Succession Notes RVWR

CONCEPT OF SUCCESSION 1.
DEFINITION & CONCEPT A774: Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (n) A712:Ownership is acquired by occupation and by intellectual creation. Ownership and other real rights over property are acquired and transmitted by law, by donation, by estate and intestate succession, and in consequence of certain contracts, by tradition. They may also be acquired by means of prescription. (609a) Defined by A774: fr defn, mode of acquisition of ownersip (O) over a prop Other modes of acquiring O of prop: A712 Mode of prop acquisition: acquire O of prop fr another
I.
o *to det wholl acquire props owned by a person upon his death POTL - when a person dies, he may leave prop and obligations/debts (somebody has to pay) o = to det wholl pay
RELIGIOUS - Roman belief: when a person dies, w/o settling obligations to fellowmen = impossible for soul to reach afterlife o + form of ritual performed: to allow his soul to reach the afterlife o when already dead = wholl perf this ritual?
To ensure rituals will be performed, decedent gives incentive to rels leave props to an heir on the condi hell perf those rituals after his death = form of incentive
A712: diff modes of acquiring prop:
o
o
Operation of law grant O over prop donation
trad in protected contracts like sale: O vested in buyer (B) fr time prop delivered to B intellectual creation:
Juridical basis of S: 2 grps of ths: Negative theres no jurid basis for succession; its 1 of the instis w/c should be abolished no basis for testamentary succession cause rts under this are supposed to be creations of the will of the person who owns the props disposed of, but how can he have will if hes already dead? o *if we repeal succession, what happens to the props the decedent will leave behind? props become res nullius: under natl law, when a props res nullius = becomes own by 1st person who occupies it props of a dead person go to his rels not cause of succession but cause of occu: 1st to occupy props when they became res nullius after death of O o basis of law on intestacy: no basis to justify intestate succession cause a person has rels during his lifetime, but when hes dead = no more (we dont believe it that) Positive theres jurid basis for succession: when a persons alive, he can dispose his props at his discretion/pleasure (give it for free like donation, sell for sufficient consideration, barter) o = has power of disposition (jus disponendi): 1 of the rts flowing fr O of prop o In disposing that prop, Os free to impose condis on when the prop will be acquired by a 3rd p like a condil sale where transfer of O may be made to depend on the happening of a suspensive condi O wont transfer til happening of suspensive condi o at liberty to dispose of props subj to condi why cant that condi be death of O? o *succession = disposition of prop subj to a suspensive condi: death of the O of the prop o when a person dies w/o having executed a will = law provides how prop will be disposed of (Tolentino) basis of intestate succession: fam relns
Drilon, Gandionco, Lee, Lim, Ocampo 1
o
occu o o
ex. compose pc of musical work = copyright: intellectual prop ex. fisherman before caught fish, state owned it = regalian doctrine
1st occupy = rels
not in 712: marriage prop (FC) o ACP default regime
Defn patterned after Lucius Quintos Scaevola: pen name used by a grp of Spanish civilists who wrote on the SCC Defn in 774 more detailed than Manresas: o the leg mode by virtue of w/c the prop, rts and obligations w/c in life belonged to a person are acquired by his heirs
Latin: Sud to enter under; cedere to replace another o to place 1self in the place of another succession is a civ law insti:
o
o
instituted by Roms cause of a natl hum desire to provide after death to the objs of his affection (children) possible only in environment w/c allows ppl to own priv prop
if this wasnt possible, concept of succession is useless (nothing to leave behind)
PURPOSE: if potl sys allows ppl to own priv prop = succession is a necessity cause props amassed by a person during his lifetime has to be disposed of when he dies
The indiv, during lifetime, seeks to accumulate wealth in order to perf his duty of serv and assistance to his fam; knowledge that upon his death, the product of his efforts and work will be enjoyed by his objs of affection = greatest incentive; in event of death of head of fam, those accustomed to live under him in abundance, shouldnt see even the ghost of misery o fam love and affection CC provs on intestate succession: founded on presumed will of decedent (how props distributed, assuming hes able to do so before he died)
thru succession
person: poses a prob/troublesome bec 2 kinds in sys of laws o natl no defn of natl person in CC but presumed to be hum being: prod of hum procreation (underlying assumption, gen foundation) not ex. cat, robot (created but not by procreation) ex. baby o jurid jurid person defined: creature of the law exists only in leg contemplation basic diff bet natl and jurid: phys existence o hum being has: something u can touch
Basis of presumption: desire as a soc animal (sociological) acquired by somebody fr
A774: defn gives us the diff elems of succession subj/parties (P/Ps):
mode of acquisition: anotherthere are Ps
somethings
obj transmitted and acquired: prop involved o transmissions to the extent of the value of the inheritance mode/kind of transmission: 2 ways by wc it happens (modes of S) o by will
opn of law
2. SUBJS OF SUCCESSION/PARTIES TO A775: In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. (n)
A782:An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. (n) A1026: A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. (746a) A1029: Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver onehalf thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. (747a)
jurid entity: none, exists only in mind, cant touch exists cause law allows it to be created; if none allowing its creation = no jurid entity ex. provs on partnership, Corp Code, trust why does word person pose a prob? when the law doesnt qualify, neither should we does person include both natl and jurid person? may a jurid person be a decedent referred to in A775? o No, cause while law doesnt categorically provide, succession has to be limited to natl persons o Reasons: no fam relns in jurid entities sister/parent corps figure of speech (mimic parent-offspring rel)
Rules on intestacy cant apply
no will of its own: cant write last will and testament jurid entities dont die: theyre terminated/dissolved
when dissolved, props they own are disposed off in accordance w/ the prov of law providing for their creation: not by law of succession 3 jurid entities recognized under our leg sys: o partnership o corp o trust while law in A775 defines a decedent as a person w/o qualifying the word person, decedents limited only to natl persons 2 parties involved:
1)
DECEDENT: only natl persons person who owns prop thatll be transmitted to another: orig O of prop if decedent left a will: testator/testatrix didnt make a will: no sp name = decedent HEIR: all kinds of persons
2)
decedent defined in A775: person whose props transmitted to another
person wholl acquire the prop fr the decedent Defn: one who will rcve mortis causa, prop from the decedent o So long as some1 rcves prop from the decedent, by reason of his death, hes an heir 2 ways 1 becomes an heir: o Bec named so in a valid will Testamentary or voluntary heir Called testamentary succession o Designated in the law Legal or intestate heir Called intestate or legal succession If the name of the person isnt found under either of these (will or law), hes never an heir whos an heir? A782: person called to succession, either by the prov of a will/by opn of law persons not qualified o ex. A cat cant inherit the wealth left behind by an unmarried woman cause an heir must be a person a cat isnt a person (either natl presumed to be hum being/jurid) a hum being, to perf all acts of civ life, must possess 2 elems of full civ cap: o jurid cap/pers fitness to be the subj/p of leg relns ex. fetus in womb of mother Uncle donated to her P1M o jurid reln = donation (Parties: donor - uncle, donee - fetus) fit cause donation favorable to it provided born alive in accordance w/ CC not ex. cat succession subjs: decedent (woman) and heir (cat) = cat doesnt fit under any category recognized by CC (jurid/natl) = cant be an heir o heir must accept: how will a cat accept? put under guardianship? accepted by guardian on behalf of baby o cant ask for guardianship of cat a corp can be an heir under A1026 (jurid person) o has capacity to act A1029: prob whos the heir? Soul of decedent?
When the will provides that an aliquot part is given, the heir designated is an instituted heir Legatee or devisee o Legatee: one to whom a gift of a spcfc movable prop is given Ex) will says a car, benz, is given to the youngest son Hes a legatee in the spcfc/particular sense, but an heir in the gen sense o Devisee: one to whom a gift of a spcfc immovable prop is given in the will Ex) hse & lot given in the will Hes not an instituted heir bec not given the entire estate or an aliquot part Still an heir in the gen sense Significance of knowing whether the heir is an instituted heir or a legatee or devisee o Its impt bec when preterition sets in under A854, the instituted heir loses his inheritance while the legatee or devisee retains his legacy or devise, as long as its not inofficious Suppose the testator made the ff prov in his will: o I give to pedro as his legacy of my entire estate Is pedro an instituted heir or a legatee/devisee? Controversy whether hes either of these Rule in S: the will of the testator is paramount Wc is why btwn testamentary S and intestacy = testamentary prevails Bec intestacy is an implementation of the mere presumed wishes of the decedent While in testamentary S, we implement the express intention of the decedent In the will, the testator called his heir a legatee Wc prevails? The charac of the heir by the testator or the charac of the heir by the law? By law: its an instituted heir bec not given a spcfc prop, was given an aliquot part By the will: charac as a legatee the gift being charac as a legacy JBL Reyes: charac of the heir is one for the law, not for the testator Thus, even if he charac the heir as a legatee, this charac has to yield to the charac of the law Since given an aliquot part of the estate, hes an instituted heir Prob w this if theres preterition: can the heir retain his bec he says hes a legatee? My inheritance isnt an institution but a legatee others will say, no youre an instituted heir even if the will says youre a legatee o I give to pedro of all my jewelry kept in the vault of the bank Instituted heir or legatee? Hes a legatee bec ff the defn of a legatee, the gift here is
o o
A782: for an heir to qualify to inherit, it must be a person
SUB-CLASSIFICATION OF HEIRS: Instituted heir o Rcves from the testator, the entire estate or an aliquot part thereof o Ex) will says I institute pedro as my sole and universal heir Hes an heir in a gen sense But in the spcfc sense, hes an instituted heir o Aliquot part: a definite portion of the entire estate wo specifying what props are comprised in that estate Ex) of the estate its a definite portion, but you dnt knw what props are comprised in the Can be real prop, jewelry or cash = dnt know wc
spcfc Was the gift spcfc coz of the jewelry? I give to pedro of all my movable prop Is this a spcfc prop? Is it a gift of spcfc prop? Neither can you charac him as an instituted heir, bec he wsnt given an aliquot part of the entire estate, he was given an aliquot part of the movable prop Was he an instituted heir or a legatee? This is a prob Bec wsnt given a spcfc movable, neither was he given an aliquot part of the estate For sir: hes a legatee Bec what controls is not the particularization of the prop, wc basic description The classification of the prop that was given, shld be sufficient particularization o Dsnt need to be really spcfc The ring, necklace, comp, etc o The classification of the prop shld be sufficient to be a gift of spcfc movable prop Other writers might disagree
o Bec a DMC in reality is a will Bar Q: make a DMC of a real prop o Need to apply the formalities of making a will May an instituted heir be legatee or devisee at the same time YES o Can be given an aliquot part & a spcfc movable
OBJECT OF SUCCESSION (2nd elem of S) A776: The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659) A781: The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. (n) A1311: Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent. If a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person. (1257a) A1429: When a testate or intestate heir voluntarily pays a debt of the decedent exceeding the value of the property which he received by will or by the law of intestacy from the estate of the deceased, the payment is valid and cannot be rescinded by the payer. a) b) c) Transmissible rights & obligations Rights & obligations extinguished by death Restriction: s5, R86, ROC
3.
Donation mortis causa: a form of testamentary succession Heir, one who will rcve prop from the estate of the decedent, mortis causa If this defines an heir, what abt a donation mortis causa? if the owner of the prop donates the prop to a donee, but will take effect upon his death, dsnt this fall under this defn? and so the donee is really and heir and its not really donation but S? when is a donation inter vivos or mortis causa? Need to know this Ex) I donate my hse & lot to pedro on the cond that pedro shall be entitled to the delivery of the prop, only upon my death o Donation mortis causa or inter vivos? o Its a donation inter vivos What do you look at in the donation to det if its inter vivos or mortis causa? o When ownership of the prop vests in the donee o But what abt delivery? No need for delivery in order that he acquires ownership over the prop This isnt a sale where ownership vests upon delivery But not the same in donation o The moment the donation is accepted by the donee, the donation is perfected he acquires ownership over the prop, despite lack of delivery/delivery is postponed but when the donation provides that even ownership will not vest until after the death of the donor = donation mortis causa donation mortis causa: fits under the definition o is it a form of S? is the donee an heir? o Yes, donation mortis causa is in reality, testamentary S o This for the validity of a DMC it must follow the formalities prescribed by law for the making of a will Shld have an attestation clause Needs 3 witnesses
d)
SECTION 5. Claims which must be filed under the notice. If not filed, barred; exceptions. All claims for money against the decedent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount so determined shall be considered the true balance against the estate, as though the claim had been presented directly before the court in the administration proceedings. Claims not yet due, or contingent, may be approved at their present value.
RA 1056 (authority to use organs or body parts) & RA7170 (legacy or donation of all or part of the body for purposes specified)
The obj is the prop that will be acquired by the heir from the decedent Is there a spcl name? o Called inheritance or estate of the decedent Since S is a mode of acquisition, the obj acquired in ownership is the inheritance/estate Inheritance/estate: defnd in A776 A776: the prop, rights and obligs of a person wc arent extinguished by death o *Dnt paraphrase the prov to be precise So it concerns: prop, rights & obligs Are all props, rights & obligs belonging to the decedent during his lifetime, included in his inheritance? o Not all , only those wc arent extinguished by his death How do we know whether a particular prop, right or oblig is extinguished by his death? o No prov in the code regarding this
o o o o
Guidelines: (by writers in civil law) Rights: divided into o Patrimonial rights: have to do w prop Arise from ownership of prop Gen rule: transmissible bec not extinguished Ex) bones owns a pc of land Exception: personal servitude of habitation may be patrimonial, but its extinguished by death of the owner of the right ex) usufruct: when the owner constitutes a U in favor of a usufructuary, when the usufructuary dies, the U is terminates he cant transfer his right to the U bec its a personal servitude over prop can you constitute U over a movable prop? U: CC says its constituted over an immov prop Ex) jeep: can you give the profit to some1 Yes, can do this but not called a U as used in the CC Its an innominate contract = valid o Non-patrimonial rights Dnt arise from ownership of prop Arent these extinguished by the death? It depends If purely personal: extinguished Ex) right to support, right to hold pub ofc, right to a status Ex) bones dies, he leaves a 2nd wife ds his wife inherit his mistress? No o Bec the right estabs btwn bones & the wife, its extinguished Ex) if governor of Mindoro not inherited No purely personal: X extinguished Form part of the estate & can be transmitted to the heirs
Obligs o
Ex) monetary obligs: transmitted
It depends on WON the oblig is purely personal Purely personal: extinguished X purely personal: survives & forms part of the estate Ex) bones is a magician who was contracted by Mindoro to perf for their fiesta for 2M 1M dwnpayment, dies b4 the fiesta & his eldest son is left whos also a magician Oblig to perf is extinguished bec purely personal Personal charac of the debtor, was the vinculum of the contract, its the underlying consideration Reason why he was hired to perf 1M dwnpayment depends on the stips of the parties If expressly/impliedly, that the dwnpayment shant be recovered = Xneed to return If contract is silent = 1M can be returned since the estate wld be retaining it wo consideration & will constitute unjust enrichment Will the heirs inherit in full, the surviving obligs of the decedent? NO A1311: the heir is liable to those obligs left behind only to the extent of the prop or rights in value inherited Ex) anabelle rama dies, she leaves a chest of jewelry wrth 10M, but has debt of 20M - Who will pay the 20M? Since inherited 10M only, only liable to that extent What if Ruffa paid the 20M, then ran out of money can she recover the 10M? No, A1429 Note: the 20M debt isnt extinguished by the death, the insufficiency of the estate ddnt extinguish the balance its still an outstanding oblig but now its a natl oblig under A1429 o A1429: one who pays a natl oblig cant recover what was paid Who will inherit the body of the decedent? Ex) 1 dies, he has 2 families, who is entitled to the corpse? FC: the corpse isnt prop, its beyond the commerce of man CC: relatives cant do anything but give it a decent burial Cremation is included in burial While a corpse isnt prop, dsnt this represent a right? A right wc can form part of the estate? RA1056: donation Part of the body given to qualified beneficiaries Kidneys, liver, eyes, heart, skin, bone marrow, etc RA7170: adapted Jan 1992 An act authorizing the legacy or donation of all or part of a human body after death for specified purposes Can include parts of the body in a will S8a: if the will isnt probabted or is declared invalid for testamentary purpose, the legacy to the extent that it was executed in gf, is nevertheless valid & effective o This is heretical to the principles of S
Bec in S, if the will is invalid, everything contained in the will is invalid o For sir: shld be qualified as invalid for testamentary purposes If he executed it except that it was done not in compliance w the formalities of the law, then prov shld be valid But if the issue is WON he executed it, then the prov may be invalid Will usually contains instructions on how the corpse will be proceeded with Ex) husband dies, hes estranged from his wife & fam, in the will: it is my wish that all arrangements for my burial/wake be handled by my live-in partner Wife & kids dont agree to this Can the prov be challenged? On what ground? Is it valid? o
A132: A donation by reason of marriage is not revocable, save in the following cases: (1) If it is conditional and the condition is not complied with; (2) If the marriage is not celebrated; (3) When the marriage takes place without the consent of the parents or guardian, as required by law; (4) When the marriage is annulled, and the donee acted in bad faith; (5) Upon legal separation, the donee being the guilty spouse; (6) When the donee has committed an act of ingratitude as specified by the provisions A390: After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) A391: The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n) A50, FC:The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be
4. OPENING OF SUCCESSION A777: The rights to the succession are transmitted from the moment of the death of the decedent. (657a) A533: The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed never to have possessed the same. (440) A1347:All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. (1271a) A1461:Things having a potential existence may be the object of the contract of sale. The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the thing will come into existence. The sale of a vain hope or expectancy is void. (n) A130: The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession. (1331a)
adjudicated in accordance with the provisions of Articles 102 and 129. A51, FC:In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n) When can inheritance be acquired by the heirs from the decedent? When will the transmission on the inheritance occur? o When succession opens It opens at the precise moment of decedents death o Heir acquires no vested right on any property of estate of decedent before death o At most, interest is merely inchoate Ex: Father in a coma, son needing money finds the fathers will o Provision in will leaving him Benz car o Son approached friend and showed him will of father o Sold car to friend for 1/3 value o Father dies o Is the sale valid? No, insofar as the estate is concerned Estate cant be prejudiced by parties with no vested right in it Yes, insofar as son is concerned Principle of Relativity of contracts (valid as to one, invalid as to the other) Breach of warranty against eviction o Can the executor recover the car? Yes, you cannot give what you dont have (nemo dat) Father was still alive when son sold it o Can car be recovered from the buyer? Yes, sale not binding on the estate Sale was done by a 3rd party who had no vested right in the property (res inter alius acta) Only the estate, only the father can sell the car WON the provision leaving the car to the son will be honored If father left a huge amount of debt, car may have to answer for it Only when all debts have been discharged and car is still in the estate will the legacy of the car be honored Liabilities are part of the estate Can the son say that the sale was invalid when the friend asks for
delivery of the car after the father dies? Son claims that it was a sale of future inheritance (a1347 no contract may be entered into upon future inheritance) Art 1347 o 1347 does not tell us the status of a contract that sells future inheritance Its a prohibition only. So whats the effect? Art 5 CC acts in violation of prohibitory or mandatory provisions of law are void Is 1347 a prohibitory or mandatory provision of law? Prohibitory usually has penalty Need to look at the reason behind the law o 1347 not all contracts concerning future inheritance are prohibited, some are allowed those expressly provided by law 1. Partition inter vivos (a1080) 2. Donation propter nuptias of future property (a130) Donation propter nuptias of future property o Donation is a contract the golden contract (noble consideration liberality, generosity, magnanimity) o Napoleon understood donation to be a unilateral act - wrong o Liberality cannot be imposed upon another o Must be accepted by donee o Ex: Donna and Bones are going to get married. Donnas parents are asking for 4 carabaos from Bones parents NOT a donation propter nuptias o Donation should be in favor of one or both of the future spouses o Differences bet ordinary and propter nuptias donation: Form: Ordinary donation o Immovable property donated o Donation must be executed and accepted in a public instrument Propter Nuptias o Donation of land still valid even if not in a public instrument o Enough that it is in writing statute of frauds Grounds for Revocation Grounds provided for under their separate titles is in the CC o How is donation propter nuptias an exception to 1347? Donation contract How does it involve future inheritance Donation PN only takes effect mortis causa However, FC has amended the law Art 84 FC donation PN shall be governed by the rules of testamentary succession governed by rules on donation Therefore, it should be in a public instrument It would seem that donation PN is no longer an
Law on Sales:
exception to 1347
Emptio rei esparate sale of things of potential existence VALID Ex: growing fruits of trees o Trader buys future mangoes but theyre still flowers valid sale Ex: is the Benz the son sold a thing of potential existence? o WON its a thing of potential existence, it is still a future inheritance, therefore its prohibited under 1347 Succession opens upon the precise moment of death. When does death occur? o Ex: Abu Sabaya shot and fell into the ocean but body was never found o Death includes: Actual Death Presumptive Death Ordinary presumption a390 o Person absent for 10yrs or more o With reasonable ground to believe hes dead o Presumed dead for purposes of opening succession o Unless he disappeared when he was 75 then 5yrs is enough Extraordinary presumption a391 o Technical meaning of absentee Ex: Bones disappears on Donna, he goes to Mindanao After 4yrs in Mindanao, Bones wants to get married again He invokes a40 FC when a spouse has been absent for at least 4yrs, with reasonable ground to believe that the absent spouse is dead, the spouse present may file an action to declare the absent spouse presumptively dead for the purpose of remarriage Bones cant invoke a40 FC because Donna isnt the absent spouse, he is Donna can file an action for presumptive death In case of known or estabd death of a person o We know when succession of his estate has opened In case of presumption of death when is the person presumptively dead, considered to have died? o Impt bec in succession, relatives who were born after the death of the decedent arent qualified to inherit o To qualify, relative shld be alive at the time of death Thus, impt to det when a person considered presumptively dead to have died
Emptio spei sale of a vain hope VOID
Is it when he disappeared or after the pd reqd by law to lapse, for the presumption to arise? o In ordinary presumption: pd of 10 yrs shld lapse b4 absentee is considered presumptively dead Whens he considered to have died? CC dsnt say how this is determined Writers in Civil law: in case of ordinary presumption, the absentee is considered to have died after the lapse of the 10 yr pd for the presumption to arise Hes considered dead bec has been missing for the past 10yrs If an absentee was declared presumptively dead under A390, all relatives born during the 10yr pd = qualified to inherit Bec absentee is considered to have died after the lapse of the 10 yr pd o In extraordinary presumption (A391): considered to have died on the day he disappeared Bec under A391 the person who disappeared, disappeared under a dangerous circum Ex) he joined the war in Iraq & while fighting w the combatants in Iraq he disappeared He disappeared probably coz died during combat Ex) boarded a plane wc crashed & body not found Why do we have to wait 4 yrs b4 succession to his estate to open? Bec theres a possibility that he survived and itll be too long to wait for 10yrs when theres a strong possibility that he died during the dangerous circums Thus, law reduced the pd If declared dead under A391, all relatives born during the pd of 4 yrs, CANT inherit Bec absentee is considered to have died on the day he disappeared Have the provs in the CC been modified by the FC? o FC: When a Sps has been absent for 4 yrs or more = may be declared presumptively dead If he disappeared under the circums of death = 2yrs is enuf o Has this amended the provs of the CC on presumption of death? NO o A390 & 391CC are provs on presumptions for the purpose of opening succession o Whereas, A41 FC, is for the purpose of remarrying of the Sps present This declaration cant be used to open succession to his estate 5. KINDS OF SUCCESSION a) Testamentary A779: Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. (n) b) Legal or intestate
A960: Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a) c) Mixed Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n) d) Contractual A130: The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession. (1331a) A1347:All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. (1271a) A752:The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. (636) A1080:Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a) A84, FC:If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage
settlements more than one-fifth of their present property. Any excess shall be considered void. Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a) A86, FC: A donation by reason of marriage may be revoked by the donor in the following cases: (1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81; (2) When the marriage takes place without the consent of the parents or guardian, as required by law; (3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse; (5) If it is with a resolutory condition and the condition is complied with; (6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a) Modes of Succession A778: law lists 3 modes of succession Testamentary Intestate/legal o Looking at A950 the law dsnt define it o 1st draft:Code commission included a proposed definition Intestate S takes place by operation of law in the absence of a valid will Suppressed in the final draft that was approved by Congress Correct! Bec definition is inaccurate Bec legal S can take place, over the entire estate, even despite the presence of a valid will left behind He couldve left a will but ddnt dispose of everything Ex) if the will contained nothing but the disinheritance of a compulsory heir o Grounds for disinheritance: Living a dishonorable life He ddnt dispose of any prop, just removed 1 person from inheriting Entire estate will be disposed of by way of intestacy o Did away w defining it & just came up w an article enumerating the instances when legal S takes place o But the enumeration IS NOT exclusive mixed o A780 defines it
o o
SIR: shld be suppressed & even if removed, wont do any harm Wont create any vacuum in the law
A828: A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a) f) Testator has testamentary capacity A796: All persons who are not expressly prohibited by law may make a will. A797: Persons of either sex under eighteen years of age cannot make a will. A798: In order to make a will it is essential that the testator be of sound mind at the time of its execution. g) Unilateral h) Mortis causa A777: The rights to the succession are transmitted from the moment of the death of the decedent. (657a) i) Testator must have animus testandi j) Individual A818: Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. k) Purely personal act A784: The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a) A785: The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) A786: The testator may entrust to a third person 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 to which such property or sums are to be given or applied. (671a) A787: The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) WILL: defined in A783 o Its an act whereby a person is permitted w the formalities prescribed by law to control to a certain degree the disposition of his estate to take effect after his death o Use of word ACT As opposed to a will as an instrument or docum ACT includes an oral/verbal & a written or instrumental act o Since the defn seems to include bth oral & written acts (law dsnt qualify, neither shld we) Law dsnt qualify the word act Is there a verbal/oral will? YES, a non-cupative will But a verbal/oral/non-cupative will IS NOT allowed in our J o So while the law defines a will as an act, the other provs in the code implementing this defn will show that a will HAS to be a DOCUMENT
SIR: A778 is inaccurate or totally wrong bec theres only 2 modes Testate & intestate Theres no mixed o Bec if S is by virtue of a will, the code provides the set of rules that will govern the disposition of the estate done in the will o If he dies wo a will, the CC provides for a set of rules that will govern the disposition of his estate o No sep set of rules for mixed S If testator left a will but ddnt dispose of the entire estate in the will, the provs in the will will be governed by the rules on testamentary S while those properties wc arent covered by the will, are governed by the laws on intestate S They dont mix o Theyre mixed, but its not an indep mode of S bec there are no sep rules for them For a person to be an heir, he shldve be able to point a finger to a prov in the will or law designating him as an heir If cant do this, then youre never an heir Thus, theres only 2 = will & law May S be conferred by contract? Gen rule: NO, there can be no S by contractual stip A1347: contract containing future inheritance not allowed except in cases expressly auth by law II. TESTAMENTARY SUCCESSION: A779: testamentary succession results from the designation of an heir, made in a will, executed in the form prescribed by law This cant take place if theres no will o Legal S will take place here Will of a testator may take 2 forms: o Will o Donation mortis causa Still a will
Characteristics of Testamentary Succession a) Purely statutory b) Free & voluntary act c) Solemn or formal A783: A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a) d) Disposition of property A783: A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a) e) Essentially revocable
X be an oral disposition o Ex) if a student dies in class whos your bst frnd, you have access to his personal things You opened his bag & found a pc of paper wo a caption but the writing looks like a docum Is this a will? Need to know if it is bec to be effective, it will have to comply w the reqs of the law for making a will Cant transmit prop either unless its allowed probate by the Cts o What do you look for in a docum to characterize it as a will? That will necessitate you to submit the docum to Ct for probate & for the Ct to examine WON the reqs prescribed by law have been complied w. There shld be a disposition of prop mortis causa If theres none, not a will Thus, no need to submit to Ct for probate, need not comply w formalities prescribed by law to take effect o Ex) docum says: I command that none of my prop shall ever go to my daughter, Val, for having led a dishonorable life This the only thing written, signed by the father YES, this is a will Theres still a disposition of prop mortis causa Although the disposition is indirect Since shes disinherited, her share has been given to the other heirs Thus, need to show that it was executed in compliance w the reqs of a valid will If didnt comply, docum wont take effect Neither will the disinheritance take effect o If the will is invalidated, everything in it is invalid Exceptions to this: (wont be invalidated) RA7170: legacy of your spare parts o Still takes effect even if the will is invalid Recognition of an illegit child in the will o For this recog to be valid, the docum shld be acknowledged b4 a notary republic o And that its invalidated for reasons other than failure to notarize the docum o Ex) if the docum is a holographic will, written in the handwriting of the testator, and signed but forgot to date it Will is invalid bec not dated but recog still takes effect FC:recog of an illegit child may be done in a priv docum, signed & date isnt reqd o Will, tho complied w all the reqs for its valid execution, is essentially revocable Thus, a will isnt a contract Testator may revoke the will anytime b4 death for whatever reason Giving prop in the will is an act of pure liberality or generosity = cant be compelled from a person This is why its essentially revocable
o Can the testator waive his right to revoke a will in exchange for a valuable consideration? Ex) val made a will, instituting her bf as her universal heir bf says, ill give you a ring, but dont revoke it, Val agrees Val can still revoke the will Bf can still recover the ring unjust enrichment Law: Any waiver of the right to revoke is void Will is still valid, its the revocation thats not affected by the consideration given for a commitment not to revoke it Despite the agreement, right to revoke remains REQUISITES FOR A VALID WILL: 1) Testamentary capacity: 3 reqs 1. Of age: A797 Art. 797. Persons of either sex under eighteen years of age cannot make a will. Shld be 18 yrs old When law wsnt amended, age of maj was 21 but under the CC, even if 1 hasnt reached the age of maj, cld make a will so long as 18 yrs old But age of maj is now also 18 yrs old Ex) born Feb 7, 1960; Feb 3, 1978 sir made a will Valid? YES bec of A13 CC CC: dnt count yrs by calendar yrs, you count it by 365 days For 18 yrs, at least 4 leap yrs must have passed thereby adding at least 1 day
Thus, 18th yr will be set back by at least 4 days When must the testator be 18? At the time the will is executed A will is deemed executed, the moment when the act of disposition is over when its been signed Disposition is over by closing the will by signing it
Ex) 6mos b4 Vals 18th bday she begins making a will, ea month, she makes 1 disposition; on her 18th bday, she wrote 6 dispositions & signed it Valid will? YES Bec executed when she was 18yrs
2. Of sound mind: Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) Art. 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n) Testator shld be of sound mind when will was executed Intervening insanity of the testator, wont affect the validity of the will So long as valid at time of execution When is a person of sound mind for the purpose of making a will? A799 To be of sound mind, not necessary that the testator be in full possession of his reasoning faculty or his mind be wholly unbroken, unimpaired or unshattered by injury or other cause Sufficient if the testator was able at the time of making the will, to know 3 things: The nature of the estate to be disposed of Ex) bones dies, left a will stating: I leave the QC memorial, Luneta grandstand to Donna & Val o Will is invalid since he didnt know the nature of the estate hes allowed to dispose of Shld know that he can only dispose of his props & props he intends to acquire Props he cant give away, cant be given away thru a will The prop obj of his bounty Ex) donna makes a will stating: I leave of my estate to all the mems of the League of Justice batman, superman, etc Invalid bec ddnt know the prop obj of her bounty ddnt know the beneficiaries of her bounty The charac of the testamentary act Testator shld know that the testamentary act is a gratuitous disposition Ex) Val gives her diamond earrings to her sis but has her buy it for more than the value of the earrings PFR: soundness of mind dsnt have a single definition If not of sound mind, but executed the will during a lucid interval Will is valid if can be proven that it was executed during a lucid interval Standard Oil v Arenas: capacity to act of a natl person is presumed, for capacity to act to be lost/restricted, he who alleges the loss/restriction must prove it In the absence of proof, the capacity of a natl person is presumed Gen rule on presumption: he who alleges, proves But in A800 theres a reverse presumption A800: When the testator, 1mo or less, b4 the making of the will, was publicly known to be insane, the person who maintains the validity of the will must prove that he made it during a lucid interval
If fails to prove, will is invalid Presumption is that he has no soundness of mind o For this to arise, must show that 1 mo or less b4 execution of the will, testator was publicly known to be insane Ex) Barbie on the street bag lady; is she publicly known to be insane? Ex) Miriam defensor is she pub known to be insane? When is a person publicly known to be insane? How do we determine this? No case decided yet
3. Not expressly prohibited from making a will Art. 796. All persons who are not expressly prohibited by law may make a will.
SIR: no prov of law, CC or spcl law, of a prohibition for a certain class or type of persons to execute a will RPC: when the accused has been sentenced to imprisonment & it carries w it the accessory of civil interdiction cant sell his prop/vote/etc Under law: even if a person is suffering civ interdiction, hes allowed to execute a will No prov found in any other law CC: A797 is the only prohibition those under 18yrs of age Married woman: can she execute a will Yes, A803 she can dispose by will her sep prop & her share of the CPG/ACP
*note: Case of married women Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) Art. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. (n) Supervening incapacity Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) 2) There must be animus testandi intention/desire to make a will Ex) Carmela bored, doodles in class, I institute my bf, as my sole & universal heir; Mae is watching sees her making a will; Carmela dies; Mae takes the paper o Valid will? NO, bec ddnt intend for it to be her last will & testament Ex) Motinola v Herbosa case o Rizals Mi Ultimo Adios wasnt a holographic will Claimed it was bec written in his hand, signed by him & dated Last stanza: to thee I leave all, my relatives Claimed to be the disposition of prop mortis causa
Not made w animus testandi, therefore not a will Rizal didnt intend it to be his last will & testamentwas the expression of his sentiments on the eve of his execution Animus testandi: state/condi of mind of testator at time will was supposed to be executed o matter of evid = evidentiary prob of proof of state of mind of testator at time will was allegedly executed
renounced in advance. This action prescribes within one year, to be counted from the time the donor had knowledge of the fact and it was possible for him to bring the action. (652) c) interpretation of words A790: The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a) d) interpretation as a whole A791: The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) e) severability of invalid provisions A792: The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n) f) after-acquired properties A793: Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) A930: The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. g) extent of interest covered A794: Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n) LAW GOVERNING FORM a) As to time of execution A795: The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n) b) As to place of execution Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established
3) There must be compliance w formalities prescribed by law for the making of a will where do we get the form testator must observe in exec of will? form prescribed in law law in force at time will was executed/time of death of testator? 795: law in force at the time of the exec of the will a will w/c is valid as to form at the time it was executed remains valid despite changes in the formalities brought abt by the subsequent amendment of the law Ex) suppose Congress repealed A795? o What law will apply re WON will was valid at time executed? apply gen provs of Consti on vesting of rts: no law, as a GR, is allowed to impair vested rts and obligations of contracts exceptions to Constil prins ex) suppose a will was valid at the time it was executed cause the testator complied w/ all the formalities prescribed by law but Congress amended CC by changing formal reqts and repealing A795? (at time testator died, law and formalities diff) o will valid at time executed, will it remain valid? YES cause testator acquired vested rt on continuing validity of the will cause at the time executed it, A795 was still a valid law
how abt in reverse? o Testator executed will w/c failed to comply w/ formalities prescribed by law at time of exec? But before he died, Congress amended CC, changed formalities for the making of a will and repealed A795? o At time of testators death = will in conformity w/ new set of formalities introduced by amendment of law, has will become valid? o NO, will has remained invalid cause the other leg heirs have acquired a vested rt on the continuing invalidity of the will o why? Bec laws as a GR, take effect prospectively this doesnt fall w/in any exceptions thatll allow a law to operate retroactively
4) Must be a free & voluntary act * If all are present, will was duly executed Interpretation of Wills a) interpretation should favor validity A788: If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n) b) in case of ambiguities A769: The action granted to the donor by reason of ingratitude cannot be
by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n) Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. formalities/form: right manner for exec of will/struc; pattern o not just form of paper but form of execution
Observes foreign law in exec of will in Phil territory = will invalid Ex. became lawyer in NY but not naturalized (didnt change citizenship) went back to Phils and made a will: in accordance w/ NY law o Lawyer died; his will is before Phil ct for probate o I: WON will was executed in accordance w/ formalities prescribed by applicable law o Hes a Fil citz, executed will in Phils = applicable law: Phil law
What if its a Fil abroad and execute it there, what law must he observe in executing his will? Ex. in NY and executed will in accordance w/ NY law but went to the Fil consulate there for notarization; went home to Phils and died = will submitted to Phil court for probate o In determining WON will valid, Fil judge must det applicable law observe in executing his will in Fil consulate in NY o Consulate in NY = Phil territ under IL: only observe Phil law in executing will there o Executed in accordance w/ NY law = invalid
Ex) Suppose went Timbuktu and made a will and no1 there knew Phil law so lawyer prepared will in accordance w/ Timbuktu law = died: will submitted to Phil ct for probate o what law must Fil judge use in determining WON wills valid as to form? o = lex loci celebrationis: test will vis a vis law of Timbuktu
o o
where will you get the law of Timbuktu? Q/I of fact w/c must be proven by competent evid in ct In the absence of proof, apply doctrine of processual presumption: Phil laws same as Timbuktu law
Formalities:law in force at time of exec of the will will in compliance w/ formalities prescribed by law = will valid (subsequent changes of law wont affect validity of will)
o o
has to be complied w/ for will to be valid
Is a will valid under Timbuktu law valid in the Phils? YES! A17 (lex loci celebrationis), 815 (when a Fils in a foreign country, hes authorized to) Q: Suppose the Fil executed a will in Timbuktu in accordance w/ Phil law, the law he knew best, is the will valid in the Phils? o A.815: in accordance w/ the law of the country in w/c he may be
The Fil is considered 2nd-class cit in the application of CC
will invalid for failure to comply w/ formalities = remains invalid even though law amended o whose law must the testator observe? Ex) Suppose executed will abroad, what law must testator observe to make his will valid? Phil law in executing will abroad/observe law of the place where will was executed, to be valid? o GR: Lex loci celebrationis the law of the place of execution
A816: when an aliens abroad, what law may the foreigner observe in the exec of his will for it to be valid in the Phils? o He may observe the law of the place: where he resides
of the country where hes a citz Phil law (formalities prescribed under CC)
*note: a Fil is 2nd class if abroad, cant execute will in accordance w/ Phil law but foreigner may they have better treatment w/ all writers in CC say: Fil also allowed to execute will abroad in accordance Phil law even though not executed w/in premises of Phil
Remember: when a Fil will executes his will in Phil territory, he may observe only 1 law for his will to be valid = Phil law
embassy/consulate abroad o OTHERWISE: violn of EP clause of Consti
valid under law of natlity = valid in Phils (what do we care abt them?) Sir: CORRECT: Phil law doesnt apply to foreigners who executed wills in the Phils in accordance to law of natlity w/ more reason if executed will abroad Paras: not allowed cause contrary to pub policy of the forum wheres the pub policy?
Ex) Suppose a Brit was appointed by a multinatl to head opns in SE Asia and based in Kuala Lumpur resident for 4yrs o Tour of duty takes him to Phils (got a live-in partner), Thailand and Japan o Thailand: made will in accordance w/ Brit law (law of natlity) went to Phils and gave will to partner o = died in Kuala Lumpurpartner filed will before Phil ct o Prob: conflict of laws sit - for will to be valid, what law must Brit subj observed in its exec? o Will: made in accordance w/ laws of Thailand valid and probated in Phils? o Applying A816 and 17: will = valid in Phils cause executed in accordance w/ law of the place where the will was executed: lex loci celebrationis If Brit law: valid under 816 cause allowed to execute will in accordance w/ law of natlity if abroad = will valid in Phils
as long as prov of law = pub policyif so, conflict of laws dont apply anymore
ex) Prob: Suppose Fil cit married to foreigner While in country of foreigner Sps = executed a joint will valid in accordance w/ law of natlity of foreigner Sps o came home to Phils w/ joint will = Fil Sps died: will submitted to Ct for probate, is will valid in Phils? o SC ruling (asked in bar 2ce): wills valid insofar as foreigner Sps is concerned, but not insofar as Fil Sps is concerned o Fil Sps died = not valid insofar as estate of Fil sp (prohibition applied to her) o Foreigner Sps died = valid since not bound by prohibition on joint wills in CC valid insofar as his estates concerned Joint wills = dichotomy
Ex) Suppose executed will in Thailand in accordance w/ Malaysian law = VALID in Phils cause its the law of his residence o Suppose used Phil law = VALID in Phils under A816 Ex) Jap law in executing will in Thailand = INVALID cause GRs lex loci celebrationis and doesnt fall under exceptions in 816 GR: A will valid where executed shall be valid in Phils. EXCEPTION: Joint will o testators execute a joint will in Phils = invalid cause prohibited in Phils Why prohibited? o If joint will, it cant be revoked by 1 only BOTH may revoke: ea testator loses rt to revoke will
Ex) Suppose Fil went to Timbuktu: verbal/nuncupative wills valid (not every1 can read and write) o declared by testator to a scribe/Notary Pub: only scribe sign verbal will = transcript prepared and subscribed to by scribe as far as testators concerned = verbal, didnt sign/write anything
Writers: Party wc has moral auth/ascendancy over the other, to prevent revocation, can kill the other testator o will cant be secret: know everything (dont like = dont sign) o moral ascendancy: the other will just follow ex) Suppose a Fil couple, h and w, went to Timbuktujoint wills not prohibited: executed joint will there and went home o 1 died: will submitted to Ct for probate o Is will valid in Timbuktu valid in the Phils? NO cause thats an exception to the R in 819: Wills prohibited by preceeding ARTICLE (no S only 818 on joint wills) executed by Fils in a foreign country shant be valid in the Phils even though authorized by the country in w/c it may have been executed
what Fil did = certi of a verbal will: gave it to wife = died *Verbal will executed and valid in Timbuktu as a will valid in the Phils? YES 815, 17 + no prohi/exception to those 819 wills prohibited by preceding ARTICLE (no S = only 818) LAW GOVERNING CONTENT a) As to time Art. 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a) b) As to successional rights, etc
Ex) Suppose joint will executed by resident foreigners in Phils, valid in Phils? 2 Views: o Tolentino: both foreigners = valid cause Phil CC applies only to Fils, not foreigners
Art. 16. 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) Law governing Form o As to content o As to dispositions of property contained in will What law governs? Law of nationality of testator at time of death governs Ex: if will was executed 10years before death, what happens if law is amended? o National law of testator governs in force at the time of testators death and not at the time of the execution of the will o Cayetano vs. Leonidas Fil nurse migrated to US and became a naturalized American but came home and died in the Phils Will submitted to court for probate Parents objected to probate on ground that they were preterited Will left all properties to a favorite niece Nothing left to parents Void under Art 854 CC Parents invoking Phil Law BUT American law applies because nurse was American American law allows testator to leave all properties to anyone, even a stranger III. SOLEMNITITES OF WILLS KINDS OF WILLS 1. Notarial Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) 2. Holographic Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Executed freely and voluntarily o Person executes a will under duress or one of the parties was defrauded. What is the status of the contract? 1.
Fraud or duress must be established by competent evidence To be VALID, it must be the free expression of the testators wishes on how his properties shall be disposed of when he dies
If coerced or fraud was practiced, then dispositions will not be his true wishes INVALID What are the formal reqs for a valid will? 2 classes: o 1. General 1. In writing 2. In a language known to the testator o 2. Specific vary depending on the type of will executed 1. Notarial Will For will to be valid it must be Notarized AKA: attested will (requires to be attested by 3 or more witnesses), ordinary will Ordinary reqs Art 805, 806 Special reqs Art 807, 808 2. Holographic Will Written by testator himself in his own handwriting, requires no notarization or witnesses (Spanish term: holografico) In writing o How do we know that the will is in writing? o How do we define writing? Symbolic representation of ideas and these symbols are capable of being understood by the beholder Sense of sight is involved Gather ideas from symbols you see o Ex: Chinese characters, Egyptian hieroglyphics, code that can be deciphered o Law doesnt specify material on which will should be written Ex: Bones set up a video recorder and declared how his property will be disposed of when he dies. Bones dies. Valid will? Is it in writing? NO, does not comply with the specific formal reqs. Not notarized. Ex: Bones becomes blind. Learned how to read and write in Braille. Bones wrote a will in Braille. As to Bones, he reads thru sense of touch As to someone else, reads thru site Braille is a form of writing
Voidable contract INVALID will May be avoided at the instance of the party who was defrauded or who was forced or coerced into executing the contract No such thing as a voidable will. Only VALID or VOID, no inbetweens.
Is it a valid will? Sir: hasnt yet heard of a will written in Braille but he thinks it will be valid In a language known to the testator o How do we know it was known to the testator? o Nowhere in the law is the testator reqd to be literate Illiterate not disqualified or prohibited from making his will o Akop vs. Piraso Akop was a wealthy but illiterate Igorot who left a notarial will Will was submitted to court for probate
Some relatives opposed on ground that the will which was written in English was not known to the testator therefore void SC: will void because written in a language not known to the testator Sir: But proficiency in a language does not require a person to know how to read and write Sir: WON a testator knew the language in which the will was written is evidentiary Must be proved by competent evidence Ex: Bones from Bicol married a Waray woman and they lived in Ormoc for 20 years and Bones died leaving a notarial will written in Waray dialect Was the will written in a language known to Bones? Abangan vs. Abangan SC created a presumption: testator presumed to know dialect spoken in place where he resides, where he is domiciled But this presumption is rebuttable by evidence In the absence of evidence that Bones didnt learn Waray, the presumption stands and the will is valid Suroza vs. Honrado Opening sentence of will: will written in the English language known to me Last par: foregoing have been interpreted or translated to me in the Tagalog dialect SC: will not written in a language known to him because will had to be translated to him therefore invalid
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n)
NOTARIAL WILLS a) General requirements Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) b) Specific requirements Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.
2.
May a testator write in his will that he is waiving the application of the law by declaring that his will shall be valid although it has not complied with formalities prescribed by law? NO o Making a will is purely statutory, therefore the provisions on formalities are mandatory o When there is no law allowing you to make a will or providing how that will shall be enforced, you cannot make a will o You can make a will and have courts enforce it only because there is a law authorizing or allowing it when that law is repealed, you cannot o Formalities are enshrined in the law for the protection of the testator because once he is dead he can no longer deny that the will is a forgery o Formalities ensure that no forged will shall be allowed or enforced by our courts o Safeguards are designed to discourage presentation of forged wills in court Art 805: Every will other than a holographic will must be subscribed at the end thereof o What do you mean by subscribed? Sub under, script write To sign under Act of manually affixing ones signature Testator will manually affix his signature at the end of the will Signature Signature serves 2 purposes: 1. to identify the testator 2. to authenticate the document verify authorship of document What form is signature is reqd to be valid? Law doesnt require a particular form of signature What is impt is that testator affixed sig himself with the intention to make the document his last will and testament Form of Signature: What if misspelled? Law doesnt require that it be correctly spelled Initials only? Ok as long as he affixed initials with the intention to execute document as his last will and testament
First name only? Last name only? Pen name? Fictitious name? Ok
Regardless of name signed, what is impt for will to be valid is WON sig was affixed personally by testator with the intention to execute the document his last will and testament How will he sign?
Delegate
o
o
Block print? Cursive? Ok Thumbmark? Ok Matias vs. Salud: req for thumbmark to be valid testator must have affixed his thumbmark with the intention to use it as his sig in executing his last will and testament Ex: testator has Parkinsons disease What if they used the thumbmark of a dead testator? Thumbmark of dead person after rigor mortis is different from when he was alive. So if you wanna get away with it, get the print while the bodys still warm. Must it be shown that he signed docs during his lifetime with a thumbmark? What if the will is the only doc he signed with a thumbmark? o Garcia vs. Lacuesta: thumbmark is more trustworthy than a mere cross Cross? Ok Abaya vs. Salamero: sufficient as long as testator intended that cross as his signature in executing his last will and testament Garcia vs. Lacuesta: added a req if testator knew how to read and write, it must appear that the cross is one of the ways that the testator signed his name during his lifetime o Its suspect if testator is literate and he signs with a cross o Not suspect if testator is illiterate
What if testator has no hands? He can still make a will because no law prohibits handicapped people to do so. He can sign with his mouth or feet Can he get a proxy to sign for him? Can he delegate the act of signing to another?
o Reqs:
YES, the law allows another person to sign his name for him a Delegate
1. Under the express direction of testator Delegate must be of sufficient discretion and discernment to understand the express direction of testator Delegate must know how to read and write 2. In the presence of the testator Who may be a delegate? Can one of the instrumental witnesses be a delegate? 2 views: Justice Caguioa: NO, Law requires the witnesses to witness the testator while he is signing, and if the testator signs thru a delegate there must be 3 witnesses who will look, if 1of the witnesses is a delegate, then only 2 of the witnesses will be looking, therefore not in compliance with the law (Baruc vs. Cabacungan) Tolentino: YES, not prohibited by the law Must the delegate be of age? Law doesnt require the delegate to be of age Opposing view: delegate is under a contract of agency therefore he must be of age Sir: doesnt agree, delegate just writes it for testator, no contract of agency Req: delegate must be of sufficient discretion and discernment to understand the express direction of testator Req: delegate must know how to read and write If child of tender age, may not qualify How must delegate write the name? He should write the name of the testator. How?
Where must testator sign? 2 sets of sigs reqd in Art 805

1st set:
1st par, 1st set: testator must sign at the end of the will 2nd par, 2nd set: Where? at the end of the will Wheres the end? 2 ends acc to Tolentino o 1. logical where the dispositions end o 2. physical space farthest from beginning of the doc Must sign at logical end o
the
Block print? Cursive? Chinese? Ok First name? Initials? Nickname? Ok, doesnt really matter for as long as testators name was written Law doesnt tell us what name is sufficient Rubber facsimile of testator? No, delegate must write name of testator in his own handwriting In re will of Siason: trembling hand of testator, requested nephew to write her name for her,
Why does the law require testator to sign at the end? to seal the will, to terminate the dispositions of the will, indicates where dispositions terminate, to indicate that as far as the testator is concerned the will is completed
nephew typed under por la testadora Dona Singson then typed his name under and signed his name o Did the nephew write testators name? Yes, but not in his handwriting, wrote it with a typewriter o SC: delegate did NOT write testators name o Implication: delegate must write name of testator in his own handwriting Handwriting: muscles and body of writer must participate in the casting of the letters, pre-cast letters arent handwriting
will: witnesses usually sign below testator 805 doesnt say witnesses must sign at end of willtestator ex. witnesses signed in margin will compliant w/ formal reqs (Taboada v. Rosal)dissenting par 1, A805 doesnt tell us where witnesses must affix sigs o whats impt: all pgs contain 3 sigs of witnesses and testators sig purpose behind this reqt that witnesses must subscribe: to authenticate that docu executed by testator is the docu that they witnessed (sign ea and every pg of the will) later on: difficult for a pg to be substituted for anotherforger has to forge 4 sigs (testator, 3 witnesses)
What is the effect if delegate writes his own name on the will as well? No effect, name disregarded as surplasage Signed in the presence of testator Conscious presence vs. physical presence Should be conscious presence Testator should be conscious of whats happening around him Ex: Bones brings a will to his uncle in a coma. If Bones signs, not valid because testator wasnt conscious. Delegate should sign in the presence of the 3 witnesses Next formal req: attested and subscribed
purpose served by manner observed by testator and witnesses = substantial compliancewill valid: no strict compliance w/ reqt prescribed by law but manner of compliance ffed by testator served purpose behind reqts o even though sigs in margin = allowed how will the witness sign? 1st name? initials? Thumbmark?
o o
Will must be attested and subscribed to by 3/more credible witnesses 1) ATTEST: o witness/observed exec of will, not certify (2ndary mng)
Tolentino: witnesses must affix on the will their usual sigswhen the witness didnt sign w/ the thumbmark in other docus = not sufficient Signed w/ thumbmark cause illiterate disqualified fr being a witness
qualn is that they shld be able to read and write
o o o
Purpose: provide evidence on due exec of will - when submitted to ct for probate
Ex. witness asked circs behind execution
reason why testator cant sign alone then later acknowledge before witnesses he signed his will and that its his ex. signed cause witnesses and NOTARY PUB late then later acknowledged and the other signed after = will not valid cause law requires witnesses to attest exec of will here: witnesses attested nothing - didnt see anything
ex) if the testator cant sign, may he request a delegate to write his name for himhow about a witness sign thru a delegate? Neither prohibited nor allowed by the law o GR: Cant sign thru a delegate but personally why reqd exception in law in the case of testator no exception for witness
Tolentino: witness cant sign thru delegate cause no prov allowing it cited New Hampshire lawallow witnesses to delegate but none in ours o = Even in US, GRs that they cant sign thru a personally; for them to sign, must be a prov of law How many witnesses are reqd? o A805: 3/more credible witnesses o Effect of only 2: will void o Reason: failure to comply w/ formalities prescribed What if 5 witnesses? o Effect: none law says 3/more witnesses
sign thru a delegate but allowing
no compliance w/ reqt of law
ex. testator signed will thru delegatereqd to write name of testator in his presence but must he write it in the presence of the witnesses? YES testator writing name of testator = exec of the will
by law
2) SUBSCRIBE: same mng as subscribe used for testator = sign
1 par reqt of signing: testator signs at end of will witnesses affix sigs reqd under par 1 law silent
st
The more witnesses, the greater the chances that will will become invalidthere might be 1 that wont sign in pgs (hard to track many sigs)
forms employed in certain leg transaxns: deed of donation/salelaw requires 2 witnesses: usually sign after sig of vendor and vendee
Is there an order of signing? Must testator sign ahead of witnesses/may they sign ahead of the testator? 2 Views:
Strict:
casting his eyes to the proper dir Just. Puno and Jurado: w/o sig of testator on docu, theres no will yet, on w/c witnesses will affix sigs = testator must sign 1st and only after hes signed that witnesses may affix their sigs thereon
Ex. testator signed 1st; after signed last pg of last copy had a heart attack: cant sign cause must be in conscious, not phys presence o brought to hospital: 1mo signed when well in conscious presence of testator, signed in hospital will valid? Here: 1mo interruption in exec of will o Reqts: when testator signed, he signed in the presence of the witnesses o When witnesses signed, they signed in presence of testator o = signed in presence of 1 another o NOT VALID: exec of the will must be completed in 1 continuous transaxn if can be interrupted by 1mo, why cant it be interrupted by 1yr, etc? Where do we end? Purpose for attestation clause: for them to reduce in written form what they witnessed in the exec of the will
Caguia: if they all sign at the same time, the witnesses wont be able to witness since busy signing, how can they see testator sign? Must lk at testator 1st Liberal: too strict!
it can be same occasion ex. 4 copies (1 ea) then swap hard to track + purpose of sigs of witnesses: authenticate when witnesses sign, have to sign in the presence of the testator and of 1 another (have to observe ea others conduct during the signing to provide evid of due exec later on) Must witnesses actually see testator sign for them to comply w/ the reqt of attestation in A805? subj of may SC cases Jaboneta v. Gustilo: signing of will to preserve for posterity, evid of the wills exec = testator requested photographers to photograph the event: o 2 witnesses w/ testator signing on table 3rd witness behind w/ some rels and friends o testator died and will submitted to ct for probate during trial, lawyer presented photos as addl proof of due exec o opposed: used pic to prove no due exec = only 2 witnesses cause witness in the back not lking when testator was signing (lking at opposite dir, talking w/ some1) o I: Must the witnesses actually see the testator sign for this reqt to be complied w/? o SC (memorize doctrine cause in bar > 3 times): The law doesnt require the witnesses to actually see the testator sign; its enough if the witnesses couldve seen the testator sign by merely casting their eyes in the proper dir (if they just see); dont need to be lking all the time o Here: since just behind, all witness had to do was move his head and cast his eyes to place where testator was seated
Ex. 10yrs fr time signed by testator and time theyll execute attestation clause, remember? Human memory is treacherous o Must be 1 continuous occasion Ex) if testator requested a delegate to write his name on the will, delegate must write the name in the presence of the testator and witnesses. But must witnesses sign in presence of delegate? o No reqt presence of prin enough o presence of delegate = surplusage
Reiterated in Nera v. Rimando: oppositors when testator was signing will, 1 of the 3 instrumental witnesses left the rm where the signing was taking place to go to the adjacent rm (only 2 witnesses left w/ opp to witness exec of will)not in compliance w/ reqt of law o Ct asked witnesses: Was the rm where the witness went far fr the rm where the signing was taking place? No Was there a door w/c can be closed in the rm? No, just an opening w/ a curtain Was the curtain drawn? No, it was tied at the side The witness in the other rm, did u see him? Yes Could he see u? Yes o Judge: Witness in other rm couldve seen testator sign by merely
ex) What if principal wasnt there after delegate signed but witnesses signed in presence of delegate? Will INVALID witnesses must sign in presence of testator Is a blind man prohibited fr making a will? o NO in fact, expressly allowed to make 1 cause of sp reqt reqd by law to be complied w/ when testators a blind man (808) What if testators blind, how will he see if witnesses will sign in his presence? o So testator see nothings being changed in his will Witnesses must witness exec of the will by the testator (cant be blind must see/opp to see) Testator not reqd to witness witnesses sign the will o only reqt: witnesses must sign in his conscious presence
ask how many are signing, who are in the rm, whos signing now? testator shld employ other means to ensure witnesses are signing will in his presence ATTESTATION & SUBSCRIPTION Must be attested and subscribed by three credible witnesses. The law says credible. When is a witness credible? Gonzales v. CA o The will was submitted for probate and its genuineness was contested.
o The witnesses were presented to testify on the due execution of the will. o The oppositor objected on the ground that there is nothing on the record which showed that the witnesses were credible. o It was the position of the oppositor that before a witness may testify and his testimony be admitted, the party offering the testimony should present evidence to qualify the witness as credible. o In the same way that when you present an expert witness, you have to qualify your witness as an expert before he is asked questions on the issues involved in the pending case. o Since the petitioner who presented the witnesses did not qualify the witnesses as credible, the testimonies of the witnesses are inadmissible. o According to the lawyer of the oppositor, that the witness should be credible is a provision of law. o Assuming that oppositor is correct, what must the petitioner present in court to prove that the witnesses are credible? o There is no provision in the Rules of Court nor in the Civil Code which tells us how a witness to a will may be credible. o According to the counsel of the oppositor, we have to look at other laws like the naturalization law. In the naturalization law, when an alien is applying for naturalization, the alien must present a credible or credible witnesses to testify on the aliens having met the qualifications for naturalization. And in that law, there is a provision which enumerates the qualifications of a credible witness. o Whether or not a witness is credible depends on the sound discretion and evaluation of the judge. o As long as the witness possesses the qualifications and none of the disqualifications of a competent witness, he may give his testimony in court. Article 805(2): The testator or the person requested by him to write his name, and the instrumental witnesses of the will shall also sign. o The second paragraph requires a second set of signatures. o Who are required to sign? The testator and the three witnesses are required to sign. o Where are they required to sign? They are required to sign on the left margin of each and every page except the last. Now why is the last margin excluded from the set? Because the signatures of the testator and the witnesses are already affixed on the last page. o What is the purpose behind this requirement? To authenticate all the pages of the will, so that each and every page page will have four signatures, and for that page to be substituted with another, four signatures have to be forged and the forgery, forging four signatures, somehow, might lead to the discovery of the forgery. If those signatures are forged, then the three witnesses when shown the copy of the will submitted to the court for probate can readily deny that the signatures on that particular page are not theirs. If the will was written on just one page, no marginal signatures are necessary because on that page, the signatures at the end of the will are already
affixed. Suppose the will was written on sheets of paper back to back, so the first page was written on the front page of the sheet and page two was written on the back of the sheet. The testator and the witnesses signed on the margin of the first page but they did not sign the back pages, only the front pages were signed by them. o Is the will valid? The back page probably cannot be changed because the front page is signed, but substitution is not the only problem here. What if there was really nothing written at the back pages at the time the testator executed the will and whatever is written now was just added after the testator has died? What will be our safeguard against insertion? So each page, back or front, has to be signed on the margin to show that there were provisions written on them. If the back pages were not signed, what does this imply? That at the time the testator executed the will, there were no dispositions written on the back pages. What is the effect if not all the pages were signed on the margin? o The will is invalid. Can we probate those pages which were signed by the testator and the witnesses and disregard those pages which did not contain marginal signatures? o No. In the probate of a will, it is all or nothing. If there is a defect in one page, the entire will becomes defective. Suppose one page has only the two signatures of the two witnesses, the other witness failed to affix his signature. o The will is not valid. o Icasiano v. Icasiano: the doctrine applies only to the facts of the case and does not apply to all wills. There were many copies of the will and the one that was not signed was the original. All duplicates bore the necessary signatures. Court said it was possible to submit the duplicate because the duplicate is a duplicate original because the signatures of the testator and all the witnesses were all in the original. Secondly, there was no allegation of fraud, substitution, etc. And thirdly, the dry seals of the notary public who notarized the will were all concentric, so there could have been no substitution. Sir: The correct ruling there is the other copies are duplicate originals and therefore they could have been presented for probate as the will of the testator and all those copies are in compliance with the provisions of the code on solemnities. What is the effect if the signatures are on the right margin instead of on the left? Will that invalidate the will? o No. The margins affixed on the right margin will be in substantial compliance with the requirement of Article 805(2). Why? Because the purpose behind the requirement is simply to authenticate the page and that purpose is served whether or not the signatures are affixed on the left, the right, the top or the bottom margins of the will. Why? There is substantial compliance when the manner
of execution followed by the testator and the witnesses were not in literal compliance with the provision of the law, but nonetheless, the manner of execution served the purpose of the requirement. When the testator requested a delegate to write his name on the will, then the delegate will also write the name of the testator on the margins of the other pages. May the testator and witnesses sign at the end of the will with their long signature and sign the margins of the other pages with their initials? o No. There should appear only one signature. o Sir: There can be no case, but in my opinion, it will be hard to match the signature of the testator at the end with that on the margin. A.805, 2nd par: all the pages of the will should be numbered correlatively in letters. o What is the reason why the law requires the pages to be numbered? The purpose of numbering is to prevent unauthorized insertions or suppressions of pages because to insert or suppress a page will be easily discovered. o The numbering has to be done correlatively in letters. How do you number in letters? We spell out the letters, so number one, o-n-e; page one, p-a-g-e-o-n-e. Why? It is easy to change numbers. What does correlative mean? The relation should not only be between three pages, meaning the page preceding and the page succeeding, but between all the pages. o And how do we do that? Page one of five pages, one of five, first page of five, etc. o When a page is suppressed or inserted, the suppression or insertion is easily discovered. o How do we know how many pages there are in the will? Example. The dispositions of the testator were written on three pages. The fourth page contains nothing but the attestation clause and the fifth page contains nothing but the acknowledgment certificate of a lawyer. How many pages are there in that will? Question. Do we include in the numbering the pages of the attestation clause and acknowledgment certificate in determining the total number of pages of the will? o No. Abangan v. Abangan: What do we include in determining the number of pages in a will? Only those pages containing testamentary dispositions until the end where the signature of the testator is affixed. o Article 805(2): The law requires that each and every page of the will except the last must be signed on the left margin. Should the testator sign on the left margin of the page which contains only the attestation clause or the acknowledgment certificate? No, because that is not part of the will. The attestation clause and the acknowledgment certificate is not the act of the testator. They are the acts of the witnesses and the notary public, respectively. But if they will sign, well and good. Their signatures on the left margin of those two pages will be considered as mere surplusage. But if they fail to sign on the margins of those two pages, such failure does not invalidate the will. o Where must the number be written?
It says on the upper part. What if it was written on the bottom? That will be substantial compliance because the purpose of the numbering written at the bottom serves the purpose of the requirement that it should be written on the upper part. What is the effect if one or more pages are not numbered? o As a general rule, the will is void for failure to comply with the formalities prescribed by law. o However, the Supreme Court has created exceptions to this rule. If the will was written only on one page. Martin v. Martin: The will was written on four pages. Its first page was not numbered but the rest were. Is the will valid? o Sir: Supposedly not. For all you know, it might have been the first page that was changed. o Court: There is no issue because of the four signatures being genuine appearing on the margin of the first page. There is little chance the first page was changed because the thought of the last sentence of the first page matches the first though of the second page. o Sir: I think the will was allowed because no issue is raised against the validity of the will. But simply because the sense of the last line or the last sentence or the last provision on the first page dogtails with the first line or the first paragraph of the second page does not mean that there was no possibility of substitution. The ruling of the court in Martin v. Martin is not doctrinal. Also in Lopez v. Liboro.
A.805, par3: ATTESTATION CLAUSE The next formal requirement in Article 805(3) is the attestation clause. o The attestation shall state the number of pages upon which the will is written, the fact that the testator signed the will and every page thereof, or caused some other person to write his name under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. o The attestation clause is a written memorandum of the facts surrounding the execution of the will. o Who will prepare the attestation? Lawyer o Who will sign the attestation? Or must the attestation clause be signed? If you will look at the third paragraph, there is no such requirement. o Attestation also means certification. Attestation is a certification of what somebody witnessed. The only persons who can certify as to what they witnessed are the attesting witnesses. o The attestation clause is required by law in order to preserve in written form the facts that attended the execution of the will so that in the case of failure of the memory of subscribing witnesses or because of some other casualty, the due execution of the will may still be proven kase nakarecord in writing.
o The attestation clause is a safeguard against the treachery of human memory. o The attestation clause therefore is the act of the witnesses. They are the ones who will certify on those facts required by Article 805 to appear in the attestation clause. o Must the witnesses sign the attestation clause? Yes, otherwise it is not a certification. Where do they sign? o Cagro v. Cagro: For the attestation to be considered executed by the witnesses, they must sign at the end of the will. The attestation was written on a separate page. Does the law require that the attestation be written separately from the body of the will? o No, there is no such requirement. In fact, the attestation may be made part of the will. o Is the testator required to sign on the margin of the page where the attestation page was written? No, because that page is not part of his will. o May the witnesses execute the attestation clause on a separate occasion? Sir: In my opinion, since the purpose of the attestation clause is to preserve in written form the memorandum, a memorandum of the facts attending the execution of the will, and the reason being to guard against the treachery of human memory, to allow the attestation clause to be executed on a separate occasion defeats the purpose. Therefore, the signing of the will and the execution of the attestation clause should be carried out on the same occasion in the same continuous transaction. o Cuevas v. Achacoso: The attestation clause was made part of the will. o Villaflor v. Tobias: The attestation clause may be written as a separate document on a separate page. o Suppose the witnesses, though literate, did not understand the Pampango dialect, but since the testator was a Kapampangan, his last will and testament was written in the Pampango dialect. The attestation clause written in the Pampango dialect, but even if the witnesses did not understand it, they signed it. When they asked what the clause contained, it was translated to them. Is the will valid. Yes. If you look at the last paragraph of Article 805, if the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. But suppose the testator did not understand the English language, but since the witnesses did not understand the Pampango dialect but could understand English, the attestation clause was written in the English language. o May the attestation clause be written in a language different from the language of the will? Sir: Bearing in mind that the attestation clause is not the act of the testator but the act of the witnesses, in my opinion, whether or not the testator knows the language in which the attestation clause is written is irrelevant. That is my opinion, which is the correct opinion.
What is the effect if there is no attestation clause? The will is void for failure to comply with the requirement of the law. o What is the effect if the attestation clause was not executed by the witnesses by signing at the end of attestation clause? The will is void because the attestation clause is not a valid attestation clause. o Suppose there was an attestation clause signed at the end by the three witnesses, but something is missing in the contents of the attestation clause. What is the effect? As a general rule, the will is void because the attestation clause is defective. Exception: When the attestation clause is in substantial compliance with the requirement of Article 805. Article 809 applies specifically to the attestation clause. In the absence of bad faith, forgery or fraud, or undue and improper pressure or influence, the text in the or imperfections in the attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. o The substantial compliance rule applies only to a defect in the form or in the language of the attestation clause. If the defect is neither in form nor in language, Article 809 does not apply. It therefore limits the application of the substantial compliance doctrine when the issue involves the attestation clause. When is there defect in form? When there is defect in the way the will was written. o Was it written in a separate document or was it embodied in the will? o The way the witnesses signed. What is language? It has to do with how the attestation clause was worded. Suppose the defect in the attestation clause consists of a total omission of a fact required by law to appear therein, can we show by parol evidence that there was substantial compliance with that requirement by adducing extraneous or parol evidence? o Gil v. Murciano: The attestation clause of the will failed to state one of those facts required by law to appear in the clause. but despite the total omission of that fact, evidence was sought to be introduced to prove that such requirement was nonetheless substantially complied with. Majority opinion penned by Justice Hugo: The will is invalid because the attestation clause was not in compliance with the requirement of the Civil Code because it failed to state one of the facts required by law to appear in the clause. Dissent by Justice Tuazon: This case is covered by the substantial compliance rule. Majority: But where do we draw the line? When do we apply the substantial compliance rule? o
Justice Tuazon: Substantial compliance is applicable to a fact required by law to appear in the attestation clause but not to all omissions. It will only apply to those omissions which can be cured by the four corners of the will. If the four corners of the will show that such omitted compliance was substantially complied with, then the will is valid. At that time, Justice Tuazon was in the minority and was citing the comment written by Justice J.B.L. Reyes published in the Lawyers Journal, November 30, 1950. Because of the divided court, a motion for reconsideration was filed and it was pending before the Supreme Court, Justice Ozaeta resigned from the court to become administrator of the estate of Carlos Palanca, Sr. A vacancy was created by that resignation and President Ramon Magsaysay appointed his brother in law, Justice Dizon. Justice Labrador voted with Justice Tuazon and the majority in court changed, with the latter then writing the majority opinion: A total omission is covered by the substantial compliance rule but not all omissions. Only those omissions whose compliance can be shown by the four corners of the will are covered. Caneda v. Court of Appeals penned Justice Regalado: When there is a total omission of a fact required to be written in the attestation clause, it is neither a defect in form nor in language. Article 8No questions asked. Even when the defect is one of form or language, substantial compliance may only be shown by the four corners of the will. Article 809 thus became very restrictive. Must the attestation clause state the names of the witnesses? o There is no requirement. Must the will be dated? o There is no such requirement. The date of the will may be shown by other evidence. Must the attestation clause be dated? o There is no such requirement. The date of the attestation clause may be shown by other evidence. There is also nothing in the law that requires the place of execution of the will be indicated. It will not invalidate the will if not written. Lets go now to the last of the ordinary specific requirements. The will must be acknowledged under Article 806: Every will must be acknowledged before a notary public. o What do you mean by acknowledge? Acknowledge means to admit, offer sheet of something, to admit having done an act, to admit having said something. o Who must make the acknowldgment? If you will look at Article 806, it would seem that only the testator will acknowledge because the will is his
act, but the testator and the witnesses must acknowledge before a notary public. o What will they acknowledge? What will they admit before the notary public? Insofar as the testator is concerned, the testator will admit that the will is his and that he executed that will freely and voluntarily. How about the witnesses? The witnesses will acknowledge that the attestation clause was executed by them and that they executed the attestation clause freely and voluntarily. o What is the purpose behind this requirement of acknowledgment? It was observed that the requirement minimizes the existence of fake wills. o When will the testator and the witnesses acknowledge? May they acknowledge on a separate occasion? Justice Caguioa: There seems to be no reason why the law would require the parties to acknowledge on the same occasion that the will was executed. It has nothing to do with memory. o May they acknowledge on four different occasions? Justice Caguioa: Yes, because there seems to be no purpose why the law would require that they acknowledge on the same occasion. o Before whom will they acknowledge? Before the notary public. Under the old Notarial Law, anybody who has sufficient education and who has very good standing in the community could be commissioned by the court as a notary public. But now, no more. Only lawyers are commissioned as notaries public. o If the parties can acknowledge on different occasions, may they acknowledge before different notaries public? Justice Caguioa: Yes, there is no restriction. But this is not really practiced. For one, it is costly. Secondly, the will might be mishandled. Thirdly, if four parties will appear to acknowledge before four different notaries public, the will will be filled with dry seals. o How do we know that the parties have acknowledged the will in compliance with Article 806? The notary public is required to execute an acknowledgment certificate. A.806: ACKNOWLEDGMENT
What is the purpose behind the introduction of ACKNOWLEDGMENT (A) as a requirement for a valid will? o Code commission: 1. To ensure the authenticity of the will 2. To minimize fraud When will the testator and witnesses A? o CANT acknowledge before execution o ONLY AFTER execution of the will Whats the evidence of compliance for requirement of A? o Notary public under notarial law has to prepare and execute an
Acknowledgment Certificate Whats the effect if no A? o Void will failure to comply with formality reqd by law Under notarial law: lawyer before whom will was A must retain 3 copies of doc o Retained in his files o Sent to national archives o RTC which has J over his commission Art 806 whenever document notarized is a will, the notary isnt reqd to retain a copy o Why? testator has an interest in keeping his will a secret Testator might be killed by those excluded in the will or by those who want their inheritance faster When is the lawyer supposed to prepare and execute an A certificate? o Javellana vs. Ledesma Wealthy Ilonggo haciendero was in the hospital for treatment, requested his lawyer to prepare his will Draft of the will approved by old man, day for execution of the will was scheduled and 3 friends invited to act as witnesses Will was executed in hospital room with witnesses and executed attestation clause, lawyer who prepared the will was also present and he was supposed to be the lawyer before whom will was to be A Lawyer didnt have his notarial register and dry seal so he brought the copies of the will to his office and left it for the next days workload Lawyer wasnt able to prepare the A certificate for more than a week Testator later died Lawyer told his secretary to prepare the A certificate, lawyer signed and notarized it Will submitted to court for probate Relatives opposed During trial, the secretary and lawyer fought Secretary told oppositors lawyer that the A certificate was prepared and signed after testators death Secretary was presented in court to testify Is the will valid? YES The fact that the notary public executed the A certificate after the death of the testator does not affect the validity of the will The law doesnt require the notary to execute the A certificate on the same day that the testator and witnesses A before him, he may do so later, even after death of testator Under NIRC: whenever a notary public notarizes a document, the law requires a Documentary Stamp Tax to be affixed, notarized doc wont be admissible in evidence if DST isnt paid and affixed o Is failure to affix and pay DST fatal to the will? NO Gabucan vs. Manta All petitioner has to do is affix the DST It can be done anytime, doc becomes admissible once paid and affixed
May one of the acknowledged? o Is a witness disqualified to be the notary public? NO If this would be the case, then any time the witness is the notary public, the will would be invalid even if there are 3 or more witnesses o Is the notary public disqualified to be a witness? YES Cruz vs. Villasor: The notary public is disqualified to be a witness If there are only 3 witnesses and one of them is the notary there are only 2 witnesses since notary is disqualified to be a witness invalid will Witness cannot before himself If there are 4 witnesses, one as notary will still valid because there would still be 3 witnesses left Rule: the notary public before whom the will was A is disqualified to be a witness
There will be penalties but it wont invalidate the will witnesses be the notary public before whom will
c) Special Requirements Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n) ADDITIONAL/SPECIAL REQUIREMENTS FOR SPECIAL TESTATORS o 1. 807 deaf, deaf-mute o 2. 808 blind Mandatory, invalid will if fail to comply, unless theres substantial compliance 807: Deaf/Deaf-mute o Law requires the testator to personally read the will if able to do so Deafness could have been acquired after testator learned how to read/write o Otherwise, designate 2 persons to read the will and communicate to him in some practicable manner the contents of the will o Why are there special reqs for deaf/deaf-mute? Before considered dumb because most likely unable to learn how to read and write, therefore cant understand whats written, so addl requirement to ensure testator understands whats in his will Now deaf and deaf-mute can read and write o 2 witnesses Will they read one at a time or do it together and help each other in communicating contents? Compare to 808 very clear that they have to do it one
after the other Intention of 807 that they will read it together and help each other to communicate the contents (because before it was difficult to communicate contents to a deaf person) Who may be witnesses? Anyone testator designates for as long as they are able to communicate the contents of the will
808: Blind o Will shall be read to the testator twice 1. by 1 of the subscribing witnesses 2. by the notary public before whom will A o Law is very specific. Specifies: Who will read How they will read one after the other o How do we know a testator is blind? Garcia vs. Vasquez Testatrix had thick cataracts in both eyes Doctors testified that testatrix wasnt totally blind because she could still see the outline of things, blurred vision, she could not have read the will even with glasses Relatives opposed on the ground that will didnt comply with addl req in 808 testatrix was blind because she could not read SC: the law doesnt require the testator to be TOTALLY blind for 808 to apply o For the purposes of making a will, the testator is blind if the testator cant read o If the conditions of his eyes will not enable him to read = blind Therefore, will invalid o Alvarado vs. Gaviola Old man who was in the hospital summoned his nephew lawyer to prepare his will Will finalized and day set for signing Testator couldnt read anymore, almost totally blind On day of execution, 6 people were in the room 3 witnesses, notary public, nephew lawyer, testator Lawyer gave a copy to each of the witness and the notary Lawyer read the will aloud slowly while the witnesses and the notary were following him silently using their own copies Testator said okay thats my will Ill sign it Witnesses signed and notary notarized it Relatives opposed on ground for failure to comply with formalities prescribed by law testator was blind and everyone admitted he was, but they didnt follow the addl formality in 808 Only 1 person read, not even the witness or notary read it SC: will valid There was SUBSTANTIAL COMPLIANCE with 808 Manner in which will was executed served the purpose
behind 808 Purpose of 2 readings: for testator to check that whats written in the will is what he instructed If the nephew read something different from what was written, the 3 witnesses and notary wouldve objected Established that what was read to testator, was what was written, then there was substantial compliance
d) Substantial Compliance Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n) 3. WITNESSES TO WILLS a) Who are competent Only for notarial wills. Who may be a witness to a notarial will? Those who are qualified and not disqualified Who are qualified? (A820) Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. (n) o First qualification: Of sound mind Is the qualification same as the qualification under A799? Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) Of course not. Soundness of mind for the purposes of making a will under A799. Soundness of mind of a witness is based on the definition of a witness under the Rules of Court. It should make a witness competent to testify. The witness must be of sound mind at the time he attested the execution of the will. If the witness was of sound mind at the time of the execution of the will and subsequently became insane, the insanity will not affect the validity of the will. Must be at least 18 years of age Must be 18 at the time of the execution of the will. 18 so that he has sufficient capacity, discernment Not blind, deaf or dumb Able to read and write Bec they have to sign
o o
Disqualification (A821) Art. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. (n) o When is a person domiciled in the Philippines? Domicile of a person is the place of habitual residence (habitual personally residing in that place) as opposed to a mere intention to return. Why is a person not domiciled in the Philippines disqualified? Bec it may be the case that when the witness is called to testify, such witness cannot testify. May an alien be a witness? Yes, for as long as that alien is domiciled in the Philippines. Suppose a Filipino citizen is abroad and he wants to execute his notarial will before the consul general in New York, and the witnesses are the Filipinos friends who lives in New York who are Filipino. Tolentino: when a Filipino is abroad, he should be allowed to execute the will and the requirement that the witness is domiciled in the Philippines be dispensed with. Caguioa: That is precisely the reason why the provision of the old code was suppressed in the new code. The implication of the suppression is not to allow witnesses who are not domiciled in the Philippines to be instrumental witnesses to wills executed abroad. o Effect: a Filipino may execute his will abroad in accordance with law, but only a holographic will for it needs no witnesses. N was convicted of raping C and sent to prison and was paroled. Ns best friend B was executing a will. N was taken as a witness by B. Is N qualified to witness the will of B? Yes, N can be a witness. N:I may be a rapist but I am not a liar. Who are disqualified? Those who have been convicted of falsification of a document, perjury or false testimony. What is common among these 3 crimes that disqualified them from witnessing a will? Falsehood. If you are a liar, how can you be credible as a witness?
void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. why do we have this prov? Ex) there are 3 witnesses to bones Will o Donna, val, carms o Bones gives donna a legacy in his Will o The Will is submitted to Ct for probate, its validity is contested for failure to comply w certain reqs o Who will be presented to testify on WON the Will complied w the formalities prescribed by law of course the witnesses to it o If donna is testifying, donna will be torn btwn the devil & the deep blue sea why? Bec if she testifies truthfully & the truthful testi will invalidate the Will, she wont get her legacy She may be thinking oh no, the Will is invalid, bec val was in the bathroom when they were signing & she cant be in the bathroom & watch them sign at the same time But if she tells the truth in Ct, the Will becomes invalid & she wont get her legacy Thus, there is a temptation on donnas part to lie To testify in favor of the validty of the Will so that shell get the legacy o So what ds the Ct do? So that shes not tempted to tell a lie, shes disqualified from rcvng the legacy o Shes not disqualified from testifying, but from rcvng the legacy, bec shell get nothing from telling a lie o and since she wont get her legacy, then she wont get anything from getting a lie thats why theres a colatillia in A823, unless there are 3 or more witnesses since there are 3 or more witnesses, if you disqualify donna or whoever, there are 3 more to testify ex) what if there are 6 witnesses & all of them are legatees at the same time, will all of them rcve their legacies? o Bec A823 dsnt state that the other 3 shldnt be legatees themselves o But where the law dsnt specify that the 3 other witnesses shldnt be legatees themselves, thats implied, bec what the law seeks to remove it the temptation for the witnesses to lie & that temptation is there if the witnesses are allowed to rcve their legacies Q on final conviction, wc disqualifies a witness (under A821) o Suppose the person was convicted of the crime of perjury but the case is pending appeal, bec the crime is bailable, then while his conviction for perjury is on appeal, hes free o While the case is pending appeal, the testator invited the accused to be a witness Is he qualified to be a witness? Yes, bec the conviction is not yet final o But after the Will is executed, witness by this accused, the conviction becomes final CA affirmed the conviction & the convict availed of
Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n) Supervening incompetency Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n) c) Competency of interested witness Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be
b)
probation Hes convicted & he ddnt appeal anymore to the SC What happens to the Will? Is it invalid bec 1 of the witnesses is convicted later on of a final judgment? SIR: this is akin to a supervening disqualification The witnesses shld possess all the qualifications & none of the disqualifications at the time of the execution of the Will A supervening disqualification dsnt invalidate the Will, wc was otherwise valid at the time it was executed o We shldnt prejudice the testator & his heirs
such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n)
Formal Requirements for a HOLOGRAPHIC WILL o 1. must be entirely written in the hand of the testator o 2. signed by the hand of the testator o 3. dated by the hand of the testator
HOLOGRAPHIC WILLS a) General requirements Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. Holographic will o NO witness or A reqd o Common Element: in the hand of the testator For it to be valid, must comply w/ gen and spec reqts o 2 gen reqts in writing in a lang to the testator o 3 spec reqts written entirely by the hand of the testator must be signed by the hand of the testator must be dated by the hand of the testator no reqt it be witnessed o but if witnesses attested and signed holographic will, attestation and subscription by the witnesses wont invalidate it witnesses simply considered as surplusage no reqt for them to execute attestation no reqt that testator acknowledge the will before a NP o but if testator appears before NP to acknowledge exec of holographic, such doesnt invalidate it mere surplusage
4.
b) Specific requirements Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n) Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date,
1. It must be written entirely by the hand of the testator suppose a persons illiterate, may he make a will? o No prov in the Code w/c expressly prohibits an illiterate man fr making a will If testators illiterate (cant read/write), is there an addl reqt to execute his will must complied w/ for it to be valid? o There is Blind person if he cant read Since illiterate cant read, in the eyes of the law, hes a blind testator o Should ff 808 in the exec of the will May an illiterate make a holographic will? o Just. Paras: He may All he has to dos request a friend who knows how to read and write to write the holographic will and copy it w/o understanding it How ensure what friend wrote for him to copy was indeed the wishes he wanted embodied in his will? Suppose blind man writes in Braille, will that qualify as a holographic will? o Trace hist why holographic wills allowed in the law Sci demonstrated that no 2 ppl write in the same way Manner of executing letters varies fr person to person o Why forgeries can be detected fr an exam of the handwriting o If use Braille, cant detect Blind man uses stylus and simply grps punctures to create letter/sound/phonetic Might not be able to est authenticity of docu caus theres no handwriting to compare w/ orig admitted specimen o Just JBL Reyes: caution in comments on NCC on this decision to include holographic wills in the new law Only way to authenticate genuineness of handwritings to compare it w/ a known admitted specimen of testators handwriting Lose means to authenticate if testator didnt write at all during his lifetime or even if he wrote but those matls are lost
+ ppl who can copy anothers handwriting/forge = man w/ a golden hand + if only those w/ props are inclined to make wills, must have means to pay profl fees of lawyers o if only habilin w/o disposition of props mortis causa, no1 will forge agree on criticism of JBL on allowing holo wills in our law even if testator rich, too secretive, dont want any1 to know his testamentary dispositions o if lawyer involved in prepn and exec of will, will come out (sec) o testator do it in own handwriting so only he knew contents of last will and testa suppose testator has no hands, can he make a holographic will? o Will written entirely w/ foot, is will valid? Sir: We shouldnt be literal for as long as the manner of writing the will involves his phys person so that the writing will be unique to himself and can be identified as his later on = satisfies reqt of handwriting Same if written by his mouth o Some writers want handwriting reqt to be interpreted literally by hand If a will wasnt entirely written by the hand of the testator, the wills invalid o Can we disregard those not written by his hand? GR: No cause probate of a wills all or nothing o Ex. w wrote 3rd disposition of h and h signed and dated will in his own handwriting Not valid: not written entirely in hand of testator Portion not written in his handwriting o Ex. h finished, signed and dated will entirely in his own handwriting and w saw it and added a prov in her own handwriting is the will valid? Will, in orig tenor, valid cause it complied w/ all formalities prescribed by law What wont take effect is unauthorized insertion by w Ajero v. CA: If invalidate will simply cause prov was added, so easy to invalidate holographic will All an heir whos not satisfied w/ how estates disposed of will do is write on will Cant make validity of will dependent on whims and caprices of unsatisfied, unhappy heirs o Ex. w, when added to will, showed it to h, who agreed (ppl pres and saw h agreed) Is the will as modified, by the insertion of the w, valid? No cause w/ or w/o authorization of h, wills not entirely written by his hand For an insertion after the will has been executed to be valid, it must be authenticated by the full sig of the testator under A814 W/o authentication w/ full sig, wont take effect, even if written by his own hand; w/ more reason if written by some1 else
Will in orig tenor take effect cause insertion made by w not effective, even if w/ express consent of testator o What if w, after making insertion, h signed Will the testa, as modified by the w, take effect? Is it a valid will? No, the modifications not in the handwriting of the testator so the will as modified wont take effect WON he consented to it, the will doesnt conform w/ the reqt that it be entirely written in his hand Will in orig tenor wont take effect/is invalid When he authenticated the insertion, it became part of the will, and the wills no longer compliant w/ the reqt that it be entirely written in his hand Testator may write his holographic will in any form as long as theres animus testandi law doesnt require a parti form in w/c a holographic will must be written o Letter o Poem o Entry in diary
2. It must be signed by the hand of the testator
How may the testator sign his holographic will? W/ his initials? 1st name?
o
o
Yes, as long as initials, 1st name/last name were intended by testator as his sig in executing his last will and testa Paras: To allow the testator to execute his will w/ his initials is absurd cause A814 - When the testator will alter, modify/correct some portions of his will, for it to be effective, it must be authenticated w/ his full sig If alteration needs full sig, what more entire will? Sir: Doesnt understand mng of full sig = not the same as long version of his sig Full sig in A814
Sig testator will use in signing will is full sig If initials used in signing at the end = full sig Make insertion = sign the same thing Full sig = sig used in executing will Any symbol/marks allowed for as long as it was written there by the testator w/ the intention to make it as his sig in executing the last will and testa o May the testator sign his holographic will w/ a thumb mark? If notarial will, a thumb marks been held by the SC as sufficient compliance w/ the reqt of sig for as long as he affixed his thumb mark as his sig in executing his last will and testa Paras: He may. If allowed in notarial, should be allowed in holographic. Caguoia and De Leon: Thumb mark not allowed in case of holographic will cause law says will must be entirely written in the hand; sig must be in the handwriting of
testator 811: In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. = thumbmarks not a handwriting but a mark Mark shouldnt just be imprint of thumbmark; testator must have phys/bodily parti in the formation of the mark affixed on the will = too literal What if during lifetime, used thumbmark to sign all docus? If we ff Caguoia and De Leon, even if during lifetime, testator signed docus w/ thumbmark, holo will shall be invalid = thumbmark not form of handwriting Where must testator sign in holo will? o 805: In notarial will, laws explicit and spec in requiring that testator must sign at end of will o No such spec reqt in A810 o Ex. will no sig at end might not be finished, even if theres closing sent Even though signed, I, Juan Dela Cruz, of sound and disposing mind, by the grace of God = how write name, how sign Only valid up to that portion cause of A812: In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. = tells us where testator must sign: at the end If will signed by testator, will finished and closed Wrote under sig, another will = for addl dispositions to be valid, must be executed as if new will: signed and dated Actually a codicil written on the same paper on w/c the orig holo will was written Testator must sign at the end of the will this is implied from A812 3. the holographic will shld be dated by the hand of the testator If the will is not dated, the will is invalid Why must a holographic will be dated for it to be valid? o In the case of a notarial will, nowhere in the law is a notarial will to be dated. The date of notarial will may be proven by extraneous evidence [evidence outside the body of the will]. It may be proven by testimony of the witnesses. It may be proven by the testimony of the notary public before who the will was executed. Nowhere in the law is date required for a valid notarial will. o In the first place, why is date necessary? The date will tell us the law that the testator must observe in the execution of his will for it to be valid. The law in force at the time of the execution of the will governs the formal validity of the will. Not the law at the time of the death of the testator. In determining the testamentary capacity of the testator, the date becomes material. The law requires that the testator is at least 18. if there is no date, how sure are we that the will is not executed before he reached the age of 18. Thirdly, in so far as testamentary capacity is concerned, bec we can fix
more or less the mental condition of the testator at a particular time. For instance if the mental capacity of the testator was put in issue. That mental capacity may not be existing from the time of his birth to the time of his death and only for a specific period of time. Therefore we must know that the will was executed at the time when he had mental capacity or at the time when he had mental incapacity In the case of a notarial will, the date of the execution is not necessary to be written on the will. the date of execution may be proven by extraneous circumstances. Not so in a holographic will In a holographic will, there are no witnesses. There is no notary public before whom the will is acknowledged. In a holographic will, the will is the only evidence of its due execution. What date is sufficient? Can you place Christmas 2005? Old CC, reqt as to date was very specific, law provided that testator must write day month and the year. New CC, the framers believed that that was too long a formula and replaced it with date. Sir: IMO, for as long as the exact date may be ascertained from the wordings of the testator, that date will be sufficient. Christmas 2005 should be sufficient bec we know Christmas is Dec 25 Supposed the date placed is Feb 61 will that be sufficient? Roxas v De Jesus: that was how the date was written in the holographic will. o SC: Yes, substantial compliance. In the first place, the changing of the formula of day month and year to date gives us an implication that the law no longer requires that the holographic will contain the day, month and year bec they made it date. o The period was sufficiently small, and during that period, there was no allegation that the testator was insane or was mentally incapacitated, so it was ok. It was a matter of 28 days. What date must the testator write on the holographic will? Caguioa: Testator must write the true date [any date that has any relation in the execution of the will]. If the testator writes a false date, the will becomes invalid.
E.g. Bones decided to make his will. so today, July 30, he took out a yellow pad paper and started to write his will. He wrote caption Last will and testament, opening par. I, Francis Reiner Palanca, of legal age, single, of sound and disposing mind, by the grace of God, hereby publish my last will and testament. He said: Ang hirap naman ng sinulat ko na ito. Magnum Opus yan. Draining. He decided to put it aside to be continued on another day. Aug 30, he decided to continue writing his will. He wrote the 1st provision. To my one and only beloved sweetheart, Valerie Joy Brion, I give my valued property: And then he stopped writing. What else do I have to give Valerie. He decided to stop writing to be continued later. Sept 30, he wrote his 2nd disposition, and kept it again. Oct 30, he wrote his 3rd
disposition. Nov 30, he wrote his 2nd disposition. On Dec 30, he decided he had nothing more to add so he signed the will and kept the will. Feb 28, 2008, he decided to read his will again, he found out that he had not dated the will. What day should he write so that the will may be valid? May he write Feb 28, 2008, where he wrote nothing? Dec 30, when he affixed his signature? Nov 30, when he wrote last disposition? Oct 30, Sept 30, Aug 30? o YES, bec all those dates have something to do and have a connection in the execution of the will. o If Bones wrote a diff date, e.g. Mar 2007, wc has no connection whatsoever with his execution of the will, will is invalid. Bec accdg to J Caguioa, the date written on the will is a false date. A true date has to be written to be valid. And a true date is a date that has any connection with the execution of the will. So far, no case has reached the SC re: this issue Where must the testator write the date? Beginning of the will? Yes Anywhere in the body of the will? Yes End of the will before the signature? Yes After the signature? Yes For as long as the date can be shown from the manner or the position the signature was affixed that it is an integral part of body the will. Has to be shown that date is part of the will Bec if the date is written at the back of the will, though in handwriting of testator, it is not an integral part of the will. Therefore, we cannot consider it part of the will bec it is on the next page. A813: when a number of dispositions appearing in a holographic will are signed whatever be the time of prior dispositions quoted the code Will validate all dispositions appearing before the signature although the signature was not dated As long as there is no date with the dispositions above the signature, as far as the testator is concerned, those dispositions are not yet complete as a last will and testament. What will complete it is the date.
Alterations A814: allows testator to alter his holographic will. Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n) May take 3 forms: o Deletion certain wordings / provisions of the holographic will are deleted by the testator. By obliterating that part or canceling that part he wanted out of his will o Insertion testator wants some wording, some texts, some sentences inserted into the body of the will. Usually like when we correct our written work, we place a curret, the arrow, and then we add the right, changes we want to introduce in that space between the lines of the written work o Substitution the testator will cancel certain words or certain provisions of the will and in lieu thereof, he will write the substitute wording, the substitute provision or the substitute text of the will
For that alteration to be valid, however, the law requires that the testator do it in his own handwriting and it must be authenticated by his full signature. May the testator alter his notarial will? o No, the testator may not. When the testator alters his notarial will, it is not the same will that the witnesses observed he executed. And if the alteration that the testator will introduce will amount to a revocation of that will, revocation will take effect if validly done under A830. The will be revoked if the alteration that he introduced would amount to revocation. E.g. The testator didnt like his signature in the will. He erased it and signed it again. The will is rendered invalid. How will the testator modify/alter his notarial will? o He can do so by executing a codicil, which has to be executed as in the case of a will, as if the codicil is a new will. For holographic wills, the testator allowed to modify through alteration in A814. Illustration: o After 1 year from making the will, he placed a curret to place the missing part. For that to be valid, it has be authenticated by the testators full signature. Otherwise, it will not take effect. o Suppose the testator did not authenticate with his full signature. Will that alteration take effect? No, it will not take effect. Because it did not comply with the requirement that it be authenticated. o How about the original will? the original will without the alteration in its original tenor, will it take effect? Yes, it will take effect. Because the alteration did not become part of the will because it was not authenticated. o Does the alteration have to be dated? No, the date placed in the will is enough o Later on, he took the will again and saw it lacked something again. So he placed, P.S. and he signed it/ authenticated with his full signature. Is that alteration valid? No, not a valid alteration. Because in reality, it is not an alteration of the will. You are not changing anything within the 4 corners of the will. In reality, it is a codicil, it is a new will. And lastly, because of A812. Dispositions appearing after the signature of the testator must be signed and dated to be valid. Why? o Because after the signature of the testator, dispositions that will follow are no longer part of the will. Since they are not parts of the will, they cannot be considered alterations of the will.
He placed an additional disposition at the top of the paper because he was saving on paper and there was no more space at the bottom. He placed PS2. He signed it but without a date. Is the 2nd PS effective?
No, not effective. A812 if you read it literally applies bec the 2 nd pahabol are written not below the signature but above the signature. But that is not the intention in A812. The intention of A812 is to contain the will only to those written by the testator above the signature and existing at the time the signature was affixed. A814
confines alterations within the body of the will. These 2 pahabols are no longer modifications within the body of the will, but are modifications outside of the will. And therefore A812 applies to them. They must be signed and dated because in reality they are codicils written on the same paper that the original will was written. You can only apply A814 to alterations within the body of the will. The body of the will is that existing at the time the testator affixed his signature. At the time he affixed his signature, the pahabol was not there. Therefore, it was not part of the will at the time the testator signed his signature at the end. Therefore, A814 does not apply to this PS2 or this PS1 because they are not modifying the body of the will. Suppose the testator effected a substitution. o There is a will with only 1 disposition. I institute my brother, Jose as my sole and universal heir. Signed by the testatrix. Is that a valid holographic will? Yes, it was a valid holographic will. It was entirely written by the testator in his own hand and signed and dated by his own hand. Kalaw v. Relova The testatrix had a quarrel with her brother, Jose. In this case, the testatrix was a spinster. She got the holographic will she wrote before and removed the name Jose and place the name Juan. But she forgot one thing. She forgot to authenticate the alteration with her full signature. When she died, the will was submitted to court for probate by the heirs. Issue: Who will inherit o Juan: I will inherit bec my name was written in the hand of the testatrix. Obviously she had a change of heart thats why she crossed out the name of my brother and she wrote my name in his stead. That was the desire of the textatrix and we have to follow that desire. In succession, the will of the testator is paramount. o Jose: No, you are not entitled to inherit. Because while your name was written, it was intro as an alteration and it will not take effect bec the alteration was not authenticated by the full signature of the testatrix. My name was crossed out but it was an alteration, and such alteration did not take effect bec the testatrix did not authenticate the crossing out with her full signature, I still inherit. Sir: highly anomalous decision penned by J . Juan cannot inherit because his institution was intro as an alteration and not having been authenticated, the alteration does not take effect Jose will not inherit likewise, bec the cancellation of Joses name is not just an alteration, it is also a revocation. Revocation by cancellation under A813 takes effect without need for authentication by the testator. Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) Sir: If we follow the logic of the SC in this case, anything that will change the sense of the disposition in the will, will take effect
without authentication. As long as you cross out, and that crossing out will affect the disposition, you can do without authentication because that is also a partial revocation of the disposition. o Whenever it amounts to a revocation, the article on revocation applies. And the article on revocation does not require authentication for revocation be effective. So what is now covered by A814 if we follow the logic of the SC? o It will only cover innocuous insertions or deletions. Sir: Maybe grammatical corrections, adding a word for clarification but without necessarily modifying the testamentary disposition affected by the modification. Sir: But that will be absurd! If the modification will not change the disposition for that modification to take effect it has to be authenticated by the full signature of the testator. Innocuous, it will not affect the disposition and yet, for it to be effective must be authenticated by the full signature of the testator. And yet, when the alteration will amount to a modification, to a change in the implementation of the disposition amounts to a revocation, meaning it will take effect even without the authentication by the full signature of the testator. Absurd! o That is why J. Vitug before he became SC justice severely criticized this decision. We have to apply A 814 in the case of a holographic will even if the alteration will amount to a revocation. If it will amount to a revocation of a provision, A814 will apply because it is an alteration. The SC should limit the application of A813 on revocation to cancellation of the entire will. In truth, it is not an alteration but a cancellation of the whole will because in effect he is revoking the whole will. Because the decision in Kalaw v. Relova is wrong, who should have inherited? Jose. Because the crossing out of his name did not take effect. Even if the SC said it was a partial revocation of his institution and can take effect even without authentication with the full signature of the testator. Maybe the SC can distinguish from the partial revocation of an institution and a partial revocation of a disposition, it is a way to justify the ruling in Kalaw v. Relova Sir: subscribes to the view of J. Vitug that the decision is wrong. But in the bar, any question as to this issue would be answered accdg to the decision in Kalaw v. Relova.
c)
Requirement for probate

Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a) Suppose the notarial will executed by the testator got lost, was misplaced, when he died they couldnt find it. May the lost notarial will be probated? o Sir: Yes, the lost notarial will may be probated for as long as it can be shown that the will he executed before was not destroyed by him to revoke it, and after it has been shown that the will was not revoked, the due execution of the will must be proven and the contents of the will must also be proven. o How can they prove all those facts? By evidence other than the will They may present the lawyer who prepared the will who has a copy of the will or that he may present a final draft of the will The witnesses may be presented to testify that the will was duly executed, that the attestation clause was executed by them and that they can testify on what were the contents of the attestation clause They can also testify that they appeared before a notary public to whom they acknowledged the will. And that the notary public can also be presented to testify as to that fact. o So after all those facts are proven in court, the lost notarial will may be allowed to probate. o It will be easier if there is a copy of that notarial will in the possession of anybody. How about a holographic will? If a holo will is lost, may it be probated?
photocopy or a duplicate copy, the carbon copy of this photocopy may be probated o Sir: wrong! I dont know if the justices who concurred with that opinion concurred with the footnote as well. That footnote became the basis of a subsequent case. Rodellas v. Aranza where they lost the will and they submitted a photocopy. This decision has to be reversed, abandoned bec it is a wrong decision. You cannot discover forgery from a photocopy, only from an original. There are telltale signs of forgery that can only be seen under the microscope. If a forger copies the handwriting, it is not of the same speed as the testator could have written it. Everytime a pen slows down, it can be seen under the microscope. There are more ink dispensed for every hesitance, the stroke of the pen slows down. Cannot see the gravity from a photocopy. Cannot see a very good forgery from a photocopy, thats why, using that footnote from Gan v. Yap, the forger will make a will, copying the handwriting of the testator, photocopy it, and destroy the original, submitting the photocopy to the court. There is a provision in the code relating to probate of a holographic will, A811.
IV. INCORPORATION OF DOCUMENT BY REFERENCE Art. 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and (4) 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. (n) Cf: Purpose: Report of the Code Commission, pg 108 When the testator has lots of properties to dispose in his will o If he enumerates all those properties in the will itself, the will could become very long o Whenever the will is long, there danger of the will not complying the will not complying with the formalities o Ex: Icasiano vs. Icasiano signature missing because 2 pages were lifted at the same time when turning the page o To avoid this, the law allows the testator to make an inventory and simply refer to the inventory in making testamentary dispositions o Ex: I given to Pedro my oldest son all the properties listed from page
GAN v. YAP given us the correct general rule A lost holographic will cannot be probated Because it is the only evidence of its due execution But, there is a footnote in the decision in the dispositive portion This being the case, there is no legal obstacle to consider the constitution in force and effect * I dissent, a ponente dissenting on his own ponentia o A justice who did not agree with the dispositive portion should not have written the ponentia o Sir: Anomalous! He should have allowed the justice who inserted the dispositive portion to write the ponentia. E.g. H and W got married. 1 day, H got into an accident and died, during the wake in their residence, the friends went to the wake where W was crying very hard bec she was left by her loving husband , but there was a will in his own handwriting on a yellow pad where there was a single sentence I institute my loving wife as my sole and universal heir Sgd. H and there was a date, the will was passed around among the friends. At 1am, the will was lost. May that lost holo will be allowed probate by the court, upon testimony among all the witnesses who saw the will. How do we ascertain that the will was really written by the testator? The holographic will is the only evidence of its due execution. There can be no other evidence that the court cannot need to prove its due execution. Gan v. Yap (footnote) - however if the lost holographic will has a
1 to page 2 of the inventory, to my second son all the properties listed from page 3 to page 4 When will submitted to court for probate o Will is valid o But what about the inventory? How sure are we that the inventory wasnt substituted? 827 - inventories or documents may be incorporated in the will by reference o For incorporation to be valid and effective, the inventory or document must be in existence at the time of the execution of the will o Testator cannot refer to a document which is not yet in existence, document must be in existence at time reference was made o Will must clearly describe and identify the document Must be suffciently described so the document can be identified If description is not adequate, itll be difficult to identify the doc later on as the doc incorporated o Description reqd: # of pages Precludes suppression/insertion of a page of the document Signed on each and every page by the testator and witness Except in case of voluminous books of account or inventory Voluminous o Document need not be signed on all pages by the testator and the witnesses o When considered voluminous? Law doesnt tell us how or when Law tells us that requirement of signatures is not mandatory o Danger of a page being suppressed/added is greater So why the exemption of signature for voluminous docs? Precisely because 827 seeks to minimize the dangers of non compliance with formalities If signatures on every page were reqd then there would be a greater danger that the signers will skip a page that should be signed o Absence of signatures on 1 or more of the pages will not automatically invalidate the incorporation by reference, other evidence should be introduced to prove fraud or forgery During the trial, when the doc inc by reference was made in the will, evidence must be introduced to prove that the doc submitted as the doc referred to in the will is in fact the doc inc by reference o What if doc cant be found but there are provisions in the will that dont depend on inventory? Allow or disallow probate? Sir: Allow probate of the will but those provisions which depend on the inventory cannot be implemented Probate has to do with the due execution of the will The moment inc by ref complies with reqs in 827, the fact that the document cannot be found later on will not prevent probate of the will Question is one of implementation of the will May the testator inc by ref a prior will?
836 republication by ref in another will or codicil If the prior will is valid, it may be inc by ref in a subsequent will There is really no need for inc because the prior will is itself valid If there are provs in the subsequent will wc seek to modify the provs in the prior will, the subsequent will is nothing but a codicil which will be read together with the provs prior will, reference to prior will in subsequent will is not even necessary Both wills, both valid, have to be read together Subsequent will prevails over prior will ONLY when there are CONFLICTING provisions If prior will is void as to form, referred to in subsequent will Will reference to prior void will be effective? NO Because a will void as to form cannot be given effect, cannot be republished, except thru REEXECUTION and reference of the prior will in the subsequent will is NOT re-execution Sirs opinion: 827 vs. 836 o 827 limited to a document short of a will when document is a will, 827 isnt applicable o 836 when document is a will o Jurados opinion different from Sirs o May a Holographic will inc by ref? o 2 views WON 827 applies to a holographic will: 1. CANT inc by ref a doc in a holographic will Bec 827 seems to refer only to notrial wills bec of signatures of witnesses required as one of the reqs for a valid and effective for inc by ref Holographic wills dont require witnesses Sir: not convincing o Bec while a holographic will doesnt require witnesses to be valid, a holographic will MAY have witnesses o Testator may comply with 827 by asking 3 people to witness where he inc a doc by ref 2. CAN inc by ref Sir: where a doc is referred to in the will and such reference is to inc that doc as part of the will, valid inc makes the doc an integral part of the will because the provs in the will cant be implemented without the doc inc o Holographic will what if the doc inc isnt in the handwriting of the testator? Since doc becomes an integral part of the will, the will is invalid because no longer complies with req that it be written entirely in the hand of the testator o If the doc referred to is also in the handwriting of the testator, then it can be inc
Are witnesses still needed if will and doc inc by ref are
written entirely in the hand of the testator considering that a holographic will doesnt require witnesses? this is a $64 question (I have no idea what this means) Sir: if youre going to write the will anyway, why inc by ref when you can write it straight onto the will itself Attestation clause (AC) isnt required to make statement that a doc was inc by ref in the will no req in the law V. CODICILS
1. DEFINITION 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) Holographic will may be altered by the testator by inserting the alteration into the body of the will and authenticate it with his whole signature Testator of a notarial will must execute a codicil to alter/modify it 825 codicil a supplement or addition to a will made after the execution of a prior will and annexed to be taken as part thereof Functions: o Explain dispositions made in a prior will o Remove/add dispositions in a prior will o Modify/substitute provisions written in the prior will May testator render useless all provs in a prior will? YES o But subsequent will is no longer a codicil but a REVOKING WILL
2. SOLEMNITIES Art. 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n) When is a codicil valid? o Executed as a will o Comply with all the reqs for the execution of a valid will: 1. at time of execution of the codicil, testator must have testamentary capacity 2. animus testandi 3. formalities prescribed by law 4. freely and voluntarily What is the difference between a codicil and a will? o No difference in substance and in form o Minor distinction: codicil must necessarily refer to a prior will If it doesnt refer to a prior will, its a subsequent will If the testator executed a notarial will, may he execute a holographic codicil or vice versa? YES o No prohibition in the law o Wording of article tells us that will and codicil need not be of the same form o 826 in order that the codicil may be effective, it shall be executed in
the case of A will Not THE will Will could be in any form Codicil need not be written on a separate piece of paper o Can be written on same paper as original will Codicil prevails in case of conflict between will and codicil because its a later expression of the testators wishes What if the prior will is void? o Void because only 2 witnesses o If the codicil makes reference to the prior will, will the original will become valid? NO o A will void as to form cant be republished except thru re-execution, mere reference in the codicil will not republish the prior will o If at the time the codicil was executed, the law was amended reducing the number of witnesses to 2, was the prior will republished thru the codicil? Paras: Yes, it was republished because whenever a prior will is referred to in a subsequent will, it is deemed republished as of the time the codicil was executed, therefore the reqs of the law at the time of republication should be complied with Sir: wrong, well discuss it later Whenever there is a valid codicil, what happens if the prior will was denied probate on the ground that it was not executed in accordance with the formalities prescribed by law? o Prior will denied probate o Codicil is not void in its entirety because it is a will in itself Therefore all provs contained in the codicil which dont depend on validity of prior will for implementation stand Ex: codicil revokes prior will o Rule: All dispositions contained in the codicil which are dependent on the validity of the prior will for implementation shall not take effect. Provisions that do not depend on the prior will shall stand because a codicil is a will in itself. o WON the provisions depends on the prior will is problematic Institution subject to a condition oppositors can claim that the provision wouldnt have been made if he knew the prior will was invalid, that the provision was only made because he thought the prior will was valid, therefore, since the prior will is invalid, the provision in the codicil shouldnt have been made Testator wouldnt have made the codicil had he known the prior will was invalid codicil may be invalidated as well Institutions based on a false cause VI. REVOCATION OF WILLS & TESTAMENTARY DISPOSITION
1.
DEFINITION OF REVOCATION REVOCATION: o Act of the testator to render a will he executed, void and ineffective
2. WHEN MAY REVOCATION BE EFFECTED Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a) When can testator revoke? o 828 any time before his death On what ground can testator revoke his will? o No ground provided for in the law o May revoke will for ANY ground no matter how whimsical, capricious, unreasonable, unjustified, wicked Ex: Digoys tito revokes will because Digoy gets an earring o Why? Because testamentary disposition is gratuitous and you cant enforce the liberality of the person against himself, cant force him to be liberal, cant compel a person to be generous Ex: Cant enforce promise to donate by court action Can the testator bind himself for valuable consideration not to revoke? NO o 828 law does not allow the testator to waive his right to revoke his will any time before he dies, any such waiver is invalid and ineffective Is revocation effective if person is already senile? NO, Revocation ineffective
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n) 5. IMPLIED REVOCATION Art. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. (n) 6. EFFECT OF REVOCATION Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a) Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n) Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (714) NOTES (for modes of revocation, implied revocation & effect of revocation): 1) THROUGH EXECUTION OF A SUBSEQUENT WILL Testator may revoke his prior will by executing a subsequent will The subsequent will may expressly revoke the first or impliedly revoke the first o Express revocation, the subsequent will contains a revocatory clause Which in categorical terms, revokes the first will E.g.: I command that the will I executed in November 2000 be null and void. I declare that the will I executed in 1997 is null and void. When there is a phrase or there is a clause in the subsequent will expressly revoking the prior will, the subsequent will is a revocatory will revocation of the first is express o Implied: subsequent will contains no express revocatory clause Provisions of subs will are inconsistent w provisions of the prior to the extent the subs wills provisions are inconsistent the prior will is revoked. It will be total but impliedly when all the dispositions the provisions of the prior will are irreconcilably inconsistent with the subsequent will in such a case the prior will was impliedly revoked totally Sir: wala nang natira kasi inconsistent na lahat Revocation may also be total or partial o Total: when the entire prior will is rendered useless. None of its provisions will remain for enforcement bec the entire prior will was revoked by subsequent will
3. LAW GOVERNING REVOCATION Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n) Requirements for a valid revocation: o 1. testator must have testamentary capacity Capacity to make a will is the same capacity to unmake it Elements: 1. age 2. soundness of mind o 2. animus revocandi o 3. testator must perform an act of revocation Ex: Digoy comes to a party with his earring and long hair, tito was disgusted and in the presence of all the guests said hes revoking his will. But if the tito dies without carrying an act of revocation, revocation is ineffective. Acts of revocation: 1. executing a will revoking a prior one 2. By an act of destruction o 4. freely and voluntarily A829 coincides w A.17, CC
4. MODES OF REVOCATION Art. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or
Partial: subs will revokes only certain provisions of prior will
E.g.: I revoke the 2nd disposition in my prior will Express and partial revocation May revocation be made subject to a condition? o May the testator revoke the prior will subj to a suspensive cond? Yes. He may provide for the revocation when a condition happens. o May revocation be subj to a resolutory cond? No. Bec in revocation we apply the principle of instant death. The moment all the conditions, all the requirements for an effective revocation concur, revocation becomes instantly effective. If made subj to resolutory cond, revocation will be rendered terminated by the happening of a condition. Effects of revocation will terminate when resolutory condition happens Something wrong with that, bec a revoked will can only be restored to its validity through republication and happening of a resolutory cond is not a mode of republication. What law must the testator observe in revoking his will? Time of revocation? Time of death? It is the law at the time of revocation. o Suppose he is outside of Phils, what law must he observe? By a non-resident, testator must observe the law at the time the revocation was effected and the law where the testator is domiciled. Accdg to civil law writers, he may only use the law where he is domiciled bec he is more familiar with these laws Can he apply the law of the place where the will is revoked? Two views
A830(3): those acts of destruction enumerated in A830 are not exclusive. There are other forms of destruction that may produce revocation The act of destruction must be coupled with testamentary capacity, animus revokandi, freely and voluntarily for such act to produce eff revocation. Examples: o Testator got mad at Bones bec he decided to wear an earring. The testator was his uncle. Having been disgusted by the earring, the uncle announced in a party that he was revoking his will where Bones was instituted as his sole and universal heir. But before he reached his bedroom, he suffered a heart attack and died. The will therefore is intact in a drawer inside the bedroom of the uncle. It was found and submitted to court for probate. Is the will effectively revoked? No, not effectively revoked. While there was animus revokandi, the testator failed to carry out an act of revocation. He was not able to execute a subsequent will revoking the first, he was not able to destroy that will. o Twist at the facts: Uncle was able to get the will from his drawer and he threw away the envelope containing the will to a bonfire burning outside the house. After he threw it to the fire, he went away. The maid snatched it away from the fire. Maid = GF of Bones. The envelope where will was kept was burned but not the will, the will was scott-free. When the uncle died, the will was presented by Bones to ct for probate. Was the will effectively revoked? o No. Whenever revocation is carried out by the testator through an act of destruction, the will itself is the evidence of such destruction. Res ipsa loquitur. If the will was unblemished, how can you say that the testator destroyed it? The will is the evidence. So, its required that the will is destroyed to be revoked? o Yes. Although the law does not require that will be destroyed completely. Enough that act of destruction is shown on the face of the will. o For example, if the act of destruction carried out by the testator is burning. There must appear a sign of burning at the face of the will. X not need to turn to ash. Enough that there appears at a corner of the will scorch marks. Enough that there appear signs of burning. If no signs of burning appearing on face of the will, how can you say testator attempted to burn the will, attempted to destroy the will if there is no sign of destruction appearing on the face of the will? The sign of destruction must be the act of destruction carried out by the testator. o E.g. Testator threw will at the fire, maid snatched it away. Will was unblemished when she snatched it away. When Bones and the maid got into a fight, the maid tore the will. Was the will effectively revoked? While the will was destroyed by tearing, the tearing was not an act carried out by the testator. What should be seen on the will is the act of the testator. Suppose the uncle of Bones went to his room, got the envelope where the will was kept and threw it into the fire, it got burned totally. When uncle died, there they discovered that the envelope he got was the wrong envelope. The envelope that he burned contained a list of debts. The will inside another envelope remained intact. Was the will effectively revoked?
o o
1st view, YES. Bec art 17 is the gen law applicable to all juridical transactions
2nd view, accdg to A829 (new provision), creates an exception to A17. o Sir: IMO, A829 does not provide for an exclusive designation of law applicable. Therefore, IMO, it will stand side by side with A17. Revocation therefore may also be governed by law of the place where revocation was executed. For a subsequent will to resolve into eff revocation to the prior, the subs will must be submitted to probate.
If the 2nd will was void for not having complied with the formalities prescribed by law, it does not take effect
If the 2nd will does not take effect, everything in that will does not take effect, even the revocatory clause. Therefore revocation does not take effect and the prior will remains valid
o
2)
2nd will must be valid will to produce effect in revocation
ACT OF DESTRUCTION The testator may revoke his will by destroying his will How will testator destroy his will? o Law provides examples: Canceling, obliterating, tearing,
Of course not. Mere intention is not sufficient. Testator must perform an act to destroy the will. He performed an act to destroy but not on the will. Should be on the will. For the will to be revoked through an act of destruction, the animus revokandi must subsist till the completion of the act of destruction. If testator changes his mind before act of destruction was completed, revocation was not completed. o E.g. Uncle took will. When he was tearing will, he threw it to the trash can. 2 hours later, Bones appeared having been alerted by the maid. So having been alerted, Bones rushed to his uncle and asked for forgiveness. The uncle being soft, having a soft spot in his heart for Bones, retrieved pieces of the will, joined pieces together with tape. Was revocation effective? Yes. Bec of the principle of instant death. The moment all the reqts for revocation concurs, the will is effectively revoked. To be valid again, must be republished. In this case all the elements for a valid revocation have concurred. Instantly revocation was produced. Joining them with scotch tape is not republication. Under 835, 836. o
o o
Law: no, not destroyed by testator himself but by 3 rd party not in presence of testator and not under his express direction
Uncle tore the will in half and was about to tear it into fours. As the uncle was in the process of the 2nd tearing, Bones went in and said Tito, wait! the 2nd tear was not finished. Bones begged for forgiveness in bended knees, uncle changed his mind and gave him last chance. Joined pieces together with tape. No. Will not effectively revoked. Bec as far as testator was concerned destruction was not yet completed in his mind bec he was going to tear it again. How do we know that the act of destruction was completed before he changed his mind? o WON testator has completed the act of dest is a question of evid wc must be proved in trial in the probate proceeding. o WON act was completed, its a state of the mind. Therefore, you must show what the state of the mind of the testator was when he changed his mind.
In our case, not yet completed bec he was abt to tear it a 2 nd time but desisted bec he had a change of mind. Suppose, the uncle of Bones requested the maid to get the will for him. Maid got it and tore it herself. Gave the torn will to the uncle. Convinced that what was torn by the maid was the will, uncle had it thrown away. Revocation effective? o No, bec act of dest must be carried out be testator himself. May he ask delegate to destroy for him? Yes, but there are 2 conditions: Destroyed in presence of testator Destroyed under express direction of testator o In our case, destroyed not in presence and not under express direction o What if testator ratified such destruction? Tolentino: Ratification by the testator of the act of destruction should produce revocation because if not, we shall arrive at an absurd result E.g. Maid took the will and burned it and brought the ashes to her boss and told the boss that she burned it already, boss and asked for envelope and boss looked for the last will and testament in his room and it was not there anymore. He said okay, its burned already. Revocation effected?
How can the testator revoke that will? Can he burn it? No. Can he tear it? No. How can he effect revocation of such will? Make a new will? Absurd! accdg to Tolentino. Theres no more will, does he have to make a new will to revoke it? o Tolentino: When the will has already been destroyed, ratification by testator of such destruction should already produce revocation. Other writers: dura lex sed lex Different examples of act of revocation: o Burning o Tearing o Canceling Cross + words cancel Cross only / / Text of will still legible How diff is canceling from obliterating? o Obliterating Will render dispositions written illegible Text no longer legible Must be done with intention to revoke the will to produce revocation E.g. testator executed a notarial will. Later he changed his mind, he obliterated his signature on the last page of the will. Has the will been revoked? o Yes, will has been revoked. Bec wo that signature, will x nt comply with all the formalities in making the will. o If the one who obliterated the signature was not the testator? Will still valid, not revoked. Bec the testator was not the one who destroyed the will. Suppose the will written by uncle could not be found when uncle died. It was a notarial will. o GR: Lost notarial will be allowed for probate. All you have to prove in court are the due execution of the will and the contents thereof. Prove through evidence aliunde, evidence outside the body of the will. o If the will cant be found at the death of the testator, what presump are we supposed to get from that fact? Do we presume will was lost thats why it cant be found? Can be probated by proving due execution and contents of will through other evidence Do we presume that the will was destroyed by the testator thats why it cant be found? Cant be probated bec it has been revoked. Jaggu v Mamuya If the will was in the possession of the testator when last seen, or he had ready access on the will before his death. It is presumed that the will was destroyed with the intention to revoke it.
Presumption is rebuttable. It may be shown by evidence that will was lost and not destroyed. When the testator revoked his will by a subs will, revocation may be subj to suspensive condition. In wc case the revocation ds nt take effect until happening of the condition DOCTRINE OF DEPENDENT RELATIVE REVOCATION How abt if act of revocation was carried out through an act of dest. May the act of destruction be conditional? May revocation through the act of destruction be conditional? o Yes. This is the doctrine of dependent relative revocation accdg to some writers. Doctrine of dependent relative revocation
Singapore as OFW maid. Was the will effectively revoked when the uncle thought that Bones eloped with Ms. Cahigs daughter? A833, revocation null and void if based on false cause. Revocation, once proven, should be ineffective bec he was acting on a false lead
7.
Isnt the facts the same in the doctrine of dependent relative revocation? He made a subs will to revoke the 1 st will, believing the 2nd will is valid, he destroyed the 1st will. is the revocation of the 1st valid when the 2nd will was denied probate? Is the 2 Is it more likely to be revocation subj to condition [the condition being that the 2nd will is valid] or based on false cause [belief 2nd will is valid]?
Suppose testator executed 2 will expressly revoking first, believing 2 will was valid, he destroyed the 1st. when the 2nd will was presented for probate, the 2nd will was denied for failure to comply with formalities prescribed by law. Was the 1st will eff revoked?
nd nd
Sir: Most likely its the 2nd one. IMO, its based on a false cause, believing 2nd will is valid, he destroyed the 1st will. Whether it is subj to a condition or a false cause, the effect is still the same. Revocation is ineffective. WON he destroyed the 1st will believing 2nd will is valid is a matter of evidence. Its a question of evidence. Evidentiary matter
Not effectively revoked by subs will bec 2nd will was denied probate not having complied with formalities prescribed by law for its validity But testator performed act 2nd act of revocation by destroying the will
o o o
Doctrine of dependent relative revocation, revocation was not produced by act of destruction bec act of destruction was subj to condition that 2nd will was subj to validity of 2nd will. Act of destroying the 1st will was subj to condition that 2 nd will was valid, since the 2nd will was not valid bec it was denied probate, 1st will is still valid Matter of evidence to prove that he wouldnt have destroyed the 1st will if he knew 2nd will was invalid
If it was not on his mind that 2 nd will was valid in destroying the 1st will. Doctrine of successive acts of revocation.
st
To make sure that the 1 will would not be valid. o Matter of evidence which doctrine applied Must testator have reason to revoke will? o No, no matter how whimsical or capricious the revocation is the revocation is obtaining as long as complied with requirements. o Logic will tell us that there is a reason why he revoked the will, no matter how unreasonable, unjustified, whimsical or capricious the reason is o What if the reason in the mind of the testator was false? E.g. Uncle told Bones: Huwag ligawan yang anak ng kapitbahay na si Ms. Cahig. Bones: Bakit naman Tito? Uncle: e kasi GF ko si Ms. Cahig. One day, the maid, told the uncle that Bones didnt go home and it was heard that Ms. Cahigs daughter didnt go home either. Its said that they eloped. Tito: Ganun? Suwail! Kelangan parusahan. Right then and there the uncle, destroyed the will. After the uncle died, Bones couldnt find the will. The maid told the reason why the uncle destroyed the will. Bones said the reason was false bec the daughter went to
Suppose uncle of Bones, instead of merely destroying the will, executed a subs will w only 1 provision, I declare and command that the 1 st will I executed is rendered null and void. He didnt place a reason. When the uncle died, the 2 wills were found. If the 1st will is probated, the 2nd will is also probated. Question is WON the revocation is effective. Bones, for his side, presented maid as witness to show the reason why 1st will was revoked. May Bones prove that revocation of 1st will was done due to false cause? o No. Accdg to jurisprudence. When revocation done through a subsequent will and it was for a cause, testator must state the cause for the revocation. If the revocation does not state the cause, evidence is inadmissible to prove that there was a cause and that the cause was false. Evidence is admissible to show that there was a false cause only if the will shows the reason of the revocation. o If no stated cause = presumption of the law is that there is no cause o Evidence is admissible only if the revoking will states the cause for revocation to show that cause was false. SIR: I disagree with court ruling. Pero andun na yun e. How may a holographic will be revoked? Same way as notarial will, through subsequent will or destroy the will. Do not forget: Kalaw v Relova o Revocation done through cancellation. If not through cancellation, it will amount to an alteration of the will. For the alteration to be effective, it must be authenticated by full signature of testator. But if you look at A830 it will also amt to a revocation by cancellation, and such revocation by cancellation does not need a signature to be effective.
o
o
Accdg to Kalaw v. Relova if revocation by cancellation, does not need authentication and revocation does not take effect CJ Vitug: Hindi naman yun revocation by cancellation but revocation by alteration and A814 applies for such cancellation to be effective it must be authenticated by full signature of testator. [Sir agrees w CJ Vitug]
VII.REPUBLICATION & REVIVAL OF WILLS What is republication? o Republication is the process of giving validity to a will which is
useless or has become useless because it was void or because it had been revoked. What is revival? o Revival is the restoration of the validity of a revoked will by operation of law. o The testator will not perform anything to restore the validity of the will, but by operation of law, the will becomes restored to validity. How is republication accomplished? o Under the Code, there are only two ways by which an invalid will is republished.
1. Re-execution Art. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. (n) Making a will from scratch. In a notarial will, the testator must sign each and every page of the will in the presence of three witnesses. The witnesses must sign each and every page of the will in the presence of the testator and of one another. The witnesses must execute again an attestation clause and the parties must again acknowledge before a notary public. Provisions of void will identical with those of re-executed will. Sir: Not exactly republication because you make a new will altogether, but re-executed because testators wishes are re-executed in such new will.
2. Reference in a valid will or codicil Art. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n)
Cf: A.837: If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. (739a) A codicil will make reference to a prior will which is void or which has been revoked. Such reference will republish the will. Example: Will void or invalid. Make command in subsequent will that such will be republished. Will restored to its validity. Suppose prior will had only two witnesses. What is the status of that will? The will is void. Upon discovery of such invalidity, testator executed holographic codicil ordering prior will be republished. Was the prior will republished by the reference? No, because of the provision in Article 835 will, void as to form, cannot be republished by mere reference in another will or codicil. It may only be republished through re-execution. When is a will void as to form? When it did not comply with the formalities required by law for the making of a valid will. Example of a will void not as to form testator had no animus testandi or testamentary capacity when he executed the will. Only wills not void as to form may be republished by reference. When the will is void as to form, it may only be republished by re-execution. Example: The testator had a change of heart after he executed his notarial will. He erased his signature at the end of the will. Later, he changed his mind again and signed his name again at the end of the will. When he died,
is the will valid? The will is not valid because when he erased his signature at the end of the will, it became instantly revoked or cancelled. The will became non-compliant with the requirement of law that the will must be signed at the end by the testator. His resigning the will is not reexecution of the will, which is necessary since the will had become void as to form. Suppose the will is a holographic will under the circumstances above. Is the will valid? The will is valid. It was re-execution. When he erased his signature, an incomplete will remained. It was completed again when he reaffixed his signature at the end. Paras: The will republished by reference is deemed re-executed at the time the subsequent will was executed. o Example. There is a will void as to form because at the time it was executed, only two witnesses were present. Later, the law was amended so that only two witnesses were required. Believing his will to be void for non-compliance with the old law, the testator wished to republish the prior void will. He made a second will and republished it by reference. The second will have complied with all the requirements of the new law. Was the prior will republished by reference in the subsequent will? Yes, the will is valid. It is deemed executed at the time of re-execution. o Determining whether or not a will is valid as to form should be determined at the time it is republished. The law that one should look at is not the law at the time the law was executed, but that when the law was republished. o Sir: Something is wrong with his line of thinking. The will is no longer void as to form so it need not be republished. But since it is not void altogether anymore, why the need to republish? But according to Paras, it was deemed executed at the time it was republished, but I think the will is deemed executed when republication is a valid republication. Jurado: If a codicil will republish a void or revoked will by reference under Article 836, must the reference comply with all the requirements of Article 827 for republication to be valid? The reference in Article 836 is also an incorporation of a document of reference so we have to read Article 836 with Article 827. Therefore, since they are not in conflict, they should be read together, so by Article 836, the testator must sign each and every page of the will sought to be republished by reference. o Sir: Article 827 is limited, refers to documents short of a will. If it is a will, Article 836 applies. We may comply with both requirements not because of Article 827, but because of common sense. o When republication should take place Articles 835 and 836
REVIVAL OF WILLS Art. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. (739a) When does revival take place? o Article 837 tells us when revival does not take place If after making a will, the testator makes a second will expressly revoking
the first, the revocation of the second will does not revive the first will. There is revival in cases not covered by Article 837.
Example: Testator made first valid notarial will. He changed his mind and executed a second valid notarial will containing only one provision first will is hereby revoked. o Later, he changed his mind and executed a third will revoking the second. o Is the first will valid? No, it was not revived. If you will underline a word in Article 837, what word will it be? Expressly. It is the only important word in the Article. Why? There is no revival when the second will was expressly revoked. If the second will does not expressly revoke the first, but impliedly, the revocation of the second revives the first. o How must the second will revoked for Article 837 to apply and for revival to take place? The law does not tell us how the second will is to be revoked, so all types of revocation will make Article 837 apply if the second will expressly revoked the first. What is important is the revocation done in the second will. If it is an express revocation of the second will, no matter how we revoke the second will, the first will is not revived by the principle of instanter the moment all concur, revocation is produced instantly. o Sir: We have some doubts though because in previous discussions, for revocation to be produced, the revoking will must first be probated. So, if there are three wills, all must be probated. After probate, it is possible that none will be revived.
o the cost involved in lit and o exposure of the estate to bigger tax liabs Many fams simply ff and implement the wishes of the deceased rel w/o bringing the will to ct o Theyll ff to the letter what was written in the will o To avoid cost, lit, undue publicity and exposure to tax liab, fam wont pres will to ct for probate Something wrong w/ that if u get caught cause under the ROC, the person in possession of the will has to surrender the will to ct w/in a certain no of days fr learning of the testators death under pain of sanctions o Ct may penalize person in possession of the will if he fails to submit to ct the will o Cause the state has an int in seeing to it that its laws are complied w/ Np if indeed the mems of the fam will ff to the letter the provs of the will o But suppose they dont o Ex. legatees named in the will who didnt know abt existence of will o All fam mems have to do is suppress the will so legatees wont be paid Will of dead man wont be ffed/implemented o Big temptation of fam mems to suppress will if it commands them to allocate portions of the estate to ppl who have no way to know theres a will and a prov in their favor Why law requires possessor/person in possession of the will to surrender/submit to ct the will upon learning of testators death For ex, no legacies and devises in favor of 3rd ps only siblings o Extrajud settlement instead of submitting will to ct for probate Need that if there are props w/c are titled and the title cant be transferred in the names of the heirs unless a docus presented to the custodian of the title Ex. real estate prop in name of decedent for title to be cancelled and a new 1 Ied in name of the heirs, a docu has to be presented to the Reg of Deeds Docu of conveyance not deed of donation, sale (dead)many lawyers do Antedate docu before he died and forge sig since Reg of Deeds has no specimen of sig of decedent But needs to be notarized and in acknowledgment, donor and donee must appear o Easy: dont even ask for ID Docu submitted if dont want to forge sig of decedent: extrajud settlement but expensive Notarized Published under the ROC Affid of publication Attach copy of newspaper where published Pay inheritance tax Get clearance fr BIR Fr assessors ofc
VIII. ALLOWANCE OF WILLS Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n) Allowance For a will to transfer ownership of the inheritance disposed of in the will, the will has to be admitted to probate 1. 2. CONCEPT OF PROBATE Procedure for allowing a will = probate o Proc for getting ct declaration that the wills duly executed NECESSITY OF PROBATE For practical purposes, some fams dont bring to ct the will that a deceased mem of the fam may have left behind cause of:
Then submit to Reg of Deeds ROC: transfer to name of heir in whose favor adjudicated w/ annotation prop will ans for claims presented w/in 2yrs fr the date of the annotation even assuming 2yrs lapsed and no claim was presented v. the estate, cant take out annotation w/o going to ct fault of Just: anything annotated on title cant be removed by Reg of Deeds w/o ct order = jud legis o ex. adverse claim expires w/in 30days o added expense ps to the extrajud settlement risk prosecution for perjury under ROC: extrajud settlements allowed only if decedents left no will if Reg of Deeds doesnt see in docu left no will = return if put there left no will but there is and its notarized = perjury/falsification lawyer: who will complain if all sign? = all ps o if complain, involve 1self might be illegit child where copy of will was left o
3. MODES OF PROBATE Probate may be done at 2 pts in time:
B) Pet
1. During lifetime of testator = ante mortem probate o Pet for probate of will ante mortem o Before: none o But allowed in US in order to preclude lit on the due exec of the will after the testators death o Ex. I: WON he had testa cap at the time the will was executed (87yo) so oppositors claim he didnt have sound mind = senile How will judge know if senile if not if testators dead? o Ex. will suffers fr some formal infirmities (1 witness disqualified cause didnt disclose a prior conviction of a crime involving perjury, falsification/false testi) o When discovered during ante mortem probate, testator can cure defect o Refile will while hes alive o Greatly enhance the exec of a will as a means to dispose of prop o Now: no1 wants to make will cause if die, not sure Encourage those w/ props to dispose of them while still alive Prevent entailment (?) of prop w/in the fam for a long pd of time 2. After o o o o death = Post mortem probate by ppl interested in the probate of the will When testator dead, no such thing as pet for probate of a will A) File pet for the settlement of the testate estate of the will annexed Stages: 1. Pet motion for Iance of letters testa prov remedy prayed for in pet for settlement of testate
estate must be administered 2. Probate proceeding simultaneous to that detn of WON the will was duly executed in accordance w/ law (due exec) whens a will executed? If all the reqts for its due exec are there o 1. Testa cap o 2. Animus testandi o 3. Compliance w/ formal reqts o 4. WON will was executed freely and voluntarily Probate: I is WON will was duly executed o Judge has to det due exec by lking at the 4 elems Ex. I: WON disposition written in the wills valid nothing to do w/ due exec o Not covered by the probate proceeding (later) 3. Declaration of heirship simultaneous w/ 4 4. Detn of the estate what props are included in estate? 5. Adjudication/partition approval of the proj of partition for the Iance of letters testamentary w/ the will annexed Sir told SC: take this out = everythings a settlement of the estate (just 1 pet)
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EFFECT OF ALLOWANCE OF WILLS During the probate part of the proceeding, the judge is limited in deting the I of due exec o Therefore, matters w/c have nothing to do w/ due exec shouldnt be entertained at probate
Nuguid v. Nuguid: wealthy spinster executed a will instituting her only sibling (sis) as a sole and univ heir of her estate But when testatrix died, survived by mother and sis Sis submitted will to ct for probate Mother opposed probate on the ground that since nothing was left to her and she was a compulsory heir, she was preterited under A854 so insti should be annulled o Since theres only 1 prov in will (to sis), then will, for all intents and purposes, is useless
Sis: Might be correct but I has nothing to do w/ due exec; has to do w/ validity of subst contained in will = raise that later in dec of heirship, not at probatedue exec of wills only I ct must address SC: Sis is correct at probate, only matters of due exec should be addressed by the ct and the I being raised by the mother has nothing to do w/ the due exec of the will o Has to do w/ validity of insti contained in will o But well entertain this I nonetheless o Created an E to the R: Except when the nullity of the wills patent on the face of the will
Sir: Bad cause will, in this case, will never be null and void Even assuming the mother was preterited, will will always be valid Ruling: Just disposition wont be implemented cause its patent on the face of the will that its useless cause theres only 1 prov and the provs null and void o Ergo, useless to waste time of ct deting validity of will w/c wont be implemented later on cause provs been annulled due to preterition under 854 Correct reason Not cause its patently null and void but cause will become patently useless o Sir: SCs rulings wrong E correct but not as applied to the case WON mother was preterited wasnt patent on the face of the will To be established, has to be tied up w/ factual circs If deceased daughter gave donation during her lifetime in favor of the mother, then she wasnt preterited WON donation was given to her wouldnt appear on face of will Only demonstrated by circs outside the body of the will But if u apply logic and Is of fairness and practicality, the E of the SCs correct cause whats the pt in spending time and money deting WON the will was duly executed when after its been determined to duly executed, the wills also useless? (Cause prov will be amended) Correct but misapplied here Nepomuceno v. CA: o o Maninang v CA: H & W separated & the H lived w a common law wife (M:mistress) M lived in a hse & lot bought by the H w conjugal funds Blvng that when he dies, nothing will be left to the mistress, he executed a Will o Gave the hse & lot to the M o In the Will, M was designated as his common law wife H died & Will submitted for probate opposed by the W o Ground: the legacy in favor of the mistress was invalid bec its in consideration of an adulterous rel A1739 in rel to A1028 CW countered: reminded the W that this issue cldnt be raised & detd by the Ct during probate bec in probate only the due execution of the Will is at issue Ct applied the exception created in Nugid v Nugid: o Theres no need to probate a Will wc will later not be implemented bec its provs are contrary to law o It wld be a waste of time, effort & money on the part of the Ct & parties if the Will is allowed to be probated but later not implemented SIR: application of the exception in Nugid v Nugid was properly applied in Nepomuceno v CA Advantages & Effects of Ante Mortem Probate: Suppose the Will was submitted to Ct by the testator himself, or had it probated b4 his death whats the adv of this?
Ante mortem probate Adv: the Ct can easily det the testamentary capacity of the testator so if its raised as an issue, the Ct can det it right then & there if the Ct finds that a formal req wsnt complied w the Will can be cured of the defect the testator may execute a new 1, complying w the formalities prescribed by law
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so that when he dies, the due execution of the Will will no longer be questioned by any1 Suppose that the will, submitted by the testator during his lifetime, was admitted to probate, may the testator after its been admitted, revoke the Will? o YES! He can revoke his Will at any time b4 his death, even tho alrdy admitted to probate It dsnt preclude the testator from making a new 1 or from changing his mind May the heirs disregard the Will & distribute the estate by intestacy? o They can do that so long as theyre not caught :p Bec the ROC reqs that the person in possession of the Will to surrender the Will to the Ct, after he learns of the testators death, w/in a certain pd of time, under pain of contempt o If the heirs still distribute the props, thru extraJ settlement = all are guilty of perjury Bec an extraJ settlement is allowed only when they declare under oath that the decedent died wo a will *Q: do living Wills have the same effect as the Ante Mortem Probate of Wills? o Sir: yes, a Living Will is a Will admitted to probate during the lifetime of the testator (this is how Sir understands the concept) but it may have a diff connotation in the US bec they have a Living Trust/Living Will and this is diff from the concept as Sir understands it
Effects Of Admitting/Allowing A Will For Probate: Testator dies & Will is submitted for probate, after hearing, the Ct decrees the due execution of the will & admitted it for probate o What are the effects of the Cts order admitting/allowing the will to probate?
EFFECT: The due execution of the will is conclusively estabd, when the order becomes final & executory So if some1 surfaces later on & questions the validity of the Will, such Qs may no longer be entertained o Bec there has to be an end to litigations o Ex) marriage: b4 the solemnizing ofcr seals the bond btwn the parties, he makes an announcement he who has any objection, speak now or forever hold your peace! This applies to Wills Ex) what if 1 of the heirs was in the US when the Will was submitted for probate he wsnt aware that the testator left something to him
When he came home, the order admitting the Will to probate has become final & executory o He wanted to object, on the ground that he had in his possession docums that will prove that at the time the Will was allegedly executed, the testator was no longer of sound mind He has the medical records of the testator proving conclusively that at that time, he was no longer of sound mind o May the probate proceeding be opened to admit this newly discovered evidence? Set aside the decree admitting it to probate? NO, bec the order has alrdy become final & executory o But, he wsnt aware of the proceedings being undertaken by the probate Ct Dsnt matter, this argument wont hold water A probate proceeding is a proceeding IN REM it binds the whole world Wc is why in the rules, publication is reqd to be accomplished any hearing on the petition is held by the Ct Gallanosa v Arcangel: o dad of bones died, he was survived by his 5 kids o 4 girls & the youngest & only boy = bones o After the interment of the dad, bones called his sisters to a mtg o He presented the dads alleged Will mga utol, namatay si tatay, mayroong Will (wehehe) o In the Will, the entire free portion was given to bones bec he was the only boy & was the youngest child o Trusting bones, the sisters ddnt do anything o Bones submitted it for probate no1 opposed it o Decree issued by the Ct admitting it to probate o All the props left by the dad were distributed in accordance w the provs of the Will o 10 yrs later: bones became a born again he shared w the congregation his deep secret = the Will wc is told my sisters was the Will of my dad was a forgery. He never made a Will. I hope my sisters forgive me Sisters found out & were furious we trusted you! o Sisters decide to re-open the proceedings in order to set aside the decree admitting the Will to probate & set aside the partition carried out to implement the Will = can they do this? o NO, the order admitting the Will has alrdy become final & executory Proceedings cant be reopened Mercado v Santos: o If we cant re-open the proceedings, then lets just file a case for forgery against bones! o May a complaint holding him liable for forging the docum hold water? o NO! bec wheres the body of the crime? For him to be liable for the forgery you need to present the forged docum Wheres the forged docum? The Will? o
So cant charge him w forgery bec no more body of the crime/corpus delicti Ex) Suppose after the Will has been admitted to probate, another Will, wc purports to be executed much later was discovered o Can you probate the 2nd Will? YES o But suppose its a revoking Will? Then w more reason it has to be submitted to the Ct for probate bec its a much later expression of the testators wishes It may still be submitted for probate o The law enforces only the last wishes of the testator Ex) What if the 2nd Will was discovered more than 40 yrs after the death of the testator, more than 30 yrs after the 1st Will had been admitted to probate hsnt the axn prescribed? o NO, the axn to probate a Will dsnt prescribe o Theres nothing in the ROC abt its prescription o If apply the provs of the CC itll prescribe in 5 yrs all COA where no prescriptive pd is prescribed in this Code will prescribe in 5 yrs And this is 1 of those axns o No provs in ROC or CC wc prescribes a pd w/in wc this axn may be brought to Ct o Axn to probate a Will does not prescribe (Guevarra v Guevarra) There is a pub policy consideration
IX. DISALLOWANCE OF WILLS Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) 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. (n) On what ground may a Ct disallow a probate of a Will? Grounds are in A839: these grounds are exclusive o There are no other grounds (memorize!) o Definitions of the grounds enumerated are found in the provs on the law on contracts: A. 1335, 1336, 1337, 1338
Ct: NO! the Will is genuine & the decision of the Ct declaring the Will genuine has become final & executory
A.839 (3): Will executed through Force, Duress, or Influence of Fear of Threats Art. 1335. There is violence when in order to wrest consent, serious or irresistible force is employed. There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. To determine the degree of intimidation, the age, sex and condition of the person shall be borne in mind. A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent. (1267a) Art. 1336. Violence or intimidation shall annul the obligation, although it may have been employed by a third person who did not take part in the contract. (1268) When is there force? When is the Will executed thru force? No prov in the Code defining what force is But theres a defn of violence (A1335) CC writers: defn of violence shld be applied by analogy to force o means: for the force to invalidate the Will, it must be serious or irresistible to vitiate the consent of the testator Ex) testator dsnt want to sign the Will, so something terrible will happen to him, wc may be loss of life or limb Same thing applies to Intimidation o Not defined in the provs in succession, so apply the defn in contracts
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A.839(4): Undue & Improper Influence Art. 1337. There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress. (n) Horado (CC writer): this defn in contracts shld also be the defn in succession Reyes v Barreto-Datu: o Sps w 1 daughter (D) & they feel bad bec she dsnt have a playmate o The moms Sis had several kids so she convinced her Sis, to let her daughter (their niece = N) to live w them so that D wld have a playmate o Sis agreed; the Sps ddnt adopt the niece, just lived w them o Probably lived in the same community o D & N grew up together & were like sisters treated ea other as real sisters o Their good rel contd until 1 day the mom showed D the Will she prepared bec she thought D wld be happy abt it In her Will she gave of what she had equally btwn D & N
since they treated ea other like sisters & they grew up together = as if N was really her child D got mad! Why is it ea, shes not even my sister?!? I shld get more bec im your real daughter! Shes gng to get something from her real mother too! Shell inherit twice! inirapan yng nanay araw araw kasi masama loob niya D ddnt know that a copy of the Will had been given by the mother to N N was happy (duh!) When the mom died, D presented a Will for probate N was shocked bec in the Will presented, her name was no longer in the Will = everything was left to the daughter Objected! Said thats not the Will given to me! In that Will I get half! D: nope! She changed her Will bec I talked to her & told her I was her daughter & you were only her niece N: Undue & improper pressure & influence!!!! Objected the probate of the Will on the ground that it was procured w undue & improper pressure & influence D pressured & influenced the mother to change the Will Ct: allowed the Will to probate There was pressure from D wc influenced the mother so that shed change the Will But such pressure applied WSNT undue or improper Bec it wsnt improper for the daughter to object to the mom giving half to the niece = she has a right to object Therefore, the mom mustve changed her Will not bec of the pressure applied by the daughtershe mustve changed the Will bec she realized that the objection of the daughter was correct & realized that she had a bigger duty towards her daughter This isnt undue pressure or improper influence = its not sufficient to invalidate the probate of the Will
A.839 (5): Sig of the Testator procured by Fraud Art. 1338. There is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to. (1269) X. INSTITUTIONS OF HEIRS
How will the testator dispose of his properties in the will? o Thru institutions, legacies, devises Difference between institutions and legacies & devises o Whenever somebody receives property from the testator mortis causa he is an heir o Intestate designated in the law o Testamentary designated in the will 2 kinds of testamentary heir: 1. instituted heir someone to whom the entire estate or an aliquot part thereof was given by the testator in the will
aliquot part a definite portion of the estate but you dont know exactly what properties are comprised in that definite portion o ex: of the estate can be quantified, but we dont know the mix of the properties that will form of the estate 2. legatee/devisee gift of specific movable/immovable given to an heir o ex: P1000 given in will cash given, not car, jewelry etc (legatee) o
1. DEFINITION Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (n)
Art. 842, because of the intro of a page in Art. 844, the rule in interpreting wills that the same evidence shall be the only ones admissible for the same kind of ambiguity had already been abandoned. May there be a valid will if it contains no institution of heir? Yes, in fact there may be a will without any institution, no direct disposition. The will which contains an indirect disposition is also valid for it contains disposition of property mortis causa. It is possible therefore that a will is valid although it contains no institution of heir. In fact, there is an article to that effect, 841. For it to be a valid will, there has to be a disposition of properties mortis causa. And that can be done trhough legacies or devises, or can be done through indirect disposition like in the case of disinheritance for instance or a revocatory will. o Must the entire estate be covered by institution? No, Art. 841, an heir may be instituted with a small portion of the estate. The remainder will go to the legal heirs of the testator.
How does a testator institute an heir? Art 840 o Institution of heir is an act by virtue of wc a testator designates in his will, person/s who are to succeed him in his property and transmissible rights and obligations o Institutions not limited to the designation of an instituted heir only refers to the designation whether he will be given an institution, legacy, devise act of designating somebody who will receive from the estate something whether institution of an aliquot part or specific gift refers to the act of designating somebody who will receive something from the testator in the will whether an aliquot part or a specific gift whether instituted heir, legacy, or devise, the act of testator in naming him is an institution of heir o This section applies when the testator gives somebody an aliquot part or a gift of specific movable or immovable property
4. FREEDOM OF DISPOSITION Art. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a) 5. MANNER OF DESIGNATING AN HEIR Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772) In relation to: Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n)
2. REQUISITES FOR VALID INSTITUTIONS OF HEIRS Relate to: Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) 3. EFFECT IF WILL INSTITUTES NO HEIR Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764)
How does a testator institute an heir? Art 843 o By his name and surname o When there are 2 persons having the same name shall indicate some circumstance by wc the instituted heir will be known o Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid Ex: I institute my loving wife to of my estate didnt
indicate name and surname of heir, but since circumstances can identify who was instituted, the institution of the wife shall take effect Ex: I give P1000 to my faithful driver at time of death only 1 driver who had been with him for 30 years Ex: Bones wrote in his will a legacy giving his loving gf P1M If there are 2 or more heirs that answer to the same name, for the institution to be effective, the testator must indicate some circumstance by wc the heir may be identified What if he forgot to indicate a circumstance? Who will receive the inheritance? Ex: to my nephew Juan Dela Cruz (JDC) I give a legacy of P1M Turns out he had 2 nephews named JDC but no circumstance in will by wc we can identify wc one was intended to be the heir Who between the 2 shall receive? Can the nephews just half? NO o Bec to spilt the P1M between the 2 will violate the intention of the T o Why? Bec T intended to give the ENTIRE P1M to only ONE person o To give only each to 2 people would violate his intention Law says: nobody gets anything o Doesnt this violate the Ts wishes? NO, because the Ts intention is if his wishes cant be carried out, then its better that no one receives it o Wont take effect
Exception: Art. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir. (773a) Ex: Bones gave a legacy to a nephew JDC, turns out 2 nephews with that name when he died. One of the nephews was living with bones when he died raised by Bones. The other one lives in Bicol. Can the nephew raised by bones present evidence in court to prove that he was the one intended in the will because he was the one reared by bones, and that the other nephew isnt even known to bones? o Tolentino: if the T merely says he instituted JDC wo mentioning any circumstances regarding him, the mere appearance of 2 persons bearing that name does not by itself vitiate the institution, if it can be proven that one is a close friend of the T while the other is not, then the former must be taken as the one instituted Rule: those with the same name should be allowed to introduce
evidence because of circumstances not in the will Art 844 justification In Tolentinos example there is no circumstance written in the will, the circumstance is outside the body of the will (the fact that one of the nephews was living with Bones) Art 843 By his name and surname When there are 2 persons having the same name shall indicate some circumstance by wc the instituted heir will be known Sir: circumstance should be in the will Principle patent and latent ambiguity Patent disclosed by the words of the will itself, disclosed by a mere reading of the provision of the will o Ex: I give to some of my nephews a legacy of P1M whats some? o Ex: I given P1M to 3 of my nephews which nephews? Latent hidden, by reading the provision of the will the ambiguity doesnt appear in the words of the will but the ambiguity will present itself the moment you look outside the body of the will and circumstances outsides the body of the will will show us the ambiguity o Ex: I institute of my estate to JDC By looking outside the will, you discover there are 2 JDCs Old rule (before the NCC) rule in interpretation of wills: Patent ambiguity is cured by evidence within the 4 corners of the will; the source of the ambiguity is what will cure it; if the ambiguity is disclosed by the 4 corners of the will, only the 4 corners of the will must resolve that ambiguity If the ambiguity is disclosed by evidence outside the body of the will then it can be disclosed by evidence outside the body of the will Latent A can be cured by all kinds of evidence Patent A can be cured only by the source of the A o In Bones example we can use evidence outside the body of the will Sirs opinion: old rule abandoned by Par2 of Art 844 wc is an amendment of Art 773 among persons having the same names and surnames there is a similarity of circumstances in such a way that even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir other proof added so general and so encompassing that it will include all kinds of evidence; it is only when all kinds of evidence cannot resolve the ambiguity, that none of the
persons answering to the same name shall receive nothing 6. DISPOSITION IN FAVOR OF A DEFINITE CLASS Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a) In relation to: Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n) Under A845, every disposition in favor of an unknown persons shall be void unless by some event or circumstance, his identity becomes certain. o E.g. The testator provided in his will that he is giving of his estate to whoever will top the bar whose results are released immediately after his death. Is that provision of the will valid? Valid. But is the heir designated in the will known to the testator? Will the testator ever know who the heir was? Is that an institution of an unknown person which is void under A845? No. There is a difference bin an unknown person from a person not known to the testator. An unknown person under A845 is an heir whose identity can never be ascertained. o An heir whose existence is not certain. o There is no way for us to determine who the heir designated is. In our example while the topnotcher in the Bar exam that was released at the time immediately after the testators death, the disposition in favor of that topnotcher is valid and may be enforced. o The testator provided in his will that hes giving P10M to the first born son of his sister. At the time of his death, the sister of the testator was not even married yet. The only sister got married 5 yrs from the death of the brother and the 1st child of the sister was a boy. Will the boy receive the P10M given in the will? No, he will not. Bec 1 of the conditions for an heir to receive an inheritance is for an heir to be alive at the time of the death of the testator. Is the institution a disposition in favor of an unknown person? No. Bec the identity of that person is readily ascertainable. The only prob is that he cant inherit. The heir is disqualified to inherit bec the heir is not alive at the time of the death of the testator. It will be different if the sister was pregnant at the time the testator died bec a fetus is considered a
person for purposes favorable to it. And definitely the P10M inheritance is favorable to it. Provided it was born in accordance with the Civil Code. If the 1st child is a girl, that girl cant inherit bec the designation is 1st born son. May the testator designate as heirs a class of persons? Yes, A845. For as long as the class is definitely indicated. E.g. The testator left P10M to the poor. A1030. It will be valid for as long as the class is indicated in the will. How about a corporation? May the testator institute a corporation as an heir? Yes, under A1026.] May the testator command his executor to organize or form a foundation in whose favor of his estate is given for the seed capital of the foundation? Yung kalahati ng aking kayamanan ay binibigay ko sa isang foundation na itatayo ng aking executor, isang buwan matapos akong ilibing. Tolentino: The disposition is not enforceable bec the testator has designated the foundation as an heir but the foundation has no existence yet at the time of the testators death. Tolentinos opinion is that juridical entities may be designated by heirs, but for the juridical entities to qualify to inherit the juridical entity must be existent at the time or on the death of the testator. The testator knew that the foundation is inexistent and thats why he commands that the foundation be set-up. Why is this not allowed? If this is allowed, it may also be applicable to natural persons. To be applicable to antural persons, the principle of qualifications of heirs embodied in the civil code will be meaningless. Sir: has not encountered any author with contrary position to Tolentino.
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7. EQUALITY OF HEIRS Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765) Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a) 8. INDIVIDUALITY OF INSTITUTION Art. 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a) How may the testator designate his heirs? o May be collectively, individually, successively There is no problem when the testator designated heirs in his will individually and gave them their shares, specified their shares in the will.
Suppose no shares were specified, how will those heirs designated divide the inheritance among them? o E.g. I institute A, B, and C to my entire estate. When the testator died, how will they divide the inheritance? o Follow the 1st principle in institution, A846 Heirs instituted without designation of shares shall inherit in equal shares (Principle of equality). It is only logical to presume that if the testator intended equal sharing, he would have indicated the shares in the will. If the shares of some heirs were specified and the shares of others were not, then those shares who were specified will be delivered and those whose shares were not designated will divide the remainder equally among them Suppose the shares of those whose inheritance were designated had consumed the entire estate. What will those whose shares were not designated receive? Nothing. E.g. I institute A, B, & C to my entire estate. D will get , E will get 1/3, F will get 1/3, G will get . Those whose shares who were not designated will get nothing. They are preferred. The intention to prefer them over the rest of the heirs is implied from the designation of their shares. Their shares were designated because the testator has preference for them and those whose shares were not designated, the testators intention is for them to divide equally what is left after those shares that were designated were delivered. But the designated shares are in excess of the estate, what should be done? Rule: If the testator disposed his estate among several heirs designating the shares of the heirs but exceeded the total amount of the estate, all the heirs shall suffer a reduction in proportion of their shares given to them in the will. Estate = P 360,000 90,000/420,000*60,000 12,857 90,000-12,857 = 77,143 120,000/420,000*60,000 17,142 120,000-17,142 = 102,858 120,000/420,000*60,000 90,000/420,000*60,000 90,000-12,857 = 77,143 How about if its the reverse? o Rule under A852, increase 852 and 853 are new provisions, nagulo lang sila dahil sa a853, bec this is covered already by provision of the civil code by accretion 120,000/330,000*30,000 12,857 90,000-12,857 = 77,143
B C
1/3 1/4
120,000 90,000 330,000
120,000/330,000*30,000 90,000/330,000*30,000
17,142
120,000-17,142 = 102,858
D E F G
1/4 1/3 1/3 1/4
90,000 120,000 120,000 90,000 420,000
Why not give the excess of 30,000 to the legal heirs? That is the wrongful implication of A853. The excess of 30,000 will only be given to A, B, C if the intention of the testator was to give the entire estate to nobody but the 3. E.g. I institute A, B, and C to my entire estate however A will get 1/3, B will get 1/3, C will get . You cannot give the excess to the legal heirs because the will is very clear. The original intention of the testator was to give I institute A to 1/3, B to 1/3 and C to 1/4. Here the testator has no intention to give the entire estate to these 3. The excess will be given to the legal heirs. This is accretion. 852 will only apply if there was intention on the part of the testator to give the entire estate to the heirs he designated. Rule on individuality Heirs, as a rule, are presumed to be individually instituted and not collectively. Example given in A817?: I institute A, B and the children of C. It turned out that C had 2 children, D & E. When the testator died, how do we divide the estate among the heirs? 1/3 to A, 1/3 to B and 1/3 to the children of C is a wrong application of the law. The designation of the testator of the children of C is that D & E were individually instituted, unless the intention of the testator is clearly otherwise. The right shares would be to A, to B, to D and to E. Because they were individually instituted. The first computation is correct if the children of C were collectively instituted. The rule is that unless a contrary intention is manifest on the words of the will, apply A847.
9. SIMULATANEITY OF INSTITUTION Art. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (771) Rule on simultaneity A849 o As a general rule, heirs are deemed simultaneously instituted o E.g. I hereby institute A, B, C & his children to the entire estate. C has 2 children, D & E. When the testator died, how do we divide the estate? 1/3 to A 1/3 to B and 1/3 to C, if C died, D & E would get 1/6 each. Not a correct application of the law. The institution
1/3
120,000
is successive and not simultaneous. Successive can be used is clearly indicated in the will. If not, cannot be successive Correct interpretation is that 1/5 to A, 1/5 to B, 1/5 to C, 1/5 to D, 1/5 to E D & E are deemed simultaneously instituted with C, the father.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a) The heir to qualify to inherit must be alive at the time of the testators death. Suppose the heir predeceased the testator, the heir died first before the testator. But the heir had children. Will the right of the heir designated in the will transferred to his own heirs? o The heir, as a general rule, transmits nothing to his heirs if he predeceases the testator Since he died before the testator, he didnt inherit anything. And since he didnt inherit anything, theres nothing to transmit to his own heirs. o Exception: Representation o The share given to an heir who predeceased the testator will go to whom? Will go to a substitute if a substitute had been designated in the will If there is no substitute, then we will look at representation If representation is not possible, we will look at accretion If accretion is not possible, thats the only time that we will give the share that share given in the will to the predeceased to the legal heirs of the testator. o GENERAL RULE: An heir who is designated in the will transmits nothing to his heirs if he dies before the testator. To what extent may the testator dispose of his properties by will? Can A, who made a will, give away his properties to whomever he wants? o General Rule: Yes, he can. o Exception: When he has compulsory heirs If he has compulsory heirs, a certain portion of his estate is reserved by law for the benefit of his compulsory heirs The reserved part is called legitime The testator cannot dispose the reserved part by will, he is prohibited by law in imposing a charge, imposing a condition or disposing that reserved portion of the estate What can he then dispose from his estate? He can dispose of the free part of the estate. He can specify how his compulsory heirs can receive the reserved portion of the estate. E.g. The properties in the half has cash, properties, jewelry, etc. o The testator can say that the properties go to the first-born, the cash to the 2nd born, etc. o That disposition would be respected provided that they will receive the reserved portion. The portion reserved for them. o If the legitime of the compulsory heir is bigger than what he received by will, the things he received should be made bigger
10. INSTITUTION BASED ON A FALSE CAUSE Art. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a) Must there be a reason for the institution of an heir by the testator to be valid? o When a testator institutes his relatives, there is not much question. Because there is an underlying reason for the institution which is relation. o No, the law does not require a reason. Because the consideration for the institution is pure liberality. But while it is true that liberality is the only reason, normal behavior tells us that the testator will not designate somebody in his will unless there is a special reason o But suppose the special reason turns out to be false, what happens to the institution? (A850) o The statement of a false cause for the institution of an heir shall be considered as not written unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.
11. SHARES IN THE INSTITUTION 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. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n) Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n) Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n) 12. PREDECEASE OF HEIRS Art. 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
or elese it would be violation on the provisions of legitimes. If a person, therefore, has no compulsory heir, his entire estate is free, and he can give his entire estate to anybody of his choice including to his D.I. or to a complete stranger. E.g. A is an old maid. A got into ballroom dancing partner and got B as her partner. Can she give her entire estate to B? Yes, if she has no compulsory heir, she can give her entire estate to a person of her choice even a complete stranger. But there must be a will.
XI. SUBSTITUTION OF HEIRS 1. CONCEPT OF SUBSTITUTION Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (n) Suppose the testator instituted in his will an heir. If that heir instituted predeceases him, to whom will the inheritance go? o The inheritance will not go to the heirs of the instituted heir because one of the requirements for the instituted heir to inherit is for him to survive the testator. o Since he predeceased, he inherited nothing and passed on nothing to his heirs. o The inheritance will go to the legal heirs of the testator. o Suppose the testator hated his relatives. He didnt want any part of his estate to go to his relatives. How can he prevent his relatives from inheriting? He can do that by appointing a substitute to the heir originally instituted. Ex. I institute Mr. Palanca to my entire estate, but in case he is not able to inherit, I appoint Ms. Brion as his substitute. Simple Substitution What is the juridical nature of a substitution? o It is an institution made subject to a suspensive condition failure on the part of the heir originally instituted. When that condition happens, the right of the substitute becomes vested. On what circumstances may or will substitution happen? o Under the law, substitution happens in any of three circumstances: When the heir dies before or predeceases the testator When the heir is incapacitated to succeed at the time of the death of the testator When the heir repudiates his inheritance from the testator o When the will is silent when substitution will take place, it is presumed that substitution will take place when any one of those circumstances occurs. o May the testator specify the circumstance that will trigger substitution? Yes.
Substitution will happen as commanded by the testator. The testator provided in his will the following: I institute Pedro as my sole and universal heir. But if he dies within five years from my death, Juan is appointed as his substitute. o Is that provision a substitution? No, because the death of the second heir will happen after the death of the testator. o Will that provision of the will take effect? Yes. It is not a substitution, but an institution subject to a resolutory condition. There were two institutions in the will, both subject to a condition. The institution of Pedro, the first heir, is subject to a resolutory condition. If he dies before five years have lapsed from the death of the testator, his right to the inheritance ceases. And when that happens, the right of Juan, the second heir, takes effect. Juan therefore was instituted subject to a suspensive condition. o Although the testator erroneously described the institution as substitution, the disposition will take effect. It is not the characterization of the testator, but that of the law, that matters. Who will appoint the substitute? o The testator appoints the substitute in his will. o May the testator leave the discretion on who will be appointed substitute to another person? Ex. I institute Pedro as my sole and universal heir. In case Pedro is unable to inherit, then the incumbent Mayor of the City of Manila will determine to whom the inheritance will go. Article 784 Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. (670a) 2. KINDS OF SUBSITITUTION Art. 858. Substitution of heirs may be: (1) (2) (3) (4) Simple or common; Brief or compendious; Reciprocal; or Fideicommissary. (n) If you will look at all the provisions of the Civil Code on substitution, you will find out that in reality there are only two kinds of substitutions under the Code Vulgar or simple substitution, and fideicommisary. a) Simple or common Art. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. (774)
Simple substitution o The testator institutes an heir and appoints a substitute o May the testator appoint several substitutes of the heir he instituted? Yes. Ex. I institute Palanca to my entire estate, but incase he is not able to inherit, I appoint Brion and Orilla as his substitutes. What do you call this substitution? Compendious substitution
When A dies, C will get o A and B are separately instituted
d) Fideicommisary Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a) Art. 864. A fideicommissary substitution can never burden the legitime. (782a) Art. 865. Every fideicommissary substitution must be expressly made in order that it may be valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (783) Art. 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784) Requisites: 1. first heir called to succession 2. obligation upon the first heir to preserve the property and transmit it to the second heir 3. second heir to whom the property is transmitted by the first heir Definition of one dgree Scaevola, Maura and Traviesas one degree of transmission o Adopted by the SC of Spain Manresa, Morell and Sanchez Roman one degree of generation o Adopted by Tolentino Dannycon: one degree refers to transfer, not relationship Art. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply. (787a) Situation: Heir 1 Naked title
b) Brief or compendious Art. 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778) c) Reciprocal Art. 861. If 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. (779a) May a testator institute several heirs and make them substitutes for each other? Yes. o This is called reciprocal substitution. o The rules applicable to a reciprocal substitution are the same as in simple substitution. o Since the rules are the same in simple, brief, compendious or reciprocal, they are in reality just one type of substitution. The only difference lies in the number and identity of the parties. When there is accretion among the three heirs instituted, the substitute gets nothing. Additional: as per Kate and Teres notes
Testator
A and B gets
C is their substitute
When A dies, C will get nothing o Accretion between A and B
A gets Testator B gets C is their substitute
Testator Heir 2 Beneficial title
Difference between fidiecommissary and legacy of usufruct

In 869, there is no substitution o Even if Heir 2 dies, Heir 1 will never get full ownership of the property In 863, there is substitution o If Heir 2 dies ahead of Heir 1, Heir 1 will get full ownership of property
the absolute obligation to deliver the property to a second heir;
(2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863; (3) (4) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension; Those which leave to a person the whole part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. (785a) If u lk at 2, 3 and 4, those restrics dont apply only to fideicomisary substis but all kinds of dispositions o A868s what makes A863 a substi = cause the nullity of the substi doesnt prejudice the 1st heir to inherit the prop o In reality, the 2nd heir is a substi of the 1st Whats the reason why fideicomisary substis allowed? o This provs feudal in nature cause its anchored on the prop as the source of wealth and prestige of a fam o The fam would want to retain that prestige and so it wants the prop to remain w/ the fam for as long as it can o But thats contrary to 1 of the cornerstones of the NCC Accdg to the Rpt of the Code Comm, 1 of the fund changes they introduced was the abolition of provs w/c entail prop w/in a fam The Rpt however, was written before the CC was considered by Congress In the orig draft the Code Commission prepared and submitted to Congress, those provs were indeed abolished However Congress decided to reintroduce some of the those provs w/c the Code Commission deleted fr its draft = reinstituted (inc fideicomisary substi) 1st heir = fiduciary o given the oblig to preserve and transmit the prop to the fideicomisary o A867: for that oblig to be imposed on the fiduciary, the T must call the intended substi a fideicomisary substi/even w/o calling it by that name, T must expressly impose upon the fiduciary the absolute oblig to deliv the prop to a 2nd heir o Obligations absolute = upon the happening of the event specified in the will, the fiduciary must deliv the prop to the 2nd heir 2nd = fideicomisary Whats the effect if there was no such oblig imposed on the fiduciary/the T
Take Note: PCIB vs. Escolin and Vda. de Kilayko vs. Tengco In Vda de Kilayko, the Courts ruling is erroneous. They should have applied PCIB Situation: Heir 1 Testator Heir 2 Beneficial title Naked title
Full ownership will be transferred after 10 years. If Heir 1 dies on the 5 th year, the heirs of Heir 1 steps into his shoes for the rest of the period (i.e. 5 years) Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted o is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, 1) provided such substitution does not go beyond o one degree from the heir originally instituted, 2) and provided further, that the fiduciary or first heir and the second heir o are living at the time of the death of the testator. (restrictions)
When the heir originally instituted is > 1 deg fr the 2nd heir, the substis invalid and A868 will apply
Art. 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786) Art. 867. The following shall not take effect: (1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary
didnt call the substi/the prov fideicomisary substi? o Will it kick in appli of A868? How do we know WON the T intended a fideicomisary substi/a legacy of a usufruct? o Is it impt? YES
cause if the T intended a FS, then the nullity of that insti/substi will kick in A868 and the 1st heir will get the prop
BUT if it were a legacy of a usufruct, then the nullity of the substi wont give the 1st heir ownership over the prop cause what was given to him was a mere legacy of a usufruct Illustrated thru a concrete ex: PNB v. Escolin: Sps foreigners Lily Ann Hodges and Charles Ams who arrived in the Phils before WWII but decided to make it their 2nd home; lived and died here o Lily Ann had good bus acumen so she was able to accumulate wealth during her lifetime but they didnt become natlized Fil cits (remained Am) o Before Lily died, executed a will w/ the ffing provs (couple childless): I give all my worldly possessions to my beloved husb Charles. He may do anything he wants w/ this prop, however, if something remains of my props when he dies, the remainder will go to my bro and sis. o Lily died and all her props were inherited by her husb Charles o Charles wasnt able to finish the props cause there was so much When he died, a sizable portion of the orig prop he inherited was still there Fighting over prop: Bro and sis of Lily Ann and bro and sis of Charles o B and S of Lily: Remainder will go to us..Testament: when something remains of estate, remainder shall go to bro and sis of Lily o B and S of Charles: Thats not ur prop cause Lily created a FS in her will, the fiduciary being Charles and bro and sis of Lily as the fideicomissaries
clear Here: Clear it wasnt Lilys intention to create a FS cause she gave her husb the rt to finish her wealth = Hes free to deal w/ my props, dispose them, enjoy them If she intended to create a FS, she wouldnt have given the husb the rt to dispose the prop Since didnt intend to create a FS, A867 and 868 dont apply If theres no FS, that wasnt the intention of the testatrix, who will inherit? o Just Barredo: Not vulgar/simple substi either In case of predecease, incapacity, repudiation o
B and S didnt predecease, not incapacitated, repudiated; 1st heirCharles able to inherit
B and S of Lily should inherit = not a case of substi but of 2 condil instis o Charles was instituted subjected to a resolutory condi while the bro and sis of Lily Ann were instituted subj to a suspensive condi o Whats the resolutory condi thatll make Charles lose the inheritance? Lose it when he dies and theres a remainder in the estate France: The legacy of the residue Treated in Planiol and Rapert, Aubrey o On the other hand, the B and S were instituted subj to a suspensive condi: that theres a remainder in the estate of Lily when Charles dies 2 events occurred = Charles lost the remainder of the inheritance while the B and S of Lily acquired the remainder in her estate o CORRECT RULING Kilayko v. Tengco: How decision written not clear; how ct arrived at decision wasnt clear (Just Romero) o There was a wealthy spinster fr Talisay, Negros o Owned a hacienda there o But she was spinster so she took a niece to live w/ her o The niece considered taking care of her aunt as a full-time occu = also a spinster o Aunt = Dona Ma Lizares o Before Dona died, executed a will (Sp) = explains why decision was hazy (unlike JBL Reyes who could read in Sp) o Provs of the will: I give to my fave niece, Maria, my hacienda in Talisay. HOWEVER, if she dies w/o any leg I, the prop shall go to my bro She died o So the hacienda was inherited by the niece When the niece died, the hacienda was prosperous (niece good manager) Who were quarreling over the prop? o Bro of Dona: clear whats written in the will If niece died w/o leg I, prop shall go to me Niece died w/o any leg I = the prop should go to me NO: Bro and sis of niece o What Dona provided in her will was a FS o HOWEVER, the FS that Dona created in her wills void cause of A867
1st heir: Charles 2nd: B and S of Lily Ann But FSs void cause of A867: Testatrix Lily didnt call it a FS and neither did she impose an oblig on husb Charles to preserve and transmit prop to her bro and sis
Under 867, that FS is void; and applying A868, the 1st heir Charles became the absolute O of the prop Since he was the absolute O of the prop, the substi being void, then his own heirs will inherit what will be left of his estate B and S of Lily Ann: NOT FS created by Lily but a simple/vulgar substi
SC (Just Antonio Barredo): Cant be FS created by Lily cause A867, no. 1 is limited to a case where the T intended to create a FS but failed to call it by that name in the will/impose an absolute oblig on the 1 st heir to preserve and transmit the prop to the 2nd o Before we can apply 867, the intention to create that substi must be
= failed to call it a FS/to impose on the niece the oblig to preserve and transmit the prop to the bro of Dona o Under A867, that FS is void and therefore A868 will apply Under A868, the niece became the absolute O of the prop, so that when she died, the hacienda became part of her estate and thatll be inherited by her own heirs and the bro of Donas not a leg heir of the B and S of the niece Bro of Dona: NOT FS = simple substi Gather fr the facts = PNB v. Escolin all over again Just Romero: NOT simple substi = no predecease, incap, repudiation inherited SC made a pronouncement for the 1st time that the grounds for simple substi to take place are limited to these 3 = predecease, incap, repudiation In reality: all of them incapacity = cant inherit, incapacitated But added predecease and repudiation Moreso not a FS cause not clear Dona had an intention that the niece preserve her prop and transmit it to her bro NOT simple substi and FS = since not FS, A868 doesnt apply Who does prop go to? Since not simple/vulgar = give to bro and sis of the niece o HOWD THAT HAPPEN?! o Why not ff will? Go to bro of Dona o Not leg heir of Dona Maria This is also a classic case of 2 instis subj to a condi: o 1st: subj to a resolutory condi 2nd: subj to a suspensive condi SIRs opin: A867 and A868 will apply if clearly the intention of the T was to create a FS o If we can gather fr the other provs of the will that the T intended to create a FS o Only when s/he intended to create a FS that we can apply A868 in reln to 867 o If the testator intended to create a FS, we apply A868 but if he didnt, then its another kind of disposition = might be A869: legacy of a usufruct Its a matter of the Ts intention
Can be portion = only that portions subj to FS
When will the transmission happen? When 1st heir transmit prop to 2nd? o Provided in will by T: pd in for transmission to occur In absence: transmission happen at death of 1st heir Law also requires the transmission not to go beyond 1 deg = A863: provided such substi doesnt go beyond 1 deg fr the heir who will be instituted What do we mean by 1 deg? 1 deg of transfer/1 transfer/does it mean 1 deg of rel? o We copied this prov fr CC of Spain? Some writers: not transfer cause only use deg in rel Scaevola, Maura and Raviesas: 1 deg = 1 deg of transfer Manresa, Corel and Sanchez Roman: 1 deg of rel o Contro laid to rest by Sp SC: 1 deg in FS = 1 deg of transfer Phils: Fil writers o Tolentino, Paras and Sen Ambrosio Padilla: 1 deg of rel o Caguioa, JBL Reyes, Puno, Jurado: 1 deg of transfer SC: Palacios v. Ramirez: Citing Tolentino as an auth, adopted 1 deg of rel as the mng of 1 deg in A863 Tolentino citing Manresa Implication of this ruling: There can be no successive substi o Ex. I give my prop to A but A must preserve and transmit the prop to B who shall to C to D E Not allowed if 1 transfer But deg of rel allowed: as long as A-E are bros and sisters cause belong to the same deg Land will be kept w/in the immediate fam of the owner = not apo (3 generations) w/in that generation, prop will be entailed ex. 6 kids = 6 transfers This doesnt apply to the legitime (of legit child) Cause of this ruling, 2nd heir cant be a jurid entity cause if the 2nd heirs a jurid entity, it cant have any rel w/ the 1st heir o 1st and 2nd heir must be natl persons = related by blood to the 2nd (1st?) deg 2nd reqt in A863: For 1st and 2nd heirs to be alive at the time of Ts death,
Art. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, o shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, o the provisions of Article 863 shall apply. (787a) What will be preserved and transmitted? o May be whole/part of the inheritance o Ex. given entire hacienda = preserve and transmit to heir
provided that the fiduciary and 2nd heir are living at the time of the death of the T
1) Suppose the 2nd heir dies before the 1st but both of them were alive at the time of Ts death, wholl inherit the prop? o 2nd heir and 1st heir were alive at the time of the death of T but the 2nd dies ahead of the 1st..When the 1st heir dies, wholl get the prop o 2nd gets prop under A 866, and if hes dead, his heirs = heirs of the 2nd heir will get the prop
Since 2nd heir was alive at time of death of T = his rts to inheritance has become vested
Just waiting for 1st heir to die If his lifes too long, then the heirs of the 2 get the prop when 1st heir dies
nd
heir will
2) Suppose 2nd heir predeceases T so that when T died, only fiduciary was alive, who will get prop when fiduciary dies? o 2nd cant get cause predeceased
Q: Pd of 10yrs written in will = so fid will enjoy it for 10yrs and he dies on 5 th; What happens to remaining 5? o In the absence of a contrary intention on the part of the T, mustve intended the 10yr enjoyment to be transmitted to heirs of fid o Fid acquired a vested rt to enjoy the prop for 10 yrs and therefore when he dies, that vested rt will be transmitted to the heirs
o
o
Will heirs of 2nd heir get it? NO cause not alive at time of Ts death so wasnt able to inherit Heirs of fiduciary will get prop applying A868 = substi
st nd nd
only enjoy prop for remaining 5yrs and when it has passed = prop goes to 2nd heirs
1 heir, w/c was a substi of the 2 , and predecease of 2 = kicked in substi to operate 3) Fiduciary dies before fideicomisary but both were alive at the time of Ts death o When T died, 2nd and 1st heir were alive Fideicomisary = precisely A863 (when fid dies = 2nd heir rcvs prop) 4) Before T died, fid has predeceased Fid dead when T died but fideicomisary alive o Not provided for in law
3. TIME-LIMITATION ON INALIENABILITY Art. 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. (n)
XII.
KINDS OF INSTITUTIONS
o o
Fid died 1st, who will inherit prop?
1. SIMPLE OR PURE Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a) 2. CONDITIONAL Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a) a) Kinds the testator may impose conditions on institutions in his will o cond: any future & uncertain fact or event on the happening of wc a juridical act is made o may a past event be a cond? Yes, so long as the occurrence of the past event wsnt yet known at the time the cond was imposed Why is a testator allowed to make a disposition subj to a cond? o Hes allowed to give away his props mortis causa to any1 he chooses o But this liberality/generosity may be made to depend on the happening of certain conds o In fact, its likely that the testator gives his prop to the heir on that cond thats the consideration for the inheritance The cond may be suspensive or resolutory (these 2 conds are sufficient for the purposes of succno need to discuss the other kinds of conds) o Suspensive: when the inheritance wont vest on the heir until the happening of the cond o Resolutory: when the inheritance is lost by the heir upon the happening of the cond May be used by the testor to oblige the perf of a certain act on the part of the heir & if he fails to perf the act hes reqd to do, he loses the inheritance It may also be an omission reqd by the testator to cont on the part of the heir Such that if the heir ds whats prohibited, he loses the inheritance The cond may be imposed by the testator to ensure compliance by the heir w
o
o
Fid predeases T so when T died, only the fideicomsiary/2 heir was alive If under A863, both should be alive for the substi to be valid, and fid predeceased, didnt substi become invalid and therefore A868 applies = the 1 wholl get should be heirs of fid, not fideicomisary? If apply A867 and if interpret failure to comply w/ last condi of 863 as nullity of the substi, apply A868 If apply A868, fid will inherit = but died: absurd Cant interpret law to arrive at absurd result = didnt inherit
nd
SIR: Death of fiduciary extinguished the substitution o In whose favor was substi created? 1st, not 2nd cause 2nd was intended to get prop after enjoyment of 1st heir = orig and real intention was to give to 2nd and postponed enjoyment by 2nd of prop by providing FS Death of fid therefore extinguished substi Since no substi, prop go to heir intended by T to get prop = fideicomisary Since T intended prop to go to 2nd heir but simply postponed it, death of fid should extinguish delay and immediately transmit prop to 2nd heir Cant give usufruct to heirs of the fid cause he didnt inherit since he wasnt alive at time of death of T didnt acquire any rt over the prop and therefore no rt was acquired by his own heirs on the prop Shouldve taken this out = if T wanted to do, write it as if condil testa insti so that all the condis he wanted to operate/govern that transmission of prop should be there spelled out in the txt of the testa prov But put A868
o o
o
o
certain obligs imposed on him How ds the testator impose a cond on his testamentary disposition? o The cond may only be imposed thru a valid will Cant be imposed in a docum incorporated in the will by mere reference by A827 Bec such docum incorporated isnt a will The cond shld be contained in the will
o o
Bec hes giving an inheritance but imposing an impossible cond on its rcpt = ginagago/lokohan So to penalize the testator, the law disregards the cond & the heir will rcve the inheritance free from that cond
2. illegal condition
b) Inoperative conditions Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a) Art. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a) Art. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. (793a) *related to: Art. 1188. The creditor may, before the fulfillment of the condition, bring the appropriate actions for the preservation of his right. The debtor may recover what during the same time he has paid by mistake in case of a suspensive condition. (1121a) Is the testator at liberty to impose any conds he may desire? o NO, he cant there are some restrictions imposed on the testator Restrictions/improper conds: (considered NOT imposed) o A873: impossible, illegal or immoral conds o A872: charge, cond or substitution on legitimes In relation to A904 on legitimes o A874: absolute cond not to contract marriage o A875: Disposicion Captatoria
Ex) I institute bones of my estate, provided he supplies my son until his death w shabu every month o Not allowed o The law cant sanction the commission of an illegal act And the law dsnt want to tempt the heir to perf the illegal act bec of the bounty hell rcve as a consequence so in order not to tempt the heir & to to penalize the testator, the law disregards the illegal cond imposed on the institution/disposition & the heir rcves the inheritance free from the illegal cond
3. immoral condition something contrary to the morals of the community ex) Estrada v Escritor o SC decision, penned by J. Puno, re: morality of 2members of Jehovas witness o Escritor was a civ servant, formally married, sep from her husband & is now living together w anthr man belonging to her religion o Was charged w immorality o SC: morality is relative, a sector of the society may have a diff set of morality from anthr sector of society Insofar as their community is concerned what theyre doing is moral Sir: This will in the future give us some probs So to prevent such probs, we shld amend the law by removing immorality as a ground for removing a civil servant Ex) Indecent Proposal o Val is rich & made her will instituting her neighbor to of her inheritance provided such neighbor will sleep w her for 1 night o This immoral cond is disregarded Ex) I institute to my nephew, Pedro, of my estate, provided he quits priesthood (bec their last name will die bec he wont have kids if he becomes a priest) o Is this a valid disposition? Is the cond validly imposed? o Tolentino: No, this cond is immoral Hes tempting the nephew not to become a priest so that hell get his inheritance Thus, it shld be disregarded/deemed not imposed Ex) I institute bones to of my estate provided he becomes a lawyer o Is this immoral?
A873: If an impossible, illegal or immoral cond is imposed, the cond is disregarded why is it deemed not imposed? 1. impossible condition When the happening of such cond is impossible Ex) if bones gives birth o This will never happen, even if he has a sex change Why ds the law consider this as not imposed? o Its a penalty to the testator
A. 872: charge, cond or substitution on legitimes In relation to:

Art. 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. (813a) The testator cant impose any cond on the legitime bec the legitime is reserved by law for the compulsory heirs The compulsory heirs rcve their legitimes free from any charge or cond
c) Disposicion Captatoria Art. 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void. (794a) Its Reciprocal = I give to you, you give to me Ex) Sharon Cuneta makes her will o She says: kawawa naman si Kc, if Kiko dies, she wont inherit from him bec shes not related to him (only his step-daughter; adoption hsnt been completed) o In her will: I institute Kiko to of my estate, provided Kiko institutes Kc in his will as if Kc is his legit daughter Classic example of a disposicion captatoria o Kiko dsnt make a will instituting Kc in his will & Sharon dies o Can Kiko inherit from Sharon? He wont inherit!!! Bec in a disposicion captatoria, not only is the disposition void, the institution itself if void Similar to a potestative cond in oblicon o If the cond is potestative, not only is the cond void, the oblig itself is void o Cond is potestative if the perf of the oblig depends entirely on the will of the debtor
A874: absolute cond not to contract marriage Why is this an improper cond? o Bec youre tempting the heir to sacrifice their personal happiness in exchange for money o Real reason: Youre tempting the heir to live an immoral life Bec in order to get the inheritance, will just take a live-in partner = immoral
Ex) I institute my niece, val, my entire estate provided that she dsnt marry an Ilocano o Is this a valid cond? If the cond imposed is proper, then if she marries an Ilocano, she loses the inheritance If the cond is improper, even if she marries an Ilocano, she still rcves the inheritance coz the cond is disregarded o So wc is it? The cond is proper bec its not an absolute prohibition She can still marry, jst not an Ilocano o For the cond to be improper, she shldnt be allowed to marry anybody, anyplace, anytime = absolute! What if the heir is a widow or widower? o Can the testator impose a cond on the widow/widower not to contract a subsequent marriage to rcve the inheritance? o Look at A874 The absolute cond in A874 applies to both 1st & subsequent marriage
d) Compliance Art. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator's death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a) Art. 877. If the condition is casual or mixed, it shall be sufficient if it happens or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. (796) e) Effect Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the
Absolute cond not to contract a 1st & absolute cond not to contract a subsequent marriage
Subsequent marriages:
There are cases where an absolute cond not to contract a subsequent marriage are PROPER, to wit: o When imposed by the deceased Sps or by the ascendants or descendants of the deceased Sps
Ex) val marries digoy, digoy dies so val is a married widow Vals mom made a will: I institute my daughter, val, to my entire estate provided she dsnt re-marry at all o Improper bec wsnt imposed by her husband or his ascendants or descendants o So deemed not imposed & val can inherit even if she marries again
compliance with the condition shall also be considered. (758a) Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. (800a) Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. (801a) Art. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a) Art. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. (791a) Transmission of rights Effect of a Suspensive Condition: theres an institution subj to a suspensive cond
it & therefore, since she alrdy inherited, when the cond happens, then bones will inherit what she rcvd
Ex) suppose the testator dies, val is still alive, but the cond hsnt happened o Will val be able to rcve the inheritance? No, to deliver to her the inheritance, will violate the prov of the will bec says shell inherit when the cond happens & since the cond hsnt, she hsnt inherited yet Ex) suppose val dies b4 the happening of the cond, but she was survived by her only son bones o Will bones inherit the prop when the cond happens? No, he cant bec under the law, for a conditional heir to inherit: (A1034) He must be alive at the time of the death of the testator; AND He must be alive at the time of the happening of the cond o If she dies b4 the happening of the cond, she inherits nothing & she transmits nothing to her own heirs Given the reqs of A1034, b4 the happening of the cond, who is entitled to the inheritance? o The leg heirs? NO o Under A880, the administrator of the estate will keep/preserve the prop & collect its income, and when the cond happens, he will deliver the prop & its income to the conditional heir But if the cond is certain not to happen anymore, who will get the prop? o Not the administrator bec hes not entitled to inherit o So the administrator will deliver the prop to whoever is entitled to it, under the law So if theres substitution = to the substitute If theres representation = to the representative If theres none = to the leg heirs of the testator
1st scenario: the conditional heir died ahead of the testator the heir predeceased the testator o Ex) I institute val to of my estate, provided this cond happens
But val dies 1st but the testator dsnt change his will When testator dies, val is dead alrdy, but her child bones, is still alive Who will rcve the inheritance? Will bones, the son of val get it?
No, he wont bec val never inherited, she predeceased the testator At the time of the testators death, val was dead alrdy so she inherited nothing
Is it possible for bones to represent val? (rem: representation isnt allowed in testamentary succ, representation is only allowed in leg succ so can only represent children, and siblings in some instances; but in voluntary or testamentary succ, no representation) Ex) what if testator & val were in a car accident, the testator dies immediately, val dies 2 days later o Will comes out & testator left val an inheritance o Upon the happening of the cond, who will get the prop? Will bones, the son?
Effect of a Resolutory condition: When the cond is resolutory, the heir who was alive at the time of the death of the testator enters his inheritance, but loses it upon the happening of the resolutory cond If the conditional heir wsnt alive at the time of the death of the testator, he dsnt inherit, & therefore transmits nothing to his own heirs If the conditional heir was alive at the time of the death of the testator, he immediately inherits bec he was alive & the cond is resolutory
Yes, bec when the testator died, val alrdy inherited so she rcvd
Ex) suppose the conditional heir dies b4 the happening of the resolutory cond, who gets the prop? o Itll be inherited by the heirs of the conditional heir, BUT they shall inherit the prop subj to the resolutory cond they cant get a bigger interest than the interest of their predecessor o The interest of their predecessor is an ownership that is subj to a resolutory cond = and this is exactly what they inherit o So when the resolutory cond happens, the heirs of the conditional heir will lose the inheritance In this case, who will get the inheritance?
It depends on the provs of the will o If theres a substitute = to the substitute o If representation is allowed = to the representative o If theres none = to the leg heirs of the testator
Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. (801a) Effect of a Suspensive term
WITH A TERM a) Kinds Art. 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. (805) What if the testator makes a disposition subj to a term? Diff of a term & a condition: Term Condition Both are future events Certainty of the Happening of the future Happening of the happening of the event event is certain event is uncertain
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the inheritance wont be effective until the arrival of the term ex) val ws instituted subj to a suspensive term, but she predeceases the testator o when the term arrives, after the death of the testator, who will rcve the inheritance? The leg heirs of the testator or of val? o The leg heirs of the testator will get the prop Bec val never inherited anything she predeceased the testator Ex) val was alive when the testator died, but b4 the arrival of the term, val died, leaving behind her son bones o Who will get the prop? Leg heirs of the testator or of val (bones)? o Bones will get the prop
future
This is the diff btwn a suspensive term & a suspensive cond!! (bec of A878) Suspensive cond Its possible for the heir not to inherit at all bec WON the cond will happen, isnt sure
Description wrt the happening of the event
we know for sure that itll happen, EXCEPT we dont know exactly when itll happen The term will ARRIVE
The cond will HAPPEN
Suspensive term Intention of the testator is to really give the inheritance to the heir, he jst postponed the delivery, during the time the term hasnt arrived
ex) death of a person o we know one will die, but we dont know exactly when he will die kinds of terms: o suspensive term o resolutory term
the right to the prop was alrdy vested in the heir bec the arrival of the term has certainty Q: when a disposition was made to a suspensive term, who will get the prop/inheritance, b4 the arrival of the term? o Under A880 the administrator will get it
b) Effect Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. (799a) Art. 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. (805) *A885, 2nd par in relation to:
Under A885 itll be delivered to the leg heirs of the testator, but theyll enter the inheritance only upon posting of a bond (sir gave a
latin phrase I cant understand ds anyone know?)
Why is there a diff? JBL Reyes: b4, A880 ddnt contain the word term, jst stated cond o Under the OCC: A880 applied to a suspensive cond = administrator A885 applied to a suspensive term = leg heirs of the testator He said, some1 in Congress introduced an amendment to A880 he created a conflict where there used to be none Sir: but JBL ddnt say something the real intention of the proponent of the amendment of
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A880, was to delete A885 This way, whether term or cond, itll go to the administrator so that there wld be no need for the bond
Bec its possible for the leg heirs, even if theres a bond, to finish or destroy the inheritance/prop, thereby depriving the instituted heir from what he was suppose to inherit So whether it was a term or cond, it shld jst be an administrator But Congress forgot to amend A885 proponent forgot to have A885 removed So now, theres a conflict! Wc therefore prevails A880 or A885? o JBL Reyes: A885 shld prevail bec it specifically applies to suspensive terms, whereas A880 is a gen prov on applicable to both suspensive terms & conds And A885 appears much later in position, and the later prov in the law shld prevail over an earlier prov BUT, the prov of the law will yield to an express prov in the will o Ex) prov in a will: subj to a term but b4 the arrival of the term, the prop will go to the administrator This is allowed/valid
If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. (798a)
Modal institution: the testator imposes a charge on the inheritance Ex) im leaving to bones, my 5 hectare land in Laguna, but he has an oblig to give 1/10 of the harvest/income of the land, to the archbishop of manila (cardinal) o This is a charge, a modal institution Q: suppose after entering his inheritance, bones only delivers 10% to the cardinal for the 1st 5yrs, but on the 6th yr, he no longer wants to deliver the 10% of the income of the prop o What will happen? What will be the consequence of this violation of the charge imposed on the inheritance? o Will he lose the inheritance? If he loses the inheritance, itll no longer be a modal institution, itll be a resolutory cond! This is the diff of a resolutory cond from a modal institution Resolutory cond The instituted heir LOSES the inheritance upon the happening of the cond
Bec in testamentary succ, the will of the testator is paramount, unless its illegal, contrary to pub policy, etc Sir: dsnt think theres anything contrary to pub policy, to allow the administrator to keep the prop, pending arrival of the term
Modal institution The instituted heir DSNT LOSE the inheritance if he dsnt perfm the oblig imposed on him by the testator
Effect of a Resolutory term
the inheritance will be lost, upon the arrival of the term the heir instituted subj to a resolutory term, will immediately enter his inheritance upon the death of the testator o if he dies b4 the arrival of the term, then his own heirs will inherit the prop, but subj to the resolutory term o upon arrival of the term, the resolutory heir loses the inheritance & itll be delivered to the person/s whos to rcve it under the will or law
If the instituted heir dsnt want to comply w the oblig imposed what happens? o Remedy/to enforce the modal institution: specific perfm cardinal can go to Ct to compel bones to deliver the 10% harvest Ct can compel bones to deliver the 10% income If bones still refuses to deliver, the Ct has many remedies in order to compel perfm Ct can impose a receiver to collect the income of the prop & hell be the 1 to deliver the 10% to the cardinal If the inheritance can be lost by the instituted heir, its definitely not a modal institution, but a resolutory cond How do we know if whats imposed on the heir is a resolutory cond or a mere charge? o Look at the words of the will o If the will imposes as a consequence, loss of the inheritance if he dsnt comply w the oblig = this ISNT A CHARGE Its a resolutory cond! o If the will is silent & nowhere can you infer from the wording of the will that he loses his inheritance as a penalty/consequence of his non-perfm of the oblig = institution is modal, ITS A CHARGE And in the example, theres no statement that bones will lose the inheritance if he dsnt comply w the oblig/charge; neither can we infer this from the words of the will SC case, penned by J. Davide:
4. MODAL Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. (797a) Art. 883. When without the fault of the heir, an institution referred to in the preceding article 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.
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XIII.
Decision dealt with this Q/diff (modal institution & resolutory cond), but wsnt written properly/wsnt clear LEGITIME
How much is the legitime of legitimate ascendants? If they survive alone, then of the estate is their legitime
1. CONCEPT Art. 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (806) Legitime is that part of the estate of a decedent reserved by law for the benefit of his compulsory heirs Why does the law reserve a certain portion of the decedents estate for the benefit of a certain class of heirs? o Acc to writers in civil law: To temper the unreasonableness of certain decedents To temper their passions
E.g. in a fit of anger, he might give everything he has to 3 rd parties to penalize an erring compulsory heir
Decedent may give this free portion by will to 3rd parties or make share of a favorite compulsory heir bigger than other compulsory heirs If more than 1, entitled to divide between them the legitime of Legitime is divided equally between the paternal and maternal lines *Refer to illustration o Representation allowed ONLY in favor of the descending line, NOT the ascending line *Refer to illustration Legitimate ascendant must be a legitimate ascendant to be a compulsory heir o Must be validly married to his/her spouse that led to the legitimate issue of the decedent
What happens to the other ? Free Portion
Who are the compulsory heirs protected by law against the capriciousness of the decedent? o Heirs to whom the decedent owes obligations to, love and care o Under the law hes supposed to take care of these heirs o To guard against the decedent not being left inheritance for their support, the law has reserved a certain part of the decedents estate for their benefit Who are compulsory heirs? o 1. legitimate ascendants o 2. illegitimate parents o 3. surviving spouse o 4. legitimate children and descendants o 5. illegitimate children
2. WHO ARE ENTITLED TO LEGITIMES: COMPULSORY HEIRS Art. 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a) 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) Art. 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption, shall be his legal heirs. (n)
Legitimate Ascendants Ascendant only refers to direct line o Ex: your uncle isnt your ascendant, hes your collateral relative in the ascending line o Who are they? parents, grandparents, great grandparents, great great grandparents, etc. Ex: if Bones dies single, no illegitimate kids, survived by grandparents and parents, who are his compulsory heirs? his parents Rules: o Legitimate ascendants are your compulsory heirs, BUT among the ascendants in the direct line, the nearer excludes the more remote (in degree) *Refer to illustration
Art. 189. (FC) Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39(1)a, (3)a, PD 603) Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, onethird to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters;
What if decedent is adopted? o FC: adopting parent and adopted child shall have the reciprocal rights and obligations of that of a legitimate parents and legitimate child o If adopting parent dies and leaves adopted child, will adopted child inherit as a compulsory heir? YES o If adopted child dies survived by adopting parents, are adopting parents his compulsory heirs? Sempio-Dy: YES Sir: but what if adopted childs natural parents are still alive? Ex: *Refer to illustration A & C had a legit son B A is Ds sister C died, A (widow) had D&E adopt B B knew his real mom was A Adoption done thru a ct proceeding and the ct issued an order making B an adopted child of D&E B dies, survived by A, D&E o Who are the adopted childs compulsory heirs? Sempio-Dy: A, D&E They will divide the legitime of reserved for compulsory heirs among them Sir: whered she get that? Its not in the law. Requirements for an heir to become a compulsory heir: o 1. classified in the law as a compulsory heir
o 2. the law must give him a legitime Art 984: when an adopted child dies w/o legal issue, then his parents by nature and NOT adopting parents are his compulsory heirs o Sempio-Dy: impliedly repealed acc to Art 189 FC adopted child becomes legitimate child of adopting parent Sempio-Dys theory: the adopting parent takes the place of a legitimate parent, therefore the legitime of a legitimate parent should go to the adopting parent o Sir: wrong, no implied repeal No provision in FC that expressly repeals Art 984 CC Sempio-Dys theory is wrong Art 190 FC adopting parent is just a legal heir who inherits ONLY under the instances provided for in Art 190 Not all legal heirs are compulsory heirs but all compulsory heirs are legal heirs Ex: bro/sis is a legal heir but will only inherit in instances provided for in the code same case for adopting parent, outside instances provided for in Art 190, adopting parent will not inherit Nothing in FC that gives adopting parent a legitime FC doesnt consider adopting parent a compulsory heir Art 984 was not expressly or impliedly repealed by the FC. Proof: Art 190(4) FC. Art 190(4) FC: when the adopters concur with the illegitimate kids and surviving spouse of the adopted, they shall divide the estate in equal shares, 1/3 to illegitimate kids, 1/3 surviving spouse, 1/3 adopters FC doesnt consider an adopting parent a compulsory heir because only grants 1/3 to adopting parent rather than the legitime which the law provides to compulsory heirs *Refer to illustration Original intention was to cut-off all connection between adopted child and natural relatives o Law may provide that all connections of child with natural family are severed o Sir: problem when the adopted child becomes the legitimate relatives of ALL the family members of the adopter wrong! o Under the NCC, there was a procedure for rescission or revocation of adoption removed under the FC, adoptive parent can no longer revoke a degree of adoption, only the adopted child can go to ct to rescind the adoption under the FC o Del Valle vs. Del Valle (not sure about the name) Adoption creates a purely personal relationship ONLY between the adopted parent and adopted child There are NO relatives by adoption Adoption is purely personal between adopting parent and adopted child o Ex: Val, Bones single daughter, adopts a baby girl against the
wishes of Bones The baby girl is not Bones granddaughter Baby girl is only the daughter of Val, not related to Bones in any way Bones can even marry the baby girl when shes older no prohibition in the law Ex: *Refer to illustration A adopts B B marries C, has a kid D
Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate. (836a) Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (n) Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (840a) Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a) Art. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. (n) Art. 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article. (n) Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n) Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (837a) If the marriage between the surviving spouse and the testator was solemnized in
A (adopter) CANT marry C or D Under the law, adopting parent cant marry the surviving spouse of adopted child No prohibition in law against adopting parent marrying the child of his adopted child, but it would be absurd if allowed since adopting parent cant marry the spouse of his adopted child
CONCURRENCE OF COMPULSORY HEIRS AND THEIR CORRESPONDING LEGITIMES Art. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (808a) Art. 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants. The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (809a) Art. 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor. If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. (810) Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (834a)
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articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n) Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. Art 39, PD603: Effects of Adoption. - The adoption shall: 1. Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption; lawphi1.net 2. Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of the surviving natural parent; 3. Entitle the adopted person to use the adopter's surname; and 4. Make the adopted person a legal heir of the adopter: Provided, That if the adopter is survived by legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child: Provided, further, That any property received gratuitously by the adopted from the adopter shall revert to the adopter should the former predecease the latter without legitimate issue unless the adopted has, during his lifetime, alienated such property: Provided, finally, That in the last case, should the adopted leave no property other than that received from the adopter, and he is survived by illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive one-fourth of such property; if the adopted is survived by illegitimate issue and a spouse, then the former collectively shall receive onefourth and the latter also one-fourth, the rest in any case reverting to the adopter, observing in the case of the illegitimate issue the proportion provided for in Article 895 of the Civil Code. The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession, whether testate or interstate. Illegitimate Parents Look at wording of the law ascendants vs. parents o Ascendants ad infinitum, great great great great grand parents included o Limited to illegitimate parents only until parents, NOT ascendants o Art 992 Iron Curtain Rule Separates legitimate family from illegitimate family Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) *IRON CURTAIN RULE What if legitimate ascendants concur with legitimate children? Who are the compulsory heirs?
The legitimate children/descendants will exclude the legitimate ascendants from the inheritance o Why? reflective of natural/normal behavior JBL Reyes: the love of a person is like the flow of the water in the river, it flows down not up, before it goes sideways normally you love your kids more than your parents In the OCC, wife had no inheritance, only entitled to a usufruct if she had a child by the deceased husband, gets nothing if no child; because spouse isnt related to you by blood but changed under the NCC What if decedent is survived by father (legitimate ascendant) and illegitimate child? o Only legitimate descendants exclude legitimate ascendants o Illegitimate children do NOT exclude legitimate ascendants o Whats the legitime? estate as legitime to legitimate ascendant to illegitimate child free portion What if survived by a mother and spouse? o Spouse is ALWAYS a compulsory heir o Spouse is in a better position that a legitimate child o Spouse doesnt exclude mother o What are the legitimes? to mother to spouse free portion What if survived by mother, spouse, illegitimate child by another woman? o Who are compulsory? Illegitimate child doesnt exclude mother or spouse o What are their legitimes? to mother to illegitimate child 1/8 to spouse 1/8 free portion o Side discussion: o
What does adultery punish? Punishes bringing a spurious heir into the family
Whats being penalized in concubinage? scandal that befalls a family (under circumstances provided by law) Legitimate ascendants concur with several legitimate children o Ascendants will be excluded, only legitimate children are compulsory heirs o What are the legitimes of the legitimate children? of the estate How to divide? divide equally, even if they came from different marriages free portion Legitimate children include:
Adopted children Legitimated children Adopting parent survived by his ascendant (his parent) and adopted child o Who are compulsory heirs? Only the adopted child excludes the ascendant
Why? because adopted child has all the rights of a legitimate child wrt the adopting parent One of the rts of the legitimate child is to exclude the ascendants of his parent from inheritance
Legitimated Children o When legitimated? When the parents of a natural child subsequently marry o NCC: 3 kinds of illegitimate kids 1. Natural kids by legal fiction gets inheritance of legitimate kids 2. Natural kids inheritance of legitimate kids 3. Spurious kids 4/5 share of a natural child o Framers of FC: Abolished classification of illegitimate children under the NCC Only one class of illegitimate kids under the FC o Sir: Wrong pronouncement of framers of the FC Only removed the name natural child Natural kids as a class still exists in the FC in case of legitimation Only natural kids are legitimated by the subsequent marriage of the parents Spurious kids cant be legitimated Ex: Bones married to Carmela, Val single But then Bones and Val had a baby No DNA or blood tests before It was an act of faith to be the father of a child because no way to prove kid isnt yours Thats why filiation under the NCC is a presumption
been living together for more than 10yrs because thats the presumption under the law o Husband needs to file an action to impugn the legitimacy of a child in 3 years o If he doesnt, then child becomes conclusively his child Ex: Bones and Val separated with an agreement to live with chosen partners Val lived with Digoy Val filed a petition to declare her marriage to Bones null and void Val got pregnant with Digoys kid pending the action Ct declared marriage void ab initio on ground of psychological incapacity kid is legitimate under this ground Whose kid is it? o In reality its Digoys o But under the law its Bones
William Li Yao vs. William Li Yao (not sure of the name) Had a family with 2 kids Had an affair with employee and lived-in with her in a condo Employee was separated from her husband but still married Employee got pregnant and had a kid Employee placed Li Yao as father in the birth certificate but he didnt sign it Li Yao died Whos the dad? o SC: under the law when a woman is married, the kid is presumed to be the child of the husband even if they havent
ILLEGITIMATE PARENTS AS COMPULSORY HEIRS When illegitimate parent survive alone = compulsory heirs, entitled to of estate as their legitime 2 illegitimate parents surviving = entitled to divide between them the legitime of reserved for illegitimate parents When illegitimate parents concur with legitimate children, or descendants of deceased = illegitimate parents are excluded Take note that legitimate children or descendants exclude all ascendants, whether the ascendants are legitimate or illegitimate Suppose illegitimate parents concur with illegitimate children? o Illegitimate parents are excluded by illegitimate children A legitimate ascendant is not excluded by an illegitimate child When a legitimate ascendant concurs with an illegitimate child, the legitimate ascendant is entitled to of the estate as his legitime and illegitimate child is entitled to just of estate as legitime; o Remaining is free portion An illegitimate parent is excluded by an illegitimate child o Illegitimate parents, therefore, are excluded by all kinds of children o When they concur in the inheritance of decedent, they are excluded by legitimate and/or illegitimate children Suppose illegitimate parent survives with the spouse? o The spouse does not exclude the illegitimate parent and the two of them are the compulsory heirs o Illegitimate parent will receive as legitime, spouse receives as legitime o Remaining is free portion Issue as to who is an illegitimate parent with respect to the deceased child Persons and family relations = illegitimate child is entitled to inherit only when illegitimate child is recognized voluntarily or involuntarilty, by court action o So when illegitimate parent dies, and an illegitimate child wants to inherit, the illegitimate child has to prove that he has been recognized voluntarily by putative parent during his lifetime, or by court action filed during lifetime of parent o If he is able to prove that he was recognized, illegitimate child is entitled to inherit o If not recognized voluntarily = no inheritance How about the reverse? o Kasi kung i-rerecognize lang ng tatay yung bata, is that sufficient to clothe him with the right to inherit? o Papano kung ang nag-rerecognize ng bata? Example o Miss Brion = playgirl o 4 ang boyfriend, sabay2x o She became pregnant; doesn't know who father is o All 4 boyfriends executed voluntary recognition of child's paternity o Mr. Kabatay sumulat kay Ms. Brion: "sweetheart, kumusta na yung baby natin" kasi akala niya, kanya yung baby: Ms Brion deadma lang o All other 3 boyfriends executed voluntary instruments recognizing the child as his
When that child dies, leaving behind a fabulous wealth, who among 4 is the illegitimate parent entitled to inherit? Walang nakalagay sa law Under old Civil Code: illegitimate child may refuse to be recognized by illegitimate parent o Why? Recognition may be extended just to be entitled to inherit o So illegitimate child may refuse recognition if he believes that the recognizing father is not really his father o But FAMILY CODE removed that portion of the Civil Code o Why? Sabi ng writers: more beneficial to child if he is recognized o Tama yun, kung walang pera yung bata o Pero kung mayaman yung bata, it's the other way around PROBLEM: how do we know who is the illegitimate parent among the 4 boyfriends? o No proceeding for that; not provided by law o We can only surmise that when that happens, it will be a matter of evidence o He who is able to prove that he is real father should be entitled to inherit o Pero masama yan eh, kasi pinabayaan nya yung anak niya Example: o Di naman niya pinalaki o Only connection between child and illegitimate father: the supposed recognition Law should provide that: illegitimate parent should be entitled to inherit only when the decedent also recognized the father as his illegitimate parent o Dapat pareho sila na nagrerecognize Legitimate children and descendants: may descendants duon sa batas, hindi lang children Legitimate children and descendants When children are legitimate: under law, legitimate if they are born within a valid marriage Discussed last time that filiation under the Family Code or even under Civil Code was on the basis of presumption o Meron pang isang pagkakamali na ginawa yung Family Code o Article 164 Children conceived or born during marriage of parents are legitimate DANNYCON: Of course! Diba kung parents niya, natural: parents eh o Problem is how do we know if the husband or the wife are really the parents? o Under civil Code; may presumption: child born after 16(8)0 days from celebration of marriage o Di nga natin alam na anak talaga yan ng mag-asawa eh o Natural, kung parents niya, eh conclusive yun. Alam mo naman pala na parents eh o Mali yung provision o Law provides: child is considered to have been conceived during first 160 days of the 300 days preceding birth of child o First 160 days of 300 = considered to have been period of conception of child, whether or not that child was born o
premature or full term New Civil Code: presumption lang: di nga natin alam kung sino ang parents talaga, eh o But Family Code: children conceived or born during marriage of parents are legitimate = natural! o Binago nila = mali yan How about itong artificial insemination: of all provisions of Family Code, this is very un Filipino o Require that kung ikaw Miss Brion hindi ka mag-ka-anak kay Mr. Kabatay, at kayo ang nagkasundo na magpapa-artificial insemination ka, dapat yung consent ni Mr. Kabatay ay in writing, notarized at recorded sa Civil Registrar's Office: Sinong Filipino ang gagawa nyan?? o Ang Filipino, kapag nagpapa-artificial insemination, secreting secreto: walang nakaka-alam, itinatago, in fact yung iba pumupunta pa sa ibang bansa para gawin yan! o Pero anung gusting mangyari ng Family Code: ipaglaglaran natin sa buong mundo, kasi dapat ipa-register sa Civil Registrar's Office o Ano ngaun ang consequence if it was not recorded in the Civil Registrar's Office = sabi ng ibang professors = child must be illegitimate DANNYCON o Kalokohan! Why? = kasal sila, eh o Bakit hindi magiging anak nila? Example: o Miss Brion, sabi niya: hindi ako magkaka-anak o Dapat pa ba akong magpapa-artificial insemination: I will be doing it with the syringe of the doctor: might as well enjoy it o She had sexual intercourse with the driver (very violent reaction from some flooze from 3B) o Driver naman eh kagaya ni Tom Cruise o Nabuntis si Ms. Brion o Anung ginawa niya, diba nagtaksil siya? o Kaninung anak yun? o Nung nagtaksil si Ms. Brion, anak ni Mr. Kabatay o Why? Eh, kasal sila o For that child not to be his, Kabatay has to impugn the legitimacy of the child o Eh, on what grounds? DNA: scientific reasons o But if Kabatay doesn't impugn, child is Kabatay's, maski nagtaksil si Ms. Brion o Nung nagpa-artificial insemination, hindi naman nagkaroon ng sexual infidelity sa husband, pero hindi lang nila inexecute yung consent in writing, naging illegitimate ang bata = ABSURD SEMPIO-DY o tinanong ni DANNYCON: why did you include the provision on artificial insemination? o SEMPIO-DY: kasi, baka mag-away yung husband and wife, mag-file yung husband niya ng adultery yung misis nya: on evidence that when DNA'd, the child was not the husband's o Sabihin ng tatay: eh, di akin yan, kaninung bata yan
DANNYCON: kalokohan o True, that the gist of adultery is not the enjoyment by wife of the sexual intercourse with a man not her husband o But under the Revised Penal Code, essential element of adultery is that she must have sexual intercourse with a man other than her husband o In the case of artificial insemination, that essential element of crime of adultery will be missing o She did not have sexual intercourse with another man! Yung artificial insemination di naman yan pwedeng gawin mag-isa: wala pang do-it-yourself na artificial insemination o Artificial insemination is always a medical procedure and it always is recorded: bawal na hindi naka-record / documented yung procedure o Dapat yang 2nd par of 164 = i-delete o 1st paragraph of 164 = dapat baguhin = mali rin o Kasama yan yung legitimated, of course o Problem of a marriage being declared void ab initio Example o Miss Brion and Mr. Kabatay got married o Di nagkasundo: sabi ni Miss Brion : "ayo ko na sayo, Kabatay. You're psychologically incapacitated" o Ms. Brion filed an action to declare her marriage to Kabatay void ab initio on ground of Kabatay's psychological incapacity o Natural na din na naghihiwalay na sila; because if during the pendency of that petition, nagsasama parin sila, pag "uuntuhin ko kayo" o During the pendency of case, nakipag-live- in si Ms. Brion with Mr. Natividad ("kapag curly = naughtysorry ka nalang, Mr. Kabatay") o Despite having taken all precautions, Ms. Brion got pregnant o Pagka na-declare later on na null and void yung kasal ni Kabatay at Brion, kaninung anak yun? o Pwede bang irecognize ni Kabatay yung anak ni Brion as his? o Nag-retroact ba yung effect of decree of nullity? o ++unanswered+ + Legitimate children and descendants When legitimate children and descendants survive, alone as a group, then, they are the only compulsory heirs entitled to of estate as their legitime to be divided among them equally o Maski pa sila ay coming from different marriages Example: o A married B o They had 4 children: C, D, E & F o A died, B married G ("because of lonely nights") o B & G had one child: H o G died, ang natira si B, C, D, E, F & H o When B died, he was survived by his children, all of them legitimate children of his, from the 2 marriages o What are their legitimes?
Basta legit anak, of decedent's estate And how do we divide the of the estate legitime among the children, equally? H is the only one, A had 4 kids by B No. H and A's kids all have equal shares, regardless of who their mother is All of them are legitimate children, and therefore all of them are entitled to inherit equally Though the kids have different mother, di naman yung mana ng mommies ang pinag-uusapan Mana ni B, their common father As far as the father, B, is concerned, C-F and H are his legitimate children What if mas maraming properties ang nai-pundar sa second marriage? o Function of settlement, in acc. to Family Code o If the bulk of the properties were produced / acquired in the second marriage, eh di conjugal ni G and B yun: they will settle it o Problema kasi, sometimes, the conjugal properties will only be settled if both spouses died o Mahirap-hirap yan o Sa settlement, lahat ng properties na naipundar sa first marriage (A + B): kung conjugal yan, ang kalahati ay supposed to be in the estate of A, plus her separate property= her heirs will be her kids: C, D, E & F o plus B, her husband o B's property: share of conjugal partnership kay B, plus his legitime from the estate of A (1/2 of A's estate, if no charges to the free portion, and of A's separate property) plus B's own separate property o Pupunta yung lahat ng properties na to from the first marriage to the property regime of B's second marriage (B + G). Kung conjugal partnership ang property regime nila B & G, then all of B's property from the 1st marriage will be his alone, and B+G's property regime will consist of the fruits of B's and G's property, plus all the income acquired by both of them during the second marriage o Kung wala silang prenuptial agreement, and B and & got married after the effectivity of Family Code = absolute community, and therefore all of the properties that B owned before he got married to G will be part of their absolute community of property regime o If B, the absolute community of property with G will be settled If Absolute Community of Property o B's estate will consist of of the absolute community regime with G = share of conjugal partnership with A, of A's estate as his legitime, B's own separate properties, G's properties as of the time of her marriage to B, properties acquired during the marriage, fruits and income earned during the marriage PLUS B's separate property o considered not part of the absolute community of property with G If Conjugal Partnership of Gains o B's estate will consist of share of conjugal partnership with A, of A's estate as his legitime, B's own separate properties excluded from CPG with A, of the conjugal partnership with G, and B's o o
separate properties excluded from CPG with G Settlement of property regime of the marriages is a separate issue from the settlement of decedent's estate o Mabuting mabuti kung bago nag-asawa yung widow/widower, na-settle na yung regime of his/her first marriage and the estate of his/her first spouse o Pag hindi mo pa na-settle, magkakagulo tayo o Pag-nag-asawa na muli yung widow / widower, and had a child, at the end of the day, we can no longer determine which were the properties acquired during the first marriage o Magulo yan o For that reason, Family Code has included a provision that when a widow / widower will remarry, but before such second marriage, the widow or widower has not settled the estate of first spouse who died, then his property relationship with second marriage will be a mandatory complete separation of property o wala siyang magiging CPG, nor ACP with 2nd marriage When marriage naman is declared null and void, law requires the settlement of the property regime between spouses and for that settlement to be recorded with appropriate Civil Registry If the spouses of a null marriage will contract a subsequent marriage, and were not able to settle the property regime of the null marriage, what is status of 2nd marriage? o VOID, under article 54 0r 56 of FC o Under new Rules of Court, clerk of court will not issue a certificate of finality of the annulment until the property relationship between the former spouses has been settled o No certificate of finality of annulment = no license to marry again Included among the legitimate children is adopted child: kasama yun o Kasama siya sa kukuha ng legitime o Legitimated children also included o For an adopted child to be entitled to inherit, the adopted child must be adopted by proper court proceeding
Case: decided by Sempio Dy in CA, and sustained by SC: Badua vs CA (or BARITUA VS CA??) o Kabatay and Brion married for 10 years: no child o Ayaw na nilang malaman kung sino sa kanila ang may differensya o Owner of local materinity clinic knocked on their door: Owner had a baby o Baby was left in maternity clinic, bills unpaid o Couple adopted the baby and paid the bills: human trafficking, crime: o Anti-Child Abuse Law o Couple didn't legally adopt the child: they got a form of Report of Live Birth from Civil Registrar's Office: they filled up the report as if they were the real parents of the child: child's name = "Francis" o Couple issued a Birth Certificate for the child
Parents died, left a large estate The child executed an affidavit of adjudication: extrajudicial adjudication: "only child of the couple, they died, leaving no will, since he is only legit child = only heir, thereby adjudicating to himself all the properties left behind" o Siblings of the couple: why should child inherit when he was not even o adopted = not legit child of parents?? o Can siblings question the right of the child to inherit? o Will this child reared up by the couple inherit? NO Child can't inherit o Birth certificate is a falsified document = SIMULATION OF BIRTH = crime o Pinalabas na nanganak si Brion, di naman nanganak si Brion o Falsified document o Therefore, relatives of couple may go to court, set aside the extrajudicial adjudication executed by child and prove that his birth certificate was falsified o Moral lesson: wag magtitipid sa abogado o You have to adopt the child properly, legally CHILD: when they filed an action to annul the extrajudicial adjudication executed by him, you guys can't do it NOW o To annul the extrajudicial adjudication is to declare me not a child of the deceased couple o That amounts to impugning my legitimate status o Under FC, to impugn my legit status = can only be done by children of my deceased parents: you are not children of the deceased parents o Assuming you are couple's legal heirs = action has already prescribed o = 3 years max SC o You never acquired that legit status, boy o Only those born of the woman, of Brion, will acquire that status: that you are presumed legitimate child of the couple o Di ka naman lumabas kay Ms. Brion o Sa ibang tao ka lumabas, di kay Ms. Brion Suppose the legitimate children concur with legitimate ascendants : compulsory heirs? o Only legitimate children = they exclude the legitimate ascendants When legitimate children concur with illegitimate parents? o Illegitimate parents are excluded Legitimate children concur with illegitimate children? Who are compulsory heirs? o New Civil Code: difference of treatment between illegitimate who are spurious and illegitimate who are natural o FC: distinction between 2 kinds of illegit has been abolished o Therefore, illegit children are also entitled to inherit, but legitime is half of legit child's o One requirement for illegit child to inherit is for illegit child to be recognized by putative parent, whether voluntarily or involuntarily o o
by court action Example: o A + B = 2 kids: C & D o A had an affair with E = F, illegit child, duly recognized by A o B died; then A died = survived by his 3 kids (C & D = legit, F = illegit) o Legitime of legit children, C & D = of A's estate to be divided equally between them o of A's estate = C; of A's estate = D o Legitime of illegit kid, F = legitime of either C or D = the legitime of a legitimate child = of = 1/8 of A's estate = F's legitime o 3/8 of estate left = free portion Example o What if A had 5 illegitimate kids and 2 legit children? o 5 illegitimate kids, properly recognized and acknowledged by the dad o When A died, he was survived by all his legit and illegit kids o Legitimate children = of estate as their legitime o C & D = of A's estate o C = of A's estate; D = of A's estate o What about illegit kids' legitime? o Illegit kid's legitime = of legit child's, so E, F, G, H & I each receive 1/8 of A's estate 5/8's = sobra sa 1/8 yung kalahati o Who will suffer a reduction? Illegit kids They will divide among them the remaining half of the estate divided by 5 = 1/10 of the estate for each of the illegit kids o Ano na ngayon ang free portion? No more free portion, cause free portion eaten up by the legitimes of the illegit kids Suppose the legitimate children concur with the spouse? Example o Namatay si A, ang natira si B, si C and saka si D o All of them are compulsory heirs. What are their legitimes? o is always reserved for the children, so of A's estate will go to C and D as their legitime o They will divide that equally between them: , o How about the spouse? What will be her share? o Equal to the legitime of a legitimate child = spouse's legitime o So kung ang share ni C and D, din ang mapupunta ni B o In short, the spouse will inherit as if she were a legitimate child o Kasama siya sa hatian o Remainder of = free portion, after paid the legitimes Example: o father married twice o A married B = 4 kids: C,D,E & F o A died, B remarried to G, no kids o B died, survived by G, second wife, and the four children
Who are the compulsory heirs? Surviving spouse, and the legit children Thus, of the estate will go to the legit kids: C,D,E & F Divide by 4 = 1/8, thus 1/8 yung mapupunta kay G, second wife o G will complain G: wala naman akung pakialam kung ilan ang anak ni A at B, why should my legitime be dependent on the computation of legitimes of B's kids by another woman (A)? Can't do anything about it: by law Anyway, kung maraming properties ang ma-acquired during G's cohabitation with the deceased spouse (B), malaki naman yung kanayang matatanggap from the property regime of such marriage with deceased spouse So 1/8 = G's share Law says that legitime of a surviving spouse is equal to the legitime of one legitimate child or legitimate DESCENDANT Example: o 4 kids: C, D, E, F o C has 2 kids: H & I o D has 3 kids: J, K & L o E has 1 kid: M o F has 4 kids: N, O, P & Q Suppose when B died, he was survived by his 2nd spouse, G, and all his children and grandchildren o Who are the compulsory heirs? o Of course: C, D, E & F are the compulsory heirs o The grandchildren are excluded because they are more remote o G will concur with these 4 children o Her legitime will be the legitime of C, D, E & F Suppose all these children will repudiate their inheritance? o If they repudiate their inheritance, then all these grandchildren will inherit in their own right as the nearest descendant o Ano na yung legitime ng grandchildren? of B's estate pa rin, but to be divided equally between them M cannot represent E's share, same goes with other grandchildren vis--vis their parent's individual shares; and the legitime will have to be divided equally between the 10 grandchildren. The grandchildren do not inherit the share of their parents because there is no representation in repudiation When an heir repudiates, he is not entitled to be represented o Therefore all this grandchildren will inherit in their own right and since all of them are grandchildren of same degree, then they will inherit per capita of B's estate divided by 10 = 1/20 o Biglang naging 1/20 ang share ni B o Should B complain of the reduction of her legitime because of the children's repudiation? o
TOLENTINO o These children by 1st marriage may prejudice the second wife by repudiating their inheritance so that the grandchildren will inherit and that will unduly reduce the legitime of the surviving 2nd wife o Tolentino: we should not allow that to happen o That will be unfair to surviving 2nd spouse TOLENTINO o Kapag nag-repudiate lahat ng children of 1st marriage, dapat sa kanila parin kwekwentahin yung legitime ng surviving second spouse DANNYCON o That will be fair, but no legal basis o When an heir repudiates, in the eyes of the law = he was never an heir o Kung baga, tinakwil nya yung sarili niya; sinabi nya, di mo ako anak o Thus, din na natin siya kukwentahin sa hatian ng mana Example o Suppose there is only one legitimate child surviving with the spouse o Ano ang legitimes? = legit child o If we follow rule that wife will inherit as if she were a child, of estate = wife = the estate run out, walang mauubos para sa free portion o So what kung maubos yung free portion? Lahat ng mga chargeable against the free portion: ma re-reduce, magbabalik Example: o Father donated a property for charitable purposes o Naubos yung free portion, pwede ipabalik yung property nay un o So kailangan may matitirang free portion where those donations can be charged o All donations which are subject to collation are chargeable against the free portion o So kung walang natitirang free portion, ibabalik lahat ang mga donations na un o Thus, naging lang yung wife, naging = child o Surviving spouse will only get of estate as legitime and remaining is free portion Problem kung may anak sa labas o Kung may anak sa labas = mapupunta sa anak sa labas = mawawala na naman yung free portion o Donations subject to collation will therefore become inofficious o All those donations have to be returned to estate of decedent Kasi when is a donation inofficious? o A donation is inofficious if it exceeds free portion of estate o Free portion is that part that decedent can give away o When donation exceeds free portion = inofficious = may be reduced by proper court action
Kung zero nay ung free portion, ang lahat ng mga donations given by decedent during his lifetime will all become inofficious = all of them have to be returned to estate o Problema whenever no free portion is left in estate of decedent 4. RESTRICTIONS REGARDING THE LEGITIME Art. 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. (813a) Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a) Art. 905. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. (816) Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. (815) Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. (817) Art. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. (1271a) 5. DETERMINATION OR COMPUTATION Art. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. (818a) Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (819a)
Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. (847a) Art. 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime. (3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a) Art. 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them. The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime. (821) Art. 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. (822) Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. (636) Art. 771. Donations which in accordance with the provisions of Article 752, are inofficious, bearing in mind the estimated net value of the donor's property at the time of his death, shall be reduced with regard to the excess; but this reduction shall not prevent the donations from taking effect during the life of the donor, nor shall it bar the donee from appropriating the fruits. For the reduction of donations the provisions of this Chapter and of Articles 911 and 912 of this Code shall govern. (654)
When the spouse has one legitimate child, we follow the formula that legitime of the spouse is equal to the legitime of a legitime child and nothing will be left for the free portion. o So the law reduced the legitime of the wife to one fourth. o That is a healthy compromise because under the Old Civil Code, the wife was not entitled to any legitime at all. When the legitimate children concur with illegitimate children, the legitime of one illegitimate child is half of one legitimate child. Illegitimate children o The illegitimate children are entitled to inherit provided they are recognized. o When they concur with the legitimate ascendants, the legitimate ascendants get one half of the legitime and the illegitimate children get one fourth as legitime. The remaining one fourth is free portion. o When they concur with illegitimate parents, the illegitimate parents are excluded from all kinds children. When the surviving spouse survives alone, then she is the only compulsory heir. o What is his or her legitime? It depends. If the spouse got married in articulo mortis and the spouse died in 90 days, then his or her legitime is reduced to just one third instead of one half if he or she was not married in articulo mortis, or even though they were not married in articulo mortis, the deceased spouse died more than 90 days after the celebration of the marriage, in which case, the legitime of the spouse is one half. What is the reason behind this difference? o To prevent the spouse from marrying somebody for his wealth. When the spouse survives with legitimate descendants, then the legitimate descendants will get one half and the spouse will get one fourth. The remaining one fourth is free portion. When the spouse survives with illegitimate parents, the spouse does not exclude the illegitimate parents. o Blood is still thicker than water. o How much is the legitime? Spouse will get one fourth, the illegitimate parents will get one fourth, and the remaining one half is free portion. When the spouse survives with illegitimate children, the spouse will get one third and the illegitimate children will get one third. The remaining one third is free portion. The testator cannot impose any condition on the legitime. The legitime is reserved by law for the compulsory heirs. The compulsory heirs will get them free from any condition, charge, burden. Manresa: The testator cannot even give the legitime by will. o Sir: I doubt it very much. o Illustration: X, a widower, has two children, A and B. When X died, he left a will instituting A to two thirds of the estate and B to one third of the estate. X left no debts and the estate was P360k. Divide the estate.
HEIR A B
SHARE 2/3 1/3
INSTITUTION P240K P120K P360K
Manresa Formula HEIR A B
LEGITIME P90K P90K P180K
INSTITUTION P120K P60K P180K
TOTAL P210K P150K P360K
Which one is a better solution? o The Manresa solution is easier to apply because all you have to do is give the compulsory heirs their legitimes, and if there is a free portion, thats where we shall apply the provisions of the will. o Sir: This solution proposed by Manresa should only apply to legacies but not to institutions. The general rule is that when a legacy is given to a compulsory heir in a will, the lgacy is deemed not part of his legitime unless the will says so. If it is an institution, this does not follow. o A has a wife B and a son C. The testator, A, left a will stating: B and C will share equally in all the worldly possessions I will leave behind when I die. The estate amounts to P360K. HEIR C B HEIR C B Manresa formula: LEGITIME INSTITUTION P180K P45K P90K P45K P270K P90K Baviera/Concepcion/Maura formula: SHARE INSTITUTION P180K P180K P360K
TOTAL P225K P135K P360K
o May a o
Baviera/Concepcion/Maura Formula
Are any legitimes impaired by the institution in the will? No. In effect, A limited the inheritance of C to his legitime which is one half of the estate, and gave the entire free portion of the estate to his surviving spouse B. That he can do because the free portion can be given to anybody in the will. When the will does not specify, the institution necessarily includes in it the legitime. It is only when the will says clearly otherwise that it should only apply to the free portion. (Note: Use the Baviera/Concepcion/Maura formula for the exam. Only apply the Manresa formula if what was given was a legacy since that is not part of ones legitime.) decedent deprive his compulsory heir of his legitime? Ex. The compulsory heir attempted on the life of the father. May the father deprive the child of his legitime, his right to inherit on the ground that inheritance is liberality and this time the father chose
not to be liberal because the child was unworthy. Yes, a decedent may deprive his compulsory heirs of their right to inherit but he can do so only for a ground provided for by the law. We call this disinheritance. It can only be done through a will. Ex. A father got mad at his son. At a party, he declared that he was disinheriting his son for having led a dishonorable life. He did not make a will to this effect. When the father dies, can his son inherit? Yes, while living a dishonorable life is a ground for disinheriting a descendant, it was not made in a valid will. The grounds for disinheriting a compulsory heir, a descendant, legitimate or illegitimate, a spouse, and an ascendant, legitimate or illegitimate, are enumerated in the Code. The grounds are exclusive. There are no other grounds. If disinheritance was for a ground other those enumerated in the law, disinheritance is ineffective. It will not take effect because it is not a valid ground. For a ground to be valid, it must be there enumerated in the law.
which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (6) The loss of parental authority for causes specified in this Code; (7) The refusal to support the children or descendants without justifiable cause; (8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. (756, 854, 674a) Art. 921. The following shall be sufficient causes for disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a) Art. 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a) Tolentino: Why the need to disinherit when the heir is unworthy anyway? o Suppose the testator disinherited an heir on a ground which is also act of unworthiness, but the will where the disinheritance was effected was declared null and void for non-compliance with a formality prescribed by law. Will the heir effectively disinherited still
6. FREEDOM TO DISPOSE FREE PORTION Art. 914. The testator may devise and bequeath the free portion as he may deem fit. (n) XIV. PRETERITION Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a) Art. 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate: (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; (2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) When the parent or ascendant has accused the testator of a crime for
inherit? May that heir be disqualified under A1032? Testator will choose. If he did not make a will to disinherit the compulsory heir, the compulsory heir will be disqualified from inheriting for having committed an act of unworthiness under A1032. But if the testator chose to disinherit the descendant by A919, but the disinheritance became ineffective for failure to comply with the formalities prescribed by law, for making it a valid will, the heir can no longer be disqualified under A1032. Sir: The logic of the opinion expressed by Tolentino is questionable. When the testator disinherits an heir, it has to be done in a valid will and the testator must specify or state the ground, which need not be as worded by the law. Testator may write the particular act that the descendant committed that to his thinking is a ground for disinheritance. o Ex. I disinherit my son for having maltreated me. Ex. There was a wealthy, old widow who disinherited her youngest daughter on the ground that the daughter has refused, without any justifiable reason, to cook for her her favorite pochero. She felt that she was no longer important to her daughter anymore. Was there a valid disinheritance? Was there maltreatment? Sir: Maltreatment is subjective and should also be viewed from the point of view of the testator. What if the testator disinherited a compulsory heir but did not state the ground? o Ex. I am disinheriting my compulsory heir because Im really, really mad at him. Sir: A disinheritance which does not state the ground or reason is ineffective and therefore, the heir can still inherit. Suppose the testator stated a ground but the heir denied having committed the act referred to in the will. May the heir inherit? Is the disinheritance effective? Who has the burden of proof? Must the heir prove that the ground relied upon by the testator did not happen? o Under the law, the burden of proof is on the shoulder of those who want to enforce the disinheritance. When the heir denies having committed the act complained of or stated as ground in the will, the other parties who are interested in enforcing the disinheritance must prove the truth of the ground. If they fail to adduce evidence that the ground happened, the heir need not lift a finger. The heir will inherit because disinheritance is ineffective. May the testator disinherit an heir subject to a condition? No. o Ex. I disinherit my son for all the faults he had done to me, but if he will pass the Bar, this disinheritance is ineffective. A testator cannot disinherit an heir partially. o Ex. I am disinheriting my son to half of his legitime. When disinheritance was effectively carried out, what will the compulsory heir lose? o He loses his legitime. How about if there is a will where he was given a legacy or an institution? Will he receive it? o It depends when the will was executed. o If the will was executed before he disinheritance was effected, no. An
effective disinheritance amounts to total exclusion. The legacy or institution given in the prior will is revoked by the disinheritance. o If the will was executed after the disinheritance, the legacy revokes the disinheritance. It renders the disinheritance ineffective. Why will the testator give the heir a legacy if he has not forgiven the heir? This is called reconciliation. It prevents or revokes disinheritance. Why prevent? When the testator had a ground to disinherit an heir but before he having effected the disinheritance they reconcile, a falling out will prevent the testator from executing a disinheritance on the same ground. If disinheritance has already been effected in a valid will but subsequent to that disinheritance the testator and the heir reconcile, disinheritance becomes ineffective. It is deemed revoked by that reconciliation. Reconciliation is a question of fact that must be proven during the settlement proceedings. It need not be in writing. It may be proven by circumstances which show that the testator and the heir had reconciled. Reconciliation is a technical term. Lip service reconciliation is not allowed. Ex. Ok, I forgive you. I leave it all to the Lord now. This is not really reconciliation. Reconciliation means absolute pardon. You are actually restoring the heir to his rights to inherit. Suppose Erap was extended by GMA absolute pardon. Does he have to accept it? No, pardon need not be accepted to take effect since technically, the crime is obliterated. Question: Under A919(1), for example, there is already a case pending in court for an attempt on the life of the testator by the heir, and in the will the testator already disinherited the heir for the attempt on his life, then the testator dies. Will the court wait until there is a final judgment? o Yes, the case is not abated by the death of the decedent. In fact if the testator dies because of the wounds inflicted on the attempt on his life, the crime might be upgraded from attempted to consummated parricide. Under A919(2), since the accused is the testator, the case is abated by his death. Suppose disinheritance was ineffective. What will the compulsory heir get? o The compulsory heir under Article 906 is entitled to a completion of his legitime, and if there is an intestate part, it will go to him, and if a prior will was executed where a legacy was given to him, he is also entitled to him that legacy given in a prior will.
Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. (815) The testator has four children, A, B, C, and D. The testator executed a will instituting A, B, and C to his entire estate and disinheriting D for a ground provided for by law. If the estate amounts to P360K and disinheritance is effective, A, B, and C will get P120K each, and D will get nothing. But suppose disinheritance was declared ineffective, D will only get his legitime
(1/2 of P360K= P180K, divided by the number of children, 4= P45K), which will be taken equally from the shares of his siblings A, B, and C. Thus, A, B, and C will each suffer a reduction and each will then get P105K, while D gets P45K. However, if the testator did not dispose everything and there is an intestate portion, D will also be entitled to that intestate portion. Suppose the testator was so mad at his heir D that he did not even mention him in the will. o Ex. I hereby institute A, B, and C to my entire estate. Nothing was mentioned about his fourth son, D. o Since D was not disinherited but was not given anything in the will, what does he get?
Naturally, he is still entitled to his legitime, and in addition to that, he will get what A, B, and C will get under Article 854 by preterition
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a) Preterition is a remedy against the inadvertence of omitting a compulsory heir in the will. o Inadvertence means an heir was forgotten in the will. In fact, if you look at A854 and how it is worded, something is missing. o Preterition or omission from where? Original interpretation: preterited or omitted from the will Present interpretation: preterited or omitted from the inheritance Preterition and disinheritance are different. o When disinheritance is ineffective, it does not affect the provisions of the will. What will be affected is the distribution in the implementation of the provisions of the will. o In preterition, all the institutions contained in the will are annulled because had the testator known that an heir was omitted for one reason or another, the testator would have made his will differently altogether. There is no intention to exclude the compulsory heir from the inheritance. Heirs will inherit by intestacy. Ex. I hereby institute A, B, and C to my entire estate. D was preterited. The estate amounted to P360K. How do we divide the estate? The will shall be disregarded and all the institutions annulled. Each heir will receive an equal share of P90K. For a compulsory heir to be preterited, he must be omitted from the will and omitted from the inheritance. To be omitted from the inheritance, the heir must not receive anything by will either as inheritance or as legacy. The heir must not receive anything by way of intestacy. And the heir must also not receive anything by way of advance on his inheritance. Only if these three requisites are met shall there be preterition.
In the case of disinheritance, all three requisites concur but we cannot say that the heir was omitted by inadvertence. The testator did not forget the heir, rather he was disinherited. Preterition is a civil law concept under the Old Spanish Civil Code (pretericion). What is an advance on the inheritance? o A donation inter vivos given to a compulsory heir is an advance on the legitime of the compulsory heir. o The only benefit or advantage which can be derived from an advance is the increase in the value of the property which will be for his own account. The value of the donation is what will be considered an advance on his inheritance and the value taken is the value at the time of the making of the donation. o Ex. Mr Palanca received a donation of P1M from his father before the latter died. In his fathers will, he gave the entire estate only to Mr. Palancas three other brothers. Has Mr. Palanca the right to complain? Yes. He only received P1M and the entire balance was given to his brothers. What is he entitled to receive? Is he entitled to receive the same amount as each of his three other brothers? No, because this is not a case of preterition. He was not preterited because he received an advance. He cannot say that he was forgotten. He cannot say that he was totally excluded from the inheritance. This usually happens to Filipino families. o Ex. When a famous political personality in the Philippines died, he left a large estate. One of his sons received already his part from his fathers estate, but what he received was still not enough to sustain his business. So, he approached his mother, told her about his business situation and asked if he could ask for an advance on what will be his share of her estate when she passes away, adding further that when that happens, he will no longer ask for a further share since he will be receiving his share in advance anyway. Is this allowed? No, because there is a contract concerning future inheritance, and assuming that the contract is void, and the money asked for by the son is given, the son may still ask for whatever is left of the inheritance really due him when his mother passes away.
Art. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. (1271a) What the son will receive will be a donation inter vivos, which is only an advance on his legitime. So when the mother dies, the son can still claim the difference from what
he is entitled to receive as legitime minus the advance he was earlier given. Who may be preterited? o An illegitimate child (Aznar v. Dunca) An illegitimate child when properly recognized is a compulsory heir in the direct line, and when he is totally excluded from the inheritance, the illegitimate child is preterited. o An adopted child (Acain v. CA) An adopted child enjoys all the rights of a legitimate child and one of the rights of a legitimate child is not to be preterited in the inheritance of the adopting parent. o The surviving spouse No (Balanay v. Martinez) The spouse, although a compulsory heir, is not in the direct line. Suppose the testator left to his compulsory her P1. Was the heir preterited? No, his name was in the will, but the heir can complain because he is entitled to his legitime, moreso because there was no disinheritance. He is entitled to a completion of his legitime. Suppose the testator left one half of his estate to his children and one fourth of his estate to his wife. Nothing was mentioned about his fourth son, Mr. Palanca. o I institute my three children, A, B, and C to one half of his estate and my wife to one fourth of my estate. Nothing was mentioned about Mr. Palanca. When the father dies, will Mr. Palanca inherit? Yes, because he is a compulsory heir, a legitimate son. He was not disinherited at all. Can he claim preterition? No, because he will receive something from the one fourth portion not disposed of in the will by intestacy. Since one fourth was left for all the other heirs not mentioned in the will and one of them is Mr. Palanca, then he was not preterited. Something was given to him in intestacy in the form of that one fourth undisposed portion of the will. Mr. Palanca can only claim his legitime and his part in the intestate portion. Sir to Balane: A donation inter vivos is considered an advance on the inheritance because it is considered an advance on the legitime. May the testator dispose of the legitime by will? No, no matter what provisions are in the will, compulsory heirs are entitled to receive their legitime. So, why the need for preterition? o Sir suggested that this Article be deleted, repealed. o Vitug: Because A854 is really just limited to inadvertence. If we apply the formula of Manresa in distributing the estate: o Then preterition will be a useless prov bec everytime a testator dies, the provs contained in his will shall apply only to the free portion So theyre will be no rule for the application of preterition, bec the compulsory heirs will always rcve his legitime But since we have to make all provs of the Code effective, by marrying them together, then the other computation/the other manner manner of distributing the estate must be the correct manner of distri o cause in the 2nd manner of distri, those institutions will apply to the entire estate and therefore, a compulsory heir omitted will rcv nothing fr
the testator
NOTE: For there to be preterition, there has to be a will o If theres no will, theres no rm for applying the prov on preterition
Even if theres a will, if the will doesnt contain any institution, there will never be preterition
Concrete ex: suppose the T executed a will and in his will, he disposed of by way of legacies and devises all his known props = assume he only has 2 props o House and lot worth P10M and bank deposit of P10M
Had 3 children but will was worded as ffs: To my oldest son, Im giving my bank deposit of P10M To my youngest, my house and lot Nothing mentioned of middle child When T dies, was middle child preterited? NO cause will doesnt contain any insti
effect of preterition simply to annul institution, not entire will; why legacies and devises are respected insofar as theyre not inofficious here: legacy and devise given to oldest and youngest wont be annulled cause theyre not institutions but since nothing will be left of the middle child, the effects simply an impairment of the legitime of the middle child and therefore entitled only to the delivery of his legitimecome fr the 2 heirs wholl rcv the entire estate
1 ex. Nuguid v. Nuguid: a spinster died leaving behind a will o she was survived was her mother and only sibling, also as spinster o testatrix left a will w/ only 1 prov: instituted her only sister and sibling to the entire estate o when she died, the mother complained o mom said: I was preterited; I wasnt given anything in the will but Im a comp heir in the dir line o in the will, theres also a legacy in favor of the maid for P50k o was the mother preterited? IT DEPENDS if the mother didnt rcv anything by way of donation inter vivos during the lifetime of the deceased daughter, then she was preterited if she rcved something , she was not preterited
assuming she didnt rcv any donation inter vivos fr the daughter, the mother was preterited whats the effect of her preterition? The institution of the younger daughter will be annulled bec its an institution but legacy in favor of the maid will be respected if not inofficious when is it inofficious?
If it exceeds the free portion if it doesnt = itll be paid what will mother rcv?
Here: shell rcv the entire estate less the P50k she has to pay faithful servant
Surviving sis rcv NOTHING cause institution was annulled HARD: intention of daughter wasnt to give anything to mom (probably cause old) Intention to leave everything to younger sis cause of preterition is rcv nothing and everything go to mother A854: 1 of condis of preteritions survival by the comp heir in the dir line o CH must be alive at the time of the death of T In case of repn (when we reach repn: mng of that clause in A854 2 nd par - on preterition will be explained) Whats the effect of this preterition? o If the soln of Manresas to be ffed, whenever a T will execute a will, he has to give this free portion/part of it to his CHs, otherwise, preterition will always set in SIR: Far fr intention of 854
If applied under that, necessarily, the application will consider the accompanying provs Whyd Code Commission abolish all those reserves and reversions? o They were entailment of props o Whats wrong w/ that? Entailment = natatali yung prop to an indiv/fam Whats wrong w/ that? Its counterproductive to the economy If prop cant be disposed of, props not productive Whats RT? o Troncal means line = reservation in favor of a fam line Reason behind this reserva: o As married to be w/ only son C o As a very wealthy landowner o A891s feudal in origin = in feudal times, wealths tied up to real estate o o o o
Art. 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. (1080a) Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a)
The bigger the holding (manor/castle) = youre rich w/ serfs A rich has 1 kid In his employ, has driver D w/ wife labandera A w/ pretty daughter liked ea other and got married and had 1 kid = G A donated to C the prop purpose: so F lost fr inheritance (under OCC) If go to son = can usufruct it A gave hacienda to J Son died = A happy gave it to J so nothing will go to F If G dies young w/o any sp w/o any I = all prop will go to F Not A and B = nearer in deg (not go to grandparents) Props already in fam of F NOT FAIR simply cause G died w/o kids, prop went to other fam and now their status is diff
Give to F but when she dies, will go to D and F = go to siblings and 2nd husband Wont go to A and B = not by blood: not leg heirs
XV.
RESERVA TRONCAL
Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (871) In the orig draft submitted by the Code Commission to Congress, RT was 1 of those reservas and reversions abolished fr the CC o Ex. reserva viudal, reserva adoptiva o All taken out in draft of NCC submitted to Congress o HOWEVER, during the delib on the flr, Cong fr Leyte/Samar introduced as an amendment, A891, reintroducing RT in our leg sys o But introduced only 891; accompanying provs werent reintroduced o Despite the non-reenactment of the accompanying provs, we shall apply A891 as it were applied in the OCC
Cong fr Visayas: unfair to fam of husband fr whom prop came Reintroduced RT In the hands of F, will enjoy prop but when she dies, prop will go back to fam of husband where prop came fr = essence of RT
Diagram: there are 4 parties to the reserva: o 1. Ascendant fr whom the prop originally came called source of the prop some writers: mediate source (no mediate and immediate so just source) o 2. Recipient of the prop whos a descendant = prepositus o 3. when props inherited by another ascendant = reservista o 4. when vista dies, itll go to rels to fam of the source =
reservatarios examine root of the prop fr the source to the reservatarios suppose o o o o G is an illegit child, not married C and F (C just got F pregnant) status of G = illegit even if G illegit, lolo still gave donation of prop to him when G died, prop will be inherited by the mother = cause illegit mother died in the hands of F, illegit mother, is prop reserved? NO, reserva arises only among legit rels When reach A992, why Origin of CC feudal 992 provides for an iron curtain dividing the legit fam fr the illegit nature: enemies cant be mixed: oil and water
ex. Palanca obtained an insurance policy on his life for P10M w/ double indemnity in case of accident o designated fave grandchild as his beneficiary
o
o o o
Palanca died in an accident and therefore, insurance co pay P20M to his fave grandchild = deposited in his acct (10yo) 6mos after death of Palanca, fave grandchild died mysteriously inherited by the mother who was the daughter-in-law of Palanca = bank deposit of P20M in the hands of the daughter in law, is the P20M deposit reserved? NO, it wasnt prop of Palanca; P20M was prop of the ins co paid to the beneficiary in accordance w/ the aleatory contract of ins = P20M not his money
enmity/bad blood bet them
so theyre not related at all
theres a divide btwn the legit fam and illegit fam since great divide/iron curtain btwn them, how can there be a reserva for the benefit of the rels of the source? o Cant have rels that are illegit
Only thing reserved: the premiums (very little) The source may be a bro/a sis o Theres prob: A married B w/ 3 kids: C, D and E o C (bachelor) donated prop to bro D o When D died childless, wholl inherit?
C, source of prop, wont inherit cause not a compulsory heir of D compulsory heirs are A and B E wont inherit either Ds C have a right to complain? Since the prop came from him? NO Doesnt C have reason to complain came fr him: lost fr him cause didnt put prov for reversion on prop Donations should have prov on reversion Suppose A died then B died; donated props of C, B will inherit o In the hands of B, is prop reserved? NO cause in his hands, the prop hasnt left the fam; its still w/in = theyre all rels when the reason behind the law ceases, the appli of the law ceases Tolentino: reserved cause only says there bro/sis JBL Reyes and Puno: reserva will only arise if the bro/sis is a blood legit bro/sis Ex. A married to B; kid = C o A died so Bs a widow and married D = kid: E o D died o C loves bro so donated prop o When he died = no I 2 survived whos gonna inherit? Not C but D In the hands of D, is the prop reserved? YES o cause its left the fam of the source Ds the stepmother of C = nothing If D died, he wont be included in inheritance Believe opin of JBL Reyes and Puno: reserva only arise if bro/sis source of the
Nieva v. Alcala: SC held that reserva will only arise among legit rels Source of the props either a legit ascendant or a legit sibling/bro/sis o To illustrate: ex. Francis grew old alone w/ much wealth Donated a big tract of land to his fave nephew by his older bro Whyd he give donation? cause his bro (the dad) already died)gave it to him instead When nephew died, prop went to sis-in-law as CH of nephew (3yo) In hands of sis-in-law of Palanca, is the prop reserved? How can it be reserved? Whos supposed to be the source of the prop Palanca o Is he an ascendant/bro/sis of the nephew? NO, collateral/uncle How abt if the descendants an adopted child? o Ex. Palanca adopted a child and donated to him a vast tract of land o A yr after the donation, Palanca died o The child ffed a yr after who will inherit? Mother by nature/natl parents o In the hands of the natl parents of the adopted child, is the prop reserved? Not under reserva troncal, maybe under reserva adoptive cause in a RT, the parties must be legit rels and there are no rels by adoption how will the prepositus acquire the prop for there to be RT? o must acquire prop gratuitously fr the source gratuitous = donation/inheritance (only things free)
prop is a blood, legit bro/sis o Balane was a skeptic:
If by will = not by opn of law but by the opn of the will
For him - There should be reserva in the hands of D cause might marry again & if he marries again, then F will be part of the inheritance = WRONG! Bec WON reserva will arise will depend on the circs obtaining at the time of the reserva Ex. if D died: already had a 2nd husb = F F will be included in inheritance cause married again If theres no reserva when D dies = C, E and F will inherit Whats wrong w/ that? o Mrs. enjoyed new husb and prop wasnt lost to the fam anyway cause C and E will inherit anyway SIR: Agree w/ JBL Reyes and Puno but Balane agrees w/ Tolentino
Acquisition should be by opn of law = intestate/compulsory succ Dont know why discussing = havent encountered RT o In the SC decisions decided after he graduated, only 1 potential reserva and ponente didnt realize there was a reserva Vizconde massacre: Mrs. And 2 kids (Carmela and Jennifer)
Tolentino: Even though it didnt leave the fam, prop should be reserved (might have child w/ 2nd husb)still related o Prob: if legitime, will it also be reserved (LATER) In the hands of the prepositus/bro/sis/descendant who rcved the prop gratuitously fr the source, is the prop reserved? NOT YET o If the prepositus sells the prop before he dies, theres no reserva why? Cant the reserva follow the proceeds of the prop he rcved gratuitously? NO Reserva attaches only to the very prop rcved gratuitously by the prepositus fr the source
Fr the medico-leg findings, it was concluded Mrs. died ahead of the 2 daughters When died, 2 daughters inherited fr her Vizconde had props = conj share w/ conj partnership w/ husb and donations of prop fr her father Inherited by Mr and 2 daughters who died (divided) Mr inherited everything 2 daughters inherited In his hands, props he inherited fr the 2 daughters reserved Fighting over prop but didnt realize theres reserva = compromise ag o Gave up prop supposedly reserved = waiver: contract on future inheritance (LATER) o Didnt mention RT
If the prepositus alienates/barters prop rcved gratuitously = end of the potential reserva
Reserve cant be on the proceeds or on the substitute prop when he bartered/swapped it w/ another o Bec reverva attaches to the very prop rcved gratuitously by the prepositus If prop was no longer in his possession, ownership/estate when prepositus dies, no reserva will every arise For this reason, the prepositus the arbiter of the reserva WON itll arise is dependent on the discretion and acts of the prepositus If sold, destroyed, swapped = reserva lost Prop will be reserved in the hands of the reservista Whos he? o Reversita is another ascendant (891) o For there to be reserva, this other ascendant must acquire the prop by opn of law Not donation by the prep to the reservista = by opn of contract, not law Only 1 by opn of law = intestate/comp succ
no reserva cause prop lost
o Decision penned by Justice Vivi Mendoza A married to B o Have a son C, married to D Have a child E o A donated prop to E and after, he died E died w/o any I so the prop was inherited by C In the hands of C, is the prop reserved? 2 opins (Tolentino) o 1) Tolentino - props reserved supposed Cs dead and prop was inherited by A prop reserved? o No, went back to him Here: didnt go back to A, went to C (only comp heir that survived E) Tolentino: Not source of prop = in his hands: reserved o 2) SIR: Foolish in the hands of C, prop hasnt left fam Word another descendant in A891 refers to an ascendant who comes fr another fam line otherwise theres no reason for constituting reserva of the prop cause it hasnt left the fam Only 1 art of the CC but every word theres significant Reservista must acquire prop by opn of law o Therefore, if E, prepositus, executed a will instituting his mother to his entire estate but his estate comprises only w/ 1 prop = that prop he rcved gratuitously fr A, will the entire prop be reserved? Go there when reach reserva minima and maxima In the hands of the reservista, the props reserved o But what can the reservista do w/ that prop?
o Reserve for the benefit of the reservatarios Suppose E died w/o a will, the prepositus died w/o a will, therefore, the mother rcved the entire prop by opn of law o Will the entire prop be reserved? o Intestate shell get prop by intestacy o Everything will be rcved by the reservista by opn of law o But part of that prop, the mother/reservista will rcv as her legitime o Will the legitime be reserved as well? In the hands of the reservista, may the reservista sell the prop subj of the reserva? o Yes, she sells it but she can only sell what she has. Nemo dat con dom abet. U cannot give something u do not own. o Since her ownership of the prop is subj to a resolutory condiwhen she dies and there is a reservatario qualified to inherit Reservista dies and qualified reservatario whos willing to inherit, she loses ownership over the prop and the prop goes to the qualified reservatario HOWEVER, if the reservista dies at the time when theres no reservatario qualified to inherit, she becomes absolute owner of the prop Her ownership therefore, is subj to a resolutory condi, therefore, the buyer of the reservista will get it subj to the resolutory condi
Before, SC justices didnt know resolutory condi so earlier cases are wrong Ex. 1 case: reservista disposed prop in her will o Before died, made a will o And that prop, she gave by will to some1
o
o
if vista died and there are reservatarios, vista loses the prop = itll be inherited by the reservatarios
who are these revervatarios? The rels for whose benefit the reserva was constituted by law Relatives of whom?
Relatives w/in the 3rd deg of consanguinity? Fr whom do we count the 3 degs? o The reservatarios are prepositus w/in the consanguinity
rels of 3rd deg
the of
Diagram o C (immediate source) donated prop to P (prepositus) o G died after he died, prop was inherited by N (by opn of law = no will) o Donation = gratuitous title o Ano ni P si C? Grandfather, ascendant If P dies, will F inherit? No farther Also not collaterals In the hands of N, props preserved N dies = all the rels who arent boxed survived Who are the reservatarios? o Compute deg fr P = 0 deg o Only person excluded U?
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o o
Ct: disposition in the wills void cause the props not hers; since not hers, cant give it away, either gratuitously/onerously WRONG Latter decisions correct Edroso v. Ablan Nieves v. Esparcia Ex. reservista gave in her will the prop that prov of the wills subj to the resolutory condi o If died, no qualified reservatarios that prov of the will shall be effective and the prop will be delivered to the heir she designated in the will But when the reservista died and theres a qualified reservatario, then that prov of the will shant take effect prop lost fr her Until when must the reservista hold the prop? o she holds it until she dies
Are all the rels w/in the 3rd deg fr P reservatarios? NO cause if we give it to G and N, then it wouldnt have come back to p of source (P) Purpose of reserva: return prop to fam of source J and N not kapamilya of C = cant be reservatario In detin who the reservatarios are, apply the double consanguinity test
o o
In law: rels w/in the 3rd deg of consanguinity who come fr the same line = fam o For the reservatario to come fr the same line where the prop came fr, reservatario must bee related by blood to the prepositus AND source o Double consanguinity test Rels of P by blood but not rels by blood of the source = scratch (wont inherit) Rels by blood of P but are they rels by blood of C? NO F not rel by blood, just wife (nothing) Potential reservatarios all related by blood to the prepositus and to the source R not included: sis-in-law U there for a purpose w/c of them will inherit? All in 3rd deg? NO
the reckoning pt of WON the prop will be transmitted to a resevatario is the death of the reservista
see if there are reservatarios at the time of the death of the vista
o
o
among those potential reservatarios, apply the Rs on intestacy what are the Rs on intestacy? Rules on intestate succ the dir line excludes the collateral 2nd: those in the dir line in the descending excludes the ascending among those who are in the ascending, the nearer excludes the more remote descending collaterals, the nearer excludes the more remote equally nearer, the uncles and aunts are excluded by nephews and nieces collateral descending collateral excludes the ascending collateral
o
1 R: o
st
Florentino v Florentino: representation is allowed amng reservatarios, provided the representative is w/in the 3rd degree
Jurado: 1st R on intestacy is the nearer excludes the more remote
o
o
o
o o o o o
Whoevers nearer, thats the 1st well give inheritance to If nearers collateral = WRONG
Ex. ordinary inheritance o P died intestate o No reserva o Survived by all those rels o Whos his intestate heir o Bro O or GF A? O = 2nd Whos the comp heir of P? not O but A
inherit: A and B cause dir line even though 3rd deg = exclude O and Q cause collateral (2nd) o prob not yet commented on by any civ writer
A = 3rd deg
1 R: dir excludes collateral

st
torn bet giving prop to great GF and bro = 2nd deg Tolentino: gen treatment o All of them are rels, therefore, we apply the R that the nearer excludes the more remotethat R applies to all heirs, whether in the dir line/in the collateral line o Saying apply 1st that R the nearer excludes the more remote
If apply opin given by Tolention, O and Q would inherit cause only 1s in 2nd deg o What hes saying that all the reservatarios are rels and we already have to disregard the other Rs cause of the dir and collateral cause all of them are rels = simply apply the R that the nearer excludes the more remote o Papa v. Camacho SC ffed a diff line Assuming that A and B are dead, wholl inherit? o O and Q = 2nd deg Ex. O and Q dead, wholl inherit? o 3rd deg left = V and S Apply De Papa v. Camacho = 1709: descending collateral excludes ascending collateralS will inherit to the exclusion of V Ex. left = O and S o Who are the reservatarios?
Even though As 3rd deg away fr P but As in the dir line Rs of intestacy Padura v. Baldomino: unrpted decision o Penned by JBL reyes
o o o o
How bout if rels are blood rels but w/in the 3rd deg? Qualify as reservatarios but the blood rels will get the share of full blood rels = R on intestacy Before vista does, has reservatarios any int they can dispose of? YES, have an expectancy = emptio rei esperati Sold under the law on sales HOWEVER, reservatarios may sell the interest they have = just an expectancy that theyll inherit if theyre qualified to inherit as reservatarios when reservista dies
May the reservatarios alienate the prop w/c is still in the hand sof the vista?
Ex. Palancas a reservatario but died before vista Suppose before he died, sold interest to Kabatay but when vista died, Palanca was already dead, did Kabatay get anything? o NO cause suspensive condi didnt occur = that Palancas alive and qualified to inherit at the time the vista dies o Interest that the reservatario has over the reserved prop is an ownership subj to a suspensive condi o B of the interest gets it subj to that condi and if the condi doesnt matlize, the buyer gets nothing o Prob: how do we know the props subj to reserva How do we know its reserved? Suppose props covered by TCT? o How do we know reserved? o To alert ppl wholl deal w/ that prop on its reserved char, tarios must annotate at the back of the title, the reserved char of the prop o So buyer can see theres a reserva troncal = wont be an inn
o
o
O and SS cause he can represent father Q for him to be in the same deg as O Florentino v. Florentino What if S died & only 1s left are O & U? Can U become a reservatario in representation of S? NO
purchaser for value Case decided by Flerida Romero: reserved char not annotated on back of title but Fleri charged buyer w/ notice of reserved char cause if lk at docums on file, see props reserved = WRONG
So its not the reservista who will impute wc prop hell rcve by will & by operation by law
1. Under the Torrens titling sys, not reqd to go beyond title = not reqd to pore over docums on file if nothings annotated there when buy prop, dont get certified true copies of all the docus on file = just TCT 2. History of how owner got title over registered prop = wont see even if read all the docushow expect ordinary person lking at docus to arrive at that conclusion? Charge buyer w/ reserved char of prop even if not annotated at the back of the title = WRONG
Can we allow the reservista to det wc he will rcve by will & by legitime? NO Illustration: o Assume X donated prop to P, thru gratuitous title (P was still a baby) o X had a bro Y, who also donated prop to P thru gratuitous title o The 2 lands were of the same size, adjacent lands X gave propA, Y gave propB o P died when he was 19 and left 3 props: prop A & B X was also dead by that time o P left a will, instituting his mom Z to the entire estate o In the hands of Z, is a prop reserved? Prop B can never be reserved bec ddnt come from an ascendant If ever, only lot A can be reserved wc came from his dad X o Z says: in order not to reserve the prop, why dont I get of the prop by will, and by legitime So the estate she gets from P, she gets by will wc is the free portion & by legitime And only the part rcvd by legitime will be reserved bec thats the only part rcvd by operation of law So Z says: make prop A as the part rcvd by will & prop B by legitime If Z is allowed to choose wc of the props shell acquire by legitime or will, then no reserva will ever arise from the prop given by X If Z is allowed to choose, then she becomes the arbiter of the reserva & this cant be allowed We cant allow the reservista, the other ascendant, which prop he/she will rcve by will & wc by legitime wc is why the law determines it for them 2 kinds of reserva: o Reserva Maxima o Reserva Minima
The prop subj of reserva shld be imputed 1st to that part, the reservista will rcve by operation of law In this case: o Prop A (above) is reservable so we impute it as the prop rcvd by operation of law o So theres a maximum reservation So much of the reservable prop that can be accommodated by that part rcvd by operation of law, shld be reserved So long as we can impute such prop as being reserved, the law will do so Thus, the entire prop therefore, becomes reserved Isnt this too harsh? What abt the legitime of the person shldnt this be reserved bec its their legitime, law says you cant impose a charge on that legitime, and yet the entire legitime is reserved? o Bec the burden isnt imposed by the testator, its imposed by law o Its the law wc burdened the legitime GR: the legitime is acquired by the compulsory heir free from any burden Exception: reserva troncal This is why A891 was removed wc is bec it gave rise to anomalies o B4 no anomalies bec the Sps werent compulsory heirs, they ddnt have any inheritance o At most the widow is only entitled to a usufruct And under the old law, if a donation was given to a mom & she became a window & she remarried, the prop she got from her kid or 1st husband, will go back to the family = reserve biudal (I dont knw) Since A891 was returned, anomalies are now back o Thus, legitimes are now reserved in full wc is harsh
RESERVA MINIMA Every prop in the estate is considered to have been conveyed to the reservista, half by will, half by legitime Prop A: will, legitime & prop B: will, legitime Applying this principle, not the entire prop is reserved o Only half of the prop is reserved The example given by sir was easy, bec the entire estate was left behind But diff if the reservista is instituted, but not to the entire estate, but only to an aliquot part Ex) wife instituted just to of the estate o Just use ration & proportion o So if given to her: every prop shell rcvw is partly by will & partly by legitime o If apply Manresa solution: will apply only to the free portion (FP) Shell get by legitime, and the other shell rcve by way of intestacy & institution (discussed in Tolentino) So the ratio shell acquire is: & 2:1 So 1/3 is reserved & 2/3 isnt reserved
RESERVA MAXIMA
The prop subj to reservation, shld be imputed 1st to the legitime/that part that the reservista will inherit by operation of law
If apply Sanchez Roman: institution includes the legitime So by legitime & by will
XVI. RESERVA ADOPTIVA Art. 39. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law. (n) Art 39, PD603: Effects of Adoption. - The adoption shall: 1. Give to the adopted person the same rights and duties as if he were a legitimate child of the adopter: Provided, That an adopted child cannot acquire Philippine citizenship by virtue of such adoption; lawphi1.net 2. Dissolve the authority vested in the natural parent or parents, except where the adopter is the spouse of the surviving natural parent; 3. Entitle the adopted person to use the adopter's surname; and 4. Make the adopted person a legal heir of the adopter: Provided, That if the adopter is survived by legitimate parents or ascendants and by an adopted person, the latter shall not have more successional rights than an acknowledged natural child: Provided, further, That any property received gratuitously by the adopted from the adopter shall revert to the adopter should the former predecease the latter without legitimate issue unless the adopted has, during his lifetime, alienated such property: Provided, finally, That in the last case, should the adopted leave no property other than that received from the adopter, and he is survived by illegitimate issue or a spouse, such illegitimate issue collectively or the spouse shall receive one-fourth of such property; if the adopted is survived by illegitimate issue and a spouse, then the former collectively shall receive onefourth and the latter also one-fourth, the rest in any case reverting to the adopter, observing in the case of the illegitimate issue the proportion provided for in Article 895 of the Civil Code. The adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him, except that if the latter are both dead, the adopting parent or parents take the place of the natural parents in the line of succession, whether testate or interstate. XVII. DISINHERITANCE Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (848a) Art. 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849) Art. 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (850)
Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a) Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a) Art. 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate: (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; (2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;
(6) The loss of parental authority for causes specified in this Code; (7) The refusal to support the children or descendants without justifiable cause; (8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. (756, 854, 674a) Art. 921. The following shall be sufficient causes for disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a) Art. 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856) Art. 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. (857) *discussed above, under preterition XVIII. LEGACIES & DEVISES Principles of institutions apply Certain modifications only which are self-explanatory in the provisions
alone shall be bound. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit. (859) Art. 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent. (n) Art. 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind. (860) Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety. (864a) Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a) Art. 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. (861a) Art. 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. (866a) Art. 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him. If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. (878a) Art. 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will.
Art. 924. All things and rights which are within the commerce of man be bequeathed or devised. (865a) Art. 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. (858a) Art. 926. When the testator charges one of the heirs with a legacy or devise, he
Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee. (867a) Art. 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one. In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. (870a) Art. 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death. The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871) Art. 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones. (872) Art. 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares. In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise. (837a) Art. 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n) Art. 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged. If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs. Once made, the choice is irrevocable. In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)
Art. 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate. A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a) Art. 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a) Art. 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a) Art. 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently. A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided. If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate. If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a) Art. 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a) Art. 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. (868a) Art. 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs. (881a) Art. 948. If the legacy or device is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death.
From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a) Art. 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. (884a) Art. 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata. (887a) Art. 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in which it may be upon the death of the testator. (883a) Art. 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value. Legacies of money must be paid in cash, even though the heir or the estate may not have any. The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime. (886a) Art. 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. (885a) Art. 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)
Art. 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both. Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both. (890a) Art. 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. (888a) Art. 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had; (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of Article 928. (869a) Art. 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n) Art. 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree. (751) Art. 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply. (787a) INTESTATE SUCCESSION I. GENERAL PROVISIONS A. GENERAL PROVISIONS
1. When does it take place Art. 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a) 2. Who are the intestate heirs Art. 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a) Art. 189 FC Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives. (39(1)a, (3)a, PD 603) Art. 190 FC Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters.
(4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, onethird to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. (39(4)a, PD 603)
3. Order of & share in intestate succession Art. 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines. (912a) B. RELATIONSHIPS Art. 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915) Art. 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a) Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. (917) Art. 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is
made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a) Art. 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. (920a) Art. 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. (922) Art. 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. (923) C. REPRESENTATION Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (942a) Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (n) Art. 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (925) Art. 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. (n) Art. 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (926a) Art. 976. A person may represent him whose inheritance he has renounced. (928a) Art. 977. Heirs who repudiate their share may not be represented. (929a) Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (933)
By representation an heir, who predeceased the decedent, may still inherit by his descendants who will represent the deceased heir o His descendant will take the place of the deceased heir He will also o Called the representative Ex) A had 3 kids: B,C,D o B died but survived by his sons E & F E died but had 2 sons G & H F is alive but has a kid I o C died, his son J died too but had 2 sons K & L o B,E,C,J predeceased A o So A was survived by F,G,H,I,K,L,D
Note that D is in the 1st degree
And the rest are 3rd degree Normally, D will exclude all others who survived, bec D is nearer in degree o But by right of representation, F can represent B so F will also get the degree of D So also, G & H will represent E so that E & F are considered existing & qualified to inherit, as taking the place of B to inherit from K o K & L will also take the place of J o If D has a kid, his kid is excluded o Therefore: the division of the estate is 1/3 ea to B,C,D Bec in the eyes of the law, B & C are existing bec theyre represented by their descendants Under B: E & F get 1/6 ea SoG & H get 1/12 ea, F gets his 1/6 Under C: J gets the 1/6 So K & L get 1/12 ea Under A982 rem, that descendants always inherit by right of representation ad infinitum o Bec the limit until 5th civ degree of consanguinity, apply only to collaterals o But when it comes to a direct line, then its ad infinitum (so until great 10X grandchild, etc) Theyre compulsory heirs by right of representation When one inherits by right of representation, his inheritance is per stirpes o Per stirpes: They will divide among themselves what the person theyre representing was suppose to inherit o If was inheriting per capita: then they inherit in their own right So wont be getting the share of someone else Same characs in the next few examples: A had 3 kids B,C,D; B had kids E (who had G & H) & F (who had I); C had J (who had K & L); D had M o Ex) B,C,D were alive when A died o
Next living is F whos in the 2nd degree
But B & C repudiated the inheritance So who will inherit? Can B & Cs kids inherit by representation? NO Theres no representation in repudiation Therefore, D will inherit everything in his own right o Ex) what if B,C,D all repudiated, who will inherit? The next descendants in the direct line who are alive are F & M Will they inherit per stirpes? No, they will inherit per captia The Q is what about E? may G & H represent E? Yes, bec E is an heir in his own right so G & H may represent him Same w K & L for J So whats the division? F & M get bec inherit in their own right, as the next nearest descendants o All of them are on equal footing, pari pasu, as grandchildren G,H,K,L get 1/8 by representation o Ex) what if B,C,D, F repudiated, so who inherits? E, J & M will inherit I cant take the place of F bec no representation in repudiation So whats the division? Since F repudiated, in the eyes of the law he never became an heir Therefore, E, J & M will get 1.3 ea o So E being represented by G & H theyll get 1/6 ea o J being represented by K & L theyll get 1/6 ea What if G died but had 3 kids: N, O, P o Theyll inherit in representation of G o Theyll inherit per stirpes what G was suppose to have In representation, the representative is suppose to inherit what the represented wldve rcvd, had the represented been alive & qualified to inherit o Theyll step into the shoes of the person theyre representing Same characs in the next few examples: A had 3 kids B,C,D; B had kids E (who had G & H) & F (who had I); C had J (who had K & L); D had M o Ex) suppose B predeceased A, E predeceased B, E survived by G & H But when E died, H repudiated his inheritance from E *Note: Theres a difference btwn repudiation from waiver (non-acceptance) But when A died, may H represent E in representation of B to inherit from A? H repudiated the inheritance from E & not from A Is this possible? Sir: yes, a descendant may represent an ascendant whose inheritance he repudiated Art. 976. A person may represent him whose inheritance he has renounced.
Bec hes not inheriting from E, but rather, inheriting from A Ex) C, instead of dying ahead of A, when A died, C repudiated the inheritance So everyone underneath C is cut-off & cant represent him Ex) suppose C predeceased A, but it was J who repudiated Since C predeceased, J shld represent, but he repudiated Can K & L say, our dad J repudiated, but cant we representing C directly!?!? possible? Sir: NO! the moment the line is cut-off by repudiation, everyone beneath such person can no longer represent But take note that they cant inherit from the decedent whose inheritance was repudiated by the person theyre seeking to represent Thus, in the previous example on H who repudiated Es inheritance o Everyone below H are alrdy cut-off & cant represent insofar as the inheritance from E is concerned o But when it comes to the inheritance from A, they arent cut-off bec no1 repudiated the inheritance from A o
Re: Adoption May an adopted child represent the adopting parent in the inheritance of the ascendant of the adopting parent? Ex) bones daughter is donna & donna adopted val o Donna predeceased bones, can val represent donna in the inheritance of bones? NO, Teotico v del Val The adopted child cant represent the adopting parent in the inheritance of the ascendant of the adopting parent o Bec adoption creates a purely personal rel btwn the adoptive parent & adopted child o The adopted child is a stranger to the ascendant of the adopting parent o The adopted child has relations only to the adopting parent In representation, the representative must be: o A leg heir of the person represented; AND o A leg heir of the person he seeks to inherit from Ex) A is the parent of B, B adopted C o C is the representative, B is the represented o For the representative to qualify as such, he must be a leg heir of the person hes representing C is a leg heir of B, as an adopted child 9compulsory heir) o But C shld also be a leg heir of A in order for him to inherit from him And C isnt bec adoption is purely personal btwn B & C o Bec the representative isnt inheriting from the person hes representing, hes inheriting from the decedent Therefore, he shld be a leg heir of B & A Ex) A adopted B but predeceased & survived by his legit son C o May C represent B in the inheritance of A?
2 views to this:
1st: while C is a leg heir of B, C isnt a leg heir of A bec adoption creates a purely personal rel only So as far as C is concerned, A is a stranger 2nd: (sirs view) B, as an adopted child of A, has all the rights of a legit child against A And 1 of the rights of a legit child is to be represented in the inheritance of the grandparents Therefore, its no longer a purely personal rel btwn A & B, bec as far as A is concerned, B is his legit child And B as a legit child, has all the rights of a legit child Thus, B has the right to be represented by C
an illegit child of B So As resp is only until BB cant pass Bs responsibilities to A Re: Collateral Line Art. 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (925) Art. 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927) Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948) Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949) Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950) Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915) Is there representation in the collateral line? o Yes, but only in favor of nephews & nieces o Representation in the collateral line is only until the nephews & the nieces Characs for the next examples: o A (who died long ago) has 4 kids: B, C, D, E B has kids: F (has L) & G (has M & N) C has H (has O) D has I (has P) & J (has Q & R) & K (has S) Ex) E died w no Sps or kids o Who will inherit from E?
Re: Illegitimate Children 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) Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) May illegit kids be represented? If the illegit child dies, isnt he a compulsory heir? If the illegit kid predeceases the illegit parent, may the illegit child be represented? o Under A902, insofar as the legitime of the illegit kid is concerned, this right is passed on to his children, whether legit or illegit What abt in intestacy? o Is there representation in the intestate part? YES o A989, 992 An illegit child may be represented by all kinds of children What if the representative is an illegit child? o An illegit child is BARRED from representing and illegit parent in the inheritance of the legitimate ascendant of the parent under A992 Ex) A has to kids: legit B & illegit C (who has a kid F); B has 2 kids: legit D & illegit E o May E represent B in the inheritance of A? No, barred by A992 o But C, the illegit child of A is As compulsory heir May F represent C? Yes, under A902 All the inheritance of the illegit child can be passed on to all his descendants whether legit or illegit o But why is this allowed? Its already double illegitimate! o Bec the principle is kanya kanyang kalat, kanya kanyang kargo! C is an illegit child bec of A thats As responsibility And as far as A is concerned, even F is an illegit child, every child of C is illegit as far as A is concerned Whereas in the sit of B, its not As fault/responsibility that E is
Under intestacy, 1st is the direct line, if theres none, then the collateral rels Es collateral rels are B, C & D If B,C,D are all alive together w their kids & grandkids, who will inherit from E? Only B,C,D will inherit from E bec the nearer excludes the more remote Theyll exclude their kids & grandkids
So they all get 1/3 of Es estate Ex) suppose D predeceases the testator, who inherits from E? o Itll be B,C, D o But D is represented by I,J,K who are nephews & nieces alrdy Ex) suppose K predeceased D? o May S represent K in representing D in the inheritance of E? NO o Bec representation in the collateral line in favor of nephews & nieces o If you arent a nephew or niece, you cant represent o In this case, S is no longer a nephew or niece but rather a grandnephew/niece o Therefore, 1/3 goes to B, 1/3 to C & 1/3 is divided btwn I & K Ex) suppose B also died, who will inherit from E? o B as represented by F & G, C in his own right & D as represented by I & J (coz K is alrdy dead) Ex) suppose B,C,D are all dead, who will inherit from E now? o F,G,H,I,J (K dead alrdy & cant be represented) will inherit in their own rights & not by representation o A975 nephews & nieces will inherit by right of representation only when they survive w their uncles or aunts o If no more uncles & aunts, no more representation o So since they inherit in their own right, its per capita o Thus, Es inheritance is divided into 5 parts ex) suppose C repudiated? What then? o Since C repudiated, hes considered not to be an heir Ds this mean H is no longer considered a nephew as well? So those who will inherit will be: F,G,I,J only? o C is not considered an heir, BUT H is still considered a nephew o Therefore, H shall also inherit in his own right o Thus, those who will inherit are: F,G,I,J and H in their own right Bec no longer surviving w an uncle or aunt A975: meaning of survived o Ds this survive mean living or inheriting? o If we mean survive as living: then C has survived bec hes living, he just repudiated Therefore, since theres a living uncle, then it shld be representation & theres no representation in repudiation So it shld only be B & D represented by F,G,I,J who will inherit This is if we interpret it as physical survivorship o But if we interpret it to mean survival as an heir qualified to inherit: then C is scratched out & he ddnt become an heir, thus the nephews & nieces inherit in their own right, bec C is considered to have not survived o Sir: survival means survival as an heir qualified to inherit In the collateral line: leg heirs are up to the 5th civil degree of consanguinity
o o
A. 1.
F,GH,I,J,K: 3rd degree L,M,N,O,P,Q,R,S: 4th degree
II. ORDER OF INTESTATE SUCCESSION DESCENDING DIRECT LINE
Estate of a legitimate decedent a) Illegitimate children Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895. (n) Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. (939a) Art. 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. (940a) Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a) Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. (942-841a) Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) Estate of an illegit decedent a) Legitimate children & descendants 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, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n) Art. 978. Succession pertains, in the first place, to the descending direct line. (930) Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. (931a)
2.
o o o
Since it was E who died go up 1st, then go down A: 1st degree B,C,D,E: 2nd degree
Art. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. (932) Art. 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation. (934a) Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (933) Art. 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by Article 895. (n) Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) b) Illegitimate children & descendants Art. 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. (941a) Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (943a) B. SURVIVING SPOUSE Art. 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001. (946a) Art. 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children. (834a) Art. 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. (836a) Art. 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. (n) Art. 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. (n)
Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth. (841a) Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a) Art. 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles. (n) C. ASCENDING DIRECT LINE
1. Legitimate parents & ascendants Art. 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. (935a) Art. 986. The father and mother, if living, shall inherit in equal shares. Should one only of them survive, he or she shall succeed to the entire estate of the child. (936) Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. (937) 2. Illegitimate parents Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike. (944) D. COLLATERAL LINE Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a) Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947) Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948)
Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949) Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950) Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915) Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. (954a) Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line. (955a) E. THE STATE Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. (956a) Art. 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. (958a) Art. 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a) Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. (n)
The CC dsnt define intestate succession o It just enumerates instances when intestate succ takes place Why is there no definition? In the working draft of the Code Commission, a definition of Intestate Succ was included: o Defined as: intestate succ happens when the decedent dies wo a valid will They cldnt agree on this definition bec its inaccurate o Bec even if a person dies w a valid will, its possible for intestacy to be the rules used in dividing the estate o Ex) testator left a will w nthn but a disinheritance of his oldest son So, he died w a valid will but how do we distribute the estate since it dsnt contain any distribution of the estate? The estate will be distributed in accordance w the rules on intestacy o Ex) suppose theres a preterition wherein the will is valid, but the institutions are annulled wc is why legacies & devises wc arent inofficious will be honored If the will was invalid, then even the legacies & devises wont be implemented But here, the will is still valid only the institutions will be annulled Thus, in this case, the estate will be distributed in accordance w the rules on intestacy o Thus, the definition was considered inaccurate o The definition was suppressed Definition was just copied from a Spanish commentator This is why, instead of defining it, they simply enumerated the instances when intestate succ occurs When does it occur? o A960 yet, these instances arent inclusive, there are other instances where leg or intestate succ occurs When a decedent dies wo a will, who do we distribute his estate? o In the absence of a will, the Code gives us the rules on how itll be disposed of o Where did the Code get the rules on who will rcve the estate? o Code Commission: the rules are presumed to be the will of the decedent So if the decedent dies, if we were to ask him how to divide his estate, this is what he wld say OCC: intestate succ was 1 of exclusion o It was an exclusionary rule: the direct line excludes the collateral o If theres an ascendant & descendant = the descendant is excluded o If there are ascendants, no descendants = the nearest excludes the more remote Theres no representation o If there are only descendants = the nearest excludes the more remote Save the case of representation o Wife/Sps: had no inheritance, only had a usufruct
Illegit children: had no inheritance Thus, under the old law the principle of intestate succ was one of TOTAL EXCLUSION o If there are no more ppl in the direct line, only then will the collaterals inherit NCC: Sps & illegit children were given inheritance o What do we do when the legit kids concur w the Sps? if the legit kids concur w the illegit kids? If the legit ascendants concur w the Sps? if the legit ascendants w the legit kids? o Is the rule exclusion or concurrence? o Padilla: Nowhere in the rules on intestate succ is concurrence provided for. In the absence of an express prov on concurrence, we have to apply the rule on exclusion Sir: he has no basis for this, the only reason we have exclusion is bec this was the leg framework under the old code o New leg framework: its 1 of concurrence unless the law provides for exclusion 2 exclusions only: Legit descendants excluding the legit ascendants All kinds of children excluding the illegit parents All other rules are concurrence o o
Other collateral rels w/in the 5th civil degree State o Inherits if no more collaterals w/in the 5th civ degree o Takes the prop thru escheat proceedings under the ROC
Rules on concurrence are the just the same as the rules on legitimes But in intestacy, we only have to det who gets the free portion Keep in mind wc heirs got the free portion o Bec only those heirs who got the free portion, are liable to pay the legacy or donation inter vivos or donation mortis cause If the compulsory heir predeceases, his descendants may represent him in total as his legitime, and whatever intestate portion left is for them to share, BUT he cannot be represented insofar as the legacy given to him in the will is concerned Rule: There is NO REPRESENTATION IN TESTAMENTARY SUCCESSION
Legal Heirs in Intestate Succession Legit ascendants Illegit parents Legit kids Illegit kids Surviving Sps Bros, Sis, Nephews, Nieces o Still collaterals o But this is a spcl class of collaterals why? 1) representation is only in favor of nephews & nieces 2) BSNN concur w the Surviving Sps Ex) bones died & left behind his wife & 10 sibs = died wo a will o His leg heirs are his wife & sibs = to his wife, to his sibs o If a bros predeceased him, survived by a nephew/niece, such nephew/niece will represent him Ex) what if all bones sibs died alrdy, only 1s left are the nephews & nieces & the wife? o Leg heirs are his wife & the nephews & nieces o will go to the wife & to the nephews & nieces who will inherit in their own right, per captia Ex) bones dies leaving his wife & the 30 kids of his nephews & nieces (who are alrdy dead) o Leg heir is only the wife bec the 30 kids are w/in the 4th degree but arent BSNN, theyre excluded by the Sps
ORDER OF INTESTATE SUCCESSION When the legitimate ascendants survive alone, the entire estate becomes theirs o Since their legitime is of the estate, they will receive the entire free portion by intestacy o If there are charges against the free portion, that will be deducted from the free portion that they will receive by intestacy Among the legitimate ascendants o Rules: The nearer excludes the more remote No representation in favor of the ascending line We divide equally the inheritance between the paternal and maternal line Subject to rule that nearer excludes more remote If legitimate ascendants concur with legitimate children, then legit ascendants are excluded from inheritance o If LA concur with surviving sp LA , sp Who receives FP? Legitime sp Legitime LA FP all go to sp o if there are charges against the FP, then only the sp will suffer a deduction to the extent of the FP sp receives by intestacy o when LA concur with IC legitimes LA IC free portion
intestacy LA IC who gets FP? o Only the IC gets the FP o Only IC suffers reduction for charges to extent of FP When LA concur with IC and sp Intestacy LA IC SP who gets FP? o Only to sp Legitimes LA IC 1/8 sp o remaining 1/8 FP goes to sp in intestacy when LC survive alone entire estate goes to them to be divided equally among them FP legitime all will suffer a reduction for charges against FP to extent of of FP when LC concur with sp sp will receive share of 1 legit child legitime LC sp chargeable against the FP when sp concurs with 1 LC intestacy
and sp) Padilla: o FP must go to legit child Jurado: o Divide FP in proportion to their share o : o 2:1 o 2/3 of FP to LC o 1/3 of FP to sp o most equitable but no law to back it up
when
1st solution: Tolentino o law says sp gets same share as legit child true no matter how many kids survive with sp o LC o sp 2nd solution: o unfair, before sp never got inheritance, why is it now the LC is limited to his legitme and entire FP goes to sp? o Give them first their legitime LC sp FP divide FP equally (1/2 of of the FP to LC
issue decided in Santillon vs. Miranda SC: use Tolentino, follow law o Law says when a sp survives w LC, then sp shall have same share as 1 LC o Applies even if theres just 1 LC o All FP goes to sp, sp suffers deduction for charges to extent of FP legitime LC sp FP LC concur with IC law: share of 1 IC shall be share of LC Rule: In intestacy we apply directly the intestate shares on the estate, and after having applied the shares to the estate, we check if the legitime was impaired, if the legitime of LC was impaired, then we redo the computation ex: X has IC - A, 3 LC - B C D Estate 490 Heir - intestacy o B 2 2/7 x 490 = 140
A 1 1/7 x 490 = 70 o Total: 7 parts Was legitime of LC impaired o Legitme of LC: 490/2 = 245 o Legitime of 1 LC: 245/3 = 81.67 140 > 81.67 so legitime wasnt impaired. Ok! X has 3 IC, 1 LC Estate 250 Heir
o o o
C 2 140 D 2 140
Ex:
D 2 2/5 x 250 = 100 o Total: 5 parts Legitime of 1 LC: 250/2 = 125 o 100<125 so redo computations! o give legitimes first LC: 250 - 125 = 125 IC: of 125 = 62.5 But if you give 62.5 to all the IC, its exceeds the value of the estate So the IC suffers a reduction 125/3 = 41.66 Rule: legitime of sp preferred over IC Ex: A&B had IC F, 3 LC C D E A died Estate 480 Heir o C 2 120
o o o o
A 1 1/5 x 250 = 50 B 1 50 C- 1 50
E 1 60 Total: 6 parts 360/6 = 60 legitime of LC: o 360/2=180 o 180>120 Cs legitime impaired! legtime of sp: o 180/2=90 180+90=270 360-270=90 heirs - legitimes o C 180 o B 90 o D 45 o E 45 o
o o o
B 2 120 D 1 60
o I.
ICs D and E suffer a reduction
PROVISIONS COMMON TO TESTATE & INTESTATE SUCCESSION RIGHT OF ACCRETION
F 1 60 Total: 8 parts 480/8 = 60 Legitime of 1 LC: o 480/2=240 o 240/3=120 legitime not impaired who received the FP? o Nobody got the FP because each only got their legitime o Take note: If a donation intervivos was given to a 3rd party, that would be inofficious automatically because the FP is zero, therefore any donation intervivos which the testator may have given during his lifetime would necessarily be inofficious A&B had LC C and 2 IC D, E Estate 360 Heirs intestate shares o C 2 120
o o o o
D 2 120 E 2 120 B 1 60
1. CONCEPT Art. 1015. Accretion 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 the 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. (n) Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. (928a) Art. 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (983a) Art. 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (n) Art. 1020. The heirs to whom the inheritance accrues shall succeed to all the
Ex:
rights and obligations which the heir who renounced or could not receive it would have had. (984) When 2 or more heirs were instituted to the same inheritance, when 1 of them fails to inherit, then the share of that heir will go to his co-heirs ex: o X made a will: I institute A, B, C to my entire estate o Estate - 360 o Ex 1: Assuming no compulsory heirs Estate 360 How do we distribute? No intestate portion because will disposes of whole estate A B C alive when X died A B C get 360/3=120 each Rule: Heirs instituted without designation of shares shall share equally o Ex 2: A predeceased, survived by LC D does As 120 go to D? No, D cannot represent A Rule: there is no representation in testamentary succession! So where does it go? Goes to B and C by accretion because they were instituted to the entire estate pro indiviso o Instituted to entire estate o Intention of testator to give entire estate to nobody but the 3 of them Principles: o When entire estate instituted, when one predeceases, share will go to co-heirs o They must be instituted to the same inheritance pro indiviso o Intention of testator must appear in the will that they are co-heirs Ex: o X makes a will: I institute A to 1/3, B to 1/3, C to 1/3 o A predecease testator but survived by D o To whom does 1/3 go? Not D no representation in testamentary succession Ex:
B and C by accretion? Yes! Instituted to entire estate except that specified their shares
I institute A and B to of my estate, and the remaining to X o If A predeceases whats As share? of of estate to whom does it go? D? No (you should know why!) To B only! o Because A and B were instituted to the same o If C predeceases To whom does it go? Not to Cs kids Not to B and A o Because not instituted to the same inheritance To the testators legal heirs Suppose heirs instituted to the same inheritance were instituted to the same inheritance were given different shares to that inheritance and one of them predeceases, how will they share that vacant share? o Equally? No o
o
o
Share in the same proportion that they were instituted Ex: I institute A B C to my entire estate however A will get double of what B and C will get heirs o A 1/2 o B 1/4 o C 1/4 B predeceased Accretion, who does the of B go to? A and C will share in the proportion of 2:1 o 1/2:1/4 (get the LCD) o 2/4:1/4 (take the numerators)
B and C by accretion? No! because not instituted to the same inheritance pro indiviso Not instituted to the same inheritance To the legal heirs of the testator X! There will always be a legal heir the state! If no relatives
Ex: o o o
I institute A B C to my entire estate such that A will get 1/2 , B , C A predeceases survived by D To whose share does A go? Not D no representation in testamentary succession
C x 1/3 What condition will trigger accretion? o Conditions in the law: 1. predeceased 2. disinheritance 3. incapacity 4. repudiation o Sir: incapacity says it all If you are not able to inherit for one reason or another
o o o o
2:1 2+1=3 2/3:1/3 A:C A x 2/3
you are incapacitated catch-all Suppose will was silent on cause that triggers accretion, when will accretion happen? On grounds provided for in the law Can testator limit accretion to only one ground? Yes, but the testator must provide for it in the will Ex: That accretion will occur only on predeceased, that it will not happen on any other cause When will is silent, all grounds apply, all causes deemed included
2. IN LEGAL SUCCESSION Art. 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. (981) 3. COMPULSORY SUCCESSION Art. 1021. Among the compulsory heirs the right of accretion 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. Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (985) Is there accretion in legitime? o No, under Art 1021 o Insofar as the legitime is concerned, no accretion because the other compulsory heirs will get them in their own right o 2nd par is impt Should the part repudiated be the legitime, the other coheir shall succeed to it in their own right, and not by the right of accretion. Legitime that was repudiated by compulsory heir not by right of accretion but in their own right Why repudiation only? One of the weaknesses of the Civil Code o Ex: A has wife B; 2 LC C, D; IC E A died intestate If BCDE survived and all are qualified to inherit how do we divide? Estate 490 Heirs intestate shares
490/2=245 245/2=122.5 140>122.5 so its ok Suppose D repudiates 140 = 122.5 (legitime) + 17.5 (FP) To whom will his share in the FP go? o Under Art 1018 in legal succession, the share of the person who repudiates the inheritance will always accrue to his co-heirs o 17.5 will go to other co-heirs by accretion To whom will his legitime go? o Legitime 122.5 will go to other coheirs in their own right Jurado Solution: o Since its intestacy, apply 1018 o 140 should thus go by accretion o heirs - intestacy
E 1 28 Total: 5 140/5= 28 o heirs total share B 140+56=196 C 140+56=196 E 70+28=98 o But what about 1021? When the legitime is repudiated, it will not go to the other co-heirs by accretion, but in their own right So Jurados solution is wrong Concepcion Solution: o Since D repudiated, he didnt become an heir at all o Heir - intestacy
B 2 56 C 2 56
E 1 70 Total: 7 Legitime of LC:
B 2 140 C 2 140 D 2 140
B 2 196 C 2 196 E 1 98 Total: 5 490/5=98 divide entire estate by 5, Ds part not included anymore since he isnt
considered an heir anymore whats Cs legitime? 490/2=245 196<245 so legitime was impaired Heirs total share
B 122.5 C 245 E 122.5
1 LC: (360/2)/2=90 o 45<90 so legitime impaired o do we annul this immediately or do we divide the FP first? Heirs intestacy 90 FP divided equally A 30 B 30 W 30 Y not included, not a legal heir
Bones: o Why not give the wife B 196 and the IC E the remainder? Because the wife is prejudiced by the IC IC is actually just supposed to get 98 o Sir: good point! Jurado: purely 1018 Concepcion: purely 1021 Bones: marry 1018 & 1021
Therefore Total share: A 45+30=75 B 45+30=75 W 90+30=120 Y 90
o o
COMBINATION PROBLEM: representation, accretion, will, intestacy When the testator fails to dispose of all his estate in the will, then that part not disposed of shall go to the legal heirs by intestacy Ex: o X dies Sp W 2 kids A and B nephew Y o Will: instituted A and B to W to Y to o Estate 360 o Heirs testate shares A ( x 360)/2 = 45 B ( x 360)/2 = 45 W x 360 = 90 Y x 360 = 90 Total: 270 FP=360-270=90 o Issue: WON what was given in the will should always amount to his legitime? OR is it enough that what was given in the will plus what he will receive by intestacy should amount to not less than his legitime? Legitime
75<90 legitime is impaired so this computations doesnt work and we have to distribute legitimes first institutions in the will cant be disregarded, only necessary that legitimes arent impaired Legitimes A 90 (legitime) B 90 (legitime) W 90 (legitime) Total: 270 FP=360-270=180 FP should go to W and Y first by will o W 90 o Y 90 Rule: Will is preferred over intestacy, will is paramount Whose FP do we take from first? o W or Y? Rule: Institution in the will necessarily includes the legitime Final distribution A 90 B 90 W 90 Y 90 Total: 360 Sp W and LC A survive testator Will: to A Estate: 240 Heirs - will A = 120 W0 Heirs intestacy 240-120(by will)=120 intestate portion Santillon case: Sp and LC to divide intestate portion equally
Ex: o o o o
A 60 W 60 Legitime LC: 240/2=120 legitime isnt impaired W: of LC=60 Final distribution: A 120+60=180 W 60 Total: 240 4 kids ABCD A predeceased survived by E and F B repudiated survived by G and H C incapacitated survived by I and J D alive and kicking, 2 kids K and L Instituted to entire estate ABCD Estate 720 Jurado Solution: Heirs - legitime A (720/2)/4=90 o Predeceased o E and F will represent A E 45 F 45 B 90 o Repudiated o G and H cant inherit because no representation in repudiation o 90 will be divided among A C D A 30 (dead) E 15 F 15 C 30 (incapacitated) I 15 J 15 D 30 C 90 o Incapacitated o I and J will inherit I 45 J 45
Ex: X o
o o o
o Incapacitated o I and J cant inherit D 90 + 270 (by accretion) = 360 o so where do the share of A B C go? To D by accretion! Final distribution: A (dead) 0 o E 45+15=60 o F 45+15=60 B (repudiated) 0 o G0 o H0 C (incapacitated) 0 o I 15+45=60 o J 15+45=60 D 30+90+360=480 o K0 o L0 Total: 720 Criticism of Jurado solution: Shouldnt have given legitime first o Should follow will first o Provision of will deemed to include the legitime Why did he divide Bs legitime among the coheirs? o This would be accretion o Theres no accretion in legitime Concepcion Solution: If someone repudiated, that somebody has to be removed as an heir, in the eyes of the law, he never became an heir. Its as if a stranger was instituted as a stranger, provision is deemed one if favor of a stranger. Effect of repudiation is total (testate and intestate share). Therefore B shouldnt be included in the computation of the legitime Heirs by will first 720/4=180 A 180 (dead) o Legitime (720/2)/3=120 Divided by 3 instead of 4 because B is a stranger 180>120 legitime not impaired E 60 F 60 o FP 60 Goes to D by accretion because representation isnt allowed in testamentary
D 90 (alive) Heirs free portion distributed by will =720/2=360 A 90 o Dead o E and F cant inherit B 90 o Repudiated o G and H cant inherit C 90
succession D 60 B (stranger) 180 (remember this is by will) o Repudiated becomes part of FP which gets distributed by accretion to the coheirs A C D
C 0 (incapacitated) I 120 J 120 D 240 Total: 720
A 60 (dead)
Representation not allowed goes to D 60 Representation not allowed goes to D 60
C 60 (incapacitated)
4. TESTAMENTARY Art. 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (986) Art. 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. (987a) II. CAPACITY TO SUCCEED A. DETERMINATION Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. (758a) Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n) B. WHO MAY SUCCEED Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914) Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (n) Art. 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. (746a)
D 60 C 180 (incapacitated) o Legitime 120 I 60 J 60 o FP 60 D 60 D 180 o Legitime 120 o FP 60 Total: 720 Change in legitime from 90 to 120 makes a difference when there is a donation inter vivos because donation considered as an advance on a legitime Final distribution: A0 o E 60 o F 60 B0 o G0 o H0 C0 o I 60 o J 60 D 60+60+60+60+60+180=480 Same result as Jurado because no disposition in the will which impaired the legitime of a compulsory heir, the moment a provision in the will impairs the legitime of a compulsory heir, the results will differ with Jurado. Since legitimes increase, they have greater protection. What if X died intestate? 720/3=240 A 0 (dead) E 120 F 120
B 0 (repudiated) no longer an heir
Art. 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver onehalf thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. (747a) Art. 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality. (749a) C. WHO ARE INCAPABLE OF SUCEEDING Art. 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; (2) The relatives of such 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; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; (6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a) Art. 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. (n)
Art. 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. (755) Art. 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a) Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a) D. EFFECT OF ALIENATIONS BY THE EXCLUDED HEIR Art. 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. (n) E. RIGHTS OF THE EXCLUDED HEIR Art. 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. (761a)
Art. 1937. Movable or immovable property may be the object of commodatum. F. LIABILITIES OF THE EXCLUDED HEIR Art. 1033. The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (757a) G. PRESCRIPTION OF ACTION Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. (762a) III. ACCEPTANCE & REPUDIACTION OF THE INHERITANCE Art. 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. (988) Art. 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. (989) Art. 1043. No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. (991) Art. 1044. Any person having the free disposal of his property may accept or repudiate an inheritance. Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030. (992a) Art. 1045. The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary. (993a) Art. 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government. (994) Art. 1047. A married woman of age may repudiate an inheritance without the consent of her husband. (995a) Art. 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval. (996a) Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private document. A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir. Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. (999a) Art. 1050. An inheritance is deemed accepted: (1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs; (3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. (1000) Art. 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. (1008) Art. 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. (1001) Art. 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. (1006) Art. 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it. (1007a) Art. 1055. If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity. (1009) Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of
the causes that vitiate consent, or when an unknown will appears. (997) Art. 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance. If they do not do so within that time, they are deemed to have accepted the inheritance. (n) IV. COLLATION Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of 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 partition. (1035a) Art. 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (1036) Art. 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. (1037) Art. 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property. They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. (1038) Art. 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. (1039) Art. 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (1040) Art. 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. (1041) Art. 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is
required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. (1042a) 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) 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) Art. 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. (1045a) Art. 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance. (1046a) Art. 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. (1047) Art. 1074. Should the provisions of the preceding article be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction. If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. (1048) Art. 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened. For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. (1049) Art. 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value. The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition if effected.
As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. (n) Art. 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. (1050) Art. 771. Donations which in accordance with the provisions of Article 752, are inofficious, bearing in mind the estimated net value of the donor's property at the time of his death, shall be reduced with regard to the excess; but this reduction shall not prevent the donations from taking effect during the life of the donor, nor shall it bar the donee from appropriating the fruits. For the reduction of donations the provisions of this Chapter and of Articles 911 and 912 of this Code shall govern. (654) Art. 752. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. (636) Art. 772. Only those who at the time of the donor's death have a right to the legitime and their heirs and successors in interest may ask for the reduction or inofficious donations. Those referred to in the preceding paragraph cannot renounce their right during the lifetime of the donor, either by express declaration, or by consenting to the donation. The donees, devisees and legatees, who are not entitled to the legitime and the creditors of the deceased can neither ask for the reduction nor avail themselves thereof. (655a) V. PARTITION & DISTRIBUTION OF THE ESTATE o Self-explanatory in provisions o Already partly taken up in current discussion on distribution
A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (1056a) Art. 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs. The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. (1057a) Art. 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. (n) Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs. (1051a) Art. 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. (1054a) Art. 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (1061) Art. 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. (1062) Art. 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. (1063) Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before
A. PARTITION Art. 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n) Art. 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. (n) Art. 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.
the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (1067a) Art. 1089. The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. (1065a) Art. 1090. When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title. (1066a) B. EFFECTS OF PARTITION Art. 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. (1068) Art. 1092. After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. (1069a) Art. 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (1071) Art. 1094. An action to enforce the warranty among heirs must be brought within ten years from the date the right of action accrues. (n) Art. 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. The warranty of the solvency of the debtor can only be enforced during the five years following the partition. Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (1072a) Art. 1096. The obligation of warranty among co-heirs shall cease in the following cases: (1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired;
(2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith; (3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (1070a) C. RECEISSION AND NULLITY OF PARTITION Art. 1097. A partition may be rescinded or annulled for the same causes as contracts. (1073a) Art. 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. (1074a) Art. 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (1075) Art. 1100. The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. (1076) Art. 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share. (1077a) Art. 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. (1078a) Art. 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (1079a) Art. 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. (1080) Art. 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. (1081a)

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CONCEPT OF SUCCESSION 1.

A712: diff modes of acquiring prop:

Operation of law grant O over prop donation

1st occupy = rels

not in 712: marriage prop (FC) o ACP default regime

if this wasnt possible, concept of succession is useless (nothing to leave behind)

Basis of presumption: desire as a soc animal (sociological) acquired by somebody fr

A774: defn gives us the diff elems of succession subj/parties (P/Ps):

mode of acquisition: anotherthere are Ps

Rules on intestacy cant apply

decedent defined in A775: person whose props transmitted to another

A782: for an heir to qualify to inherit, it must be a person

Drilon, Gandionco, Lee, Lim, Ocampo 4

Ex) monetary obligs: transmitted

Emptio spei sale of a vain hope VOID

has to be complied w/ for will to be valid

The Fil is considered 2nd-class cit in the application of CC

embassy/consulate abroad o OTHERWISE: violn of EP clause of Consti

Where must testator sign? 2 sets of sigs reqd in Art 805

qualn is that they shld be able to read and write

Ex. witness asked circs behind execution

sign thru a delegate but allowing

no compliance w/ reqt of law

2) SUBSCRIBE: same mng as subscribe used for testator = sign

2. It must be signed by the hand of the testator

Requirement for probate

Partial: subs will revokes only certain provisions of prior will

2nd will must be valid will to produce effect in revocation

3. MODES OF PROBATE Probate may be done at 2 pts in time:

120,000 90,000 330,000

1/4 1/3 1/3 1/4

90,000 120,000 120,000 90,000 420,000

When A dies, C will get o A and B are separately instituted

When A dies, C will get nothing o Accretion between A and B

A gets Testator B gets C is their substitute

Testator Heir 2 Beneficial title

Difference between fidiecommissary and legacy of usufruct

the absolute obligation to deliver the property to a second heir;

Can be portion = only that portions subj to FS

Fid died 1st, who will inherit prop?

A. 872: charge, cond or substitution on legitimes In relation to:

Description wrt the happening of the event

The cond will HAPPEN

Effect of a Resolutory term

What happens to the other ? Free Portion

Drilon, Gandionco, Lee, Lim, Ocampo 67

SHARE 2/3 1/3

INSTITUTION P240K P120K P360K

Manresa Formula HEIR A B

LEGITIME P90K P90K P180K

INSTITUTION P120K P60K P180K

TOTAL P210K P150K P360K

TOTAL P225K P135K P360K

enmity/bad blood bet them

so theyre not related at all

prop is a blood, legit bro/sis o Balane was a skeptic:

If by will = not by opn of law but by the opn of the will

no reserva cause prop lost

rels of 3rd deg

Jurado: 1st R on intestacy is the nearer excludes the more remote

1 R: dir excludes collateral

Note that D is in the 1st degree

Next living is F whos in the 2nd degree