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MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS SUCCESSION 2. Concept of pater familias. Diligence of pater familias. Pater familias means head of the family. Concept: Succession is the last mode of The basic unit of Roman society. It is he who acquiring ownership. It is an independent mode of managed and exercised authority over his acquiring ownership. children, absolute control over his wife. In Roman law, a man's wife is his child. It is he who is the Requisites of Succession: guardian of the family gods. It is a position that (1) Death of the predecessor; must be occupied every time. It is unthinkable to (2) Existence and capacity of the successor; be otherwise. Once he dies, it is absolutely (3) Provision of the law or provision of a will necessary not only in religion that he is to be granting the right of succession; replaced immediately. This is indispensable. (4) Acceptance by the successor. These underpinnings are gone now. Today, Q: Is tradition (delivery) required for ownership succession is nothing but a mode of acquiring to transfer? ownership. Why? Because you do not have the A: No. Ownership is transferred by succession, not fiction to have succession, because of the spread by any other mode. of Christianity which took the place of those yearnings that is believing in God and life after Etymology: Succession is derived from 2 Latin death. No more yearnings for immortality, unless words: sub, meaning under (e.g., an underling, a you do not believe in the teachings of Christianity. subordinate, if a plane travels at a subsonic speed Also, the concept of pater familias is no or fly below opposite- subsonic) and cedere, longer applicable because of parental authority meaning to give, to pass. which restricted the authority of the head of the Succession, therefore, is a passing under. family. We no longer have slaves, absolute It gives the idea of the nature of succession as control over children, etc. originated from Roman Law. Why do the Romans But old beliefs do not die easily. Some call it a passing under? Because of the fiction in provisions of the Law on Succession are Roman Law that a personality occupies a space, influenced by these underpinnings. Like, "heirs that is, a legal personality is permanent. A are the continuation of the personality of the permanent fixture but the occupant will go away. decedent." Another is: when a condition is And it is the successor who will occupy the space imposed upon the substitute, does the substitute you left vacant. There is always what you call have to fulfill the condition? All of these are personalitas. "Sound through" like a play, where residual elements of Roman Law. you wear a mask, and the one behind the curtain is sounding through. That is, somebody is really Definition of Succession: Succession in a talking behind you. This, by analogy is juridical sense is the substitution of one person for succession. another in a determinable relationship or a Persona means "you," the character. subrogation of one person by another in a juridical Personalita or personality which is always there situation. (Manresa.) and there is or there will always be an occupant, Succession is the substitution of a person who comes and goes; it may change the to the determinable legal relationship of another. character, the person passes under. What is (Castan.) behind all this? Personality never dies. We are Castan's definition is better. (Balane.) but dust and shadows based on the reality of death. Why do we have to devise this fiction? PHILIPPINE LAW ON SUCCESSION (Based on Why the law on succession? The Law on the lecture given by JBL Reyes.) succession has various underpinnings in Roman Law, that is, first, the vague idea of after life, like Every person during his lifetime is at the the ideas of Horace - state of good in the Elipian center of a number of juridical relations flowing fields; second, that the law develops based on from personality. Some of these legal relations conditions of society. One of the most basic are permanent, some are transitory. Some of desires of man is the desire for immortality. these relations are: paternity and filiation, marriage and maternity, membership of the bar, student of How, When, To Whom, In What proportion are MLQU, etc., which other persons do not have. they transmitted - Succession. There are transitory relations, and examples of these are one when bought a bottle of Coke; lease BASIS OF THE LAW ON SUCCESSION: of an apartment unit; a mortgage; a contract of partnership; when one rides a bus, etc. 1. Succession provides the vehicle for satisfying your yearning and longing for immortality. It When a person dies, personality is satisfies or consoles yourself that something in extinguished. Some of these juridical relations will you lives forever and this is your personality. die with you- intuitu personae- SSS, GSIS- if they Others usually leave something like paintings, die with you, no problem. But some of them 1 book of poems, statue so that they will be survive, e.g., land, say a thousand hectares. If it is Page remembered forever, e.g., Horace by only a ball pen left by the decedent, it is not a big Shakespeare. problem. But what if the decedent left a big tract of land, or there is a contract of sale which hotjurist 2009 Succession transfers ownership between the decedent and third parties. You have to set a devise. You 2. Identity of Object (identidad de objecto) - same cannot leave them hanging in the air. You have to property is involved, only the owner is changed. devise a set of rules to determine how, when, to The right is the same (objective identity) whom, to what extent these rights will be transmitted. The law which governs them is Important Principles of Succession (which succession. And that is all on succession, permeate the entirety of Succession): everything is footnotes. 1. Mortis Causa: Succession cannot take place while the owner is still alive. The heir/ DIFFERENT KINDS OF SUCCESSION successor have a mere expectancy right to the property of the decedent, during the lifetime of the A. By the moment of transmission: latter. 2. Interest of the family may override the 1. Mortis causa- takes place by virtue of will of the decedent because of compulsory heirs. death There is a legitime reserved for the family. A will 2. Inter vivos- takes place independently cannot impair the legitime. of death during the lifetime of the parties (now 3. The estate passes or devolves to the called Donation inter vivos.) family unless the decedent expressly orders otherwise in a will. Family covers spouse, B. Extent of rights involved: ascendants, descendants, and collateral relatives. 4. The family cannot be entirely deprived 1. Universal- this is very catchy- it of the estate because of the system of legitime. involves the entire estate or fractional or aliquot or 5. Within the family, heirs of equal degree/ undivided part of the estate, e.g., I give you 1/2 of proximity inherit in equal shares. Presumption of my estate. equality. This is only the general rule. There are 2. Particular/ partial: succession to exceptions. specific items 6. The State has a share in the inheritance a. legacy- specific personal through taxes. properties, e.g., I give you my car 7. The heirs are not liable for the debts of b. devise- specific real properties, the estate beyond their share in the inheritance. e.g., I give to G my fishpond in Laguna. Estate is liable for the debts left by the decedent. Debts are to be deducted before the heirs can get C. As to cause: their shares. Procedure: Collect all assets, deduct debts, and then partition the shares. Up to 1. Compulsory: that effected by operation what extent? Up to all its assets. If the estate is of law to forced heirs even if not in a will; zero balance, the heirs get nothing. succession to the reserved portion/ legitime. 2. Testamentary: by will Under the modern civil law, if the decedent left 3. Intestate or legal: succession in default more debts than assets, it will not change or affect of a will; subordinate to testamentary succession your status anyway, but not with the decedent's 4. Mixed: combination of the above. creditors- they have to be aware- caveat creditor. 5. Contractual: E.g., donation propter nuptias by one to another of future properties Basis of the Law on Succession: Some say it is which takes effect after death. Why contractual? the law on property which seems to be the basic Because of the transfer of properties is not by attitude of the Code. Others say succession is a virtue of a will but by contractions So it is law on persons because of the compulsory heirs. governed by the law on contracts. Hence, it must How can you explain that? Is there some link be governed by the Statute of Frauds. It must be between the law on succession and property? in writing to be enforceable. There is. Castan said that law on succession is both law on persons and property. However, in a D. As to parties to succession: pure testamentary succession, the law on persons does not come to play. Say, a will giving MLQU a 1. Decedent, transferor, causante, acutor, property. This is more on the law of property. de cuius This is the eclectic theory of Castan. 2. Successor, transferee, causa habiente Major Changes in the New Civil Code on E. As to terms: Succession: 1. Testator: decedent left a will 2. Intestate: decedent did not leave a will 1. Allowance of holographic wills (Art. 3. Heir: one who succeeds by universal 810.) It gives greater freedom to the decedent to title or to a share of the estate. choose in what form he can dispose by will his 4. Devisee: one who succeeds by estate. Holographic will is not a novelty but a particular title to real properties. revival. This was allowed in the Spanish times but 5. Legatee: one who succeeds to a was abrogated during the American regime. It specific personal properties. was only restored under the NCC. 2. Improvement in the successional Elements of Succession (Manresa) position of the surviving spouse. Under the OCC, the surviving spouse had a right of usufruct only. 1. Change of subject (cambio de suheto)- Under the NCC, the surviving spouse is given full ownership is transferred from deceased to heir ownership and is a compulsory heir. The share is (subjective change.) variable that it is so bewildering. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS 3. Abolition of the right of mejora or betterment (the right of the parent to give a child Chapter 1 more than the other.) This is basically a portion of the legitime, 1/3. Freedom is given to the testator GENERAL PROVISIONS as to who among his children he will give the 1/3. This system was never utilized because it was never understood by the people. Art. 774. Succession is a mode of 4. Abolition of the reservas and acquisition by virtue of which the property, reversiones. The NCC restored reserva troncal, rights and obligations to the extent of the reversion adoptiva (under PD 603.) value of the inheritance of a person are 5. Granting successional rights to/ for transmitted through his death to another or spurious children- illegitimate other than natural. others either by his will or by operation of law. This is one of the revolutionary changes in the NCC. Under the OCC only legitimate children Balane: have successional rights. NCC liberalized it by granting successional rights to spurious children. 1. Succession is a mode of acquisition: 6. Greater facility in the probate of wills. Property, rights, and obligations are transmitted; Why? Because of the allowance of ante mortem those which are not extinguished by death of the probate, that is, during the lifetime of the testator. decedent is inheritance. Succession is but a Now, probate may be post-mortem or ante process of transmission. mortem. Succession is a mode of acquisition of 7. The application of the prohibition inheritance transmitted to the heirs upon the death outlined in Art. 739 to succession. This is by virtue of the decedent through a will or by operation of of Art. 1038. Art. 739 provides that: law. Article 739.The following donations 2. Two elements of Succession: (1) identity of shall be void: objects; (2) change of subjects. (1) Those made between persons who were guilty of adultery or 3. Rule: The estate of the decedent pays for the concubinage at the time of the donation; obligations of the decedent. What is left is given (2) Those made between persons to the heirs. found guilty of the same criminal offense, in consideration thereof; 4. Connect Art. 774 with Art. 776, supra. (3) Those made to a public officer For money debts: If not paid in settlement or his wife, descendants and proceedings, heirs could be liable to the extent of ascendants, by reason of his office. what they received In the case referred to in No. 1, the For obligations: E.g., lessee-lessor- action for declaration of nullity may obligation to keep the lessee in the peaceful be brought by the spouse of the donor or donee; and the guilt of the possession is transmitted to the heirs. donor and donee may be proved by preponderance of evidence in the 5. Property and Rights- Passed on to the same action. decedent's successors 8. Increase of the free portion- corollary to 6. Obligations: the abolition of the mejora a. Monetary: General rule: The estate 9. Limitation of the fideicommisary pays for them before the estate is partitioned. substitution to one degree (before, two degrees) Exception: Alvarez case. Predecessor 10. Intestate succession is narrowed from fraudulently disposed of the property during sixth degree to fifth degree. litigation. SC held that heirs cannot escape 11. Abolition of the institution under liability for their father's transactions which gave pupilar and ejemplar (substitution.) way to this claim for damages. Even though they 12. Allowance of lifetime probate. did not inherit the properties, the monetary equivalent thereof was devolved into the mass of Areas in Succession Affected by the American the estate which the heirs inherited. Hereditary Code: estates are always liable in their totality for the payments of the debts of the estate. Whatever 1. Rules in interpretation: Articles 788-792 payment made by the estate is ultimately a 2. Rules on formal requirements of a will: Articles payment by the heirs because these payments 804-809 decrease their inheritance. 3. Rules governing witnesses to wills: Articles 820-824 b. Non-monetary: Transmitted to the 4. Rules on republication and revival of wills: heirs. Articles 835-836 5. Rules on revocation: Articles 829-831 Art. 775. In this Title, "decedent" is the 3 6. Rules on allowance and disallowance of wills: general term applied to the person whose Page Articles 838-839 property is transmitted through succession, 7. Rules on Testamentary capacity. whether or not he left a will. If he left a will, he is called the testator. hotjurist 2009 Succession Rights to succession are vested from the moment of death, not upon the filing of petition for Balane: Every testator is a decedent but not all testate/ intestate proceedings, not upon the decedents are testators. Under the American declaration of heirship or upon settlement of the system, a decedent who did not leave a will is estate. called "intestate." But this is not true in the The rights to succession are automatic. Philippines. Tradition or delivery is not needed. Fiction of the law is that from the moment of the death of the decedent, the right passes to the heirs. Art. 776. The inheritance includes all During the lifetime of the predecessor, the property, rights and obligations of a rights to succession are a mere expectancy. person which are not extinguished by his Hence, no contract can be legally entered into death. regarding the expected inheritance. When a heir receives his inheritance, he is deemed to have Balane: Transmissible property, rights and received it at the point of death. This is so by legal obligations constitute inheritance. fiction to avoid confusion. Guidelines on whether rights/ obligations are 5. CASES: extinguished by death: Uson v. Del Rosario: Upon the death of the husband before the NCC, the rights of the wife 1. Property, rights and obligations which to the inheritance were vested. So the rights of are purely personal are extinguished by the death the illegitimate children under the NCC to inherit of the decedent. They are not part of the cannot prejudice the vested rights of the wife. We inheritance, e.g., membership in the bar or right of have to apply the OCC because at the time of his consortium with your wife. death, it is the OCC which governed the law on 2. Those which are purely patrimonial. succession. For the determination of successional General rule: They form part of the inheritance, rights, the law at the point of death should be the e.g., credits. one applied. Exception: Money debts: obligation to pay is not transmissible, although purely patrimonial because Borja v. Borja: The right to inherit is the estate pays for it. vested at the moment of death. Even if she did 3. Those obligations transmitted to the not know how much she was going to inherit, she heirs which are not monetary, e.g., obligation of a could still dispose of her share in the inheritance. lessor- patrimonial. B leased to C a parcel of land Said right to the share was hers from the moment for a term of 3 years. After 2 years, B died. The of death and she could do whatever she wanted heirs of B are bound by the lease contractions with her share, even sell it. Obligation as lessee and bailee are transmissible. Bonilla v. Barcena: You do not need a declaration of heirship whether testate or intestate, voluntary, etc. The rights of the heirs to the Art. 777. The rights to the succession properties vest in them even before judicial are transmitted from the moment of the death declaration of their being heirs in the testate of the decedent. proceedings. An action to quiet title is not extinguished Balane: by the death of the decedent, it being a patrimonial right. Hence, the heirs have the right to be 1. This article literally means that the "decedent substituted to the action even before their having has the right to the succession which is declared as heirs. transmitted upon his death." This is illogical because the decedent does not have rights to the Jimenez v. Fernandez: Carlos died in succession. To improve the provision, change the 1936, before the effectivity of the NCC. As such, words "succession" to "inheritance" (the right to his illegitimate child cannot inherit from him. As succeed is an inchoate right) and the verb such, title to the land belongs to the cousin who "transmitted" to "become vested." inherited the land with Carlos. . 2. Four Elements of Succession: Art. 778. Succession may be: 1. Death (1) Testamentary; 2. Will or Operation of law (2) Legal or Intestate; or 3. Existence and capacity of the successor (3) Mixed. 4. Acceptance. 3. This provision is the heart and soul of Balane: succession. The most essential provision of the 1. Testamentary (Art. 779.) - designation of an law on succession. heir in a will 2. Legal or Intestate- without a will or the will is 4. Rights to succession vest at the moment of invalid death, not transmitted. The right should be made 3. Mixed (Art. 780.) - partly by will and partly by effective from the moment of death. This is so operation of law because the rights to succession before death are 4. Compulsory - Succession to the legitime by a mere inchoate. But from the moment of death, forced heir. those inchoate rights become absolute. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS property. Devisees or legatees were liable for Art. 779. Testamentary succession is debts of the decedent only up to the extent of the that which results from the designation of an value of the properties heir, made in a will executed in the form Now, No. Except in one instance, in case prescribed by law. of preterition in Art. 854. If read carefully, institution of heir is annulled while devise and Balane: Heir includes devisees and legatees. legacy are not, so long as there is no impairment of the legitime. Art. 780. Mixed succession is that Art. 782 is not a working definition: Someone effected partly by will and partly by operation who is a devisee (succeeded by a particular title) of law. can fit into the definition of an heir (succeeds to a fractional/ aliquot/ undivided part of the estate.) and vice versa. Art. 781. The inheritance of a person includes not only the property and the TESTAMENTARY SUCCESSION transmissible rights and obligations existing at the time of his death, but also those which WILLS IN GENERAL have accrued thereto since the opening of the succession. Art. 783. A will is an act whereby a person is permitted, with the formalities Balane: It is better to scrap Art. 781. It has no prescribed by law, to control to a certain significance. Even without it, those which accrue degree the disposition of his estate, to take after death will still belong to the heirs. effect after his death. E.g., A has a son, X. A dies in 1988. Definition of will: Balane: Inheritance is a mango plantation. In 1990, there 1. "Person"- refers only to natural is a crop. Is it part of the inheritance? persons. 1. According to Art. 781, yes. This is 2. "Permitted to control to a certain inconsistent with Art 777 because succession degree" - Why certain degree? Because occurs at the moment of death. Art. 781 implies a compulsory heirs cannot be deprived of their second succession. legitimes. If there are no compulsory heirs, the 2. Legal concept: No. X owns it through power of the decedent to dispose of his estate is accession and not succession. Fruits are no absolute. If there are compulsory heirs, he only longer part of the inheritance. It belongs to the has a limited degree to dispose. That is why the heir because of ownership of the land he received will can only cover the disposable portion of the at the moment of death. (Art. 777). estate (free portion.) Those which have accrued thereto after 3. Comment: death do not comprise the inheritance but they a. An "act" is too general; better accrue by virtue of ownership (accretion). "document" because a will must be in writing b. "After"- better "upon." Art. 782. An heir is a person called to Characteristics of Wills: the succession either by the provision of a will or by operation of law. 1. Purely personal act: (Arts784-787) Devisees and legatees are persons to non-delegable; personal participation of the whom gifts of real and personal property are testator is required. respectively given by virtue of a will. 2. Free act: It means without fraud, Balane: The definitions given in this article are not violence, deceit, duress, or intimidation. It is good. The definitions contained in the Spanish voluntary. No vitiated consent. Civil Code were better. An heir succeeds by universal title. Devisee or legatee succeeds by 3. Dispositive of property: If it does not, particular title. it will be useless. But as far as the law is According to Castan, an heir is one who concerned, it can be probated but a useless succeeds to the whole (universal) or aliquot part of expense. It is only valid as to form and nothing the estate. Devisee or legatee is one who else. succeeds to definite, specific, and individualized properties. Exceptions: E.g., I bequeathed 1/2 of my fishpond in A. When a will recognizes an illegitimate child Pampanga to A. Is the successor an heir, legatee B. When a will disinherits a compulsory heir or devisee? A devisee, the properties being C. When it appoints an executor specific real properties 4. Essentially revocable: ambulatory, it 5 Q: Is it important to distinguish between heir is not fixed, can be taken back (while the testator Page devisee and legatee? is alive.) There is no such thing as an irrevocable A: Before, yes. The heir inherited even debts of will. It only becomes irrevocable upon death of the the decedent, even if it exceeds the value of the testator. hotjurist 2009 Succession 5. Formally executed: If the form is Balane: This provision clarifies Art. 784 on will- defective, it is void. It cannot be cured. making power. 6. Testamentary capacity of the testator. Things which cannot be delegated to a Third Person by the Testator: 7. Unilateral act: Does not involve an exchange of values or depend on simultaneous 1. Designation of heir, legatee or devisee, offer and acceptance. e.g., I hereby appoint "X" as my executor and it is in his discretion to distribute my estate to 8. Mortis causa: Takes effect upon the whomever he wants to give it. This cannot be person's death (Art. 777.) done. 2. Duration or efficacy of such disposition 9. Statutory grant: granted only by civil like, "Bahala ka na, Ruben." law. The law can also take it away. It is not a 3. Determination of the portion to which constitutional right but merely statutory. In Russia, they are to succeed, when referred to by name. there are no wills, all intestacy. 10. Animus Testandi: There must be an intent to dispose mortis causa the property of the Art. 786. The testator may entrust to a testator. There must be a real intent to make a will third person the distribution of specific or a disposition to take effect upon death. Said property or sums of money that he may leave intent must appear from the words of the will. in general to specified classes or causes, and also the designation of the persons, Montinola v. CA: 3 CA Reports 377, The institutions or establishments to which such Republic contended that the phrase "I hereby property or sums of money are to be given or leave you (motherland), parents, loved ones... "Is applied. a testamentary disposition in favor of the Republic as an heir. CA ruled that it was not. The phrase is Balane: Art. 786 is an exception to Arts 784 and a mere piece of poetry, there being no animus 785. It covers things that are part of the essence testandi. The lack of such intent might be seen of will making but allowed to be delegated. from the face of the document itself. 11. Individual: One person alone. Joint Examples of Prohibited Delegation: wills are prohibited under Art. 818. 1. Cannot delegate the designation of the amount Vitug v. CA: A couple executed a of property e.g., I hereby set aside the sum _____ survivorship agreement wherein their joint bank which my executor may determine for the cause of account would become the sole property of the mental health. The amount is not specified. surviving spouse should one of them die. The SC held that such agreement is valid. The 2. Cannot delegate the determination of causes or conveyance is not a will because in a will, a classes to which a certain amount is to be given, person disposes of his properties. In this case, the e.g., I hereby set aside P1M for such worthy bank account is part of the conjugal funds. causes as you may determine. This is not valid Neither is the agreement a donation inter vivos because the cause is not specific. because it takes effect after death. By way of exception, there are 2 things which can be delegated. The testator must specify- (a) the Art. 784. The making of a will is a amount of property; (2) the cause of classes of strictly personal act; it cannot be left in whole property- before the delegation can take effect. or in part to the discretion of a third person, or accomplished through the instrumentality of 1. The designation of person or institution falling an agent of an attorney. under the class specified by the testator. Choosing the members of the class but is Balane: The making of a will is a purely personal restricted by the class designation, e.g., I hereby actions It is an exercise of the disposing power set aside the sum of P1M for the development of which cannot be delegated. But the physical act AIDS research. "M" will choose which institution. of making a notarial will can be delegated to the This is allowed because you have guided already secretary but not the execution or making of M's decision. However, "M" cannot designate holographic wills. Manila Hotel. E.g., "A" dictated The Secretary wrote it down and 2. The manner of distribution or power of typed. Is the will valid? Yes. What cannot be left apportioning the amount of money previously set in whole or in part to a third person is the exercise aside or properties specified by the testator, e.g., I of the will making power, the exercise of the designate the following hospitals to get the share disposing or testamentary power. The mechanical in my estate and appoint "M" to apportion the act can be delegated. amount of P10M. I set aside P250,000 for the following institutions: UP, PGH, SR, in an amount as my executor may determine. Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or The above mentioned are exceptions to the rule the determination of the portions which they that the making of a will are non-delegable. are to take, when referred to by name, cannot be left to the discretion of a third person MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Art. 787. The testator may not make a far as practicable. Any doubt shall be resolved in testamentary disposition in such manner that favor of testacy. another person has to determine whether or not it is to be operative. Q: How will you resolve the ambiguity? What Balane: This provision clarifies what is meant that evidence do you admit? "a will is personal." This is in effect delegating the A: You can admit any kind of evidence as long as discretion to the disposition of the will. relevant and admissible according to the Rules of Court. This includes written declarations. Articles 788- 792. Interpretation of Wills/ Rules Except: Oral declarations of the testator. of Construction. Why? Because they cannot be questioned by the deceased. Also, because they are easy to Art. 788. If a testamentary disposition fabricate. admits of different interpretations, in case of If inspite of evidence you still cannot cure doubt, that interpretation by which the ambiguity, then annul the will. disposition is to be operative shall be If the ambiguity is patent, disregard the preferred. will. If latent, look into the evidences allowed by law. Balane: Art. 789 is the rule on interpretation in order that the will may be valid and not perish. Rationale: The State prefers testate to intestate. Art. 790. The words of a will are to be Why? Because testamentary disposition is the taken in their ordinary and grammatical sense, express will of the decedent. Intestamentary is the unless a clear intention to use them in another presumed will of the decedent. This is mere sense can be gathered, and that other can be speculation on what the decedent wanted. ascertained. Technical words in a will are to be Ut res mages valet quam pereat: that the thing be taken in their technical sense, unless the valid than perish. context clearly indicates a contrary intention, or unless it satisfactorily appears that the will E.g., The word "chick" can have 2 interpretations: was drawn solely by the testator, and that he (1) A girl in which case inoperative because not was unacquainted with such technical sense. within the commerce of man and (2) Sisiw: operative. Interpret according to the second. Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other Art. 789. When there is an imperfect dispositions, unless it is to be presumed that description, or when no person or property the testator would not have made such other exactly answers the description, mistakes and dispositions if the first invalid disposition had omissions must be corrected, if the error not been made. appears from the context of the will or from extrinsic evidence, excluding the oral Balane: General rule: Severability. A flaw does declarations of the testator as to his intention; not affect the other provisions. Exception: If it was and when an uncertainty arises upon the face meant that they were to be operative together as of the will, as to the application of any of its seen in the will. provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under Art. 793. Property acquired after the which it was made, excluding such oral making of a will shall only pass thereby, as if declarations. the testator had possessed it at the time of making the will, should it expressly appear by Balane: the will that such was his intention. 1. Kinds of Ambiguity: a. Patent, apparent: that which appears in Balane: This is a new provision. It is better if this the face of the will, e.g., "I give 1/2 of my estate to was not placed here. Why? Because properties one of my brothers." Who among the brothers? acquired after the making of the will, will not pass This is patently ambiguous. unless there is a clear intention or express b. Latent, hidden: perfectly unclear on its provisions that the properties will be passed by the face. The ambiguity does not appear until you testator. E.g., I give as legacy to "M" my cars. I apply the provisions of the will, e.g., "I give to "M" only had 2 cars when I executed the will. After the properties intersecting Buendia and P. de which I acquired 15 more cars. When I die, how Roxas. The ambiguity is determined only when many cars will she get? Following Art. 793, she the will is probated. That is, when it appears that I will get only 2 cars. The additional cars are not am the owner of all the 4 corners of the lot. Now, included. which of those lots? General rule: After acquired property shall 7 not pass. Page 2. Rule: Clarify ambiguity and be guided by Exception: If the will provides otherwise. these: Testacy should be preferred or upheld as If he said "all my cars when I die, " then "M" gets all 17 cars. hotjurist 2009 Succession b. Place: Law of citizenship of decedent. COMMENT: This is crazy. Art. 793 is inconsistent with Art. 777. At the time of the death, the succession will open. As such, all cars should be Subsection 2: Testamentary Capacity and given. Intent But the law should be applied as it is. No matter how inconsistent it is as pointed out by Balane: Testamentification activa is the capacity Tolentino. For as lawyers, you should advise your to make a will. Testamentification pasiva is the clients to be clear or clarify everything to avoid this capacity to inherit based on a will. ambiguity. Tell your clients to specify "as of the Who has testamentary capacity? All time of my death." natural persons. Corporations cannot make wills. Only The solution to this inconsistency between the 2 natural human beings can make a will. articles is to repeal Art. 793. Art. 796. All persons who are not Art. 794. Every devise or legacy shall expressly prohibited by law may make a will. convey all the interest which the testator could devise or bequeath in the property disposed Balane: General rule: All persons have the of, unless it clearly appears from the will that testamentary capacity to make a will. he intended to convey a less interest. Exception: Incapacity, when expressly prohibited by law: Balane: General rule: Legacy or devise will pass (1) disqualified by reason of age (Art. 797); exactly the interest of the testator over the (2) disqualified by reason of mental incompetence. property. (Art. 798.) Exception: Unless it appears from the will that he is giving less. Art. 797. Persons of either sex under eighteen years of age cannot make a will. E.g., Say you own a parcel of land. Only the ownership of the land can be given. If the Balane: testator is a usufructuary, he can only bequeath Q: How do you compute the age? his rights as usufructuary, nothing more, nothing A: According to the Admin. Code, age is reckoned less. according to the calendar month. Can you give bigger? Yes. Art. 929 says so. Only good if the other co-owner is willing to Art. 798. In order to make a will it is sell. essential that the testator be of sound mind at the time of its execution. Q: "B", "G" and "J" are co-owners. "B" gave to "A" the land they owned in common, that is the entire Balane: Soundness of mind is determined at the land and full ownership over it giving more than time of the execution of the will. what he owns. Is this allowed? A: Yes. The remedy is to buy the shares of "J" and "G" but he cannot compel them to buy his Art. 799. To be of sound mind, it is not share, there being no redemption of the whole necessary that the testator be in full land or give to "A" the value of "B's" share, if "G" possession of all his reasoning faculties, or and "J" are not willing to sell their shares. that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other The testator may give a lesser interest, cause. e.g., I give the usufruct of my land to "X". What It shall be sufficient if the testator was results? Usufruct to "X", ownership of the land able at the time of making the will to know the goes by intestacy. nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary actions Art. 795. The validity of a will as to its form depends upon the observance of the law Balane: in force at the time it is made. 1. Soundness of mind: does not require that the testator be in full possession of reasoning capacity Balane: or that it be wholly unbroken, unimpaired or 1. Formal Validity unshattered. a. Time criterion: law at the time of execution; subsequent laws cannot apply 2. It means realization of or knowing: retroactively. a. The nature of his estate: Know what b. Place criterion: Under Art 815-817, five you own. This does not mean that the testator has (5) choices are available to the testator: to know the description of his property in detail. It 1. Citizenship is enough that he has more or less a fairly 2. Residence accurate idea what his properties are. This 3. Domicile depends upon the circumstances. Say 4. Execution Rockefeller. The idea is less if you owned more. 5. Philippines the more a person owns, the more he is apt to forget what he has in detail. If you think you own 2. Intrinsic Validity Ayala bridge and gives it as a devise, something is a. Time: time of death because of Art. 777 wrong with you. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS b. Proper objects of his bounty: Know his the making of the said will was made by the immediate relatives. Experience of mankind is testator during a lucid interval. that you give to people who are attached to you by blood. Immediate relatives referred to are Judicial Declaration of Insanity Consists of: spouses, parents, children, brothers, sisters, but not first cousins. First cousins usually are not 1. A guardian appointed by reason of known especially if they live abroad. The nearer insanity. (Rule 93, ROC.) the relation, the more you should know. The 2. If the insane was hospitalized by order farther, the less the law expects of you. If the of the court testator cannot recognize his immediate relatives, then there is something wrong. In either of these cases, there is a c. Character of the testamentary act: presumption of insanity. But once the order is Know the essence of making a will. Know that you lifted, the presumption ceases. are: (1) making a document that disposes (freely, gratuitously) of your property; (2) to take effect Effect: 1. Rebuttable presumption of sanity is upon your death. nullified or swept away. 2. There is a rebuttable presumption of Note: Even if you are insane as to other things, as unsoundness of mind. long as you know these three (3) things, you have testamentary capacity. Art. 801. Supervening incapacity does 3. Insanity is relative. It is different in marriage not invalidate an effective will, nor is the will of and in contracts. But in wills, not knowing one or an incapable validated by the supervening of more of the 3 mentioned above, you are capacity. considered insane. Balane: This article makes explicit what was mentioned in Art. 800. The requirement is that Art. 800. The law presumes that every sanity should exist only at the time of execution. person is of sound mind, in the absence of Subsequent insanity does not affect the validity of proof to the contrary. the will nor an invalid will be validated by the The burden of proof that the testator recovery of the senses of the testator. was not of sound mind at the time of making his disposition is on the person who opposes the probate of the will; but if the testator, one Art. 802. A married woman may make a month, or less, before making his will was will without the consent of her husband, and publicly known to be insane, the person who without authority of the court. maintains the validity of the will must prove that the testator made it during a lucid interval. Art. 803. A married woman may Balane: This is the law on presumption of dispose by will of all her separate property as soundness of mind as of the time of the execution well as her share of the conjugal partnership of the will. or absolute community property. General rule: Presumption is for soundness of mind: proponent of will does not have to prove the Subsection 3: Forms of Wills soundness of mind of the testator. Why? The law on evidence says that you don't have to prove: (1) Balane: Kinds of Wills allowed under the NCC: that which is admitted; (2) that which is presumed; (1) ordinary or notarial will which requires an and (3) that which is taken judicial notice of. attestation clause, an acknowledgement before a Disputable presumptions may be overcome by notary public; (2) holographic will which must be proof to the contrary. There are 3 presumptions of entirely written, dated and signed in the law: (1) conclusive; (2) quasi-conclusive which handwriting of the testator. can be overcome only by specific proof; (3) disputable Q: How about Non-cupative Wills? A: They are not allowed by the NCC. This kind of Exception: Insanity is rebuttable presumed when: will is an oral will made by the testator in 1. Art. 800 par. 2: One month or less contemplation of death. This is allowed among before the making of the will, the testator was Muslims only. publicly known to be insane. E.g., A, one month before making of the will was running in the Plaza Common Requirements for both kinds of wills: Miranda naked and shouting "Ibagsak!" This is 1. It must be in writing what you mean by publicly known. 2. Executed in the language or dialect known to 2. If there had been a judicial declaration the testator. of insanity and before such order has been 9 revoked. (Torres v. Lopez, 48 P 772.) Q: What kind of language? Page A: It must be a language (a) spoken by a In these 2 cases, it is the proponent's duty substantial number of persons; (b) must have to offer evidence to the contrary, i.e., proves that hotjurist 2009 Succession been reduced to writing and (c) fairly substantive signed the will and all the pages thereof in the body of literature. presence of the testator and of one another. If the attestation clause is in a language Q: What is a dialect? not known to the witnesses, it shall be A: A dialect is a variation of tongue. interpreted to them. Balane: Art. 804. Every will must be in writing A. Fourth Paragraph: Know the language and executed in a language or dialect known to 1. Body of the will: testator the testator. 2. Attestation clause a. Testator: No. Balane: b. Witnesses: No. Only required Requirements: to know the contents thereof. 1. In writing but no specific form is required. It could be in a marble glass or on a wall, so long as B. Discrepancies there was testamentary capacity. 1. Par. 1: No mention that the testator 2. Written in a language or dialect known to the signs in the presence of witnesses and yet par. 3 testator. states this. 2. Par. 2: No statement that the testator Suroza v. Honrado: The issue here is and the witnesses must sign every page in one whether the will, which was written in English is another's presence and yet that is required to be valid. The SC ruled that it is not. The testatrix stated in the attestation clause. does not know English, being an Igorot and an 3. Par. 3: In case of agent, all it requires illiterate. Obviously, the will is void, because of is that the agent signed by his direction and not in non-compliance with Art. 804. In a will, can you his presence, but that is required in par. 1. conclude that it is void where in the attestation clause, it was stated that the will was read and C. Requisites for an ordinary attested will translated to Filipino? The law does not require (notarized will): Purpose of requisites: judgment translation nor interpretation of the language to the call of Code Commission; balancing of 2 policies: testator but that he himself personally understands (1) to encourage a person to make a will; (2) to the said language. make sure that the will is testament of the testator to minimize fraud. Q: Is it necessary for a will to state that the testator knew the language? 1. Signed by the testator or his agent in his A: No. Extrinsic/ testimonial evidence may prove presence and by his express direction at the this. end thereof and in the presence of the witnesses. Q: Is direct evidence always necessary to prove that the testator knew the language? a. Subscribe: literally means "to write A: No. Sometimes, circumstantial evidence is one's name." Sign means "to put a distinctive sufficient. E.g., a person with a college degree mark" (this is the better term to use.) does a will in English. Is it not enough that he studied 3 levels to prove that he understands b. Signing: by writing his own name; a English? person may sign in other ways (i) Matias v. Salud: The testator signed affixing her thumb mark on the will; this is Articles 805 to 809: Special Requirements for because he can no longer write due to sickness/ Attested Wills. disease called herpes zoster, cold, physical infirmity. Is this a sufficient signature? Yes. A thumb mark is a sufficient signature of the Art. 805. Every will, other than a testator. In fact, it is always and under any and holographic will, must be subscribed at the all circumstances a valid way to sign a will. end thereof by the testator himself or by the Reason: It is less possible to forge. A thumb mark testator's name written by some other person is always a valid way of signing whether literate or in his presence, and by his express direction, illiterate. However, there is also the danger of and attested and subscribed by three or more falsifying it by affixing the thumb of a newly dead credible witnesses in the presence of the person. testator and of one another. The testator or the person requested by Q: What if the testator has no disease but signed him to write his name and the instrumental in his thumb mark? witnesses of the will, shall also sign, as A: This will do because thumb mark is a sufficient aforesaid, each and every page thereof, except signature under all circumstances. the last, on the left margin, and all the pages shall be numbered correlatively in letters The controversy is that what if after the placed on the upper part of each page. testator affixed his thumb mark, another person The attestation shall state the number signed on her behalf. Attestation clause does not of pages used upon which the will is written, state this. I mean, it would not appear in the and the fact that the testator signed the will attestation clause. The SC said that the person and every page thereof, or caused some other signing on his behalf is not an agent and besides it person to write his name, under his express was already signed by the testator affixing his direction, in the presence of the instrumental thumb mark and to state this (the affixing of the witnesses, and that the latter witnessed and MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS thumb mark) in the attestation is a mere b. A signs while B is talking to C. surplusage. B can see A through peripheral vision. Is A signing in B's presence? YES (ii) Garcia v. de la Cuesta: c. A signs while B is talking to C Testator signed with a cross. Is this valid? No. with B's back to A. Is it signing in B's presence? This is so because such cross is easy to falsify. A YES. cross cannot be considered a signature. d. B goes out and stands behind General rule: A cross is unacceptable as the wall. He cannot see A. B is also talking to F. a signature. Is a signing in B's presence? NO. Exception: That is his normal way of signing. (ii) Nera v. Rimando: Actual seeing is not required. What is required is that the person c. Purpose: to authenticate the will required to be present must have been able to see the signing, if he wanted to do so, by casting his d. Where should the testator sign? At the eyes in the proper direction. His line of vision end of the will. must not be impeded by a wall or curtain. This is a question of fact for the lower court to determine. There are 2 kinds of ends: Blind witnesses are therefore disqualified. (i) Physical end: where the writing ends (ii) Logical end: that where testamentary 2. Attested and subscribed by at least three disposition ends. credible witnesses in the testator's presence Usually, they are the same. But if different, and of one another. then either will do. What if after the signature, some clauses follow? What is the effect of the a. Q: Can the testator sign first not in the said clauses to the will? If annuls or makes the witness' presence, and then let the witnesses whole void because of the non-compliance with sign? No. Art. 805 requires that the testator Art. 805. should sign at their presence (Vda. de Ramos case.) There is some inconsistency here but we e. Testator directs another to sign his have to follow Art. 805. name. (i) Four cases: Testator- A; Agent- B Q: Can the validity be affected if the witness a. "B" is not valid signed ahead of the testator? b. "A" handwritten "by B" A: No. Provided it is made in one occasion or typewritten is valid transaction. However, in strict theory, it cannot be c. "A" typewritten "by B" done because before the testator signed there is handwritten is not valid. no will at all which the witnesses can sign and d. "A" is valid attest to. If there is more than one transaction, then the testator must always sign ahead of the (ii) Cases: witnesses. a. Barut v. Cabacungan: Requirements: (1) agent must write the name of b. Attestation the testator by hand; (2) advisable if the agent Subscribing writes his name also. -visual act - man -witness b. Balonan v. Abellana: The -sign witness signed his name above the typewritten words "por la testadora Anacleta Abellana." The The three witnesses must do both SC held that the testator's name be written by the attesting and subscribing. agent signing in his stead in the place where he would have signed if he were able to do so. It is c. Where must witnesses sign? This is not required that the witness write the testator's name clear. in the testator's presence and under her express direction. Taboada v. Rosal: In this case, the witnesses signed at the left hand margin. (iii) The agent must sign where the Petitioner contended that they should have signed testator's signature should be. at the same place where the testator signed, that (iv) Purpose of the rules: to test the is, at the bottom of the end of the will. The SC authenticity of the agency. It is an added was liberal. The purpose of signing at the end is safeguard to minimize fraud. to prevent interpolation. The object of attestation and subscription which is for identification was met f. Testator must sign in the presence of when the witnesses signed at the left hand margin witnesses of the sole page which contained all the (i) Four cases: Testator: A; Witnesses: testamentary dispositions. (This concerned a 2- 11 B, C, D page will with the first page containing all the a. A signs with B breathing on her dispositions and the second page the attestation Page face. Is it signing in the presence of the testator? and acknowledgement.) The will was signed by YES. the witnesses at each and every page thereof. hotjurist 2009 Succession Literal requirement: witnesses must also (ii) The fact that the testator or his sign at the end/ last page agent signed the will in every page thereof in the In the case: as long as signed in the presence of the instrumental witnesses margin, OK (iii)That the instrumental Now: under or on margin, OK. witnesses witnessed and signed the will and all the pages thereof in the presence of the testator d. Can witnesses sign with thumb mark? and one another. (1) Some say Yes because it is only an act of authentication; (2) some say no because one b. Attestation clause is not a part of the requirement is that witnesses must know how to will proper because if contains no dispositions. It read and write which implies that the witness write is merely essential for the formal requirements of a his name. valid will. It is a statement of the witnesses. 3. The testator or agent must sign every page c. Where must witnesses sign? At the except the last on the left margin. bottom in order to prevent additions. a. Purpose: to prevent the disappearance Cagro v. Cagro: In the case, the page of the pages. where the attestation clause appears was signed b. "Every page except the last." Why not by the witnesses on the side and not after the the last? Because it will already be signed at the attestation clause. The SC held that this was a bottom. fatal defect. The logic is that if there had been no c. Left hand margin: requirement was signature at the bottom but on the sides, there will made when right hand was not justified when be ample room for fraud, that is, to add in the typed. attestation clause upon the death of the decedent d. Now, testator can sign anywhere in an essential matter which was not there in the first the page. place to validate it.; (i) Each page is signed and authenticated: mandatory d. Must the language of the will be (ii) Left margin: directory. understood or known by the witnesses? No. After all, witnesses need not know the contents of the 4. Witnesses must sign each and every page, will. except the last, on the left margin. Q: Is it required that the witnesses knew This is the same as number 3. the language of the attestation clause: Witnesses may sign anywhere as long as A: No. So long as it has been interpreted they sign to them. Icasiano v. Icasiano: In the will Q: Must the testator know the language of submitted for probate, one page was not signed by the attestation clause? one of the witnesses. Such failure to sign was due A: No. What is required of the testator is to inadvertence since in the copy, all pages were to know the language of the will. An express signed. The SC held that this was not a fatal requirement of Art. 804. defect. Considering the circumstances, the fact that the other requirement was complied with, and Reason for the above rules: In order to the notarial seal coincided with the third page minimize fraud. The very purpose of Art. 804 and during the sealing, then the will could be probated. 805. The law encourages not discourages will Unusual circumstances which existed in the case: making. Precisely because it wanted to (1) There was another copy encourage wills. It sets up safeguards to protect (2) Inadvertence/ oversight the will. (3) Because of the notarial seal. e. Must the testator sign the attestation The presence of these facts led the SC to clause? No. allow the will. The general rule, however, is that, the Abangan v. Abangan: This case failure to sign any page is a fatal defect. concerns a will that has only 2 pages. The first page contained the dispositions and was signed 5. All pages must be numbered in letters on by the testator and the witnesses at the bottom. the upper part of the page. The second page contained the attestation clause only and was signed by the witnesses at the a. Mandatory: there must be a method by bottom. From the case, we can learn 2 things: which the sequence of the pages can be known; to The first concerns the first page. Since it was prevent an insertion or taking out of a page. signed by the testator and the witnesses at the b. Directory bottom, then there is no need for them to sign at (i) Manner it is numbered- letters, the left margin. The second concerns the second numbers, Arabic, roman numerals, etc.; any page. Since it was already signed by the conventional sequence of symbols is allowed witnesses at the bottom of the attestation clause, (ii) Upper part then there is no need for them to sign on the margin. 6. Attestation Clause. Q: Must an attested will be dated? a. Three things that must be stated: (i) The number of pages in the will MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS A: No. Lack of date does not annul an attested (b) No. The testator must sign will. But a holographic will must be dated. (Art. before 3 witnesses. He cannot sign before himself. 810.) To be safe, do not let this happen. As the lawyer, be sure you have at least 3 witnesses. 7. Notarization: A will is a public instrument that is why it must notarized. Q2: Is there any particular order of signing? Art. 806. Every will must be A2: (a) No. As long as the signing is acknowledged before a notary public by the done on one occasion or one continuing testator and the witnesses. The notary public transaction. shall not be required to retain a copy of the (b) Yes. If the signing is not done will, or file another with the office of the Clerk on one occasion or transaction. In such a case, of Court. there is nothing that the witness is attesting to. Balane: 1. Cruz v. Villasor: This case involves a will wherein the notary public was also one of the Articles 807 and 808 are special additional three instrumental witnesses. Did the will comply requirements which are mandatory. with the requirement of 3 witnesses? No. The SC gave 2 reasons: (1) The notary public cannot be an oath witness and at the same time an oath Art. 807. If the testator be deaf, or a taker. It is impossible for him to acknowledge deaf-mute, he must personally read the will, if before himself; (2) The aim of the notary public to able to do so; otherwise, he shall designate insure the trustworthiness of the instrument would two persons to read it and communicate to be lost because he will try to insure the validity of him, in some practicable manner, the contents his own actions. thereof. General rule: The notary public cannot be Balane: This provision lists down a special a witness. requirement if a notarial will is executed by a deaf- Exception: When there are more than 3 mute testator. witnesses. In such a case, the requisite of 3 witnesses is achieved. 1. There are two cases contemplated: (1) If the testator can read, then he must read the will 2. Gabucan v. Manta: In the case, the notarial personally; (2) If illiterate, then 2 persons must acknowledgement of the will lacked a read the will and communicate to him the meaning documentary stamp. As such the judge in the of the will in some practicable manner. lower court denied probate. Does the absence of the documentary stamp invalidate the will? No. 2. The law is not clear if the 2 persons reading it The absence of the documentary stamp does not to him would do it separately or in consonance. affect the validity of the will. Its only effect is to prevent it from being presented as evidence. The 3. These additional requirements are mandatory solution is to buy a documentary stamp and attach by perfect analogy to the case of Garcia v. it to the will. Vasquez. 3. Javellana v. Ledesma: The case deals with the question of whether or not the Art. 808. If the testator is blind, the will acknowledgement of the will should be done on shall be read to him twice; once, by one of the the same occasion as the execution of the will. subscribing witnesses, and again, by the The SC said no. The law does not require that notary public before whom the will is execution and acknowledgement be done on the acknowledged. same occasion. Acknowledgement may be validly done after execution. In fact, the testator and the Balane: witnesses do not have to acknowledge together. 1. If the testator is blind, the will must be read to You can acknowledge one by one. The law does him twice: (1) by one of the subscribing not require it to be made simultaneously. As long witnesses; and (2) by the notary public, not as the testator maintains his testamentary capacity necessarily in that order. and the witnesses maintain their witnessing capacity until the last person acknowledges, then 2. A. Is the provision mandatory? Yes. If the will is valid. However, if the testator dies this is not followed, the will is void. (Garcia v. before the last person acknowledges, then the will Vasquez.) is not valid. The will is considered as being In the case, the will was read to the unacknowledged. testator only once. The SC denied probate of the will for failing to comply with the requirements of 13 4. Questions. Art. 808. Such failure is a formal defect. Q1: Can a witness be an agent who will Page sign for the testator? B. Can this be presumed? No. A1: (a) Yes. There is no prohibition. C. Can this be proven to have been complied with by competent evidence? Yes. In hotjurist 2009 Succession the absence of which the will is void. Such fact or yourself, but in attested will, you need at least four reading must be proven by evidence during the (4) other people. probate proceedings. 2. It may not express testator's wishes due to faulty expression 3. Purpose: The reading is mandatory for the 3. No protection against causes vitiating purpose of making known to the testator the consent because there are no witnesses- danger provision of the will so that he may object if it is not is higher. in accordance with his wishes. 4. Does not reveal testamentary capacity of testator due to lack of witnesses. 5. Easier to conceal than an attested will: Art. 809. In the absence of bad faith, you can allege that no will was made. forgery, or fraud, or undue and improper 6. Generally, danger of ambiguity is pressure and influence, defects and greater than in attested wills: because testator is imperfections in the form of attestation or in not a lawyer, he may not understand technical and the language used therein shall not render the legal words. In attested will, the testator is will invalid if it is proved that the will was in assisted by a lawyer. fact executed and attested in substantial compliance with all the requirements of article JBL Reyes opines that the disadvantages 805. outweigh the advantages. He suggested a middle ground, a mystic will (testamento cerrado.) It is Balane: This is a liberalization rule, an attempt to not as strict as a notarial will, but not as fraught liberalize Articles 804 to 808. Substantial with risks as a holographic will. This kind of will is compliance with Articles 805 and 806 will validate sealed in an envelope and brought to the notary the will despite some defects in the attestation who puts his seal and signs to authenticate, and it clause. will be opened only upon the death of the testator. Looking at Art. 809, you get the This kind of will minimizes the risk of fraud and impression of utmost liberalization. We cannot protects the privacy of the testator. determine how liberal we can be or can we go. This article does not give a clear rule. JBL Reyes B. Real Requirements: MANDATORY: must be and Tolentino suggest that you make a distinction. by the hand of the testator himself. Guide: If the defect is something that can be remedied by the visual examination of the will 1. Written entirely by the testator itself, liberalize. If not, then you have to be strict. E.g., (a) If partly by the testator and Illustration: If in an attestation clause, the number partly by another person, VOID of pages used was not stated, then you can (b) If another person wrote an liberalize because by examining the will itself, you additional part without knowledge of the testator, can detect the defect. This is because the the will is VALID but the addition is VOID. pagination of statement in the attestation clause is (c) If another person wrote an merely a double check. additional part with the knowledge of the testator, If the attestation clause failed to state that VOID. "the testator signed in the presence of witnesses," and this cannot be remedied by visual examination 2. Dated of the will, then you need to be strict. Suggested amendment of the law: "If a. (1) Roxas v. de Jesus: On the such defect and imperfections can be supplied by will, the date was written as "February/ 61." Is it examination of the will itself and it is proved." valid? Yes. General rule: Day, month and year must be indicated. Articles 810 to 814: Provisions on Holographic Exception: When there is no appearance Wills. of fraud, bad faith, undue influence, and pressure and the authenticity of the will is established, and Art. 810. A person may execute a the only issue is whether or not "February/61" is holographic will which must be entirely valid, then it should be allowed under the principle written, dated, and signed by the hand of the of substantial compliance. testator himself. It is subject to no other form, and may be made in or out of the Philippines, COMMENT: I am not happy with the decision and need not be witnessed. because the period covers one whole month. One of the purposes is to know when it was executed, Balane: especially in the cases where there are other wills. A. Advantages: Example, another will dated February, 17/ 61. As 1. Cheaper, simple, easier to revise, no such, it is dangerous to say that "February/61" is notary public needed sufficient. 2. Absolute secrecy is guaranteed- only you, the father and the members of the family will (2) Labrador v. Ca: In this case, know its contents. the date was indicated in the body of the will as part of the narration. Is this valid? Yes. It is not Disadvantages: necessary that the will be separate from the body. 1. Precisely because it guarantees In fact, it can be anywhere in the will as long as secrecy and is simpler, it is also easier to falsify- the date appears in the will. less people you need to collude with- only MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS b. If the date is proven wrong, then its handwriting by showing your bloody test papers. validity depends on whether the error is deliberate (Balane.) or not. If deliberate, the will is considered not dated and the will is void. If not deliberate, the Exception: If there is an existing copy or date will be considered as the true date. duplicate photostatic xerox. Rodelas v. Aranza: In the case, the c. Date is usually written by putting the proponent of the will sought to present a copy of day, month, and year. However, other ways may the holographic will to the court. The court be adopted such as "Christmas day of 1995." allowed the production of the copy. The basis of this acceptance is the footnote no. 8 in the case of 3. Signature: Commentators have said Gan v. Yan where the court said that "perhaps if a that the signature must consist of the testator's photostatic copy is presented..." writing his name down. The reason for this is The merit of the Rodelas case is doubtful. since he is able to write his will, then he is literate Authenticity of the will is based on the handwriting enough to write his name. and the signature. Handwriting experts use as bases the penlifts of the writer. In photocopies, penlifts are not discernible and so the experts are C. 1. Are holographic wills in letters allowed? deprived of their basis in determining the Yes, provided there is an intent on the part of the authenticity of the will. testator to dispose of the property in the letters and the 3 requisites are present. b. Lost holographic wills cannot be E.g., "I give you 1/2 of my estate as probated even by the testimonies of the witnesses. provided for in the document I kept in the safe." The reason is that the will itself is the only proof of This is a holographic will because the letter does its authenticity. not in itself dispose of the property. 2. Testimonial Requirement 2. Can a blind testator make a a. Uncontested will: only one witness to holographic will? Yes. There is no form required. identify the signature and handwriting of the What is important is the presence of the 3 testator. requisites. b. Contested will: three witnesses to identify the signature and handwriting of the testator. Art. 811. In the probate of a holographic Azaola v. Singson: In the case, the will, it shall be necessary that at least one oppossitors of the will contested the will on the witness who knows the handwriting and ground that it was executed through fraud. They, signature of the testator explicitly declare that however, admitted its due execution. During the the will and the signature are in the case, the proponent presented only one witness to handwriting of the testator. If the will is identify the signature and handwriting of the contested, at least three of such witnesses testator. Is one witness sufficient considering shall be required. there is an oppossitor to the will? In the absence of any competent Yes. The SC held that one witness is witness referred to in the preceding paragraph, sufficient. What the law envisions is that the and if the court deems it necessary, expert genuineness of the handwriting and signature be testimony may be resorted to. contested. Contested holographic will refers to the challenge by the oppossitors that the will is not in Balane: the handwriting of the deceased. The oppossitors Requirements in the Probate of Holographic in this case did not challenge the handwriting of Wills: the deceased. Their ground for opposing probate is that the will was executed through fraud and 1. Documentary Requirement improper and undue influence. Hence, the probate required only one witness. a. General rule: The will itself must be The authenticity of the will is not presented. contested. Therefore, the will itself, not being Gan v. Yap: In the case, the proponent of contested was that of the testator. The the supposed will sought to establish its contents oppossitors here precisely admit that authenticity through extrinsic evidence. The SC denied such of the will but oppose on the ground that there is attempt to probate a holographic will that was not fraud or undue influence initiated upon her in the presented before the court. The SC said that the execution of the will. Hence, it is uncontested. actual will should be presented to the court. The Obiter dictum: The three witness reason is that the will itself is the only material provision for contested holographic will is merely proof of authenticity. How can they oppose the directory. The court upon satisfying itself of the will if the will is not there? authenticity of the will can require one or ten E.g., You are presented in the probate witnesses. The judge knows best. The second 15 court the bloody test papers of "A" in Civil Law, paragraph of Art. 811 gives the court discretion, just to show the handwriting of "A", but you do not hence the directory effect of the Art: (a) it is a Page have the will. How will you compare when you do matter of quality and not quantity; (b) to require 3 not have any will to be compared. But if the will is witnesses, makes it worse than treason, which there, I would be the first one to prove your requires only 2 witnesses. hotjurist 2009 Succession Which is better? One who testify but with Q: How do we make a change in a notarial unquestioned credibility or 20 AVSECOM will? witnesses? So do not rely on the quantity. The A: There is no provision of law dealing on this. case of Azaola is merely a guide and interprets The ordinary rules of evidence will apply. To Art. 811 for us. It is not mandatory. It always prove change, the testator should affix either his depends on the judge. signature or initials. The best way, however, is to have the testator and notary public sign. Art. 812. In holographic wills, the dispositions of the testator written below his Articles 815 to 817: Laws which govern formal signature must be dated and signed by him in execution order to make them valid as testamentary According to the place of execution. dispositions. Art. 815. When a Filipino is in a foreign Balane: To authenticate additional dispositions, country, he is authorized to make a will in any the same must be signed and dated by the of the forms established by the law of the testator. country in which he may be. Such will may be probated in the Philippines. Art. 813. When a number of dispositions appearing in a holographic will Art. 816. The will of an alien who is are signed without being dated, and the last abroad produces effect in the Philippines if disposition has a signature and date, such made with the formalities prescribed by the date validates the dispositions preceding it, law of the place in which he resides, or whatever is the time of prior dispositions. according to the formalities observed in his country, or in conformity with those which this Balane: If a will has several additions, the testator Code prescribes. has two options: (1) Sign each disposition and sign and date the last; or Art. 817. A will made in the Philippines (2) Sign and date each one of the by a citizen or subject of another country, additions. 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 Art. 814. In case of any insertion, allowed by the law of his own country, shall cancellation, erasure or alteration in a have the same effect as if executed according holographic will, the testator must authenticate to the laws of the Philippines. the same by his full signature. Balane: Insertion, Cancellation, Erasure, or Balane: Alteration: Authenticate by "full signature," that 1. Four combinations as to situation: is, in the manner the testator usually signs his a. Filipino makes a will here name. b. Filipino makes a will abroad. c. Foreigner makes a will here. Kalaw v. Relova: In the case, there were d. Foreigner makes a will abroad. 2 alterations. In the first alteration, the name of Rosa as sole heir was crossed out and Gregorio's 2. What law governs the validity of will? name was inserted. In the second alteration, the a. Intrinsic: The national law of the testator name of Rosa as executor was crossed out and b. Time: At the time of death. Gregorio's name was inserted. The second c. Place: The same for Filipinos and alteration was initialed. Are the alterations valid? aliens. The same rule wherever you make your No. will. You have five (5) choices- the law of Alteration 1: Not signed, thus, not valid. 1. The testator's citizenship Alteration 2: Initialed, thus, not valid; it 2. Testator's domicile must be full signature. 3. Place of execution Gregorio cannot inherit as a sole heir 4. Testator's residence because it was not authenticated. Rosa cannot 5. Philippines. inherit as sole heir because her name was crossed out. This indicated a change of mind on Example, an Argentine citizen, domiciled in the part of the testator. The SC held that a France, residing in Belgium visiting the change done by cancellation and putting in a new Philippines. In Japan, he executed a will. He may name, without the full signature, is not valid. As choose among the five (5) places as to what law such, the probate is denied and they both inherit shall govern the formal requirements of his will. by intestacy. If Ruben executed a will in Makati, he will Balane: Rosa should inherit as sole heir. have to follow Philippine law because all the The cancellation was not done properly since it choices points to that only. was not signed. The effect is as if the cancellation was not done. If the testator wants to change his mind, he should reflect it in the proper way. Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS either for their reciprocal benefit or for the Subsection 4: Witnesses to Wills. benefit of a third person. Art. 820. Any person of sound mind and of the age of eighteen years or more, and Balane: not blind, deaf or dumb, and able to read and 1. Definitions: (a) A joint will is one document write, may be a witness to the execution of a which serves as the will of 2 persons; this is will mentioned in article 805 of this Code. prohibited; (b) A reciprocal will involves 2 instruments reciprocally making each other heir; this is not prohibited. Art. 821. The following are disqualified from being witnesses to a will: 2. Elements of a Joint Will: (a) one single (1) Any person not domiciled in the instrument; (b) it is the will of 2 or more persons. Philippines; (2) Those who have been convicted of 3. Q: Why are Joint Wills Prohibited? falsification of a document, perjury or false A: (a) It encourages undue influence, murder, testimony. or attempt to kill the other because generally, joint wills benefit each other. Balane: Articles 820 and 821 may be taken (b) It runs counter to the idea that wills are together. These provisions are applicable only to revocable. It makes revocation more difficult. attested wills and not to holographic wills. E.g., tearing it up- destroys the will of another. (c) It undermines the personal element of Six Qualifications of Witnesses to Wills or a will: It becomes a multiple will. Requisites for Competence to be a Witness: 4. Examples: a. Sound Mind: Ability to comprehend a. One sheet of paper. On each side is a what he is doing, same as soundness of mind for will of one person. Is it valid? Yes, because there contracts. are 2 documents. b. At least 18 yrs or over: Computed b. One sheet of paper. On the front page, according to the calendar year. on the upper half is a will of A. On the bottom half c. Not blind, deaf and mute/ dumb: This is is the will of B. Is it valid? Yes. This is not a joint important because these are the three senses you will because there are still 2 documents. use for witnessing. d. Able to read and write: Literate. Some 4. In Germany, joint wills are allowed only if commentators say thumb mark is not sufficient for executed by the spouses. witnesses; he has to affix his signature. e. He must be domiciled in the Philippines. 5. The presumption is that wills are valid. The fault probably is in the wording of the law. Joint Q: If a will is executed abroad in a place will- one instrument. What the law prohibits is not where there is no one domiciled in the Philippines 2 wills on the same sheet of paper but joint wills. although there are Filipino citizens not domiciled in the Philippines, does domicile requirement still apply? Art. 819. Wills, prohibited by the A: There are two answers for all theory preceding article, executed by Filipinos in a 1. Yes because the law does not foreign country shall not be valid in the distinguish Philippines, even though authorized by the 2. No, there is an implied laws of the country where they may have been qualification: The rule applies in wills executed in executed. the Philippines. To be practical, there are two Balane: solutions: 1. This provision is an exception to the rule 1. You have 5 choices as to enunciated in Articles 815 to 817 that for Filipinos, which law governs. Choose any. as long as the will is valid in the place of 2. Just execute a holographic will. execution, then it is valid in the Philippines. f. He must not have been convicted of 2. Filipinos, whether here or abroad, cannot falsification of document, perjury or false execute joint wills. It is against public policy. testimony. 3. Can aliens execute joint wills? Q: Why not rape? a. If executed in the country where it is A: Because chastity has nothing to do with allowed, YES, it may be probated here. truthfulness. Truthfulness is the gauge. b. If made here and their country allows them to do this? There are 2 views on this: 17 (i) Yes, follow the personal law. Gonzales v. CA: In the case, the (ii) No because it is against public oppossitor of the probate alleged that the will Page policy. cannot be probated because the proponent was not able to prove that the 3 witnesses were credible. She claims that Art. 805 requires that hotjurist 2009 Succession witnesses must be credible as shown in the 1. Yes. Because for each evidence of record. Is the oppossitor correct? No. of them, there are three other witnesses. (Liberal Under the law, there is no mandatory requirement view.) that the proponent of the will prove the credibility 2. No. Because this is an of the witnesses to the will. Such credibility is obvious circumvention of Art. 823. Art. 823 has for presumed. However, the oppossitor may prove its purpose the prevention of collusion. (Strict otherwise by presenting evidence. The SC also view.) said that credibility is determined by the manner the witness testifies in court. In other words, credibility depends on how much the court Art. 824. A mere charge on the estate appreciates and believes his testimony. Social of the testator for the payment of debts due at standing or financial position has nothing to do the time of the testator's death does not with a witness' credibility. Lastly, the SC said that prevent his creditors from being competent competency and credibility are different. A witnesses to his will. witness to a will is competent if he has all the qualifications and none of the disqualifications to be a witness while credibility depends on the Subsection 5: Codicils and Incorporation by appreciation of the court of the testimony of the Reference. witness. Art. 825. A codicil is a supplement or Art. 822. If the witnesses attesting the addition to a will, made after the execution of a execution of a will are competent at the time of will and annexed to be taken as a part thereof, attesting, their becoming subsequently by which any disposition made in the original incompetent shall not prevent the allowance of will is explained, added to, or altered. the will. Balane: Balane: Competency or capacity to be a witness: E.g., In a will, "I give my car to A, July 2, 1995." (1) is determined at the time of witnessing; (2) Because I want to specify which of my cars, I must have the six qualifications. In effect, this is make a will stating "In my will of July 2, 1995, I the same rule in testamentary capacity. gave a car to A. I want to clarify that I am giving him my BMW with plate number ......." Art. 823. If a person attests the Q: When is a subsequent document a codicil and execution of a will, to whom or to whose when is it another will? spouse, or parent, or child, a devise or legacy A: 1. It is a codicil when it explains, adds to, is given by such will, such devise or legacy or alters a provision in a prior will. shall, so far only as concerns such person, or 2. It is another will if it makes an spouse, or parent, or child of such person, or independent disposition. any one claiming under such person or E.g., June 1, 1995, "I give my car to A." spouse, or parent, or child, be void, unless July 1, 1995, "I give my house to there are three other competent witnesses to B". This is a second will. such will. However, such person so attesting shall be admitted as a witness as if such Four Questions: devise or legacy had not been made or given. 1. If original will is attested, can you make an attested codicil? Balane: This is a misplaced provision. It should 2. If original will is attested, can you make a not be put here but on the section on the holographic codicil? disqualification to inherit. It does not tell us that it 3. If original will is holographic, can you make a incapacitates a witness. It tells us of the holographic codicil? incapacity of a witness to succeed. 4. If the original will is holographic, can you make an attested codicil? General rule: Witness, his spouse, parent, child, or person claiming under any of them cannot A: Yes to all. The form of a codicil does not have inherit. to conform to the form of the will. A will does not Exception: There are three other impose its form on the codicil. As long as the witnesses to the will. codicil complies with the form of wills, it is valid. (Art. 826.) E.g.: (a) Testator A, Witnesses B, C, D. It is presumed that they are all qualified to be witnesses. A, in a will, makes legacy to B, giving Art. 826. In order that a codicil may be him a car. Does it disqualify B to be a witness? effective, it shall be executed as in the case of No, it disqualifies B to inherit. The legacy is void. a will. (b) If there were 4 witnesses. The legacy is given to B. Is the legacy valid? Yes, because Balane: Whether you call the second document a there are 3 other witnesses. will or a codicil does not really matter. It is all (c) If there are four witnesses, each one is theoretical. It is only a matter of terminologies. given a devise or legacy. They both require the formal requisites of a will. (i) Are they competent to be witnesses? Yes. (ii) Are requests to them valid? There are 2 views: MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Art. 827. If a will, executed as required Art. 828. A will may be revoked by the by this Code, incorporates into itself by testator at any time before his death. Any reference any document or paper, such waiver or restriction of this right is void. document or paper shall not be considered a part of the will unless the following requisites Balane: One of the characteristics of a will is that are present: it is ambulatory. It is not fixed, it is revocable. (1) The document or paper referred to Revocability is an essential requisite of a will. So in the will must be in existence at the time of any waiver or restriction of this right is void. There the execution of the will; are no exceptions to this rule. (2) The will must clearly describe and identify the same, stating among other things Q: Can the testator make a will irrevocable? the number of pages thereof; A: No. As long as he is alive, he can revoke will (3) It must be identified by clear and at pleasure. Distinguish this from a donation inter satisfactory proof as the document or paper vivos which cannot be revoked at pleasure by the referred to therein; and donor. (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of Art. 829. A revocation done outside the account or inventories. Philippines, by a person who does not have his domicile in this country, is valid when it is Balane: done according to the law of the place where Q: What do you incorporate? the will was made, or according to the law of A: Generally, the documents that clarify provisions the place in which the testator had his domicile in the will to which it is attached. E.g., inventories, at the time; and if the revocation takes place in sketches, books of account. this country, when it is in accordance with the provisions of this Code. Q: Can a document contain any testamentary disposition? Why? Balane: This article is incomplete. It does not A: No. Because they do not conform to the cover all situations. requirements of wills. Q: How do you revoke? What law governs Requisites for Incorporation by Reference: revocation? A: It depends where the revocation is made: 1. Document must pre-exist the will. It 1. If done outside the Philippines: must be in existence when the will is made. a. If the testator is not domiciled in 2. The will must refer to the document, the Philippines: stating among other things the number of pages of (i) The law of the place where the document. the will was made 3. The document must be identified (ii) The law of the place where during the probate of the will as the document the testator was domiciled at the referred to in the will. time of the revocation 4. It must be signed by the testator and the witnesses on each and every page, except in b. If the testator is domiciled in the case of voluminous books of accounts or Philippines: inventories. (i) Philippine law because his domicile is here. Q: Can a document be incorporated in a (ii) Law of the place of holographic will considering that the attached revocation because of Art. 17, document must be signed by witnesses and that NCC. the holographic will has no witnesses? 2. If done inside the Philippines, follow A: There are 2 views: Philippine law. (a) Yes. Witnesses referred to by law should be taken to mean only if there are witnesses to the will. There is no specification in Art. 830. No will shall be revoked the law. except in the following cases: (b) No. The fourth requisite presupposes (1) By implication of law; or there were witnesses. It seems to cover only (2) By some will, codicil, or other attested wills. writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some 19 other person in his presence, and by his Subsection 6. Revocation of Wills and express direction. If burned, torn, cancelled, Page Testamentary Dispositions. or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate hotjurist 2009 Succession distributed in accordance therewith, if its Examples: contents, and due execution, and the fact of its a. A blind testator asked his nurse to give unauthorized destruction, cancellation, or him his will. The nurse gave him his old letters. obliteration are established according to the The testator thinking it is his will, threw it into the Rules of Court. fire. In this case, there is animus but no corpus. Revocation is ineffective. Balane: Three Ways of Revoking a Will: b. I threw my civil law exams. But it turned out it was my will. Revocation is not valid. There 1. By Implication of Law. is no animus or intent to revoke. a. Art. 1032: Unworthiness to succeed, Notes: e.g., "I" instituted "P" as heiress, after which she 1. How much destruction of the corpus do killed my parents. The will instituting her as you need? You need the physical destruction of heiress is revoked by implication of law. the will itself. Does it mean total destruction of the will, so that nothing will be left? No. As long as b. Art. 957: Deals with the devise or there is evidence of physical destruction, like let us legacy: transformation of the property by the say, edges were burned. If only the cover was testator, e.g., If "I" converted to a subdivision the burned, there is no revocation- no corpus. If the fishpond which "I" gave to "T" as devise. destruction was not total, there is still revocation, as long as there is/ was evidence of the c. Art. 106: Legal separation. The guilty destruction of the will, the destruction need not be spouse, who gave the ground for legal separation, total. will not inherit and anything given to her is impliedly taken away by law. 2. A man cannot revoke the will effectively because of insanity. d. Art. 854: Preterition annuls the institution of heirs. 3. In case of tearing, there must be intent to revoke. That is, the testator had completed 2. By Subsequent Instrument, Will or Codicil: what he intended to be done. If in the act of a. Requisites: tearing, the testator was dissuaded not to 1. Capacity to revoke: Insane continue, is there revocation? No, because the persons cannot revoke. testator was not able to do what he intended to be 2. Revoking instrument, will or done. codicil must be valid. E.g., If the testator tore the will into 2, and 3. Revoking instrument, will or when he was about to tear it into quarters, the heir codicil must contain either a revoking clause asked for his forgiveness. The testator said: "Just (express) or be incompatible (implied). paste the will." Is there revocation? None. There 4. Revoking will must be probated is no animus because he was not able to complete because without probating, it cannot have the what he intended to do. effect of revocation. 4. If the testator totally destroyed the will b. Such revocation may either be: and he changed his mind, Is there revocation? 1. Express: Contains an express Yes. The act was already consummated. His revocatory clause remedy is to execute another will. 2. Implied: Provisions of subsequent will are incompatible with the Maloto v. CA: In the case, the estate was provisions of the prior will. It may either be: distributed equally by intestacy between the 4 (i) total when all the provisions are incompatible; heirs. Subsequently, a will was found. In the will, (ii) partial when only some provisions are more was given to 2 of the heirs. As such, the 2 incompatible. who got more sought the probate of the will. The other 2 objected claiming that the will had been 3. By physical Destruction: This is the most revoked. The issue is whether or not there had unlimited way of revocation because it covers any been a valid revocation. The SC held no. While act of physical destruction. It is not an exclusive there may have been intent to revoke, there was list but more or less covers everything. no corpus. There is no evidence to show that what was revoked was the will of the testator. Elements: Also, the destruction was not proven to have been a. Corpus: Act of destruction- completion done in the presence and under the expression of of intent- all acts needed to revoke have been the testator. done. Gago v. Mamuyac: Where the will cannot be located at the time of the death of the testator but was shown to have been in the possession or Q: Must it be total destruction? control of the testator when last seen, the A: No. As long as evidence on the face presumption is that in the absence of competent of the will shows act to revoke. evidence to the contrary, the will was cancelled or destroyed by the testator. The rationale is that it is b. Animus: Intent and capacity to revoke. hard to prove the act of revocation of the testator. The presumption is disputable. Both elements must concur. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Q: In the case, what if the will was not seen in the possession of the testator? Will there Balane: be the same presumption of revocation? Is this article violative of the right to revoke, even A: The case does not say so. But by without reason? No. The testator need not have analogy, yes. The SC, however, had not gone this a reason to revoke his will. He may revoke it far. capriciously or whimsically at pleasure. But if the revocation is due to mistake or is based on some cause and such cause was later proven to be Art. 831. Subsequent wills which do false, then the revocation is void because all not revoke the previous ones in an express transactions based on mistake are vitiated, that is, manner, annul only such dispositions in the you are acting on a false cause of facts. The prior wills as are inconsistent with or contrary cause, however, must be stated in the will. This to those contained in the latter wills. shows respect for the freedom of the testator to revoke, that his real intent be followed. Balane: This is included as an element in E.g., a. Based on fact (kind of dependent revocation by subsequent instrument. relative revocation because he would revoke only if his information is true.)—I instituted "C" as my heir. Later, I heard that it was "C" who killed my Art. 832. A revocation made in a brother in Davao. So, I revoked my will. But it subsequent will shall take effect, even if the turned out that "C" did not do it. Revocation new will should become inoperative by reason therefore is void. of the incapacity of the heirs, devisees or b. Based on impression: I give my legatees designated therein, or by their car to "B" who is from Manila. I revoke my renunciation. designation of "B" because I have just found out that she is from Quezon and I hate people from Balane: General Rule: Doctrine of Absolute Quezon because they are arrogant and Revocation: The revocation of a prior will by obnoxious. Is the revocation valid? Yes. means of a subsequent will is absolute. Such Because the revocation is based on impression or revocation does not depend on: is out of caprice, prejudice, or unfounded ethnic 1. Capacity of heirs, devisees, and opinion. legatees in the 2nd will; or 2. On their acceptance. Elements for Revocation to be Inoperative: The revocation will be operative even the heirs, devisees, or legatees named in the revoking a. Cause must be a concrete and a factual one; will are disqualified or they renounce. b. Cause must be false; E.g., Will 1: "I give my house and lot to c. Testator must not know of its falsity; A." (1995) d. It appears on the face of the will that the testator Will 2: "I give my house to B and is revoking because of the false cause. hereby revoke my first will." (1997) Suppose, upon the testator's death, B renounces or is incapacitated, what is the effect? Art. 834. The recognition of an The institution of A is still revoked. House and lot illegitimate child does not lose its legal effect, will go by intestacy. The first will not be revived by even though the will wherein it was made the reason of the inoperation of the revoking will should be revoked. due to its renunciation or the incapacity of heirs, devisees, or legatees in it. The rationale is that Balane: This provision is particularly true under the second will was valid except that it was the NCC before the enactment of the FC. One of rendered inoperative. the modes of recognition was by a will. Even if the will is revoked, recognition is Exception: Doctrine of Dependent Relative valid. Revocation: Revocation of the first will is made by Recognition is irrevocable. Why? the testator to be dependent on the capacity and Because it is not a testamentary act but an act acceptance of the heirs, devisees, and legatees of which under the law admits a relationship of the subsequent will. How do you know? The paternity. testator said so in the will. The same rule is still applicable under the E.g., Will 1: "I give my car to A." (1995). FC. Will 2: "I give my car to B. Such legacy is dependent upon the capacity and acceptance of B." (1997). Subsection 7: Republication and Revival of The institution of B is conditional. Wills. Primary institution- B; Secondary institution- A. 21 Art. 835. The testator cannot republish, without reproducing in a subsequent will, the Page Art. 833. A revocation of a will based dispositions contained in a previous one on a false cause or an illegal cause is null and which is void as to its form. void. . hotjurist 2009 Succession Art. 836. The execution of a codicil B. Applies only when revocation of will 1 by will 2 referring to a previous will has the effect of is express. republishing the will as modified by the codicil. By contrary implication, if revocation of will 1 by will 2 is implied, then revocation of will 2 by Balane: will 3 will revive will 1 except if will 3 is Art. 835 is derived from Argentine Code. If you incompatible with will 1. In such cases, Art. 837 want to revive a will which is void as to its form, does not apply. you must republish the will and just cannot refer to it. Example, Attested will with just 2 witnesses. You discovered the mistake later on. You cannot Subsection 8: Allowance and Disallowance of just republish it. You have to write it all over Wills. again. On the other hand, Art. 836 is derived from the California code. The mere reference to a Art. 838. No will shall pass either real previous will, will revive it or personal property unless it is proved and Result of the two articles: Chaos! allowed in accordance with the Rules of Court. The testator himself ma, during his How to reconcile? Look at Tolentino. lifetime, petition the court having jurisdiction Art. 835 explicitly refers to wills void as to for the allowance of his will. In such case, the form. Cause of the nullity is the defect in the form. pertinent provisions of the Rules of Court for You must reproduce the dispositions in a the allowance of wills after the testator's death subsequent will. shall govern. Art. 836 applies if the reason of nullity is The Supreme Court shall formulate other than defective form, e.g., Underage testator, such additional Rules of Court as may be fraud, under duress. You may republish or refer to necessary for the allowance of wills on petition the will. E.g., "I hereby republish and revive my of the testator. will of Oct. 15, 1995..." Said republication was Subject to the right of appeal, the made after the discovery of the reason of the allowance of the will, either during the lifetime nullity. of the testator or after his death, shall be conclusive as to its due execution. Art. 837. If after making a will, the Balane: Probate is mandatory. testator makes a second will expressly revoking the first, the revocation of the second There are 2 kinds of probate: will does not revive the first will, which can be (a) ante-mortem at the instance of the testator; revived only by another will or codicil. (b) post-mortem at the instance of any interested party. Balane: Effect: It is subject to appeal but once A. This provision is crazy!!! final, it becomes conclusive or res judicata as to its due execution and testamentary capacity of the Situation: "X" makes a will in 1993 (Will 1) testator. (extrinsic validity.) "X" makes a will in 1994 expressly revoking will 1. (Will 2) Advantages of Ante-mortem Probate: "X" makes a will in 1995 revoking will 2. (Will 3) 1. It eases the mind of the testator. 2. There is opportunity to change. Revocation Instanter- instantly 3. You can prove the capacity of the testator. Will 1 is not revived because its revocation was instant. Exception: 1. Will 3 expressly revives Will 1. Disadvantage of Ante-mortem Probate: 2. Will 3 reproduces provisions otios- superfluous, futile. Why? Because the of Will 1. testator can easily make a subsequent will revoking it. So unless the testator is very sure, it Why crazy? Because this is contrary to might be useless to have an ante-mortem probate. established principles in succession. The issue in probate is the extrinsic or formal Succession Principle validity of the will. Art. 837 General rule: Intrinsic or substantive 1. Will takes effect upon death. validity is not in issue. 1. Gives the will 2 effects ante mortem, even if the Exception: There is an intrinsic defect on testator is still alive. It makes the will operative the face of the will. even if the testator is alive. Nepomoceno v. CA: In the case, the 2. Revocability of wills. testator left his entire estate to his legal wife and 2. Makes it irrevocable. children but devised the free portion to his common-law wife. When the common-law wife MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS sought the probate of the will, the CA declared the (5) If the signature of the testator was will valid, but held the devise to the common-law procured by fraud; wife null and void for being contrary to Art. 739 of (6) If the testator acted by mistake or the NCC. In effect, the court ruled on the intrinsic did not intend that the instrument he signed validity of the will in the probate proceedings. Was should be his will at the time of affixing his the holding of the CA correct? The SC held that it signature thereto. was correct. Although the general rule is that only extrinsic validity could be at issue during the probate, this rule is not absolute. Given Balane: exceptional circumstances, the probate court may This enumeration is exclusive. They either make do what the situation constrains it to do by passing the will void or valid. There is no such thing as a upon certain provisions of the will. Clearly, the voidable will. devise for the common-law wife was void. The CA had the authority to rule on such nullity. It would 1. Formalities: Art. 805 et seq. be practical for the court to rule on such an 2. Insanity: Art. 799 obvious matter. Otherwise, the probate might 3. Force: violence- Art. 1335 par. 1 become an idle ceremony if on its face it appears Duress- intimidation- Art. 1335 par. 2 to be intrinsically void. 4. Undue and Improper pressure and influence: Art. 1337. 5. Fraud: Art. 1338. Gallanosa v. Arcangel: Probate are 6. Mistake: Art. 1331. proceedings in rem and are mandatory. If the probate is allowed, it becomes conclusive as to its extrinsic validity which provides that: Section 2: Institution of Heir. 1. The testator was of sound mind when he executed the will. 2. The testator was not acting under Art. 840. Institution of heir is an act by duress or fraud- his consent was not vitiated. virtue of which a testator designates in his will 3. The will was executed in accordance the person or persons who are to succeed him with the formalities required by law. in his property and transmissible rights and 4. The will is genuine and not a forgery. obligations. Q: What if after the probate court becomes final a Balane: The rules on institution of heir also apply person was charged with forgery of the will, can he to devisees and legatees. can he be convicted? A: No, the probate is conclusive as to the will's genuineness even against the state. Art. 841. A will shall be valid even though it should contain an institution of an heir, or such institution should not comprise De la Cerna v. Rebeca-Potot: This case the entire estate, and even though the person involves a joint will executed by a husband and a so instituted should not accept the inheritance wife. The husband died before the wife and the or should be incapacitated to succeed. will was probated. Now, the wife died and the In such cases the testamentary testamentary heirs sought the probate of the will. dispositions made in accordance with law Will the will be probated? No. The SC held that shall be complied with and the remainder of the first probate was valid only as to the share of the estate shall pass to the legal heirs. the husband. However, such earlier probate cannot be applied for the share of the wife Balane: 1. Even if there is no institution of an heir, because she was still living at the time the first the will is valid, but it is useless unless it probate was made. As such, there is no res acknowledges an illegitimate child or disinherits a judicata as to the share of the wife. As to the wife, compulsory heir. since it is against a joint will, then it is void and her property will pass by intestacy. 2. If the institution does not cover the entire estate, the excess shall either go to the compulsory heirs or by intestacy. (Mixed succession.) Art. 839. The will shall be disallowed in any of the following cases: 3. How much can the testator dispose of from his (1) If the formalities required by law estate? He can dispose all, except when there are have not been complied with; compulsory heirs. In such a case, he can only (2) If the testator was insane, or dispose of the free portion. otherwise mentally incapable of making a will, at the time of its execution; 4. General rule: If the will does not institute an (3) If it was executed through force or heir, it need not be probated. 23 under duress, or the influence of fear, or Exception: Even if it does not institute an heir, threats; if any of the following are present: Page (4) If it was procured by undue and a. When the will recognizes an illegitimate improper pressure and influence, on the part child; of the beneficiary or of some other person; b. When it disinherits a compulsory heir; hotjurist 2009 Succession c. When it instituted an executor. cannot be identified; none of them shall be an heir. 5. If the instituted heir should repudiate or be incapacitated to inherit, then legal succession Balane: takes place. 1.Paragraph 1: Even though there may be an error in the name of the heir, the error is immaterial if his identity can be known in any other Art. 842. One who has no compulsory manner. heirs may dispose by will of all his estate or any part of it in favor of any person having 2. Paragraph 2: See the rules on latent ambiguity. capacity to succeed. First: Use extrinsic evidence except the One who has compulsory heirs may oral declarations of the testator as to his intentions dispose of his estate provided he does not to cure the ambiguity. contravene the provisions of this Code with Second: If ambiguity still exists, none of regard to the legitime of said heirs. them will inherit. Balane: X ---- spouse Art. 845. Every disposition in favor of / | \ an unknown person shall be void, unless by A B C some event or circumstance his identity becomes certain. However, a disposition in X has a spouse and 3 children. favor of a definite class or group of persons Children get 1/2 of the estate\ shall be valid. ---- Legitimes Spouse gets 1/6 of the estate/ Balane: 1. Can the testator give his entire free portion to a person he does not personally know? Yes. The "unknown person" referred to in this Art. 843. The testator shall designate article refers to one who cannot be identified and the heir by his name and surname, and when not to one whom the testator does not personally there are two persons having the same names, know. The basis of the nullity is the inability to he shall indicate some circumstance by which determine the intention of the testator. the instituted heir may be known. Even though the testator may have E.g., "To someone who cares." - Void. omitted the name of the heir, should he "To someone with ten eyes." - Void, designate him in such manner that there can this refers to someone who does not exist. be no doubt as to who has been instituted, the institution shall be valid. This designation is valid if the identity is not known at the time of making the will but can be Balane: General rule: An heir must be designated known in the future by circumstances. How? By by name and surname. This also applies to establishing certain criteria at the proper time, e.g., devisees and legatees. First Filipino who wins a gold medal in the Olympics. If there are 2 or more people having the same name and surname, the testator must 2. Class designation is valid, class in Civil Law indicate some identifying mark or circumstance to Review, UP College of Law, 1995-1996. which he may be known, otherwise there may be a latent ambiguity. Mass institution: see Articles 786, 848 E.g., I institute my cousin "A". But I have 3 (brothers and sisters), 849 (designation of a cousins by the name of "A". Unless I give an person and his children) 959 (relatives), 1029 identifying mark or circumstance as to which (prayers and pious works for the benefit of his cousin "A" I refer to, there will be a latent soul), and 1030 (poor.) ambiguity. Exception: Even without giving the name, Art. 846. Heirs instituted without the identity of the heir can be ascertained with designation of shares shall inherit in equal sufficient certainty or clarity, e.g. the present Dean particles. of the UP College of Law, my oldest brother. Balane: This is a presumption of equality. This What is important is that the identity of the supports the underlying principle of this chapter heir be known and not necessarily his name. which is respect for the wishes of the testator. Art. 844. An error in the name, Art. 847. When the testator institutes surname, or circumstances o f the heir shall some heirs individually and others collectively not vitiate the institution when it is possible, in as when he says, "I designate as my heirs "A" any other manner, to know with certainty the and "B", and the children of "C", those person instituted. collectively designated shall be considered as If among persons having the same individually instituted, unless it clearly appears names and surnames, there is a similarity of that the intention of the testator was otherwise. circumstances in such a way that, even with the use of other proof, the person instituted Balane: MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Problem: The testator provides "I give 1/3 of my 2. Cause must be shown to be false; estate to A, B and C." C is a class of people. How 3. It must appear on the face of the will do you divide the estate? that the testator would not have made such A: It is not to be interpreted as 1/3 to A, B institution if he had known the falsity of the cause. and class C. Rather, the 1/3 of the estate should be divided equally among A, B and the members The wishes of the testator must be of class C. Why? Because the presumption is respected. that the members of C were individually In the case, the third requisite was absent. designated. As such, the exception was not applicable and the But if the testator says "I give 1/3 of my general rule would apply. estate to A, B and class C as a unit, then 1/3 will be divided equally among A, B and class C. If there is doubt as to whether there is a valid institution because of the false cause, resolve it in favor of validity. Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the Art. 851. If the testator has instituted inheritance shall be distributed equally, unless only one heir, and the institution is limited to a different intention appears. an aliquot part of the inheritance, legal succession takes place with respect to the Balane: Full blood means same parents; half remainder of the estate. blood means only one parent is the same. The same rule applies, if the testator has instituted several heirs each being limited General rule: Brothers and sisters, to an aliquot part, and all the parts do not whether full or half blood, inherit in equal shares. cover the whole inheritance. Exceptions: (a) If the testator provides otherwise in the will. Balane: The principle enunciated here has already (b) If they inherit by been provided in Art. 841. intestacy. Ratio is 2:1 in favor of full blood brothers and sisters. (Art. 1006.) Assuming in par. 1 a. The testator has no compulsory heirs - part of the whole estate not disposed of by will Art. 849. When the testator calls to the goes by intestacy. succession a person and his children, they are E.g., No compulsory heirs and the testator all deemed to have been instituted says "I give 1/3 of my estate to X." 1/3 will go to X simultaneously and not successively. and the 2/3 will go by intestacy. Balane: This article is a species of Art. 847. b. Testator has compulsory heirs- part of Successively refers to fideicommisary. the free portion not disposed of by will goes by intestacy. E.g., Two legitimate children and testator Art. 850. The statement of a false says "I give 1/4 of my estate to X." 1/2 will go to cause for the institution of an heir shall be the 2 children, 1/4 will go to X, and 1/4 will go by considered as not written, unless it appears intestacy. from the will that the testator would not have made such institution if he had known the The same applies when a vacancy occurs. falsity of such cause. Balane: General rule: Even if the cause if false, Art. 852. If it was the intention of the institution is effective. Why? Because, cause of testator that the instituted heirs should the institution is the liberality of the testator and become sole heirs to the whole estate, or the not the cause stated. whole free portion, as the case may be, and Q: "A is the tallest in the class. I give him each of them has been instituted to an aliquot 1/2 of my estate." If A is not the tallest, is the part of the inheritance and their aliquot parts institution ineffective? together do not cover the whole inheritance, or A: No. Follow the general rule because the whole free portion, each part shall be the real cause was not the height but the liberality increased proportionally. of the testator. Balane: This article speaks of the testator's Austria v. Reyes: In the case, the intention to give the entire free portion, or the oppossitor sought to nullify the institution of the entire inheritance, as the case may be, but he adopted children as heirs because it was found made a mistake in the addition of the different out that the adoption did not comply with the law. proportions. 25 The SC held that the institution was valid. For it to be invalid, and be an exception to the general rule, Elements: Page 3 requisites must concur: 1. Cause for the institution must be stated 1. Several heirs; in the will; hotjurist 2009 Succession 2. Indicates his intention to give his entire estate to 4. Total of portion exceeds the whole estate, or these heirs whole free portion, as the case may be. a. If no compulsory heirs, whole estate E.g., same as above except that A gets b. If with compulsory heirs, whole free 1/2, B gets 1/3, and C gets 1/4. portion 3. Indicates portions he wants to give to each; The value of the estate is P30,000. 4. Total of portions is less than whole estate or free portion, as the case may be. A 15,000 B 10,000 E.g., Testator has no compulsory heirs. He C 7,500 indicates in the will that his intention to give his 32,500 entire estate to his heirs. He gives 1/4 to A, 1/6 to B, 1/3 to C. The estate is worth P120,000. What do you do with the excess of P2,500? A P30, 000 1. Get the LCD, 12 B 20,000 A = 6/12, B = 4/12, C = 3/12 C 40,000 P90, 000 2. Get the ratio of the shares with each other What do you do with the remaining P30,000? A (6): B (4): C (3) - 6 + 4 + 3 = 13 1. Get the least common denominator- 12 3. Multiply the excess by the share of A= 3/12, B= 2/12, C= 4/12 each heir in the ratio in number 2. For A, 6/13 x 2,500 = 1,153.84 2. Get the ratio of the shares with each For B, 4/13 x 2,500 = 769.23 other. For C, 3/13 x 2,500 = 576.93 A (3): B (2): C (4) - 3 + 2 + 4 = 9 4. Subtract the results in number 3 from 3. Multiply the remainder by the share of what each heir was to receive initially. each heir with respect to the ratio in number 2. For A, 15,000 - 1,153.84 = 13,846.16 For A, 3/9 x 30,000 = 10,000 For B, 10,000 - 769.23 = 9,230.77 For B, 2/9 x 30,000 = 6,666.67 For C, 7,500 - 576.93 = 6,923.07 For C, 4/9 x 30,000 = 13,333.33 5. Add the figures in number 4 to make 4. Add the result to what they originally sure it equals to the value of the whole estate. received and the sum will be their complete inheritance. 13,846.16 + 9,230.77 + 6,923.07 = 30,000 For A, 30,000 + 10,000 = 40,000 For B, 20,000 + 6,666.67 = 26,666.67 Note: 6. If you want to get the inheritance of For C, 40,000 + 13,333.33 = 53,333.33 each right away, multiply the ration in number 3 by the value of the estate. 5. Add your figures in number 4 to make sure that it equals to the value of the entire estate. For A, 6/13 x 30,000 = 13,846.16 (To make sure that you did not make a mistake.) For B, 4/13 x 30,000 = 9,230.77 For C, 3/13 x 30,000 = 6,923.07 40,000 +26,666.67 + 53,333.33 = 120,000 Q: If the testator makes 3 wills. Note: 6. If you want to get the inheritance of Will 1- "I give 40% of my estate to A." each right away, multiply the ratio in number 3 with Will 2- "I give 40% of my estate to B." the value of the whole estate. Will 3- "I give 40% of my estate to C." For A, 3/9 x 120,000 = 40,000 How will the estate by divided? There are For B, 2/9 x 120,000 = 26,666.67 two answers. For C, 4/9 x 120,000 = 53,333.33 1. 1/3 will go to each. Apply Art. 853. You get the same results but faster. 2. C gets 40%, B gets 30%, and A gets 30%. Assume the third will is incompatible to the first 2. Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the Art. 854. The preterition or omission of whole inheritance, or the whole free portion, as one, some, or all of the compulsory heirs in the the case may be, each part shall be reduced direct line, whether living at the time of the proportionally. execution of the will or born after the death of the testator, shall annul the institution of heir; Balane: The same principle as in Art. 852, only but the devisees and legacies shall be valid this time you decrease. insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be Elements: effectual, without prejudice to the right to 1 to 3 - same as those in Art. 852 representation. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS testamentary disposition, even if it be less than her Balane: legitime. The remedy of the heir is for the A. Clarification: completion of her legitime pursuant to Art. 906. 1. "Whether living at the time of the execution of the will or born after the death of the 3. Definition of preterition: Preterition testator." This does not cover all the possibilities. happens when the compulsory heirs in the direct What about those born after the execution of the line are totally omitted from the inheritance, that is will but before the death of the testator? Art. 854 the heir got nothing by way of testamentarry also covers them, just an oversight. disposition, donation, legacy, devise or intestacy. 2. Extends protection only to "compulsory C. Who can be preterited? heirs in the direct line." Is this redundant? Aren't 1. Legitimate children- Yes. compulsory heirs in the direct line? No. Spouses 2. Illegitimate children- Yes. The law are compulsory heirs not in the direct line. makes no distinction. So what is the remedy of the wife who has 3. Parents, whether legitimate or been omitted? Demand her legitime. illegitimate: Yes. Compulsory heirs in the direct line cover only ascendants and descendants. Nuguid v. Nuguid: In the case, Rosa died having 6 brothers and sisters and her parents. B. Preterition: "praeter" means "to go beyond" - However, she instituted one of her sisters as her not enough to know the meaning. universal heir. The parents opposed the probate claiming they were preterited. The SC held that 1. Who is a person preterited? the parents were preterited. As such, the Manresa: "Complete omission institution of the sister as universal heir is void. from the will" - Wrong! Why? It presupposes that The estate will be distributed by intestacy. The SC if mentioned in the will, then the heir is not further stated that just because you are an heir, preterited. However, whether you are mentioned but not a compulsory heir, it does not mean that in the will or not has no effect on the preterition. you will receive anything. If compulsory heirs in the direct line are preterited, and the free portion Illustrations: had already been devised to other people, the (1) I have a son, A. The will annulment of the institution of heir will in effect states "I give 1/2 to B." A is not anul your institution. Also, when the law says preterited because he gets the devise or legacy, this is used in its ordinary sense. other half. The claim of the sister that her institution as a (2) I have a son, A. The will universal heir is equivalent to a devise is states "I give 1/3 to B and 1/3 to untenable. If such were accepted, it would render C." A is not preterited because he Art. 854 useless. gets the other 1/3. His legitime, however, is impaired. 4. Grandparents: Yes. (3) I have a son, A. The will 5. Spouse: No. states "I give 1/2 to B, 1/2 to B, 6. Adopted child: Yes. and to A, all my love." A, even if mentioned in the will, was Acain v. Acain: In the case, Acain left his preterited. estate to his brothers, completely omitting his wife and legally adopted daughter. As such, the two Preterition occurs if the heir receives opposed the probate of the will claiming they were nothing from the inheritance by way of preterited. The SC held that the adopted child testamentary disposition, devise, legacy, intestacy, was preterited but not the wife. A wife is not a or donation inter vivos. compulsory heir in the direct line so she cannot be preterited. With respect to the adopted child, it is 2. Situations different. Under Art. 39 of PD 603, adoption gives a. Heir is mentioned but nothing is to the adopted person the same rights and duties left to him- Heir is preterited if he receives nothing as if he were a legitimate child of the adopter and by intestacy. makes the adopted person a legal heir of the b. Heir is instituted in the will but adopter. The SC further stated that since there the part she is instituted in is less than her were no devises or legacies, and a compulsory legitime: There is no preterition. heir was preterited, the effect is, as if nothing was written in the will. The whole estate will be Reyes v. Barreto-Datu: In the case, Lucia distributed by intestacy. received a part of the estate through a judicially approved project of partition which was based on D. Effect of preterition: "Annul the institution of the will of her father. However, it was found out heir but devises and legacies shall be valid insofar later on that he Salud was not really the child of as they are not inofficious." - Abrogate, set aside, 27 her parents. As such, Lucia sought to annul the eliminate, cancel. institution of Salud as heir claiming that she was Page preterited. The SC held that she was not 1. Effect of preterition (of parents) when preterited because she had received a part of the there are no devises or legacies (Nuguid case)- estate. There is no preterition if the heir is given whole will is considered inexistent. hotjurist 2009 Succession 2. If there are devises or legacies: Set b. Where do you get the share to aside only the institution of heirs but not the complete? institution of devisees and legatees. If the devise 1. Vacant portion (undisposed) and legacy exceed the free portion, decrease the 2. If vacant portion is not enough- devise and legacy. "compulsory heirs." - WRONG. You do not reduce the shares of compulsory heirs but the shares of Solano v. CA: This case made a wrong testamentary heirs. If the compulsory heir gets decision. It made the effect of preterition the more than his legitime, the excess can be reduction of the share of the instituted heir rather reduced. Why? As to the excess, he is than annulling the whole institution of heir. considered a testamentary heir. Acain v. IAC: This case restored the Illustration: A has 3 children, X, Y and Z. correct interpretation laid down in Nuguid that His will states "I give X, 1/3 of my estate, A, 1/12 preterition annuls the institution of heirs. of my estate, and B, 1/2. The estate is worth 600,000. E.g., Testator has a son, A. His will states "I give 1/2 of my estate to A and P300,000 to N." X = 1/3 = 200,000 - excess 100,000 The estate is worth P600,000. How much will Z = 1/12 = 50,000 - lacks 50,000 each get? N gets 300,000. A gets the other B = 1/2 = 300,000 300,000. M gets nothing. Y = 0 = 0 - lacks 100,000 E. Criticism Legitime - 300,000/ 3 = 100,000 each. 1. Why not extend the application to the Lacks 150,000 (Z + Y) wife? 2. Why distinguish between heir and 1. Is Y preterited? No. There is 50,000 devisee and legatee? that he will get by intestacy. Y can demand completion of his legitime under Art. 855. He can NOTE: This is the only case where it is important get 50,000 from the undisposed portion. He just to know the distinction between heir, on the one lacks 50,000. Where do you get the deficiency? hand, and devisee and legatee on the other. a. If we follow Art. 855, get from the compulsory heirs. In other words, get from X and Z proportionately. The result is that Z will Art. 855. The share of a child or complain because now his legitime would be descendant omitted in a will must first be incomplete. taken from the part of the estate not disposed b. Get the deficiency proportionally from of by the will, if any; if that is not sufficient, so testamentary heirs. Why? They are not entitled to much as may be necessary must be taken any share if it impairs the legitime of the proportionally from the shares of the other compulsory heirs. compulsory heirs. Total lack of legitimes - 150,000. Balane: This is not a case of preterition. This is a 1. Get the 50,000 undisposed of - Lacking case of completion of legitime. only 100,000. 2. Get proportionally from the shares of 1. Is this right limited or restricted to a child or testamentary heirs. descendant? No. It also applies to heirs similarly Testamentary heirs: situated. X = 100,000 - 25,000 a. spouse B = 300,000 - 75,000 b. parents 100,000 c. ascendants. 2. Does this apply to preterition? a. Yes: According to the Code Art. 856. A voluntary heir who dies Commission. Their intent was to make Art. 855 before the testator transmits nothing to his apply to preterition. heirs. b. No: If you analyze the provision, it A compulsory heir who dies before the does not refer to preterition. It applies when testator, a person incapacitated to succeed, something is left to an heir but is less than his and one who renounces the inheritance, shall legitime. transmit no right to his own heirs except in cases expressly provided for in this Code. (i) Incomplete legitime: "taken from part not disposed of by will" - heir will receive something by intestacy - no preterition. Balane: (ii) Preterition: If the whole estate is disposed of: Go to Art. 854. Kind of Heir Predecease Incapacity Renunciation 3. Two errors a. Why is it limited only to child or Compulsory TN descendant? This (article) should be applicable to TN TN any compulsory heir whose legitime is impaired or Rep. who receives less than his legitime. (The latter) Rep. No Rep. may institute an action to complete his legitime. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Voluntary TN This is really a condition imposed on the institution TN TN of heirs. Rep. No Rep. No Rep. E.g., A has sons whom he does not want to get the free portion. He wants to give it to B. But B Intestate TN may die before A. After B, A prefers C to get it. TN TN As between C and his children, A would rather that Rep. C gets it. As such, C is appointed by the testator Rep. No Rep. as B's substitute. Legend: TN- Transmits Nothing Art. 858. Substitution of heirs may be: Rep. - There is Representation (1) Simple or common; No Rep. - There is no representation. (2) Brief or compendious; (3) Reciprocal; or Observations: (4) Fideicommissary. 1. There is no transmission of any right from an heir to his own heirs for any of the three cases (P, Balane: I and R.) There is no exception. A. Kinds of Substitution: 1. Simple or common (Art. 859.) 2. For voluntary, there is no representation, no 2. Fideicommissary. (Art. 863.) matter what the reason for disqualification is. B. Why did we earlier define substitution with only 3. For renunciation, there is no representation, no 2 kinds? Because there are only 2 kinds. Brief matter what kind of heir. and reciprocal are just variations and not kinds of substitutions. You cannot have a purely reciprocal substitution. All substitutions are either simple or Section 3: Substitution of Heirs. fideicommissary. C. In the OCC, there were two others: Art. 857. Substitution is the 1. Ejemplar: A substitution a father was appointment of another heir so that he may allowed to make because his son was insane. enter into the inheritance in default of the heir This was a kind of fideicommissary. originally instituted. 2. Popular: A substitution a father made in behalf of a child who died before he reaches 18. Balane: 1. "In default." - Failure to inherit because of: (a) predecease, (b) renunciation or (c) incapacity. Art. 859. The testator may designate one or more persons to substitute the heir or a. Is it a complete definition? No. It is heirs instituted in case such heir or heirs incomplete because default covers or defines only should die before him, or should not wish, or simple substitution and not fideicommissary should be incapacitated to accept the substitution. inheritance. A simple substitution, without a b. Complete definition: Substitution is the statement of the cases to which it refers, shall appointment of another heir so that he may enter comprise the three mentioned in the preceding into the inheritance either in default of the heir paragraph, unless the testator has otherwise originally instituted or after. provided. Simple: Second heir enters after the Balane: Simple Substitution. default of the first Fideicommissary: Second heir enters 1. Causes/ grounds for the second heir to inherit after the first. in place of the first. a. Predecease of the first heir 2. Basis for substitution: It covers the free portion b. Renunciation of the first heir only. c. Incapacity of the first heir Because it is possible that the testator 2. Two ways of making a simple substitution: may have a second preference. In relation to the a. Enumerate all the cases. first heir instituted, the first is preferred over the E.g., "I institute A, in case A predeceases substitute. But in default or after the first, the me, or renounces, or is incapacitated to succeed, testator would rather that the inheritance go to the then B will substitute him." substitute than by intestacy. 29 Allowing substitution is giving respect to b. By just calling it. the first and second preference of the testator. E.g., "I institute A, and by way of simple Page The power to make substitution is based substitution, I institute B as substitute." In such a on the power to make testamentary dispositions. case, all the three causes of substitution will apply unless the testator provides otherwise. hotjurist 2009 Succession B = 1/6 = 10,000 Note: The testator may limit the operation of the 3 C = 1/2 = 30,000 causes. He can just mention what he wants to apply, e.g., "I institute A, and if he predeceases How will the 30,000 be divided between A and B? me, then B will substitute him." In such a case, B will only substitute A if A dies before the testator. 1. Get the LCD of the remaining heirs. In However, if the cause is not covered by the example, it is 6. the causes given in this article, then the estate will 2. Get the ratio between the remaining pass by intestacy. heirs and the sum of the ratios. A = 2/6, B = 1/6. Art. 860. Two or more persons may be The ratio between A and B is 2 : 1. The sum of substituted for one; and one person for two or the ratios is 3. more heirs. 3. Two ways: Balane: a. Divide the 30,000 by the sum of 1. Brief or Compendious: One substitutes for two the ratios (3) and multiply the result by the ratio or more heirs or two or more substitutes for one between them of each heir. heir, e.g., "I institute A to 1/8 of my estate and as 30,000/ 3 = 10,000. his substitute by way of simple substitution, I A = 2 x 10,000 = 20,000 designate X and Y." B = 1 x 10,000 = 10,000 2. This is just a variation of either simple or b. Multiply 30,000 by the ratio of fideicommissary. each heir with respect to the total ratio. E.g., Simple- look at the example A = 2/3 x 30,000 = 20,000; above. B = 1/3 x 30,000 = 10,000 Fideicommissary- "I institute A to 1/2 of my estate and impose upon him the 4. Add the result in number 3 to what they obligation to preserve and transmit the property initially received. upon his death to X and Y." A = 20,000 + 20,000 = 40,000; B = 10,000 + 10,000 = 20,000. 3. Strictly or technically speaking, brief and compendious are not the same. Brief- 2 or more Note: If you want another way to compute: for one heir; Compendious - one for two or more 1. Get the LCD between A and B. In this heirs. case 6. Note, however, they are synonymous and A = 2/6, may be used interchangeably. B = 1/6 4. Problem: "I institute A, B and C to 1/3 each of 2. Get the ratio between A and B. In this my estate and in case they all die before me, I case, 2 : 1 institute D as substitute by way of simple A = 2/3, substitution." If A and B predecease the testator, B = 1/3 will D get their shares? No. The substitution will take effect only upon the death of all the three. 3. Multiply the original share of C by the However, if what the will stated was "any or... all ratio in 2. die before me," then D will get A and B's shares. A = 2/3 x 1/2 = 2/6, B = 1/3 x 1/2 = 1/6 Art. 861. If heirs instituted in unequal 4. Add the result in number 3 to their shares should be reciprocally substituted, the original shares. substitute shall acquire the share of the heir A = 2/6 + 2/6 = 4/6, who dies, renounces, or is incapacitated, B = 1/6 + 1/6 = 2/6 unless it clearly appears that the intention of the testator was otherwise. If there are more 5. Multiply the result in number 4 by the than one substitute, they shall have the same value of the estate. share in the substitution as in the institution. A = 4/6 x 60,000 = 40,000; B = 2/6 x 60,000 = 20,000. Balane: Reciprocal substitution. The heirs are substituted for each other based on either simple or Art. 862. The substitute shall be fideicommissary substitution. If both are subject to the same charges and conditions disqualified, then no substitution will take place imposed upon the instituted heir, unless the and the estate will pass by intestacy. testator has expressly provided the contrary, or the charges or conditions are personally Example of second sentence: "I institute applicable to the heir instituted. A to 1/3, B to 1/6, and C to 1/2 of my estate and by way of simple substitution, I institute them as Balane: In substitution, the 2nd heir takes the substitutes of one another." If C predeceases the place of the first heir. A kind of subrogation. testator, how will his share be divided if the estate As such, the general rule is: The second is is worth P60,000? subject to the same charges and conditions as the first heir. A = 1/3 = P20,000 Exceptions: MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS 1. Testator has expressly provided the testamentary disposition is void and there can the contrary. be no transmission of rights to the brothers and 2. Charges and obligations are sisters. The SC agreed with contention no. 1 on personally applicable to the first heir. the same ground. The second requisite was absent and there could be no ficeicommissary The article does not only cover charges substitution. With regard to the second and conditions but also the rights of the first heir, contention, the SC disagreed. The SC said there subject to the same exceptions. was a simultaneous substitution. The institution of the husband was subject to a resolutory condition while the institution of the brothers and sisters was Art. 863. A fideicommissary subject to a suspensive condition. Both conditions substitution by virtue of which the fiduciary or are one and the same. It is the existence in the first heir instituted is entrusted with the husband's estate of assets he received from his obligation to preserve and to transmit to a wife at the time of his death. If there is, the second heir the whole or part of the husband's right to the residue is extinguished upon inheritance, shall be valid and shall take effect, his death while the right of the brothers and sisters provided such substitution does not go vests at the same time. beyond one degree from the heir originally instituted, and provided, further, that the c. Scaevola: Characterized the situation fiduciary or first heir and the second heir are as a legacy or devise of the residue. living at the time of the death of the testator. 3. There is a second heir who must be one Balane: degree from the first heir. Four Elements of a Fideicommissary Substitution: a. "One generation" Does it refer to the degree of relationship or number of substitution? 1. There must be a first heir or fiduciary. It refers to the degree of relationship. See Palacios v. Ramirez. For the substitution to operate, the first However, fideicommissary substitutions heir receives property, either upon the death of the are also limited to one transmission. Upon the testator or upon the fulfillment of any suspensive lapse of time for the first heir, he transmits the condition imposed by the will. As distinguished property to the second heir. They cannot be any from a simple substitution where the second heir more fideicommissary substitution coming from receives property only upon default of the first heir. the same testator. In other words, there can only First heir does not receive the property. be one fideicommissary transmission such that after the first, there can be no second 2. An absolute obligation is imposed upon the fideicommissary substitution. fiduciary to preserve and to transmit to a second heir the property at a given time. Palacios v. Ramirez: In the case, 2/3 of the usufruct of the free portion was given to a. Essence of a fideicommissary Wanda, with 2 other persons not related to her as substitution- dual obligation. her substitutes by way of simple and b. "Given time."- Provided by the testator; fideicommissary substitution. Her grandnephews if not, then it is understood that the period is the object on the ground that there could be no lifetime of the fudiciary. fideicommissary substitution because the substitutes were not within one degree of each PCIB v. Escolin: In the case, the spouses other. The SC agreed with the nephews. It said, executed reciprocal wills. It provided that the quoting Tolentino that one degree refers to one share in the conjugal assets will pass to the generation. As such, the fideicommissary can surviving spouse and that the surviving spouse only be either a parent or child of the fiduciary. can do whatever he or she wants with the inheritance, even sell it, and if there is any residue 4. The first and second heir must both be from the inheritance from the other spouse upon living and qualified at the time of the death of the death of the surviving spouse, it shall pass to the testator. the brothers and sisters of the spouse who first died. The wife died first. The husband did not a. From the moment of the death of the liquidate the conjugal assets because he was the testator, the rights of the first and second heir are sole heir of his wife. Upon the husband's death, it vested. (look at Art. 866.) is now questioned whether there is any residue b. Nature of right of first heir: Similar to from the wife's estate that could pass to her usufruct: Possessory and enjoyment rights without brothers and sisters. PCIB, (and the) right to alienate. administratrix of the husband claims that: (1) If fiduciary is able to register the property There was no fideicommissary substitution in his name, fideicommissary should annotate his 31 because there was no obligation upon the claim on the land on the title to protect himself husband to preserve and transmit the properties to against any alienations in favor of innocent third Page the brothers and sisters of the wife as seen in his parties. authority to sell the property, and (2) Since there was an invalid attempt to make a substitution, then hotjurist 2009 Succession Balane disagrees with Tolentino that there can be no successive fideicommissaries or several Balane: Reasons why they will not take effect: transmissions. If this is allowed, chaos will result if the fideicommissaries die. You will not know who 1. Relate to Art. 865, par. 1. It will not take effect will get the property and that the property may be as a fideicommissary substitution but may take tied up for centuries. effect as something else. 2. This is not a fideicommissary but a prohibited Art. 864. A fideicommissary institution. substitution can never burden the legitime. a. Perpetual prohibition will freeze the property which is against public policy. Balane: In fact, no testamentary disposition can b. Temporary prohibition is allowed but burden the legitime because legitime is cannot go beyond the limit in Art. 863- limit is the transmitted by operation of law upon the death of death of the fiduciary. Cannot prohibit alienation the testator. beyond the death of the fiduciary. When the property goes to the second heir, there is no more prohibition. Art. 865. Every fideicommissary Commentators say that it refers to Art. 870 substitution must be expressly made in order rather than Art. 863. They contend that the limit is that it may be valid. 20 yrs. In such a case, the contention is valid if The fiduciary shall be obliged to deliver you do not make it applicable to substitutions. the inheritance to the second heir, without other deductions than those which arise from Q: If you prohibit for 30 yrs., what will happen? legitimate expenses, credits and A: There are 2 answers. improvements, save in the case where the 1. The whole period is void. testator has provided otherwise. 2. Only the first 20 years is valid. (Balane agrees with this.) Balane: There are 2 ways of making a fideicommissary substitution: 3. Attempt to circumvent one degree limitation of 1. By naming it: "I institute A to 1/2 of my fideicommissary substitution. estate, and by way of fideicommissary E.g., "I give 1/3 of my estate to X and substitution, I institute B as his substitute." impose upon him the obligation to give a P5,000 2. By imposing upon the fiduciary the pension to A and in A's death, to A's son." This is obligation to preserve and transmit: "I institute A allowed. But if this is extended to the son of the to 1/2 of my estate and impose upon him the son of A, then it won't be allowed. The first and obligation to preserve and to transmit the same to second recipient must be within one degree. But it B upon his return." cannot extend beyond the second recipient. 4. Dummy provision. This is usually used as a means to circumvent some prohibition of law. Art. 866. The second heir shall acquire Example, Prohibition of giving to paramour a right to the succession from the time of the A has a paramour X. A gets B as a testator's death, even though he should die dummy. Because of the prohibition of giving to a before the fiduciary. The right of the second paramour, they agree between themselves that A heir shall pass to his heirs. will leave to B a devise and from its profits B will give X. So A pretends to name B as heir. But in Balane: This relates to the fourth requisite of reality, such institution is for the benefit of X. fideicommissary. a. In such a case, the institution will not At the time of the testator's death, right of benefit X. Even if X shows a written agreement the first and second heir become vested. between A and B, it cannot be enforced because it is contrary to law. b. As regards B, he can keep the Art. 867. The following shall not take inheritance even if he double-crosses A. A effect: instituted B at his own risk that he may be double- (1) Fideicommissary substitutions crossed by B. Too bad for X. which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to Art. 868. The nullity of the deliver the property to a second heir; fideicommissary substitution does not (2) Provisions which contain a prejudice the validity of the institutions of the perpetual prohibition to alienate, and even a heirs first designated; the fideicommissary temporary one, beyond the limit fixed in article clause shall simply be considered as not 863; written. (3) Those which impose upon the heir the charge of paying to various persons Balane: successively, beyond the limit prescribed in The nullity of the fideicommissary substitution will article 863, a certain income or pension; not affect validity of institution of the first heir. (4) Those which leave to a person the whole or part of the hereditary property in E.g., "I hereby institute A to 1/3 of my order that he may apply or invest the same estate under obligation to preserve and to transmit according to secret instructions the same to B upon his death." communicated to him by the testator. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS a. If institution of B is invalid, what will dispose of his property mortis causa, then he can happen to the institution of A? Valid. Institution of certainly impose either a condition, term or mode. A is valid without substitution. b. If the institution of A is invalid, what will 2. Same principle as substitution: happen to the institution of B? The law does not Simple substitution- special kind provide. Think about it. of condition Fideicommissary- Institution subject to some encumbrance. Art. 869. A provision whereby the testator leaves to a person the whole or part of d. The arrangement of this Section is the inheritance, and to another the usufruct, disorganized. To rearrange: shall be valid. If he gives the usufruct to 1. General Provisions- applies to all various persons, not simultaneously, but three- Articles 871 and 872. successively, the provisions of article 863 2. Condition: Articles 873 to 877, shall apply. 879 to 881, 883, par. 2, 884. 3. Term: Articles 878, 885. Balane: This is similar to Art. 867, par. 3 4. Mode: Articles 882, 883 par. 1. Example, "I give to A naked ownership, and to B the usufruct and upon B's death, to his 1. General Provisions. son C." This is valid. Within the limit of Art. 863. If it goes to the son of the son of B, then it is Art. 871. The institution of an heir may invalid. be made conditionally, or for a certain purpose or cause. Note: Just as there can be a substitution with regard to the usufruct, there can also be a Balane: This gives the testator the right to make substitution with regard to the naked ownership. these dispositions. The article did not include an institution with a term. This is an oversight. Art. 870. The dispositions of the testator declaring all or part of the estate Art. 872. The testator cannot impose inalienable for more than twenty years are any charge, condition or substitution void. whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be Balane: This has nothing to do with substitution. considered as not imposed. It refers to simple institution of heir, devisee or legatee. Balane: General limitation: The testator cannot impair the legitime. Why? Because the Q: Can it go beyond 20 yrs? testamentary disposition is based on the power to A: There are 2 answers. dispose mortis causa. Legitimes, on the other 1. No. The whole period is void. hand, are passed by operation of law. 2. No. But valid only for the first 20 years. This is repeated in Art. 904. 2. Conditions. Section 4: Conditional Testamentary Dispositions Balane: A suspensive condition gives rise and Testamentary Dispositions With a Term to the right if it happens. A resolutory condition extinguishes the right if it happens. Articles 871-875 talk of three things: Kinds of Conditions: Testamentary dispositions with a - 1. Condition 1. Impossible Conditions. 2. Term- certain as to time or certain as to occurrence Art. 873. Impossible conditions and 3. Mode those contrary to law or good customs shall be considered as not imposed and shall in no a. Similarity between condition and term: manner prejudice the heir, even if the testator Both refer to a future event. should otherwise provide. Difference between condition and term: A condition is uncertain; a term is certain. Balane: Impossible conditions include those which are illegal, against public order and public policy. Effect: It nullifies the condition. The b. Mode is not included in the title of the condition is deemed as not imposed. The section: An oversight. testamentary disposition becomes pure, absolute 33 and unconditional. c. Rationale for right to make either of the Compare with donations (Art. 727) and Page three: onerous obligations (Art. 1183) 1. Right stems from the right of freedom to dispose of his property mortis causa. If he can hotjurist 2009 Succession Art. 727. Illegal or Exception: "I give the entire free portion of impossible conditions in simple my estate to my husband A on the condition that if and remuneratory donations I predecease him, he will not get married." The shall be considered as not condition is valid in this case. imposed. Other Situations: Art. 1183. Impossible 1. What about a condition to contract marriage? conditions, those contrary to Valid because it is not prohibited and by contrary good customs or public policy implication. and those prohibited by law 2. What about a condition to enter into religious shall annul the obligation which life? Valid. depends upon them. If the 3. What about a condition to renounce a religion? obligation is divisible, that part Not valid. thereof which is not affected by the impossible or unlawful The second paragraph relaxes the rule to condition shall be valid. go around the prohibition of the first par. E.g., "I give "A" a pension of P10,000 during the entire Nullifies the Condition time she is single." This is a valid condition. Nullifies the Obligation a. Testamentary dispositions a. Onerous obligations Art. 875. Any disposition made upon b. Donations the condition that the heir shall make some provision in his will in favor of the testator or Why the difference? Testamentary dispositions of any other person shall be void. and donations are acts of liberality. The moving factor is liberality. If you take away the impossible Balane: E.g., "I give 1/3 of my estate to A condition, the moving factor still exists, the provided he makes a will instituting me (or B) as liberality. While in onerous donations, the heir." The disposition is void. Why? condition is an element of cause. If the condition a. It is against public policy because it is impossible, there is a failure of cause. This impairs the voluntariness of wills; results in a void obligation. E.g., "I sell you my car b. It is against revocability: If you can alter if you impregnate the great blue bear of Antartica your will after receiving, then it is a breach of good and if you pay me P10,000." Since there is an faith. But if the testator is not allowed to alter the impossible condition, there is a failure of cause. will, the condition is against revocability. Either Since there is no cause, then the obligation is option is unacceptable. void. Consider (the article) restrictively: Limit it 2. Condition Prohibiting Marriage. to cases where the beneficiary is to make a will instituting the testator or a third person. Art. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such 4. Suspensive Conditions. condition has been imposed on the widow or widower by the deceased spouse or by the Art. 876. Any purely potestative latter's ascendants or descendants. condition imposed upon an heir must be Nevertheless, the rights of usufruct, or fulfilled by him as soon as he learns of the an allowance or some personal prestation may testator's death. be devised or bequeathed to any person for This rule shall not apply when the the time during which he or she should remain condition, already complied with, cannot be unmarried or in widowhood. fulfilled again. Balane: Distinguish: 1. If the condition is on the first marriage: Art. 877. If the condition is casual or The condition is considered as not imposed. mixed it shall be sufficient if it happen or be E.g., "I give 1/3 of my estate to A if she fulfilled at any time before or after the death of does not get married". The condition is considered the testator, unless he has provided otherwise. as not imposed. Should it have existed or should it have been fulfilled at the time the will was executed 2. If the condition is imposed on the and the testator was unaware thereof, it shall second marriage: be deemed as complied with. General rule: The condition is deemed as If he had knowledge thereof, the not imposed. condition shall be considered fulfilled only Exception: Valid if imposed by: when it is of such a nature that it can no longer (a) spouse; exist or be complied with again. (b) ascendants of spouse; (c) descendants of spouse. . Art. 879. If the potestative condition Example: General rule: "I give 1/3 of my imposed upon the heir is negative, or consists estate to Mr. A on the condition that if he should in not doing or not giving something, he shall be widowed, he will not get married." The comply by giving a security that he will not do condition is deemed as not imposed here. or give that which has been prohibited by the testator, and that in case of contravention he MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS will return whatever he may have received, (2) Person not interested - not together with its fruits and interests. applicable. b. By chance: Not applicable. Art. 883. If the person interested in the 4. Other Provisions. condition should prevent its fulfillment, without the fault of the heir, the condition shall Art. 880. If the heir be instituted under be deemed to have been complied with. a suspensive condition or term, the estate shall be placed under administration until the Balane: There are Three Kinds of Suspensive condition is fulfilled, or until it becomes certain Conditions: that it cannot be fulfilled, or until the arrival of the term. 1. Purely Potestative: The fulfillment of the The same shall be done if the heir does condition depends solely upon the will of the heir, not give the security required in the preceding devisee or legatee. article. E.g., "I give my entire free portion to Erap should he shave his moustache." Balane: If the suspensive condition is not fulfilled, General rule: The condition must be place the estate under administration until: fulfilled as soon as the heir learns of the testator's 1. The condition is fulfilled, in which case death. the estate should be given to the instituted heir; Exception: If the condition has already 2. It becomes obvious that it cannot be been fulfilled and it cannot be fulfilled again, the fulfilled, in which case, the estate should be given condition is deemed fulfilled. to the intestate heirs. Constructive compliance is applicable. E.g., "I give a car to A when he places first in the bar." Testator dies while A is still taking law. 2. Casual: The fulfillment of the condition The car is put under administration until: (1) "A" depends solely on chance or on the will of a third tops the bar, in which case the car should be given person. to him; or (b) "A" dies while reviewing in which E.g., "I give X, 1/3 of my estate should case, the car should be given to the intestate heirs Mayon erupt one year from now." because the condition has become obviously impossible of being fulfilled. 3. Mixed: The fulfillment of the condition depends partly on chance and partly on the will of the heir, devisee, or legatee. Art. 881. The appointment of the E.g., "I give one million to A provided he administrator of the estate mentioned in the sets up a foundation for the victims of the next preceding article, as well as the manner of the eruption of Mayon." administration and the rights and obligations of the administrator shall be governed by the Rules for casual and mixed conditions: Rules of Court. General rule: The condition may be fulfilled any time, either before or after the testator's death unless the testator provides Art. 884. Conditions imposed by the otherwise. testator upon the heirs shall be governed by Why? It is not within the heir, devisee or the rules established for conditional legatee's control. obligations in all matters not provided for by Qualification: If condition is already fulfilled this Section. at the time of the execution. a. Testator is unaware- The condition is Balane: Rules on conditional obligations will apply deemed complied with or fulfilled. suppletorily. Articles 1179 to 1192. b. Testator is aware: (1) If the condition can no longer be fulfilled again, it is deemed fulfilled; (2) If the condition can still be fulfilled, fulfill it again. 3. Term. Art. 878. A disposition with a Rules for Constructive compliance: That when the suspensive term does not prevent the heir, devisee or legatee has done everything to instituted heir from acquiring his rights and comply with the condition but the condition still transmitting them to his heirs even before the does not happen. arrival of the term. 35 1. Purely potestative: Applicable. Balane: This is founded on the principle that the 2. Casual: Not applicable. right of the heir instituted subject to a term is Page 3. Mixed: vested at the time of the testator's death- he will a. By will - just wait for the term to expire. (1) Person interested - applicable The heir must survive the testator. hotjurist 2009 Succession If the heir dies after the testator but before in a manner most analogous to and in the term expires, he transmits his rights to his own conformity with his wishes. heirs because of the vested right. E.g., "I give P1M to X, five years after my death." Balane: A caucion muciana is a security to be put Compare this with conditional: Art. 1034, up to protect the right of the heirs (who would par. 3- Qualification of heir- The heir must be alive succeed to the property) in case the condition, and qualified at the time of the testator's death and term or mode is violated. when the condition happens. Instances when it is needed: 1. Suspensive condition: Art. 885. Art. 885. The designation of the day or 2. Negative potestative condition: Art. time when the effects of the institution of an 879. heir shall commence or cease shall be valid. 3. Mode: Art. 882, par. 2. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But Section 5: Legitime. in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention Balane: Legitime comes a French word which of the instituted heir. means "legitimate share" This was derived from the Spanish Civil Code but was simplified. Balane: What happens when the testator dies? There are 3 kinds of Systems: Distinguish between: 1. Partial Reservation: set aside for 1. Suspensive (ex die) - give it to the compulsory heirs intestate heirs for them to enjoy but in order to 2. Common law- no reservation except for protect the right of the instituted heir, intestate support heirs must put up a bond (caucion muciana.) 3. Total reservation- everything is set aside. 2. Resolutory (in diem) - Give it to the instituted heirs but when the term arrives, he must For the Philippines, we have partial give it to the intestate heirs. The instituted heir reservation. does not have to file a bond. New Civil Code Spanish 4. Mode. Civil Code ________________________________________ Art. 882. The statement of the object of ____________________________ the institution, or the application of the Legitimes/ Free portion |Short property left by the testator, or the charge Mejora imposed by him, shall not be considered as a Free Portion condition unless it appears that such was his | Legitime intention. Betterment 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. Abolished mejora because: | goes to the goes to the Balane: A mode is an obligation imposed upon 1. It opened abuses and gave | children the heir to do or to give something. in children but E.g., "I give 1/3 of me estate to A but parents power to influence/ | equal impose upon him the obligation to pay for my son's shares the testator education." has A condition suspends but does not blackmail their children; | obligate while a mode obligates but does not freedom as to suspend. | how the chil- Rules: | 1. In case of doubt between a mode and dren will a condition, resolve in favor of mode. share 2. In case of doubt whether a mode exists, | resolve in favor of it being a request. it. 2. It was a system our people | \ / Art. 883. When without fault of the heir, never applied nor understood. | \ an institution referred to in the preceding / article cannot take effect in the exact manner | stated by the testator, it shall be complied with Long Legitime MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS _____________________________|__________ 1. Legitimate children and descendants _______________________________ 2. Legitimate parents and ascendants 3. Widow or widower 4. Acknowledged natural children, and natural children by legal fiction Art. 886. Legitime is that part of the 5. Other illegitimate children testator's property which he cannot dispose of because the law has reserved it for certain Under the Family Code, there is no more heirs who are, therefore, called compulsory distinction between acknowledged natural children heirs. and illegitimate children. They are all considered as illegitimate. Balane: 1. There is compulsion on the part of the testator Rosales v. Rosales: In this case, the to reserve that part of the estate which deceased was the mother-in-law of the plaintiff. corresponds to the legitime. The plaintiff's husband had predeceased his The law sets a fractional portion of the mother. The plaintiff widow seeks a share in her estate aside for the compulsory heirs. mother-in-law's estate claiming she is a The law does not specify which properties compulsory heir being a widow. The SC denied to reserve but only sets aside a fractional portion her claim because the widow in the law refers to of the estate. the widow of the deceased and not of a relative of There is no obligation on the compulsory the deceased. heirs to accept. Three Kinds of Relationship among 2. The prohibition imposed on the testator is that Compulsory Heirs: he is prohibited from making gratuitous disposition: 1. Primary: Legitimate children, and in (a) testamentary disposition mortis causa; their absence, legitimate descendants. (b) donation inter vivos They are primary because they are absolutely Only the legitime is reserved. The free preferred, and they exclude the secondary. portion may be disposed of by will. 2. Secondary: Legitimate parents, and in E.g., A is married to B. They had a child their absence, legitimate ascendants C. A owns lot worth P5M. They inherit only in the absence of default of the a. "A" sells the lot to D for P5M. This is primary. valid. The prohibition does not cover an onerous disposition because this involves an exchange of 3. Concurring: Surviving spouse and values. illegitimate children. They get their legitime together with the primary or secondary heirs. b. "A" donates to D. This is not valid if it Neither exclude primary or secondary impairs the legitime of B and C. heirs nor each other. Except: Illegitimate children exclude Art. 887. The following are compulsory illegitimate parents. heirs: (1) Legitimate children and descendants, with respect to their legitimate Articles 888 to 903. Different Combinations parents and ascendants; (2) In default of the foregoing, I. According to Tolentino (all shares are with legitimate parents and ascendants, with respect to the whole estate unless otherwise respect to their legitimate children and provided.) descendants; (3) The widow or widower; 1. Legitimate children 1/2, in equal (4) Acknowledged natural children, and portions, whether they survive alone or natural children by legal fiction; with concurring compulsory heirs. (Art. (5) Other illegitimate children referred 888.) to in article 287. Compulsory heirs mentioned in Nos. 3, 2. One legitimate child - 1/2 (Art. 888.) 4 and 5 are not excluded by those in Nos. 1 Surviving spouse - 1/4 (Art. 892, par. 1.) and 2; neither do they exclude one another. In all cases of illegitimate children, 3. Legitimate children - 1/2, in equal their filiation must be duly proved. portions (Art. 888.) The father or mother of illegitimate Surviving spouse - share equal to that children of the three classes mentioned, shall of each child (Art. 892, par. 2.) 37 inherit from them in the manner and to the extent established by this Code. 4. Legitimate children - 1/2, in equal Page portions. (Art. 888.) Balane: There are Five (5) kinds of Compulsory Natural children - 1/2 the share of heirs: each legitimate child (Art. 895, par. 1.) hotjurist 2009 Succession * 5. Legitimate children - 1/2, in equal * 16. Natural and/ or illegitimate children - portions. (Art. 888.) 1/3 (Art. 894.), dividing it as in number 15. Illegitimate children - 2/5 the share of Surviving spouse - 1/3 (Art. 894.) each legitimate child (Art. 895, par. 2.) 17. Surviving spouse alone - 1/2 or 1/3 if * 6. Legitimate children - 1/2, in equal the marriage is in articulo mortis and the portions. deceased dies within 3 months after the Natural children - 1/2 of the share of marriage. (Art. 900.) a legitimate child. (Art. 895, par. 1.) Illegitimate children - 4/5 of the share 18. Illegitimate parents (natural or ) alone of each natural child. (Art. 895, par. 2.) - 1/2 (Art. 903.) * 7. One legitimate child - 1/2 (Art. 888.) 19. Illegitimate parents - none. (Art. Natural children - 1/2 of the share of 903.) a legitimate child. (Art. 895, par. 1.) Children or any class - same as in nos. Illegitimate children - 4/5 of the share 1, 4, 6 and 15, as the case may be. of a natural child. (Art. 895, par. 2.) Surviving spouse - 1/4 (Art. 892, par. 20. Illegitimate parents - 1/4 1.) Surviving spouse - 1/4 (Art. 903.) NOTE: All concurring heirs get their share from the free portion. The surviving spouse will be II. According to Balane (all shares are with preferred over the natural and illegitimate children, respect to the whole estate unless otherwise whose share may suffer reduction pro rata. (Art. provided.) 895, last par.) 1. 2 legitimate children - 1/2 shared 8. Legitimate children - 1/2, in equal equally = 1/4 each portions. (Art. 888.) Surviving spouse (hereinafter SS) - 1/4 Natural children - 1/2 of the share of a legitimate child. (Art. 895, par. 1.) 2. 5 Legitimate children - 1/2 shared Illegitimate children - 4/5 of the share equally = 1/10 of a natural child. (Art. 895, par. 2.) SS - same share as in legitimate child Surviving spouse - share equal to = 1/10 that of a legitimate child. (Art. 892, par. 2, 897, 898.) OBSERVE: There is an inverse proportion between number of children and the 9. Legitimate parents - 1/2, whether they share of the SS. survive alone or with concurring compulsory heirs. (Art. 889.) 3. 1 legitimate child - 1/2 SS - 1/4 10. Legitimate parents - 1/2 (Art. 889.) Natural children - 1/4, in equal shares. General rule: SS gets share (Art. 896.) equal to 1 legitimate child. Exception: If only 1 legitimate 11. Legitimate parents - 1/2 (Art. 889.) child, SS gets 1/4 Illegitimate children - 1/4, in equal shares (Art. 896.) 4. 2 legitimate parents - 1/2 shared equally * 12. Legitimate parents - 1/2 (Art. 889.) SS - 1/4 Natural children ---- 1/4 (Art. 896) but each illegitimate child gets - 1/2 shared 5. 2 legitimate parents 4/5 of the share of each nat Illegitimate children -- / par. 2.) equally SS - 1/8 13. Legitimate parents - 1/2 (Art 889.) 1 illegitimate child - 1/4 Surviving spouse - 1/4 (Art. 893.) 6. 2 legitimate parents - 1/2 shared * 14. Legitimate parents - 1/2 (Art. 889.) equally Natural children --- 1/4 (Art. 896) 3 illegitimate children - 1/4 but each illegitimate child gets 4/5 of the shared equally share of each natural child. (Art. 895, Illegitimate children - / par. 2.) 7. 2 illegitimate parents - none Surviving spouse - 1/8 (Art. 899.) 3 illegitimate children - 1/2 shared equally 15. Natural and/ or illegitimate children - all together get 1/2 (Art. 901.) If all 8. 1 adopted child - 1/2 natural or all illegitimate, dive the portion 2 legitimate parents - none. equally. If some are natural and others 9. SS - 1/3 illegitimate, each of the illegitimate child 4 illegitimate children - 1/3 shared gets only 4/5 of the share of each natural equally child. (Art. 895, par. 2.) MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS 10. SS - 1/4 22. 1 adopted child - 4 illegitimate children - 1/2 of the share of 1/2 shared equally a legitimate child = 1/8 each 1 legitimate child= 1/4 2 legitimate children - 1/2 shared equally SS - same share as a legitimate = 1/4 each child = 1/4 If it exceeds the estate, ratably diminish 1 illegitimate child - 1/2 share of the legitime of the illegitimate children = legitimate child = 1/8 1/16 2 legitimate or illegitimate parents - none 11. 2 illegitimate parents - 1/4 shared equally 23. 1 adopted child - 1/2 SS - 1/4 SS - 1/4 1 illegitimate child - 1/4 12. 2 legitimate children - 1/2 shared 2 legitimate or illegitimate parents equally - none SS - share equal to 1 legitimate child = 1/4 Under the Family Code: legitimate parents - none 1. If the decedent died before the Family Code took effect - legitimate: natural: illegitimate = 13. 1 adopted child - \ 10 : 5 : 4 1/2 shared 1 legitimate child ---- / 2. If the decedent died after the FC took equally effect - legitimate : illegitimate = 2 : 1. Do not SS - 1/4 distinguish between natural and spurious. 14. SS - 1/4 Concurring fraction - 1/2 - called basic Illegitimate parents - none legitime 1 adopted child - 1/2 In most cases, there will be a group or single heir who will get 1/2 of the estate. 15. SS alone - 1/2 except if the marriage is in articulo mortis, in which case the Exceptions: (1) Art. 894. - Illegitimate share is 1/3 children (1/3) and SS (1/3) a. Marriage is in articulo mortis (2) Art. 903. - Illegitimate b. Dies within 3 months parents (1/4) and SS (1/4) c. Not lived together for 5 years (3) Articles 900 - SS d. Person who dies is the sick alone in case of marriage in spouse articulo mortis with the following requisites: 16. 1 adopted child - 1/2 1 illegitimate child - 1/2 of the a. Marriage in articulo mortis share of an adopted child = 1/4 b. The spouse dies within 3 months. 17. 8 legitimate children - 1/2 shared c. They have not lived together equally = 1/16 for 5 years. 1 illegitimate child - 1/2 of the d. Spouse who dies is the sick share of a legitimate child = 1/32 spouse. SS - same as the share of 1 legitimate child = 1/16 Example, A, in the ICU, is rich and dying of AIDS. B, who has not lived with A, accepts A's 18. 8 legitimate children - \ proposal of marriage. They get married in the 1/2 shared equally hospital. After getting married, A lapses into a 1 adopted child = 1/18 each coma. The doctor sends B to buy the medicine. 1 illegitimate child - 1/2 of the As B is crossing the street, she is run over by a share of a legitimate child = 1/36 bus and dies. A is the only compulsory heir of B. SS - same share as 1 legitimate Is this the marriage in articulo mortis contemplated child = 1/18 by the 3rd exception? No. The one who should die within 3 months should be A for the exception 19. 1 legitimate parent - 1/2 to apply. SS - 1/8 1 illegitimate child - 1/4 Rationale for the exception in number 3 - It is the law's way of showing its distaste to 20. 1 legitimate parent - 1/2 marriages for convenience or for interest or gain. SS - 1/4 39 Exception to exception: If they have lived 21. 1 legitimate parent - 1/2 together for at least 5 years before the marriage. Page 1 illegitimate child - 1/4 This shows that it was not only for interest. Now that one is dying, to reward the other spouse. hotjurist 2009 Succession Exception to number 3 - Applies only if them equally; if one of the parents should have the wife is (the) only compulsory heir. Why? died, the whole shall pass to the survivor. Because in other cases, she will always get less If the testator leaves neither father nor than 1/2. Does not also apply to intestacy if the mother, but is survived by ascendants of equal wife is the only intestate heir. She will get the degree of the paternal and maternal lines, the whole estate. In such a case, the testator was not legitime shall be divided equally between both given a change to make a will. If given a chance, lines. If the ascendants should be of different he could have named other people. degrees, it shall pertain entirely to the ones nearest in degree of either line. Balane: Articles 889 and 890 - Legitimate parents Art. 888. The legitime of legitimate or ascendants alone - 1/2 of the estate. 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 A. Three rules: remaining half, subject to the rights of illegitimate children and of the surviving 1. Nearer excludes the more remote. No spouse as hereinafter provided. representation in the ascending line. Balane: 1. If there are legitimate children, they will Illustration: get collective legitime of 1/2 of the estate. It does a. If X dies, the legitime will be shared by the not say how they will divide the legitime. parents A and B because the nearer excludes the Commentators agree that they will divide the 1/2 more remote. equally regardless of age, sex, marriage of origin b. If A predeceases X, B gets all. A1 and A2 will (whether 1st, 2nd, etc.) get nothing because there is no right of representation in the ascending line. 2. Why descendants? Rule: Nearer excludes A1 A2 B1 B2 more remote. \ / \ / If there are children, they will exclude the A B more remote descendants, e.g., grandchildren \ / \ / When descendants? \ / a. Right of representation exists X b. All children renounce. Since all renounce, the next in line will inherit equally not by 2. Division by (between the) lines - 1/2 of virtue of representation but because they are the legitime each to maternal and paternal (assuming nearest relatives in the descending line. that the nearest relatives in both sides are of the same degree.) Illustration (see illustration above.) X a. If both parents predecease X, the / | \ nearest ascendants would be the grandparents. A B C Division by line will apply. The estate will be /| /\ | \ divided equally between the maternal and paternal e f gh i j lines (1/4 of estate each.) Legitimes: A1 = 1/8, A2 = 1/8, B1 = 1/8, B2 = 1/8 a. If A, B and C renounce, grandchildren will inherit b. If A1 predeceases X, there will still be b. If only B renounces, legitime will be equal division by lines. Both lines get 1/4 of the divided into 2 only, B's children cannot represent estate each. Legitimes: A2 = 1/4, B1 = 1/8, B2 = him. 1/8. NOTE: If one of the parents, either A or B, 3. Other half of the estate - free portion. Subject is alive, division by line will not apply. Rule 1 to the free disposal of the testator. If not disposed would apply where the nearer would exclude the of by the testator, then it will go by intestacy. more remote. The parent would exclude the grandparent. Art. 889. The legitime of legitimate 3. Equal division within the line. parents or ascendants consists of one-half of the hereditary estates of their children and B. How far up do you go? As far as possible as descendants. long as all lower ascendants are dead. The law The children or descendants may freely does not limit but nature does. dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one- Art. 890. The legitime reserved for the fourth of the hereditary estate. In case of a legitimate parents shall be divided between legal separation, the surviving spouse may MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS inherit if it was the deceased who had given 4. If A, B and C renounce cause for the same. legitime of 1/2 is divided equally-- no If there are two or more legitimate representation between the 9 grandchildren children or descendants, the surviving spouse shall be entitled to a portion equal to the According to Tolentino, Y gets 1/6. Y's legitime of each of the legitimate children or share is based on the number of children. To descendants. allow Y's share to be equal to a grandchild would In both cases, the legitime of the give the children the opportunity to reduce the surviving spouse shall be taken from the legitime of Y, especially if Y is only a stepmother. portion that can be freely disposed of by the The problem in this case is when "or descendants" testator. will apply. This issue is undecided. Balane: A. Legitime of Surviving spouse: Art. 893. If the testator leaves no 1. If valid or voidable marriage - Qualified. legitimate descendants, but leaves legitimate Spouse may inherit. ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. 2. If legally separated, it depends: This fourth shall be taken from the free a. If innocent spouse - not portion of the estate. disqualified to inherit from the guilty spouse b. If guilty spouse - disqualified to Balane: inherit from the innocent spouse. Combination: Legitimate parents or ascendants - 1/2 B. Rules as to legitime of the surviving spouse if (divide according to Art. 889 and 890.) concurring with legitimate children. Spouse - 1/4 1. 1 legitimate child - 1/2 of estate Free portion - 1/4 SS - 1/4 of estate 2. 2 or more legitimate children - Art. 894. If the testator leaves 1/2 of estate shared equally illegitimate children, the surviving spouse SS - share equal to that of a legitimate shall be entitled to one-third of the hereditary child. estate of the deceased and the illegitimate children to another third. The remaining third C. "Or descendant" (all portions are in relation to shall be at the free disposal of the testator. the whole estate unless otherwise provided.) Balane: This is one of the exceptions to the basic rule of 1/2. Illegitimate children - 1/3 collectively = Illustration: divided depending if the decedent died before (5 : X ------ Y (spouse) 4) or after (equal) the Family Code. / | \ A B C Surviving spouse - 1/3 /| /|\ |\ Free portion - 1/3 1234567 1. If B predeceases X Art. 895. The legitime of each of the A = 1/6 acknowledged natural children and each of the B's children = 1/18 per child natural children by legal fiction shall consist of C = 1/6 one-half of the legitime of each of the Y = 1/6 legitimate children or descendants. The legitime of an illegitimate child, 2. If B renounces who is neither an acknowledged natural child, A = 1/4 nor a natural child by legal fiction, shall be C = 1/4 equal in every case to four-fifths of the legitime Y = 1/4 of an acknowledged natural child. The legitime of the illegitimate children 3. If A, B and C predecease shall be taken from the portion of the estate at 1 and 2 = 1/12 each -- representation 3, 4 of 5 the free disposal andthe=testator, provided that 1/18 each 6 and 7 = 1/12 each in no case shall the total legitime of such Y = 1/6 illegitimate children exceed that free portion, and that the legitime of the surviving spouse According to commentaries: Y's share is must first be fully satisfied. 41 based on what the children would have received if they were alive. Page Art. 176. Illegitimate children shall use the surname and shall be under the parental hotjurist 2009 Succession authority of their mother, and other than acknowledged natural, or natural shall be entitled to support in children by legal fiction, the share of the conformity with this code. The surviving spouse shall be the same as that legitime of each illegitimate provided in the preceding article. child shall consist of one-half of the legitime of a legitimate Balane: This is the same as Art. 895. The FC has child. (Family Code.) simplified this. Balane: 1. Legitime of illegitimate children Art. 899. When the widow or widower affected by the Family Code. survives with legitimate parents or ascendants and with illegitimate children, such surviving a. If before - 10 : 5 : 4 spouse shall be entitled to one-eighth of the b. If after - 2 : 1 hereditary estate of the deceased which must be taken from the free portion, and the 2. Combination: illegitimate children shall be entitled to one- fourth of the estate which shall be taken also Legitimate children - 1/2 collectively from the disposable portion. The testator may Illegitimate children - 1/2 of the share of freely dispose of the remaining one-eighth of a legitimate child each the estate. SS - share is equal to that of 1 legitimate child. Balane: This shows how arbitrary legitime scheme is with regard to the surviving spouse. 3. Illustration: Legitimate parents - 1/2 divided X-----Y according to Articles 889 and 890 / | Illegitimate children - 1/4 divided A B C D depending on when the decedent died After the Family Code. SS - 1/8 Free portion - 1/8 a. A = 1/4 b. If there is a third illegitimate child, E B = 1/4 A = 1/4 Y = 1/4 B = 1/4 Legitime exceeds estate Art. 900. If the only survivor is the C = 1/8 Y = 1/4 widow or widower, she or he shall be entitled D = 1/8 C = 1/8 \ to one-half of the hereditary estate of the D = 1/8 - Reduce proportionally deceased spouse, and the testator may freely E = 1/8 / dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in C = 1/12 articulo mortis, and the testator died within D = 1/12 three months from the time of the marriage, E = 1/12 the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary Art. 896. Illegitimate children who may estate, except when they have been living as survive with legitimate parents or ascendants husband and wife for more than five years. In of the deceased shall be entitled to one-fourth the latter case, the legitime of the surviving of the hereditary estate to be taken from the spouse shall be that specified in the preceding portion at the free disposal of the testator. paragraph. Balane: Balane: Legitime of surviving spouse when he/ Legitimate parents - 1/2 divided according she survives alone: to Art. 889 and 890 General rule - 1/2; Illegitimate children - 1/4 collectively Free portion - 1/2 divided according to whether decedent died before Exception - Marriage in articulo mortis - or after the Family Code. 1/3; Free portion - 2/3 Art. 897. When the widow or widower survives with legitimate children or Art. 901. When the testator dies leaving descendants, and acknowledged natural illegitimate children and no other compulsory children, or natural children by legal fiction, heirs, such illegitimate children shall have a such surviving spouse shall be entitled a right to one-half of the hereditary estate of the portion equal to the legitime of each of the deceased. legitimate children which must be taken from The other half shall be at the free that part of the estate which the testator can disposal of the testator. freely dispose of. Balane: Illegitimate children - 1/2 divided either Balane: This is a repetition of Art. 895. equally (decedent died after the FC) or 5 : 4 Art. 898. If the widow or widower (decedent died before the FC.) survives with legitimate children or descendants, and with illegitimate children MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Art. 902. The rights of illegitimate children set forth in the preceding articles are Rules: a. Only legitimate children exclude transmitted upon their death to their legitimate parents descendants, whether legitimate or b. Any kind of children exclude illegitimate. illegitimate children. Balane: Illustration: Reserva Troncal. X / Art. 891. The ascendant who inherits A B from his descendant any property which the / \ / \ latter may have acquired by gratuitous title a1 a2 b1 b2 from another ascendant, or a brother or sister, is obliged to reserve such property as he may 1. A is legitimate while B is illegitimate have acquired by operation of law for the Both A and B predeceased X. A left a1, a benefit of relatives who are within the third legitimate child and a2, an illegitimate child. B left degree and who belong to the line from which b1, a legitimate child and b2, an illegitimate child. said property came. Who will inherit and not inherit when X dies? Balane: History of Reserva Troncal: A1 can inherit from X by representation. In the old law, there were 2 reservations: A2 cannot inherit from X in either intestate 1. Viudal - "ordinaria", Art. 968, OCC or compulsory succession because of Art. 992 2. Troncal - "lineal," "familial," which provides that an illegitimate cannot inherit "extraordinaria," Art. 811 of the OCC ab intestado from the legitimate relatives of the father or mother and vice-versa In addition: Reversiones 1. Legal - Art. 812 This results in inconsistency and 2. Adoption - Rules of Court unfairness. (Art. 902) read with Art. 992 puts a premium on bastardness. Preference is given to Reservations: Property set aside for a bastard children of bastard children as compared group of people who are limited to persons related to bastard children of legitimate children. from whom it came 2. If both A and B are dead. Who can X Reversiones: Property goes back to the inherit from? person from whom it came. a1 dies - X can inherit. a2 dies - X cannot inherit because of Art. The Code Commission abolished all 4. In 992 the floor of Congress, there was a last minute b2 dies - X cannot inherit. In illegitimacy, amendment to include reserva troncal. In 1963, you cannot go beyond the parent in PD 613 revived reversion adoptiva. But this was representation. eliminated by the Family Code. Now, only reserva b1 dies - Unknown. The law is silent on troncal remains. this. 1MS Art. 903. The legitime of the parents 3R 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 2P the widow or widower survives with parents of 4R the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate 1MS (Mediate Source) -- gratuitous title -- 2P of the child, and that of the surviving spouse (Prepositus) -- by operation of law -- 3R also one-fourth of the estate. (Reservista/ reserver) -- 4R (Reservatorios/ reservees) Balane: There are 2 combinations: I. Purpose of Reserva Troncal 1. Illegitimate parents - ½ does not go beyond illegitimate parents unlike Articles 899 and Gonzales v. CFI: The purpose of reserva 43 890. troncal is to return the property to where it originated and from where it strayed due to the Page 2. Illegitimate parents - none accident of marriage. "Accident" here means Legitimate or illegitimate children - unforeseen development. depending on who is left hotjurist 2009 Succession b. MS to P - by gratuitous title - 1. Feudal either: (1) donation a. Underlying concept: Property should stay with the family because it has stayed with them for so long and marriage should not be Chua vs. CFI: As long as the transmission allowed to cause that property to leave that family. to the heir is free from any condition imposed by the deceased himself and the property is given out b. To prevent the property from of pure generosity, it is gratuitous. Even if the leaving the family through the accident of Court ordered the heirs to pay Standard Oil, it is marriage. still gratuitous. If the expense or charge is just E.g., X ----- Y incidental, it is still considered gratuitous. | E.g., "I give you my house provided you A pay the mortgage." This is still gratuitous but you subtract the value of what you paid. Property from X's family. X dies, property goes to A. A dies, property goes to Y. 2. B = 2P - 3R The property may end up with Y's family. Operation of law: (a) compulsory succession 2. This is not good (b) intestate succession a. It impairs the free circulation of property Cannot be by: (a) testate succession b. Underlying philosophy is bad- (b) donation outdated, aristocratic. Reserva troncal commences at this point. II. Requisites 3. C = 3R - 4R This is a consequence of reserva troncal Chua v. CFI: 1.The property was This occurs when the reservista dies acquired by a person from an ascendant of from a Reserva troncal ends here. brother or sister by gratuitous title. 2. Said person died without IV. NATURE legitimate issue. 3. The property is inherited by 1. Of right of the reservista over the another ascendant by operation of law. reserved property. 4. There are relatives within the third degree belonging to the line from which said Edroso v. Sablan: property came. a. Reservista's right over the property is that of ownership. Comments: b. Reservista's right is subject to 1. "descendant" - applies only if one got it a resolutory condition which is that the from an ascendant; but what if one got it from a reservatorios exist at the time of the reservista's brother; it should have been "by a person or death. If there are, the reservista's right individual" terminates and the property will pass to the reservatorios. 2. Individual died without legitimate issue. c. Reservista's ownership is "Issue" here means children or alienable but subject to the same resolutory descendants. condition. The buyer's ownership is subject to the If with legitimate issue, this will not same resolutory condition. apply but will go to legitimate descendants. d. Reservista's right of ownership If with legitimate issue but they all is registrable. renounce, the individual dies as if there was no legitimate issue ["Uncle German- "germanus" - coming from the same seed; later came to mean 3. "Operation of law" means legal or "brother."] compulsory succession. Error in the case: The case said III. PROCESS. "reservatorios cannot dispose of the expectancy." According to the Sienes case, supra. which is 1MS 3R correct, the expectancy can be alienated. \ / \ A \ B / \ C 2. Of right of the reservatorios over the \ / \ 2P 4R reserved property. 1. A = 1MS - 2P Sienes v. Esparcia: a. Reservatorious right over the property a. MS - either only an: (1) during the life of the reservista is a mere ascendant \ expectancy. - of expectancy is subject to a b. The 2P suspensive condition which is that the reservatorio (2) brother or sister / is alive at the time the reservista dies. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS c. The right of expectancy can be Manresa's view is the accepted alienated but it will be subject to the same view. suspensive condition. d. The right of expectancy is registrable. 2. Prepositus: Either a descendant, or It must be annotated at the back of the title to brother or sister of the mediate source. protect the reservatorios from innocent purchasers for value. He is the central figure in the reserva troncal because: Errors in the case: 1. The case said the "right of reservista is a. At the time he receives the property, he subject to a double resolutory condition." - (a) becomes the absolute owner. He can prevent death of the reservista; and (b) survival or reserva troncal from happening. How? By reservatorio preventing it from going to an ascendant by However, the death of the reservista is a operation of law. How? term. It should be the "right of (the) reservatorio is subject to a suspensive condition." 1. By selling it. Dispose of a potentially free portion property (even by 2. The case said that "alienation by (the) pacto de retro.) reservatorios is subject to a resolutory condition." 2. Give it to an ascendant by It should read "suspensive condition." donation, devise, legacy or testamentary succession. V. PARTIES. b. He is the basis or point of reference for the third degree relationship. A. Four Parties. Note: There is no reserva troncal yet 1. Mediate Source: Either an ascendant while the property is in the hands of the or a brother or sister of the prepositus. prepositus. a. If ascendant, there is no problem. You know from what line the property came from. b. If brother or sister and full or half 3. Reservista- called "ascendant blood. reservista." He must be another ascendant other (i) If half blood, no problem. You than the mediate source if the mediate source is know what line the property came an ascendant. from. (ii) If full blood, there is a Reserva troncal begins once the problem. How will you what line it reservista inherits the property. He is bound by came from? the obligations. JBL Reyes: Reserva troncal applies only to half blood Q: Must the ascendant-reservista belong brothers and sisters. You cannot to a line similar to the mediate source or should he determine the line if it is of full be from a different line? blood. E.g., X-----Y Manresa: It should apply X donates to C. C dies and it goes to A. regardless of whether it is of full or | half blood. The law does not 1MS - X distinguish. A-----B 2P - C What line do you apply it | 3R - A ? to? You cannot apply it to either C line as long as it is within the third degree. Why? The purpose of the law is not only to bring back the property to the line (curative) Is there reserva troncal? but also to prevent it from leaving 1. No. The property never left the line. the family. 2. Yes. There is no requirement in Art 891 that the 1MS and 3R must belong to different E.g. A-----B lines. This is the view accepted by the majority of / \ commentators. X Y 45 Y to X. A is dead. X dies, so the 4. Reservatorios - class or group property goes to B. B remarries. The property is Page lost. a. Requirements: 1. Must be within the third degree from the prepositus. hotjurist 2009 Succession 2. Must be from the line from In effect, this requirement punishes which the property came legitimate relations because if the relation is 3. Must be related by blood to illegitimate, there is no obligation to reserve. the mediate source. (According to commentators.) IV. PROPERTY. E.g., A-----A1 | A. In order for reserva troncal to exist, B-----B1 (Reservista) property from 1MS -- 2P and from P - R must be | the same. C (Prepositus) What kind of property? Any kind, whether real B died. Upon A's death, C inherits from A. or personal, as long as it is the same property. Upon C's death, the property is transmitted to B1. What about money, can it be reserved? Yes. In Is A1 a reservatorio? money, the property is the purchasing power and not the bills. As such, the value of the money can Following the 3 requisites: be reserved. 1. Yes. 2. Yes. 3. No. A1 is not related by blood to the B. Special Problems mediate source. MS R \ / b. Reservation: in favor of a P class. It is not required that reservatorios be living at the time of the prepositus' MS donates a piece of land to P worth death but required to be alive at the time P100,000. P then dies without legitimate issue. R of the death of the reservista. Why? is the mother of P. Because reservation is in favor of a class. As long as you belong to the class when 1. If P had no will and the land is the only the reservista dies, then you are a property in his estate, what is reserved? The reservatorio. whole land. Note: 1/2 to R as legitime 1/2 to R by intestacy. c. How do they inherit within the class? 2. If with a will that said "I give the free portion to my mother," what is reserved? One-half Padura v. Baldovina: Apply the rules in (1/2) of the land. intestate succession: Note: 1/2 to R as legitime a. Nearer excludes the more 1/2 to R by will remote. b. Representation in favor or What is reserved is what R received as nieces for predeceased brother legitime (transferred by operation of law.) c. Proportion of 2 : 1 between full and half blood nephews and brothers. 3. If P acquired another piece of land However, there is no representation in the worth P100,000 before he died and he did not case because there are no other brothers. have a will, what is reserved? The land from MS However, the ratio of 2 : 1 is maintained. is reserved. Florentino v. Florentino: Representation 4. Same as number 3, but this time P died only in favor of nephews and nieces of deceased with a will stating "I give the free portion to my brothers and sisters of the prepositus. The case is mother." What is reserved? wrong, however, when it did not distinguish between full and half blood nephews and nieces. Note: 1/2 to R as legitime = P100,000 1/2 to R by will = P100,000 Land from MS - can be reserved B. Three relationships: Land subsequently acquired - cannot be reserved. 1. Mediate Source: Prepositus- ascendant or brother or Two theories: sister a. Reserva maxima (maximum operation of reserva 2. Prepositus: troncal) - fit as much of reservable Reservista - descendant - ascendant property as you can in the 1/2 by relationship legitime. In the example, the whole land from MS is reservable. 3. Reservatorio - Reservista b. Reserva minima Mediate Source - blood relation (followed by most commentators) Prepositus - within the 3rd degree - Every item will pass according to ratios of the properties. In the All relationship must be legitimate. example, 1/2 will pass as legitime and 1/2 by will for both pieces of MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS land = 1/2 of land from MS is estate of the reservista. It is a kind of delayed reservable. succession (JBL Reyes) from the prepositus. 5. If the land from MS is 100,000 and the Cano v. Director - The reserved land subsequently acquired is 60,000, and P died properties does not form part of the reservista's without a will, what is reserved? estate if there are reservatorios Note: 1/2 as legitime = 80,000 1/2 by intestacy = 80,000 2. Death of all the reservatorios - Reservista's title to the properties becomes absolute and a. Reserva Maxima - 8/10 of unconditional. land from MS is reservable b. Reserva Minima - 1/2 of the 3. Fortuitous loss of the reserved properties If the land from MS is reservable loss was due to the fault of the reservista, the security will answer for the property. 6. Same as number 6 but P had a will stating "I bequeath 1/4 of my estate to my mother." 4. Waiver by all the reservatorios provided no What is reserved? reservatorio is subsequently born - This is a tentative extinguishment because those Note: 1/2 as legitime = 80,000\ 3/4 by subsequently born cannot be bound by the waiver. 1/4 by intestacy = 40,000/ operation of law A waiver is personal. 1/4 by will = 40,000 5. Registration of the properties under the Torrens a. Reserva maxima - Whole system by an innocent purchaser for value land from MS is reservable wherein the reservable character of the properties b. Reserva minima - 3/4 of land is not annotated on the title - not really an from MS is reservable extinguishment but more of a freeing of the Look at how much passes properties The reservista, however, is liable for by operation of law. the value of the properties plus damages. This arises only if: 6. Extinctive prescription - reservista adversely 1. P dies leaving property he got from MS occupies the properties or openly denies the by gratuitous title and other property from other reserva. sources. 2. P made a will instituting the reservista 7. Merger - Reservista can alienate - but must to part of the estate. be to all the reservatorios or if only to one, then merger takes place only with regard to that share. VI. RIGHTS AND OBLIGATIONS OF THE PARTIES. In settlement proceedings of the estate of the reservista, reservatorios may enter a claim to Rights of Reservatorio exclude the properties from the inventory. Reservatorios can also file an accion 1. To demand inventory and appraisal. reivindicatoria. However, this is usually 2. To demand annotation of reservable consolidated with the settlement proceedings. character of the properties. proper. within 90 days 3. To demand security/ bond. Obligations of Reservista Art. 904. The testator cannot deprive his compulsory heirs of their legitime, except 1. To inventory and appraise in cases expressly specified by law. 2. To annotate reservable character proper. Within Neither can he impose upon the same 90 days any burden, encumbrance, condition, or 3. To give security/ bond substitution of any kind whatsoever. Balane: Par. 1: The testator cannot deprive his Sumaya v. IAC - It is jurisprudence only compulsory heirs of their legitime. Otherwise, he that states that there is an obligation to annotate. will preterit them or disinherit them ineffectively. The other rights exist by analogy from the Old Code wherein similar rights existed for reserva Par. 2: See Art. 864 and 872. The viudal. principle is that the testator has no power over the legitime VIII. Extinguishment Exceptions: 47 a. Art. 238: Family home- Ten (10) 1. Death of reservista - No more reserva troncal. years. Page The reservatorios get the property. If there are no b. Art. 1080: Partition inter vivos of will reservatorios, the properties shall form part of the c. Art. 1083: Indivision for 20 years d. Art. 891: Reserva troncal. hotjurist 2009 Succession testator shall be considered, deducting all debts and charges, which shall not include Art. 905. Every renunciation or those imposed in the will. compromise as regards a future legitime To the net value of the hereditary between the person owing it and his estate, shall be added the value of all compulsory heirs is void, and the latter may donations by the testator that are subject to claim the same upon the death of the former; collation, at the time he made them. but they must bring to collation whatever they may have received by virtue of the Balane: How to compute the net estate: renunciation or compromise. 1. Inventory all gross assets. 2. Deduct unpaid debts from the gross Balane: This is the prodigal son provision. assets since the debts of the decedent are to be 1. Money received by the compulsory heir paid by his estate. (is) considered as advance on his legitime. Art. 905 prohibits any contract or agreement between Gross assets - Debts = Available assets. the predecessor and the successor. Even if there is an agreement, the same is not binding and the 3. Add donations inter vivos made by the heir can still get his legitime minus the advance. decedent to anyone. The value of the donated property is to be ascertained at the time the 2. If the agreement is between the heir donation was made. Any change in the value is and his brother that he will waive his legitime in for the account of the donee-owner. favor of his brother, can he later claim his legitime after their father's death? No. The agreement is void under Art. 1347 that "No contract may be Available assets + Donations = Net entered into upon future inheritance except in Hereditary Estate. cases expressly authorized by law." | The basis for computing the legitime Two views: a. Tolentino: The heir should Gross Assets P2,500 return money to his brother as a matter of Outstanding debts 500 equity. This is not a case of collation Available assets because the money was not received from the decedent. Donation to eldest son + 300 !991 stock to brother + 500 b. Do not return the money Donation to daughter + 200 because they are in pari delicto. They Net Estate P3,000 should be left as they are. The reason is that the right of the compulsory heirs is If there are 3 children - legitime = only inchoate, the same principle applied 1,500,000 in Art. 777. 500,000 each. Spouse - legitime = 500,000. Art. 906. Any compulsory heir to whom the testator has left any title less than the legitime belonging to him may demand that the same be fully satisfied. Art. 909. Donations given to children shall be charged to their legitime. Balane: "By any title" means by gratuitous title. (It Donations made to strangers shall be also covers) donation inter vivos which are charged to that part of the estate of which the considered advances on the legitime. testator could have disposed by his last will. Insofar as they may be inofficious or Relate this provision to Articles 909 and may exceed the disposable portion, they shall 910. be reduced according to the rules established by this Code. Relate his also to Art. 1062 where the testator expresses otherwise for purposes of collation only and not preterition. Art. 910. Donations which an illegitimate child* may have received during Art. 907. Testamentary dispositions the lifetime of his father or mother, shall be that impair or diminish the legitime of the charged to his legitime. compulsory heirs shall be reduced on petition Should they exceed the portion that of the same, insofar as they may be inofficious can be freely disposed of, they shall be or excessive. reduced in the manner prescribed by this Code. Balane: Relate this provision to Art. 1011. Balane: Articles 909 and 910 are taken together. Art. 908. To determine the legitime, the value of the property left at the death of the MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS A. 1. Donation to child, whether legitimate or illegitimate The first to bear the reduction is the Donation to parents or ascendants donation to D, so deduct 10,000 from him (Art. 1062.) A = 20,000 General rule: Charged to the B = 20,000 legitime C = 20,000 Exception: If the testator provides D = 30,000 otherwise. (Art. 1062.) M = 30,000 2. Donation to spouse General rule: Not allowed. Art. 911. After the legitime has been Exception: Gifts of moderate determined in accordance with the three value; treat the same as a donation to a preceding articles, the reduction shall be made compulsory heir. as follows: (1) Donations shall be respected as 3. Donation to a stranger - charged long as the legitime can be covered, reducing to the free portion. or annulling, if necessary, the devise or legacies made in the will; B. Collation (Art. 1061.) (2) The reduction of the devises or legacies shall be pro rata, without any 1. Three senses distinction whatever. a. Computation: Art. 908, par. 2 If the testator has directed that a b. Imputation: Articles 909 and certain devise or legacy be paid in preference 910. to others, it shall not suffer any reduction until c. Reduction/ return: Articles 911 the latter have been applied in full to the to 913. payment of the legitime. (3) If the devise or legacy consists of a 2. Example, X -------- usufruct or life annuity, whose value may be | | | : considered greater than that of the disposable A B C D portion, the compulsory heirs may choose between complying with the testamentary Gross Estate provision and delivering to the devisee or 70,000 Less: Debts legatee the part of the inheritance of which the 35,000 Available assets testator could freely dispose. 35,000 Add: Donations: 1987 to A 15,000 Balane: Order of reduction 1989 to M 1. Legacies and devises. (Art. 907.) 30,000 1991 to D 40,000 Net Hereditary Estate General rule: Pro-rata. 120,000 Exception: Preferred ones as stated by Legitimes: Donation Advance : Lack_______ the testator will be the last to be reduced among on Legitime the devises and legacies if still needed. A 20,000 15,000 5,000 2. Reduce donations to strangers. B 20,000 0 20,000 C 20,000 0 20,000 Rule: Most recent donation to be reduced D 10,000 40,000 (30,000) first (earlier donations are preferred.) See Art. 773, NCC. P45,000 is needed to comply with the Note: 1 and 2 will be reduced even up to legitime but (we) only have 35,000 available 0 as long as needed. assets. So we need 10,000. Reduce the donations. 3. Reduce the share of illegitimate children. a. Donation to B is considered as donation to a stranger as far as the 30,000 is Art. 950. If the estate concerned. should not be sufficient to b. Donation to M is a donation to a cover all the legacies or stranger. devises, their payment shall be c. Donation to A is not subject to made in the following order: reduction. (1) Remuneratory 49 legacies or devises; (2) Legacies or devises Page declared by the testator to be preferential; hotjurist 2009 Succession (3) Legacies for Art. 917. The burden of proving the support; truth of the cause for disinheritance shall rest (4) Legacies for upon the other heirs of the testator, if the education; disinherited heir should deny it. (5) Legacies or devises of a specific, determinate thing which forms part of the estate; Art. 918. Disinheritance without a (6) All others pro rata. specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or Art. 912. If the devise subject to which is not one of those set forth in this reduction should consist of real property, Code, shall annul the institution of heirs which cannot be conveniently divided, it shall insofar as it may prejudice the person go to the devisee if the reduction does not disinherited; but the devises and legacies and absorb one-half of its value; and in a contrary other testamentary dispositions shall be valid case, to the compulsory heirs; but the former to such extent as will not impair the legitime. and the latter shall reimburse each other in cash for what respectively belongs to them. The devisee who is entitled to a Art. 919. The following shall be legitime may retain the entire property, sufficient causes for the disinheritance of provided its value does not exceed that of the children and descendants, legitimate as well disposable portion and of the share pertaining as illegitimate: to him as legitime. (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, Art. 913. If the heirs or devisees do not descendants, or ascendants; choose to avail themselves of the right granted (2) When a child or descendant has by the preceding article, any heir or devisee accused the testator of a crime for which the who did not have such right may exercise it; law prescribes imprisonment for six years or should the latter not make use of it, the more, if the accusation has been found property shall be sold at public auction at the groundless; instance of any one of the interested parties. (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; Art. 914. The testator may devise and (4) When a child or descendant by bequeath the free portion as he may deem fit. fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; Section 6: Disinheritance. (5) A refusal without justifiable cause to support the parent or ascendant who Balane: A compulsory heir cannot deprive his disinherits such child or descendant; compulsory heir of his legitime unless expressly (6) Maltreatment of the testator by provided by law. The law expressly provides only word or deed, by the child or descendants; one way, valid disinheritance. (7) When a child or descendant leads a dishonorable or disgraceful life; Requisites: (8) Conviction of a crime which carries 1. Made in a valid will. (Art. 916.) with it the penalty of civil interdiction. 2. Identity of the heir is clearly established 3. For a legal cause. (Articles 919 to 921.) Balane: This is an exclusive list and not 4. Expressly made illustrative. 5. Cause stated in the will. 6. Absolute or unconditional (not "if he Grounds: doesn't apologize.") 1. Attempt against the life, etc: Final 7. Total conviction is necessary. 8. Cause must be true and if challenged "Attempt" is a generic term which includes by the heir, it must be proved to be true all kinds of commission, whether frustrated or (proponent of disinheritance has the burden of consummated. proof.) Intent to kill must be present. 2. Accusation. Elements: Art. 915. A compulsory heir may, in a. Accusation is a generic term which consequence of disinheritance, be deprived of includes: his legitime, for causes expressly stated by (i) filing of an information; (ii) presenting law. incriminating evidence; (iii) acting as a witness against the ascendant. b. Imprisonment of more than six (6) Art. 916. Disinheritance can be years effected only through a will wherein the legal c. Accusation is groundless: Ascendant cause therefore shall be specified. is acquitted on the finding that: (i) there is no crime; or (ii) that the ascendant did not commit it. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS If the ascendant was acquitted on law prescribes imprisonment for six years or reasonable doubt, the ascendant cannot disinherit more, if the accusation has been found to be because the accusation is not groundless. false; (4) When the parent or ascendant has 3. Adultery and concubinage: This needs been convicted of adultery or concubinage conviction. E.g., When your parent remarries with the spouse of the testator; someone young and you have an affair with that (5) When the parent or ascendant by person. fraud, violence, intimidation, or undue influence causes the testator to make a will or 4. Fraud, violence, intimidation or undue to change one already made; influence as regards the will: This goes into the (6) The loss of parental authority for very essence of will-making- The freedom causes specified in this Code; deprived by the child or descendant. (7) The refusal to support the children It does not mention prevent because if he or descendants without justifiable cause; was prevented, how can he make a will of (8) An attempt by one of the parents disinheritance? Prevention is a ground for against the life of the other, unless there has unworthiness (Art. 1032, par. 7) which has the been a reconciliation between them. same effect as disinheritance. Balane: Numbers 2, 5 and 7 are the same as the 5.Refusal to support without justifiable grounds in Art. 919. cause: Refusal, itself, is not a ground; it must be unjustified. E.g., In the FC, there is an order of Grounds: preference for support. The person may be willing 1. Enumerates 3 grounds: to support but it is not economically feasible. A a. Abandonment by parent of his children: person must support his wife and children first. In abandonment, there are two (2) views: There is here a justified refusal. 1. Strict: Leaving them alone while still children under circumstances 6. Maltreatment: No conviction is required that would endanger them. as compared to number 1 wherein conviction is 2. Accepted: Any case where a needed. This may be proven by preponderance of parent, without justifiable cause, withholds evidence. It is possible for an act not to fall in his care. E.g., Leaving someone at the number 1 but to fall in number 6. doorstep. E.g., The son shoots his father. The father is wounded but he recovers. The father b. Induced their daughter to live a corrupt does not want a scandal so he does not file or immoral life: Does it include grandparents to charges against his son. So, he disinherits his son granddaughters? Yes. The provision covers not under number 1 but under no. 6. ascendant's vis-à-vis descendants. 7. Leads a dishonorable life: This is a c. Attempt against their virtues: Mere catch-all provision. "Leads" denotes habituality. attempt is enough as long as it can be proven. Dishonorable and disgraceful are based on the sense of the community as perceived by the Note: In all 3 cases, conviction is not judge. It is not limited to sexual immorality. E.g., required. drug addict, alcoholic. 6. Loss of parental authority: FC does not include 9. Civil Interdiction: Conviction is all causes of loss of parental authority. Exception: required. Adoption, age of majority. Accessory penalty that goes with the The grounds refer to those which involve principal penalty of reclusion temporal and up. the same moral culpability. Exception: Articles 229, par. 4, 230 and 231 of FC. Notes: Conviction is required in numbers 1, 3 and 9. 7. Attempt by a parent against the other: This does not need conviction. Exception: When they reconcile. Art. 920. The following shall be This presupposes that there is no sufficient causes for the disinheritance of disinheritance yet. parents or ascendants, whether legitimate or Losses right to disinherit upon illegitimate: reconciliation. (1) When the parents have abandoned But what if already disinherited before their children or induced their daughters to live reconciliation? This is not clear. But it should be a corrupt or immoral life, or attempted against considered revoked because in case of doubt, their virtue; resolve against disinheritance. (2) When the parent or ascendant has 51 been convicted of an attempt against the life of the testator, his or her spouse, descendants, Art. 921. The following shall be Page or ascendants; sufficient causes for disinheriting a spouse: (3) When the parent or ascendant has (1) When the spouse has been accused the testator of a crime for which the convicted of an attempt against the life of the hotjurist 2009 Succession testator, his or her descendants, or 1. Effect of disinheritance is not explicitly ascendants; provided for. (2) When the spouse has accused the The total exclusion = loss of legitime, right testator of a crime for which the law prescribes to intestate succession, and of any disposition in a imprisonment for six years or more, and the prior will. accusation has been found to be false; (3) When the spouse by fraud, 2. "Takes place only in legitime."- The law violence, intimidation, or undue influence assumes that free portion has been given away. If causes the testator to make a will or to change not, include the intestate portion. one already made; (4) When the spouse has given cause 3. Representation: (This is applicable for legal separation; only) if (the) person disinherited is a child or (5) When the spouse has given descendant. grounds for the loss of parental authority; Includes both legitime and intestate share (6) Unjustifiable refusal to support the of the disinherited heir. children or the other spouse. Balane: Similar grounds found in Articles 919 and X 920. ----- 1. Both. | | 2. Both. A B 3. Both. ---- 5. Art. 920 only. | | 6. Both. a1 a2 The only new ground is number 4: a. X made a will giving Y, a friend, 1/2 of Legal separation is not a ground. If there his estate. This covered the free portion. X validly is legal separation, you do not need to disinherit. disinherited A. Can a1 and a2 represent A? Yes. Disinheritance takes place by operation of law. Children of A can represent him as to the legitime As long as there is cause for legal only because the free portion has been given to B. separation, you can disinherit provided you are the offended spouse. b. X validly disinherits A. X did not dispose of his free portion. How much will the Art. 922. A subsequent reconciliation children of A inherit from X? They will inherit A's between the offender and the offended person share in the legitime and in the free portion, deprives the latter of the right to disinherit and 1/4 - legitime renders ineffectual any disinheritance that may 1/4 - free portion. have been made. The representative of the disinherited Balane: 1. Reconciliation: Two persons who are person will receive both the legitime and the free at odds decide to set aside their differences and to portion which might have accrued to the person resume their relations. They need not go back to disinherited if he had not been disinherited. their old relation. A handshake is not reconciliation. It has to be something more. It must be clear and deliberate. Section 7: Legacies and Devises. 2. What is the effect of reconciliation? a. If there is no will: It deprives Balane: Definition in Art. 782 is not a good the offended person of his right to disinherit the definition. offending person. 1. Castan: "A legacy or a devise is a b. If already disinherited: It sets gratuitous grant in a will of a specific personal or aside disinheritance already made. real property." 2. a. In a devise or legacy, "a person 3. This is inconsistent with Art. 1033. In succeeds by particular title," to a specific property. disinheritance, reconciliation is sufficient. It need not be in writing. In unworthiness, however, it b. Heir is "a person who succeeds needs to be in writing. This is inconsistent by universal title," to a fractional part of the estate. because when you are dealing with the express will to disinherit, reconciliation is enough when you are dealing with the presumed will, it must be in Art. 924. All things and rights which writing. are within the commerce of man may be bequeathed or devised. Art. 923. The children and descendants of the person disinherited shall take his or her Balane: What can be bequeathed or devised? place and shall preserve the rights of Anything within the commerce of man or which is compulsory heirs with respect to the legitime; alienable. but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. Art. 925. A testator may charge with legacies and devises not only his compulsory Balane: Representation in case of disinheritance: heirs but also legatees and devisees. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS The latter shall be liable for the charge (1) Testator gives more: E.g., Giving it in only to the extent of the value of the legacy of it's entirety. How? The estate should buy out the the devise received by them. The compulsory rest of the property. If co-owners don't like to sell, heirs shall not be liable for the charge beyond then the estate gives him the testator's share plus the amount of the free portion given them. the cash value of the rest of the property. (2) Testator gives less: Art. 794. Balane: This provision gives a misimpression. General rule: Legacy or devise is an obligation of the estate unless it impairs the Art. 930. The legacy or devise of a thing legitimes. belonging to another person is void, if the Exception: If the obligation is imposed by testator erroneously believed that the thing the testator on a testamentary heir, devisee or pertained to him. But if the thing bequeathed, legatee. The obligation becomes a sub-devise or though not belonging to the testator when he sub-legacy = mode imposed on the heir, devisee made the will, afterwards becomes his, by or legatee. whatever title, the disposition shall take effect. E.g., "I give A 1/4 of my estate but I impose upon him the obligation to give B a car." Art. 931. If the testator orders that a If A wants to accept the 1/4, he will have thing belonging to another be acquired in to give a car to B. 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 Art. 926. When the testator charges one to the legatee or devisee; but if the owner of of the heirs with a legacy or devise, he alone the thing refuses to alienate the same, or shall be bound. demands an excessive price therefore, the heir Should he not charge anyone in or the estate shall only be obliged to give the particular, all shall be liable in the same just value of the thing. proportion in which they may inherit. Balane: Articles 930 and 931. Art. 930: General rule: A legacy or devise Art. 927. If two or more heirs take of a thing belonging to someone else when the possession of the estate, they shall be testator thought that he owned it is a void legacy solidarily liable for the loss or destruction of a or devise because it is vitiated by mistake. thing devised or bequeathed, even though only Exception: If the testator acquires it after one of them should have been negligent. making his will. Art. 931: If the thing given as devise or Art. 928. The heir who is bound to legacy is not owned by the testator at the time he deliver the legacy or devise shall be liable in made the will but he orders his estate to acquire it, case of eviction, if the thing is indeterminate it is a valid legacy or devise. The testator knew and is indicated only by its kind. that he did not own it. There is no mistake. Balane: (This is a) bad way to put it. As in Art. Middle ground: Supposing: 925, it is not the heir, devisee or legatee who is a. The testator knew that he did not own liable but the estate unless sub-legacy is imposed. it: Art. 930 does not apply. b. Testator does not order his estate to E.g., "I give a fishpond to X." The purchase it: Art. 931 does not apply. fishpond was given to X. If a third person then puts a claim on the fishpond and succeeds in What is the status of that legacy or taking possession of the fishpond by winning the devise? According to Tolentino, when the testator suit, then as a general rule, the estate is liable gave the legacy or devise knowing that it is not unless it is a sub-devise or sub-legatee, in which his, there is an implied order to the estate to case the devisee or legatee is liable. acquire it. Apply Art. 931 by analogy. At the very least, there is a doubt and doubts are resolved in favor of validity. 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 Art. 932. The legacy or devise of a understood limited to such part or interest, thing which at the time of the execution of the unless the testator expressly declares that he will already belonged to the legatee or devisee gives the thing in its entirety. shall be ineffective, even though another person may have interest therein. Balane: The property given is owned only in part If the testator expressly orders that the 53 by the testator. thing be freed from such interest or General rule: If the testator owns only a encumbrance, the legacy or devise shall be Page part, the devisee or legatee will only get that part. valid to that extent. Exceptions: hotjurist 2009 Succession Balane: Legacy of a thing already belonging to In both cases, the legacy shall the legatee or devisee. comprise all interests on the credit or debt which may be due the testator at the time of his death. Art. 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or Art. 936. The legacy referred to in the devise shall be without effect, even though it preceding article shall lapse if the testator, may have been subsequently alienated by him. after having made it, should bring an action If the legatee or devisee acquires it against the debtor for the payment of his debt, gratuitously after such time, he can claim even if such payment should not have been nothing by virtue of the legacy or devise; but if effected at the time of his death. it has been acquired by onerous title he can The legacy to the debtor of the thing demand reimbursement from the heir or the pledged by him is understood to discharge estate. only the right of pledge. Balane: This is the same situation as in Art. 932. Balane: The legacy to the debtor of the thing Par. 1: The legacy or devise is ineffective pledged by him is understood to discharge only even if the legatee or devisee alienates the thing the right of pledge. after the will is made. Par. 2: If at the time the legacy or devise is made, the thing did not belong to the legatee or Art. 937. A generic legacy of release or devisee but later on he acquires it, then: remission of debts comprises those existing at a. If he acquired it by the time of the execution of the will, but not gratuitous title, then the legacy or subsequent ones. devise is void because the purpose of the testator that the Balane: Legacy of credit or remission. Articles property go to the devisee or 935 to 937. legatee has already been accomplished with no expense to A. Definitions. the legatee or devisee. 1. Legacy of credit: takes place when the b. If he acquired it by testator bequeaths to another a credit against a onerous title, then the legacy or third person. In effect, it is a novation of the credit devise is valid and the estate may by the subrogation of the legatee in the place of be required to reimburse the the original creditor. E.g., "I give to A all the debts amount. B owes me." 2. Legacy of remission: a testamentary Art. 934. If the testator should bequeath disposition of a debt in favor of the debtor. The or devise something pledged or mortgaged to legacy is valid only to the extent of the amount of secure a recoverable debt before the execution the credit existing at the time of the testator's of the will, the estate is obliged to pay the debt, death. In effect, the debt is extinguished. E.g., "I unless the contrary intention appears. give to A as legacy his debt to me." The same rule applies when the thing is pledge or mortgaged after the execution of the B. Rules applicable. will. 1. Art. 935: Legacy applies only to the Any other charge, perpetual or amounts outstanding at the time of the testator's temporary, with which the thing bequeathed is death. E.g., A owes B P1,000. B makes a will burdened, passes with it to the legatee or giving as legacy to A the debt of A. After the will is devisee. made, A pays B 500. How much is the legacy? P500. Balane: Par. 1: The purpose of the payment of debt is so that the legatee or devisee will get it free 2. Art. 936: The legacy is revoked if the from encumbrance. testator files an action (judicial suit) against the General rule: Pledge/ mortgage must be debtor. E.g., A bequeaths the credit he has paid by the estate. against B to B. After making the will, A sues B for Exception: If the testator provides collection. A dies while the suit is pending. Does otherwise. B have a right to the credit? No. The filing of the action revoked the legacy. Par. 3: E.g., Easement, usufruct. 3. Art. 937: It applies only to credits existing at the time the will was made, and not to Art. 935. The legacy of a credit against subsequent credits. E.g., "I give to A all the a third person or of the remission or release of credits I have against B." When the will was a debt of the legatee shall be effective only as made, B had 3 debts. After the will was made, B regards that part of the credit or debt existing incurs 2 more debts. Which ones can A claim? at the time of the death of the testator. General rule: Only the first 3. In the first case, the estate shall comply Exception: When the testator provides with the legacy by assigning to the legatee all otherwise. rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Art. 938. A legacy or devise made to a Even if no thing of the same kind creditor shall not be applied to his credit, There must exist immovables unless the testator so expressly declares. exist in the estate, the legacy is In the latter case, the creditor shall of the same kind in order to be have the right to collect the excess, if any, of valid. The estate will have to buy it. the credit or of the legacy or devise. valid. Balane: General rule: Legacy or devise is not considered payment of a debt. Why? Because if Why the difference in the rules? it is, then it would be a useless legacy or devise Historically, in Roman Law, personal property was since it will really be paid. treated with more liberality because they were Exception: If the testator provides easier to acquire and dispose. otherwise. If given a choice, I would amend the law and make the same rule applicable to both, Art. 939. If the testator orders the namely, the rule on devises. This would be more payment of what he believes he owes but does in conformity with the intent of the testator. not in fact owe, the disposition shall be (Balane.) considered as not written. If as regards a specified debt more than the amount thereof is Right of choice: Executor/ administrator. ordered paid, the excess is not due, unless a Must give neither inferior nor superior quality. contrary intention appears. The foregoing provisions are without prejudice to the fulfillment of natural Art. 942. Whenever the testator obligations. 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 Art. 940. In alternative legacies or may prefer. 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 Art. 943. If the heir, legatee or devisee executor or administrator of the estate if no cannot make the choice, in case it has been particular heir is so obliged. granted him, his right shall pass to his heirs; If the heir, legatee or devisee, who may but a choice once made shall be irrevocable. have been given the choice, dies before making it, this right shall pass to the respective heirs. Art. 944. A legacy for education lasts Once made, the choice is irrevocable. until the legatee is of age, or beyond the age of In alternative legacies or devises, majority in order that the legatee may finish except as herein provided, the provisions of some professional, vocational or general this Code regulating obligations of the same course, provided he pursues his course kind shall be observed, save such diligently. modifications as may appear from the A legacy for support lasts during the intention expressed by the testator. lifetime of the legatee, if the testator has not otherwise provided. Balane: "heir upon whom the obligation to give If the testator has not fixed the amount the legacy or devise may be imposed." (This is) of such legacies, it shall be fixed in not necessary. Look at the general rule and the accordance with the social standing and the exception in Art. 925. circumstances of the legatee and the value of The same rules as in alternative the estate. obligations apply. See Articles 1199 to 1206. If the testator during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same Art. 941. A legacy of generic personal amount shall be deemed bequeathed, unless it property shall be valid if there be no things of be markedly disproportionate to the value of the same kind in the estate. the estate. A devise of indeterminate real property shall be valid only if there be immovable Balane: Duration and Amount of the different property of its kind in the estate. legacies. The right of choice shall belong to the Rules as to amount: executor or administrator who shall comply 1. Amount prescribed by the testator with the legacy by the delivery of a thing which 2. What the testator used to give during is neither of inferior nor of superior quality. his lifetime 55 3. In accordance with the social standing Balane: and circumstances of the legatee. In other words, Page Generic Legacy vs. Indeterminate Devise according to his needs. hotjurist 2009 Succession Art. 945. If a periodical pension, or a 2. Fruits which depends on whether: certain annual, monthly, or weekly amount is a. Pure and specific: Upon the testator's bequeathed, the legatee may petition the court death. (Art. 948.) for the first installment upon the death of the b. Pure and generic: Upon determination testator, and for the following ones which shall of what is to be delivered to the devisee or legatee be due at the beginning of each period; such unless the testator provides otherwise. (Art. 949.) payment shall not be returned, even though c. With a term: Upon arrival of the term. the legatee should die before the expiration of d. Conditional: Upon the happening of the period which has commenced. the suspensive condition. Balane: E.g., Testator dies on March 1, 1996. 3. Ownership He has a will giving A a monthly pension of a. Pure and specific: Upon the death of P1,000. the testator. (Art. 777.) 1. If we follow Art. 945 literally, A can compel the estate to give him his pension from b. Pure and generic: It depends: March 1, 1996. (i) if the thing comes from 2. In reality, A has to wait. The estate the testator's estate, upon the should be settled first (will probated, payment of testator's death debts, determine if legacy is effectual, etc.) After (ii) if the thing has to be settlement of the estate, A can demand his legacy acquired from a third person, upon and its effectivity will retroact to March 1, 1996. the acquisition of the thing. c. With a term: Upon the testator's death Art. 946. If the thing bequeathed (effect retroacts.) should be subject to a usufruct, the legatee or devisee shall respect such right until it is d. Conditional: Upon the testator's death legally extinguished. (effect retroacts.) Balane: This is the same as in Art. 934, par. 3. Art. 950. If the estate should not be sufficient to cover all the legacies or devises, Art. 947. the legatee or devisee their payment shall be made in the following acquires a right to the pure and simple order: legacies or devises from the death of the (1) Remuneratory legacies or devises; testator, and transmits it to his heirs. (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; Art. 948. If the legacy or devise is of a (5) Legacies or devises of a specific, specific and determinate thing pertaining to determinate thing which forms part of the the testator, the legatee or devisee acquires estate; the ownership thereof upon the death of the (6) All others pro rata. testator, as well as any growing fruits, or unborn offspring of animals, or uncollected Balane: Order of preference. income; but not the income which was due and This conflicts with Art. 911: "If you reduce unpaid before the latter's death. legacies, reduce all except those preferred From the moment of the testator's according to the testator."- Inconsistent. death, the thing bequeathed shall be at the risk Solution according to commentators: Give of the legatee or devisee, who shall, therefore, each its own sphere of operation: bear its loss or deterioration, and shall be 1. If you have to reduce because legitimes benefitted by its increase or improvement, have been impaired, follow Art. 911. without prejudice to the responsibility of the 2. If for any other reason, follow Art. 950. executor or administrator. Art. 951. The thing bequeathed shall be Art. 949. If the bequest should not be delivered with all its accessions and of a specific and determinate thing, but is accessories and in the condition in which it generic or of quantity, its fruits and interests may be upon the death of the testator. from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. Art. 952. The heir, charged with a legacy or devise, or the executor or Balane: Articles 947 to 949: Rules on administrator of the estate, must deliver the Demandability, Fruits and Ownership. very thing bequeathed if he is able to do so and cannot discharge this obligation by paying 1. Demandability depends on whether: its value. a. Pure: Upon the testator's death. Legacies of money must be paid in (Articles 947, 945.) cash, even though the heir or the estate may b. With a term: Upon arrival of the term not have any. c. Conditional: Upon the happening of The expenses necessary for the the suspensive condition. delivery of the thing bequeathed shall be for MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS the account of the heir or the estate, but part thereof, it being understood that in the without prejudice to the legitime. latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing Art. 953. The legatee or devisee cannot should again belong to the testator, even if it take possession of the thing bequeathed upon be by reason of the nullity of the contract, the his own authority, but shall request its delivery legacy or devise shall not thereafter be valid, and possession of the heir charged with the unless the reacquisition shall have been legacy or devise, or of the executor or effected by virtue of the exercise of the right of administrator of the estate should he be repurchase; authorized by the court to deliver it. (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Art. 954. The legatee or devisee cannot Nevertheless, the person obliged to pay the accept a part of the legacy or devise and legacy or devise shall be liable for eviction if repudiate the other, if the latter be onerous. the thing bequeathed should not have been Should he die before having accepted determinate as to its kind, in accordance with the legacy or devise, leaving several heirs, the provisions of article 928. some of the latter may accept and the others may repudiate the share respectively Balane: Grounds for the revocation of legacy or belonging to them in the legacy or devise. devise (takes effect by operation of law.) Balane: This applies to a situation where there is 1. Transformation of the thing. only one legacy or devise. E.g. a. "I bequeath my ring to B." After making the will, the ring is melted and turned into Par. 2: The same rule as in accretion, a pendant. acceptance and renunciation. b. When a coconut plantation is transformed into a fishpond. Art. 955. The legatee or devisee of two 2. This manifests the intent to revoke. legacies or devises, one of which is onerous Exception: If pacto de retro and cannot renounce the onerous one and accept reacquired during the testator's lifetime. the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to Annulment depends on the basis: renounce either. But if the testator intended a. Vitiated consent: Not revoked that the two legacies or devises should be because there was no intention to revoke inseparable from each other, the legatee or b. All other reasons: Revoked. devisee must either accept or renounce both. Any compulsory heir who is at the 3. Totally lost. 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 Art. 958. A mistake as to the name of waive or accept both. the thing bequeathed or devised, is of no consequence, if it is possible to identify the Balane: This applies to a situation where there thing which the testator intended to bequeath are two or more legacies or devises. or devise. General rule: The same rule as in Art. 954. Balane: This is similar to Art. 789. Exception: Testator provides otherwise. Art. 959. A disposition made in general Art. 956. If the legatee or devisee terms in favor of the testator's relatives shall cannot or is unwilling to accept the legacy or be understood to be in favor of those nearest devise, or if the legacy or devise for any in degree. reason should become ineffective, it shall be merged into the mass of the estate, except in Balane: This does not refer to legacies and cases of substitution and of the right of devises accretion. This article is misplaced. This should be in the Chapter on Institution of Heirs This applies only in favor of the testator's Art. 957. The legacy or devise shall be own relatives. without effect: (1) If the testator transforms the thing 57 bequeathed in such a manner that it does not retain either the form or the denomination it Chapter 3 Page had; (2) If the testator by any title or for any LEGAL OR INTESTATE SUCCESSION cause alienates the thing bequeathed or any hotjurist 2009 Succession Section 1: General Provisions. c. Rule on preference of lines: Art. 928 if decedent is survived by a father and son, the father is excluded. INTRODUCTION d. Distribution between legitimate and illegitimate children: 2 : 1, although in I. Intestacy: That which takes place by operation the same degree. of law in default of compulsory and testamentary e. By representation: Because of succession. It is the least preferred among the this, they inherit in different shares. three modes of succession, but is the most common. It takes place only: (a) insofar as it does not impair legitimes; (b) only if there is no will Art. 960. Legal or intestate succession disposing of the property. takes place: It applies the principle of exclusion and (1) If a person dies without a will, or concurrence (the same principles as in with a void will, or one which has compulsory succession.) subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging II. WHO ARE INTESTATE HEIRS? to the testator. In such case, legal succession shall take place only with respect to the 1. Legitimate children or descendants property of which the testator has not 2. Illegitimate children or descendants disposed; 3. Legitimate parents or ascendants (3) If the suspensive condition 4. Illegitimate parents attached to the institution of heir does not 5. Surviving spouse happen or is not fulfilled, of if the heir dies 6. Brothers and sisters, nephews and before the testator, or repudiates the nieces inheritance, there being no substitution, and 7. Other collateral relatives up to the fifth no right of accretion takes place; degree (4) When the heir instituted is 8. The State. incapable of succeeding, except in cases provided in this Code. Notes: Numbers 1 to 5 are both Balane: This enumeration is not exclusive. There compulsory and intestate heirs. are other causes. Numbers 6 to 8 are intestate heirs. A. Kinds This shows why the rules on legitime are similar to the rules of intestacy. 1. Total - No testamentary disposition at all. 2. Partial - A will that disposes of part of III. BASIC RULES OF INTESTACY the free portion 1. Rule of Relationship: Intestate heir B. Causes must be related to the deceased. There are four kinds: 1. a. No will: Total intestacy a. Family: Js familial, ascendants b. Void will: no will: Total and descendants in the direct line. intestacy b. Blood: Jus sanguinis, c. Erroneous: will, once valid, collaterals up to the fifth degree. always valid but may lose its efficacy, e.g., when c. Spouse: Jus conjugis. revoked. d. State: Jus imperii, the right of sovereignty. 2. a. "Does not institute an heir."- Useless will as far as succession is concerned. 2. Rule of Preference of lines: This is b. "Does not dispose all."- Partial also true in compulsory succession. The intestacy descending is preferred over the ascending. 3. "Suspensive condition does not 3. Rule on proximity of degree: This rule happen."- Intestacy as to that specific institution. excludes the further. (This qualifies) representation. 4. "Incapable of succeeding- Only specific provision will give rise to intestacy. 4. Rule of equality among relatives of the same degree: This is corollary to the third. 5. Others not in Art. 960. a. The arrival of the resolutory Five exceptions: term. b. Impossibility of ascertaining the a. Relatives of the full and half will of the testator. blood: Art. 1026 (does not refer to blood cousins, because they inherit equally.) b. Rule of division by line in the Art. 961. In default of testamentary ascending line: Maternal/ paternal heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS the deceased, in the surviving spouse, and in Balane: Articles 963 to 967 on relationships. the State. 1. (These rules on relationship are) important because of certain principles which ordain in intestacy, namely: Art. 962. In every inheritance, the a. Nearer excludes the more remote; relative nearest in degree excludes the more b. Direct line is preferred over the distant ones, saving the right of representation collateral; when it property takes place. c. Descending line is preferred over the Relatives in the same degree shall ascending. inherit in equal shares, subject to the provisions of article 1006 with respect to 2. Two basic concepts in relationship: relatives of the full and half blood, and of a. Concept of degree: This is the method article 987, paragraph 2, concerning division of computing the proximity of relationship. Every between the paternal and maternal lines. degree is one generation. b. Concept of lines: (These are) relative positions in the family between 2 persons Subsection 1: Relationship. (genealogical chart.) In intestacy: a. There is no limit: Direct line- Art. 963. Proximity of relationship is (i) ascending determined by the number of generations. (ii) descending Each generation forms a degree. b. Limit of five degrees: Collateral line- 2 persons having a common ascendant Art. 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the Illustration: series of degrees among ascendants and A descendants. | \ A collateral line is that constituted by B D the series of degrees among persons who are | | ascendants and descendants, but who come C E from a common ancestor. For B, A is in the direct line. D is in the collateral line. Art. 965. The direct line is either descending or ascending. 3. Full and half-blood relations in intestacy. The former unites the head of the family with those who descend from him. a. Brothers and sisters. (Art. 1006.)- The latter binds a person with those 2: 1-This is applicable only in intestate succession. from whom he descends. b. Nephews and nieces. (Art. 1008.)- 2: 1- Nephews or nieces of the half blood- child of a brother or sister of the half blood. 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 Art. 968. If there are several relatives of common ancestor. Thus, the child is one the same degree, and one or some of them are degree removed from the parent, two from the unwilling or incapacitated to succeed, his grandfather, and three from the great- portion shall accrue to the others of the same grandparent. degree, save the right of representation when In the collateral line, ascent is made to it should take place. the common ancestor and then descent is made to the person with whom the Art. 969. If the inheritance should be computation is to be made. Thus, a person is repudiated by the nearest relatives, should two degrees removed from his brother, three there be one only, or by all the nearest from his uncle, who is the brother of his father, relatives called by law to succeed, should four from his first cousin, and so forth. there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating Art. 967. Full blood relationship is that the inheritance. existing between persons who have the same father and the same mother. 59 Half blood relationship is that existing between persons who have the same father, Subsection 2: Right of Representation. Page but not the same mother, or the same mother, but not the same father. hotjurist 2009 Succession Art. 970. Representation is a right created by fiction of law, by virtue of which the 2. In intestacy, in what direction does it representative is raised to the place and the operate? degree of the person represented, and a. In descending line: Same as acquires the rights which the latter would have in legitimes. if he were living or he could have inherited. b. Only one instance in the collateral line: Nephews and nieces in Balane: representation of their parents who predeceased 1.This article contains the definition of their decedent brother or sister. representation. Representation is not a very accurate term because it does not convey the full X meaning of the process. / | \ A B C Illustration: / \ X b1 b2 / | \ A B C B predeceases A. When A dies, b1 and / \ b2 can represent B in B's share in the estate of A. b1 b2 Teotico v. Del Val: An adopted child B predeceases X. When X dies, b1 and b2 are cannot represent his adoptive parent because the excluded because of the rule that the nearer fiction is only between the adopter and the excludes the more remote. Only A and C should adopted. inherit. But because of the right of representation, b1 and b2 will inherit in the place of B. They are raised to the level of B. They will only get what B Art. 973. In order that representation would have gotten. may take place, it is necessary that the representative himself be capable of The better term is successional succeeding the decedent. subrogation, as JBL Reyes calls it. It is a process whereby one person takes Balane: Capacity to succeed: In representation, another's place. The representative is subrogated there are three parties: (takes the place) of the person represented. 1. The decedent; 2. The person represented; 2. Under what situations does it operate? 3. The representative. a. Predecease: Articles 982, 975. b. Disinheritance: Art. 923. Questions: c. Incapacity or unworthiness to succeed: a. Must 3 have capacity to succeed from Art. 1035. 1? Yes, because he is really succeeding from 1. (This) does not apply to renunciation. b. Must 3 have capacity to succeed from (See Articles 968, 969, 977.) 2? No, because 3 is not succeeding from 2. 3. In what kinds of succession does it operate? c. Must 2 have capacity to succeed from 1? No. This is precisely why 3 succeeds 1. a. Compulsory b. Intestate Art. 974. Whenever there is succession It does not apply to testamentary by representation, the division of the estate succession. shall be made per stirpes, in such manner that E.g., "I institute my son, and if he the representative or representatives shall not predeceases me, he will be represented by his inherit more than what the person they son." This is substitution and not representation. represent would inherit, if he were living or could inherit. Art. 971. The representative is called to the succession by the law and not by the person represented. The representative does Art. 975. When children of one of more not succeed the person represented but the brothers or sisters of the deceased survive, one whom the person represented would have they shall inherit from the latter by succeeded. representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. Art. 972. The right of representation takes place in the direct descending line, but Balane: Representation: never in the ascending. 1. In collateral line. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they are of the full or half blood. a1 / Balane: 1. In legitime, in what direction does it A- a2 operate? Only in the descending, never in the / ascending. X- B - b MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS \ Art. 979. Legitimate children and their C- c1 descendants succeed the parents and other \ ascendants, without distinction as to sex or c2 age, and even if they should come from different marriages. a. If A, B and C predecease X, all An adopted child succeeds to the nephews inherit in their son right, per capita. property of the adopting parents in the same manner as a legitimate child. 2. In the direct line. (Art. 982.) X Art. 980. The children of the deceased / | \ shall always inherit from him in their own right, A B C dividing the inheritance in equal shares. / | | | \ a1 a2 b c1 c2 Art. 981. Should children of the a. In A, B and C predecease X, all deceased and descendants of other children grandchildren inherit by representation, who are dead, survive, the former shall inherit per stirpes. in their own right, and the latter by right of b. If A, B and C renounce, all representation. grandchildren inherit by their own right, per capita. Art. 982. The grandchildren and other descendants shall inherit by right of Art. 976. A person may represent him representation, and if any one of them should whose inheritance he has renounced. have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. Art. 977. Heirs who repudiate their share may not be represented. Baviera: Only legitimate descendants General rule: Art. 982 Balane: Articles 976 and 977. Exception: Art. 992: An illegitimate child has no In renunciation: right to inherit ab intestato from the legitimate a. Person who renounces cannot be children and relatives of his father or mother; nor represented. (Art. 977.) shall such children or relatives inherit in the same b. Person who renounces can represent. manner from the illegitimate child. (Art. 976.) This applies only to child, not descendant Illustration: A This is called the "iron curtain rule." | B | Art. 983. If illegitimate children survive C with legitimate children, the shares of the | former shall be in the proportions prescribed D by article 895. C renounces his inheritance from B. B Baviera: Article 895 - note article 176 FC - then dies. Later on, A dies. Illegitimate child is entitled to 1/2 of share of a Effect: legitimate child. The legitime of the illegitimate 1. D cannot represent C in B's estate. child shall be taken from the free portion, provided 2. Can C represent B in A's estate? Yes. in no case shall the total legitime of illegitimate When C renounced, he only renounced his right to child exceed the free portion, and the legitime of inherit from B. He did not renounce his right to surviving spouse must first be fully satisfied. inherit from A. Art. 984. In case of death of an adopted child, leaving no children or descendants, his Section. 2: Order of Intestate Succession. parents and relatives by consanguinity and not by adoption, shall be his legal heirs. Subsection 1: Descending Direct Line. Subsection2: Ascending Direct Line. 61 Art. 978. Succession pertains, in the first place, to the descending direct line. Art. 985. In default of legitimate Page children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. hotjurist 2009 Succession succeeded by his or her surviving spouse, who shall be entitled to the entire estate. Art. 986. The father and mother, if If the widow or widower should survive living, shall inherit in equal shares. with brothers and sisters, nephews and nieces, Should one only of the survive; he or she or he shall inherit one-half of the estate, she shall succeed to the entire estate of the and the latter the other half. child. Subsection 4: Surviving Spouse. Art. 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Art. 995. In the absence of legitimate Should there by more than one of equal descendants and ascendants, and illegitimate degree belonging to the same line they shall children and their descendants, whether divide the inheritance per capita; should they legitimate or illegitimate, the surviving spouse be of different lines but of equal degree, one- shall inherit the entire estate, without prejudice half shall go to the paternal and the other half to the rights of brothers and sister, nephews to the maternal ascendants. In each line the and nieces, should there by any under article division shall be made per capita. 1001. Baviera: Per capita means equally Art. 1001. Should Subsection 3: Illegitimate Children. brothers and sisters or their children survive with the widow or widower, the latter shall be Art. 988. In the absence of legitimate entitled to one-half of the descendants or ascendants, the illegitimate inheritance and the brothers children shall succeed to the entire estate of and sisters or their children to the deceased. the other half. Art. 989. If, together with illegitimate children, there should survive descendants of Art. 996. If a widow or widower and another illegitimate child who is dead, the legitimate children or descendants are left, the former shall succeed in their own right and the surviving spouse has in the succession the latter by right of representation. same share as that of each of the children. Art. 990. The hereditary rights granted by the two preceding articles to illegitimate Art. 997. When the widow or widower children shall be transmitted upon their death survives with legitimate parents or to their descendants, who shall inherit by right ascendants, the surviving spouse shall be of representation from their deceased entitled to one-half of the estate, and the grandparent. legitimate parents or ascendants to the other half. Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the Art. 998. If a widow or widower survives inheritance with them, taking one-half of the with illegitimate children, such widow or estate, whatever be the number of the widower shall be entitled to one-half of the ascendants or of the illegitimate children. inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; Art. 999. When the widow or widower nor shall such children or relatives inherit in survives with legitimate children or their the same manner from the illegitimate child. descendants and illegitimate children or their descendants, whether legitimate or Baviera: This applies only to child, not illegitimate, such widow or widower shall be descendants. This is called the iron curtain rule. entitled to the same share as that of a legiti- mate child. Art. 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed Art. 1000. If legitimate ascendants, the to his entire estate; and if the child's filiation is surviving spouse, and illegitimate children are duly proved as to both parents, who are both left, the ascendants shall be entitled to one- living, they shall inherit from him share and half of the inheritance, and the other half shall share alike. be divided between the surviving spouse and the illegitimate children so that such widow or Art. 994. In default of the father or widower shall have one-fourth of the estate, mother, an illegitimate child shall be and the illegitimate children the other fourth. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Art. 1001. Should brothers and sisters or their children survive with the widow or Art. 1010. The right to inherit ab widower, the latter shall be entitled to one-half intestato shall not extend beyond the fifth of the inheritance and the brothers and sisters degree of relationship in the collateral line. or their children to the other half. Subsection 6: The State. 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 Art. 1011. In default of persons entitled rights granted in the preceding article. to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. Subsection 5: Collateral Relatives Art. 1012. In order that the State may take possession of the property mentioned in Art. 1003. If there are no descendants, the preceding article, the pertinent provisions ascendants, illegitimate children, or a of the Rules of Court must be observed. surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. Art. 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the Art. 1004. Should the only survivors be deceased last resided in the Philippines, and brothers and sisters of the full blood, they the real estate to the municipalities or cities, shall inherit in equal shares. respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned Art. 1005. Should brothers and sisters to the respective municipalities or cities where survive together with nephews and nieces, the same is located. who are the children of the decedent's broth- Such estate shall be for the benefit of ers and sisters of the full blood, the former public schools, and public charitable shall inherit per capita, and the latter per institutions and centers, in such municipalities stirpes. or cities. The court shall distribute the estate as the respective needs of each beneficiary Baviera: Per capita means equally; may warrant. per stirpes means by representation The court, at the instance of an interested party, or in its own motion, may Art. 1006. Should brothers and sisters order the establishment of a permanent trust, of the full blood survive together with brother so that only the income from the property shall and sisters of the half blood, the former shall be used. be entitled to a share double that of the latter. Art. 1014. If a person legally entitled to Art. 1007. In case brothers and sisters the estate of the deceased appears and files a of the half blood, some on the father's and claim thereto with the court within five years some on the mother's side, are the only from the date the property was delivered to the survivors, all shall inherit in equal shares State, such person shall be entitled to the without distinction as to the origin of the possession of the same, or if sold, the property. municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. Art. 1008. Children of brothers and sisters of the half blood shall succeed per Balane: capita or per stirpes, in accordance with the Intestate heirs: rules laid down for brothers and sisters of the 1. Legitimate children/ descendants full blood. a. excludes ascendants, all collaterals, the State b. concurs with illegitimate children/ Art. 1009. Should there be neither descendants, surviving spouse brothers nor sisters nor children of brothers or c. excluded by no one. 63 sisters, the other collateral relatives shall succeed to the estate. 2. Illegitimate children/ descendants Page The latter shall succeed without a. excludes illegitimate parents, distinction of lines or preference among them collaterals, the State by reason of relationship by the whole blood. hotjurist 2009 Succession b. concurs with surviving spouse, Illegitimate children: 1/2 or 4 : 5 : 10 ratio legitimate children, legitimate ascendants with share of a legitimate child. (Art. 999.) c. excluded by no one. 5. Legitimate parents alone: Entire estate 3. Legitimate parents shared equally. a. excludes collaterals, the State b. concurs with illegitimate children, 6. Legitimate ascendants alone: Apply surviving spouse Articles 889 and 890 which are the rules on c. excluded by legitimate children. legitime. 4. Illegitimate ascendants 7. Legitimate parents (or ascendants): 1 : 2 a. excludes collaterals, the State Illegitimate children: 1/2 b. concurs with the surviving spouse Free portion = 1/4 to illegitimate children. c. excluded by legitimate descendants, (Art. 991.) illegitimate descendants. Partial Intestacy 5. Surviving spouse a. excludes collaterals, other than brothers 8. Legitimate parents (or ascendants): 1/2 and sisters, nephews and nieces, the State. Surviving spouse: 1/2 b. concurs with legitimate child, illegitimate Free portion: 1/4 to the surviving spouse. child, legitimate and illegitimate brothers and (Art. 997.) sisters, nephews and nieces. c. excluded by no one. Partial Intestacy 6. Brothers, sisters, nephews and nieces 9. Legitimate parents (or ascendants.)- 1/2 a. excludes all other collaterals, the State Surviving spouse: 1/4 b. concurs with the surviving spouse Illegitimate children: 1/4 c. excluded by legitimate children, Free portion: 1/8 to surviving spouse. illegitimate children, legitimate parents, illegitimate (Art. 1000.) parents. 10. Illegitimate children alone: Entire estate 7. Other collaterals divided equally or 5 : 4 as the case may be. a. excludes collaterals in remote degrees, Free portion = 1/2 to illegitimate children. the State (Art. 988.) b. concurs with collaterals in equal degree c. excludes legitimate/ illegitimate children/ 11. Illegitimate children: 1/2 divided as in parents, surviving spouse, brothers and sisters, number 10 nephews and nieces. Surviving spouse: 1/2 Free portion: 1/6 to both. (Art. 998.) 8. The State a. excludes no one Partial intestacy b. concurs with no one c. excluded by everybody else. 12. Surviving spouse alone: Entire estate. Free portion: 1/2 to surviving spouse. (Articles 994 and 995.) Articles 978 to 1014: Various Combinations- Total Intestacy 13. Surviving spouse: 1/2 Illegitimate children: 1/2 Note: The rules on exclusion and concurrence in Free portion = 1/4 to both (no article.) legitimes will also apply to intestacy. 14. Surviving spouse: 1/2 1. Legitimate children and/ or descendants Legitimate brothers and sisters and alone: Entire estate divided equally among them. nephews and nieces: 1/2 (Art. 979.) full : half = 2 : 1 Free portion = 1/2 to brothers and sisters 2. Legitimate children and illegitimate and nephews and nieces children: Entire estate in proportion of 2 : 1 or 10 : If marriage is in articulo mortis, add 1/6 to 5 : 4 as the case may be. This is without prejudice free portion once the legitime of the wife is to the impairment of legitimes. (Art. 983.) reduced to 1/3 (Art. 1001.) 3. Legitimate children and surviving spouse: Surviving spouse share equal to that of one 15. Surviving spouse: 1/2 legitimate child. If only 1 legitimate child, 1/2 Illegitimate brothers and sisters, nephews each. (Art. 996.) and nieces (if decedent is illegitimate): 1/2 Formula: no. of legitimate children + 1 Full : Half = 2 : 1 (surviving spouse) Free portion = 1/2 to illegitimate brothers = share of each Estate and sisters and nephews and nieces (Art. 994.) 4. Legitimate children Surviving spouse: Same share as a 16. Illegitimate parents alone: entire estate legitimate child Free portion: 1/2 to illegitimate parents. (Art. 993.) MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS 17. Illegitimate parents: none. Children of any kind: Entire estate divided according to earlier rules. (Art. 993.) Illustration: X's estate is worth P180,000. 18. Legitimate brothers and sisters alone: X Whole estate divided in the ratio of 2 : 1 between ---------------- full and half blood. (Articles 1004 and 1006.) | | : : : : : 19. Legitimate brothers and sisters and A B C D E F G nephews and nieces: Entire estate with the ratio of 2 : 1 between full and half blood 1. If you follow Art. 983 literally, 2 : 2 : 1 : a. Nephews and nieces inherit by 1 : 1 : 1 : 1 assuming the decedent died after the representation: per stirpes. Family Code took effect. b. Nephews and nieces inherit because all brothers and sisters predecease: per capita. A = 40,000 (Articles 1005 and 1008.) B = 40,000 C = 20,000 20. Nephews and nieces: Entire estate. D = 20,000 Uncles and aunts: None. E = 20,000 Bacayo v. Borromeo: Nephews and F = 20,000 nieces exclude uncles and aunts even if they may F = 20,000 be both only three (3) degrees away from the G = 20,000 decedent. (Art. 1009 by inference) But the legitime of A and B is impaired. 21. Illegitimate brothers and sisters and Legitime of A and B = 90,000 nephews and nieces: Entire estate with the ratio Share of A and B 80,000 of 2 : 1 between full and half blood. Legitime lacks 10,000 This applies only if the decedent is also illegitimate. 2. Since Art. 983 impairs the legitime, Apply the rules for nephews and nieces follow this two- step process: stated in number 19 (none.) a. Give the legitime first. (Give to the legitimate first before the illegitimate.) 22. Nephews and nieces alone: Entire estate b. (i) If there is an excess, divide with the ratio of 2 : 1 between full and half blood. it according to the ratio of 2 : 1 or 10 : 5 : 4 Per capita. (Articles 975 and 1008.) depending on the circumstances. Right of representation. (ii) If lacking, reduce the share of illegitimate children pro-rata. 23. Other collaterals: Entire estate in equal shares In the illustration: Rules: a. No distinction between full and half blood A = 45,000 b. No representation B = 45,000 c. Nearer excludes the more C = 22,500 remote D = 22,500 d. Up to the fifth degree only. E = 22,500 (Articles 1009 and 1010.) F = 22,500 G = 22,500 In case of an illegitimate decedent, TOTAL 202,500 collaterals are only up to nephews and nieces. The estate lacks 22,500 24. The State: the entire estate. (Art. 1011.) Reduce the shares of illegitimate children pro-rata = 22,500/ 5 = 4,500 each. The share of NOTE: Follow the rules except numbers 2 and 4 each illegitimate child will equal 18,000. which requires two (2) steps. Numbers 2 and 4 are tricky because you may end up impairing the Note: 1. An adopted child is treated as a legitime. legitimate child. 2. Spouse receives shares if: REMEMBER: Legitimes cannot be impaired. a. The valid is marriage b. Violable but not annulled If legally separated, apply the Good News: Just follow the rules, the same rules as in legitimes. legitimes will never be impaired. They are 65 automatically covered by the rules. Page Bad News: Art. 983, which covers the combination of legitimate and illegitimate children, might impair the legitime. hotjurist 2009 Succession 2. "I give 5000 to A and B in equal shares." Accretion will still apply. "Equal shares" Chapter 4 makes explicit what is implied because if nothing is said, it is presumed that it is in equal shares. PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS 3. "I give 1/2 to A, 1/4 B and 1/8 to C." This seems to imply accretion. Section 1: Right of Accretion. a. Is it possible to have unequal pro indiviso shares? Yes. As long as they are "undivided," "aliquot" or "abstractions". It is not Balane: (The right of accretion) takes place in: required that they be in equal shares. What is (1) testamentary succession required is that it be pro indiviso. b. Accretion will not apply (2) Intestate succession according to commentators. Pro indiviso is not a But not with respect to legitimes: Art. good phrase, it should be "without any particular 1021 par. 2. This provision was copied from the designation of shares." OCC and is inapplicable now because it was used for the mejora. However, it must still be applied. If equal shares: Art. 1017, accretion applies. If unequal shares, can accretion Art. 1015. Accretion is a right by virtue apply? of which, when two or more persons are called (i) Yes: Art. 1016 to the same inheritance, devise or legacy, the (ii) No: Commentators. If sharing part assigned to the one who renounces or is not the same, accretion cannot take place. cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heir, co-devisees, or co-legatees. Art. 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do Art. 1016. In order that the right of not identify it by such description as shall accretion may take place in a testamentary make each heir the exclusive owner of succession, it shall be necessary: determinate property, shall not exclude the (1) That two or more persons be called right of accretion. to the same inheritance, or to the same portion In case of money or fungible goods, if thereof, pro indiviso, and the share of each heir is not earmarked, there (2) That one of the persons thus called shall be a right of accretion. die before the testator, or renounce the inheritance, or be incapacitated to receive it. Art. 1018. In legal succession the Balane: Articles 1015 and 1016. share of the person who repudiates the inheritance shall always accrue to his co-heirs. Requisites: 1. Two or more heirs, devisees and Balane: Accretion takes place only if there is no legatees are called to the same inheritance, representation. devise or legacy pro-indiviso. Pro indiviso means without designation of parts or the portions are Some rules from Art. 1018 by implication: undivided. 1. In renunciation, there is always accretion. Why? Because there is no 2. One of the persons called: representation in renunciation. This applies only a. Die before the testator to intestacy and testamentary succession. b. Renounce the inheritance c. Be incapacitated to receive it. 2. In intestacy, apply representation first. If there is none, then accretion will apply. Note: These are the same causes for substitution. 3. In testamentary succession, apply substitution first. If there is no substitution, then Substitution Accretion accretion will apply. Representation 1. predecease 1. predecease 1. predecease Art. 1019. The heirs to whom the 2. incapacity 2. incapacity portion goes by the right of accretion take it in 2. incapacity the same proportion that they inherit. 3. renunciation 3. renunciation 3. disinheritance Balane: This implies proportion is different. This applies in intestacy and not to testamentary (succession). In testamentary (succession), Examples: shares are always equal because of designation of 1. "I give 5000 to A and B." If A dies and shares. In intestacy, it is possible to have different does not have any children or descendants, shares. E.g., full and half blood. accretion will take place. B will get 5,000, 2500 by his own right and 2,500 by accretion. Example, A MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS X B Should the part repudiated be the C legitime, the other co-heirs shall succeed to in D their own right, and not by the right of accretion. Estate = 600,000. If C predecease X, then B = 200,000 + 40,000 = 240,000 Art. 1022. In testamentary succession, C = 200,000 + 40,000 = 240,000 when the right of accretion does not take D = 100,000 + 20,000 = 120,000 place, the vacant portion of the instituted heirs, if no substitute has been designated, Share of C divided in the proportion they shall pass to the legal heirs of the testator, were to inherit. who shall receive it with the same charges and obligations. Art. 1020. The heirs to whom the inheritance accrues shall succeed to all the Art. 1023. Accretion shall also take rights and obligations which the heir who place among devisees, legatees and renounced or could not receive it would have usufructuaries under the same conditions had. established for heirs. Balane: 1. Co-heirs get (their) share with the same obligations and conditions. Section 2: Capacity to Succeed by Will or by Intestacy. 2. Can representatives get accretion? Yes. If person represented will get the accretion, then the representative should (also) get the Art. 1024. Persons not incapacitated accretion. by law may succeed by will or ab intestato. The provisions relating to incapacity by Illustration: will are equally applicable to intestate succession. a1 -- Balane: Par. 1: Ab intestato refers both to legitime -A / and intestacy. | Par. 2: Mistake - not true. Incapacity to \ a2 succeed by will, 1027, 1028 and 1032, are they | applicable to intestacy? Not all. |- a. Applies only to incapacity by -B will: Articles 1027, paragraphs 1 to 5, 1028 X --| (applicable only in testamentary succession.) |- b. Applies to both: Articles 1027, -C par. 6, 1032.) | -- -D Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be Estate is worth 600. A predeceased X. B living at the moment the succession opens, renounced. except in case of representation, when it is proper. If all present, then 150 each. A child already conceived at the time of a1 and a2 = 150 + 50 = 200 the death of the decedent is capable of C = 150 + 50 = 200 succeeding provided it is born later under the D = 150 + 50 = 200 conditions prescribed in article 41. B's share acquired by the others by accretion 150 Balane: General rule: Succession opens at the death of the decedent. (Art. 777.) The heir must a1 and a2 get accretion because they be alive when succession opens. The same as represent A in A's rights as if A is still around. Art. 1034. They stand in the same position as a person Exception: "In case of representation, represented. when proper." This is wrong. The representative a1 and a2 get 75 each by right of must be alive when the decedent dies. representation, and 25 each by accretion. Illustration: X 67 / | \ Art. 1021. Among the compulsory heirs A B C Page the right of accretion shall take place only | when the free portion is left to two or more of b1 them, or to any of them and to a stranger. hotjurist 2009 Succession 1. B dies on Jan. 1996. B's wife is (5) Any physician, surgeon, nurse, pregnant. X dies in March 1996. b1 is born in health officer or druggist who took care of the July 1996. Was b1 alive when X died? Yes. Art. testator during his last illness; 41, the fetus is considered alive from the moment (6) Individuals, associations and of conception. This is not an exception because corporations not permitted by law to inherit. b1 is alive. Balane: Numbers 1 to 5 have no application to 2. B is disinherited in 1996. X dies in legitimes. 1997. b1 is born in 1999. a. Can b1 represent B? No. He A. Example number 1. A, a priest, is a friend was not living at the time X died. of B. B regularly goes to confession to A. B then b. Can b1 inherit from X? No. becomes seriously ill. He executes a will Art. 1025, par. 1. instituting A to 1/3 to his estate. Is this testamentary disposition valid or is A capacitated Parish Priest of Victoria v. Rigor - In the to inherit from B? Yes. case, the priest provided that his estate will go to Example number 2. On his deathbed, X any of the nephews who may enter the priesthood. makes a will instituting Y, a priest. Thinking he will The nephew claiming, however, was born after the die, X calls Y to confess. Is Y capacitated to priest had died. As such, the nephew cannot inherit from X? Yes. inherit. 1. When does par. 1 apply? In other words, when is the priest incapacitated to succeed? Art. 1026. A testamentary disposition may be made to the State, provinces, a. When the confession is made municipal corporations, private corporations, prior to the making of a will. If organizations, or associations for religious, simultaneous, the priest is still disqualified. scientific, cultural, educational, or charitable If the will is made first, the priest can purposes. inherit. All other corporations or entities may succeed under a will, unless there is a b. If the confession was made provision to the contrary in their charter or the before the will was made and the priest is laws of their creation, and always subject to the son of the sick person, can the priest the same. inherit upon the death of the sick person? Yes. He can get the legitime. Balane: Q: Can you make a testamentary If the priest were a brother? Yes. disposition in favor of juridical persons? He can inherit by intestacy. A: Yes, if allowed by their charter. They Disqualification applies only to must exist, however, at the time of the death of the testamentary dispositions. decedent. 2. "Priest or minister of the gospel."- E.g., "I give 1/3 of my estate to David- Despite this apparent restriction to Christian Navato Organization, a non-incorporated org." Is ministers, this applies to all spiritual ministers, e.g., this valid? No. It has no juridical personality Buddhist monks. Why? Because it is conclusively presumed that the spiritual minister used his moral influence to induce or influence the sick person to Article 1027. The following are make a testamentary disposition in his favor. incapable of succeeding: (1) The priest who heard the 3. Requisites: confession of the testator during his last a. The will was made during the illness, or the minister of the gospel who last illness extended spiritual aid to him during the same b. The spiritual ministration must period; have been extended during the last illness (2) The relatives of such priest or c. The will was executed during or minister of the gospel within the fourth degree, after the spiritual ministration. the church, order, chapter, community, organization, or institution to which such B. Relatives of the priest of minister of the gospel priest or minister may belong; (3) A guardian with respect to This widens the disqualification in A. testamentary dispositions given by a ward in Omission was made of the spouse of the his favor before the final accounts of the minister of the gospel. What do you do? Apply guardianship have been approved, even if the Art. 1031. To disqualify the spouse, you have to testator should die after the approval thereof; show that the testamentary benefaction given to nevertheless, any provision made by the ward the wife was meant to benefit the minister. This is in favor of the guardian when the latter is his harder to prove. ascendants, descendant, brother, sister, or spouse, shall be valid; C. Guardian (4) Any attesting witness to the execution of a will, the spouse, parents, or General rule: Disqualification applies children, or any one claiming under such when the disposition is made: witness, spouse, parents, or children; MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS After the guardianship began (beginning Balane: This applies only to testamentary of the guardianship) -- Before termination of succession. guardianship (approval of final accounts or lifting of guardianship.) Art. 1029. Should the testator dispose Exception: Disposition is valid when the of the whole or part of his property for prayers guardian is an ascendant, descendant, brother, and pious works for the benefit of his soul, in sister or spouse. general terms and without specifying it 1. This exception is not present in the application, the executor, with the court's case of a priest. Why? They were derived approval shall deliver one-half thereof or its different laws. The omission in the case of the proceeds to the church or denomination to priest was stupid. which the testator may belong, to be used for 2. Seems to refer only to guardian of the such prayers and pious works, and the other property. Commentators agree that this also half to the State, for the purposes mentioned in covers guardians over the person because the article 1013. latter have more opportunity to influence the ward. Balane: Disposition in favor of: D. Attesting witness. (a) prayers; (b) pious works- for the soul of the Correlate this with Art. 923. testator. General rule: Witness, spouse.... are 1/2 to the Church which the testator disqualified. belongs and 1/2 to the State. Exception: If there are three (3) other This is because of Art. 1029, this is not a witnesses to the will. disposition in favor of an unknown person. E. Physician, surgeon, nurse, health officer or druggist. Art. 1030. Testamentary provisions in favor of the poor in general, without The latter must have taken care of the sick designation of particular persons or of any person. community, shall be deemed limited to the Requisites: poor living in the domicile of the testator at the 1. The will was made during the last time of his death, unless it should clearly illness appear that his intention was otherwise. 2. The sick person must have been taken The designation of the persons who are cared of during his last illness. Medical to be considered as poor and the distribution attendance was made. of the property shall be made by the person 3. The will was executed during or after appointed by the testator for the purpose; in he was being taken cared of. default of such person, by the executor; and should there be no executor, by the justice of the peace, the mayor, and the municipal Art. 1028. The prohibitions mentioned treasurer, who shall decide by a majority of in article 739, concerning donations inter vivos votes all questions that may arise. In all these shall apply to testamentary provisions. cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply Article 739. The following when the testator has disposed of his property donations shall be void: in favor of the poor of a definite locality. (1) Those made between persons who were guilty of Balane: 1. This is limited to the poor living at the adultery or concubinage at the domicile of the testator upon his death. This is not time of the donation; clear. What is the scope of domicile? Does it (2) Those made between refer to country, province, city or barangay? persons found guilty of the same criminal offense, in consideration 2. Who is to designate? (In the order of thereof; preference) (3) Those made to a a. Person appointed by the public officer or his wife, testator for that purpose descendants and ascendants, by b. Executor reason of his office. c. MTC judge, mayor, municipal In the case referred to in treasurer. This never happens because if there No. 1, the action for declaration of are no a and b, the court appoints an nullity may be brought by the administrator. spouse of the donor or donee; and 69 the guilt of the donor and donee may be proved by preponderance Art. 1031. A testamentary provision in Page of evidence in the same action. favor of a disqualified person, even though made under the guise of an onerous contract, hotjurist 2009 Succession or made through an intermediary, shall be disinherited under Art. 919, there is double void. disinheritance. Disinheritance in the will is redundant. In the common grounds, you do not Balane: What you cannot do directly, you cannot have to disinherit in Art. 919 since the effect of do indirectly. This is the same as Art. 867, par. 4: Articles 919 and 1032 are the same. Use of (a) dummy; (b) contract Art. 1033. The causes of unworthiness Article 1032. The following are shall be without effect if the testator had incapable of succeeding by reason of knowledge thereof at the time he made the will, unworthiness: or if, having known of them subsequently, he (1) Parents who have abandoned their should condone them in writing. children or induced their daughters to lead a corrupt or immoral life, or attempted against Balane: their virtues; 1. a. "Had knowledge at the time he made (2) Any person who has been the will."- In this case, it is presumed that the convicted of an attempt against the life of the testator had pardoned the offender. testator, his or her spouse, descendants or b. "Known subsequently."- Needs ascendants; written pardon. (3) Any person who has accused the testator of a crime for which the law prescribes 2. Problem: In disinheritance, incapacity imprisonment for six years or more, if the to disinherit is lifted by reconciliation. But in Art. accusation has been found to be groundless; 1033, there must be a pardon in writing. This is (4) Any heir of full age who, having strange. knowledge of the violent death of the testator, should fail to report it to an officer of the law In Art. 919 - express will - reconciliation within a month, unless the authorities have is enough already taken action; this prohibition shall not In Art. 1033 - presumed will - needs apply to cases wherein, according to law, there written pardon. is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; Problem arises if the testator made a will (6) Any person who by fraud, violence, disinheriting. What rule do you apply if the reason intimidation, or undue influence should cause for disinheriting was a common ground? the testator to make a will or to change one a. If you follow the rules of disinheritance: already made; Yes. (7) Any person who by the same b. If you follow the rules of unworthiness: means prevents another from making a will, or No. from revoking one already made, or who supplants, conceals, or alters the latter's will; Commentators: Rules of disinheritance (8) Any person who falsifies or forges should apply. To make the rules of unworthiness a supposed will of the decedent. apply would be giving precedence to the presumed will over the express will. Balane: Grounds 1, 2, 3, 5 and 6 are the same as in disinheritance. Art. 1034. In order to judge the Number 4 has no application because capacity of the heir, devisee or legatee, his there is no obligation to accuse. There is no law qualification at the time of the death of the that obligates to accuse. Only a civic or moral decedent shall be the criterion. duty but not a legal duty. In cases falling under Nos. 2, 3 or 5 of article 1032, it shall be necessary to wait until Numbers 6, 7 and 8 cover six (6) cases of final judgment is rendered, and in the case acts relating to a will: falling under No. 4, the expiration of the month a. Causing the testator to make a will. allowed for the report. b. Causing the testator to change an If the institution, devise or legacy existing will. should be conditional, the time of the c. Preventing the decedent from making a compliance with the condition shall also be will. considered. d. Preventing the testator from revoking his wil.l Balane: Time to judge the capacity of the heir. e. Supplanting, concealing, or altering the Par. 1: Time of death. Correlate with par. testator's will. 1 of Art. 1025. The time succession opens, no f. Falsifying or forging a supposed will of exceptions. the decedent. Par. 2: Grounds 2, 3 and 5: Wait for final judgment when conviction is needed. There is no conflict with disinheritance Par. 3: Conditional: Consider both time of despite similar grounds. compliance and time of death of the decedent. Illustration: A, son of B, tries to kill B. B may disinherit him or not. If B disinherits him under Art. 919, then A is disqualified to inherit. Art. 1035. If the person excluded from However, even if B did not disinherit A, A is the inheritance by reason of incapacity should incapacitated to inherit because of Art. 1032. If be a child or descendant of the decedent and MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS should have children or descendant, the latter brought by any one who may have an interest shall acquire his right to the legitime. in the succession. The person so excluded shall not enjoy the usufruct and administration of the property Balane: Right of heir to recover the inheritance thus inherited by his children. must be exercised within five years. Balane: This grants right of representation to children or descendants of incapacitated children or descendants. Section 3: Acceptance and Repudiation of the This covers the legitime and intestacy. Inheritance. It does not mention intestate share only legitime. Why? Because Art. 1035 assumes that the free portion has been disposed of completely. Art. 1041. The acceptance or But if not, then intestate share is included. repudiation of the inheritance is an act which is purely voluntary and free. Art. 1036. Alienations of hereditary Balane: 1. Acceptance: property, and acts of administration performed (a) voluntary; by the excluded heir, before the judicial order (b) free of exclusion, are valid as to third persons who acted in good faith; but the co-heirs shall have 2. Basic Rules a right to recover damages from the a. Rules for acceptance are more disqualified heir. liberal than the rules of renunciation because the former are beneficial to the heir while the latter is Balane: This applies the doctrine of innocent prejudicial to the heir. purchaser for value without prejudice to the right to b. In case an heir is incompetent/ damages of the prejudiced heirs against the insane or a minor, acceptance or repudiation must incapacitated heir. be made by a representative. In case of renunciation, court approval is necessary because of A. Art. 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity for any expenses incurred Art. 1042. The effects of the in the preservation of the hereditary property, acceptance or repudiation shall always and to enforce such credits as he may have retroact to the moment of the death of the against the estate. decedent. Balane: This is the right given to every possessor, Balane: This is because of Art. 777 which states whether he be in good or bad faith in Art. 443. that "the right to the succession are transmitted Necessary expenses for preservation. from the moment of the death of the decedent." Art. 1038. Any person incapable of Art. 1043. No person may accept or succession, who, disregarding the prohibition repudiate an inheritance unless he is certain of stated in the preceding articles, entered into the death of the person from whom he is to possession of the hereditary property, shall be inherit, and of his right to the inheritance. obliged to return it together with its accessions. Balane: This article requires: He shall be liable for all the fruits and (a) certainty of death; rents he may have received, or could have (b) right to inherit (is established.) received through the exercise of due diligence. Balane: Possessor in bad faith means he knows Art. 1044. Any person having the free that he is incapacitated. He must return the disposal of his property may accept or property, fruits and rents. repudiate an inheritance. Any inheritance left to minors or incapacitated persons may be accepted by Art. 1039. Capacity to succeed is their parents or guardians. Parents or governed by the law of the nation of the guardians may repudiate the inheritance left to decedent. their wards only by judicial authorization. The right to accept an inheritance left to the poor shall belong to the persons Art. 1040. The action for a declaration designated by the testator to determine the 71 of incapacity and for the recovery of the beneficiaries and distribute the property, or in inheritance, devise or legacy shall be brought their default to those mentioned in article 1030. Page within five years from the time the disqualified person took possession thereof. It may be Balane: hotjurist 2009 Succession Par. 1: Must have capacity to dispose of 1. Express: In clear and explicit terms. In the property. writing, whether in a private or public document. a. Of age 2. Tacit: Art. 1050: Results from acts b. Not restricted in his capacity to from which intent to accept is implied. actions 3. Implied: Art. 1057: If does not do anything within thirty (30) days, then it is deemed Par. 2: Minors or incapacitated can inherit accepted. through their parents or legal guardians. But to renounce, judicial approval is necessary. Art. 1050. An inheritance is deemed accepted: Art. 1045. The lawful representatives of (1) If the heir sells, donates, or assigns corporations, associations, institutions and his right to a stranger, or to his co-heirs, or to entities qualified to acquire property may any of them; accept any inheritance left to the latter, but in (2) If the heir renounces the same, order to repudiate it, the approval of the court even though gratuitously, for the benefit of one shall be necessary. or more of his co-heirs; (3) If he renounces it for a price in Balane: Acceptance needs a lawful representative favor of all his co-heirs indiscriminately; but if while renunciation needs court approval. this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should Art. 1046. Public official establishments devolve by virtue of accretion, the inheritance can neither accept nor repudiate an shall not be deemed as accepted. inheritance without the approval of the government. Balane: Par. 1: Acts of ownership- to do these acts, the heir must have accepted the inheritance. Par. 2: Heir is really giving it- to do this, Art. 1047. A married woman of age the heir must have accepted it first may repudiate an inheritance without the Par. 3: Sells it- must have acquired consent of her husband. something before you can sell. However, if gratuitous in favor of co-heirs indiscriminately, to Balane: General rule: A married woman may whom it would have devolved by accretion, then accept without the consent of her husband. true renunciation. Exception: If she is insane. In this case, however, the marriage is not the reason for the incapacity. Art. 1051. The repudiation of an inheritance shall be made in a public or Art. 1048. Deaf-mutes who can read authentic instrument, or by petition presented and write may accept or repudiate the to the court having jurisdiction over the inheritance personally or through an agent. testamentary or intestate proceedings. Should they not be able to read and write, the inheritance shall be accepted by their Balane: Forms of renunciation: guardians. These guardians may repudiate the 1. Public or authentic document same with judicial approval. 2. Petition presented to the court. Balane: General rule: Being a deaf-mute is not a Strict form is required. One cannot restriction on the ability to accept or renounce as renounce tacitly or impliedly. long as he can read and write. He may accept or renounce personally or through an agent. Exception: If he cannot read or write, he Art. 1052. If the heir repudiates the can only accept through a guardian. If he inheritance to the prejudice of his own renounces, the renunciation needs court approval. creditors, the latter may petition the court to authorize them to accept it in the name of the heir. Art. 1049. Acceptance may be express The acceptance shall benefit the or tacit. creditors only to an extent sufficient to cover An express acceptance must be made the amount of their credits. The excess, in a public or private document. should there be any, shall in no case pertain to A tacit acceptance is one resulting the renouncer, but shall be adjudicated to the from the acts by which the intention to accept persons to whom, in accordance with the rules is necessarily implied, or which one would established in this Code, it may belong. have no right to do except in the capacity of an heir. Balane: Accion Pauliana: The right of the creditor Acts of mere preservation or to set aside dispositions or renunciations provisional administration do not imply an prejudicial to them. acceptance of the inheritance if, through such How much? To the extent to cover the acts, the title or capacity of an heir has not debt only. The excess is given to whom it would been assumed. properly belong. This assumes that you do not have Balane: Forms of acceptance: enough money to pay your creditors. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Art. 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except Art. 1053. If the heir should die without when it was made through any of the causes having accepted or repudiated the inheritance that vitiate consent, or when an unknown will his right shall be transmitted to his heirs. appears. Balane: Why? Because the right has vested in Balane: General rule: Irrevocability of acceptance him at the time the decedent died. or repudiation. Exceptions: 1. Vitiated consent, e.g., when there is Art. 1054. Should there be several fraud. heirs called to the inheritance, some of them 2. When an unknown will appears: You may accept and the others may repudiate it. cannot renounce what you do not know. Balane: Illustration: X Art. 1057. Within thirty days after the ----- court has issued an order for the distribution | | | of the estate in accordance with the Rules of A B C Court, the heirs, devisees and legatees shall --- signify to the court having jurisdiction whether | | | they accept or repudiate the inheritance. abc If they do not do so within that time, they are deemed to have accepted the X died on Jan. 1, 1996. A died on Jan. inheritance. 14, 1996 without having accepted or repudiated the inheritance. a, b and c get the rights of A. Any Balane: Implied acceptance: The thirty day of them may renounce. If a and b renounce, then period is counted from the receipt of the order. 2/3 of A's share is deemed renounced. No accretion takes place between a, b and c. Partial acceptance is allowed. E.g., B Section 4: Executors and Administrators. renounces 2/3 of what he will get. Art. 1058. All matters relating to the Art. 1055. If a person, who is called to appointment, powers and duties of executors the same inheritance as an heir by will and ab and administrators and concerning the intestato, repudiates the inheritance in his administration of estates of deceased persons capacity as a testamentary heir, he is shall be governed by the Rules of Court. understood to have repudiated it in both capacities. Should he repudiate it as an intestate Art. 1059. If the assets of the estate of heir, without knowledge of his being a a decedent which can be applied to the testamentary heir, he may still accept it in the payment of debts are not sufficient for that latter capacity. purpose, the provisions of articles 2239 to 2251 on Preference of Credits shall be Balane: If the heir is both a testate and intestate observed, provided that the expenses referred heir: to in article 2244, No. 8, shall be those involved 1. If he renounces in a testate capacity: in the administration of the decedent's estate. He is deemed to have renounced in both capacities. Why? If the heir rejected an express will, then he is deemed to have rejected the Art. 1060. A corporation or association implied will. authorized to conduct the business of a trust 2. If he renounces in an intestate company in the Philippines may be appointed capacity, whether he had knowledge that he was a as an executor, administrator, guardian of an testate heir or not, only his capacity to inherit as estate, or trustee, in like manner as an an intestate heir is renounced. Even if he had individual; but it shall not be appointed knowledge, he may want to accept the testate guardian of the person of a ward. share to show respect for the will of the testator. Philosophy behind this is that testamentary Balane: Articles 1058 to 1060: For the procedural succession is superior to intestate succession. aspects, see Rules 73 to 91 of the Rules of Court. Note: Legitime is treated separately: This may be Section 5: Collation. 73 accepted or renounced separately. The heir may accept the testate share and reject the legitime Page and vice versa. Balane: Definition: Steps taken to settle the estate to be able to give it to the heirs. hotjurist 2009 Succession Three (3) senses: inherit from their grandparents in representa- 1. Computation: Get together all assets, tion of their father or mother, they shall bring subtract the debts and add the donations to get to collation all that their parents, if alive, would the net hereditary estate. have been obliged to bring, even though such grandchildren have not inherited the property. 2. Imputation: Determine if the donation They shall also bring to collation all is chargeable/ imputable to the legitime or the free that they may have received from the decedent portion. during his lifetime, unless the testator has General rule: If compulsory heir, provided otherwise, in which case his wishes imputable to the legitime. must be respected, if the legitime of the co- Exception: If testator has provided heirs is not prejudiced. otherwise. Balane: Second sense, imputation. 3. Restoration/ return: If donation to a stranger exceeds the free portion, he would have "Grandchildren" refer to all descendants to give back to the estate as much as is needed to who inherit by representation. complete the legitimes. This will not happen if the legitimes are not impaired. Illustration: X / \ Art. 1061. Every compulsory heir, who A B succeeds with other compulsory heirs, must / \ bring into the mass of the estate any property b1 b2 or right which he may have received from the decedent, during the lifetime of the latter, by B predeceased X. way of donation, or any other gratuitous title, 1. In 1988, X donated to B P70,000. in order that it may be computed in the 2. In 2001, X donated to b1 and b2 determination of the legitime of each heir, and P50,000. in the account of the partition. What will b1 and b2 impute when X dies? Balane: First sense, computation. This is the same as the third step in Art. Par. 1: 1988 donation: Yes because B 908. would have imputed it (if he) were he alive. Inaccuracy in the provision: "collation Par. 2: 2001 donation: Yes. This is not done by compulsory heirs."- All donations are logical because b1 and b2 inherit by collated provided there is at least one compulsory representation. The general rule is that only heir because there will be a legitime. persons who receive the donation are bound to impute it. Art. 1062. Collation shall not take place among compulsory heirs if the donor should Art. 1065. Parents are not obliged to have so expressly provided, or if the donee bring to collation in the inheritance of the should repudiate the inheritance, unless the ascendants any property which may have been donation should be reduced as inofficious. donated by the latter to their children. Balane: Second sense, imputation. (Articles 909, Balane: Second sense, imputation. 910.) Illustration: General rule: Donation to a compulsory X heir shall be collated (imputed) to his legitime. / \ Exceptions: A B (1) Donor provides otherwise. In such | / \ a case, it will be imputed to the free portion. a1 b1 b2 (2) Donee repudiates the inheritance. In 1995, X donated to a1. In 2001, X dies while A is still alive. Will A impute the donation to Art. 1063. Property left by will is not a1? No. a1 is considered a stranger because he deemed subject to collation, if the testator has is not a compulsory heir. Impute vs. the free not otherwise provided, but the legitime shall portion. in any case remain unimpaired. Balane: Second sense, imputation. Art. 1066. Neither shall donations to the spouse of the child be brought to collation; but Testamentary Disposition. This is imputed if they have been given by the parent to the against the free portion and not against the spouses jointly, the child shall be obliged to legitime. The heir gets legitime + testamentary bring to collation one-half of the thing donated. disposition. Why? If not, what is the use? He will get it anyway. Unless, of course, if it impairs the Balane: Second sense, imputation. legitime of others. Illustration: X | Art. 1064. When grandchildren, who A' --A survive with their uncles, aunts, or cousins, MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Two cases: Wedding gifts: Two views: 1. X donates to A' only, imputed to the 1. Literal: Cannot be beyond 1/10 of the free portion. free portion. If it exceeds, return the excess. 2. X donates to both A and A', impute 1/2 to legitime of A and 1/2 to the free portion. 2. Liberal: a. below 1/10 of the free portion, Rule: Donation given to the spouse will impute to the free portion not be imputed to the legitime of the descendant b. above 1/10 of the free portion, spouse because the spouse is considered a impute to the legitime. stranger. E.g., Estate is worth 600. There are 3 children. Legitimes = 300. When A got married, Art. 1067. Expenses for support, he was given a gift of 40. This is more than 1/10 education, medical, attendance, even in of the free portion. extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject 1. Literal = 30, impute to the legitime to collation. 10, return Balane: First sense, computation. 2. Liberal = 30, impute to the free portion 1. Overlap between support in the NCC 10, impute to the legitime. and in the FC: Support in the FC already includes medical attendance. Art. 1071. The same things donated are 2. All expenses in Art. 1067 are not not to be brought to collation and partition, but imputed to the legitime: Including 6 things in only their value at the time of the donation, support in the FC. even though their just value may not then have been assessed. Their subsequent increase or Art. 1068. Expenses incurred by the deterioration and even their total loss or parents in giving their children a professional, destruction, be it accidental or culpable, shall vocational or other career shall not be brought be for the benefit or account and risk of the into collation unless the parents so provide, or donee. unless they impair the legitime; but when their collation is required, the sum which the child Balane: Par. 1: First and second senses, would have spent if he had lived in the house computation and imputation. and company of his parents shall be deducted What do you compute? The value at the there from. time of the donation. Balane: Second sense, imputation. Par. 2: Any change in the value is for the This qualifies Art. 1067. account of the donee. Why? Because the donee General rule: Imputed versus the free is the owner of the thing donated. (Res perit portion. domino.) Exceptions: (1) When parents provide otherwise (2) When it impairs the legitimes of Art. 1072. In the collation of a donation other compulsory heirs. made by both parents, one-half shall be But if you lived away from home, deduct brought to the inheritance of the father, and the living expenses from what would be imputed the other half, to that of the mother. That given against your legitime. by one alone shall be brought to collation in his or her inheritance. This is inconsistent because this is included in support under the Family Code. Balane: First and second senses, computation and imputation. This provision contemplates joint donation Art. 1069. Any sums paid by a parent by parents from their common property. in satisfaction of the debts of his children, a. 1/2 computed for determination of the election expenses, fines, and similar expenses estate of the husband. shall be brought to collation. b. 1/2 computed for determination of the estate of the wife. Balane: Second sense, imputation. Same rule for imputation with respect to the donee. Impute 1/2 to father and 1/2 to mother. Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, 75 and outfit, shall not be reduced as inofficious Art. 1073. The donee's share of the except insofar as they may exceed one-tenth estate shall be reduced by an amount equal to Page of the sum which is disposable by will. that already received by him; and his co- heirs shall receive and equivalent, as much as Balane: Second sense, imputation. hotjurist 2009 Succession possible, in property of the same nature, class The donee who collates in kind an and quality. immovable, which has been given to him, must be reimbursed by his co-heirs for the improve- Balane: Second sense, imputation. ments which have increased the value of the In partition, there should be among heirs property, and which exists at the time the of the same class, as much as possible, equality partition is effected. not only as to value but also as to kind and nature. As to works made on the estate for the This is subject, of course, to a contrary agreement mere pleasure of the donee, no reimbursement of the heirs concerned. is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. Art. 1074. Should the provisions of the preceding article be impracticable, if the Balane: Third sense, return, on the assumption property donated was immovable, the co-heirs that the donation is totally inofficious. shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and Par. 1: The donee, being the rightful should there be neither cash nor marketable owner, has to be reimbursed the necessary securities in the estate, so much of the other expenses. How much? It depends on how much property as may be necessary shall be sold at is collated. (same as Art. 1075.) public auction. Par. 2: Useful expenses: Apply the same If the property donated was movable, rules as in necessary expenses. the co-heirs shall only have a right to select an Par. 3: Ornamental expenses: No right to equivalent of other personal property of the reimbursement but has the right to remove. inheritance at its just price. These are incidental obligations arising Balane: Second sense, imputation. from collation in the third sense. Applies if Art. 1073 is not possible. 1. Immovables- cash or securities 2. Movables- similarly valued movable Art. 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are Art. 1075. The fruits and interest of the subject to collation, the distribution of the property subject to collation shall not pertain estate shall not be interrupted for this reason, to the estate except from the day on which the provided adequate security is given. succession is opened. For the purpose of ascertaining their Art. 51. The delivery of amount, the fruits and interest of the property the presumptive legitimes of the estate of the same kind and quality as herein prescribed shall in no that subject to collation shall be made the way prejudice the ultimate standard of assessment. successional rights of the children accruing upon the Balane: Third sense, return. death of either or both of the 1. Assume that the property donated has parents; but the value of the to be returned because the legitime has been properties already received impaired. The return may be total or partial. under the decree of annulment or absolute nullity shall be 2. Donee may return: considered as advances on (a) property; their legitime. (Family Code, (b) cash value par. 3 thereof.) 3. Obligation to return arises at the time of Art. 227. If the parents death. The fruits are also returned from that time. entrust the management or The amount depends on how much of the property administration of any of their has to be returned. properties to an unemancipated child, the net proceeds of such E.g., A donated to X a mango plantation. property shall belong to the 1. If X has to return all, return all the fruits owner. The child shall be given from the time of the death of A. a reasonable monthly 2. If X has to return 1/2, return 1/2 of the allowance in an amount not fruits from the time of the death of A. less than that which the owner would have paid if the admin- istrator were a stranger, unless Baviera: At the moment of death of donor, the owner, grants the entire donee's right over the property is modified proceeds to the child. In any case, the proceeds thus given in whole or in part shall not be Art. 1076. The co-heirs are bound to charged to the child's legitime. reimburse to the donee the necessary (Family Code.) expenses which he has incurred for the preservation of the property donated to him, Balane: All three (3) senses. though they may not have augmented its value. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Section 6: Partition and Distribution of the c. Commissioner will submit a project of Estate. partition to the judge. This project of partition, however, is not binding on the judge. d. The judge will issue an order of Subsection 1: Partition. partition. Property will be adjudicated among the heirs accordingly. Balane: Partition: Procedural, a special Art. 1080. Should a person make a proceeding. partition of his estate by an act inter vivos, or This is relevant if there are two or more by will, such partition shall be respected, heirs. insofar as it does not prejudice the legitime of the compulsory heirs. Decedent dies--> Successional rights --> But A parent who, in the interest of his or property--> Co-ownership--> Eventually, get--> her family, desires to keep any agricultural, Divide industrial, or manufacturing enterprise intact, vest in the heirs is may avail himself of the right granted him in still there among heirs things together this article, by ordering that the legitime of the Estate other children to whom the property is not (first immediate effect assigned, be paid in cash. (second imme- and compute Among of death) Balane: Par. 1: Person can make partition. How? diate effect of Heirs 1. By will- making two things: a. Testamentary disposition: death) State what value the person will get. b. Partition: State specific Art. 1078. Where there are two or more property the heir will get or what comprises the heirs, the whole estate of the decedent is, value. before its partition, owned in common by such E.g., X has no compulsory heirs. He heirs, subject to the payment of debts of the states in his will "I give to A 1/3 of my estate. To deceased. comprise A's share, I would like her to get my house in Alabang." Art. 1079. Partition, in general, is the The testator is allowed to do so even if he separation, division and assignment of a thing has compulsory heirs. The partition is valid as held in common among those to whom it may long as the items given do not impair the legitime. belong. The thing itself may be divided, or its value. 2. Act inter vivos, e.g., private writing not a will. Balane: Definition: "Separate, divide and assign." a. Rule under the OCC - to do 1. Ways to go about partition. this, there has to be a prior existing will. Why? If a. Extrajudicially: Decedent dies intestate no prior existing will, you are giving the person and there are no debts. power to make dispositions not in the form of a (i) All the heirs agree among will. This is seen in the use of the word "testator" themselves: Upon agreement, partition is already in the article. valid. (ii) If registered property is b. Rules under the NCC, is it valid? included, publish the partition in a public (i) Yes, as long as (it is) strictly document. confine(d) to rules of intestate succession since (iii) Go to the Register of Deeds there is no will. (You) can only state what to have titles transferred. properties they are to receive and not make testamentary dispositions. b. Judicial (ii) Otherwise, he will have to (i) Settlement proceeding. make a supporting will. This is seen in the use of (ii) Ordinary action on co- the word "person" in the article. ownership. Note: (This) can still be done in (the) 2. General Procedure manner done in the OCC. a. If with a will, it must first be probated. After probate, the heirs can choose between: Example: Estate of A consists of RTW (i) Extrajudicial factory and cash. A has 3 compulsory heirs X, Y (ii) Judicial: Judge will divide but and Z. A wants the factory to go to X. A makes a will first give the heirs a chance to submit their partition "Factory to X. Y and Z are to get their 77 own partition. legitime in cash." This is valid. Because legitimes are only Page b. If the heirs do not agree on the partition values and not specific properties. Also, the , the judge will appoint a commissioner. legitimes are not impaired. hotjurist 2009 Succession Chavez v. IAC: In the case, Manuela A: By agreement between the co-owners. assigned or distributed her estate equally among If none, the courts will decide. her six (6) children. Three of those sold their share to a sister, Concepcion, with the consent of Manuela. Manuela then sold the entire property to Art. 1083. Every co-heir has a right to Ferrer. Was the partition by an act inter vivos demand the division of the estate unless the valid? Yes. Art. 1080 allows the person to make testator should have expressly forbidden its a partition. If the partition is by will, it must be with partition, in which case the period of indivision the formalities on wills. If the partition is by an act shall not exceed twenty years as provided in inter vivos, the partition may be oral or written, and article 494. This power of the testator to need not be in the form of a will, provided the prohibit division applies to the legitime. partition does not prejudice the legitime of the Even though forbidden by the testator, compulsory heirs. The deeds of sale between the co-ownership terminates when one of the Concepcion and her sisters are valid because they causes for which partnership is dissolved are not contracts with respect to future inheritance takes place, or when the court finds for but rather a contract perfected and consummated compelling reasons that division should be during the lifetime of Manuela, who signed and ordered, upon petition of one of the co-heirs. gave her consent. Balane: General rule: Any of the co-heirs can demand a partition at any time. Art. 1081. A person may, by an act Exception: Partition is forbidden by the inter vivos or mortis causa, intrust the mere testator in his will. This applies even to the power to make the partition after his death to legitime. But it cannot exceed twenty (20) years. any person who is not one of the co-heirs. The provisions of this and of the Par. 2: Despite the prohibition, if any preceding article shall be observed even ground in Articles 1830 or 1831 (grounds for should there be among the co-heirs a minor or dissolution of a partnership exists), partition will a person subject to guardianship; but the happen. mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the Art. 1084. Voluntary heirs upon whom legatees or devisees. some condition has been imposed cannot demand a partition until the condition has Balane: 1. Under this article, partition may be been fulfilled; but the other co-heirs may made by: (a) the testator himself; (b) Third demand it by giving sufficient security for the person who is not an heir. rights which the former may have in case the 2. Does this article also prohibit a devisee condition should be complied with, and until it or legatee from being appointed? It is not certain. is known that the condition has not been If he is given a specific portion, then there is no fulfilled or can never be complied with, the temptation to favor himself. But if his share be a partition shall be understood to be provisional. generic portion, then the temptation exists. 3. Mandatary refers to a person entrusted Balane: Why? Right as heir vests only when the to make the partition. suspensive condition happens. What about the other heirs? They can ask Art. 1082. Every act which is intended that the property be partitioned but they must give to put an end to indivision among co-heirs and security. legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other Art. 1085. In the partition of the estate, transaction. equality shall be observed as far as possible, dividing the property into lots, or assigning to Balane: Any act or any mode of distribution that each of the co-heirs things of the same nature, ends the co-ownership is a partition. The rules on quality and kind. co-ownership apply. Balane: We already saw this in Articles 1073 and 1. Physical partition, e.g., actually dividing 1074. the land. It applies to heirs similarly situated. 2. Constructive partition- Art. 1086 It is subject to agreement between the If indivisible (e.g., a house) or if it will be parties. greatly impaired if partitioned. How do you partition? by constructive partition. a. Assign the property to the one Art. 1086. Should a thing be divisible, who will give the other share in cash. or would be much impaired by its being b. If any object, the property is divided, it may be adjudicated to one of the sold at public auction. Why will any object? heirs, provided he shall pay the others the Public auction will usually bring a higher selling excess in cash. price. Nevertheless, if any of the heirs should demand that the things be sold at public Q: How do you determine if the property auction and that strangers be allowed to bid, is indivisible or not? this must be done. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Balane: If one or more of the heirs demand that A. The right of redemption given to the co-heir the property be sold publicly, then this prevails provided the co-heir/ vendor sold his undivided over the offer of one to give the others their share share or a portion thereof in the estate. in cash because he will buy it. Article 1620 on legal redemption and Art. 1088 are the same. The only difference is in the application. Art. 1087. In the partition the co-heirs 1. Art. 1620 applies to specific property shall reimburse one another for the income 2. Art. 1088 applies to hereditary mass and fruits which each one of them may have received from any property of the estate, for B. How will the right of redemption be exercised? any useful and necessary expenses made 1. If only one will redeem, he will pay the upon such property, and for any damage purchase price. thereto through malice or neglect. 2. If more than one will redeem, they will pay purchase price proportionally to their share in Illustration: A, B and C are heirs. A, B and C take the property. possession and manage a fishpond, citrus plantation and apartment house respectively. Note: Share must have been sold to a Later, they decide to partition the property. stranger. If sold to a co-heir, the right of Assuming they have equal shares, they must each redemption does not exist. Why? The purpose is account for the fruits actually received and these to keep the proprietary mass within the co-owners. fruits will be divided equally among them. A received 30 as fruits Art. 1089. The titles of acquisition or B received 50 as fruits ownership of each property shall be delivered C received 20 as fruits to the co-heir to whom said property has been adjudicated. Add this and divide equally among them. Balane: Once partition is made, respective titles are given to the respective heirs. Why? So that Art. 1088. Should any of the heirs sell they can transfer the titles in their names. his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by Art. 1090. When the title comprises two reimbursing him for the price of the sale, or more pieces of land which have been provided they do so within the period of one assigned to two or more co-heirs, or when it month from the time they were notified in covers one piece of land which has been writing of the sale by the vendor. divided between two or more co-heirs, the title shall be delivered to the one having the largest Art. 1620. A co-owner interest, and authentic copies of the title shall of a thing may exercise the be furnished to the other co-heirs at the right of redemption in case the expense of the estate. If the interest of each shares of all the other co- co-heir should be the same, the oldest shall owners or of any of them, are have the title. sold to a third person. If the price of the alienation is grossly Balane: (This is) to enable everybody to get their excessive, the redemptioner respective properties shall pay only a reasonable Usually you must have the land one. resurveyed. Should two or more co- owners desire to exercise the right of redemption, they may Subsection 2: Effects of Partition. only do so in proportion to the share they may respectively have in the thing owned in Art. 1091. A partition legally made common. confers upon each heir the exclusive ownership of the property adjudicated to him. Art. 1619. Legal redemption is the right to be Balane: Effect of partition: Art. 1091 or to subrogated, upon the same terminate co-ownership. terms and conditions stipulated in the contract, in the place of one who acquires a thing by Art. 1092. After the partition has been purchase or dation in payment, made, the co-heirs shall be reciprocally bound 79 or by any other transaction to warrant the title to, and the quality of, each whereby ownership is trans- property adjudicated. Page mitted by onerous title. Balane: Warranties are the same as in sales: Balane: 1. Eviction (title.) hotjurist 2009 Succession 2. Hidden defects (quality.) General rule: Warranty holds and co-heirs are liable. E.g., Three co-heirs A, B and C divided Exception: If co-heir/ distributee the land they inherited equally. But part of the knew of the insolvency and still accepted the bad land given to A did not really belong to the debt, then the co-heirs are not liable. predecessor so A losses part of his share. What happens? Art. 1096. The obligation of warranty B and C will be liable for the warranty for among co-heirs shall cease in the following the part lost. They will either: (a) give cash; or (b) cases: give land. (1) When the testator himself has made the partition, unless it appears, or it may be Art. 1093. The reciprocal obligation of reasonably presumed, that his intention was warranty referred to in the preceding article otherwise, but the legitime shall always remain shall be proportionate to the respective unimpaired; hereditary shares of the co-heirs; but if any of (2) When it haws been so expressly one of them should be insolvent, the other co- stipulated in the agreement of partition, unless heirs shall be liable for his part in the same there has been bad faith; proportion, deducting the part corresponding (3) When the eviction is due to a cause to the one who should be indemnified. subsequent to the partition, or has been Those who pay for the insolvent heir caused by the fault of the distributee of the shall have a right of action against him for property. reimbursement, should his financial condition improve. Balane: The warranty does not exist in the situations given. Balane: Illustration: A, B, C and D. A lost part (as For par. 1: in Art. 1092) worth 90. General rule: Warranty does not apply. 1. B, C and D will share equally in the 90, Exception: If legitimes are impaired. 30 each 2. If D is insolvent, A, B and C will shoulder his 30 share, 10 each Subsection 3: Rescission and Nullity of 3. General rule: A, B and C have a right Partition. of reimbursement against D should his financial situation improve. Art. 1097. A partition may be rescinded Exception: If D gets a judicial declaration or annulled for the same causes as contracts. of insolvency. This wipes out all his debts. Balane: A. Rescission: Articles 1381 to 1382. Art. 1094. An action to enforce the B. Annulment: Art. 1390. warranty among co-heirs must be brought 1. Party incapable of giving consent within ten years from the date the right of 2. Vitiated consent action accrues. a. Mistake b. Violence Balane: Ten (10) years is counted from the time c. Intimidation the portion was lost or the hidden defect was d. Undue Influence discovered. e. Fraud. Art. 1095. If a credit should be Art. 1098. A partition, judicial or extra- assigned as collectible, the co-heirs shall not judicial, may also be rescinded on account of be liable for the subsequent insolvency of the lesion, when any one of the co-heirs received debtor of the estate, but only for his things whose value is less, by at least one- insolvency at the time the partition is made. fourth, than the share to which he is entitled, The warranty of the solvency of the considering the value of the things at the time debtor can only be enforced during the five they were adjudicated. years following the partition. Co-heirs do not warrant bad debts, if so Balane: Lesion is the same as that in Art. 1381, known to, and accepted by the distributee. But paragraphs 1 and 2. This applies whether the if such debts are not assigned to a co-heir, and partition was judicial or extrajudicial. should be collected, in whole or in part, the E.g., A is a co-heir of B and C. A is amount collected shall be distributed entitled to receive 100. In partition, he receives: proportionately among the heirs. 1. Property worth 80. No rescission of partition because the lesion is less then 1/4. But A Balane: has rights under the warranties. So he can ask for 1. Can you assign a credit? Yes. A completion. credit is a property. 2. Property is worth 75. There is lesion 2. Time of insolvency of the debtor is so A can demand for the rescission of the important. partition. a. If the debtor was originally solvent In actuality, (this is) hard to do- how do (solvent before the assignment), then later on you prove values, they are very subjective. This is becomes insolvent, the co-heirs are not liable. not looked upon with favor by Civil Law b. If the debtor was insolvent before commentators. the partition. MLQU School of Law Arlegui St., Quiapo Manila LAW STUDENT COUNCIL 2009 CENTRALIZED BAR OPERATIONS Art. 1099. The partition made by the Balane: This contemplates a case where there is testator cannot be impugned on the ground of an incomplete partition. Why? E.g., It was not lesion, except when the legitime of the known that they existed. The solution is to compulsory heirs is thereby prejudiced, or partition the newly discovered objects. when it appears or may reasonably be presumed, that the intention of the testator was otherwise. Art. 1104. A partition made with preterition of any of the compulsory heirs shall Balane: If partition was done by the testator: not be rescinded, unless it be proved that General rule: The heirs cannot demand rescission there was bad faith or fraud on the part of the on the ground of lesion. other persons interested; but the latter shall be Exceptions: (1) when the legitime of any proportionately obliged to pay to the person compulsory heir was impaired. omitted the share which belongs to him. (2) when the testator's intent was not carried out. Balane: This refers to omission of heir in partition and not to preterition. The heir omitted has the right to demand his share. Art. 1100. The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. Art. 1105. A partition which includes a person believed to be an heir, but who is not, Balane: Prescriptive period: Four (4) years from shall be void only with respect to such person. the time the partition was made. Balane: This is the opposite of Art. 1104. It does not nullify the partition. It makes the recipient Art. 1101. The heir who is sued shall return what was mistakenly given to him. 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 who have not received more than their just share. Balane: If there is lesion, there are two (2) options: 1. Make a new partition 2. Give the prejudiced heir the monetary equivalent of the damage. Who can choose? The heir sued. E.g. A, B and C. A is supposed to receive 100,000. He receives only 70,000. A sues B and C. B and C has the choice of which option to follow. 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. Balane: This provision does not mean much. Art. 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the 81 ground of lesion, but the partition shall be completed by the distribution of the objects or Page securities which have been omitted. hotjurist 2009
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