boc 2015 succession reviewer

7/21/2019 BOC 2015 Succession Reviewer

http://slidepdf.com/reader/full/boc-2015-succession-reviewer 1/42

UP LAW BOC SALES CIVIL LAW

322

CIVIL LAW

SUCCESSION



UP LAW BOC SUCCESSION CIVIL LAW

323

I. GENERAL

PROVISIONS

A. DEFINITION

Succession - 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, CC]

Kinds of Succession

(1) Testamentary – that which results from the

designation of an heir, made in a will

executed in the form prescribed by law.

[Art. 779, CC ]

(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. [Art. 780,

CC]

(4) Compulsory – succession to the legitime

and prevails over all other kinds of

succession [Balane, 2010 ]

B. OBJECT OF SUCCESSION AND

TRANSMISSION

Inheritance includes:

(1) All the property, rights and obligations of a

person which are not extinguished by his

death [ Art. 776, CC ]

(2) Not only the property and the

transmissible rights and obligations

existing at the time of his death, but alsothose which have accrued thereto since the

opening of the succession [ Art. 781, CC ]

What are transmitted?

(1) Rights and obligations which are not

strictly personal (intuit personae) [Balane,

2010]

(2) Money debts of the decedent are not

transmitted to the heirs nor paid by them.

The estate pays them. [Balane, 2010]

Rule on Transmission:

General rule: All property rights which haveaccrued to the hereditary estate since the

opening of succession are transmitted to the

heirs

Exception: Property acquired after the making

of a will shall not pass to the heirs unless it

should expressly appear in the will that such

was the intention of the testator. [Art. 793, CC ]

Rules on Opening of Succession:

(1)

The rights to succession are transmittedfrom the moment of the death of the

decedent. [Art. 777, CC ]

Implications of this principle:

(a) The law in effect at the time of death of

the decedent governs the succession

[ Art. 2236, CC ]

(b) The heir becomes the owner of his

share as well as all fruits which accrue

after the death of the decedent.

(c)

Upon death of the decedent, heirs mayimmediately possess, administer and

dispose of their shares in the estate (in

the absence of existing debts/claims

against the estate);

(d) The possession of hereditary property

is deemed transmitted to the heir

without interruption and from the

moment of death of the decedent, in

case the inheritance is accepted [ Art.

533, CC ]

(e)

Estate taxes accrue upon death of thedecedent, even if the heirs come into

possession only later.

(2) A person may be “presumed” dead for the

purpose of opening his succession. In this

case, succession is only of provisional

character because there is always a chance




324

that the absentee may still be alive. [Arts.

390-391, CC ].

C. SUBJECTS OF SUCCESSION

Decedent – person whose property istransmitted through succession, whether or

not he left a will. [Art. 775, CC ]

Testator – a decedent who left a will [Art. 775,

CC ]

Kinds of Successors

(1) Heirs – those who are called to the whole

or an aliquot portion of the inheritance

either by will or by operation of law [Art.

782, CC ](2) Devisees – persons to whom gifts of real

property are given by virtue of a will

(3) Legatees – persons to whom gifts of

personal property are given by virtue of a

will

Note: The distinction is significant in case of

preterition.

Kinds of Heirs

(1)

Compulsory Heirs – those who succeed byforce of law to some portion of the

inheritance, in an amount predetermined

by law known as the legitime, of which they

cannot be deprived by the testator, except

by a valid disinheritance. They succeed

regardless of a will.

(2) Voluntary or Testamentary Heirs – those

who are instituted by the testator in his

will, to succeed to the portion of the

inheritance of which the testator can freely

dispose. They succeed by reason of a will.(3) Legal or Intestate Heirs – 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, or

when certain grounds are met

II. Testamentary

Succession

A. WILLS

A.1. IN GENERAL

Will - an act whereby a person is permitted,

with the formalities prescribed by law to

control to a certain degree the disposition of

his estate to take effect after his death. [Art.

783, CC ]

i. KINDS OF WILLS

(5) Notarial – an ordinary or attested will,

which must comply with the requirements

of the law [Arts. 804-808, CC ]

(6) Holographic – a will entirely written, dated

and signed by the hand of the testator [Art.

810, CC ]

ii. CHARACTERISTICS OF WILLS

(1) Purely personal – will-making is non-

delegable

making of a will cannot be left in whole

or in part of the discretion of a thirdperson, or accomplished through the

instrumentality of an agent or attorney

[ Art. 784, CC ]

testator may not make a testamentary

disposition in such manner that another

person has to determine whether or not

it is to be operative [ Art. 787, CC ]

What cannot be

delegated to 3rd

persons

What may be entrusted

to 3rd persons

(1) designation of

heirs, devisees and

legatees

(2) duration/efficacy

of designation

(3) determination of

(1) designation of

person/institution

falling under a

class specified by

testator

(2) manner of




325

portions, when

referred to by

name [Art. 785,

CC ]

distribution of

property specified

by testator [ Art.

786, CC ]

Note: testator mustfirst specify the class

and the amount of

property for proper

delegation

(2) Free and intelligent [Art. 839, CC ]

(3) Solemn and formal - if the form is

defective, the will is void

(4) Revocable and ambulatory – will can be

revoked at any time before the testator’s

death [Art. 828, CC ](5) Mortis causa - takes effect upon the

testator’s death

(6) Individual – prohibition against joint wills

[Art. 818, CC ]

(7) Executed with

animus testandi – intent to

dispose of the property

(8) Executed with testamentary capacity

(9) Unilateral act - does not involve an

exchange of values or depend on

simultaneous offer and acceptance

(10)

Dispositive – disposes of property

General rule: Wills contain disposition of

the testator’s estate mortis causa.

Exceptions: (non-dispositive wills)

will recognizing an illegitimate child

will disinheriting a compulsory heir

(11) Statutory grant – permitted only by law,

not a constitutional right

As it is a statutory grant, a will must be

made in accordance with the formalities

prescribed by the law [Art. 783, CC; Balane

(2004) ]

iii. RULES OF CONSTRUCTION AND

INTERPRETATION

[ Arts. 788-795]

Main rule: All rules are designed to ascertain

and give effect to the intention of the testator.

Rationale: Testamentary succession is

preferred to intestacy.

(1) Different interpretations, in case of doubt,

that which would make the will operative

[Art. 788, CC ]

(2) Words to be taken in their ordinary and

grammatical sense unless there is a clear

intention to use them in another sense

[Art. 790, CC ](3) Technical words are to be taken in their

technical sense unless there is a contrary

intention or when testator was

unacquainted with such technical sense

[Art. 790, CC ]

(4) Words must be of an interpretation to give

effect to every expression. To make it

operative rather than inoperative; that

which will prevent intestacy [Art. 791, CC ]

(5) Invalidity of one of several dispositions does

not result in invalidity of others unless thetestator would not have made such

dispositions if the first invalid disposition

had not been made [Art. 792, CC ]

(6) Every devise and legacy shall convey all the

interest unless it clearly appears the

intention was to convey a less interest [Art.

794, CC ]

(7) Where there are ambiguities (i.e. imperfect

description or no person or property

exactly answers to the description,

mistakes, omissions), intrinsic or extrinsic

evidence may be used to ascertain the

intention of the testator

Oral declarations of the testator as to hisintention must be excluded. [Art 789, CC ]




326

Kinds of Ambiguities

Patent or Extrinsic

Ambiguity

Latent or Intrinsic

Ambiguity

one which appears

upon the face of the

instrument

one which cannot be

seen from the reading

of the will but whichappears only upon

consideration of

extrinsic

circumstances

There is no distinction between patent and

latent ambiguities in so far as the admissibility

of parol or extrinsic evidence to aid

testamentary disposition is concerned.

iv. GOVERNING LAWS, IN GENERAL

Aspect of the Will Governing Law

Formal Validity Law in force at the time the

will was executed [ Art. 795,

CC ]

Intrinsic Validity Law of decedent’s

nationality at the time of his

death [ Arts. 16 and 2263, CC ]

Aspects of the Will Governed by the National

Law of the Decedent

(1) Order of succession;

(2) Amount of successional rights;

(3) Intrinsic validity of testamentary

provisions; and

(4) Capacity to succeed [Art. 16, CC ]

A.2. TESTAMENTARY CAPACITY AND

INTENTTestamentary capacity must exist at the time

of the execution of the will

Supervening incapacity does not invalidate an

effective will nor is the will of an incapable

validated by a supervening of capacity [Art.

801, CC ]

Requisites:

He must not be expressly prohibited by law to

make a will [Art. 796, CC ]

(a)

Age Requirement

The testator must not be under 18 years ofage [Art. 797, CC ]

“Year” shall be understood to be 12calendar months [Sec. 31, Book 1, AdminCode ]

(b)

Soundness of Mind of the Testator

The testator is of sound mind at the time of

execution [Art. 798, CC ]

Sanity is negatively stated in Art. 799: Not necessary that the testator be in full

possession of reasoning faculties

Not necessary that the testator’s mind be

wholly unbroken, unimpaired,

unshattered by disease, injury or other

cause [Art. 799, CC ]

To be of sound mind, the testator must

know:

The nature of the estate to be disposed

of;

The proper objects of his bounty;

The character of the testamentary act

[Art. 799, CC ]

General rule: Soundness of mind is

presumed [Art. 800, CC ]

Exception: When the testator, one month

or less before the execution of the will, was

publicly known to be insane

A.3. FORM

IN GENERAL [Art. 804, CC ]

(1) The will must be in writing

(2) It must be in a language or dialect known

to the testator




327

Applicable Laws as to Formal Validity

Formal validity is governed by the law in

force at the time the will was executed [Art.

795, CC]

As to the place, forms and solemnities of awill are governed by the law of the country in

which the will was executed [Art. 17, CC ]

Arts. 815-817 (summarized in the table

below) provide for the various governing laws

in these instances:

(1) A will was made in a foreign country by a

Filipino [ Art. 815]

(2) A will was made in a foreign country by

an alien [ Art. 816 ]

(3) A will was made in the Philippines by an

Alien [ Art. 817 ]

Governing Law as to Place of Execution of Will

Testator

Place of

Execution of

Will

Governing Law

Filipino

Philippines Philippine Law [ Art. 16,

CC ]

Outside of

the

Philippines

(1) Law of the country

in which it is

executed [ Art.17,CC ]; or

(2) Philippine Law [ Art.

815, CC ]

Alien

Philippines (1) Philippine Law; or

(2) Law of the country

of which testator is a

citizen or subject

[ Art. 817, CC ]

Outside of

thePhilippines

(1) Law of the place

where the will isexecuted [ Art. 17,

CC ]; or

(2) Law of the place

where the testator

resides; or

(3) Law of the testator’s

country; or

(4) Philippine Law [ Art.

816, CC ]

ATTESTED OR NOTARIAL WILLS

Specific Requirements for Notarial Wills

(1) Subscribed at the end

(2) Attestation clause

(3) Marginal signatures

(4) Page numbers

(5) Acknowledged by a notary public

(6) Additional requirements for handicapped

testators

(7) Subscribed by 3 or more witnesses in the

presence of the testator and of one another

(1) Subscription: Subscribed to, at the end of

the will [Art. 805, CC ]

By the testator himself; or

By the testator’s name written by a

representative in his presence and under

his express direction.

(2) Attestation: Attested and subscribed by 3

or more credible witnesses in the presence

of the testator and of one another [Art.

805, CC ]

Attestation Subscription

Mental act (act of the

senses)

Mechanical act (act of

the hand)

Purpose is to render

available proof during

probate of will, not

only of the authenticity

of the will but also ofits due execution

Purpose of

identification

The attestation clause shall state the

following:

(1) Number of pages;

(2) The fact that the testator or his

representative under his express




328

direction signed the will and every

page in the presence of instrumental

witnesses

(3) That the witnesses signed the will and

all its pages in the presence of the

testator and of one another.

The signatures of the witnesses must be at

the bottom of the attestation clause [Cagro

v. Cagro (1953)]

The notary public cannot be counted as an

attesting witness [Cruz v. Villasor (1973)]

Test of presence: Not whether they actually

saw each other sign, but whether they

might have seen each other sign had theychosen to do so considering their mental

and physical condition and position with

relation to each other at the moment of

inscription of each signature. [ Jaboneta v.

Gustilo (1906)]

(3) Marginal Signatures

General rule: Testator or his representative

shall write his name, and the witnesses

shall sign each and every page except the

last page [ Art. 805, CC ]

Exceptions:

(1) When the will consists of only one page

(2) When the will consists of only two

pages, the first of which contains all

dispositions and is signed at the

bottom by the testator and the

witnesses, and the second page

contains only the attestation clause

duly signed at the bottom by the

witnesses. [ Abangan v. Abangan (1919)]

The use of thumbprint was allowed [Matias

v. Salud (1957) ]

The inadvertent failure of one witness to

affix his signature to one page of a

testament, due to the simultaneous lifting

of two pages in the course of signing, is not

per se sufficient to justify denial of probate.

[Icasiano v. Icasiano (1964) ]

(4)

Page Numberings: Numbered correlativelyin letters placed on the upper part of each

page (i.e. Page One of Five Pages). [Art.

805, CC ]

Mandatory part: pagination by means of

a conventional system

Directory part: pagination in letters on

the upper part of each page [Balane

(2010) ]

(5) Acknowledged before a notary public by

the testator and the witnesses [Art. 806,CC ]

Notary public cannot be considered a third

witness. He cannot acknowledge before

himself his having signed the will. To allow

such would have the effect of having only

two attesting witnesses to the will. [Cruz v.

Villasor (1973) ]

The certification of acknowledgement need

not be signed by the notary in the presenceof the testator and the witnesses.

[Javellana v. Ledesma (1955) ]

(6) Additional rules for handicapped testators:

(a) Deaf Mute [ Art. 807, CC ]

Testator must personally read the

will; or

Testator shall personally designate

two persons to read the contents and

communicate it to him in some

practicable manner.

(b) Blind [ Art. 808, CC ]

The will shall be read to the testator

twice - By one of the subscribing

witnesses and by the notary public

acknowledging the will.




329

A testator suffering from glaucoma is

considered as legally blind [Garcia v.

Vasquez (1970) ]

(7) Witnesses

Qualifications [Art. 820, CC ](1) Of sound mind

(2) Aged 18 years or over

(3) Not blind, deaf or dumb

(4) Able to read and write

Disqualifications [Art. 821, CC ]

(1) Person not domiciled in the Philippines

(2) Those who have been convicted of

falsification, perjury, or false testimony.

Rules on Interested Witness [Art. 823, CC ] General Rule Exception

Devises or legacies in

favor of a spouse,

parent or child who

also attests to the will

as a witness shall be

void

If there are three other

competent witnesses,

the device or legacy

shall be valid and the

interested witness

shall be treated as a

mere surplusage

Creditors are not incompetent to bewitnesses [Art. 824, CC ]

Supervening incompetency shall not

prevent the allowance of the will [Art. 822,

CC ]

Substantial Compliance Rule (as to the form of

the attestation clause)

Substantial compliance rule applies only in

cases when such defects and imperfections can

be supplied by an examination of the will itself.

There must be no bad faith, forgery, fraud, or

undue and improper pressure and influence for

substantial compliance to be allowed. [Art.

809, CC ]

Examples:

Whether all pages are consecutively

numbered

Whether the signatures appear in each and

every page

Whether the subscribing witnesses are three Whether the will was notarized [Caneda v CA

(1993) ]

Omissions which can be supplied by an

examination of the will itself, without the need

of resorting to extrinsic evidence, will not be

fata and will not prevent allowance of the will.

Omissions which cannot be supplied except by

extrinsic evidence or evidence aliunde are fatal

and would result in the invalidation of the will.

Example: Whether the testator signed in the

presence of the witnesses, or the witnesses

signed in the presence of the testator and of

one another.

HOLOGRAPHIC WILLS

Requisites:

(a) In writing [Art. 804, CC ]

(b) In a language known to the testator [Art.

804, CC ]

(c) Entirely written, dated and signed in the

hand of the testator himself [Art. 810, CC ]

Advantages Disadvantages

Simple and easy to

make

Induces foreigners in

this jurisdiction to

set down their last

wishes

Guarantees the

absolute secrecy of

the testamentary

dispositions

No guarantee as to

the capacity of the

testator

No protection

against violence,

intimidation or

undue influence

May not faithfully

express the will of

the testator due to

faulty expressions

Can be easily




330

falsified and

concealed

Witnesses Required for Probate [Art. 811, CC ]

At least one witness who knows thehandwriting and signature of the testator;

explicitly declare that it is the testator’s

If contested – at least 3 of such witnesses

In the absence of a competent witness,

expert testimony may be resorted to

General rule: The holographic will itself must

be presented for probate [Gan v. Yap (1958) ]

Exception: If there is a photostatic copy or

xerox copy of the holographic will, it may be

presented for probate [Rodelas v. Aranza

(1982) ]

Additional Dispositions

In holographic wills, the dispositions of the

testator written below his signature must be

dated and signed by him in order to make

them valid as testamentary dispositions [Art.

812, CC ]

When a number of dispositions appearing in a

holographic will are signed without being

dated, and the last disposition has a signature

and date, such date validates the dispositions

preceding it, whatever be the time of prior

dispositions. [Art. 813, CC ]

Insertion, Cancellation, Erasure or Alteration

[Art. 814, CC ]

Testator must authenticate by his full

signature.

Full signature does not necessarily mean the

testator’s full name; it rather means his usual

and customary signature. [Balane (2010) ]

Effect of insertion written by another person on

the validity of a holographic will

When Made Effect

After the execution,

without consent of

testator

Insertion considered

not written. Validity

cannot be defeated by

the malice or caprice

of a third person

After execution, with

consent

Will is valid, insertion

is void

After execution,

validated by testator’s

signature

Insertion becomes part

of the will. Entire will

becomes void because

it is not wholly written

by the testator

Contemporaneous to

the execution of the

will

Will is void because it

is not written entirely

by the testator

Joint Wills

(1) A single testamentary instrument,

(2) Which contains the wills of two or more

persons,

(3) Jointly executed by them,

(4) Either for their reciprocal benefit or for the

benefit of a third person.

Mutual Wills

(1) Executed pursuant to an agreement

between two or more persons,

(2) Jointly executed by them,

(3) Either for their reciprocal benefit or for the

benefit of a third person.

Reciprocal Wills

(1) Testators name each other as beneficiaries

in their own wills,(2) Under similar testamentary plans

Note: A will that is both joint and mutual is one

executed jointly by two or more persons, the

provisions of which are reciprocal and which

shows on its face the devises are made in

consideration of each other. Such is prohibited




331

under Art. 819, CC. Prohibition is applicable

only to joint wills executed by Filipinos, even if

execution is made in a foreign country which

allows joint wills.

A.4. CODICILSCodicil

(1) It is a supplement or addition to a will,

(2) made after the execution of a will,

(3) and annexed to be taken as a part of the

will,

(4) by which any disposition made in the

original will is explained, added to, or

altered.

(5) in order that it may be effective, it shall be

executed as in the case of a will. [Arts.

825-826, CC ]

A.5. INCORPORATION BY REFERENCE

Requisites [Art. 827, CC ]

(a) The document or paper referred to in the

will must be in existence at the time of the

execution of the will.

(b) The will must clearly describe and identify

the same, stating among other things the

number of pages thereof.

(c) It must be identified by clear and

satisfactory proof as the document orpaper referred to therein; and

(d) 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.

A.6. REVOCATION

A will may be revoked by the testator at any

time before his death [Art. 828, CC ]

Modes of Revocation [Art. 830, CC ]

(1) By implication of law; or

(2) By the execution of a will, codicil or other

writing executed as provided in the case of

wills; or

(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.

The act contemplating revocation must be

done at any time before the death of thetestator. The right of revocation cannot be

waived or restricted. [Art. 828, CC ]

Law Governing Revocation [Art. 829, CC ]

Place of

Revocation

Testator’s

Domicile

Governing Law

Philippines Philippines, or

some other

country

Philippine Law

Outside the

Philippines

Philippines Philippine law

Foreign

Country

(1) Law of the

place where

the will was

made; or

(2) Law of the

place in which

the testator

had his

domicile at

the time of

revocation

Doctrine of Dependent Relative Revocation

Molo v. Molo (1951)

The rule that where the act of destruction is

connected with the making of another will so

as to fairly raise the inference that the testator

meant the revocation of the old to depend

upon the efficacy of the new disposition

intended to be substituted, the revocation will

be conditional and dependent upon theefficacy of the new disposition; and if for any

reason, the new will intended to be made as a

substitute is inoperative, the revocation fails

and the original will remain in full force.

The failure of the new testamentary disposition

upon whose validity the revocation depends is




332

equivalent to the non-fulfillment of a

suspensive condition and hence prevents the

revocation of the original will.

Revocation vs. Nullity

Revocation Nullity By the act of the

testator

Presupposes a valid

act

Takes place during

the lifetime of the

testator

Testator cannot

renounce the right to

revoke

Proceeds from law

Inherent in the

testament, be it an

intrinsic or an

extrinsic defect

Invoked after the

testator’s death by

his heirs

Nullity of a will can

be disregarded bythe heirs through

voluntary

compliance

therewith

A.7. REPUBLICATION AND REVIVAL

The execution of a codicil referring to a

previous will has the effect of republishing the

will as modified by the codicil. [Art. 836, CC ]

The testator cannot republish withoutreproducing in a subsequent will, the

dispositions contained in a previous one which

is void as to its form. [Art. 835, CC ]

Reproduction in the codicil is required only

when the original will is void as to it form; in all

other cases, reference to the original will

suffices to republish it through the codicil.

[Tolentino ]

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. [Art. 837, CC ]

Principle of instanter – Revoking clause in the

2nd will is not testamentary in character but

operates to revoke the prior will immediately

upon the execution of the will containing it.

The revocation of the 2nd will does not revive

the 1st will which has already become a nullity.

Republication vs. Revival

Revocation Nullity

Takes place by an

act of the testator

Corrects extrinsic

and intrinsic defects

Takes place by

operation of law

Restores a revoked

will

A.8. ALLOWANCE AND DISALLOWANCE

OF WILLS

i. PROBATE REQUIREMENT

No will shall pass either real or personal

property unless it is proved and allowed in

accordance with the Rules of Court [Art. 838,

CC ]

Probate – a proceeding in rem required to

establish the validity of a will and in order to

pass real or personal property [Art. 838, CC ]

The testator himself may, during his lifetimepetition the court having jurisdiction for theallowance of his will. [Art. 838, CC ]

Matters to be proved in probate

(1) Identity – Whether the instrument which is

offered for probate is the last will and

testament of the decedent

(2) Due Execution – Whether the will has been

executed in accordance with the

formalities prescribed by law

(3) Capacity – Whether the testator had

testamentary capacity at the time of

execution of the will

Scope of probate proceedings [Art. 839, CC ]

General rule: The probate court cannot inquire

into the intrinsic validity of testamentary




333

provisions. Only the extrinsic validity of such

wills may be examined.

Exception: When practical considerations

demand that the intrinsic validity of the will be

resolved

When the will is intrinsically void on its face

(e.g., when there is clearly a preterition) such

that to rule on its formal validity would be a

futile exercise. [ Acain v. Diongson (1987)]

Claimants are all heirs and they consent, either

expressly or impliedly, to the submission of the

question of intrinsic validity to the court.

[Valera v. Inserto (1987)]

Probate court may pass upon the title to a

property, but such determination is provisional

and not conclusive, and is subject to the final

decision in a separate action to resolve title.

[Pastor v.CA (1983)]

Probate court may decide on the ownership of

a property when the estate contains only one

property to be adjudicated upon. [Portugal v.

Portugal-Beltran (2005)]

Revocation vs. Disallowance

Revocation Disallowance

Voluntary act of the

testator

Given by judicial

decree

With or without cause Must always be for a

legal cause

May be partial or total Always total, except

when the ground of

fraud or influence for

example affects only

certain portions of the

will

Effect of Final Decree of Probate,

Res Judicata

on Formal Validity

Subject to the right of appeal, the allowance of

the will, either during the lifetime of the

testator or after his death, shall be conclusive

as to due execution. [Art. 838, CC ]

The probate of a will by the probate court

having jurisdiction thereof is usually

considered as conclusive as to its dueexecution and validity, and is also conclusive

that the testator was of sound and disposing

mind at the time when he executed the will,

and was not acting under duress, menace,

fraud, or undue influence, and that the will is

genuine and not a forgery. [Mercado v. Santos

(1938) ]

ii. GROUNDS FOR DENYING PROBATE

(1) If the signature of the testator was

procured by fraud;(2) If it was procured by undue and improper

pressure and influence, on the part of the

beneficiary or some other person;

(3) If the testator acted by mistake or did not

intend that the instrument he signed

should be his will at the time affixing his

signature thereto;

(4) If the testator was insane or otherwise

mentally incapable of making a will at the

time of its execution;

(5)

If the formalities required by law have notbeen complied with; or

(6) If it was executed through force or under

duress, or the influence of fear, or threats.

[Art. 839, CC ]

B. INSTITUTION OF HEIR

Institution of Heirs – an act by virtue of which

the testator designates in his will the person or

persons who are to succeed him in his property

and transmissible rights and obligation [Art.

840, CC ]

A will shall be valid even though it

(1) should not contain an institution of an heir

or




334

(2) such institution should not comprise the

entire estate or

(3) the person so instituted should not accept

the inheritance or be incapacitated to

succeed.

In such cases, the testamentary dispositions

made in accordance with law shall be

complied with and the remainder of the estate

shall pass to the legal heirs. [Art. 841, CC ]

Extent of Grant [Art. 842, CC ]

Freedom of disposition depends upon the

existence, kind and number of compulsory

heirs.

No compulsory heirs – Testator has full

power of disposition One with compulsory heirs cannot disregard

the rights of the latter; may only dispose of

the free portion of his estate

Effect of Predecease of Heir [Art. 856, CC ]

Any heir who dies before the testator or is

incapacitated to succeed or renounces the

inheritance transmits no rights of the testator

to his own heirs. This is without prejudice to

the rights of representation. [Tolentino ]

MANNER OF INSTITUTION

Rules on Identity of Heirs [Arts. 843-849, CC ]

The heir must be designated with sufficient

clarity

If an unknown person is instituted, the

disposition is void (unless by some event, the

identity becomes certain)

If a definite class or group of persons is

instituted, institution is valid.

The heir shall be designated by name orsurname.

If there are two or more persons with the

same names, indicate some circumstance by

which the heir may be known.

Even though the name may have been

omitted but there can be no doubt as to who

has been instituted, the institution is valid.

If there is error in the name but identity can

still be identified through other proof,

institution is still valid.

If heir is unidentifiable, none is deemed

instituted.

MANNER OF DISTRIBUTION

Heirs instituted without designation of

shares shall inherit in equal parts [Art. 846 ]

If the institution pertains to some heirs

individually and others collectively, the

presumption is that all are individually

instituted. [Art. 847 ]

If siblings are instituted (whether full or half-

blood), the presumption is that the

inheritance is to be distributed equally [Art.

848 ]. This is different from the rules ofdistribution in intestate succession.

If parents and children are instituted, they

are presumed to have been instituted

simultaneously and not successively. [Art.

849 ]

Every disposition in favor of an unknownperson shall be void, unless by some event orcircumstance his identity becomes certain.

A disposition in favor of a definite class or

group of persons shall be valid. [Art. 845, CC ]

INTENT OF THE TESTATOR

False Cause [Art. 850, CC ]

The statement of a false cause for the

institution of an heir shall be considered as not

written unless it appears from the will that the

testator would not have made such institution

if he had known the falsity of such cause.

Austria v. Reyes (1973)

Falsity of stated cause for institution will set

aside or annul the institution if the following

are present:

(1) The cause for the institution is stated in the

will

(2) The cause is shown to be false




335

(3) It appears on the face of the will that the

testator would not have made such

institution if he had known the falsity of the

cause.

Scope of Institution [Arts. 852-853, CC ] (1) There are more than one instituted heir

(2) The testator intended them to get the

whole estate or the whole disposable

portion

(3) The testator has designated a definite

portion for each heir

(4) Under Art. 852: the total of all portions is

less than the whole estate (or free portion)

Therefore, a proportionate increase is

necessary

The difference cannot pass by intestacybecause the intention of the testator is

clear—to give the instituted heirs the

entire amount

(5) Under Art. 853: The total exceeds the

whole estate (or free portion)

Therefore, a proportionate reduction

must be made on the remaining part of

the estate.

Preterition

The preterition or omission of one, some, or allof the compulsory heirs in the direct line,

whether living at the time of the execution of

the will or born after the death of the testator,

shall annul the institution of heir; but the

devises and legacies shall be valid insofar as

they are not inofficious.

If the omitted compulsory heirs should die

before the testator, the institution shall be

effectual, without prejudice to the right of

representation. [Art. 854, CC ]

Concept [Art. 854, CC ]

(1) There must be a total omission of one,

some or all of the heir/s from the

inheritance. [Seangio v. Reyes (2006) ]

(2) The omission must be that of a compulsory

heir.

(3) The compulsory heir omitted must be of

the direct line.

(4) The omitted compulsory heir must be living

at the time of the testator’s death or must

at least have been conceived before the

testator’s death.

(a) Compulsory Heirs in the Direct Line

A direct line is that constituted by the

series of degrees among ascendants and

descendants (ascending and descending).

[Art. 964, par.2, CC ]

(b) Dispositions Less Than Legitime But No

Preterition [Balane]

If the heir in question is instituted in the

will but the portion given to him by the willis less than his legitime – there is no

preterition. [Reyes v. Barretto-Datu (1967) ]

If the heir is given a legacy or devise –

there is no preterition. [Aznar v. Duncan

(1966) ]

If the heir had received a donation inter

vivos from the testator – the better view is

that there is no preterition. The donation

inter vivos is treated as an advance on thelegitime under Articles 906, 909, 910 and

1062.

The remedy, if the value of inheritance,

legacy or devise, or donation inter vivos is

only for completion of his legitime under

Articles 906 and 907.

(c) Distinguished from Disinheritance

Preterition Disinheritance

Tacit deprivation of a

compulsory heir of

his legitime

May be voluntary but

the presumption of

Express deprivation

of a compulsory heir

of his legitime

Always voluntary

For some legal




336

law is that it is

involuntary

Law presumes there

has been merely

oversight or mistake

on the part of thetestator

Since preterition

annuls the

institution of heirs,

the omitted heir gets

not only his legitime

but also his share in

the free portion not

disposed of by way

of legacies and

devises

cause

If the disinheritance

is valid, the

compulsory heir

disinherited is

totally excludedfrom the

inheritance. In case

of invalid

disinheritance, the

compulsory heir is

merely restored to

his legitime

(d) Effects of Preterition [ Art. 854, CC ]

(1) The institution of the heir is annulled.

(2) Devises and legacies shall remain valid

as long as they are not inofficious.

(3) If the omitted compulsory heir should

die before the testator, the institution

shall be effective, without prejudice to

the right of representation.

When there are no devises and legacies,preterition will result in the annulment ofthe will and give rise to intestatesuccession. [Neri v. Akutin (1941) ]

C. SUBSTITUTION OF HEIRS

Substitution - is the appointment of another

heir, so that he may enter into the inheritance

in default of the heir originally instituted. [Art.

857, CC ]

The substitute shall be subject to the samecharges and conditions imposed upon theinstituted heir, unless the testator hasexpressly provided the contrary, or the chargesor conditions are personally applicable only tothe heir instituted. [Art. 862, CC ]

Kinds

(1) Brief or Compendious

(2) Reciprocal

(3) Simple or Common

(4) Fideicommissary

(1) Brief or Compendious [Art. 860, CC ]

Brief – Two or more persons were

designated by the testator to substitute for

only one heir

Compendious – One person is designated

to take the place of two or more heirs

(2) Reciprocal [Art. 861, CC ]

If the heirs instituted in unequal shares

should be reciprocally substituted, thesubstitute shall acquire the share of the

heir who dies, renounces, or is

incapacitated, unless it clearly appears

that the intention of the testator was

otherwise. If there is more than one

substitute, they shall have the same share

in the substitution as the institution.

Example (only 1 substitute): If two heirs are

reciprocally substituted, then if one of

them dies before the testator dies,renounces, or turns out to be

incapacitated, the other will get his share,

regardless of whether or not their shares

are equal.

Example (more than 1 substitute): A is

instituted to 1/3, B to 1/6, and C to ½. If C

dies before the testator, renounces or turns

out to be incapacitated, then the other two

will get his shares in the same proportion

as in the institution. A will get twice asmuch as B (because his share of 1/3 in the

institution is twice the size of B’s share of

1/6)

(3) Simple Substitution [Art. 859, CC ]




337

The testator may designate one or more

persons to substitute the heir/s instituted

in case the heirs should:

(1) die before him (predecease),

(2) should not wish to accept the

inheritance (repudiation), or(3) should be incapacitated to accept the

inheritance (incapacitated).

(4) Fideicommissary Substitution

The testator institutes an heir with an

obligation to preserve and to deliver to

another the property so inherited. The heir

instituted to such condition is called the

First Heir or the Fiduciary Heir; the one to

receive the property is the Fideicommissary

or the Second Heir. [Art. 863, CC ]

Requisites: [Arts. 863-865, CC ]

(a) A Fiduciary or First Heir instituted is

entrusted with the obligation to

preserve and to transmit to a

Fideicommissary Substitute or Second

Heir the whole or part of the

inheritance.

(b) The substitution must not go beyond

one degree from the heir originally

instituted.(c) The Fiduciary Heir and the

Fideicommissary are living at the time

of the death of the testator.

(d) The fideicommissary substitution must

be expressly made.

(e) The fideicommissary substitution is

imposed on the free portion of the

estate and never on the legitime

In the absence of an obligation on the part

of the first heir to preserve the property forthe second heir, there is no

fideicommissary substitution. [PCIB v.

Escolin (1974) ]

Effects of predecease of the first heir/fiduciary

or the second heir/fideicommissary

Situation 1: If the first heir dies followed by the

second heir, then the testator dies, who will

inherit? The legal heirs. There is no

fideicommissary substitution because first and

second heirs are not living at the time of the

testator’s death. [Art. 863, CC ]

Situation 2: The testator dies first followed by

the second heir. The first heir survived them

but subsequently dies, who will inherit? The SH

and his heirs under Art. 866, CC. This is

because the SH passes his rights to his own

heirs when he dies before FH.

Situation : If the first heir dies, followed by the

testator, then the second heir, who will inherit?

No specific provision in law, but SH inherits

because the T intended him to inherit.

D. TESTAMENTARY DISPOSITIONS

WITH A CONDITION, A TERM, AND A

MODE

Kinds of Testamentary Dispositions

(1)

Conditional [Art. 871, CC ]

(2) Dispositions with a term [Art. 885, CC ]

(3) Dispositions with a mode/modal

dispositions [Art. 882, CC ]

CONDITIONAL DISPOSITIONS

Basis of testator’s right to impose conditions,

terms or modes: Testamentary freedom

Prohibited conditions: (considered as not

imposed)

(1)

Any charge, condition or substitution

whatsoever upon the legitimes. [Art. 872 ]

(2) Impossible and illegal conditions. [Art.

873 ]

(3) Absolute condition not to contract a first

marriage. [Art. 874 ]




338

(4) Absolute condition not to contract a

subsequent marriage unless imposed on

the widow or widower by the deceased

spouse, or by the latter’s ascendants or

descendants. [Art. 874 ]

(5)

Scriptura captatoria or legacy-huntingdispositions - dispositions made upon the

condition that the heir shall make some

provision in his will in favour of the testator

or of any other person. [Art. 875 ]

criptura captatoria/

Legacy-Hunting

Dispositions

Reasons for prohibition:

(1) The captatoria converts the testamentary

grants into contractual transactions;

(2)

It deprives the heirs of testamentary

freedom;

(3) It gives the testator the power to dispose

mortis causa not only of his property but

also of his heir’s.

Effect: Entire disposition is void

Potestative, Casual and Mixed Conditions

(1) Potestative Conditions

General rule: Must be fulfilled as soon asthe heir learns of the testator’s death

Exception: If the condition was already

complied with at the time the heir learns of

the testator’s death; or if the condition is of

such a nature that it cannot be fulfilled

again.

Constructive Compliance: deemed fulfilled

(2)

Casual or mixed

Casual condition – one whose fulfillment

depends on chance or the will of a third

person.

Mixed condition – one whose fulfillment

depends partly on the will of the heir and

partly on chance or the will of a third

person.

General rule: May be fulfilled at any time

(before or after testator’s death), unless

testator provides otherwise.

Exception: If already fulfilled at the time of

execution of will:

(1) if testator unaware of the fact of

fulfillment – deemed fulfilled

(2) if testator aware:

can no longer be fulfilled again:

deemed fulfilled

can be fulfilled again: must be

fulfilled again.

Constructive Compliance:

if casual – not applicable

if mixed – applicable only if dependent partlyon the will of a third party not interested.

DISPOSITIONS WITH A TERM

A term may either be suspensive or resolutory.

(1) If the term is suspensive:

Before the arrival of the term, the property

should be delivered to the legal or

intestate heirs.

A caución muciana has to be posted by the

heirs.

(2) If the term is resolutory:

Before the arrival of the term, the property

should be delivered to the instituted heir.

No caución muciana required as the heir

has a right over the property during the

period.

MODAL DISPOSITIONS

Dispositions with an obligation imposed upon

the heir, without suspending the effectivity of

the institution, as a condition does




339

Must be clearly imposed as an obligation in

order to be considered as one. Mere

preferences or wishes expressed by the

testator are not modes.

A mode functions similarly to a resolutorycondition.

In modal institutions, the testator states (1) the

object of the institution, (2) the purpose or

application of the property left by the testator,

or (3) the charge imposed by the testator upon

the heir. [Rabadilla v. CA (2000) ]

Caución Muciana

A security to guarantee the return of the value

of property, fruits, and interests, in case ofcontravention of condition, term or mode

Instances when it is needed:

(1) Suspensive term [ Art. 885,CC ]

(2) Negative potestative condition - when the

condition imposed upon the heir is

negative, or consists in not doing or not

giving something [ Art. 879, CC ]

(3) Mode [ Art. 882, par 2, CC ]

E. LEGITIME

It is that part of the testator’s property which

he cannot dispose of because the law has

reserved it for his compulsory heirs. [Art. 886,

CC ]

COMPULSORY HEIRS AND VARIOUS

COMBINATIONS

Classes of Compulsory Heirs [Art. 887, CC ]

(1)

Primary: Those who have precedence over

and exclude other compulsory heirs:

Legitimate Children and Legitimate

Descendants with respect to their

Legitimate Parents and Ascendants

(2) Secondary: Those who succeed only in the

absence of the Primary compulsory heirs:

(a) Legitimate Parents and Legitimate

Ascendants, with respect to their

Legitimate Children and Descendants.

(They will inherit only in default of

legitimate children and their

descendants) (b) Illegitimate Parents with respect to

their Illegitimate Children. (They will

inherit only in default of the

illegitimate and legitimate children

and their respective descendants).

Note that other illegitimate

ascendants are not included.

(3) Concurring: Those who succeed together

with the primary or the secondary

compulsory heirs:

(a)

Widow or Widower / Surviving Spouse(Legitimate)

(b) Illegitimate Children and Illegitimate

Descendants

If the testator is a

legitimate child:

If the testator is an

illegitimate child:

(1) LC and

descendants

(2) In default of No. 1,

LP and ascendants(3) SS

(4) IC and

descendants

(1) LC and

descendants

(2) ILC and

descendants(3) In default of Nos.

1-2 ILP only

(4) SS

Specific Rules on Legitimes

(1) Direct Descending Line

(a) Rule of Preference between lines [Arts.

978 and 985, CC ]

Those in the direct descending line

shall exclude those in the direct

ascending and collateral lines; and Those in the direct ascending line

shall, in turn, exclude those in the

collateral line.

Rule of Proximity [Art. 926, CC ]: The

relative nearest in degree excludes

the farther one




340

(b) Right of representation ad infinitum in

case of predecease, incapacity, or

disinheritance [Arts. 972 and 992, CC ]

For decedents who are Legitimate

Children, only the Legitimate

Descendants are entitled to right ofrepresentation.

For decedents who are Illegitimate

Children, both the Legitimate and

the Illegitimate Descendants can

represent, only with respect to the

decedent’s illegitimate parents.

(c) If all the Legitimate Children repudiate

their legitime, the next generation of

Legitimate Descendants may succeed

in their own right.

(2) Direct Ascending Line

(a) Rule of division between lines

The father and the mother shall

inherit equally if both living. One

parent succeeds to the entire estate

of the child if the other parent is

dead. [Art. 986, CC ]

In default of the mother and thefather, the ascendants nearest in

degree will inherit. [Art. 987 ]

If there is more than one relative of

the same degree but of different

lines, one half will go to the paternal

ascendants and the other half to the

maternal ascendants. [Art. 987 ]

(b) Rule of equal division

The relatives who are in the same

degree shall inherit in equal shares.

[Art. 987 ]

Summary of Legitimes of Compulsory Heirs

Legend: LC – Legitimate ChildrenSS – Surviving SpouseLP – Legitimate ParentsILP – Illegitimate Parents

Surviving

Relatives

LC &

Descendants

SS ILC LP &

AscendantsILP

1 LC alone 1/2 of the

estate in equal

portions

2 1 LC, SS 1/2 1/4

LC, SS 1/2 in equal

portions

Same portion as 1LC

4 LC, ILC 1/2 in equal

portions

1/2 share of 1 LC (for

each ILC)

5 1 LC, SS, ILC 1/2 1/4 (preferred) 1/2 share of 1 LC (foreach child)

N.B. The share of the

ILC may suffer

reduction pro rata




341

because spouse is

given preference

6 2 or more LC,

SS, ILC

1/2 in equal

portions

Same as share of 1LC 1/2 share of 1 LC (for

each child)

7 LP alone 1/28 LP, ILC 1/4 in equal portions 1/2

9 LP, SS 1/4 1/2

10 LP, SS, ILC 1/8 1/4 1/2

11 ILC alone 1/2 in equal portions

12 ILC, SS 1/3 1/3 in equal portions

1 SS alone 1/2

*SS alone where

marriage is in articulomortis and testatordies within 3 monthsfrom marriage – 1/3

But if they have been

living together as

husband and wife for

more than 5 years – 1/2

14 ILP alone 1/2

15 ILP, SS 1/4 1/4

Steps in Determining the Legitime of

Compulsory Heirs

(1) Determine the gross value of the estate at

the time of the death of the testator.

(2) Determine all debts and charges which are

chargeable against the estate.

(3) Determine the net value of the estate by

deducting all the debts and charges from

the gross value of the estate.

(4)

Collate or add the value of all donationsinter vivos to the net value of the estate.

(5) Determine the amount of the legitime from

the total thus found.

(6) Impute the value of all donations inter

vivos made to strangers against the

disposable free portion and restore it to the

estate if the donation is inofficious.

(7) Distribute the residue of the estate in

accordance with the will of the testator.

Remedy of a Compulsory Heir in case of

Impairment of Legitime

Extent and Nature of

ImpairmentRemedy

Total omission of a

compulsory heir who is

a direct descendant or

ascendant (preterition)

Annulment of

institution and

reduction of legacies

and devises [Art. 854,

CC ]

Testamentary

dispositions impairing

Reduction of the

disposition insofar as




342

or diminishing the

legitime

they may be inofficious

or excessive [Art. 907,

CC ]

Partial impairment Completion of the

legitime [Art. 906, CC ]

Impairment by

inofficious donations

Collation – reduction

of donations [Arts. 771

and 911, CC ]

RE ERVA TRONCAL

Art. 891, CC. The ascendant who inherits fromhis descendant any property which the lattermay have acquired by gratuitous title fromanother ascendant, or a brother or sister, isobliged to reserve such property as he may

have acquired by operation of law for thebenefit of relatives who are within the thirddegree and who belong to the line from whichsaid property came.

Concept of

Reserva Troncal

(1) A descendant (prepositus ) inherits or

acquires property from an ascendant or

from a brother or sister (origin or mediate

source) by gratuitous title

(2) The same property is inherited by another

ascendant (reservista ) or is otherwiseacquired by him by operation of law from

the said descendant (prepositus )

(3) The said ascendant (reservista ) must

reserve the property for the benefit of the

relatives of the deceased descendant

within the third civil degree and who

belong to the line from which the said

property came (reservatarios ).

Parties: [Balane ]

(1)

Origin or Mediate Source – either anascendant of any degree of ascent or a

brother or sister of the Prepositus ;

responsible for the 1st transfer

(2) Prepositus – the first transferee of the

reserved property

(3) Reservista – an ascendant of the

Prepositus other than the Origin or

Mediate Source; the one obligated to

reserve the property

(4) Reservatarios – within the 3rd degree of

consanguinity from the Prepositus

[Cabardo v. Villanueva (1922) ] belonging to

the line from which the property came

Requisites for

Reserva Troncal

[Chua vs. CFI

(1977) ]:

(a) That the property was acquired by a

descendant (Prepositus ) from an

ascendant or from a brother or sister

(Origin or Mediate Source ) by gratuitous

title,

(b) That the Prepositus died without

(legitimate*) issue,

(c)

That the property is inherited by anotherascendant (Reservista ) by operation of law,

and

(d) That there are relatives within the 3rd

degree (Reservatarios ) belonging to the

line from which said property came.

Only legitimate descendants will prevent the

property from being inherited by the legitimate

ascending line by operation of law [Balane ]

transmissions involved: [Balane ] (1) 1st transfer – by gratuitous title, from a

person to his descendant, brother or sister

(2) 2nd transfer – by operation of law, from the

transferee in the 1st transfer to another

ascendant. This creates the reserva.

(3) 3rd transfer – from the transferee in the

second transfer to the relatives

JURIDICAL NATURE OF RIGHTS

Nature of the reservista’s right: [Balane citing

Edroso v. Sablan ] The reservista’s right over the reserved

property is one of ownership

The right of ownership is subject to a

resolutory condition, i.e. the existence of

reservatarios at the time




343

The right of ownership is alienable, but

subject to the same resolutory condition.

The reservista’s right of ownership is

registrable.

Nature of reservatarios’ right: [Sienes v.Esparcia ]

The reservatarios have a right of expectancy

over the property.

The right is subject to a suspensive condition,

i.e. the expectancy ripens into ownership if

the reservatarios survive the reservistas .

The right is alienable but subject to the same

suspensive condition.

The right is registrable.

Reserva Minima

vs.

Reserva Maxima

(1) The prepositus acquired property

gratuitously from an ascendant, a brother

or sister

(2) In his will, he institutes as his heir his

ascendant (who is also a compulsory heir)

such that the ascendant receives half of

the estate by operation of law as legitime

and the other half by testamentary

disposition

Two Views

(1) Reserva Maxima: The entire property will

be considered acquired as legitime and

therefore wholly reservable

(2) Reserva Minima: One half is reservable, the

other half is not subject to reserva troncal

[Tolentino, p. 284 ]

Extinguishment of the

Reserva

(1) Loss of the reservable property

(2) Death of the reservista

(3) Death of all the relatives within the third

degree belonging to the line from which

the property came

(4) Renunciation by the reservatarios

(5) Registration of the reservable property

under the Torrens system as free

(6) Prescription, when the reservista holds the

property adversely against the

reservatarios , as free from reservation

F. DISINHERITANCE

Definition [Art. 915, CC ](1) It is the act by which the testator

(2) For just cause

(3) Deprives a compulsory heir of his right to

the legitime.

Requisites of a Valid Disinheritance

(a) Heir disinherited must be designated by

name or in such a manner as to leave no

room for doubt as to who is intended to be

disinherited.

(b)

It must be for a cause designated by law.(c) It must be made in a valid will.

(d) It must be made expressly, stating the

cause in the will itself.

(e) The cause must be certain and true, and

must be proved by the interested heir if the

person should deny it.

(f) It must be unconditional.

(g) It must be total.

F.1. DISINHERITANCE OF CHILDREN AND

DESCENDANTS [Art. 919, CC ](1) When a child or descendant has been

found guilty of an attempt against the life

of the testator, his or her spouse,

descendants, or ascendants;

(2) When a child or descendant has accused

the testator of a crime for which the law

prescribes imprisonment for six years or

more, if the accusation has been found

groundless;

(3)

When a child or descendant has beenconvicted of adultery or concubinage with

the spouse of the testator;

(4) When a child or descendant by fraud,

violence, intimidation, or undue influence

causes the testator to make a will or to

change one already made;




344

(5) A refusal without justifiable cause to

support the parent or ascendant who

disinherits such child or descendant;

(6) Maltreatment of the testator by word or

deed, by the child or descendant;

(7)

When a child or descendant leads adishonorable or disgraceful life;

(8) Conviction of a crime which carries with it

the penalty of civil interdiction.

F.2. DISINHERITANCE OF PARENTS AND

ASCENDANTS [Art. 920, CC ](1) When the parents have abandoned their

children or induced their daughters to live

a corrupt or immoral life, or attempted

against their virtue;(2) When the parent or ascendant has been

convicted of an attempt against the life of

the testator, his or her spouse,

descendants, or ascendants;

(3) When the parent or ascendant has accused

the testator of a crime for which the law

prescribes imprisonment for six years or

more, if the accusation has been found to

be false;

(4) When the parent or ascendant has been

convicted of adultery or concubinage withthe spouse of the testator;

(5) When the parent or ascendant by fraud,

violence, intimidation, or undue influence

causes the testator to make a will or to


(6) The loss of parental authority for causes

specified in this Code;

(7) The refusal to support the children or

descendants without justifiable cause;(8) An attempt by one of the parents against

the life of the other, unless there has been

a reconciliation between them.

F.3. DISINHERITANCE OF A SPOUSE [Art. 921, CC ]

(1) When the spouse has been convicted of an

attempt against the life of the testator, his

or her descendants, or ascendants;

(2) When the spouse has accused the testator

of a crime for which the law prescribes

imprisonment of six years or more, and the

accusation has been found to be false;

(3) When the spouse by fraud, violence,

intimidation, or undue influence cause the

testator to make a will or to change one

already made;

(4) When the spouse has given cause for legal

separation;

(5) When the spouse has given grounds for the

loss of parental authority;(6) Unjustifiable refusal to support the

children or the other spouse.

Summary of Causes of Disinheritance

Grounds for Disinheritance

CC 919

Children &

Descendants

CC 920

Parents &

Ascendants

CC 921

Spouse

CC 1032

Unworthiness

1 Guilty or Convicted of Attempt Against

the Life of the Testator, Spouse,Ascendant or Descendant

✓ ✓ ✓ ✓

2 Accused Testator or Decedent of Crime

Punishable by Imprisonment of 6 years

or more, and Found Groundless or False✓ ✓ ✓ ✓

Causes testator or decedent to Make a

Will or Change one by Fraud, Violence,




345

Intimidation, or Undue Influence ✓ ✓ ✓ ✓

4 Unjustified Refusal to Support Testator ✓ ✓ ✓

5 Convicted of Adultery or Concubinage

with Spouse of Testator or Decedent

✓ ✓ ✓

6 Maltreatment of testator by Word and

Deed

✓

7 Leading a Dishonorable or Disgraceful

Life

✓

8 Conviction of Crime which carries the

penalty of Civil Interdiction

✓

9 Abandonment of Children or Inducing

Children to Live Corrupt and Immoral

Life or Against Attempted Virtue✓ ✓

10 Loss of Parental Authority ✓ ✓

11 Attempt by One Parent Against the Life

of the Other Unless there is

Reconciliation Between Parents✓

12 Spouse Has Given Cause for Legal

Separation

✓ ✓

1 Failure to Report Violent Death of

Decedent Within One Month Unless

Authorities Have Already Taken Action✓

14 Force, Violence, Intimidation, or UndueInfluence to Prevent Another from

Making a Will or Revoking One Already

Made or Who Supplants or Alters the

Latter’s Will

✓

15 Falsifies or Forges Supposed Will of

Decedent

✓

Modes of Revocation of Disinheritance

(1) Reconciliation [Art. 922, CC ]

(2) Subsequent institution of the disinherited

heir

(3) Nullity of the will which contains the

disinheritance.

Note: The moment that testator uses one of

the acts of unworthiness as a cause for

disinheritance; he thereby submits it to the

rules on disinheritance. Thus, reconciliation

renders the disinheritance ineffective.

Reconciliation [Art. 922, CC ] Effect of Reconciliation between Offender and

Offended Person: If no disinheritance has been

made yet, the offended person will be deprived

of his right to disinherit.

If disinheritance has been effected, it will be

rendered ineffectual.




346

Rights of descendants of person disinherited

[Art. 923, CC ]

Disinheritance gives rise to the right of

representation in favor of the children anddescendants of the disinherited person with

respect to his legitime.

This is inconsistent with Art. 1033. In

disinheritance, reconciliation is sufficient. It

need not be in writing. In unworthiness,

however, it needs to be in writing. [Balane ]

INEFFECTIVE DISINHERITANCE [Art. 918, CC ]

Instances of Ineffective disinheritance:

(1)

There is no specification of the cause.(2) The cause is not proved.

(3) The cause is not among those specified in

the provisions.

Effect of Ineffective Disinheritance: if the

disinheritance lacks one or other of the

requisites mentioned in this article, the heir in

question gets his legitime. [Balane ]

Ineffective

DisinheritancePreterition

Person disinherited

may be any

compulsory heir

Person omitted must

be a compulsory heir

in the direct line

Only annuls the

institution in so far as

it prejudices the

person disinherited

Annuls the entire

institution of heirs

G. LEGACIES AND DEVISES

Legacy Devise

A gift of personal

property given in a will

A gift of real property

given in a will

It is bequeathed It is devised

Persons Charged With the Duty to Give

Legacies and Devises in a Will

(1) Compulsory heir, provided, their legitimes

are not impaired [ Art. 925, CC ]

(2) Voluntary heir

(3)

Legatee or devisee can be charged with theduty of giving a sub-legacy or sub-devise

but only to the extent of the value of the

legacy or devise given him [ Art. 925, CC ]

(4) The estate represented by the executor or

administrator, if no one is charged with this

duty to pay or deliver the legacy or devise

in the will

If there is an administration proceeding,

it constitutes a charge upon the estate.

If there is no administration proceeding,

it is a charge upon the heirs.

Validity and Effect of Legacy or Devise

Legacy or devise of a thing belonging to another

[Art. 930, CC]

Testator erroneously believed

that the property belonged to

him

Void

The thing bequeathed

afterwards becomes his by

whatever title

Effective

Legacy or devise of thing already belonging to

the legatee or devisee

The thing already belongs to

the legatee or devisee at the

time of the execution of the

will [Art. 932, CC ]

Ineffective

The thing is subject to an

encumbrance or interest of

another person [Art. 932, CC ]

Valid only as to

the interest or

encumbrance

Legatee or devisee

subsequently alienates the

thing [Art. 933,CC ]

Ineffective

After alienating the thing, the

legatee or devisee

subsequently reacquires it

Ineffective




347

gratuitously [Art. 933, CC ]

After alienating the thing, the

legatee or devisee acquires it

by onerous title [Art. 933, CC ]

Legatee or

devisee can

demand

reimbursement

from the heir

or estate

Different Objects of Legacies and Devises [Art. 934-944, CC ]

Objects of Legacy or Devise Effect

Thing pledged or mortgaged to

secure a debt Estate is obliged to pay the debt

Other charges pass to the legatee or devisee

Credit or remission or release of

a debt

Effective only as regards the credit or debt existing at the time ofthe testator’s death

Legacy lapses if the testator later brings action against the debtor

If generic, comprises all credits/debts existing at time of execution

of will

Thing pledged by debtor Only the pledge is extinguished; the debt remains

To a creditor Shall not be applied to his credit unless the testator so declares

Order of payment of a debt If testator does not really owe the debt, the disposition is void

If the order is to pay more than the debt, the excess is not due

This is without prejudice to the payment of natural obligations

Alternative legacies and devises The choice is with the heir, or the executor or administrator

If the heir, legatee or devisee dies, the right passes to their heirs

Once made, the choice is irrevocable

Legacy of generic personalproperty or indeterminate real

property

Legacy is valid even if there are no things of the same kind in theestate

Devise of indeterminate real property valid only if there areimmovable property of the same kind in the estate

The choice belongs to the heir, legatee or devisee or the executoror administrator

Legacy of education Lasts until the legatee is of age or beyond the age of majority inorder that he may finish some professional, vocational or generalcourse provided he pursues his course diligently

If testator did not fix the amount, it is fixed in accordance with thesocial standing and circumstances of the legatee and the value ofthe estate

Legacy of support

Lasts during lifetime of legatee

If the testator used to give the legatee a sum of money for support,give the same amount unless it is markedly disproportionate to theestate

If testator did not fix the amount, it is fixed in accordance with thesocial standing and circumstances of the legatee and the value ofthe estate




348

Order of Payment in Case the Estate Is Not Sufficient to Cover All the Legacies and Devises

Art. 911 Art. 950

Order of Preference

Legitime of compulsory heirs

Donations inter vivos Preferential legacies or devises

All other legacies or devises pro rata

Remuneratory legacy/devise

Preferential legacy/devise Legacy for support

Legacy for education

Legacy/devise of specific, determinate thing

which forms a part of the estate

All others pro rata

Application

When the reduction is necessary to preserve the

legitime of compulsory heirs from impairment

whether there are donations inter vivos or not; or

When, although, the legitime has been

preserved by the testator himself there are

donations inter vivos.

Art. 911, CC governs when there is a conflict

between compulsory heirs and the devisees and

legatees.

When there are no compulsory heirs and the

entire estate is distributed by the testator as

legacies or devises; or

When there are compulsory heirs but their

legitime has already been provided for by the

testator and there are no donations inter vivos.

Art. 950, CC governs when the question of

reduction is exclusively among legatees and

devisees themselves.




349

Delivery of Legacy/Devise [Art. 951, CC ]

(1) The very thing bequeathed shall be

delivered and not its value

(2) With all its accessions and accessories

(3) In the condition in which it may be upon

the death of the testator(4) Legacies of money must be paid in cash

Effect of ineffective legacies or devises [Art.

956, CC ]

In case of repudiation, revocation or incapacity

of the legatee or devisee, the legacy or devise

shall be merged with the mass of the

hereditary estate, except in cases of

substitution or accretion.

Revocation of Legacies and Devises [Art. 957,

CC ]

(1) Testator transforms the thing such that it

does not retain its original form or

denomination

(2) Testator alienates the thing by any title or

for any cause. Reacquisition of the thing by

the testator does not make the legacy or

devise valid, unless it is effected by right of

repurchase.

(3)

Thing is totally lost during the lifetime orafter the death of the testator

(4) Other causes: nullity of will, non-

compliance with suspensive condition, sale

of the thing to pay the debts of the

deceased during the settlement of his

estate.

III. Legal or Intestate

SuccessionA. GENERAL PROVISIONS

Intestacy – that which takes place by operation

of law in default of compulsory and

testamentary succession. Not defined in the

Civil Code.

Instances when Legal or Intestate Succession

operates [Art. 960, CC ]

(1) If a person dies without a will, or with a

void will, or one which has subsequently

lost its validity(2) When the will does not institute an heir

(3) Upon the expiration of term, or period of

institution of heir [Balane, 426 ]

(4) Upon fulfillment of a resolutory condition

attached to the institution of heir,

rendering the will ineffective [Balane, 426 ]

(5) When the will does not dispose of all the

property belonging to the testator. Legal

succession shall take place only with

respect to the property which the testator

has not disposed (mixed succession)(6) If the suspensive condition attached to the

institution of the heir does not happen or is

not fulfilled

(7) If the heir dies before the testator

(8) If the heir repudiates the inheritance, there

being no substitution, and no right of

accretion takes place

(9) When the heir instituted is incapable of

succeeding, except in cases provided in the

Civil Code

(10)

Preterition – Intestacy may be total orpartial depending on whether or not there

are legacies or devises [Balane, 426 ]

Note: In all cases where there has been an

institution of heirs, follow the ISRAI order:

(1) If the Institution fails, Substitution occurs.

(2) If there is no substitute, the right of

Representation applies in the direct

descending line to the legitime if the

vacancy is caused by predecease,

incapacity, or disinheritance.

(3) The right of Accretion applies to the free

portion when the requisites in Art. 1016 are

present.

(4) If there is no substitute, and the right of

Representation or Accretion are not




350

proper, the rules on Intestate succession

shall apply.

The Intestate or Legal Heirs:

(1) Relatives

(a)

Legitimate ascendants(b) Illegitimate parents

(c) Legitimate children

(d) Illegitimate children

(e) Surviving Spouse

(f) Brothers, sisters, nephews and nieces

(BSNN)

(g) Other collateral relatives

(2) Surviving spouse

(3) State (through escheat proceedings)

Intestate succession is based on the presumedwill of the decedent. That is, to distribute the

estate in accordance with the love and

affection he has for his family, and in default of

these persons, the presumed desire to promote

charitable and humanitarian activities.

[Balane ]

Fundamental Principles in Intestate Succession:

(1) Rule of Preference between Lines

Those in the direct descending line shall

exclude those in the direct ascendingand collateral lines;

Those in the direct ascending line shall,

in turn, exclude those in the collateral

line.

(2) Rule of Proximity

The relative nearest in degree excludes

the farther one [Art. 962(1), CC ] , saving

the right of representation when it

properly takes place.

(3) Rule of Equal Division

The relatives who are in the same degree

shall inherit in equal shares. [Arts.

962(2), 987 and 1006, CC ]

Exceptions: [Balane, 427-428 ](a) Rule of preference between Lines

(b) Distinction between legitimate and

illegitimate filiation. The ratio under

present law is 2:1. [Art. 983, in relation

to Art. 895 as amended by Art. 176, FC ]

(c) Rule of division by line in the ascending

line [Art. 987 (2), CC ](d) Distinction between full-blood and

half-blood relationship among

brothers and sisters, as well as

nephews and nieces. [Art. 1006 and

1008, CC ]

(e) Right of representation.

(4) Rule of Barrier between the legitimate

family and the illegitimate family (the iron-

curtain rule)

The illegitimate family cannot inherit by

intestate succession from the legitimatefamily and vice-versa. [Art. 992, CC]

(5) Rule of Double Share for full blood

collaterals

When full and half-blood brothers or

sisters, nephews or nieces, survive, the full

blood shall take a portion in the

inheritance double that of the half-blood.

[Arts. 895 and 983, CC]

Note:

If one of the legitimate ascendants,illegitimate parents, legitimate children or

illegitimate children survives, the brother,

sisters, nephews, and nieces (BSNN) are

excluded.

If one of the legitimate ascendants,

illegitimate parents, legitimate children,

illegitimate children or surviving spouse

survives, the other collateral relatives and

the state are excluded.

If any of the heirs concur in legitimes, thenthey also concur in intestacy.

A.1. RELATIONSHIP

The number of generations determines the

proximity of the relationship. Each generation

forms one degree. [Art. 963, CC ]




351

A series of degrees forms a line. This line may

either be direct or collateral. [Art. 964, CC ]

A direct line is that constituted by the series

of degrees among ascendants and

descendants.

The direct line is either ascending (brings aperson with those from whom he descends)

and descending (connecting the head of the

family with those who descend from him).

[Art. 965, CC ]

A collateral line is that constituted by the

series of degrees among persons who are not

ascendants or descendants, but who come

from a common ancestor.

Note: It is important to distinguish between

direct and collateral as the direct has

preference over the collateral.

In a line, as many degrees are counted as there

are generations. [Art. 966, CC ]

(1) In the direct line, ascent is made up to the

common ancestor or progenitor.

(2) In the collateral line, ascent is made to the

common ancestor. Then descent to the

person with whom the computation is to be

made.

Note: Descending line is preferred over

ascending.

Blood relationship is either full or half-blood.

[Art. 967, CC ]

Note: As among brothers and sisters and

nephews and nieces, there is a 2:1 ratio for full-

blood and half-blood relatives. Direct relatives

are preferred. But this distinction does not

apply with respect to other collateral relatives.

Incapacity [Art. 968, CC ]

General rule: If there are several relatives of the

same degree, and one or some of them are

unwilling or incapacitated to succeed, his

portion shall accrue to the others of the same

degree.

Exception: When the right of representation

should take place.

Note: This accretion in intestacy takes place in

case of predecease, incapacity, or renunciation

among heirs of the same degree. The relatives

must be in the same relationship because of

the Rule of Preference of Lines.

Repudiation [Arts. 968-969, CC ]

There is no right of representation in

repudiation. If the nearest relative/s repudiates

the inheritance, those of the following degree

shall inherit in their own right.

In case of repudiation by all in the same

degree, the right of succession passes on the

heirs in succeeding degrees: descending line

first, ascending line next, and collateral line

next. [Balane ]

Adoption [Art. 189, FC ]

In adoption, the legal filiation is personal and

exists only between the adopter and the

adopted. The adopted is deemed a legitimatechild of the adopter, but still remains as an

intestate heir of his natural parents and other

blood relatives. (Note, however, Section 16 of

the Domestic Adoption Act [RA 8552], which

provides that all legal ties between the

biological parent(s) and the adoptee shall be

severed and the same shall then be vested on

the adopter(s).”

A.2. RIGHT OF REPRESENTATION

Representation – right created by fiction of

law, by virtue of which the representative is

raised to the place and the degree of the

person represented, and acquires the rights

which the latter would have if he were living or

if he could have inherited [Art. 970, CC ]




352

Effect of Representation

The representative heir acquires the rights

which the person represented would have if he

were living or if he could have inherited.

When it occurs

Representation is allowed with respect to

inheritance conferred by law (legitime and

intestate based on Art. 923)

It occurs only in the following instances: (DIP)

(1) Predecease of an heir

(2) Incapacity or unworthiness

(3) Disinheritance [Art. 923, CC ]

There is no representation in testamentary

succession. [Art. 856, CC ]

There is no representation in repudiation.

A renouncer can represent, but cannot be

represented. Rationale is found in Art. 971

which states that “The representative does not

succeed the person represented but the one

whom the person represented would have

succeeded.”

Representation in the Direct Descending Line

Representation takes place ad infinitum in the

direct descending line but never in the direct

ascending line. [Art. 972, CC ]

General rule: Grandchildren inherit from the

grandparents by right of representation, if

proper.

Exception: Whenever all the children repudiate,

the grandchildren inherit in their own right

because representation is not proper. [Art.

969, CC ]

Representation in Collateral Line

In the collateral line, representation takes

place only in favor of the children of the

brothers or sisters (i.e., nephews and nieces)

whether of the full or half-blood [Art. 972 , CC ]

and only if they concur with at least one uncle

or aunt. In this case, they share in the

inheritance per stirpes.

If the children survive alone, they inherit in

their own right and share in equal proportionsor per capita . [Art. 975, CC ]

Right of representation in the collateral line is

only possible in intestate succession. It cannot

take place in testamentary succession.

Per stirpes

Inheritance per stirpes means that the

representative/s shall receive only what the

person represented would have received, if

he were living or could inherit. [Art.975 , CC ] If there are more than one representative in

the same degree, then it shall be divided

equally, without prejudice to the distinction

between legitimate and illegitimate, if

applicable.

The Double Heirship Test

In determining whether or not representation

is proper, it is necessary that the

representative must be a legal heir of both

the person he is representing and the

decedent. [Art. 973, CC ]

But the representative need not be qualified

to succeed the person represented. [Art. 971,

CC ] In the same manner, the person

represented need not be qualified to succeed

the decedent, as it is his disqualification

which gives rise for representation to apply.

Legitimate children may not be

represented by their illegitimate

descendants (because of the bar in Art.992). In contrast, illegitimate children may

be represented by their legitimate and

illegitimate descendants. [ Art. 902 ]

Illustration

A has legitimate son J and

illegitimate son K. J has an illegitimate son

J-1 while K also has an illegitimate son K-1.

K-1 may inherit from A by representation of




353

K (under Art. 902), but J-1 may not inherit

from A (because of the barrier under Art.

992)

Representation in Adoption

If the adopting parent should die before theadopted child, the latter cannot represent

the former in the inheritance of the parents

or ascendants of the adopter. The adopted

child is not related to the deceased in that

case, because filiation created by fiction of

law is exclusively between the adopter and

the adopted. [Tolentino, 448-449 ]

B. ORDER OF INTESTATE SUCCESSION

Decedent is a Legitimate Child Decedent is an Illegitimate Child Decedent is an Adopted Child

1 Legitimate children or

descendants (LCD)

Legitimate children or

descendants (LCD)

Legitimate children or

descendants (LCD)

2 Legitimate parents or

ascendants (LPA)

Illegitimate children or

descendants (LPA)

Illegitimate children or

descendants (ICD)

3 Illegitimate children or

descendants (ICD)

Illegitimate parents (IP) Legitimate or illegitimate

parents, or legitimate

ascendants, adoptive parents

4 Surviving spouse (SS) Surviving spouse (SS) Surviving spouse (SS)

5 Brothers and sisters, nephews,

nieces (BS/NN)

Illegitimate brothers andsisters, nephews, nieces(IBS/NN)

Brothers and sisters, nephews,

nieces (BS/NN)

6 Legitimate collateral relatives

within the 5th degree (C5)

State State

7 State

Rules of Exclusion and Concurrence in Intestate Shares

Intestate Heirs Excludes Excluded By Concurs With

LC + LD Ascendants, Collateralsand State

No one SS + ILC

ILC + D ILP, Collaterals andState

No one SS, LC, LP

LP + LA Collaterals and State LC ILC + SS

ILP Collaterals and State LC and ILC SS

SS Collaterals other than

siblings, nephews and

nieces, State

No one LC, ILC, LP, ILP,Siblings, Nephews,

Nieces

Siblings, Nephews,Nieces

All other collaterals andState

LC, ILC, LP, ILP SS

Other collaterals within

5th degree

Collateral more remotein degree and State

LC, ILC, LP, ILP and SS Collaterals in the same

degree

State No one Everyone No one




354

Outline of Intestate Shares

(1) Legitimate children only

Divide entire estate equally among all

legitimate children [Art. 979, CC ]

Legitimate children include an adopted

child.

(2) Legitimate children and Illegitimate children

Divide entire estate such that each

illegitimate child gets ½ of what a

legitimate child gets [Art. 983, CC and Art.

176, FC ]

Ensure that the legitime of the legitimate

children are first satisfied.

(3) Legitimate children and surviving spouse

Divide entire estate equally between the

legitimate children and the surviving

spouse, the latter deemed as one child. The

same rule holds where there is only one

child.

“Children” as used in Art. 996 is interpreted

to include a situation where there is only

one child.

(4) Legitimate children. Surviving spouse, and

Illegitimate children

Divide the entire estate such that the

surviving spouse is deemed one legitimate

child and each illegitimate child getting ½

of what the legitimate child gets. [Art. 996,

CC and Art. 176, FC ]

Ensure that the legitime of the legitimate

children and the spouse are first satisfied.

(5) Legitimate parents only

Divide the entire estate equally. [Art. 985,

CC ]

(6) Legitimate ascendants only (excluding

parents)

Divide the entire estate equally but with the

observance of the rule of division by line.

[Art. 987, CC ]

(7) Legitimate parents and illegitimate children

Legitimate parents get ½ of the estate,

illegitimate children get the other ½. [Art.

991, CC ]

(8) Legitimate parents and surviving spouse

Legitimate parents get ½ of the estate; The

surviving spouse gets the other ½. [Art. 997,

CC ]

(9) Legitimate parents, surviving spouse and

illegitimate children

Legitimate parents get ½ of the estate;

surviving spouse and the illegitimate child

each get ¼ each, the latter to share among

themselves if more than one. [Art. 1000, CC ]

(10) Illegitimate children only

Divide the entire estate equally. [Art. 988,

CC ]

(11) Illegitimate children and surviving spouse

Illegitimate children get ½ of the estate; the

surviving spouse gets the other ½. [Art. 998,

CC ]

(12) Surviving spouse only

Entire estate goes to the surviving spouse.

[Art. 994/995, CC ]

(13) Surviving spouse and illegitimate parents

Illegitimate parents get ½ and the spouse

gets the other ½. [by analogy with Art. 997,

CC ]

(14) Surviving spouse and legitimate brothers

and sisters, nephews and nieces

Surviving spouse gets ½ of the estate, while

the rest gets the other ½ with the nephews

and nieces inheriting by representation if

proper. [Art. 1001 ]




355

(15) Surviving spouse and illegitimate brothers

and sisters, nephews and nieces

Surviving spouse gets ½ of the estate while

the rest gets the other ½ with the nephews

and nieces inheriting by representation, ifproper; Note that all the other relatives

should be “illegitimate” because of the iron-

curtain rule. [Art. 994, CC ]

(16) Illegitimate parents only

Entire estate goes to the illegitimate

parents. [Art. 993, CC ]

(17) Illegitimate parents and children of any kind

(whether legitimate or illegitimate child)

Illegitimate parents are excluded and donot inherit; For the rule on the respective

shares of the children, see numbers 1, 2 or

10, whichever is applicable.

(18) Legitimate brothers and sisters only

Divide the entire estate such that full-blood

brothers/sisters gets a share double the

amount of a half-blood brother or sister.

[Art. 1004 and 1006, CC ]

(19)

Legitimate brothers and sisters, nephews

and nieces

Divide the entire estate observing the 2 is to

1 ratio for full and half-blood relationships

with respect to the brothers and sisters,

with the nephews and nieces inheriting by

representation, if proper. [Art. 1005 & 1008,

CC]

(20) Nephews and nieces only

Divide the entire estate per capita ,

observing the 2 is to 1 ratio. [Arts. 975 and1008, CC ]

(21) Other collaterals [Arts. 1009 and 1010 ]

Divide entire estate per capita. Collateral

relatives must be with the 5th degree of

consanguinity.

Note: the nearer relative excludes the more

remote relatives.

(22) State

If there are no other intestate heirs, the

State inherits the entire estate throughescheat proceedings. [Art. 1011, CC ]

IV. Provisions Common

to Testate and Intestate

Succession

A. RIGHT OF ACCRETION

Definition of Accretion [Art. 1015, CC ] It is a right by virtue of which, when two or more

persons are called to the same inheritance,

devise or legacy, the part assigned to one who

renounces or cannot receive his share or who

died before the testator is added or

incorporated to that of his co-heirs, co-devisees,

or co-legatees.

Requisites: [Tolentino p. 497-499 ]

(a) Unity of object and plurality of subjects (two

or more persons are called to the same

inheritance or same portion thereof)

(b) Vacancy of share (one of the heirs dies

before the testator, or renounces the

inheritance, or is incapacitated)

When does Accretion Occur?

Accretion happens when there is repudiation,

incapacity, or predecease of an heir. (RIP)

It is the mechanism where the share of an heir is

increased by vacant shares vacated by heirs who

cannot inherit for various reasons. (Rationale:

the decedent intended to give the property to

nobody but the co-heirs.)




356

There can only be accretion if there is an

institution of heirs with respect to specific

properties. [Art. 1016, CC ]

Among compulsory heirs, there can only be

accretion with respect to the free portion. Therecan be no accretion with respect to the

legitimes. [Arts. 1021 and 1018, CC ]

The heirs to whom the portion goes by the right

of accretion take it in the same proportion that

they inherit. [Art. 1019, CC ]

Exceptions [Balane ]

(1) In testamentary succession, if the testator

provides otherwise

(2)

If the obligation is purely personal, andhence intransmissible

The heirs to whom the inheritance accrues shall

succeed to all the rights and obligations which

the heir who renounced or could not receive it

would have had. [Art. 1020, CC ]

In testamentary succession, when the right of

accretion does not take place, the vacant

portion of the instituted heirs, if no substitute

has been designated, shall pass to the legal

heirs of the testator, who shall receive it with

the same charges and obligations. [Art. 1022,

CC ]

Accretion shall also take place among devisees,

legatees and usufructuaries under the same

conditions established for heirs. [Art. 1023, CC ]

Effect of Predecease, Incapacity, Disinheritance or Repudiation

Cause of Vacancy Testamentary SuccessionIntestate Succession

Legitime Free Portion

Predecease RepresentationIntestate Succession

AccretionIntestate Succession

RepresentationIntestate

Succession

Incapacity Representation

Intestate Succession

Accretion


Representation


Disinheritance RepresentationIntestate Succession

- -

Repudiation Intestate Succession Accretion Accretion

B. CAPACITY TO SUCCEED BY WILL

OR INTESTACY

Requisites for Capacity to Succeed by Will or by

Intestacy: [Art. 1024 – 1025, CC ]

(a) The heir, legatee or devisee must be living

or in existence at the moment the

succession opens; [Art 1025 ] and

(b) He must not be incapacitated or

disqualified by law to succeed. [Art 1024,

par.1 ]

PERSONS INCAPABLE OF SUCCEEDING [Arts.1027, 739, 1032 ]

Based on undue influence or interest [Art. 1027,

CC ]

(1) Priest who heard the last confession of the

testator during his last illness, or theminister of the gospel who extended

spiritual aid to him during the same period;

(2) Individuals, associations and corporations

not permitted by law to inherit;

(3) Guardian with respect to testamentary

dispositions given by a ward in his favor

before the final accounts of the




357

guardianship have been approved, even if

the testator should die after the approval

thereof; except if the guardian is his

ascendant, descendant, brother, sister, or

spouse;

(4)

Relatives of the priest or minister of thegospel within the fourth degree, the

church, order, chapter, community,

organization, or institution to which such

priest or minister may belong;

(5) Attesting witness to the execution of a will,

the spouse, parents, or children, or any one

claiming under such witness, spouse,

parents, or children;

(6) Physician, surgeon, nurse, health officer or

druggist who took care of the testator

during his last illness.

Based on morality or public policy [Arts. 739

and 1028, CC ]

(1) Those made in favor of a person with

whom the testator was guilty of adultery or

concubinage at the time of the making of

the will.

(2) Those made in consideration of a crime of

which both the testator and the beneficiary

have been found guilty.

(3)

Those made in favor of a public officer orhis spouse, descendants and ascendants,

by reason of his public office.

Based on acts of unworthiness [Art. 1032, CC ]

The following are incapable of succeeding by

reason of unworthiness:

(1) Parents who have abandoned their

children or induced their daughters to lead

a corrupt or immoral life, or attempted

against their virtue;

(2)

Any person who has been convicted of an

attempt against the life of the testator, his

or her spouse, descendants, or ascendants;

(3) Any person who has accused the testator

of a crime for which the law prescribes

imprisonment for six years or more, if the

accusation has been found groundless;

(4) Any heir of full age who, having knowledge

of the violent death of the testator, should

fail to report it to an officer of the law

within a month, unless the authorities have

already taken action; this prohibition shall

not apply to cases wherein, according tolaw, there is no obligation to make an

accusation;

(5) Any person convicted of adultery or

concubinage with the spouse of the

testator;

(6) Any person who by fraud, violence,

intimidation, or undue influence should

cause the testator to make a will or to


(7) Any person who by the same means

prevents another from making a will, orfrom revoking one already made, or who

supplants, conceals, or alters the latter's

will;

(8) Any person who falsifies or forges a

supposed will of the decedent.

Pardon of Acts of Unworthiness

Express Implied

Made by the execution

of a document or anywriting in which the

decedent condones

the cause of incapacity

Effected when the

testator makes a willinstituting the

unworthy heir with

knowledge of the

cause of incapacity

Cannot be revoked Revoked when the

testator revokes the

will or the institution

Unworthiness vs. Disinheritance

Unworthiness DisinheritanceUnworthiness renders

a person incapable of

succeeding to the

succession, whether

testate or intestate

Disinheritance is the

act by which a

testator, for just cause,

deprives a compulsory

heir of his right to the

legitime [ Art. 815, CC ]




358

Determination of Capacity [Tolentino p. 539 ]

General Rule: At the death of the decedent

[Art. 1034, CC ]

Exceptions:(1) Those falling under 2, 3, and 5 of Art. 1032

– when the final judgment is rendered

(2) Those falling under 4 of Art. 1032 – when

the month allowed for the report expired

(3) If the institution is conditional – when the

condition is complied with

C. ACCEPTANCE AND REPUDIATION

OF THE INHERITANCE

Characteristics [Arts. 1041 – 1042, 1056, CC ](1) Acceptance and repudiation must be

voluntary and free [Art. 1041, CC ]

(2) They are irrevocable except if there is

vitiation of consent or an unknown will

appears [Art. 1056, CC ]

(3) They have a retroactive effect [Art. 1042,

CC ]

Requisites [Art. 1043, CC ]

(a) Certainty of death of the decedent

(b)

Certainty of the right to the inheritance

Acceptance Repudiation

Involves the

confirmation of

transmission of

successional rights

Renders the

transmission of

successional rights

ineffective

Equivalent to an act

of disposition or

alienation

Publicityrequirement is

necessary for the

protection of other

heirs and creditors

Forms of Acceptance [Arts. 1049 – 1050, CC ]

(1) Express Acceptance – one made in a public

or private document. [Art. 1049 par. 1 ]

(2) Tacit Acceptance – one resulting from acts

by which the intention to accept is

necessarily implied or from acts which one

would have no right to do except in thecapacity of an heir.

(3) Implied Acceptance - Within thirty days

after the court has issued an order for the

distribution of the estate in accordance

with the Rules of Court, the heirs, devisees

and legatees shall signify to the court

having jurisdiction whether they accept or

repudiate the inheritance; if they do not do

so within that time, they are deemed to

have accepted the inheritance. [Art 1057,

CC ]

An inheritance is deemed accepted:

(a) If the heir sells, donates, or assigns his

right to a stranger, or to his co-heirs, or

to any of them – the heir must first

accept the inheritance before he can

dispose of it.

(b) If the heir renounces the same, even

though gratuitously, for the benefit of

one or more of his co-heirs – this is

actually a donation. The heir must firstaccept the inheritance before he can

donate it.

(c) If the heir renounces it for a price in

favor of all his co-heirs indiscriminately

– this is actually an onerous

disposition. The heir must first accept

the inheritance before he can dispose

of it.

Note: But if the renunciation should be

gratuitous, and in favor of all the co-heirs (to

whom the portion renounced should devolve

by accretion), the inheritance shall not be

deemed as accepted. [Art. 1050 ] This is a true

case of renunciation.

Forms of Repudiation [Art. 1051, CC ]




359

(1) in In a public instrument acknowledged

before a notary public; or

(2) In an authentic document – equivalent of

an indubitable writing or a writing whose

authenticity is admitted or proved; or

(3)

By petition presented to the court having jurisdiction over the testamentary or

intestate proceeding

Heirs in Two Capacities [Art. 1055, CC ]

(1) If a person is called to the same

inheritance as an heir by will and by law

and he repudiates the inheritance in his

capacity as a testamentary heir, he will be

considered to have also repudiated the

inheritance as a legal heir.

(2)

If he repudiates it as a legal heir, withoutknowledge of his being a testamentary

heir, he may still accept it in the latter

capacity.

D. COLLATION

Concept of Collation

To collate is to bring back or to return to the

hereditary mass in fact or by fiction property

which came from the estate of the decedent,

during his lifetime by donation or othergratuitous title but which the law considers as

an advance from the inheritance. [Art. 1061,

CC ]

It is the act by virtue of which, the compulsory

heir who concurs with other compulsory heirs

in the inheritance brings back to the common

hereditary mass the property which they may

have received from the testator so that a

division may be effected according to law and

the will of the testator.

In reducing inofficious donations, the last to be

donated should be the first to be reduced.

Rationale for collation: If donations inter vivos

will not be collated, then the rule on legitimes

shall be circumvented or disregarded.

Operations Related to Collation

(1) Collation – adding to the mass of the

hereditary estate the value of the donation

or gratuitous disposition.

(2) Imputing or Charging – crediting the

donation as an advance on the legitime (if

the donee is a compulsory heir) or on the

free portion (if the donee is a stranger, i.e.,

not a compulsory heir). [Balane, p. 522 ]

(3)

Reduction – determining to what extentthe donation will remain and to what

extent it is excessive or inofficious.

(4) Restitution – returning or the act of

payment of the excess to the mass of

hereditary estate.

Persons Obliged to Collate

General rule: Compulsory heirs

Exceptions:

(1) When the testator should have so expressly

provided [Art. 1062, CC ](2) When the compulsory heir should have

repudiated his inheritance [Art. 1062, CC ]

Grandchildren who survive with their uncles,

aunts, or first cousins and inherit by right of

representation [Art. 1064, CC ]

Note: Grandchildren may inherit from their

grandparents in their own right, i.e., as heirs

next in degree, and not by right of

representation if their parent repudiates theinheritance of the grandparent, as no living

person can be represented except in cases of

disinheritance and incapacity. In this case, the

grandchildren are not obliged to bring to

collation what their parent has received

gratuitously from their grandparent.




360

Surviving spouse is not obliged to collate.

What to Collate

(1) Any property or right received by

gratuitous title during the testator’s

lifetime [Art. 1061, CC ](2) All that they may have received from the

decedent during his lifetime. [Art. 1061, CC ]

(3) Expenses incurred by the parents in giving

their children a professional, vocational or

other career shall not be brought to

collation unless the parents so provide, or

unless they impair the legitime; but when

their collation is required, the sum which

the child would have spent if he had lived

in the house and company of his parents

shall be deducted therefrom. [Art. 1068,CC ]

(4) Any sums paid by a parent in satisfaction

of the debts of his children, election

expenses, fines, and similar expenses shall

be brought to collation. [Art. 1069, CC ]

Note: Only the value of the thing donated shallbe brought to collation.

PROPERTIES NOT SUBJECT TO COLLATION

Absolutely no collation

Expenses for support, education (onlyelementary and secondary), medicalattendance, even in extraordinary illness,apprenticeship, ordinary equipment, orcustomary gifts [Art. 1067, CC]

Generally not imputable to legitime/ cannot be

collated, subject to exceptions

(1) Expenses incurred by parents in giving

their children professional, vocational or

other career unless the parents so provide,or unless they impair the legitime. [Art.

1067, CC ]

(2) Wedding gifts by parents and ascendants,

consisting jewelry, clothing and outfit,

except when they exceed 1/10 of the sum

disposable by will. [Art. 1070, CC ]

(3) Neither shall donations to the spouse of

the child be brought to collation; but if

they have been given by the parent to the

spouses jointly, the child shall be obliged

to bring to collation one-half of the thing

donated. [Art. 1066, CC ]

Note: Parents are not obliged to bring to

collation in the inheritance of their ascendants

any property which may have been donated by

the latter to their children. [Art. 1065, CC ]

E. PARTITION AND DISTRIBUTION

OF ESTATE

E.1. IN GENERAL

Separate, Divide, Assign. Partition is the

separation, division and assignment of a thing

held in common among those to whom it may

belong. The thing itself or its value may be

divided. [Art. 1079, CC ]

Owned in common. Before partition, the whole

estate of the decedent is owned in common by

the heirs. [Art. 1078, CC ]

Thing or value may be divided. [Art. 1079 ]

Acts deemed partition. Every act which is

intended to put an end to indivision among

heirs and legatees or devisees is deemed a

partition, although it should purport to be a

sale, an exchange, a compromise, or any other

transaction. [Art. 1082, CC ]

A void partition may be valid if:

(1) The will was in fact a partition

(2)

The beneficiaries of the void will were legal

heirs

The titles of acquisition or ownership of each

property shall be delivered to the co-heir to

whom said property has been adjudicated.

[Art. 1089, CC ]




361

JUDICIAL vs. EXTRAJUDICIAL PARTITION

Judicial – Partition done by Court pursuant to

an Order of Distribution which may or may not

be based on a project of partition.

Extra-judicial – partition made by the decedent

himself by an act inter vivos or by will or by a

third person entrusted by the decedent or by

the heirs themselves. [Paras ]

Partition Inter Vivos : It is one that merely

allocates specific items or pieces of property

on the basis of the pro-indiviso shares fixed

by law or given under the will to heirs or

successors. [Art. 1080, CC ]

Who May Effect Partition

(1) The Decedent, during his lifetime by an act

inter vivos or by will [Art.1080, CC ]

(2) The decedent’s heirs [Art.1083, CC ]

(3) A competent court [Art. 1083,CC ]

(4) A third person not an heir designated by

the decedent [Art.1081, CC ]

Who Can Demand Partition

(1) Compulsory heir

(2)

Voluntary heir upon fulfillment of conditionif any [Art. 1084, CC ]

(3) Legatee or devisee

(4) Any person who has acquired interest in

the estate

When Partition Cannot Be Demanded

(1) When expressly Prohibited by the testator

for a period not exceeding 20 years [Art.

1083, CC ]

(2) When the co-heirs Agreed that the estate

shall not be divided for a period notexceeding 10 years, renewable for another

10 years

(3) When Prohibited by law

(4) When to partition the estate would render

it unserviceable for the use for which it is

intended

Prohibition to Partition

(1) The prohibition to partition for a period not

exceeding 20 years can be imposed even

on the legitime.

(2) If the prohibition to the partition is for

more than 20 years, the excess is void.(3) Even if a prohibition is imposed, the heirs

by mutual agreement can still make the

partition.

Effects of Inclusion of Intruder in Partition [Art.

1108, CC ]

(1) Between a true heir and several mistaken

heirs – partition is void.

(2) Between several true heirs and a mistaken

heir – transmission to mistaken heir is void

(3)

Through error or mistake, share of true heiris allotted to mistaken heir – partition shall

not be rescinded unless there is bad faith

or fraud on the part of the other persons

interested, but the latter shall be

proportionately obliged to pay the true heir

of his share. The partition with respect to

the mistaken heir is void. [Sempio-Dy ]

Right of Redemption in Partition

Should any of the heirs sell his hereditary

rights to a stranger before the partition, any orall of the co-heirs may be subrogated to the

rights of the purchaser by reimbursing him for

the price of the sale, provided they do so within

the period of one month from the time they

were notified in writing of the sale by the

vendor [Art. 1088, CC ]

Strangers – those who are not heirs on the

succession.

E.2. EFFECTS OF PARTITION

Effect

A partition legally made confers upon each

heir the exclusive ownership of the property

adjudicated to him [Art. 1091, CC ]

Warranty




362

After the partition has been made, the co-heirs

shall be reciprocally bound to warrant the title

to, and the quality of, each property

adjudicated [Art. 1092, CC ]

The reciprocal obligation of warranty shall beproportionate to the respective hereditary

shares of the co-heirs;

If any one of them should be insolvent, the

other co-heirs shall be liable for his part in the

same proportion, deducting the part

corresponding to the one who should be

indemnified.

Those who pay for the insolvent heir shall have

a right of action against him forreimbursement, should his financial condition

improve [Art. 1093, CC ]

An action to enforce the warranty among the

co-heirs must be brought within ten years from

the date the right of action accrues. [Art. 1094,

CC ]

If a credit should be assigned as collectible, the

co-heirs shall not be liable for the subsequent

insolvency of the debtor of the estate, but onlyfor his insolvency at the time the partition is

made. [Art. 1095, CC ]

The warranty of the solvency of the debtor can

only be enforced during the five years following

the partition.

Co-heirs do not warrant bad debts, if so known

to, and accepted by the distributee.

But if such debts are not assigned to a co-heir,and should be collected, in whole or in part,

the amount collected shall be distributed

proportionately among the heirs. [Art. 1095,

CC ]

End of Warranty

The obligation of warranty among co-heirs

shall cease in the following cases:

(1) The testator himself has made the

partition

Unless it appears, or it may be

reasonably presumed, that his intentionwas otherwise, but the legitime shall

always remain unimpaired.

(2) When it has been so expressly stipulated in

the agreement of partition

Unless there has been bad faith

(3) When the eviction is due to a cause

subsequent to the partition, or has been

caused by the fault of the distributee of the

property. [Art. 1096, CC ]

E.3. RESCISSION AND NULLIFICATIONOF PARTITION

Causes for Rescission or Annulment

(1) A partition may be rescinded or annulled

for the same causes as contracts. [Art.

1097, CC ]

(2) A partition, judicial or extra-judicial, may

also be rescinded on account of lesion,

when any one of the co-heirs received

things whose value is less by at least one-

fourth, than the share to which he is

entitled, considering the value of the

things at the time they were adjudicated

[Art. 1098, CC ]

This article applies only to cases of

partition among-coheirs

Lesion is the injury suffered in

consequence of inequality of situation by

one party who does not receive the full

equivalent for what she gives in a sale or

any commutative contract (3) The partition made by the testator cannot

be impugned on the ground of lesion,

except when the legitime of the

compulsory heirs is thereby prejudiced, or

when it appears or may be reasonably be

presumed, that the intention of the

testator was otherwise. [Art. 1099, CC ]




(4) Preterition of a compulsory heir in the

partition [Art. 1104, CC ]:

Partition shall not be rescinded unless

bad faith or fraud on the part of other

heirs is proved.

The culpable heirs shall share in thedamages of the prejudiced compulsory

heir proportionately.

(5) A partition which includes a person

believed to be an heir, but who is not, shall

be void only with respect to such person.

[Art. 1105, CC ]

The action for rescission on account of lesion

shall prescribe after four years from the time

the partition was made. [Art. 1100, CC ]

The heir who is sued shall have the option of

indemnifying the plaintiff for the loss, or

consenting to a new partition

Indemnity may be made:

(1) By payment in cash or

(2) 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 neitherthose who have not been prejudiced nor those

who have not received more than their just

share [Art. 1101, CC ]

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

[Art. 1102, CC ]

The omission of one or more objects or

securities of the inheritance shall not cause the

rescission of the partition on the ground of

lesion, but the partition shall be completed by

the distribution of the objects or securities

Nullity – the act is supposed to never have

existed

Rescission – the act is valid at the origin

though it afterwards became ineffective

Important Periods in Partition

1 month or

less before

making a will

Testator, if publicly known tobe insane, burden of proof is

on the one claiming validity of

the will

20 years

Maximum period testator can

prohibit alienation of

dispositions

5 years from

delivery to the

State

To claim property escheated

to the State

1 month

To report knowledge of violent

death of decedent lest he beconsidered unworthy

5 years from

the time

disqualified

person took

possession

Action for declaration of

incapacity & for recovery of

the inheritance, devise or

legacy

0 days from

issuance of

order of

distribution

Must signify

acceptance/repudiation

otherwise, deemed accepted

1 month form

written notice

of sale

Right to repurchase hereditary

rights sold to a stranger by a

co-heir

10 years

To enforce warranty of

title/quality of property

adjudicated to co-heir from

the time right of action

accrues

5 years from

partition

To enforce warranty of

solvency of debtor of the

estate at the time partition ismade

4 years from

partition

Action for rescission of

partition on account of lesion

boc 2015 succession reviewer

Documents