ateneo midterms

SUCCESSION

CHAPTER 1: GENERAL PROVISIONS

ELEMENTS OF SUCCESSION1. Decedent2. Successors

a. Heirs – those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation on law

b. Devisees or Legatees – persons to whom gifts of real or personal property are respectively given by virtue of a will.

3. Death of the Person – However, a person may be presumed dead for the purpose of opening his succession (see rules on presumptive death). In this case, succession is only of provisional character because there is always the chance that the absentee may be alive.

4. Inheritance – is the subject matter of Succession it includes: Property and transmissible rights and

obligations Existing at the time of his death AND those which have accrued thereto

since the opening of succession.

RIGHTS EXTINGUISHED BY DEATH1. Support2. Usufruct3. Those arising from personal consideration4. Personal easements5. Partnership rights

QuickTime™ and a

KINDS OF SUCCESSION1. Testamentary – that which results from the

designation of an heir, made in a will executed in the form prescribed by law

2. Legal or Intestate – that which takes place by operation of law in the absence of a valid will

3. Mixed – that which is effected partly by will and partly by operation of law

KINDS OF HEIRS1. Compulsory – those who succeed by force of

law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance

2. Voluntary or Testamentary – those who are instituted by the testator in his will, to succeed to the portion of the inheritance of which the testator can freely dispose

3. Legal or Intestate – those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will

CHAPTER 2: GENERAL PROVISIONS ON WILLS

ELEMENTS OF A WILL1. It is an act;2. whereby a person is permitted;3. with the formalities prescribed by law;4. to control to a certain degree;5. the disposition of his estate;6. to take effect after his death.

KINDS OF WILLS:1. Notarial – an ordinary or attested will2. Holographic – a handwritten will

COMMON REQUISITES BETWEEN THE TWO WILLS:1. must be in writing and2. in a language or dialect known to the testator

7. Life Annuity TIFF (Uncompressed) decompressor are needed to see this picture.

CHARACTERISTICS OF A WILL:1. Unilateral2. Strictly Personal act

a. Acts which may not be left to the discretion of third persons (Articles 785 AND 787):

i. Duration or efficacy of the designation of heirs, devisees or legatees;

—Adviser: Dean Cynthia del Castillo Head : Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim;

Subject Head : Polaris Rivas;

SUCCESION - Is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law (Art. 774)

6. Agency

Succession InheritanceRefers to the legal Refers to themode by which universality or entiretyinheritance is of the property, rightstransmitted to the and obligations of apersons entitled to it. person who died.

of 297

ii. Determination of the portions which theyare to take, when referred to by name; and

iii. Determination of whether or not the testamentary disposition is to be operative

b. Acts which may be entrusted to third persons (Article 787);

i. Distribution of specific property or sums of money that he may leave in general to specified classes or causes; and

ii. Designation of the persons, institutions or establishments to which such property or sums are to be given or applied.

3. Free and voluntary act4. Formal and solemn act5. Act mortis causa6. Ambulatory and revocable during the testator’s

lifetime7. Individual act

INTERPRETATION OF WILLS

1. Animus Testandi - The testator’s intent (animus testandi), as well as giving effect to such intent is primordial. EXCEPT: when the intention of the testator is contrary to law, morals or public policy.

2. In case of doubt, the interpretation by which the disposition is to be operative or will sustain and uphold the will in all its parts shall be adopted, provided that it can be done consistently with the established rules of law.

3. Ambiguities in Wills – Intrinsic or extrinsic evidence may be used to ascertain the testatorial intent of the testator. EXCEPT: the oral declarations of the testator as to his intentions must be excluded because such testimony would be hearsay.

4. After Acquired Property - Property acquired during the period between the execution of the will and the death of the testator is NOT included among the property disposed of. EXCEPT: When a contrary intention expressly appears on the will.

3. Of sound mind, at the time of its execution; Atestator is considered of sound mind if he knows at the time of making of the will the following:a. Nature of the estate to be disposed ofb. Proper objects of his bountyc. Character of the testamentary act

Supervening capacity or incapacity does not affect the will because the validity of a will is determined at the time of the execution of the will.

LEGAL PRESUMPTION IN FAVOR OF SOUNDNESS OF MIND

GENERAL RULE: The law presumes that the testator is of sound mind

EXCEPT:a. When the testator, one month or less, before

making his will was publicly known to be insane; or

b. Was under guardianship at the time of the making of his will. (Torres and Lopez de Bueno vs. Lopez, 48 Phil. 772)

CHAPTER 3: FORMS OF WILL

1. NOTARIAL WILL – a valid notarial will:a. Must be in writing and in a language or

dialect known to the testator

b. Subscribed at the end by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction

c. Attested & subscribed by three or more credible witnesses in the presence of the testator and of one another Mandatory Part: The signing on every

page in the witnesses’ presence NOTE: Test of presence is not whether

they actually saw each other sign, but whether they might have seen each other sign had they chosen to do soNOTE: This rule apQpuiclkieTimse™oanndlya to legacies and

TIFF (Uncompressed) decompressor

devisees and noatretnoeedinedstotisteue tthiois npictouref.

heirs

TESTAMENTARY CAPACITY

1. All persons who are not expressly prohibited by law

2. 18 years old and above

considering their mental and physicalcondition and position with relation to each other at the moment of inscription of each signature.

Directory Part: The place of the signature, i.e. the left margin; the signature can be affixed anywhere on the page.

QuickTime™ and aTIFF (Uncompressed) decompressor

are needed to see this picture.

Attestation – An act of witnessing execution of will by testator in order to see and take note mentally those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact.

Page 85 of 297

d. Each and every page, except the last, must besigned by the testator or by the person requested by him to write his name, and by the instrumental witnesses of the will, on the left margin. Signatures on the left margin on each and every page NOT REQUIRED:

i. In the last page, when the will consists of two or more pages;

ii. When the will consists of only one page;iii. When the will consists of two pages, the first

consists of all the testamentary disposition and is signed at the bottom by the testator and the witnesses and the second contains only the attestation clause duly signed at the bottom by the witnesses.

e. Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page. Mandatory Part: Pagination by means of a

conventional system. Directory Part: The pagination in letters on

the upper part of each page

f. It must contain an attestation clause, stating the following:a. The number of pages used upon which the

will is writtenb. The fact that the testator signed the will and

every page, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses

c. All the instrumental witnesses witnessed and signed the will and all its pages in the presence of the testator and of one another

g. It must be acknowledged before a notary public by the testator and the witnesses

ATTESTATION v. SUBSCRIPTION

The attestation clause need not be written in a language or dialect known to the testator nor to the witnesses since it does not form part of the testamentary disposition

The attestation clause need only be signedby the witnesses and not by the testator as it is a declaration made by the witnesses.

Cruz v. Villasor, 54 SCRA 31- the notary public cannot be counted as one of the attesting witnesses

ATTESTATION SUBSCRIPTION

1. act of the senses 1. act of the hand

2. mental act 2. mechanical act

3. Purpose is to render available proof during the probate that such will had been executed in accordance with the formalities prescribed by law

3. Purpose is for identification

4. Found after the attestation clause at the end or last page of the will

4. Found at the left side margin of every page of the will

ADDITIONAL REQUISITES FOR VALIDITY

a. If the Testator be Deaf or Deaf-Mute:i. Testator must personally read the will, if

able to do so;ii. Otherwise, he shall designate two

persons to read it and communicate to him, in some practicable manner, its

Icasiano vs. Icasiano, II SCRA 422 – the inadvertent failure of one witness to affix his signature to one page of the original will due to the simultaneous lifting of two pages in the course of signing is not per se sufficient to justify denial of probate when the duplicate will shows

Subscription - The manual act of instrumental witnesses in affixing their signature to the instrument.

of 297

contents (Art 807)b. If the Testator be Blind: The will shall be read to the testator twice -

i. Once by one of thesubscribing witnesses

of 297

ii. Once by the notary public before whomthe will is acknowledged (Art 808)

NOTE: Articles 807 and 808 are mandatory, failure to comply with either would result in nullity and denial of probate.

2. HOLOGRAPHIC WILL – a holographic will is valid if it is:

a. In writing and in a language or dialect known to the testator

b. Entirely written, dated, and signed by the hand of the testator himself

c. Dispositions of the testator written below his signature must be dated and signed by him in order to validate the testamentary dispositions. (Art 812)

EXCEPT: In case of dispositions appearing in a holographic will which are signed without being dated, where the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions

A holographic will is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (Art 810)

PROBATE OF HOLOGRAPHIC WILL

a. There must be at least one witness. EXCEPTION: If the will is contested, at

least three of such witnesses shall be required (merely directory). In the absence of such competent witness and if the court deems it necessary, expert testimony may be resorted to.

b. who knows the handwriting and signature of the testator

c. must explicitly declare that the will and the signature are in the handwriting of the testator. (Art 811)

QuickTime™ and a

INSERTION, CANCELLATION, ERASURE OR ALTERATION IN A HOLOGRAPHIC WILL

a. If made after the execution of the will, but without the consent of the testator, such insertion is considered as not written because the validity of the will cannot be defeated by the malice or caprice of a third person

b. If the insertion after the execution of the will was with the consent of the testator, the will remains valid but the insertion is void.

c. If the insertion after the execution is validated by the testator by his signature thereon, then the insertion becomes part of the will, and the entire will becomes void, because of failure to comply with the requirement that it must be wholly written by the testator

d. If the insertion made by a third person is made contemporaneous to the execution of the will, then the will is void because it is not written entirely by the testator

WHO MAY BE A WITNESS TO A WILL – Anyperson may be a witness provided he is:

a. Of sound mindb. Of the age of 18 years or morec. Not blind, deaf or dumbd. Able to read and writee. Domiciled in the Philippinesf. Have not been convicted of falsification of a

document, perjury or false testimony

CHAPTER 4: LAWS GOVERNING VALIDITY OF A WILL

1. FORMAL VALIDITY NOTE: TThIFiFs(Unacormtpirceslesed) daecpompplrieesssor only to post

mortem proab

rea

netee

ds

ed toa

sn

eed

this n

pico

tutre.

to ante mortem probates since in such cases the testator himself files the petition and will identify the document himself.

a. If the testator is a Filipino and the will is executed in the Philippines then its formal validity is governed by the CC of the Philippines

b. If the testator is a Filipino and the will is executed in a foreign country, then its formal validity is governed either:

Gan v, Yap, 104 Phil 509 – in the probate of a holographic will, the document itself must be produced; a lost holographic will cannot be probated. Exception: When copy of the will is produced

of 297

i. By the law of the place where the willwas made

ii. By the CC of the Philippines

c. If the testator is a foreigner and the will is executed in the Philippines, then its formal validity is governed either:

i. By the CC of the Philippinesii. By the law of his own country

d. If the testator is a foreigner and the will is executed in a foreign country, then its formal validity is governed either:

i. By the law of the place where the will was made

ii. By the law of his own countryiii. By the law of the country where he

residesiv. By the CC of the Philippines

2. SUBSTANTIVE VALIDITY

ASPECTS OF THE WILL GOVERNED BY NATIONAL LAW OF THE DECEDENT:

a. Order of successionb. Capacity to succeedc. Amount of successional rightsd. Intrinsic validity (Art 16)

VALIDITY OF JOINT WILLS

Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669)

NOTE: Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.

CHAPTER 5: AMENDMENTMENT, REVOCATION A N D RE P U BL I C QuAickTTimI O e™NandOa F WILLS

TIFF (Uncompressed) decompressor are needed to see this picture.

AMENDMENT OF WILLS

1. Notarial – only through a codicil

2. Holographic – in three waysa. Dispositions may be added below the

signature, PROVIDED that said dispositions

are also dated and signed, and everything iswritten by the hand of the testator himself

b. Certain dispositions or additional matter may be suppressed or inserted PROVIDED that said cancellation is signed by the testator and written by the hand of the testator himself

c. Through a codicil which may either be notarial or holographic

ELEMENTS OF A CODICIL

1. It is a supplementary or addition to a will2. made after the execution of the will3. and annexed to be taken as a part thereof4. by which any disposition in the original will may

be explained, added to or altered

REQUISITES FOR INCORPORATION BY REFERENCE

1. the document or paper referred to in the will must be in existence at the time of the execution of the will

2. the will must clearly describe and identify the same, stating among other things the number of pages thereof

3. it must be identified by clear and satisfactory proof as the document or paper referred to therein

4. it must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories

REVOCATION OF WILLS

1. By operation of law – instances of revocation by operation of law:a. decree of legal separationb. preteritionc. legacy or credit against third person or

remission of debt was provided in will and subsequently, testator brings action against debtor

d. substantial transformation of specific thing bequeathed

e. when heir, devisee or legatee commits any of the acts of unworthiness

2. By the execution of a will, codicil or other writing executed as provided in case of willsa. EXPRESS – When there is a revocatory

clause expressly revoking the previous will or a part thereof

QuickTime™ and aTIFF (Uncompressed) decompressor

are needed to see this picture.

Art. 832 A revocation made in a subsequentwill shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation.

EXCEPTION: Molo v. Molo, (90 Phil 37), When the testator provides in the subsequent will that the revocation of the prior one is dependent on the capacity or acceptance of the heirs, devisees, or legatees instituted in the

subsequentrevocation)

will (dependantrelative

Page 89 of 297

b. IMPLIED – When the provisions thereof arepartially or entirely inconsistent with those of the previous wills

3. By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. REQUISITES:a. Testamentary capacity at the time of

performing the act of destruction;b. Intent to revoke (animus revocandi);c. Actual physical act of destruction;d. Completion of the subjective phase; ANDe. Performed by the testator himself or by some

other person in his presence and express direction

LAWS WHICH GOVERN REVOCATION1. If the revocation takes place in the Philippines

whether the testator is domiciled in the Philippines or not,a. Laws of the Philippines

2. If the revocation takes place outside the Philippines, by a testator who is domiciled in the Philippines,a. Laws of the Philippines

3. Revocation done outside the Philippines by a testator who is not domiciled in this country,a. Laws of the place where the will was made;

orb. Laws of the place in which the testator had

his domicile at the time of the revocation.

REVOCATION BASED ON A FALSE OR ILLEGAL CAUSE

Revocation based on a false or illegal cause is null and void. REQUISITES:

a. The cause must be concrete, factual and notpurely subjective

b. It must be falsec. The testator must not know of its falsityd. It must appear from the will that the testator

is revoking because of the cause which is false.

Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked.

FACTS DEMONSTRATING ART 837 In 1985, X executed Will 1 In 1987, X executed Will 2, expressly revoking

Will 1 In 1990, X executed Will 3, revoking Will 1

CONCLUSION ON THE FACTS The Revocation of Will 2 by Will 3 does not revive

Will 1 This demonstrates the theory of instant

revocation because the revocatory effect of the second will is immediate upon the first will

NOTE: This article only applies where the revocation of the first will by the second will is express.

REPUBLICATION AND REVIVAL OF WILLS

If the testator wishes to republish a will that is void as to form, the only way to republish it is to execute a subsequent will and reproduce it

The testator need only execute a subsequent will

Art. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil.

of 297

or codicil referring to the previous will if the testator wishes to republish a will that is either:a. Void for reason other than a formal defect

b. Previously revoked

REPUBLICATION REVIVALTakes place by an act of the testator

Takes place operation of law

by

Corrects extrinsic extrinsic defects

and Restores a revoked will


1 of 297

CHAPTER 6: ALLOWANCE AND DISALLOWANCE OF WILLS

at the time of affixing his signaturethereto.(Art 839)

1. PROBATE OF A WILLa. A special proceeding required for the purpose of

establishing the validity of the will.b. Probate of a will is mandatoryc. The probate court can only inquire into the

extrinsic validity of testamentary provisions, which include the following:

i. That the testator was of sound and disposing mind

ii. That his consent was not vitiatediii. That the will was signed by the required

number of witnessiv. That the will is genuine

KINDS OF PROBATE1. Post-Mortem – after the testator’s death2. Ante-Mortem – during his lifetime

FINAL DECREE OF PROBATE Once a decree of probate becomes final in

accordance with the rules of procedure it becomes Res Judicata

It is conclusive as to the due execution of the will (extrinsic validity only)

2. DISALLOWANCE OF WILL - grounds for disallowance of a will:

a. If the formalities required by law have not been complied with;

b. If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;

c. If it was executQeuidckTimthe™roanudga h force or under duress, or tharee nienedfelud teo nsece

ethisopifctufree.ar, or threats;d. If it was procured by undue and improper

pressure and influence, on the part of the beneficiary or of some other person;

e. If the signature of the testator was procured by fraud;

f. If the testator acted by mistake or did not intend that the instrument should be his will

CHAPTER 7: INSTITUTION OF HEIRS

INSTITUTION OF HEIR1. It is an act by virtue of which a testator designates

in his will2. the person or persons who are to succeed him in

his property and transmissible3. rights and obligations

REQUISITES FOR A VALID INSTITUTION OF HEIR1. Designation in will of person/s to succeed

a. Directory - designation of name and surname

b. Mandatory – identity of the heir must be established, otherwise void disposition, unless his identity becomes certain.NOTE: If there is ambiguity in the designation, the designation must be resolved by discerning the testator’s intent. If the ambiguity cannot be resolved, intestacy to that portion results.

2. Will specifically assigns to such person an inchoate share in the estate.

3. The person so named has capacity to succeed4. The will is formally valid5. No vice of consent is present6. No preterition results from the effect of such will

THREE PRINCIPLES IN THE INSTITUTION OF HEIRS1. Equality – heirs who are instituted without a

designation of shares inherit in equal parts2. Individuality – heirs collectively instituted are

deemed individually named unless a contrary intent is proven

3. Simultaneity – when several heirs are instituted, they are instituted simultaneously and not successively

RULES ON A PERSON’S RIGHT TO DISPOSE OF HIS ESTATE

EXCEPTION: Nuguid v. Nuguid, 17 SCRA 449, the probate court may pass upon the intrinsic validity of the will when its probate might become an idle ceremony if on the will’s face it appears to be intrinsically void.

REVOCATION DISALLOWANCEVoluntary testator

act of the Given by judicial decree

With or without cause Always for a legal causeMay be partial or total Always total EXCEPT

when the ground of fraud or influence for example affects only certain portions of the will

the heir/s in the will

1. If one has no compulsory heirs:a. He can give his estate to any person

qualified to inherit under himb. However, he must respect restrictions

imposed by special laws2. If one has compulsory heirs:

a. He can give only the disposable portion to strangers

b. Legitimes of compulsory heirs must be respected

REQUISITES FOR THE ANNULMENT OF INSTITUTION OF HEIRS:1. Cause of institution of the heirs must be stated in

will2. Cause must be shown to be false3. It appears from the face of the will that the

testator would not have made the institution had he known the falsity of the cause.

RULES ON INSTITUTION OF ALIQUOT SHARE LESS THAN OR IN EXCESS OF THE WHOLE ESTATE:

1. Intestacy Results ifa. the heir institutes an aliquot portion of the

estateb. to only one heir If the heir institutes several

heirs to an aliquot part of the2. Each heir’s share shall be proportionally increased:

a. There are more than one instituted heirb. The testator intended the heirs to inherit the

whole estatec. The aliquot parts of each share do not cover

the whole inheritance3. Each heir’s share shall be proportionally

decreased:a. There are more than one instituted heirb. The testator intended the heirs to inherit the

whole estatec. The aliquot parts of each share exceed the

whole inheritance

PRETERITION

1. There must be an omission of one, some or all ofQuickTime™ and a


2. The omission mau

res

netedb

ede

to tsh

eea

thtis o

picftura

e.

COMPULSORY HEIR3. Compulsory heir omitted must be of the DIRECT

LINE4. The omitted compulsory heir must be LIVING at

the time of testator’s death or must at least have been CONCEIVED before the testator’s death

5. The omission must be complete and total in character. : There is no omission if

a. A devise or legacy has been given to the heirb. A donation inter vivos has been previously

given to the heirc. Anything is left from the inheritance which the

heir may get by way of intestacy

EFFECTS OF PRETERITION:1. The institution of heir is annulled2. Devises and legacies shall remain valid as long

as they are not inofficious3. If the omitted compulsory heir should die before

the testator, the institution shall be effectual, without prejudice to the right of representation

DISTINGUISH PRETERITION FROM DISINHERITANCE

PRETERITION DISINHERITANCEDeprivation of a compulsory heir of his legitime is tacit

Deprivation of the compulsory of his legitime is express

May be voluntary but the law presumes that it is involuntary

Always voluntary

Law presumes that there has been merely an oversight or mistake on the part of the testator

Done with a legal cause

Omitted heir gets not only his legitime but also his share in the free portion not disposed of by way of legacies or devises

If disinheritance is unlawful, compulsory heir is merely restored to his legitime

CHAPTER 8: SUBSTITUTION OF HEIRS

CLASSES OF SUBSTITUTION:

1. Vulgar or Simple – the testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should:a. die before him (PREDECEASE)b. should not wish, (RENOUNCE) orc. should be incapacitated to accept the

inheritance (INCAPACITATED)2. Brief or Compendious – two or more persons

may be substituted for one; and one person for two or more heirs

3. Reciprocal – if heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute,

they shall have the same share in the substitutionas in the institution

4. Fideicommissary Substitution - if the testator institutes an heir with an obligation to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or fiduciary heir, the one to receive the property is the fideicommissary or second heir

REQUISITES FOR A FIDEICOMMISSARY SUBSTITUTION:1. A fiduciary or first heir instituted entrusted with

the obligation to preserve and to transmit to a fideicommissary substitute or second heir the whole or part of the inheritance

2. Such substitution must not go beyond one degree from the heir originally instituted

3. The fiduciary or first heir and the second heir are living at the time of the death of the testator

4. The fideicommissary substitution must be expressly made

5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime

NOTE: Pending the transmission of the property, the fiduciary is entitled to all the rights of a usufructuary although the fideicommissary is entitled to all the rights of a naked owner.

CHAPTER 9: CONDITIONAL TESTAMENTARY DISPOSITIONS AND DISPOSITIONS WITH A

TERM

TESTAMENTARY DISPOSITIONS1. Condition – future or uncertain event, or a past

event unknown to the parties, upon which the performance of an obligation depends

2. Term – the day or time when an obligation either becomes demandable or terminates

3. Modal Institution – the statement of the institution; application of the property left by the testator or the charge imposed on him

4. Disposicion Captatoria – condition that the heir shall make some provision in his will of the testator or of any other person (prohibited

8. Suspensive term – one that merely suspendsthe demandability of a right. It is sure to happen

9. Caucion Muciana – bond or security that should be given in favor of those who would get the property if the condition not be complied with

INTERPRETATION When in doubt whether there is a condition or

merely a mode, consider the same as mode

When in doubt as to whether there is a mode or merely a suggestion, consider same only as a suggestion

The condition suspends but does not obligate, the mode obligates but does not suspends (for he who inherits with a mode is already an heir; one who inherits conditionally is not yet an heir.)

RULES ON POTESTATIVE, CASUAL AND MIXED CONDITIONS

1. POTESTATIVE

Positive Potestative Condition: General Rule – must be fulfilled as soon as the

heir learns of the testator’s death EXCEPTION

a. the condition was already complied with at the time the heir learns of the testator’s death

b. the condition is of such nature that it cannot be fulfilled again

Negative Potestative Condition: Heir must give security to guarantee the return of

the value of property, fruits, and interests, in cases of contravention

2. CASUAL OR MIXED

Positive GENERAL RULE – may be fulfilled at any other

time (before testator’s death), unless testator provides otherwise.

If ALREADY FULFILLED at the time of execution of the willbecause it will make QthuicekTmimea™kainnd ga of the will a a. If testator unaware of fact of fulfillment-


contractual act) are needed to see this picture.

5. Causal Condition – condition us casual if it depends upon chance and/or upon the will of a third person

6. Mixed Condition - It is mixed if it depends both partly upon the will of the heir himself and upon chance and/or the will of a third person

7. Potestative Condition – one the fulfillment of which depends purely on heir

deemed fulfilledb. If testator aware thereof –

i. If it can no longer be fulfilled again –deemed fulfilled

ii. If it can be fulfilled again – must be fulfilled again

Constructive Compliancea. if casual – not applicable

b. if mixed –i. If dependent partly on chance – not

applicableii. If dependent partly on will of third party –

1. if 3rd

party interested – applicable2. if 3

rd party not interested – not

applicable

EFFECTS OF SUSPENSIVE CONDITION OR TERM

The estate shall be placed under administration until

1. condition is fulfilled2. until it becomes certain condition will never be

fulfilled3. until arrival of the term

CONDITIONS PROHIBITING MARRIAGE

1. If a first marriage is prohibited – condition considered always as not imposed

2. If a subsequent marriage is prohibited as imposed by the deceased spouse or by his/her ascendants or descendants - valid

3. if a subsequent marriage is prohibited and imposed by anyone else- considered not written

ateneo midterms

Documents