Beruflich Dokumente
Kultur Dokumente
Kwin
June 15, 2010
Art. 774.
Succession THROUGH HIS DEATH.
is a mode of acquisition by virtue of which You can transfer your property during lifetime like donation – an act where a
the property, rights and obligations person disposes gratuitously in favor of another who accepts it. You call this
to the extent of the value of the inheritance, of a person DONATION INTERVIVOS.
are transmitted through his death to another or others But you can also transfer effective upon deathof the transferor. This is where
either by his will or by operation of law. (n) our subject will come in. DONATION MORTIS CAUSA.
MODE.
Mode? What mode? What do you derive from the decedent?
EITHER BY HIS WILL.
The property is passed. Mode? How do you connect this to property?
This presupposes the existence of a last will and testament.
Art. 712.
If a person dies w/o a will or with a void will, then the manner of succession
is LEGAL.
Legal because it is dictated by law how the properties will be distributed to
So in succession, it is a MODE OF ACQUIRING OWNERSHIP of the property or
the heirs.
rights.
Unlike if you have a last will and testament, to a certain extent; you can
There are many ways of acquiring property like purchase, donation, etc.
determine how much an heir can receive. In this case, we call this
TESTAMENTARY.
So how do you acquire it, by succession?
If there is no will, we call that INTESTATE.
PROPERTY.
What kind of property is subject to succession?
All. Real
Personal
Tangible
WHY IS THERE A THING AS SUCCESSION? – BASiS
Intangible
It is a consequence of ownership.
It embraces everything.
It is incomplete if the right to dispose is not given to he owner.
And surprisingly, it is not only property that is acquired. There are also
In property, we have the attributes of ownership. Right to fruits, right to use.
RIGHTS. But only TRANSMISSIBLE RIGHTS.
So if there is No right to dispose, ownership is incomplete or imperfect.
Do you also succeed you father’s right to vote? No. That is purely personal.
So only those that can be transferred.
Another bases is to take care those who you leave behind.
What about marital rights? No.
And then surprisingly OBLIGATIONS are also transferred., again subject to the
qualification that it is TRANSMISSIBLE.
So that if the decedent is a debtor and his monetary liability exceeds his
Art. 775.
assets that are not collectible from the heirs.
In this Title,
"decedent" --is the general term applied to
Ex. This room is leased. If the lessee dies, the heirs can continue for as long the person whose property is transmitted
as it has not expired. through succession,
whether or not he left a will.
So both rights and obligations should be transmissible.
--If he left a will, he is also called
the testator. (n)
TO THE EXTENT OF THE VALUE OF INHERITANCE.
If the decedent dies and has 1m, it is not that the heir will get 1m. you have DECEDENT and namatay.
to consider the existing obligations contracted by the deceased during his TESTATOR if you make a will.
lifetime.
In general term decedent embraces the person w/ or w/o a will.
Monetary bligations survive.
What obligations are extinguished by death? If you say testator, there has to be a valid will.
Only personal obligations.
FROM THE MOMENT OF THE DEATH. If there is no will, intestate. I have said this b4. Balaod na imong tanawon.
There are two kinds of death: Unsa ang relation w/ the decedent.
1. natural/physical death,
2. presumed death
Art. 780.
Which is referred here? Both. Mixed succession
--is that effected partly by will and partly by operation of law.
Q: for purposes of opening succession, w/in what time a person may succeed
if the death is physical? Principally, there are two kinds of succession, testamentary and intestate.
A: the moment he dies. But we now have mixed. This means partly by will and partly by operation of
law.
Q: supposing, he is presumed dead, how many years will he have to wait for
purposes of succession? Ex. The decedent died gave ½ to his only child 50k thru will. What about the
A: 10 years other half? The first half is testamentary because it Is a valid will. The
second half not mentioned in the will will be covered by intestate
7years -presumption of death, ORDINARY succession.
10 years -for purposes of opening succession. The intestate succession prescribes that the half will be given to the only
child.
Presumption of death: So the 100k will be broken down as follows: first 50k by virtue of a will,
nd
1. ordinary-- 7 yrs,10 yrs. therefore testamentary. The 2 50k not covered by the will will be
2. qualified distributed thru the provision of the law. So he acquires it in two capacities,
a. on board an aircraft or commercial vessel reported missing as a testamentary heir and as a legal heir. That is what we call MIXED
-4 years from the date of disappearance or occurrence of event SUCCESSION.
After that, you can now divide the properties. This is common.
b. member of the armed forces who participated in the war and is missing/
dangerous circumstance
-4 years
Art. 781.
What is the difference? The inheritance of a person
1. O:10 years b4 division of estate. --includes not only the property and
Q: 4 years b4 division of estate the transmissible rights and existing at the
obligations time of his death,
2. O:presumed dead after the lapse of 10 years
but also those which have accrued thereto
Q:presumed dead on the date of occurrence of the event
since the opening of the succession.
Modification of the family code is for purposes of marriage only.
Passing lang. this is not significant.
Legatee and devisee are still covered in the term heirs. The real difference Art. 784.
The making of a will
between them will come in 854.
--is a strictly personal act;
--it cannot be left in whole or in part of the discretion of a third person, or
So the main characters are the decedent, the heirs and the poperties. accomplished through the instrumentality
of an agent or attorney.
Let’s now go to testamentary succession. Will making is purely personal. The contents of the will cannot be delegated
to any person. It is only the testator who has the absolute discretion on
Art. 783. what is to be said and what is to be stated in the will. No body else can pass
A will judgment upon it.
--is an act whereby a person is permitted,
with the formalities prescribed by law,
Lawyers are hired only for assisting the mechanical act of writing but never
to control to a certain degree the disposition of this estate,
to decide what is given and how much.
to take effect after his death. (667a)
RD
Let’s take the meaning one by one. IT CANNOT BE LEFT TOP THE DISCRETION OF THE 3 P.
Ex. If my neighbor will approve… then it is your neighbor who determines.
ACT.
If you will execute a will, what is the testator doing? What is the primordial You can be assisted but never to pass judgment particularly on who will
purpose? Para Makita na nindot and agi? receive and how much is to be received. This is an absolute discretion of the
Will making is an act of disposition. Hatag, hatag, hatag. You don’t make a testator. The point is, they will never decide on your behalf.
will without disposing the property to a certain person. Primarily. Why?
Because there may be a will without disposing the property. It is valid, but There is no exception to this.
the manner of succession will be legal, not testamentary. Mura rakag This is the RULE OF NONDELEGATION OF THE DECLARATION OF
naglista og properties. TESTAMENTARY PROVISIONS.
Kung kinsa ang nakabutang dinha, walay makabuot nimo.
PERSON.
Nadiscuss naman ni ganina. This refers to the NATURAL person. Ang imong pagbuot diri sa yuta maoy matuman.
Because juridical person do not have physical existence. They exist only in
contemplation of law. The lawyer’s job is to assist only in the mechanical act of writing or perhaps
Cebu city is a person but can you touch her? Nag agbayay mo padong diri? something you ca perceive as something that is inaccurately described, kay
ikaw may familiar. Munang strictly personal.
PERMITTED.
Is it not a natural right for every person qualified to make a will? No. it is not The testator has the absolute right to determine who receive it and how
a natural right. It is a STRATUTORY RIGHT and therefore regulated by law. much.
Ex. You have 1b or 1000m. You execute a will. But sometimes the law will not But I’m not saying that what is contained in the will should be followed
allow you to dispose a single centavo. because if it will contradict the provision of the law, then it will not have
But have we not said that ownership comes with it the right to dispose? any effect. WILLMAKING IS SUBORDINATED TO LAW AND PUBLIC POLICY.
Nakay 1 anak legitimate, 1 anak illegitimate, 1 asawa. This provision overemphasized the personal character of lawmaking.
You cannot interfere as to the intrinsic provision of the will. But para nako, if we follow the proper order we should not be talking about
the interpretation of the will we should first talk about who are qualified to
make a will. Who are the persons authorized to perform a will.
Art. 786. So allow me to proceed to Art. 796.
The testator Why? Because we are still on the stage of preparation. Kinsay pwede
--may entrust to a third person maghimo, before sa unsaon paghimo. Let us be methodical.
the distribution of specific property or sums of money
that he may leave in general to specified classes or causes,
and also
the designation of the persons,
institutions or
establishments Art. 796.
to which such property or sums are to be given or applied. All persons who are not expressly prohibited by law
--may make a will. (662)
Art. 787.
The testator But this article doesn’t answer the question, who can make a will.
--may not make a testamentary disposition Positive. Si kinsa.
in such manner that another person
has to determine whether or not it is to be operative. (n)
Ay pagbutang ug tugon na delegated to a third person. Positive. Those 18 years and above may make a will. You should be at least
Third person cannot determine whether or not it is to be operative. 18.
It is purely a personal act. Kay kani tubag ni na implication. Dili direct na answer.
Gibalikbalik ra gyud. This is an age requirement at the time of the making of the will.
So if you decide to make a will then all the testamentary disposition must There is also a complimentary requirement.
emanate from your own will. Be independent in your decision. Be a decision
maker. No ‘pancitical’ attitude- walay baruganan.
Art. 798.
In order to make a will
--it is essential that the testator
784-787 articles have a common denominator- will making is purely
be of sound mind at the time of its execution. (n)
personal. It cannot be interfered by somebody else.
Somebody else—embraces all third persons other than the testator.
Soundness of mind is very important. Not just the age requirement. The two
must not be divorced.
You must be of sound mind at the time of the execution of the will.
First scenario, you made a will. Just after you placed the signature, nabuang
Art. 788.
ka.
If a testamentary disposition admits of different interpretations,
in case of doubt, Second scenario. Buang daan. After nagpirma, naulian.
that interpretation by which the disposition is to be operative W/c one is valid?
--shall be preferred. (n) First is valid.
This article made a pronouncement, of the two modes, testamentary and The period is very critical.
intestate, testamentary shall be preferred. Soundness of mind at the time of execution. He has to be sane at the time of
Our policy of the state leans towards testamentary. making of the will.
Supervening event of insanity is insignificant.
But then in reality, it is intestate. Because making a will is cumbersome. Lisod
kayo mahimo og will. So not just soundness of mind but soundness of mind at the time of
execution.
If we are talking about contracts, insane mind makes the contract voidable.
Art. 789. But in wills, there is no such thing as voidable. Only valid and void.
We cannot yet understand intrinsic/extrinsic. So premature.
Remember, do not divorce soundness of mind from the age requirement.
The negative definition is the first paragraph. How many persons must know in order for it to qualify as public knowledge?
The positive definition is the second paragraph. There is no set number. But rather it is the knowledgeability of the
inhabitants of the community. We cannot prove by the number to make it
NATURE OF THE WILL TO BE DIPOSED OF. public.
You are aware what part the heir shall receive. Outside sa imong family wa pay nakahibalo, is that public knowledge? Dili pa.
Ang butang na gusto nimo ihatag.
Art. 800.
Presumption of sanity.
Whoever alleges that the testator is insane must prove such a fact.
Presumption is in favor of sanity.
Ex. Today is june 15. One month before or less, if the testator is insane and is
publicly known, the presumption is shifted. It is presumed that he is insane
at the time of execution. Therefore, the proponent of the will/ heirs of the
If made june 16, you count 30 days backward, that is may 17,
if the testator is publicly known to be insane, the
proponents/petitioner (heirs) will prove he acted during ART 802
A married woman
lucid interval para ang wil nimo ma approve. --may make a will without the consent of her husband, and
without the authority of the court. (n)
Unsa tong qualifications sa testator? To make a will you
must be at least 18 years of age, sound and disposing mind Married woman, is there a need for you to ask consent of the
at the time of execution. husband?
No. Because you are disposing your own property.
Unya ang presumption karon kay continuing man that is why The exclusive property of the wife is paraphernal property
you have to prove that he acted during lucid interval. and the husband’s is capital property.
If admitted insane but not publicly, the qualification is not You can act independently after all the object of disposition
achieved. embodied in the will refers to exclusive property of each
spouse.
The qualifier is that if at the time he made the will, 30 days b4
or less than 30 days b4, he was known publicly as insane. What are your exclusive property?- family code
Acquired during marriage by gratuitous title.
Napay isa class, judicially declared to be a will w/o filing a --naminyo ka, gihatagan kag donation. That is exclusive
motion to set aside the judicial declaration. So magpadayon unless the donor provides that it shall form part of the
ang declaration court. community property
Those for personnal and exclusive use of each spouse.
So if you are judicially declared to be insane, you file a --Ex. Glasses.
motion in court to set aside the declaration of insanity to lift
it. What about community property?
There has got to be liquidation first to isolate the one half.
Pero panagsa rani class. The net estate. The formula is gross estate owned by the
husband and the wife minus the deduction under art 94 of
family code. After the deduction, you will get the net
Bear in mind the provisions in 800 refering to a married community property. You divide this by two. And you share
woman. Og married man diay?
Can you let somebody else place my signature or my name? So to attest means to know what is being done and to be
Yes. It is in the law itself that it must be subscribed by the sensible to the passing of the event.
testator himself or by the testator’s name written in his
favor. But it must be in his presence and his express So kung katugon ka, din a attesting.
direction. Meaning, per instruction.
So another option kay manugo lang ka sa imong secretary. Di man kinahanglan magtan aw ka sa ilang kamot og
magirma, but anytime, pwede ka mutan aw w/o barrier.
How will the other person sign? Nothing will obscure you vision. Nothing will impead your
‘Or the testator’s name by some other person’. vision, even if transparent.
The name signed will be the testators name not the name of
the person requested to write the name. the secretary need Meaning in the presence of the witnesses.
not write her own name or place ‘by’ Ug mugawas ka, di pwede. Defective because it was not
But there is a qualifier. It must be made in the presence of attested by the testator and the witnesses. If di ka mugawas
the testator and hid direction. Sa ato pa, per instruction. but natog ka, di pwede. Di man ka sensible of what
Ibuatng diri, kani na ballpen gamita… transpired.
Dil lang ang witnesses. The testator must also be there The witnesses must be there at the time of the signing of the
likewise. So you can imagine at least 4 persons in the room. will by the testator. Not necessarily at the time of the
The testator and the three witnesses. preparation of the will. What is critical is the signature.
Why? To see to it that there is no fraud or there is no force
or intimidation employed on the person of the testator.
Gihulga palang ka pagpirma nimo, walay nakakita.
So opat na.
Ari na ta sa second paragraph.
Then we consider the second paragraph Propose is here identification that it is signed by the testator
The testator or the person requested by him to write his name and in their presence.
the instrumental witnesses of the will,
--shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, If you read the third paragraph, meaning when they placed
their signature, all of them are present in one simultaneous
and all the pages
--shall be numbered correlatively in letters placed single setting. So you can imagine that if it takes place in this
on the upper part of each page. classroom, there are four persons.
If the attestation clause is in a language not known to the witnesses, it Who attested this? The witnesses. That is why you will find
--shall be interpreted to them. (n) their signatures there
Not that you are innocent about the will because you decided
ART806 what the will will contain. But probably the purpose is to
Every will determine if the instructions of the testator was carried out
--must be acknowledged before a notary public
by the testator and the witnesses. by the person who drafted it
He cannot be supposed to be ignorant because it is the
The notary public testator who made the substance of the will. But somebody
--shall not be required to retain a copy of the will, or
file another with the Office of the Clerk of Court. else may have written it. We just have to confirm if the
instruction of the testator was religiously carried out in the
Now you observe, in the matter of acknowledgemnt or mechanical act of writing.
notarization, is there a requirement that it be in the Because if somebody else did it for you, that is not allowed.
presence of the testator and of one another? If mechanically write, ok lang.
It is not place there. What is the implication? You can have it So munai ang purpose: to confirm if what was instructed was
notarized at different occation provided you appear before religiously and faithfully carried out by the person writing it.
him. But not that single setting of transaction. Because the The making of a will is a strictly personal act. It cannot be left
requirement of – in the presence of the testator and of one in the discretion of the third person.
another is no longer present.
Unya napay grabe.
So you can appear before the notary public w/o the Panaglitan, blind pwede bah?
witnesses. But you must appear in person and acknowledge Yes. It need not be that he is in possession of all his sensory
that that is your signature and signatures of the witnesses. faculties.
Therefore, age ra, 18 og sound and disposing mind.
Sa ubos notaryohan. Pero napa gihapoy sepecial rule para niya
Understandable, we should not impede the writing above.
ART 808
So pila na: If the testator is blind,
the will
1.Writing --shall be read to him twice;
2.Language and dialect known to the testator once, by one of the subscribing witnesses,
3.Subscribe- signed by the testator and again, by the notary public before whom the will is acknowledged.
4.Numbered in the upper part of the page
5.Attestation clause- will state the number of pages upon So two persons again.
which the will was written and there is a declaration that it But this time, notice. The persons are designated by law, not
was signed by the testator in the presence of the witnesses just designate 2 persons of the choice of testator. First by
and that the witnessed and signed the will in presence of he one of the subscribing witnesses.The second is the notary
testator and of one another. public before whom the will was acknowledged.
6.Notarized So very competent.
Just in case the testator is deaf mute. The law designated the persons in advance, not just anybody
Is he qualified? Yes. It’s only age and soundness of mind that as compare to 807.
is required. Why do you have to exclude just because he if
deaf. But there is a requirement in art 807 If it was read more than twice, there is no prohibition.
The most important part is that fully disclosed ang contents.
ART 807 That is his will. He decides.
If the testator be deaf, or a deaf-mute,
--he must personally read the will, if able to do so; Og bungol unya buta pa jud? Competent ba sya?
otherwise, So free interpretation.
he shall designate two persons to read it and communicate to him, Ang imong nakita ngara kay opinion rana.
in some practicable manner, the contents thereof. (n) There is no governing provision.
If the will is contested, I’m referring to the additions ha? Kana bang testamentary
--at least three of such witnesses shall be required. dispositions below the signature.
In the absence of any competent witness referred to in the preceding If the additions are made on separate date, then each made
paragraph, and on the different dates shall be dated and signed separately.
if the court deem it necessary,
--expert testimony may be resorted to. (619a)
Art. 813.
Will must be probated, meaning approved by the court.
When a number of dispositions appearing in a holographic will
How about the holographic will? In the matter of probate, are signed without being dated, and
how many witnesses are needed? the last disposition has a signature and a date,
This witness must be familiar with the writing of the --such date validates the dispositions preceding it,
whatever be the time of prior dispositions. (n)
testator.
How many? Only one is needed. Let us say there are 4 additional dispositions. The situation is
Unless it is contested this. The first was on march.
In which case, you will produce 3 witnesses. The second and third, there were no date but there is
You add two more to make it three. signature.
The fourth is dated and signed.
Kay kung nay opositor, it is likely na ang iyang opposition ana What is the effect?
parte jud sa testator ba jud na. Therefore, the court must be
convinced that it is indeed in the handwriting of the If the last testamentary disposition is dated, then it will cure
testator. the prior disposition.
Nay minimum but way maximum. Pwede lima og gusto ka. Let’s read the governing rule in ART 813.
But there is no guarantee on the authenticity or genuineness. Bisan pa ang tanan kay way pitsa but nay pirma, except the
You won’t know if at the time of the making of the will he is last. They were made on different occasions. What is the
intimidated, coerced or if fraud was employed. And he is effect?
already dead. The last validates the prior invalidated disposition.
Theres a curative measure. Duna lay pitsa ang katapusan
Ari nalang sa notarial. May be burdensome, pero mas nimo, it will validate so long as there is signature. So
guarantisado. Daghan manunod og prima. validated. As if there is a date.
Art. 812. Panaglitan, ang third lang ang naa. Ang first og second walay
date but nay signature. Ang third nay date and signature.
In holographic wills,
the dispositions of the testator written below his signature Ang fourth, walay date nay signature.
--must be dated and signed by him Does the third disposition cure it?
in order to make them valid as testamentary dispositions. (n) \ No. because the law specifies that the disposition that
Ex. validates and cures is the last testamentary disposition. That
You have this holographic will. You have already signed it. umber three is second to the last, not the last.
Concluded na. You want to add some more additional Therefore, only third ra ang valid.
disposition. Giemphasize man ang ‘last’. Muingon unta na subsequent
The indication of the signature is that it marks that the disposition will cure the previous undated dispositions.
testamentary disposition is already concluded.
So you put additional dispositions below. So we are settled. Of there are additional testamentary
Is that permitted? dispositions written below the signature, there has to be a
Yes. date and a signature to be valid.
Kwin transcripts Page 13
PDF Created with deskPDF TS PDF Writer - DEMO :: http://www.docudesk.com
SUCCESSION
Kwin
Should there be none, then it is invalid for lack of However, if they are made on the same date, then single
formalities. date and signature are sufficient.
However, if the last disposition bears a date and a signature,
the defect of date with respect to the prior dispositions are ART 814
deemed cured. In case of any insertion,
cancellation, in a holographic will,
But there is no curative signature. With respect to signature, erasure or
there is no validation. Only the date can be validated by the alteration
last disposition.
the testator must
--authenticate the same by his full signature. (n)
What if type written and additional disposition or if
somebody else wrote it?
That is fatal for the entire will. That invalidates the entire will. Kaning will, it is essentially revocable. Therefore, there may
Reason; that is a holographic will. It must be entirely written. be a change in the decision of the testator. The last article
Unless it was made without the knowledge and consent of on cancellation, erasure, addition, or any modification on
testator. the holographic will can be done.
Example, gitagaan nimo si Juan Cruz. But you changed it to
Can additional disposition modify the original disposition? Pedro Santos. So on top of that, you superimpose the name.
The additional disposition will prevail in case there is conflict. you are cancelling.
Because it will manifest the latest expression of the testator. What is the formalities?
You simply disregard the first. So authenticate it by his own customary signature.
As in fact you can revoke, rive, cancel or erase. What is important is that you are customarily using it. You
authenticate that.
Can there be a presumption if there is no date and signature
on the first three but in last, that it was made in Kadto diay date and signature? Para rato sa additional
The word used is validated. Not presumption. dispositions.
What validates is only the date. There is no validation as to
signature. So the rule is, additional testamentary dispoaitions below the
signature must be dated and signed always.
Remember that date is required only on The only exception could be if the additional dispositions
Why additional disposition be dated and signed. were made on the same occasion, on the same date, or
simultaneously, then even if there were similar, then a
Situation: signlke date and date is sufficient.
1st no date, no signature
2nd no date, no signature However if made on different occasions, and the last bears a
3rd no date, no signature date and a signature, the date can validate the previous
th
4 w/ date and signature dispositions made. But if the previous dispositions do not
There has to be a date and signature. have signature, then has no effect. It is void.
The 1st, 2nd and 3rd are void because there is no signature.
th
4 is valid. So if you are the proponent, then you convince the court the
dispositions are made on the same date.
But if four of them are made on the same date, only one
signature and one date is enough. Even if it is made on
different hours of the day. The civil code speaks of one day
as 24 hours from sunrise to sunset. The date and the
signature already embrace the four.
Such will
--may be probated in the Philippines. (n)
What will govern the intrinsic validity of the will? Whether So governed by the law of the testator. Wholesale ang
the particular disposition is allowed or not, what will application.
govern?
Intrinsic validity means whether the testamentary disposition So as to place, national law of the testator.
is valid or not. Whether that person can be recipient, whther
that amount is allowed by law. Last item.
Kaning time.
Example, illegitimate children before the family code, they The right of succession if enforced at the time of death of the
were given half of the share of the legitimate children. The decedent. So the law enforced at the time of the death.
testamentary disposition for the illegitimate child is now put
into issue. Because he gave the illegitimate child an equal Notice the difference: ang forms, the law at the time of the
footing with the legitimate child. Is this permissible? The making. Pagintrinsic validity: the law at the time of the
answer to this cannot be found on the validity on the form. death. This is consistent w/ ART 777
The issue os on the testamentary disposition itself, the
intrinsic validity. Art. 777.
The rights to the succession
--are transmitted --from the moment of the death of the decedent. (657a)
Filipino residing in US, California. He died in Barcelona. What
law will govern the distribution of his estate? Mas sayon ning intrinsic validity.
Art. 16. Persons and family relations
Real property as well as personal property is subject to the law of the country
where it is stipulated.
However, intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country wherein said
property may be found. (10a)
ART 825
A codicil
--is supplement or addition to a will,
made after the execution of a will and
annexed to be taken as a part thereof,
by which disposition made in the original will is explained,
added to, or
altered. (n)
Let us look at what are the requirements of the overt act: Strictly construed.
Why?
a. There is an overt act specified by law. In order not to defeat the intent of the testator considering
We will not extend the meaning of the overt act. our policy is testamentary
Because like we said, our policy is testamentary. As much as possible we will give meaning to the
So, even if it materially destroyed, it may still not amount to testamentary disposition.
an overt ac.
It is not a testamentary disposition that is why it will survive The will is valid even if the persons designated cannot inherit.
even if the will was revoked. Why? He may be disqualified by law. So the will is still valid.
And the revoking will must be a valid will also. An invalid will Ex.
cannot revoke be valid will. Will number 1. Ang will number 2, the beneficiary cannot
inherit.
Is the second will valid?
Yes.
You can think about three wills here. Probate is referred to as protocolization or sometimes
Will number 2 expressly revoke number 1. authentication.
Because of the revocatory clause, let us totally disregard the
first. Not just the disposition but the will itself. What can probate?
Contrast ni ganina. Ganina implied to kani express. Probate is proving before the competent court the due
execution the will by a person possessed with testamentary
What is the effect of express revocation? capacity as well as…
Totally, the will is revoked.
What court?
Supposed a third will is executed which in turn revoked the RTC of the province where the testator is resident.
revoking will, does that revive the first will?
It does not. Resident means actual residency. As contradistinguished
Because the revocation is expressed. Di najud na from legal residency.
mabanhaw. Actual residency is where you are residing in person.
But how do you revive it? If you are here in Cebu for purposes of studying, after the
Execute a codicil or a will for that matter. semester you will go home to your province, your domicile is
your province.
Had it been an implied revocation in will 2, those dispositions
inconsistent will be deemed revoked. If will 2 is likewise Domicile is the place where you are habitually present, and
revoked by will 3 (express or implied), what is the effect? whenever you are absent, have the intent to return to that
That gives life to will 1 automatically. place.
This does not have a direct provision but this is guided by Residence is the actual place where you are at a given time.
direct provision.
Why? If 837, referring to express revocation does not revive Therefore if the testator is a resident of the Philippines, then
the first, contrary, if revocation is implied, it will revive. the RTC of the province where he is a resident is the venue.
(5) If the signature of the testator In revocation, the will is revoked at the pleasure of the
--was procured by fraud; testator, with or without grounds at all.
(6) If the testator Di mana obligation nimo pagpanghatag sa mga tao.
--acted by mistake or
did not intend that the instrument he signed
should be his will
at the time of affixing his signature thereto. (n)
ART 845
Unknown person has a different meaning to the literal
signification. An unknown person is somebody you do not ART 848
know. If the testator should institute his brothers and sisters, and
But within the context of the will, an unknown person may be he has some of full blood and others of half blood,
very close to you. the inheritance
Unknown person is one who cannot be identified from the --shall be distributed equally unless a different intention appears. (770a)
context of the will. Not a stranger.
In which case, consequently that institution is void. Full blood relationship exists between persons of the same
Maybe in the testator’s mind, he is referring to a neighbor father and the same mother.
that is a close friend, but reading from the context of the Half blood relationship exists between persons of the same
will, we cannot infer that that is the person described is the father but of different mother or the same mother or of
neighbor. different father.
Mu unta ni ang gamit se ante mortem probate of will. Ang
testator unta ang muexplain. In a last will and testament, if magtipon gani ang full blood
and half blood, walay palabihon. Sa will ha?
Kay kung intestate or legal baya, naa raba nay significance.
The full blood siblings get twice the share of the half blood
ART 846 siblings. There will even instances when they will receive
Heirs instituted without designation of shares less.
--shall inherit in equal parts. (765)
But in testate succession, they will all receive equal share.
They are in equal footing with each other.
I hereby institute the following A,B,C,D,E. the designation of
shares is silent. What is the solution?
They shall inherit equal parts.
Unless from the tenor, it was apparent that the, testator, had
he known of the falsity of the cause had not given him the
property he owns.
Tenor, “I hereby institute Juan dela Cruz as my heir because
he topped the bar exam”
Therefore would it not for the information that he topped the
bar, juan would not have been instituted.
The primary, proximate cause on the institution is the
information received that Juan topped the bar.
In which case, the institution is void.
Had he known the falsity of the information, he would not
have instituted such person.
ART 851
If the testator has instituted only one heir, and
the institution is limited to an aliquot part of the inheritance,
legal succession
--takes place with respect to the remainder of the estate.
You divide the 15k excess by 9 (total of their ratio), then you This point, we have to connect the connecting articles.
distribute their share in deduction. Who are the compulsory heirs?
ART. 887.
So the amount of the distribution will be net of their shares The following are compulsory heirs:
(1) Legitimate children and descendants,
from the proportionate reduction. with respect to their legitimate parents and ascendants;
You must give meaning what has been (2) In default of the foregoing,
legitimate parents and ascendants,
All heirs must proportionately reduce with respect to their legitimate children and descendants;
Therefore, let us consider, who are the instituted heirs? While ART 782 says:
An heir
C1 and C2 --is a person called to the succession
either by the provision of a will or
F is not an instituted heir unlike in the last example. He by operation of law.
receives the 60k by way of legacy. Devisees and legatees
--are persons to whom gifts of real and personal property
So therefore, kutob land ta kang C1 and C2 mucancel, are respectively given by virtue of a will. (n)
because the institution of heirs are annulled.
For general purpose, a legatee and devisee are considered
Why? heis.
Because the law says: However in some article like 854, there is a difference
“but the devises and legacies between a legatee and a devisee and an heir.
--shall be valid insofar as they are not inofficious”
What to do? There is no free portion. In effect, the whole 200k given in
The share of F will also be reduced in a manner that C1 and the will be revoked when you file a petition for revocation.
C2 will not be deprived of their legitime. It can be partially
reduces or totally reduced to satisfy the legitime of the So mag agad ka sa free portion
compulsory heirs.
Free portion means the difference after allthe legitimes has
ART 906 been satisfied.
Any compulsory heir That is why a will is an act whereby a person os permitted to
to whom the testator has left by any title
less than the legitime belonging to him control a certain degree – because legitime has to be
--may demand that the same be fully satisfied. satisfied.
Legacy or device is valid provided it will not impair the
The una jud na hatagan kay naa sa 911: order of payment legitime of the compulsory heir.
Magkadaghan ang anak, magkadako ang free portion.
So far 854,
Heirs Institution Ratio Add/(ded) Distribution What is the remedy of compulsory heir receiving his legitime?
C1 30k 1 (5k) 20k We have said this before…
C2 30k 1 (5k) 20k
C3 0 1 20k 20k
ART 906
Any compulsory heir
F 60k (10k) 60k
to whom the testator has left by any title
Total 120k 120k less than the legitime belonging to him
--may demand that the same be fully satisfied.
Is there preterition?
Yes. He may demand that his legitime be fully satisfied
Consequence? It shall be taken from the other compulsory heirs in
Annulled. proportion
What if given as a legacy or device? For that purpose, we go back to 855 (above)
The free portion is 60. So everything is valid. If the undisposed portion is not sufficient, it will be taken
from the other compulsory heir in proportion to their
shares.
Another example:
Compulsory heirs: C1, C2, C3 So both C1 an C2’s share will be deducted with 5k each. As a
Assets: 120k result, each of them will receive 20k.
Distribution in will: C1-25k F will not be deducted, because F is not a compulsory heir.
C2-25k After all, F’s share did not encroach their legitime at all.
C3-0
F (close friend)-60k instituted as an
Heir
No other disposition was made. *“During his lifetime, received a donation.”
Ex. During the lifetime of T , C1 is receiving 20k by way of
Heirs Institution Ratio Add/(ded) Distribution donation inter vivos.
C1 25k 1 (5k) 20k In this case, the 20k will be regarded as advance legitime. So
C2 25k 1 (5k) 20k when you compute the legitime, 20 will be included.
C3 10k 1 20k 20k
F 60k 60k
Total 110k 120k
*these discussion will apply to ascendants and descandants in
direct line. It does not cover only children. It will cover all in
Is there preterition?
the direct line. REWORDED: the share of the omitted
No. there is a portion that is not designated (10k).
compulsory heir in the direct line.
C1, C2, C3 are compulsory heirs. They can receive even *Pero ang illegitimate ang pinaka daogdaog
without a will. The legitime given to them are given to them If the legitime is not enough, they will suffer the reduction.
by law.
Heirs Institution Ratio Add/(ded) Distribution If you say ‘it is advisable to preserve and transmit’, this is not
A 1/2 50k 2 16,666 66,666
B 1/4 25k 1 (25k) 00
allowed. Kinahanglan in form of obligation.
C 1/4 25k 1 8,333 33,333
Total 100k 100k So when T dies in 2000, the property will go to H. succession
will take place.
If B died, his ¼ will go to A and C, his substitutes. So how do you describe H? Is he an owner?
Remember H cannot dispose the property to somebody else
How do you divide? because he is obliged to preserve and transmit either upon
You maintain the institution. Divide proportionately. his death or specified time.
A will receive 16,666 and C will receive 8,333
Hardly will he be called an owner. An owner has a right to
So you follow what is intended by the testator. You presume dispose. You are tied with the testamentary disposition.
that because the shares are unequal, you maintain those
shares. Pero makapahimos ka.
S predeceased H, survived by X
2 years after H died, survived by daughter D
D is claiming it. Reason, that her father was the owner when Situation:
he died. Year died Child
X is also claiming it. Reason, that he will represent his father T (fideicommitente) +2004
in claiming. H (1st heir) ( fiduciary) D
So there are two claimants, X and D S (2nd heir) (fideicommissary) +2000 X
Situation: Situation:
Year died Child Year died Child
T (fideicommitente) +2005 T (fideicommitente) +2007
st st
H (1 heir) ( fiduciary) +2002 D H (1 heir) ( fiduciary) +2009 D
nd nd
S (2 heir) (fideicommissary) +2004 X S (2 heir) (fideicommissary) +2002 X
2005 is crucial because that marks the transmission. 2nd heir predeceased 1st heir.
Who between D and X will inherit? Did they acquire any
rights? What is the effect of S’s death? Will 868 apply?
To answer that, first determine, did their fathers acquire any It is as if there is no more substitute. Just simply remove
rights? him.
Both H and S predeceased T.
Both are voluntary heirs because their rights are derived One of the requirements is that both must be living at the
from the execution of a will. time of institution.
Remember 856: Therefore, there is no substitute.
ART 856 Ownership is consolidated to H. He is now the owner jud.
A voluntary heir
who dies before the testator
What is the effect? So what then is the period you may be restrained from
Remember that substitution takes effect if heir disposing it?
predeceased, revoked or became incapacitated. 20 or less.
In this case, H predeceased T.
So S acquired it as a substitute of H. But that restriction applies only to the free portion.
It does not apply to the legitime.
ART 869 Why not?
A provision Because in legitime, the testator can never impose any
whereby the testator leaves
to a person the whole or part of the inheritance, and burden, encumbrance, condition, or substitution
to another the usufruct, whatsoever.
--shall be valid.
If he gives the usufruct to various persons, So that applies only to free portion. Not to legitime
not simultaneously, Kung giingnan kag ayaw, unya free portion imo nadawat,
but successively, then you follow.
--the provisions of Article 863 shall apply. (787a)
869 is a matter of information. Exactly 20, that is not covered by the prohibition.
You can be the usufruct of the property of another. And you
can likewise give the naked ownership to another person.
ART 871
The institution of an heir
Usufructuary is a person who enjoys the property belonging --may be made conditionally, or
to another. for a certain purpose or cause. (790a)
The naked owner is the owner of the property being used.
871 is a new topic. There is a conditional institution.
Why ‘naked’ owner?
In property, the most important right is the right to use. Naghatag kag hassle sa imong gitagaan.
You are the owner but you are denied the use of your Generosity na tinihik.
property.
Nevertheless,
Testator cannot impose burden on the legitime. the right of usufruct, or an allowance or some personal prestation
OW it is considered not written --may be devised or bequeathed
Why? to any person
for the time during which he or she should remain
Because it is given not by him but by the law. unmarried or in widowhood. (793a)
Art 904 second sentence, is more expressive on the matter. Absolute prohibition to contract marriage. Totally ban
ART 904 marriage.
The testator
--cannot deprive his compulsory heirs of their legitime,
except in cases expressly specified by law. It is not valid because it entails the freedom of the person to
choose his status. It is contrary to public policy.
Neither can he impose upon the same any
burden,
encumbrance, What is the effect?
condition, or It is considered as not written.
substitution of any kind whatsoever.
This applies to the legitime. But this applies only when the condition is absolute.
The only instance where you can lose your legitime is when But if the condition is only relative, like
you are validly disinherited for a cause that is proved. “not marry in 1 year”
“not marry in Cebu City”
Art 872 is a duplication of 904. This is valid.
To contract a second marriage is generally void Unya if absolute prohibition to contact second marriage, wa
The only difference is it allows exceptions. jud nay prohibition. Absolutely void.
What are the exceptions? The restriction should be within a reasonable time.
1. If ever imposed by a diseased spouse. 75 years cannot be considered as relative prohibition. That is
-he executed a will giving the free portion to the surviving too burdensome. It is amounting to absolute prohibition.
spouse provided she will not contract a second marriage Or even when you say not to marry within the whole Asia,
that is considered absolute
2. If the prohibition is imposed by the ascendant of the
deceased spouse.
-with respect to the properties they own and give them to ART 875
surviving spouse Any disposition made upon the condition
that the heir shall make some provision in his will in favor
of the testator or
2. If the prohibition is imposed by the descendant of the of any other person
deceased spouse. --shall be void. (794a)
Example 3.
Supposing they own a property and they would like to their
widowed mother, they can impose a condition not to
contract a second marriage out of their property given to
their mother by virtue of a will.
Should it have existed or should it have been fulfilled at the time the will was ART 879
executed and the testator was unaware thereof, it If the potestative condition
--shall be deemed as complied with. imposed upon the heir is negative, or
consists in not doing or not giving something,
If he had knowledge thereof, he
the condition --shall comply by giving a security
--shall be considered fulfilled that he will not do or give that which has been prohibited by the testator,
only when it is of such a nature and
that it can no longer exist or be complied with again. (796) that in case of contravention
he will return whatever he may have received,
together with its fruits and interests. (800a)
Actually class, kaning mga topic sa condition, you have
encountered that in oblicon. 878 is for a term
As a matter of proof, in 884 – in matters not provided for in And atong gidiscuss ganina is condition which is conditional.
this code, the deficiency will be provided for by the We will then discuss term or period and modal institution
provisions of conditional obligations. 879 is a negative potestative condition.
So therefore if you have knowledge in the conditional
obligation, this is not difficult. You only change debtor- What is a potestaive condition?
creditor to testator-heir. When the fulfillment of the condition debents on the sole
will of the heir.
Have you heard about casual condition?
If the fulfillment of the will depends upon third person. Go direct to the example of negative potestative condition.
I’ll institute an heir if you will stop smoking.
Mixed gani, partly the will of the party, partly the will of third The fulfillment depends solely on the heir, legatee or devise.
person, or partly by chance or fortune. The control is on you.
In both cases,
the legal heir
--shall be considered as called to the succession
until the arrival of the period or its expiration.
IOW 880 shall control if the condition has not yet been
fulfilled by the person instituted as an heir.
But when we go to term, other person will be the caretaker
– legal heirs.
Gitugit ba ang institution of a term or period? Just like the first discussion on term;
Yes. Instituted to heir subject to the term. The commencement is
upon death of the testator until ten years there after.
st
ART 885 (1 sentence) During the intervening period, who will take possession?
The designation of the day or time Upon the death of the testator, the instituted heir will take
when the effects of the institution of an heir
shall commence or cease possession of the property.
--shall be valid. But upon the arrival of the term, that extinguishes is right.
In both cases,
the legal heir Baliha suspensive, instituted as an heir subject to a term, 10
--shall be considered as called to the succession years after the death. Who will take possession of the
until the arrival of the period or its expiration. property?
But in the first case The legal heir.
he We corrected 880, because it says that it will be under
--shall not enter into possession of the property administration.
until after having given sufficient security,
with the intervention of the instituted heir. (805) Then we said that 885 2nd par will control.
‘The effect of the institution shall commence or cease’ And accordingly, what is stated in 885
In both cases,
Examples: the legal heir
Shall commence five years after the death. --shall be considered as called to the succession
If the testator died in 2010, allow 5 years to pass. until the arrival of the period or its expiration.
Therefore 2015 paka makapanunod.
So it’s the legal heir, not the administrator.
Or cease …
And when the day comes, he shall turn over it to the
H is instituted until 2013.
instituted heir.
Therefore, at death, you will inherit.
By 2013, it is extinguished because it is subject to a term.
Why is this emphasized?
Because in 880, it is placed under administration.
Term can be suspensive or resolutory.
In effect it is in conflict with 885 - Legal heir of the testator
Suspensive term means you will wait for the arrival of a date
will inherit upon death.
or event certain to happen.
Apply 880 if conditional.
Death? Is that certain to happen?
Apply 885 if term or period.
Yes.
Why would I say that?
What is day certain?
Because 880 embraces term and condition, and that it shall
ART 1193 (3rd paragraph) NCC
A day certain be subject to administration.
--is understood to be that which must necessarily come,
- although it may not be known when. So let’s go back to our example.
The heir instituted subject to a term of ten years, when is he
So death of a neighbor is a term or period. Because the going to inherit from the testator? Is it upon the arrival of
neighbor will certainly die. the period? Or is it upon the death of the testator that
confers him the right?
But if you say upon the death of Maria by reason of cancer, is
that condition or term?
Condition because the cause is specified. Death will come, ART 878
but not necessarily through cancer. A disposition with a suspensive term
--does not prevent the instituted heir
from acquiring his rights and
The institution of a will may be subject to a term. transmitting them to his heirs even before the arrival of the term.
Upon death or 3 years after the death
Or it can be resolutory; effective unpon death until five years
thereafter.
Why?
Because the ten year period has not yet arrived. ART 882
But then my right accrues attaches upon the death of the The statement of the object of the institution, or
the application of the property left by the testator, or
testator. the charge imposed by him,
--shall not be considered as a condition
He died 2010. So Juan already acquired then. unless it appears that such was his intention.
Do not say the heir instituted subject to a term acquired the Institution can be conditional, subject to a term or modal.
right upon the arrival of the period. Modal institution. Do not confuse this with condition.
It is the enjoyment of the property or possession.
But the right accrues at the death of the testator. Let us say J instituted a statement as an object of institution –
I hereby instituted as heir, 100k, so that you can sue the
Can the heir instituted subject to a term to apply a portion of money for your education.
the property upon his death?
Not yet. Statement of the object of institution.
The reason: you are not yet in possession.
So you can inherit but use that money for the purpose
One of the requirements is possession in property titling. intended by the testator.
But only the documents, you have to file it.
But the evidence of possession is also important. Or…
Application of the property left by the testator.
885 applies when there is a term or period, even if 880 also J instituted a parcel of land then he is to construct a barangay
made mention of term. chapel within the premises. Part of it shall be utilized for the
Why? Because the latter provision in statutory contruction construction.
prevails. IOW there is an obligation on your part to comply with the
desires of the testator. There is an obligation imposed and
Pero ang ako gilecture in 878, the right of the heir instituted not a mere condition.
with the term ripened at the time of the death of the
testator. Or…
200k but half of that amount shall be given to a charitable
It is passed to the heirs if the heir died before the arrival of institution.
the term, because the right was already existing as early as There is a corresponding burden on which you are bound to
2010. It was superseded by his death. He will now transfer comply.
the right to his heirs.
Something is required/ burden to be performed.
Had Juan survived by 2010, where will the property go?
To the legal heirs of Juan. Reason: because they acquire the If you will not comply, you are duty bound to return what you
rights of their predeceased father. received together with the fruits. So if it is money, return
with interest.
So the sanction if you will not comply is that you have to The conditional instituted heir, his right cannot pass.
return what you have received with interest.
Modal obliges but does not suspend. Condition suspends but
does not oblige.
Maimo pero buhaton nimo. Sa condition, tumanon sa una ART 886 LEGITIME
Legitime
makapaningil. --is that part of the testator's property
And modal, mapaningil na nimo, tumana na ang gihatag na which he cannot dispose of
burden. because the law has reserved it for certain heirs who are, therefore,
called compulsory heirs. (806)
Apart from that, these are the different systems worldwide. (3) The widow or widower;
SITUATION: REPRESENTATION BY DIRECT ASCENDING But this principle will not apply in descendants because it
Ws allows representation.
\
AlAbGfGm If there is no compulsory heirs? Where will it go?
\/ \/ Brothers and sisters
F M Nephews and nieces
\/ Cousins
T State – based on Regalian doctrine – state is the owner of
A. if testator died the property within its territory.
F=30k
M=30k 888 sa anak and descendants – can be represented
Free portion =60k 889 sa parents and ascendants – no representation
Parents will get ½ of the estate, which will be divided by them
both. ART 888
The legitime of legitimate children and descendants
--consists of one-half of the hereditary estate of the father and
B. if F predeceased of the mother.
If F died first, where will the 30k of F go?
If one of the parents will die, the whole shall pass to the The latter
--may freely dispose of the remaining half,
survivor subject to the rights of illegitimate children and
M=60k of the surviving spouse as hereinafter provided.
Even if F still had mother and father.
There is no representation of the ascending line. ART 889
The legitime of legitimate parents or ascendants
--consists of one-half of the hereditary estates
C. if F and M predeceased of their children and descendants.
What if M also died, survived by grandparents of paternal and
maternal line – legitime will be divided equally between The children or descendants
--may freely dispose of the other half,
both lines. subject to the rights of illegitimate children and
Al=15k of the surviving spouse as hereinafter provided.
Ab=15k
Gf=15k
Gm=15k
D. if F, M, Al predeceased
Ab=30k
Gm=15k
Gf=15k
The share of Al will go to Ab.
ART 892 COMBINING OF TWO COMPULSORY HEIRS So if you only have 1 child; flat rate ¼
If only one legitimate child or descendant of the deceased survives,
the widow or widower
If you have two or more; same as a share of 1 LC.
--shall be entitled to one-fourth of the hereditary estate. And the more children you have, the less your share will be.
And the more children you have, the bigger the free portion
In case of a legal separation,
the surviving spouse there will be.
--may inherit if it was the deceased who had given cause for the same.
SITUATION:LD’s & SS
If there are two or more legitimate children or descendants,
the surviving spouse T_______W
--shall be entitled to a portion equal to the legitime / | | \
of each of the legitimate children or descendants. C1 C2 C3 C4
In both cases, C1= 15k ½ /4
the legitime of the surviving spouse C2= 15k ½ /4
--shall be taken from the portion that can be freely disposed of C3= 15k ½ /4
by the testator. (834a)
C4= 15k ½ /4
W= 15k SS=1LC
Combining of 2 concurring compulsory heirs
FP= 45k
SITUATION: IC & P/A X and Y will divide among themselves the 1/3.
X is an illegitimate child Wife’s share is fixed at 1/3
F M
\/
T There are different combinations:
/ -LC and P/A =P/A are disqualified
X -LC and SS =concurrent
F= 30k ½ /2
M= 30k ½ /2 Legitimate parents are already disqualified by the presence of
X= 30k ¼ legitimate children.
FP= 30k
If the marriage between the surviving spouse and the testator ART 901 ILLEGITIMATE CHILDREN ONLY
was solemnized in articulo mortis, and When the testator dies leaving illegitimate children and no other compulsory
the testator died within three months from the time of the marriage, heirs,
the legitime of the surviving spouse as the sole heir such illegitimate children
--shall be one-third of the hereditary estate, --shall have a right to one-half of the hereditary estate of the deceased.
except when they have been living as husband and wife
for more than five years. The other half
--shall be at the free disposal of the testator. (842a)
In the latter case,
the legitime of the surviving spouse SITUATION: IC, REPRESENTED BY IC
--shall be that specified in the preceding paragraph. (n)
X is an illegitimate child
SITUATION: SS Y is illegitimate child of X
T_________W
W= 60k ½ A. if T died
FP= 60K ½ T
/
SITUATION: SS AT ARTICULO MORTIS X
In articulo mortis, one of the contracting party is at the point /\
of death and he died within three months from the date of Y C
marriage, the SS share will be reduced drastically to 1/3. X=60
But if you have been living together 5 years before the
celebration, you restore again the 1/2. But as usual, you are to prove your filiations
The other half is your free portion
Should there be two or more illegitimates, then ½ will be net
hereditary or more to be divided by the number of
illegitimates. Then 30 a piece if there are two.
ART 902
The rights of illegitimate children set forth in the preceding articles
--are transmitted upon their death to their descendants,
whether legitimate or illegitimate. (843a)
B. if X predeceased T.
T died at 2001.
X died at 2000.
At the time of X’s death, he is survived by one legitimate C
and one illegitimate Y. remember that X is an illegitimate
child.
In our previous discussions, we had talk about
representation.
Is C allowed to represent?
Yes.
So also the illegitimate.
How much will Y and C receive? A straight line can be represented by another straight line but
Ratio a broken line can be represented by another broken line or
C= 40k 2 straight line.
Y= 20k 1 IC=1/2 of LC
Broken line is 902
You maintain the ratio, even if you apply the representation. Straight line is on 992
The 60 is originally intended to be received by X. but since he
died before the testator. Then children will represent, Why do we have to discriminate the legitimates?
notwithstanding their legitimacy. To discourage further illegitimacy.
The only problem is – how much they will receive. 20.44
Between two children whose parents r=predeceases, you will
If the person to be represented is an illegitimate child, then notice that privilege is given more to an illegitimate.
the descendant of the former can represent him regardless
whether he is a legitimate or illegitimate. ART 903
The legitime of the parents who have an illegitimate child,
when such child leaves neither legitimate descendants,
nor a surviving spouse,
nor illegitimate children,
SITUATION: REPRESENTATION BY AN ILLEGITIMATE CHILD --is one-half of the hereditary estate of such illegitimate child.
X is an illegitimate child
If only legitimate or illegitimate children are left,
Y is illegitimate child of X the parents
W is illegitimate child of B --are not entitled to any legitime whatsoever.
T
If only the widow or widower survives with parents of the illegitimate child,
/ \ the legitime of the parents
X B --is one-fourth of the hereditary estate of the child, and
/\ /\
that of the surviving spouse
Y C WF --also one-fourth of the estate. (n)
1st par:
It is void: every compromise involving legitime Art 908 gives us a formula to determine legitime.
Reason: 1347 of contracts You martial all the properties of the testator. You consolidate
Art. 1347. all. Get the evaluation.
No contract may be entered into upon future inheritance except in cases
expressly authorized by law. Ex. it will illicit this amount:
(6) Maltreatment of the testator by word or deed, (8) An attempt by one of the parents
by the child or descendant; against the life of the other,
unless there has been a reconciliation between them. (756, 854, 674a
(7) When a child or descendant leads a dishonorable or disgraceful life;
ART 921
(8) Conviction of a crime
which carries with it the penalty of civil interdiction. (756, 853, 674a)
The following shall be sufficient causes for disinheriting a
spouse:
A
/ \
B C
| |
D E
| |
F G
How many degrees away is B from C?
2.
Proximity and relationship is determined by the number of
generation.
(1) If a person dies without a will, or Remember, madawat nimo tanan. Wala nay free portion.
with a void will, or
one which has subsequently lost its validity; Who are the intestate heirs?
(2) When the will does not institute an heir to, or 1. Those compulsory heirs are also intestate heirs.
dispose of all the property belonging to the testator. a. legitimate children and descendants
b. legitimate parents and ascendants
In such case,
legal succession c. surviving spouse
--shall take place only with respect to the property d. illegitimate children
of which the testator has not disposed; But nay napuno.
(3) If the suspensive condition attached to the institution of heir 2. Brothers and sisters
does not happen or is not fulfilled, or 3. Nephews and nieces.
if the heir dies before the testator, or 4. Cousins
repudiates the inheritance,
there being no substitution, and 5. Collateral relative within the fifth degree.
no right of accretion takes place; -child of your cousin
ART 1010
(4) When the heir instituted is incapable of succeeding,
The right to inherit ab intestato shall not extend beyond the fifth degree
except in cases provided in this Code. (912a)
of relationship in the collateral line. (955a)
4. WILL DOES NOT INSTITUTE AN HEIR *Compulsory heirs will inherit whether there is a will or not
Nagsige rag enumerate pero way gitudlo na manununod. Legal heir will inherit in absence of will.
Valid ang will but walay instituted heir.
*Legitime will operate upon moment of death
5. WILL DOES NOT DISPOSE ALL PROPERTY
Will is still valid.
An heir is instituted but the n it does not dispose the entire THIRD
property of the testator (3) If the suspensive condition attached to the institution of heir
does not happen or is not fulfilled, or
T has 2 children C1 and C2. if the heir dies before the testator, or
His instituted heirs are repudiates the inheritance,
A= 5k there being no substitution, and
no right of accretion takes place;
B= 5k and
C2= 10k
6. Suspensive condition does not happen/fulfilled
7. Heir predeceased (no substitution or right of accretion)
So we give first the legitime, 30
8. Heir repudiated (no substitution or right of accretion)
Legitime Instituted Intestate
C1= 30k 20k
6. SUSPENSIVE CONDITION IS NOT FULFILLED
C2= 30k 10k 20k
If there is suspensive condition attached to the institution
A= 5k
and not having fulfilled the condition.
B= 5k
Ex. The instituted heir will receive 200k provided you will pass
2012 bar exam.
Legitime 60k
If you did not pass, that means you will not be entitled.
Institution 20k
200k will be vacant portion which will be instituted by legal
Total 80k
succession.
To whom will the 200k go?
Excess of 40 is subject to intestacy.
The nearer relative excludes the more distant ones.
Rule of proximity.
C2 receives 30k as a compulsory heir, from legitime,
10k as a voluntary heir, from institution, &
I’m talking about the promise of 200k.
20k as a legal heir, from intestate succession.
Total of 60k
The 200k is still part of the estate of the decedent.
Why?
C1 cannot complain so long as C1 are receiving the legitime
The condition attached to the institution was not fulfilled.
already
Testator can dispose the free portion.
The legal heirs will receive by legal succession, depending on
Testator can never deprive the compulsory heirs as the
who is nearer to him in relationship.
legitime.
FOURTH
(4) When the heir instituted is incapable of succeeding,
except in cases provided in this Code. (912a)
Willing unta ka but the law will prohibit you from succeeding.
Therefore, you are called incapacitated.
Unless, there is representation, the estate will be distributed
legally.
The representative
--does not succeed the person represented
but the one whom the person represented would have succeeded. (n)
Using this as graphical representation: In line with 971, you now understand from whom the
SITUATION: representatives inherits.
D X and Y inherited directly from the estate of their
/\ grandfather.
AB They do not inherit from father who predeceased.
/\
XY But should A has property of his own, X and Y will not inherit
by representation but will inherit in their own right.
From whom did representatives, X and Y inherit? From D or There in is no more representation.
from A whom they represent?
From D. But since we are talking in relation to D, the grandparent,
then X and Y are representatives.
Representatives do not inherit from the person represented, There are 2 kinds of succeeding:
but the from the one whom they represented would have 1. IN YOUR OWN RIGHT
succeeded. -if you derive your right out of your own
2. BY REPRESENTATION
IOW X and Y inherits from A. -they are called upon by law to reopresent
What are the ways representation can come into play? 970- definition
Predeceased 971- from whom
Incapacitated
Disinheritance
Repudiation ART 972
The right of representation
--takes place in the direct descending line,
Basta by representation. Without prejudice to what they can but never in the ascending.
inherit from separate property of A. you can inherit in your
In the collateral line, it
own right. --takes place only in favor of the children of brothers or sisters,
whether they be of the full or half blood. (925)
If A does not have representative, where will 60 go?
When representation is proper? When representation is
SITUATION: permitted?
D Direct descending line.
/ \ Representation is unlimited
A____W B
SITUATION:
1. If A has SS? D
Then it will go to W. /
W will get the entire share. A
/ \
2. If A has other ascendants other than D who died? X Y
Then the ascendants. |
Mother will get ½ F
Surviving spouse gets ¼
Yu must be familiar with direct descending.
In order: If A and X died, F can represent.
Legitimate children or descendant Because representation in direct descending is unlimited.
Legitimate parents or ascendants
Grounds in 919 are strictly construed because that is a Stirpes is made in such a manner that the representatives will
derogation of the natural right to inherit. not inherit more than what the person would have received.
3. If B R S W predeceased SITUATION:
X= 17k D
Y= 17k |
Z= 17k A
K= 17k |
L= 17k C (RENOUNCER)
M=17k |
N= 17k W
But if they alone will survive, they will inherit in equal 1. If C predeceased, may W represent C?
shares. No. he who repudiated the shares cannot be represented.
They will inherit in their own right and not anymore in W cannot represent A as to the estate of A.
representation
A renouncer can represent but cannot be represented.
Basta kay renouncer and imong amahan, din a jud ka But if accretion is it applicable, legal succession will take
makarepresent to whomsoever. place.
A RENOUNCER CAN REPRESENT BUT CANNOT BE In legal or intestate succession, there is no instituted heir, nor
REPRESENTED substitute. There fore, what is left is representation. Then
look if accretion applies. If not apply accretion, then
Because there is no representation, there is such thing as intestacy follows.
accretion.
Substitution is preferred over representation because it is
ART 1015 ACCRETION derived from the express will of the testator.
Accretion
is a right by virtue of which,
when two or more persons As for C, thereis no accretion because he is the only child. So,
are called to the same inheritance, devise or legacy, intestate succession follows. Relative of A or D as the case
the part assigned to the one who renounces or cannot receive his share, or may be. Nearer relatives excludes the further.
who died before the testator,
is added or incorporated
to that of his co-heirs, co-devisees, or co-legatees. (n) Accretion applies to both testate and intestate succession.
That is why the heading is – provisions common to testate
So giipon ang gi renounce and it will be given to your co-heir and intestate succession.
Accretion is when the part of the estate renounced, or cannot But in testamentary, there are two portions, the part of the
receive or predeceased is added or incorporated to that of legitime and the part of free portion. THERE WILL BE NO
the co-heirs. ACCRETION ON THE PART OF THE LEGITIME.
The share of the co-heirs will increase because you share is
added to theirs. No accretion with respect to legitime.
Basis: 1021 2nd sentence
Ex. parents died with three children. Children are co-heirs.
Co-heirs are co-owners. ART 1021
Among the compulsory heirs
If the estate is 300k, they should have 100k each. the right of accretion
But 1 died, and 2 are surviving. Therefore, they get 150k shall take place only when the free portion is left to two or more of them, or
each. to any one of them and to a stranger.
Why? Should the part repudiated be the legitime,
Because the share appertaining to the deceased is added or the other co-heirs
incorporated to his co-heirs. shall succeed to it in their own right, and not by the right of accretion. (985)
Plus, it has the same condition. They must be survived with The reservoir can announce o the whole world that he is the
another uncle or aunt. owner. But then when he should have died, your heirs will
If they alone will survive, they will inherit in their own right not be the owners. It will go to the reserves, should here be
and not by representation. And they will be receiving per any at the time of your death. If there are reserves, then by
capita and not per stirpes. operation of law, it should be given back to them.
1.32.37 08-03-10
RESERVA TRONCAL
It is called as such because it operates above and over the What must the transfer be from the origin to propusitus?
legitime. It has a different application, ot disregards the It must be gratuitous
rules of legitime. Ex. Donation, Succession
Before the death of P, P has equal right to encumber or If F predeceased, what will happen?
perhaps dispose the property. No reserva troncal to talk about.
SITUATION: SITUATION:
D WXY are IC
| D
A / | | \
A= 120k 100% W Y X A
Ratio (not followed) legitime
SITUATION: A= 60k 2 ½
D W=20k 1 ½ /3
/\ Y= 20k 1 ½ /3
AB X= 20k 1 ½ /3
A= 60k 100%/2
B= 60k 100%/2 Not use ratio of 5 because A should receive legitime.
A and B will inherit in their own right. ART 892 COMBINING OF TWO COMPULSORY HEIRS
If only one legitimate child or descendant of the deceased survives,
the widow or widower
If this were testamentary, --shall be entitled to one-fourth of the hereditary estate.
Legitime Legal Total
In case of a legal separation,
A= 30k 30k 60k the surviving spouse
B= 30k 30k 60k --may inherit if it was the deceased who had given cause for the same.
What is transmitted?
The right given or granted to illegitimate under the
preceding article 901 which is given to the descendant
whether legitimate or illegitimate.
Who are the concurrent legal heirs here? nor shall such children or relatives
Ascendants and IC --inherit in the same manner from the illegitimate child. (943a)
What about X?
You connect that to 992. An illegitimate child like X has no
right to inherit from the legitimate children or relatives of
his father. He is barred from representing.
Because when you represent, you will inherit from T. T is a
legitimate relative of C.
Estate of A is 1m.
And namatay ang illegitimate.
X can never inherit from the estate of A.
SITUATION:
An IC cannot inherit from the LC of the parent.
X is IC
IC is barred because of 992.
F M
\/
SITUATION:
X
X is IC
D___B____R____S
1. If X died
|
F= 60k ½
X
M= 60k ½
B= 60k ½
Remember: kutob rana kang F and C. No representation.
R= 60k ½
For IC, only parents can inherit. No ascendants.
X= 0
Not like for LC – parents or ascendants.
Nephews and nieces can represent.
2. If F and C also died
Except if s/he is IC th
Go to relatives to the 5 degree and other legal heirs.
If you are an IC, all persons legitimately related from your
This is by inference because you do not find brothers and
father or mother; those are the persons whom you cannot
sisters in the provision.
inherit.
Only 993 and 994 are devoted for IC.
He who wants to claim from an illegitimate must establish his
ART 994
In default of the father or mother,
relation.
an illegitimate child
--shall be succeeded by his or her surviving spouse Finally, if there are no relatives, the state will inherit.
who shall be entitled to the entire estate.
But the state is lenient. You are given 5 years from the time of
If the widow or widower death to establish filiations.
should survive with brothers and sisters, nephews and nieces,
she or he
--shall inherit one-half of the estate, and
Remember that there are no illegitimate grand parents
the latter recognized by law.
-- the other half. (945a)
SITUATION:
X Y are IC
C
/ | \
X Y Z
Can IC X inherit from an IC Y?
Yes. By inference.
SITUATION: B_____H_____W
X________W /|\
XAC
W= 120k 100%
XAC are full blood siblings.
This is the same with testamentary. But in relation to A and C, X is illegitimate.
The only difference is the share.
In legal or intestate, there is no prohibition or reduction on 1. If C died
mortis causa. When C died, only A will inherit. Because X id an IC.
X is barred by 992.
ART 995
In the absence of legitimate descendants and ascendants, and 2. If X was subsequently adopted
illegitimate children and their descendants,
whether legitimate or illegitimate, Only A will inherit.
the surviving spouse C has no juridical relation with X.
--shall inherit the entire estate, The improvement of the status of the adopted illegitimate
without prejudice to the rights of brothers and sisters,
nephews and nieces, child is that he will enjoy all the rights of the legitimate with
should there be any, respect to B and H. but not to C.
under article 1001. (946a)
SITUATION:
D____W
|
C
W= 60 100%/2
C= 60 100%/2
ART 998 If the heirs left are ascendants, illegitimate children and
If a widow or widower
survives with illegitimate children,
surviving spouse;
such widow or widower In testamentary, the shares would be ½, ¼, 1/8.
--shall be entitled to one-half of the inheritance, and Reason: so that there is something left for the testator to
the illegitimate children or their descendants,
dispose
whether legitimate or illegitimate,
-- to the other half. (n) In intestate succession, legal share is now ¼, at par with the
illegitimate children.
The concurrent legal heirs are illegitimate children and
surviving spouse.
IN TESTAMENTARY; ART 1001
SITUATION: If legitimate ascendants,
X is IC the surviving spouse, and are left,
illegitimate children
T______W
| the ascendants
X --shall be entitled to one-half of the inheritance, and
the other half
W= 40k 1/3 --shall be divided between the surviving spouse and
X= 40k 1/3 the illegitimate children
so that such widow or widower
--shall have one-fourth of the estate, and the illegitimate children the other
IN INTESTATE; fourth. (841a)
SITUATION:
X is IC You read this connection in 995. In 995, if only surviving
D______W spouse is present, all will be given to her. But without
| prejudice to the brothers and sisters and nephews and
X nieces.
W= 60k 1/2 They will concur with surviving spouse. ½ for SS and ½ for4 BS
X= 60k 1/2 regardless of their number.
The other half is not subject to representation. Therefore A will receive his legitime and 15k from free
Because a voluntary heir transmits no right. portion. The 15k pertaining to B who predeceases will now
Therefore representation refers only on the legitime. be given to A by right of accretion. Also the 15k of B and D
each will also be given to A by accretion.
KLMNOP will inherit by representation. In the representation
of the intestate, all that the person represented would have KLMNOP will not get the free portion because they are not
received are given. co-heirs. They are representatives.
But in testate succession, only the legitime is subject to Representation is not allowed. So the parts left will be given
representation. to the co-heirs. Reference is on 1015. Co-heirs are the other
There is no representation on the free portion. They are legal heirs.
receiving it as a voluntary heir. And a voluntary heir who
dies before the testator or is incapacitated transmits nothing The children are not co-heirs but mere representatives. They
to their heirs. will not receive by way of accretion.
ART 1005 D and E are half blood siblings of ABC because they have
Should brothers and sisters
survive together with nephews and nieces, same father but different mothers.
who are the children of the descendant's brothers and sisters of the full
blood, PURO LEGITIMATE! Remember that.Legitimate half blood
the former shall inherit per capita, and
the latter per stirpes. (948)
2. If E died
In legal succession, there is representation in the collateral Ratio
line. That is the nephews and the nieces of the decedent. D= 48k 2
A= 24k 1
SITUATION: B= 24k 1
S predeceases C= 24k 1
D_____B_______R_______S
/|\
KLM SITUATION:
B= 40k 100%/3 B_____H______W
R= 40k 100%/3 /\ /|\
K= 13k 100%/3/3 D E ABC
L= 13k 100%/3/3 D and E are IC
M= 13k 100%/3/3 B is the other woman
If H will marry B after W died, will there be legitimation?
B R will inherit in their own right, per capita No. because at the time they were conceived, there was a
K L M will inherit by right of representation. Division is per legal impediment to marry.
stirpes.
Per stirpes, it means that in its totality, in no case shall it D E cannot inherit from ABC.
exceed what otherwise the person represented should have
received.
SITUATION:
A___B H__W B__W
/\ /|\ >>> /\
D E ABC Z Y
Z died
Ratio
D= 17k 1
E= 17k 1
A= 17k 1
B= 17k 1
C= 17k 1
Y= 34k 2
Y will get double the share because he is a legitimate full
blood sibling.
The basis for accretion is the presumed will of the testator, 4. ACCEPTANCE OF VACANT PORTION BY THE HEIRS
-accretion is not an obligation but a right. Therefore, you can
that he intended to give to the other heirs.
refuse.
-accretion is based on presumed will. So di ka makabuot og
Because that is based on the presumed will only, that can be
defeated by the express will of the testator. di mudawat.
-true that this is a right. But a right can be waived.
But let us first understand when is there accretion. -this happens in testamentary succession, but in intestate,
Let’s look at first the requirements. 1016 what happens?
Ex. D died intestate survived by XYZW
How much will each receive from 10m?
It testamentary succession. What are the requisites of
2.5m per person.
succession:
1. plurality of heirs
2. unity of object If one predeceased, simply divide it by three.
3. existence of vacant portion Each of them will get 3.333m.
4. acceptance of vacant portion by heirs If X predeceased, he will no longer receive anything. He
does not have personality. Before you can succeed, the
requirement is that you are at least conceived or living.
1. PLURALITY OF HEIRS
As effect of his death, there is no more free portion.
-2 or more persons are called for the same inheritance
Therefore, in INTESTAE SUCCESSION, THERE IS NO
-they are in the state of co-ownership (undivided share and
right is owned by a number of persons) ACCRETION.
-ex:
a. they buy 1 building. 5 persons are involved. 1/5 is the ART 1018
In legal succession the share
aliquot part of the person who repudiates the inheritance
b. co-heirs are co-owners --shall always accrue to his co-heirs. (981)
c. hunting baboy hass So mangutana ka, repudiate re diay, what if
-because first, before accretion will apply, the heirs are in predeceased?
state of co-ownership, they are actually co-owners of a Precisely, in repudiation, share shall go to co-heirs. So
certain object. accretion takes place in legal succession only if there is
-spiritual share repudiation.
Ngano man diay og predecease?
Walay vacant portion.
But is repudiation gani, sigurado jud na accretion jud and So there are two instances when there is no accretion:
mahitabo kay wa may representation. 1. If the testator will say that there is no accretion
2. If the share given is properly earmarked or individualized
or particularized
When is there no accretion? If they are earmarked, what is given to them in not co-owed.
When the share appertaining to the co-heirs is already They are the heirs of the individual properties assigned to
earmarked or particularized or specifically determined. them. No co-ownership will take place. No accretion will
take place because accretion is predicated to the fact that
Ex. there is co-ownership (undivided share/pro-
ABCD are instituted heirs, D deposited 10m in 4 banks: indiviso/unpartitioned).
China bank 3m to A
PBN 2m to B When is there no longer co-ownership?
Metrobank 4m to C The moment you partition the property, there is no more
BDO 1m to D co-ownership because then you will become the exclusive
A predeceased. owner of the part assigned to you.
Accretion is not applicable because there is earmarking or
particularization. What if fractional shares are given, is there a chance that
accretion will take place?
So if there is earmarking, accretion will not apply. Ex. the testator says: I’ll give ½, ¼, 1/8? Will there be
3m will now be free portion. accretion?
Since there is no accretion applicable, the 3m will go to Yes. You are only given the quantity but you do not know
intestate succession. (ISRAI) which in particular is yours. There can be accretion.
If you say the amount in the right drawer will go to A and left In legitime, no accretion is applicable. But on free portion,
drawer will go to B, walay accretion mahitable ana. Kay accretion is applicable.
earmarked naman daan. The co-heir of A is B. B will receive the free portion of 500k
broken down as follows: 250 by institution and 250 by
ART 1019 accretion.
The heirs to whom the portion goes
by the right of accretion What if we change the situation:
--take it in the same proportion that they inherit. (n)
If the instituted heirs are ABC. C is a stranger.
Compulsory heir Voluntary heir
A 250k 166.66
ART 1021
Among the compulsory heirs the right of accretion B 250k 166.66
shall take place only when the free portion is left to two or more of them, or
to any one of them and to a stranger. C 166.66
Should the part repudiated be the legitime,
the other co-heirs
shall succeed to it in their own right, and By institution 83.33 By accretion
not by the right of accretion. (985)
C will not receive as a compulsory heir.
Art 1021 pertains to testamentary succession The 166.66 of A, will go to co-heirs, B and C. They will receive
83.333 each.
SITUATION:
T
ART 1022
/\ In testamentary succession,
AB when the right of accretion does not take place,
Testator has 2 children. the vacant portion of the instituted heirs,
if no substitute has been designated,
In his will, he stated: Free portion (500k) is given to A and B shall pass to the legal heirs of the testator,
Estate is 1m. who shall receive it with the same charges and obligations. (986)
ART 1025 Art 1027 no 6 is misplaced. It does not fall with relatives. It is
In order to be capacitated to inherit, in relation to absolute incapacity.
the heir, devisee or legatee (6) Individuals, associations and corporations not permitted by law to
--must be living at the moment the succession opens, inherit.
except in case of representation, when it is proper.
The result of this is absolute incapacity because the law
A child already conceived at the time of the death of the decedent creating you does not allow you to inherit.
--is capable of succeeding provided it be born later
under the conditions prescribed in article 41. (n)
Who can inherit?
Must be a person, natural or juridical.
1. LIVING OR CONCEIVED
But if the law creating the juridical person does not allow it
So the heir must living or at least be conceived at the time
to inherit, it cannot.
the succession opens.
Living means you are alive.
RELATIVE INCAPACITY
-You are not permitted to inherit from a certain person by
ART 41 FC
For civil purposes, the fetus is considered born if it is alive at the time it is reason of your relation. You may not inherit from a certain
completely delivered from the mother's womb. However, if the fetus had an person, but from other persons, you are capacitated.
intra-uterine life of less than seven months, it is not deemed born if it dies -It is in case to case basis.
within twenty-four hours after its complete delivery from the maternal
womb. -example: guardian
Confessor
You may also be conceived already. Because in ART 41 – you
are considered living for those whose purpose is favorable Undue influence is the reason behind 1027.
to it. 1027 and 1028 applies only to testamentary succession that
Or if there was premature delivery of 7 months, the baby does not apply to the legitime. It applies only to the free
must be living for at least 24 hours in order to acquire portion.
juridical personality. 1032 applies both to testate and intestate
Actually what determines personality is birth.
When you are dead, you no longer have personality. BY REASON UNDUE INFLUENCE
ART 1027
The following are incapable of succeeding:
2. NOT INCAPACITATED OR DISQUALIFIED BY LAW (1) The priest who heard the confession of the testator during his last illness,
Second one is that the person must not be incapacitated by or the minister of the gospel who extended spiritual aid to him during
law. the same period;
(2) The relatives of such priest or minister of the gospel within the fourth
This means you are not disqualified by law to inherit. degree, the church, order, chapter, community, organization, or
Soon enough we will know who are incapacitated. institution to which such priest or minister may belong;
(3) A guardian with respect to testamentary dispositions given by a ward in
his favor before the final accounts of the guardianship have been
-KIND OF INCAPACITY approved, even if the testator should die after the approval thereof;
1. absolute nevertheless, any provision made by the ward in favor of the guardian
2. relative when the latter is his ascendant, descendant, brother, sister, or spouse,
shall be valid;
a. by reason of undue influence 1027 -5 (4) Any attesting witness to the execution of a will, the spouse, parents, or
b. by reason of public policy 1028 -3 children, or any one claiming under such witness, spouse, parents, or
c. by reason of unworthiness 1032 -8 children;
(5) Any physician, surgeon, nurse, health officer or druggist who took care
d. by operation of law of the testator during his last illness;
(6) Individuals, associations and corporations not permitted by law to
inherit. (745, 752, 753, 754a)
(2) The relatives of such priest or minister of the gospel within the fourth (6) Individuals, associations and corporations not permitted by law to
degree, the church, order, chapter, community, organization, or institution to inherit.
which such priest or minister may belong; NOT PERMITTED BY LAW TO INHERIT
This covers relative of priest within the fourth degree, or Absolute incapacity because the law creating prohibits from
group where the priest is a member. They are barred from inheriting. This is not relative incapacity.
inheriting.
So murag nangmung ra ang pari. Wa jud tay sala. And sala Therefore, from any person, for whatever nature of property,
nato kay relative nato ang pari? you cannot inherit.
I have noticed that some of the grounds of unworthiness are The acceptance
shall benefit the creditors
also the grounds of disinheritance. How do we resolve only to an extent sufficient to cover the amount of their credits.
these?
If it is disinherited by will, it shall be governed by the law of The excess, should there be any,
shall in no case pertain to the renouncer,
disinheritance. So how do you cure it? Reconciliation only. but shall be adjudicated to the persons to whom,
If you will does not disinherit, the law will disinherit that in accordance with the rules established in this Code, it may belong. (1001)
unworthy heir for you. So how do you cure it? With 1032.
Pardon should be in writing. Is a creditor an interested party?
No. Wala siyay labot sa estate itself.
Consent means to approve before the act is done.
Condonation means to approve after the act was done. If the heir has big debt, and he would renounce his
Condone or pardon is the same. inheritance to avoid payment of the creditor, what should
the creditor do?
But forgiveness under 33 is in writing, unless if there is The creditor may petition before the court that he be
implied condonation. allowed to accept the inheritance in the name of the heir
If there was already a will then the condonation needs to be that he may be permitted to accept it in behalf of the heir.
in writing.
Why?
Conclusion, it all depends on testator to avail of The act of renunciation is prejudicial to the creditor. This is
disinheritance or to leave it to the law. To restore rights for protection to creditor.
depends on how heir was not allowed to inherit.
You are at the mercy of the repudiating heir. Magpaabot ka if
ART 1040 dawaton nalang niya o dili.
The action for a declaration of incapacity and Your acceptance will retroact top the death of the testator.
for the recovery of the inheritance, devise or legacy
shall be brought within five years
from the time the disqualified person took possession thereof. Coverage on the exam:
Legal or intestate 960-before accretion 1015
It may be brought by any one who may have an interest in the succession.
(762a)
It shall be governed by disinheritance if you disinherit him. The child may be unworthy but his siblings may still allow him
to receive properties. Blood is thicker than water. This does
But if you were not able to disinherit him, the law will effect not qualify as a donation. It’s just that they will allow the
the disinheritance for him. Practically, you can call this legal cause for unworthiness to pass. You did not avail of the
disinheritance because you cannot receive any. ground to make him unworthy.
Just because he is unworthy, is that automatic? He will inherit on his own right, if at all the other siblings are
No. passive about his unworthiness because there is no person
You are to bring an action before the court. questioning his capacity to inherit. Therefore, he stands
capacitated. Wala may nag question. The presumption is you
What is the name of the action? are capacitated; it needs to be proved before the court. As if
Action for declaration of incapacity and recovery of there is no ground for incapacity
inheritance/legacy/devise.
ART 1040
So there is a chance that before deliberation of the court, The action for a declaration of incapacity and
for the recovery of the inheritance, devise or legacy
there will be a declaration of exclusion. Meaning, you will be shall be brought within five years
excluded from receiving the inheritance. from the time the disqualified person took possession thereof.
It may be brought by any one who may have an interest in the succession.
But before the deliberation, there is a chance that the (762a)
incapacitated heir will obtain possession of the share
appertaining to him because there is yet no judicial What time to file the action?
declaration of exclusion. Within 5 years from the time the incapacitated heir took
possession of the property, actually or constructively.
If the unworthy heir took possession of the property and sold
it to the buyer in good faith, what is the status of the If there is failure to file an action, that would mean, you lose
transaction? What can the co heirs do. your right forever. You can no longer question and that
This is entered into by an unworthy heir if he took unworthy heir can inherit just the same.
possession and sold it before there had been deliberation
and later on the court issued a judicial declaration of
exclusion. If the unworthy heir is also a compulsory heir, he cannot
In effect, co heirs are denied of what they are entitled. receive anything including the legitime, however his children
can represent him on the portion of the legitime. The free
What is your liability? portion cannot be represented.
You are liable for damages to your co-heirs. What they
cannot receive materially, that is converted to monetary Remember that there can be representation if:
equal to the value of the property received and alienated. Predecease
Incapacity
You cannot take it back from the purchaser. Disinheritance
Why not?
Remember that the purchaser is a purchaser in good faith
and for value.
PRINCIPLE:
In testamentary succession, only the legitime can be
susceptible to representation.
In legal or intestate succession, the entire legal share can be
the object to representation.
CONCLUSION:
Mas dako and imong marepresent kung ngara ka sa intestacy.
Art 1044 2nd par. The third one is in 1057, presumed acceptance.
This answers who can repudiate If you do not say or do anything, within 30 days, you are
Parents pr guardians can accept deemed to have accepted the inheritance.
But in repudiation, there should be approval from the court.
There cannot be unilateral act by parent or guardian. It falls So the classification is
to prejudice the heir. Expres
Implied
Therefore persons under guardianship, in acceptance, the Presumed
guardian and parents can unilaterally act but in repudiation,
there should be judicial approval. What are the acts that would show acceptance
What if A repudiates share as a legal heir? This does not apply to intestate succession
What happens to the share given to him as a volunatary heir? D
The law says that he can receive the 20k if he does not know /\
hat he is also an instituted heir. AB
‘MAY’ still accept. Therefore that is directory. He can also It does not mention of voluntary heirs.
reject. So there is a chance that he will respect the You will only think of legitime as a guide to make sure that he
generosity of his father. will receive less than the legitime
CONDITION: at the time he repudiated his legal heir, he must
not have knowledge that he inctituted as a volunatary heir. What if you will state clearly that you will only recounce the
share as voluntary heir but not legal heir?
Therefore, if he already knew, his repudiation as a legal heir That may not happen. If you want, just receive them all and
carries with it the repudiation as a voluntary heir. give it to your neighbors.
So, it is a case to case basis., look at the state of mind of the 1056
repudiating heir. It depends now if he knows that he is an When you accept or repudiate, that is irrevocable.
instituted heir. Why?
To maintain stability.
In 55, it aly talks about legal heir and voluntary heir.
So let’s to insert the legitime If the decision is vitiated.
The effect is that it will be revocalbel
Compulsory voluntary legal total
A 30 20 15 65 Another instance is if unknown will appears.
B 30 10 15 55
1061
Every compulsory heir, who succeeds with other compulsory heirs, must Debts paid by your parents are also collated because these
bring into the mass of the estate any property or right which he may have are part of legitime
received from the decedent, during the lifetime of the latter, by way of Election expense. If you run for office, these are also advance
donation, or any other gratuitous title, in order that it may be computed in
the determination of the legitime of each heir, and in the account of the legitime
partition. (1035a) Fines and expenses are also advance legitime
Collation If father pays for the land and the buyer’s name in the
document is in the child’s name. that is part of the legitime.
Let’s have installment on every phrase The payment for the renovation or fixing of your house is also
advance legitime.
Estate of testator is worth 60k
During his lifetime, he dame a donation intervivos valued at The basis: all, not just donation, that you have received by
20k in favor of Y, one of his legitimate children. gratuitos title shall be computed and form part of legitime.
At the time of his death, he is survived by Y and X his
legitimate children. Tuition fee is coolatable because that is a natural right of
T gave a legacy to F 10 parent.
Distribute There is no character of donation.
T That is included in their obligation to give support.
/\ Pusuing higher copuse is not a barrier. Because it is more of a
YX moral and natural obligation of parents who are obligated to
give support.
Legitime Volunatry legal total Lodging after you have graduated is collationable. That is no
Y (20k) 15k longer their obligation.
X 20k 15k There is a list on what is collationable and what is not
F 10k
1067
Estate 60 Expenses for support, education, medical attendance, even in extraordinary
illness, apprenticeship, ordinary equipment, or customary gifts are not subject
Donation inter vivos 20 to collation. (1041)
Consistent with 61, those that have been received during It increases you patrimony and decreases the property of the
lifetime is to be brought with the distributable estate. father. That is collationable.
Their legitime would be 20k each
There is fee portion of 40k One of the children is the done. For puposes of collation,
After the legacy, 30k is left to be divided by what is the value entered into? Value at the time of death or
60 is available for distribution. value of the time of donation?
Donation inter vivos is advance legitime. Value at the time of donation
Because donation inter vivos or any transfer by gratuitous Subsequent increase in price is for the benefit of the done.
title is advance legitime.
So anything that you have received gratuitously is part of Like estate tax, the bases is the value at the time of death and
your legitime, and it is called advance legitime not the value at the time of payment (even if after 20 years)
We will discuss again collation These below don’t have any article but have the same nature
In 1061, the most familiar transaction is donation which you REMISSION OF DEBT OF THE HEIR
have received during his lifetime. You owe your father but he condoned the obligation
Donation indirect amount paid to satisfy the debt of an heir The debtor accepted. That will extinguish the obligation
election expenses because that is one mode of extinguishing the obligation.
fines and other similar expenses If you paid you would have been poorer by 100m
remission of debt of an heir That is again indirect donation. It will be treated as advance
repairs and improvements of tenements
legitime. Collated.
purchase of an immovable in the name of the heir
wedding gift in excess of 10% of the free disposable
portion REPAIRS AND IMPROVEMENTS OF TENEMENTS
You have your house repaired or extended. Your parents paid
direct or ordinary for 1m. They did not ask for reimbursement.
Your parents advanced the expenses. That is collatable
There are two kinds of donation: because that is advance legitime.
1. direct donation
These are the donations contemplated in 725 PURCHASE OF IMMOVABLE IN YOUR OWN NAME
Purchase of immovable and registered in the name of an heir
2. indirect donation Your father brought a property and it is registered under your
These are – by other gratuitously. name. You are richer by the value of the property
These are not direct donations because it did not follow That amount should be collated.
the forms of donation. But you are receiving it
gratuitously. WEDDING GIFT IN EXCESS OF 10% OF FREE DISPOSABLE
PORTION
YOUR PARENT PAID FOR YOUR DEBT Wedding gift in excess of 10% of the free disposable portion
That is indirect donation. The amount so paid that was not When you get married, you are given gifts. Only in excess of
reimbursed for. 10% of free portion is collated.
It does not follow the form of donation
Under 748 and 749. So it’s like donation. So these are the indirect provisions
Because the law says ‘any other gratuitous title’
Why is it like that?
Because we are going to collate this.
Is collation applicable only to the compulsory heir?
ELECTION EXPENSES No.
That is collated because that is advance legitime If you are a compulsory heir, donations intervivos will be
You were given 100k charged to the legitime. If you are a stranger, that will
charged to the free portion.
EXAMPLE:
Father gave donation of 1m to his favorite son
When he died the estate is already worth 100k, 50k per piece.
But if you total A =50k but B gets 50k plus 1m
That is why we devise a way in order that the determination
of legitime is equal
That is the reason why we collate to determine the
calculation of legitime.
ART 1069
Any sums paid by a parent in satisfaction of the debts of his children, election
expenses, fines, and similar expenses shall be brought to collation. (1043a)
WEDDING GIFT
ART 1070
Wedding gifts by parents and ascendants consisting of jewelry, clothing, and
outfit, shall not be reduced as inofficious except insofar as they may exceed
one-tenth of the sum which is disposable by will. (1044)
Estate 200k
Wedding gift 40k
Net dist estate 240k
Legitime 120k
FDP 120k
10% of FDP 12k
Excess of 10% 40-12= 28k
ACTUAL DISTRIBUTION
Legitime FDP (120-12) Total
A 12k (40-28) 36k 48k
B 40k 36k 76k
C 40k 36k 76k
Total 92k 108k 200k
If you are A, are you going to collate those that were received
by him during his lifetime.
The property given by the grandfather to grandchild will not
be collated. Reason: because the child is not the recipient of
the donation.
X is a stranger with respect to being the compulsory heir of D.
So if the donation to X impairs the legitime, then the
donation may be reduced or revoked
You can also charge the legatees. Ex. A, the legatee give you What if gidalidali ka? 2 ka tao gitagaan. What will you do?
100k but he is charged to give B, the sublegatee 50k. You are joint legatees.
a. gratuitously
What is the effect?
Legatee or devisee acquires nothing.
He cannot ask for the just value because he got is back
gratuitously.
b. onerously
What is the effect?
Entitled to reimbursement equivalent to the value of the
thing in exchange of the object. Meaning reimburse for
the expenses at the time of the reacquisition. Or the
value of the thing in case of barter.
ART 950
Remunerative
Preferred 200k
Support 100k
300k
And that’s all it can accommodate.
Partition44.50
The parents died, leaving 1 hectare and 5 children Oct 6
They are all co-heirs. 2 or more co owner
But their relation to the land, they are co-owners Before partition
But what is the meaning? Buyer must be a tranger
What is partition Within 30 days from notice
Sepatration or division of af a thing held in common
1079 The buyer, in the law of sale, the expenses in connection to
the sale is chargeable to the seller unless expressly
Can you sell your hereditotary right pending partition? Yes stipulated
Before it is distributed, it is called proportionte, spirituatl,
abstract, metaphysical,
You ownin common
The right of redemption 8min
The reason why there is redemption is because the law frown So we hire a geodetic engineer/surveyor in order to partition.
on co-ownership. It is a source of conflict. They put a common road right of way
It must do that within 30 days from notice of writing 1085 equality must be observed no matter th epartition
How? You tender payent to the buyer
So that the share bought by one of the siblings will be yours. What is the effect of partition
1091
1092
Warranty against eviction