Beruflich Dokumente
Kultur Dokumente
1. 2.
Notarial an ordinary or attested will (Articles 804-808, CC) Holographic a handwritten will (Art. 810, CC)
KINDS OF SUCCESSION
1.
Testamentary that which results from the designation of an heir, made in a will executed in the form prescribed by law. (Art. 779, CC) Legal or Intestate that which takes place by operation of law in the absence of a valid will. Mixed that which is effected partly by will and partly by operation of law. (Art. 780, CC)
2. 3.
1. 2. 3.
In writing (Art. 804, CC) In a language or dialect known to the testator (Art. 804, CC) Subscribed at the end by the testator himself or by the testators name written by some other person in his presence, and by his express direction (Art. 805, CC) Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another (Art. 805, CC) *Test of Presence: Not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. (Jaboneta vs. Gustilo, 5 Phil. 541) Each and every page, except the last, must be signed by the testator or by the person requested by him to write his name, and by the instrumental witnesses of the will, on the left margin. (Art. 805, CC) *Exceptions: a. not needed in the last page if the will consists of two or more pages b. when the will consists of only one page c. when the will consists of only two pages, the first of which contains all dispositions and is signed at the bottom by the testator and the witnesses, and the second page contains only the attestation clause duly signed at the bottom by the witnesses. *Note: The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. (Icasiano vs. Icasiano, 11 SCRA 422)
KINDS OF HEIRS
4.
1.
Compulsory those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance. They succeed regardless of a will. Voluntary or Testamentary those who are instituted by the testator in his will, to succeed to the portion of the inheritance of which the testator can freely dispose. They succeed by reason of a will. Legal or Intestate those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will. They succeed in the absence of a valid will.
2.
5.
3.
I. TESTAMENTARY SUCCESSION
A. CONCEPT DEFINITION OF WILL (Art. 783, CC)
It is an act whereby a person is permitted with the formalities prescribed by law to control to a certain degree the disposition of his estate to take effect after his death
1. 2. 3.
All persons who are not expressly prohibited by law (Art. 796, CC) Eighteen (18) years old and above (Art. 797, CC)
6.
Of sound mind at the time of the execution of the will (Art. 798, CC) *Supervening capacity or incapacity does not affect the will.
Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page. (Art. 805, CC) example, page one of five pages It must contain an attestation clause, stating the following (Art. 805, CC)
7.
a. The number of pages used upon which the will is written. b. The fact that the testator signed the will and every page, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses. c. All the instrumental witnesses witnessed and signed the will and all the pages in the presence of the testator and of one another.
8.
It must be acknowledged before a notary public by the testator and the witnesses. (Art. 806, CC) * Note: The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Articles 805 and 806. (Cruz vs. Villasor, 54 SCRA 31)
After the execution of the will, with the consent of the testator After the execution of the will, validated by the testator by his signature
ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BE DEAF OR A DEAF-MUTE (Art. 807, CC)
1. 2.
Testator must personally read the will, if able to do so. Otherwise, testator shall designate two persons to read the will and communicate its contents to him in some practicable manner.
The will shall be read to the testator twice 1. Once by one of the subscribing witnesses 2. Once by the notary public before whom the will is acknowledged
ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BE BLIND (Art. 808, CC)
Void Void but it does not affect the validity of the other dispositions or the will itself
1. 2. 3.
In writing (Art. 804, CC) In a language or dialect known to the testator (Art. 804, CC) Entirely written, dated, and signed by the hand of the testator himself (Art. 810, CC)
Of sound mind Of the age of 18 years or more Not blind, deaf or dumb Able to read and write Domiciled in the Philippines Have not been convicted of falsification of a document, perjury or false testimony
AMENDING A WILL
1. 2.
Notarial only through a codicil Holographic a. Dispositions may be added below the signature, provided that said dispositions are also dated and signed, and everything is written by the hand of the testator himself b. Certain dispositions or additional matter may be suppressed or inserted provided that such is signed by the testator and written by the hand of the testator himself c. Through a codicil which may either be notarial or holographic
GOVERNING LAW
As to time Formal Validity Intrinsic Validity Governing Law Law in force at the time the will is made Law of decedents nationality at the time of his death (Art. 16, CC)
As to Place
Testator Filipino
Alien
Place of Execution of the Will Philippines (Art. 16, CC) Outside of the Philippines (Art. 815, CC) Philippines (Art. 817, CC)
1.
2. 1. 2.
1.
2.
3. 4.
Law of the country in which it is executed; or Philippine Law Philippine Law; or Law of the Country of which testator is a citizen or subject. Law of the place where the will is executed; or Law of the place where the testator resides; or Law of the testators country; or Philippine Law
The document or paper referred to in the will must be in existence at the time of the execution of the will. The will must clearly describe and identify the same, stating among other things the number of pages thereof. It must be identified by clear and satisfactory proof as the document or paper referred to therein. And It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.
AND
1. 2. 3. 4.
ASPECTS OF THE WILL GOVERNED BY THE NATIONAL LAW OF THE DECEDENT (Arts. 16 and 1039, CC)
Order of succession Capacity to succeed Amount of successional rights Intrinsic validity of testamentary provisions
A single testamentary instrument which contains the wills of two or more persons jointly executed by them either for their reciprocal benefit or for the benefit of a third person
JOINT WILL
*Note: It must be done any time before the death of the testator. The right of revocation cannot be waived or restricted. (Art. 828, CC)
Executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner each in consideration of the other separate wills of two persons which are reciprocal in their provisions
MUTUAL WILLS
RECIPROCAL WILLS
Testators name each other beneficiaries under similar testamentary plans as
Note: A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal and which shows on its face that the devises are made in consideration of the other. Such is prohibited under Art. 819, CC. Prohibition is applicable only to joint wills executed by Filipinos.
A revocation subject to a condition does not revoke a will unless and until the condition occurs. Thus, where a testator revokes a will with the proven intention that he would execute another will, his failure to validly make a latter will would permit the allowance of the earlier will. Where the act of destruction is connected with the making of another will so as to fairly raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remain in full force. (Molo vs. Molo, 90 Phil. 37)
PROBATE
1. 2. 3.
Equality heirs who are instituted without designation of shares shall inherit in equal parts. (Art. 846, CC) Individuality heirs collectively instituted are deemed individually named unless a contrary intent is proven. (Art. 847, CC) Simultaneity when the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. (Art. 849, CC)i
1. 2. 3. 4. 5. 6.
If the Formalities required by law have not been complied with. If the testator was Insane, or otherwise mentally incapable of making a will, at the time of its execution. If it was executed through Force or under duress, or the influence of fear, or threats. If it was procured by Undue and improper pressure and influence, on the part of the beneficiary or of some other person. If the Signature of procured by fraud. the testator was
General Rule: The statement of a false cause for the institution of an heir shall be considered as not written. Exception: If it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. In this case, the institution shall be annulled.
RULES REGARDING A PERSONS RIGHT TO DISPOSE OF HIS ESTATE (Art. 842, CC)
If the testator acted by Mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. *This list is exclusive.
1.
If testator has no compulsory heirs a. He can give his estate to any person having capacity to succeed. b. He must respect restriction imposed by special laws.
2.
If testator has compulsory heirs a. He can give the disposable portion to strangers. b. Legitimes of compulsory heirs must be respected.
KINDS OF INSTITUTIONS
1.
Simple or Pure the rights to the succession are transmitted from the moment of the death of the decedent. (Art. 777, CC) Conditional may be potestative, causal or mixed. (See Arts. 871 884) *Disposicion Captatoria disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person. This is void. (Art. 875, CC) With a Term designation of the day or time when the effects of the institution of an heir shall commence or cease. (Art. 885, CC) Modal institution where the testator states the following: (Art. 882, CC) a. the object of the institution; or b. the purpose of the application of the property left by the testator; or c. the charge imposed by the creator upon the heir. *Doctrine of Constructive Compliance When without the fault of the heir, the modal institution cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. (Art. 883, CC)
2.
1. 2. 3. 4.
There must be a total omission of one, some or all of the heir/s in the will. The omission must compulsory heir. be that of a
The compulsory heir omitted must be of the direct line. The omitted compulsory heir must be living at the time of the testators death or must at least have been conceived before the testators death.
3.
4.
Legal cause is present Even a compulsory heir may be totally excluded. If disinheritance is not lawfully made, the compulsory heir is restored to his legitime.
CLASSES OF SUBSITITUTION
1.
Vulgar or Simple the testator may designate one or more person/s to substitute the heir/s instituted in case such heir/s should: (Art. 859, CC)
a. b. c. 2. a.
should not wish to accept the inheritance (renounce) should be incapacitated to accept the inheritance (incapacitated) Brief or Compendious (Art. 860, CC) Brief - two or more persons designated by the testator to substitute for only one heir.
Compulsory
REPUDIATION Voluntary heir who repudiated cannot transmit any right to his own heirs. 3. Compulsory heir who repudiated cannot transmit any right to his own heirs.
b.
Compendious One person is designated to take the place of two or more heirs. Reciprocal If the heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution. (Art. 861, CC)
4.
Fideicommissary if the testator institutes an heir with an obligation to preserve and to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or the fiduciary heir, the one to receive the property is the fideicommissary or the second heir. (Art. 863, CC)
1.
RULES
a.
Rule of preference between lines - Those in the direct descending line shall exclude those in the direct ascending and collateral lines, and those in the direct ascending line shall, in turn, exclude those in the collateral line.
b. c.
Rule of proximity the relative nearest in degree excludes the farther one Right of representation ad infinitum in case of predecease, incapacity or disinheritance. For decedents who are legitimate children, only the legitimate descendants can represent. For decedents who are illegitimate children, both the legitimate and illegitimate descendants can represent. If all the legitimate children repudiate their legitime, the next generation of legitimate descendants succeed in their own right. Direct Ascending Line a. Rule of division by lines Rule of equal division the relatives who are in the same degree shall inherit in equal shares Non-impairment of legitime
2. 3. 4. 5.
d.
b.
3.
LEGITIMATE &
SURVIVING
SPOUSE
ILLEGIT
CHILD
1.
Primary those who have precedence over and exclude other compulsory heirs a. Legitimate children and legitimate descendants with respect to their legitimate parents and ascendants Secondary those who succeed only in the absence of the primary compulsory heirs a. Legitimate parents and legitimate ascendants with respect to their legitimate children and descendants b. Illegitimate parents with respect to their illegitimate children Concurring those who succeed together with the primary or the secondary compulsory heirs a. Widow or widower (legitimate) b. Illegitimate children and illegitimate descendants
DESCENDANTS
Legitimate children alone 1 legitimate child Surviving spouse Legitimate children Surviving spouse Legitimate children Illegitimate children 1 legitimate child Surviving spouse Illegitimate children 2 or more legitimate children Surviving spouse Illegitimate children Legitimate parents alone Legitimate parents Illegitimate children Legitimate parents Surviving spouse Legitimate parents Surviving spouse Illegitimate children Illegitimate children alone Illegitimate children Surviving spouse
2.
3.
COMPULSORY HEIRS
If the testator is a LEGITIMATE CHILD 1. Legitimate children and descendants 2. In default of no. 1, legitimate parents and ascendants 3. Surviving spouse 4. Illegitimate children and descendants If the testator is an ILLEGITIMATE CHILD 1. Legitimate children and descendants 2. Illegitimate children and descendants 3. In default of nos. 1-2, illegitimate parents only 4. Surviving spouse
1/8
1/3
1.
Illegitimate parents alone Illegitimate parents Surviving spouse Adopter Illegitimate child Surviving Spouse
2. 1/3
that the property was acquired by a descendant (prepositus) from an ascendant or from a brother or sister (source) by gratuitous title that the prepositus died without an issue that the property is inherited by another ascendant (reservista) by operation of law that there are relatives within the 3rd degree (reservatarios) belonging to the line from which said property came
3. 4.
STEPS IN DETERMINING (Source) THE LEGITIME OF COMPULSORY HEIRS A 1. Determine the gross value of the estate
at the time of the death of the testator.
E F
2. 3. 4. 5. 6.
Determine all debts and charges which are chargeable against the estate. Determine the net value of the estate by deducting all debts and charges C from the gross value of the estate. (Reservatario) Collate or add the value of all donations inter vivos to the net value of the estate. Determine the amount of the legitime from the total thus found. Impute the value of all donations inter vivos made to compulsory heirs against their legitime and of the value of all donations inter vivos made to strangers against the disposable free portion and restore it to the estate if the donation is inofficious. Distribute the residue of the estate in accordance with the will of the testator.
G (Reservista)
H
(Prepositus)
7.
1.
If the impairment is total, then there may be preterition if the compulsory heir omitted is either an ascendant or descendant. Art. 854, CC would come in to play, i.e., there will be an annulment of the institution of heirs and a reduction of devises and legacies. If the impairment is partial, then the compulsory heir is entitled to completion of legitime under Art. 906, CC. If the impairment is through donation, the remedy is collation.
It is the act by which the testator for just cause deprives a compulsory heir of his right to the legitime.
2. 3.
2. 3. 4. 5. 6. 7.
GROUNDS 1
FOR DISINHERITANCE
ASCENDAN
920
REQUISITES FOR RESERVA TRONCAL (Chua vs. CFI, 78 SCRA 406 and Gonzales vs. CFI, 104 SCRA 161)
Guilty/convicted of attempt against life of testator/spouse/ ascendant/descendant Accused testator/decedent of crime punishable by imprisonment of 6 years or more, found groundless,
4 5
6 7 8 9
10 11
12 13
14
15
false Causes testator/decedent to make will or change one by fraud, violence, intimidation, or undue influence Unjustified refusal to support testator Convicted of adultery or concubinage with spouse of testator/decedent Maltreatment of testator by word and deed Leading a dishonorable or disgraceful life Conviction of crime which carries penalty of civil interdiction Abandonment of children or inducing children to live corrupt and immoral life or attempted against virtue Loss of parental authority Attempt by one parent against life of the other UNLESS there is reconciliation between parents Spouses given cause for legal separation Failure to report violent death of decedent within one month, unless authorities have already taken action Force, violence, intimidation or undue influence to prevent another from making a will or revoking one already made or who supplants or alters the latters will Falsifies or forges a supposed will of the decedent
* * * * *
REVOCATION OF DISINHERITANCE
1. 2. 3. Reconciliation Subsequent institution of the disinherited heir Nullity of the will which contains the disinheritance
*Note: The moment the testator uses one of the acts of unworthiness as a cause for disinheritance, he thereby submits it to the rules on disinheritance. Thus, reconciliation renders the disinheritance ineffective.
1. Belonging to the testator at the time of the execution of the will until his death 2. Belonging to the testator at the time of the execution of the will but alienated in favor of a 3rd person 3. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee or devisee gratuitously 4. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee/devisee onerously 5. Not belonging to the testator at the time the will is executed but he has ordered that the thing be acquired in order that it be given to the legatee/devisee. 6. Not belonging to the testator at the time the will is executed and the testator erroneously believed that the thing pertained to him. 7. Not belonging to the testator at the time the will is executed but afterwards it becomes his by whatever title. 8. Already belonged to the legatee/devisee at the time of the execution of the will even though another person may have interest therein 9. Already belonged to the legatee/devisee at the time of the execution of the will even though it may have been subsequently alienated by him. 10. Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property gratuitously after the execution of the will. 11. Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property by onerous title.
Effective
Revoked
No revocation. There is a clear intention to comply with the legacy/devise. Legatee/devisee can demand reimbursement from the heirs or the estate. Effective
Void
Effective
Ineffective
Ineffective
4.
1. 2. 3. 4.
Legitime of compulsory heirs Donations Inter vivos Preferential legacies or devises All Other legacies or devises pro rata
1. 2. 3. 4. 5.
Remuneratory legacy/devise Preferential legacy/devise Legacy Support Legacy Education for for
Other causes: nullity of the will; noncompliance with suspensive conditions affecting the bequests; sale of the thing to pay the debts of the deceased during the settlement of his estate. *Note: List is not exclusive.
OR
INTESTATE
6.
Application:
1.
When the reduction is necessary to preserve the legitime of compulsory heirs from impairment whether there are donations inter vivos or not; or
All Others pro rata Application: 1. When there are no compulsory heirs and the entire estate is distributed by the testator as legacies or devises; or
1. 2. 3.
4.
Substitution (Art. 857, CC) Representation (Art. 970, CC) Accretion (Art. 1015, CC) Intestate Succession
2.
When, although, the legitime has been preserved by the testator himself there are donations inter vivos. *Art. 911 governs when there is a conflict between compulsory heirs and the devisees and legatees. *Note: In case of reduction, the inverse order of payment should be followed.
2.
When there are compulsory heirs but their legitime has already been provided for by the testator and there are no donations inter vivos. *Art. 950 governs when the question of reduction is exclusively among legatees and devisees themselves.
6. 7. 8. 9.
1.
Rule of Preference Between Lines Those in the direct descending line shall exclude those in the direct ascending and collateral lines, and those in the direct ascending line shall, in turn, exclude those in the collateral line. Rule of Proximity the relative nearest in degree excludes the farther one. (Art. 962, CC) Rule of Equal Division the relatives who are in the same degree shall inherit in equal shares. (Articles 987 and 1006, CC) Exceptions: a. Division in the ascending line (between paternal and maternal grandparents) b. Division among brothers and sisters, some of whom are of the full and others of half-blood
2.
2. 3.
3.
3.
4.
Rule of Barrier between the legitimate family and the illegitimate family the illegitimate family cannot inherit by intestate succession from the legitimate family and vice-versa. (Art. 992, CC) Rule of Double Share for full blood collaterals when full and half-blood brothers or sisters, nephews or nieces, survive, the full blood shall take a portion in the inheritance double that of the halfblood. (Articles 895 and 983, CC)
4.
When a compulsory heir in the direct descending line is disinherited and he has children or descendants; representation covers only the legitime. A legatee or devisee who died afther the death of the testator may be represented by his heirs.
5.
2.
3. 4. 5.
7. 8. 9.
4 5
6 7
*Notes:
In the direct line, representation takes place ad infinitum in the direct descending line, never in the ascending. In the collateral line, representation takes place only in favor of the children of the brothers or sisters (i.e., nephews and nieces) whether of the full or half-blood and only if they concur with at least one uncle or aunt.
Surviving spouse Legitimate siblings, Nephews, Nieces Legitimate collateral relatives within the 5th degree State
1.
EXCLUDES
Ascendants, Collaterals and State Illegitimate parents, Collaterals and State Collaterals and State Collaterals and State Collaterals other than No one
EXCLU
2.
When a compulsory heir in the direct descending line had predeceased the testator and was survived by his children or descendants. When a compulsory heir in the direct descending line is excluded from the inheritance due to incapacity or unworthiness and he has children or descendants.
No one
Legitimate chi
State
Legitimate children, Illegitimate children, SHARE AS LEGITIME Legitimate parents and Illegitimate parents Legitimate children Illegitimate children Legitimate parents Illegitimate parents and Surviving spouse Everyone
FREE DISPOSAL
6 LEGITIMATE CHILDREN, TOTAL INTESTATE SHARE ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE
Intestate Heir Legitimate children SHARE AS LEGITIME
FREE DISPOSAL Illegitimate children Surviving spouse share of each legit child Same share as one legitimate child
SHARE AS FREE Remaining p estate, if an paying legitim divided by th 2 for each le child 1 for each ille child (see a Same shar legitimate provided legit not impa Varies depen no. of illeg childre
Remaining portion of estate 7 after paying legitimes LEGITIMATE PARENTS ALONE Intestate Heir Legitimes to be divided equally Legitimate parents between total no. of children TOTAL plus the surviving spouse Varies on no. of children SHARE AS LEGITIME SHARE
AS
FREE
Intestate Heir Legitimate SHARE AS FREE DISPOSAL parents Illegitimate Remaining portion of children estate after paying TOTAL
FREE
Illegitimate children
TOTAL
Legitimes to be divided LEGITIMATE PARENTS AND by the ratio of 2 for SURVIVING SPOUSE each legitimate child, 1 for each illegitimate Intestate Heir SHARE AS LEGITIME Legitimate parents Varies on no. of Surviving spouse
SHARE
AS
FREE
TOTAL
SHARE AS LEGITIME
SHARE
AS
FREE DISPOSAL
SURVIVORS Legitimate children Illegitimate children Surviving spouse Legitimate parents or ascendants or illegitimate parents and Adopter AS FREE DISPOSAL
13 SURVIVING SPOUSE
Intestate Heir Surviving spouse TOTAL SHARE AS LEGITIME or 1/3 or 1/3 SHARE
Surviving Spouse Legitimate parents ascendants Adopter AS FREE DISPOSAL Illegitimate children descendants Legitimate parents ascendants Adopter Surviving spouse
AS FREE DISPOSAL Illegitimate children
case of intestate
FREE DISPOSAL
It is a right by virtue of which when two or more persons are called to the same inheritance, devise or legacy the part assigned to one who renounces or cannot receive his share or who died before the testator is added or incorporated to that of his co-heirs, co-devisees, or co-legatees.
EFFECT OF PREDECEASE, INCAPACITY, AS FREE DISPOSAL DISINHERITANCE OR REPUDIATION IN TESTAMENTARY AND INTESTATE SUCCESSION
TESTAMENTARY SUCCESSION LEGITIME FREE PORTION 1. Representation 1. Accretion 2. Intestate 2. Intestate
Disinheritance
1. 2.
Repudiation
Intestate Succession
B. CAPACITY TO SUCCEED
Successi 3. BASED ON ACTS OF UNWORTHINESS on (Art. 1032, CC) See table under 1. Accretion disinheritance 2. Intestate Successi PARDON OF ACTS OF UNWORTHINESS on EXPRESS IMPLIED Made by the execution Effected when the of a document or any testator makes a will writing in which the instituting the unworthy decedent condones the heir with knowledge of Accretion cause of incapacity the cause of incapacity Cannot be revoked Revoked when the testator revokes the will or the institution
REQUISITES FOR CAPACITY TO SUCCEED BY WILL OR BY INTESTACY (Art. 1024 1025, CC)
1. 2. The heir, legatee or devisee must be living or in existence at the moment the succession opens; and He must not be incapacitated or disqualified by law to succeed.
C. ACCEPTANCE AND REPUDIATION OF INHERITANCE CHARACTERISTICS VIR (Articles 1041 1042, 1056, CC)
1. 2. 3.
1. 2.
Voluntary and free Irrevocable except if there is vitiation of consent or an unknown will appears Retroactive
1.
a.
Priest who heard the last confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; Individuals, associations and corporations not permitted by law to inherit; Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; except if the guardian is his ascendant, descendant, brother, sister, or spouse; Relatives of the priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; Attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness.
b. c.
1.
2. 3.
Acceptance involves the confirmation of transmission of successional rights, while repudiation renders such transmission ineffective. Repudiation is equivalent to an act of disposition and alienation. The publicity required for repudiation is necessary for the protection of other heirs and also of creditors.
d.
1. 2.
Express Acceptance one made in a public or private document. Tacit Acceptance one resulting from acts by which the intention to accept is necessarily implied or from acts which one would have no right to do except in the capacity of an heir. Examples would be when the heir sells, donates or assigns his right, when the heir demands partition of the inheritance, when the heir alienates some objects of the inheritance, etc.
e.
f.
2.
BASED ON MORALITY OR PUBLIC POLICY (Art. 739, CC) a. Those made in favor of a person with whom the testator was guilty of adultery or concubinage at the time of the making of the will. b. Those made in consideration of a crime of which both the testator and the beneficiary have been found guilty. c. Those made in favor of a public officer or his spouse, descendants and ascendants, by reason of his public office.
1. 2. 3.
in a public instrument acknowledged before a notary public; or in an authentic document equivalent of an indubitable writing or a writing whose authenticity is admitted or proved; or by petition presented to the court having jurisdiction over the testamentary or intestate proceeding
If a person is called to the same inheritance as an heir by will and by law and he repudiates the inheritance in his capacity as a testamentary heir, he will be considered to have also repudiated the inheritance as a legal heir. If he repudiates it as a legal heir, without his being a testamentary heir, he may still accept it in the latter capacity.
WHAT TO COLLATE
1. 2. 3. Any property or right received by gratuitous title during the testators lifetime. All that they may have received from the decedent during his lifetime. All that their parents would have brought to collation if alive.
a.
2.
b.
Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit except when they exceed 1/10 of the sum disposable by will.
E. PARTITION AND DISTRIBUITON OF ESTATE (Articles 1078 1105, CC) CONCEPT OF PARTITION (Art. 1079, CC)
-
1. 2.
Collation adding to the mass of the hereditary estate the value of the donation or gratuitous disposition. Imputing or Charging crediting the donation as an advance on the legitime (if the donee is a compulsory heir) or on the free portion (if the donee is a stranger). Reduction determining to what extent the donation will remain and to what extent it is excessive or inofficious. Restitution return or payment of the excess to the mass of hereditary estate.
It is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself or its value may be divided.
3. 4.
1.
2. 3. 4.
decedent, during his lifetime by an act inter vivos or by will heirs competent court third person designated by the decedent
1.
2.
General Rule: compulsory heirs Exceptions: a. when the testator should have so expressly provided b. when the compulsory heir should have repudiated his inheritance Grandchildren who survive with their uncles, aunts, or first cousins and inherit by right of representation *Note: Grandchildren may inherit from their grandparent in their own right, i.e., as heirs next in degree, and not by right of representation if their parent repudiates the inheritance of the grandparent, as no living person can be represented except in cases of disinheritance and incapacity in which case grandchildren are not obliged to bring to collation what their parent has received gratuitously from their grandparent.
1. 2. 3. 4.
compulsory heir voluntary heir legatee or devisee any person who has acquired interest in the estate
1. 2.
when expressly Prohibited by the testator for a period not exceeding 20 years when the co-heirs Agreed that the estate shall not be divided for a period not exceeding 10 years, renewable for another 10 years when Prohibited by law
3.
4.
when to partition the estate would render it Unserviceable for the use for which it is intended
PROHIBITION TO PARTITION
1. 2. 3. The prohibition to partition for a period not exceeding 20 years can be imposed on the legitime. If the prohibition to the partition is for more than 20 years, the excess is void. Even if a prohibition is imposed, the heirs by mutual agreement can still make the partition.
It is one that merely allocates specific items or pieces of property on the basis of the pro-indiviso shares fixed by law or given under the will to heirs or successors.
1. Between a true heir and several mistaken heirs partition is void. 2. Between several true heirs and a mistaken heir transmission to mistaken heir is void 3. Through error or mistake, share of true heir is allotted to mistaken heir partition shall not be rescinded unless there is bad faith or fraud on the part of the other persons interested, but the latter shall be proportionately obliged to pay the true heir of his share. The partition with respect to the mistaken heir is void.
1. 2.
If the will was in fact a partition If the beneficiaries of the void will were legal heirs