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SUCCESSIONS extinguishes all rights, since it would be illogical to fix the birth

of a right from the moment when the will which is supposed to

ART. 774. Succession is a mode of acquisition by virtue of create the right has ceased to exist.
which the property, rights and obligations to the extent of the
value of inheritance, of a person are transmitted through his Theories:
death to another or others either by will or by operation of law.
1. Right of private propertyif a man has the right to own
Concept of Succession: Two sense private property, he has the power to dispose of such
property freely, imposing such licit terms and
Broad Juridical Sense: it signifies the substitution or conditions as he might deem convenient.
subrogation of a person in the transmissible rights and 2. Right of familyif the family is recognized as the heart
obligations of another. (Note: it embraces not only succession and soul of society, the idea of succession must,
mortis causa but also succession inter vivos) therefore, revolve around it. Hence, basis of succession
Strict Juridical Sense: it signifies the substitution or rests upon family co-ownership.
subrogation of a person in the transmissible right and 3. Electric Theoriesthese theories try to harmonize the
obligations of a deceased person. (Note: it is only limited to two principlesindividual and social. According to the
succession mortis causa) exponents of these theories, the raison detre of the
right of succession is the harmonious combination of
Note: Article 774 is in conformity with the general provisions two institutionsprivate ownership and the family.
of Article 712 which enumerates the different modes of (Note: this is because succession is after all but a mode
acquiring ownership and other real rights. of perpetuating the right to own private property. The
basis or foundation of succession is the recognized
Article 712:
necessity of perpetuating mans patrimony beyond the
Ownership is acquired by occupation and by limit of human existence.
intellectual creation.
Art. 775:
Ownership and other real rights over property are
Decedentgeneral term applied to the person whose
acquired and transmitted by law, by donation, by
property is transmitted through succession, whether or not left
testate and intestate succession, and in consequence of
a will, if he left a will, he is also called the testator.
certain contracts, by tradition.
Subjective Elements of Successionconsist of the
They may also be acquired by means of prescription.
decedent and those who are called to succeed such decedent
Basis of Succession: either by will or by operation of law, such as heirs, devisees or
Extreme Individualist and Socialistwho deny the very
existence of succession, because they believe that death
Heira person called to the whole or to an aliquot portion of Art. 777:
the inheritance either by will or by operation of law.
When transmitted? The moment of the death of the
Deviseeis a person to whom a gift or real property is given by decedent.
virtue of a will.
Casual Element of Succession: it is expressed by the will
Legateea person to whom a gift of personal is given by virtue of the decedent as manifested in his last will and testament or
of a will. his presumed will as provided by law which is the efficient
cause of transmission of successional rights, while the fact of
his death is the condition.
Art. 776: Rule in case of presumptive death:
Inheritanceall property, rights and obligations of a person Article 777 is not only applicable to actual death but also to
which are not extinguished by his death. presumptive death. This is clear from the provisions of Art 390
Objective Element of Succession: It may be defined as the and 391 of the CC:
universality of all property, rights and obligations constituting Article 390. After an absence of seven years, it being
the patrimony of the decedent which are not extinguished by unknown whether or not the absentee still lives, he
his death. shall be presumed dead for all purposes, except for
Inheritancerefers to the universality of all the those of succession.
property, rights and obligations constituting the The absentee shall not be presumed dead for the
patrimony of the decedent which are not extinguished purpose of opening his succession till after an absence
by death. of ten years. If he disappeared after the age of seventy-
Successionis the legal mode by which such
five years, an absence of five years shall be sufficient in
property, rights and obligations are transmitted.
order that his succession may be opened. (n)
Note: the first is the objective element of the second.
Article 391. The following shall be presumed dead for
Another Note: under our law, no succession shall be declared all purposes, including the division of the estate among
unless and until a liquidation of the assets and debts left by the the heirs:
decedent shall have been made and all creditors fully paid.
(1) A person on board a vessel lost during a sea voyage,
It is no longer the heirs who is responsible for the payment of or an aeroplane which is missing, who has not been
the debts or obligation of the decedent, but the estate itself. heard of for four years since the loss of the vessel or
(2) A person in the armed forces who has taken part in validity, what is essential is that the succession must be
war, and has been missing for four years; effected through the testators will executed in the form
prescribed by law.
(3) A person who has been in danger of death under
other circumstances and his existence has not been Intestateeffected by operation of law in default of a will. It
known for four years. is not well defined in the Civil Code, but Art 960 enumerates
the instances when legal or intestate succession shall takes
Exceptions: place.
1. Absentee disappeared after the age of 75 years old, in Article 960. Legal or intestate succession takes place:
which case an absence of 5 years shall be sufficient
2. Absentee disappeared under any one of the three (1) If a person dies without a will, or with a void will, or
circumstances enumerated in 391, in which the absence one which has subsequently lost its validity;
of 4 years shall be sufficient.
(2) When the will does not institute an heir to, or
Effect of Judicial Settlement: dispose of all the property belonging to the testator. In
such case, legal succession shall take place only with
The formal declaration or recognition of the right of the heirs
respect to the property of which the testator has not
requires judicial confirmation in the proper testate or intestate
(3) If the suspensive condition attached to the
institution of heir does not happen or is not fulfilled, or
Art. 778: if the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no right of
Succession may be: accretion takes place;
1. Testamentary (4) When the heir instituted is incapable of succeeding,
2. Legal or Intestate except in cases provided in this Code.
3. Mixed
Mixedin the sense that it may effected partly by will and
Art. 779: Testamentary Succession
partly by operation of law.
Art. 780: Mixed Succession
Note: If the testator makes a will which does not dispose all of
his property, the result is what is known as mixed succession.

Testamentaryis that which results from the designation of Contractual Successionbased on the fact that the object
an heir, made in a will execute in the form prescribed by law. of a contract should exist at the moment of its celebration or at
(Note: The designation of an heir is no essential for the least, it can exist in the future.
Art. 1347: No contract may be entered into upon future Intransmissible rights and obligations
inheritance except in cases expressly authorized by law.
1. Rights and obligations between husband and wife;
Note: in this kind of succession the donation or disposition 2. Property relations between husband and wife;
does not have to be contained in a will, however it is essential 3. Action for legal separation;
that it must be executed in accordance with the form 4. Action to compel acknowledgement of a natural child;
prescribed for donations by reason of marriage. In other 5. Action to obtain judicial declaration of illegitimate
words, it must comply with the Statute of Frauds. affiliation who is not natural;
6. Parental authority;
Art. 781. 7. Rights of a guardian;
8. Right to receive ad the obligation to give support;
Extent of Inheritanceincludes: 9. Right to hold public office as well as right to exercise
1. All of his property which are existing at the time of his profession or vocation;
10. Right to usufruct;
11. Right to personal easement;
2. All of his transmissible rights and obligations which are
12. Rights and obligation arising from contract of
existing at the time of his death;
3. All of his property and rights which may have accrued
13. contract of agency;
to the hereditary estate since the opening of succession. 14. Criminal responsibility.
Note: Property in existence at decedents deathall property Monetary Obligations:
available for distribution among the persons called to the
inheritance after the settlement or liquidation. Under the Civil Code only monetary obligations or claims for
money must be filed within the time limited by rules against
Transmissible rights and obligation(1) rights relative to the estate of the decedent; otherwise they are barred forever. It
persons and property or purely personal rights are, by their is only these claims which must be liquidated in the testate or
nature, INTRANSMISSIBLE in character; (2) Rights relative to intestate proceedings.
property or patrimony rights GENERALLY TRANSMISSIBLE
in character, except those which are expressly made Art. 782.
intransmissible by operation of law such as personal and legal
Concept of an HeirAn heir still succeeds to the whole or to
usufructs and personal easements; (3) rights arising from
an aliquot portion of the inheritance either or by virtue of a
obligation or rights of obligations, whether contractual or
will or by operation of law, while a devisee or legatee still
otherwise, are GENERALLY TRANSMISSIBLE in character,
succeeds to individual items of property by virtue of a will.
except from this rule are those arising from contracts which by
(Meron ng meaning ang Heir, Devisee and Legatee under
their very nature are intransmissible, those expressly
Subjective Element of Succession, Art 775)
intransmissible by contract agreements and operation of law.
Distinguished from heirs:
1. Devisee or legatees are called to succeed to individual
items of property, while heirs are always called to
Kinds of Heirs: succeed to an indeterminate or aliquot portion of the
Testamentary Succession: decedents hereditary estate.
2. Devisee or legatees are always called to succeed by
1. Voluntary Heir means of a will, while heirs are called to succeed either
- Is called to succeed to the whole or aliquot portion of by means of a will or by operation of law.
the disposable free portion of the hereditary estate by
virtue of the will of the testator. Note: The importance of distinction(1) In case of
2. Compulsory Heir preterition or pretermission in the testators will of one,
- is an heir called by law to succeed to a portion of the some or all of the compulsory heirs in the direct line, the
testators estate known as legitime. effect is to annul the entirely institution of heirs, but
devises and legacies shall be valid insofar as they are not
Legal or intestateall heirs are called legal or intestate heir, inofficious; (2) In case of imperfection or defective
ordinarily defined as an heir called to succeed by operation of disinheritance, to annul the institution of the heirs to the
law when legal or intestate succession takes place. extent that the legitimate of the disinherited heirs is
Note: An intestate heir can inherit (1) by their own right; (2) by prejudices, but legacies and devises shall be valid; (3) I
the right of representation. case properties are acquired by the testator after the
execution of the will, such properties are not included,
Concept of Devisees and legatees: unless it should expressly appear in the will itself that such
was the testators intention, applicable only to legacies and
- Devisees and legatees are only possible in testamentary
- A devisee or legatee always succeed to individual items
of property by means of a particular or special title.
- Devise of legacy which is given to a devisee or legatee TESTAMENTARY SUCCESSION:
by means of a will is, as a general rule, charge against
Art. 783. Willis an act whereby a person is permitted, with
the free portion of the testators property. (Note: This
formalities prescribed by law, to control to a certain degree the
rule is of practical importance only in case the testator
disposition of his estate, to take effect after his death.
is survived by compulsory heirs, who under our system
of compulsory succession, are entitled to a legitime.) Concept of Wills:
- Testators hereditary estate is divided, as a general rule
into the legitime or legal portion and the disposable Definitionis a disposition, made by a competent testator in
free portion. the form prescribed by law, of property over which he has legal
power of disposition, which disposition is of such nature as to Delegation is allowed:
take effect after his death.
1. The power to distribute specific property or sums of
Characteristics: money which he may left
2. The power to designate the persons, institutions ot
1. Strict personal act; establishments to which such property or sums of
2. Individual and unilateral act; money are to be given.
3. Free and voluntary act;
4. Formal and solemn act; Art. 787.
5. A disposition of property;
6. Act of Mortis Causa, Testator may not make a testamentary disposition is such a
7. Ambulatory and revocable during testators lifetime. manner that another person has to determine whether or
not it is to be operative.
Art. 784.
Note: Allowing a 3rd person to determine if the disposition
Making of the will is strictly personal act, it cannot be left in is operative or not would tantamount to allowing the a 3 rd
whole or in part to the discretion of a third person, or person to substitute the will for his own.
accomplished through the instrumentality of an agent or
attorney. Art. 788. Interpretation of testamentary
Personal character of Willsthe mere drafting or writing of the
will does not fall within the purview of the prohibition. The cardinal rule of testamentary construction is to
ascertain the intention of the testator and give it effect; the
Art. 785. construction of any will must be for the purpose of
Duration or efficacy of the designation of heirs, determining the dominant intent of the testator; if the
devisees or legatees, or the determination of portions testators intent can be clearly perceived or ascertained, it
which they are to take, when referred by name, must prevail; a will is to be interpreted as to carry out the
cannot be left to the discretion of a third person. intention of the testator; a will must be construed so as to
give full force and effect to the purpose of the testator; in
Delegation of testamentary actsthree inseparable acts, (1) construing the will the court will place itself in the position
duration of the designation of heirs, devisee or legates; (2) of the testator.
efficacy of the designation, (3) determination o portion.
NOTE: Read Articles 789-794.
Art. 786.
Dispositions susceptible to different interpretationin case
Testator may entrust to a 3rd person the specific distribution of in doubt, the interpretation by which the disposition is to
specific property or sums of money that he may leave in be operative shall be preferred.
The construction is to be adopted which will sustain and
uphold the will in all its part. If the language used is
reasonably susceptible of two interpretations, one which
will defeat, and the other sustain, the provision, the doubt Testamentary capacityrefers to the ability as well as the
is to be resolved in favor of the construction which will give power to make a will. There is a difference between
effect to the will, rather than the one which will defeat it. testamentary capacity and testamentary power, the first
concerns the ability of the testator, while the second involves
Mistakes and omissions
the privilege under the law. Hence, although a person has a
1. Imperfect description or no person or property exactly testamentary capacity it does not follow that he also has a
answers the descriptionmust be corrected in testamentary power.
ascertaining the testatorial intent using the intrinsic
Art. 796. All persons who are expressly prohibited by
and extrinsic but excluding the oral declaration of the
law to make a will.
testator as to his intention.
2. Uncertainty as to the application of any of its 1. Do not possess necessary age and mental requirement;
provisionsascertained under the context of the will 2. Family relations;
and the circumstances under which it is made. 3. Civil interdiction;
4. Prodigality;
5. Insolvency;
After-acquired propertynot included in the will, unless it 6. Alienage;
is expressly appear in the will that such was the intention of 7. Other similar in nature.
the testator.
Art. 795. Requisites:
Validity of Wills as to its form depends on the 1. He must be at least 18 years of age; and
observance of law in force at that time. 2. He must be of a sound mind.
Effect of changes after the testators deathwill perfectly valid
at the time of its execution cannot be invalidated by a law
enacted after the death of the testator; neither can a will totally When capacity must existat the time of the execution of
void be validate upon subsequent legislation. the will.

Effect of changes before the testators deathcannot have

retroactive effect upon the formality of the will. Art. 797. Persons of either sex under eighteen cannot
make a will.
Age Requirementit is necessary that he must be at least Effect of old agethe law prescribe no limit in point of age
eighteen years of age. Failure to conform with the requirement beyond which a person cannot dispose of his property by will.
shall invalidate the will.
Effect of infirmity of diseaseneither is physical or disease
inconsistent with testamentary capacity. This will not affect his
testamentary capacity, so long as it cannot be prove by
NOTE: READ ARTICLES 798-800 competent evidence that at the time of the execution of the will
he is no longer in the position to know the nature of the estate
to be disposed.
Mental Requirementit is a requisite that the testator must be
of a sound mind at the time of execution of the will. Effect of insanityfirst we need to define mental disease or
insanity refers to any disorder of the mind resulting from
Test of sound mind: disease or defect in the brain whereby mental freedom may be
Soundness of mindability of the testator to mentally perverted, weakened or destroyed. It is evident that person
understand in a general way the nature and extent of his suffering from them do not possess the necessary mental
property, his relation to those who naturally have a claim to capacity to make a will. However, mental aberrations which do
benefit from the property left by him, and a general not result in such impairment of the faculties as to render the
understanding of practical effect of the will as executed. testator unable to know or understand the nature of the estate
to be disposed of.
1. Whether he knew, at least in a general way the nature
of the estate to be disposed; Effect of mental delusionthe validity of a will is not affected
2. Whether he knew, at least in a general way the proper by the fact that the testator was under a delusion, unless the
objects of his bounty; delusion influenced him at the time of the execution of the will.
3. Whether he understood of comprehend the character of Effect of belief of supernaturalis not a sufficient evidence of
the testamentary act. testamentary incapacity. A testamentary capacity cannot be
Presumption of sound mindthe law presumes that every determined alone by what one believes.
person is of sound mind, in the absence of proof to the Effect of drunkennessthe fact that the testator was under the
contrary. The burden of proof that the testator was not of a influence of liquor does not invalidate the will, provided that
sound mind during the execution of the will is on the person he then comprehend the nature, extent and disposition of his
who opposes the probate of the will. estate.
Sufficiency of evidence of mental capacitythe evidence Art. 801-803READ THE CODAL PROVISION!
presented must cover a wide range in order that all facts may
be brought out which will assist the court in determining the
question of mental capacity.
Capacity of Spousea married woman may make a will
without the consent of her husband and without the authority
of the court. (Art. 802)
A married woman may dispose by will of aft her separate
property as well as her share of the conjugal partnership or
absolute community property. (Art. 803)
Note: what can be disposed of would be merely ideal share of
the spouse making the will and not any specific or determinate
property belonging to the partnership or community.