Monday, March 24, y

Wills and Succession

Midterm Reviewer
False or illegal causes as the basis for revocation must be expressly provided to validly invoke Article 839. Disinheritance may only be made in a valid will and the cause may be that which is allowed by law and must be made based on an existing cause at the time of the execution of the will. Preterition: a. the heir must be a compulsory heir b. the omission must be complete and total in character in such a way that the omitted heir does not and has not received anything at all from the testator; and c. the compulsory heir omitted should survive the testator A spouse, although considered a compulsory heir, is not a compulsory heir in the direct line, hence there cant be any preterition Testamentary dispositions made in accordance with the law shall be complied, while the remainder shall pass to the legal heirs in accordance with the law of intestate succession. The testators freedom of disposition is absolute when he has no compulsory heirs. But should he have compulsory heirs, there is always a portion of the testators estate know as the legitime which is reserved by operation of law for the benefit of compulsory heirs. If there is doubt as to the institution of an heir, nobody inherits and intestate succession shall apply. The proper test in order to determine the validity of an institution of heir is the possibility of finally ascertaining the identity of the instituted heir, either by extrinsic or intrinsic evidence. Heirs instituted without designation of shares shall inherit in equal parts; however, when there are compulsory heirs, the rue should only be applied to the disposable free portion.

Monday, March 24, y

Fideicomissary substitution I give all of my properties to A, but upon his death, whatever shall remain shall go to his son C. (no obligation to preserve and transmit the properties, PCIB v Escolin) Testator gives 1/2 of his parcel of land to his niece, and the other 1/2 to the brothers of the testator. Upon the death of my niece, whether before or after my own death, the 1/2 wil be passed to my brothers or their own heirs. No FC (Crisologo v. Singson) You can only have FS either: 1. by expressly calling it by that name; and 2. by imposing upon a first heir, the absolute obligation to preserve and transmit the properties to another heir Suppose that T died in 1985 giving his entire estate to his sons, A and B. T died in 1995, 4 months later, Ts wife gave birth to C. Is there preterition? -YES, a compulsory heir in the direct line may be living at the time of the execution of the will, or born after the death of the testator. A voluntary heir does not transmit any right, if he predeceases the testator In case of a compulsory heir, however, there is a right of representation only as to the LEGITIME, not upon the free portion because in TESTAMENTARY succession, the right of representation pertains only to the legitime and not the free portion The heir, whether voluntary or compulsory, CANNOT transmit any right to his own heirs in case of repudiation because Article 977 enunciates that heirs who repudiate CANNOT be represented.