devise or legacy, of a statement of: a. the object of the institution; b. the application of the property left by testator; or c. the charge imposed by him. A condition suspends, but does not obligate. A mode, on the other hand, obligates, but does not suspend. L. LEGITIMES LEGITIME That part of the testators property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, compulsory heirs. One half of the estate is always reserved for the primary or secondary compulsory heirs. The other half is what is termed under the NCC as the free portion from which the legitimes of the concurring compulsory heirs are taken. This free portion is different from the disposable free portion over which the testator has testamentary control. The disposable free portion is that which remains after the legitimes have been covered. COMPULSORY HEIRS (CH) Those for whom the legitime is reserved by the law, and who succeed whether the testator likes it or not. They cannot be deprived by the testator of their legitime except by disinheritance properly effected. Kinds: 1. Primary those who have precedence over and exclude other CH. E.g. LCD. 2. Secondary those who succeed only in the absence of the primary CH. E.g. LPA or IP. 3. Concurring those who succeed together with the primary or secondary CH. E.g. ICD and SS. If the testator is a legitimate person 1. Legitimate children and descendants (LCD) 2. In default of the foregoing, legitimate parents and ascendants (LPA) 3. Surviving spouse (SS) If the testator is an illegitimate person 1. Legitimate children and descendants (LCD) 2. Illegitimate children and descendants (ICD) 3. In default of the foregoing, illegitimate parents only (IP)

4. Illegitimate children and descendants (ICD)

4. Surviving (SS)

spouse

SS

1/3 if marriage is in articulo mortis and deceased spouse dies within 3 mos. after the marriage. Children inherit in the amounts established in the foregoing rules. Only the parents are of IC are included. Grandparents and other ascendants are excluded.

Notes: 1. See Secs. 17 & 18 of R.A. 8552. 2. By force of the Family Code, adopted children are deemed legitimate children of the adopters. 3. By force of the Family Code, IC without distinction and so long as their filiation is duly established or proved in accordance with law, are each entitled to 1/2 of the legitime of a LC, thus abrogating the 5:4 ratio between natural and non-natural IC. RULES: 1. Direct descending line a. Rule of preference between lines b. Rule of proximity c. Right of representation ad infinitum in case of predecease, incapacity, or disinheritance (LC: LD only; IC: both LD and ID) d. If all the LC repudiate their legitimes, the next generation of LD succeed in their own right 2. Direct ascending line a. Rule of division by lines b. Rule of equal division 3. Non-impairment of legitimes TABLE OF LEGITIMES SURVIVOR LEGITIME LC 1 LC SS 2 or more LC SS LC IC LC SS IC
equal to 1 LC

IP IP Any child IP SS

-excludedIt depends

NOTES
Divide by the # of LC, whether they survive alone or with concurring CH.

STEPS IN DETERMINING THE LEGITIME OF COMPULSORY HEIRS: 1. Determination of the gross value of the estate at the time of the death of the testator; 2. Determination of all debts and charges which are chargeable against the estate; 3. Determination of the net value of the estate by deducting all the debts and charges from the gross value of the estate; 4. Collation or addition of the value of all donations inter vivos to the net value of the estate; 5. Determination of the amount of the legitime from the total thus found; 6. Imputation of the value of all donations inter vivos made to compulsory heirs against their legitime and of the value of all donations inter vivos made to strangers against the disposable free portion and restoration to the hereditary estate if the donation is inofficious; and 7. Distribution of the residue of the estate in accordance with the will of the testator COLLATION 1. Fictitious mathematical process of adding the value of the thing donated to the net value of the hereditary estate (Art. 908 and Arts. 10611077). 2. Act of charging or imputing such value against the legitime of the value against the legitime of the compulsory heir to whom the thing was donated (Arts. 1061-1077). 3. Actual act of restoring to the hereditary estate that part of the donation which is inofficious in order not to impair the legitime of compulsory heirs. RESERVA TRONCAL The reservation by virtue of which an ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant or a brother or sister, is obliged to reserve such property for the benefit of relatives who are within the 3rd degree and who belong to the line from which such property came. It constitutes as an exception to both the system of legitime and the order of intestate succession. Purposes:

of 1 LC

of 1 LC

LPA LPA IC LPA SS LPA SS IC IC SS IC

1/8 1/3 1/3

All the concurring CH get from the half free portion, the share of the SS having preference over that of the IC, whose share may suffer reduction pro rata because there is no preference among themselves. Whether they survive alone or with concurring CH. IC succeed in the in equal shares.

Divide equally among the IC.

1. To reserve certain property in favor of certain persons; 2. To prevent persons outside a family from acquiring, by some chance or accident, property which otherwise would have remained with the said family; 3. To maintain a separation between paternal and maternal lines. Considering the rationale for the reserva troncal which is to ultimately revert ownership of property that originally belongs to a line of relatives but which by force of law passes to a different line, the reserva would have no reason to arise where the ascendants who acquire the property themselves belong to the line of relatives from which the property was, in turn, acquired by the descendant. Requisites: 1. The property should have been acquired by operation of law by an ascendant (reservista) from his descendant (propositus) upon the death of the latter. 2. The property should have been previously acquired by gratuitous title by the descendant (propositus) from another ascendant or from a brother or sister (originator). 3. The descendant (propositus) should have died without any legitimate issue in the direct descending line who could inherit from him. Personal elements: 1. Originator the ascendant, or brother or sister from whom the propositus had acquired the property by gratuitous title (e.g. donation, remission, testate or intestate succession); 2. Propositus the descendant who died and from whose death the reservista in turn had acquired the property by operation of law (e.g. by way of legitime or intestate succession). The so-called arbiter of the fate of the reserva troncal. 3. Reservista the ascendant, not belonging to the line from which the property came (Justice Vitug), that is the only compulsory heir and is obliged to reserve the property. Note: Dr. Tolentino is of the view that even if the reservista and the originator belong to the same line, there is still an obligation to reserve. 4. Reservatarios the relatives of the propositus within the 3rd degree and who belong to the line from which the property came and for whose benefit the reservation is constituted. They must be related by blood not only to the propositus but also to the originator. Note: All personal elements must be joined by the bonds of legitimate relationship. In determining the right of the reservatarios over the reservable property, there are 2 events to consider: 1. Death of propositus: all qualified reservatarios acquire an inchoate right.

Reservista owns the property subject to a resolutory condition. 2. Death of reservista: surviving reservatarios acquire a perfect right. The NCC did not provide for the rules on how the reservatarios would succeed to the reservista. However, the following rules on intestacy have been consistently applied: a. Rule of preference between lines b. Rule of proximity c. Right of representation (but the representatives must be a 3 rd degree relative of the propositus.) d. Full blood/double share rule in Art. 1006 A will may prevent the constitution of a reserva. In case of testate succession, only the legitime passes by operation of law. The propositus may, by will, opt to give the legitime of his ascendant without giving to the latter properties he had acquired by gratuitous title from another ascendant, or brother or sister. In such case, a reserva troncal is avoided. However, if the ascendant was not disentitled in the will to receive such properties, the reserva minima rule (proportional reserva) should be followed. The rule holds that all property passing to the reservista must be considered as passing partly by operation of law and partly by will of the propositus. Thus, one half of the properties acquired by gratuitous title should be reservable, and the other half should be free. CAUSES FOR EXTINGUISHMENT OF THE RESERVA TRONCAL: 1. Death of the reservatarios; 2. Death of the reservista; 3. Waiver or renunciation by the reservatarios; 4. Registration by the reservista of the property as free property under the Land Registration Act; 5. Prescription of the right of the reservatarios, when the reservista holds the property adversely against them in the concept of an absolute owner; and 6. Loss of the reservable property for causes not due to the fault or negligence of the reservista. DISINHERITANCE A testamentary disposition by which a person is deprived of, or excluded from, the inheritance to which he has a right. A disinheritance properly effected totally excludes the disinherited heir from the inheritance. The disinherited heir is deprived not only of the legitime but also of such part of the free portion that would have passed to him by a previous will (which is revoked, as inconsistent with, the subsequent disinheritance) or by intestate succession. 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; and 7. The heir disinherited must be designated in such a manner that there can be no doubt as to his identity. Effects: 1. Deprivation of the compulsory heir who is disinherited of any participation in the inheritance including the legitime. 2. The children/descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime. 3. The disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. IMPERFECT DISINHERITANCE A disinheritance which does not have on or more of the essential requisites for its validity. Effect: The institution of heirs are annulled only to the extent that it prejudices the legitime of the compulsory heir improperly disinherited. IMPERFECT DISINHERITANCE 1. The person disinherited may be any compulsory heir 2. Always express 3. Always intentional 4. Effect: Partial annulment of institution of heirs PRETERITION 1. The person omitted must be a compulsory heir in the direct line 2. Always implied 3. May be intentional or unintentional 4. Effect: Total annulment of institution of heirs

When the child/descendant leads a dishonorable or disgraceful life; and d. Conviction of a crime which carries with it a penalty of civil interdiction. 2. Parents/Ascendants: a. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; b. When the parent/ascendant has been convicted of adultery or concubinage with the spouse of the testator; c. Loss of parental authority for causes specified in the Code; and d. Attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. 3. Spouse: a. When the spouse has given cause for legal separation; and b. When the spouse has given grounds for the loss of parental authority. REVOCATION OF DISINHERITANCE 1. Reconciliation; 2. Subsequent institution of the disinherited heir; and 3. Nullity of the will which contains the disinheritance. RECONCILIATION It is the resumption of genuine cordial relationship between the testator and the disinherited heir, approximating that which prevailed before the testator learned of the cause for disinheritance, reciprocally manifested by their actions subsequent to the act of disinheritance. Mere civility which may characterize their relationship, a conduct that is naturally expected of every decent person, is not enough. In order to be effective, the testator must pardon the disinherited heir. Such pardon must specifically refer to the heir and to the acts causing the disinheritance. The heir must accept the pardon. No particular form is required. It may be made expressly or tacitly. Where the cause for disinheritance is likewise a ground for unworthiness to succeed, what is the effect of a subsequent reconciliation upon the heirs capacity to succeed? 1. If disinheritance has been made: Rule on reconciliation applies. The disinheritance becomes ineffective. 2. If disinheritance has not been made: Rule on reconciliation does not apply. The heir continues to be incapacitated to succeed unless pardoned by the testator under Art. 1033. The law effects the disinheritance. M. LEGACIES AND DEVISES Since legacies and devises are to be taken from the disposable free portion of the estate,

c.

COMMON CAUSES FOR DISINHERITANCE OF CHILDREN OR DESCENDANTS, PARENTS OR ASCENDANTS, AND SPOUSE 1. When the heir has been found guilty of an attempt against the life of the testator, his/her descendants or ascendants, and spouse in case of children and parents; 2. When the heir has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless; 3. When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; and 4. Refusal without justifiable cause to support the testator who disinherits such heir. PECULIAR CAUSES FOR DISINHERITANCE 1. Children/Descendants: a. When the child/descendant has been convicted of adultery or concubinage with the spouse of the testator; b. Maltreatment of the testator by word or deed by the child/descendant;

thus, the provisions on institution of heirs are generally applicable to them. STATUS OF PROPERTY GIVEN BY LEGACY/DEVISE 1. Belonging to the testator at the time of the execution of the will until his death 2. Belonging to the testator at the time of the execution of the will but alienated in favor of a 3rd person 3. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee/devisee gratuitously 4. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee or devisee onerously 5. Not belonging to the testator at the time the will is executed but he has ordered that the thing be acquired in order that it be given to the legatee/devisee 6. Not belonging to the testator at the time the will is executed and the testator erroneously believed that the thing pertained to him 7. Not belonging to the testator at the time the will is executed but afterwards becomes his by whatever title 8. Already belonged to the legatee/devisee at the time of the execution of the will even though another person may have interest therein 9. Already belonged to the legatee or devisee at the time of the execution of the will even though it may have been subsequently alienated by him 10.Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property gratuitously after the execution of the will EFFECT ON THE LEGACY/DEVISE Effective

11.Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property by onerous title

Legatee/devisee can demand reimbursement from the heir or estate

REVOCATION OF LEGACIES AND DEVISES 1. loss or destruction 2. alienation 3. transformation ART. 911 Order of preference: (LPDO) 1. Legitime of compulsory heirs 2. Donations inter vivos 3. Preferential legacies or devices 4. All other legacies or devices pro rata Application: (1) When the reduction is necessary to preserve the legitime of compulsory heirs from impairment whether there are donations inter vivos or not; or (2) When, although, the legitime has been preserved by the testator himself there are donations inter vivos. ART. 950 Order of preference: (RPSESO) 1. Remuneratory L/D 2. Preferential L/D 3. L for support 4. L for education 5. L/D of a specific, determinate thing which forms a part of the estate 6. All others pro rata Application: (1) When there are no compulsory heirs and the entire estate is distributed by the testator as legacies or devises; or (2) When there are compulsory heirs but their legitime has already been provided for by the testator and there are no donations inter vivos.

Revoked

No revocation. There is a clear intention to comply with legacy or devise. Legatee/devisee can demand reimbursement from the heir or estate

Effective

Void

In case of reduction in the above cases, the inverse order of payment should be followed. Effective

II. LEGAL SUCCESSION

Ineffective

OR

INTESTATE

Ineffective

Legatee/devisee can claim nothing by virtue of the legacy/devise

CAUSES OF INTESTACY 1. Deceased without a will, or with a void will, or will loses validity; 2. Absence of an institution of heir; 3. Partial institution of heir. In such case, intestacy takes place as to the undisposed portion (mixed succession); 4. Non-fulfillment of suspensive condition attached to the institution of 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 or not there are legacies/devises; 9. Fulfillment of resolutory condition; 10. Expiration of term or period of institution; and

11. Non-compliance or compliance with the will.

impossibility

of

In all cases where there has been an institution of heir, follow the I.S.R.A.I. order of Justice Paras. If the Institution fails, Substitution occurs. If there is no substitute, the right of Representation applies in the direct descending line to the legitime if the vacancy is caused by predecease, incapacity, or disinheritance. The right of Accretion applies to the free portion when the requisites in Art. 1016 are present. If there is no substitute, and the right of Representation or Accretion does not apply, the rules on Intestate succession shall take over. A. RULES 1. Rule of Preference between lines Those in the direct descending line shall exclude those in the direct ascending and collateral lines, and those in the direct ascending line shall, in turn, exclude those in the collateral line. 2. Rule of Proximity The relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. This rule is subject to the rule of preference between lines. 3. Rule of Equal Division Relatives in the same degree shall inherit in equal shares. EXCEPTIONS: a) Division in the ascending line (between paternal and maternal grandparents); b) Division between relatives of the full and half blood; and c) Division In cases where the right of representation takes place. This rule is subject to the rule of preference between lines. 4. Rule of Barrier between the legitimate family and the illegitimate family The illegitimate family cannot inherit by intestate succession from the legitimate family and vice-versa. 5. Rule of Double Share for full blood collaterals When full and half-blood brothers or sisters, nephews or nieces, survive, the full blood former shall take a portion in the inheritance double that of the latter. Notes: 1. In case of a disposition made in general terms under Art. 959, only the Rule of Proximity applies. B. INTESTATE OR LEGAL HEIRS Those who are called by law to the succession either in the absence of a will or of qualified heirs, and who are deemed called based on the presumed will of the decedent.

REGULAR ORDER OF SUCCESSION (Decedent is a legitimate person): 1. Legitimate children or descendants (LCD) 2. Legitimate parents or ascendants (LPA) 3. Illegitimate children or descendants (ICD) 4. Surviving spouse (SS) 5. Brothers and sisters, nephews and nieces (BS/NN) 6. Other collateral relatives within the 5 th degree (C5) 7. State IRREGULAR ORDER OF SUCCESSION (Decedent is an illegitimate person): 1. Legitimate children or descendants (LCD) 2. Illegitimate children or descendants (ICD) 3. Illegitimate parents (IP) 4. Surviving spouse (SS) 5. Brothers and sisters, nephews and nieces (BS/NN) 6. State ORDER OF CONCURRENCE 1. LCD, ICD, and SS 2. LPA, ICD, and SS 3. ICD and SS 4. SS and IP 5. BS/NN and SS 6. C5 (alone) 7. State (alone) TABLE SURVIVOR any class alone 1 LC SS 2 or more LC SS LPA SS LPA SS IC IP SS SS BS/NN 1 LC SS IC 2 or more LC SS IC OF INTESTATE SHARES INTESTATE SHARE entire estate 1/2 1/2
(Diongson vs. Cinco, 74 SCRA 118) Consider SS as 1 LC, then divide estate by total number.

1/2 1/2 1/2 1/4 1/4 1/2 1/2

(The law is silent. Apply concurrence theory.)

1/2 1/2
First, satisfy legitimes. Estate would be insufficient. Reduction must be made according to the rules on legitimes. The legitimes of LCD and SS shall always be first satisfied in preference to the ICD. First, satisfy legitimes. There would be an excess in the estate. Distribute such excess in the proportion 1:2:2, in accordance with the concurrence theory.

C. RELATIONSHIP 1. Number of generations determines proximity. 2. Each generation forms a degree. 3. A series of degrees forms a line. 4. A line may be direct or collateral. A direct line is that constituted by the series of degrees

among ascendants and descendants (ascending and descending). 5. A collateral line is that constituted by the series of degrees among persons who are not ascendants or descendants, but who come from a common ancestor. 6. Full blood: same father and mother; half blood: only one of either parent is the same. 7. In adoption, the legal filiation is personal and exists only between the adopter and the adopted. The adopted is deemed a legitimate child of the adopter (AP), but still remains as an intestate heir of his natural parents and other blood relatives. JUSTICE VITUGS RULES ON THE SUCCESSION BY AND TO AN ADOPTED CHILD (AC) A. Succession by an AC 1. The AC becomes as a LC of the adopter (AP). Thus, an AC may exclude the LPA from inheriting. 2. The AC remains to an intestate heir by the natural parents and other blood relatives. 3. An AC cannot represent the AP in the inheritance from the latters LPAs. 4. An AC may not be represented by his LCD in the succession to the estate of the AP. B. Succession to an AC 1. The presence of LCD excludes all parents (natural and AP). 2. In case where the parents are not excluded, the natural parents and the AP have equal rights to the estate of the AC. ORDER OF CONCURRENCE IN THE CASE OF ADOPTED CHILD SURVIVORS SHARE 1. LPA/IP AP 2. LPA/IP
AP

In the collateral line, representation takes place only in favor of the children of brothers or sisters (nephews and nieces), whether of the full or half-blood, and only if they concur with at least 1 uncle or aunt. 1. Testamentary Succession a) When a compulsory heir in the direct descending line had predeceased the testator and was survived by his children or descendants. b) When a compulsory heir in the direct descending line is excluded from the inheritance due to incapacity or unworthiness and he has children or descendants. c) When a compulsory heir in the direct descending line is disinherited and he has children or descendants; representation covers only the legitime. d) A legatee/devisee who died after the death of the testator may be represented by his heirs. 2. Intestate Succession a) When a legal heir in the direct descending line had predeceased the decedent and was survived by his children or descendants. b) When a legal heir in the direct descending line is excluded from the inheritance due to incapacity or unworthiness and he has children or descendants. c) When brothers or sisters had predeceased the decedent and they had children or descendants. d) When illegitimate children represent their illegitimate parents who already died in the estate of their grandparents. e) When nephews and nieces inherit together with their uncles and aunts in representation of their deceased parents who are the brothers or sisters of said uncles and aunts. CARDINAL PRINCIPLES OF INTESTATE SUCCESSION (Justice Paras) 1. Even if there is an order of intestate succession, the CH are never excluded. The Civil Code follows the concurrence theory, not the exclusion theory. 2. RR in the collateral line occurs only in intestate succession, never in testamentary succession because a voluntary heir cannot be represented (collateral relatives are not CH). 3. The intestate shares are either equal to or greater than the legitime. 4. GENERAL RULE: Grandchildren always inherit by RR, provided representation is proper. EXCEPTION: Whenever all the children repudiate, the grandchildren inherit in their own right because RR would not be proper. 5. Nephews and nieces inherit either by RR or in their own right (OR).

SS 3. LPA
AP

1/3 1/3 1/3

ICD 4. LPA
AP

SS ICD

RIGHT OF REPRESENTATION (RR) A right by virtue of which the children take the place of the parents, invariably in the direct line and until the second degree in the collateral, in order to divide the inheritance of the common ascendant with relatives of a nearer, the same, or a farther degree in the direct line, and with those of the nearer degree only in the collateral. In the direct line, representation takes place ad infinitum in the direct descending line, never in the ascending.

a. RR: when they concur with aunts and uncles (provided that RR is proper) b. OR: when they do not concur with aunts and uncles. 6. ICD of legitimates cannot represent because of the barrier, but both the ICD and LCD of illegitimates can. 7. There can be reserva troncal in intestate succession. 8. A renouncer can represent, but cannot be represented. 9. A person who cannot represent a near relative cannot also represent a relative farther in degree.

CAUSE OF VACANCY Predecease Incapacity Disinheritance Repudiation

TESTAMENTARY SUCCESSION Legitime Free Portion 1. RR 1. A 2. IS 2. IS 1. RR 1. A 2. IS 2. IS 1. RR _ 2. IS IS A

INTESTATE SUCCESSION (IS) 1. RR 2. IS 1. RR 2. IS _ A

III. MIXED SUCCESSION OR PARTIAL INTESTACY

Succession that is effected partly by will and partly by operation of law. RULES: 1. The law of legitimes must be brought into operation in partial intestacy, because the testamentary dispositions can affect only the disposable free portion but never the legitimes. 2. If among the concurring intestate heirs there are compulsory heirs, whose legal or intestate portions exceed their respective legitimes, then the amount of the testamentary disposition must be deducted from the disposable free portion, to be borne by all the intestate heirs in the proportions that they are entitled to receive from such disposable free portion as intestate heirs. 3. If the intestate share of a compulsory heir is equal to his legitime, then the amount of the testamentary disposition must be deducted only from the intestate shares of the others, in the proportions stated above. 4. If the testamentary dispositions consume the entire disposable free portion, then the intestate heirs who are compulsory heirs will get only their legitimes, and those who are not compulsory heirs will get nothing.

B. CAPACITY TO SUCCEED BY WILL OR BY INTESTACY Requisites: 1. The heir, legatee/devisee must be living or in existence at the moment the succession opens; and 2. He must not be incapacitated or disqualified by law to succeed. THE FOLLOWING SUCCEEDING: ARE INCAPABLE OF

IV. PROVISIONS COMMON TO TESTAMENTARY AND INTESTATE SUCCESSIONS

A. RIGHT OF ACCRETION (A) A right based on the presumed will of the deceased that he prefers to give certain properties to certain individuals, rather than to his legal heirs. Requisites: 1. 2 or more persons must have been called to the same inheritance, legacy or devise, or to the same portion thereof, pro indiviso; and 2. there must be a vacancy in the inheritance, legacy or devise.

A. Based on Undue Influence or Interest (PIGRAP): 1. Priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; 2. Individuals, associations and corporations not permitted by law to inherit; 3. Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; 4. Relatives of such priest or minister of the gospel within the 4th degree, the church, order, chapter, community, organization or institution to which such priest or minister may belong; 5. Attesting witness to the execution of a will, the spouse, parents or children, or any one claiming under such witness, spouse, parents or children; and 6. Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness. B. Based on Morality or Public Policy: Art. 739 C. Based on Acts of Unworthiness (A4F3P): 1. Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; 2. Any person who has been convicted of an attempt against the life of the testator, his/her spouse, descendants or ascendants; 3. Any person who has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless;

4. Any person convicted of adultery or concubinage with the spouse of the testator; 5. Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; 6. Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; 7. Any person who falsifies or forges a supposed will of the decedent; and 8. Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will. The moment the testator uses one of the acts of unworthiness as a cause for disinheritance, he thereby submits it to the rules on disinheritance. Thus, reconciliation renders the disinheritance ineffective.

2. Grandchildren who survive with their uncles, aunts, or 1st cousins, and inherit by right of representation. What to collate 1. Any property or right received by gratuitous title during the testators lifetime 2. All that they may have received from the decedent during his lifetime 3. All that their parents would have brought to collation if alive Properties not subject to collation (2 nd concept): 1. Absolutely no collation (all concepts): a. Expenses for support, education (elementary and secondary only), medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts (Art. 1067). 2. Generally not imputable to legitime: a. Expenses incurred by parents in giving their children professional, vocational or other career unless the parents so provide, or unless they impair the legitime. b. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit except when they exceed 1/10 of the sum disposable by will. E. PARTITION AND DISTRIBUTION OF ESTATE It is the separation, division and assignment of a thing held in common among those to whom it may belong. It includes every act which is intended to put an end to indivision among coheirs, and legatees or devisees, although it should purport to be a sale, exchange, compromise, or any other transaction. It is not subject to any form. Who may effect partition: 1. decedent himself during his lifetime by an act inter vivos or by will 2. heirs themselves 3. competent court 4. 3rd person designated by the decedent. Who can demand partition: 1. compulsory heir 2. voluntary heir 3. legatee or devisee 4. any person who has acquired interest in the estate. When partition cannot be demanded: (PAPU) 1. when expressly prohibited by the testator himself for a period not exceeding 20 years 2. when the co-heirs agreed that the estate shall not be divided for a period not exceeding 10 years, renewable for another 10 years 3. when prohibited by law 4. when to partition the estate would render it unserviceable for the use for which it is intended

PARDON OF ACTS OF EXPRESS 1. made by the execution of a document or any writing in which the decedent condones the cause of incapacity 2. cannot be revoked

UNWORTHINESS IMPLIED 1. effected when testator makes a will instituting the unworthy heir with knowledge of the cause of incapacity 2. revoked when the testator revokes the will or the institution

C. ACCEPTANCE AND REPUDIATION OF INHERITANCE Characteristics (VIR): 1. Voluntary and free 2. Irrevocable, except if there is vitiation of consent or an unknown will appears 3. Retroactive Requisites (DR): 1. certainty of the death of the decedent 2. certainty of the right to the inheritance D. COLLATION (ARTS. 1061-1077) 1st and 2nd concepts of collation Persons obliged to collate 1. GENERAL RULE: compulsory heirs EXCEPTIONS: a. When the testator should have so expressly provided; and b. When the compulsory heir should have repudiated his inheritance

PARTITION INTER VIVOS (Art. 1080) It is one that merely allocates specific items or pieces of the property on the basis of the proindiviso shares fixed by law or given under the will to heirs or successors. Partition is not itself a mode of acquiring ownership, nor a title therefore. This partition, being predicated on succession, necessitates relationship to the decedent (in case of intestacy) or a will duly probated (in case of testacy). A partition inter vivos made in favor of intestate heirs could be operative. Dispositions, however, to non-intestate heirs may suffer an impediment unless based on a valid will, except perhaps when such dispositions are intended to take effect during the life of the testator and the formalities of donations are properly complied with. EFFECT OF INCLUSION OF INTRUDER IN PARTITION : 1. Between a true heir and several mistaken heirs partition is VOID. 2. Between several true heirs and a mistaken heir transmission to mistaken heir is VOID. 3. Through error or mistake, share of true heir is allotted to mistaken heir partition shall not be rescinded unless there is bad faith or fraud on the part of the other persons interested, but the latter shall be proportionately obliged to pay the true heir of his share, but partition with respect to the mistaken heir is VOID. A VOID WILL MAY BE A VALID PARTITION: 1. If the will was in fact a partition; and 2. If the beneficiaries in the void will were legal heirs.