WILLS AND SUCCESSION I.

INTRODUCTION 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 A. Kinds: !. "uccession #nter $ivos %he transfer is effective during the lifetime of the giver&owner "uccession (ortis )ausa %he transfer is effective at the time of death of the giver&owner (ust comply with the requisites of a valid will a *orced %a+es place by operation of law where the law reserves to specified heirs(compulsory heirs a part&portion of the decedent,s estate. %estamentary is that which results from the designation of an heir, made in a will executed in the form prescribed by law. -egal&#ntestate that which results when the decedent left no will presumptive of the will of the decedent had the decedent left a will (ixed is that effected partly by will and partly by operation of law. -

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)ontractual "uccession %hat +ind where a future husband and a future wife give to each other future property effective mortis causa, by means of marriage settlement. %he ") ruled that a survivorship agreement is not a conveyance mortis causa, which should be embodied in a will. /either is the survivorship agreement a donation inter vivos because its effectivity is after the death of one party. #t cannot be a donation between the spouses because it involved no conveyance of a spouse,s own properties to the other and it does not purport to deliver one party,s separate properties to the other, but simply, their 0oint holdings. #n this light, the "upreme )ourt held that the survivorship agreement involves no modification of the con0ugal partnership nor is it a cloa+ to circumvent the laws on con0ugal property relations. ($itug v. )A !1. " 722 B. Elements of Succession Mo tis C!us! !. (ode of %ransmitting& Acquiring 3wnership a. (ode 4 the legal means by which dominion or ownership is created, transferred or destroyed b. %itle 4 only constitutes the legal basis by which to affect dominion or ownership (in succession, title is acquired either by will or by operation of law %ransmission&Acquisition %hrough 5eath %he rights to the succession are transmitted from the moment of the death of the decedent. a 6resumptive 5eath i. 3rdinary absence- After an absence of !7 years, a person shall presumed dead for the purpose of opening his succession8 but if he disappeared after the age of 72, an absence of 2 years will be sufficient ii. 9xtraordinary absence- when there is danger of death-4 years. %he following are presumed to be dead for all purposes: a. a person on board on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for 4 years since the loss of the vessel or aeroplane

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a person in the armed forces who has ta+en part in war, and had been missing for 4 years c. a person who has been in danger of death under other circumstances and his existence has not been +nown for 4 years ;pon the end of the 4th year s secure a certificate of presumptive death. "uccession however, has opened since the first year of disappearance, thus,it applies retroactively. Actual 5eath #f there is a doubt as between ' or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same8 in the absence of proof, they shall be considered to have died at the same time. "uccession is contingent on the reappearance and the confirmation of death.

b.

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3b0ect of "uccession %he inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. %he inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. In"e it!nce - refers to what is distributed or paid to the heirs as their hereditary share Est!te is a 0uridical entity for 6urposes of: ! to pay off subsisting unpaid debt of the decedent ' to distribute to the heirs by will&law the residue thereof - once said purposes are fulfilled, it ceases to be a 0uridical entity

%ransmissbility or intransmissiility depends on: 1. 6rovisions of law i. ii. iii. iv. v. vi. vii. ;sufruct- with definitie period-transmissible ;sufruct- without definite period- intransmissible 6artnership- intransmissible < except- rights to the distributive share Agency-intransmissible )ommodatum- intransmissible -ease-transmissible (ortgage-transmissible

2. )ontract As a rule, transmissible except if there is an express provision against transmissibility (onetary obligations of the decedent are purely personal, thus, by their nature they are intransmissible 6roperties in existence at the time of death plus accrued properties shall all be distributed to the heirs.

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4.

6arties to succession a 5ecedent =decedent> is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. #f he left a will, he is also called the testator. b ?eir is a person called to the succession either by the provision of a will or by operation of law. beneficiaries to succession @inds of heirs: !. )ompulsory 4 succeeds by force of law, which they cannot be deprived of except by a valid disinheritance '. $oluntary or testamentary 4 instituted in a will, but only with regard to the free portion '.!. universal- instituted to the valid will to the whole or aliquot fraction of the estate '.' devisees&legatees- succeeds under a particular title A 5evisee 4 one to whom real property is given by will A -egatee 4 one to whom personal property is given by will 3. legal or intestate 4 those who succeed when the decedent dies without a will or the portion of the estate not disposed of by will

C.

R!tion!le#B!ses of Succession !. /atural '. 6ersonal .. "ocio-9conomic B!sic $ inci%les of Succession !. /o succession shall ta+e place while the owner of the property is still alive. '. %he interest of the family overrides the wishes and intentions of the decedent. .. %he estate devolves upon the family that is why succession by strangers is never presumed. 4. %he family cannot be entirely deprived of the estate. %hat is why the law already preserves certain portions to the family. %he only way tat they can only be deprived is by disinheritance. 2. *orced and intestate heirs of equal proximity inherit in equal shares unless belonging to different classes. B. %he "tate has a share in the estate by way of estate taxes and or as an heir in intestacy. 7. %he rule is, heirs are not liable for debts of the decedent beyond their inheritance.

D.

II. &ORCED SUCCESSION A. Conce%t A form of succession which ta+es place by operation of law where the law has reserves certain fractions or portions of the estate for compulsory heirs. )ompulsory heirs cannot be deprived by the testator of their legitime except by disinheritance properly effected. -egitimes: ;nderstood in . senses: !. '. .. Cefers to the portion of hereditary estate fixed by law for compulsory heirs. #t is expressed in an aliquot fraction. Cefers to the actual share in the estate or property. #t is a right vested at the moment of death of the decedent.

B.

$ inci%les 'o(e nin) Le)itimes !. %he decedent cannot deprive the compulsory heirs of their legitimes.

%he testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law.

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%he decedent cannot impose any charge, burden, condition of substitution on the legitime. #t must always be free and unconditional. 9xceptions: a A parent who, in the interest of his or her family, desires to +eep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (A.!717 (' b 9very co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 4D4. %his power of the testator to prohibit division applies to the legitime. (A.!71. (!

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-egitimes cannot be the sub0ect of any waiver, renunciation or compromise between the owner and the compulsory heir. Any renunciation there shall be void. 9very renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former8 but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. /o #mpairment Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. !. Cemedies:

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Alienation is gratuitous- donation inter vivos or condonation of debt (ay be set aside at the instance of the heirsE (ay be annulled or reduced Alienation is onerous FC: valid and the compulsory heirs cannot set aside the same 9: - it is fictitious or simulated #f such was the case, it shall revert to the estate of the decedent -

C.

Com%ulso *#&o ced +ei s ,. $ im! * &o ced "ei s those who have precedence over and exclude other compulsory heirs. entitled by operation of law to the legitimes whether surviving alone as a class or concurring with another class a -egitimate children and descendants with respect to their legitimate parents and ascendants -egitimate children 4 those born or conceived under a valid marriage #ncludes legitimated children and adopted children o descendants - thru Cight of Cepresentation -9xtends only to legitimate children and descendants -sub0ect to the I on- B! ie Rule -provides that illegitimate cannot inherit from legitimate relatives of their parents b spouse - presupposes a valid subsisting marriage at the time of death of the decedent -if there,s a decree of separation- guilty spouse- disqualified to inherit

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c #llegitimate children d.! children born out of a void marriages d.' children born outside of marriage - filiation must be with the deceased must be proved through any of the means provided by law (see *) Second! * &o ced +ei s those who succeed only in the absence of the primary )ompulsory heirs includes legitimate parents and ascendants with respect to their legitimate children and descendants with respect to an illegitimate decedent- the parents (mother&father will be called to succeed in the legitime in the absence of either legitimate or illegitimate children or descendants of the decedent. Effect of Ado%ti(e Rel!tions Celationship is confined between the adopter and the adoptee. #t does not extend beyond the parties to the adoption. Adoptee: acquires all obligations and tights of the legitimate child of the adopter including rights to succession, however, said rights exclude the right of representation. )hildren of the adoptee are strangers to the adopter. 6arents of the adopter are strangers to the adoptee. "hould the adopter die, the adoptee will be entitled to his legitime.

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D.

Com%ut!tion of Le)itimes: $ inci%le of Concu ence Ghen two or more classes of heirs survived the decedent, they will inherit simultaneously $ inci%le of E0clusi(it* 3ne class of heirs would be barred from the legitime because of the presence&survival of another class or group of heirs. Rule of $ o0imit* Applies where the relative nearest in degree excludes the more distant ones, saving the right of representation 9.g. grandchild will inherit the legitime before a great grandchild will do.

E.

S"! es#Le)itime &i0ed le)itime Ghen the aliquot of fraction remains the same Accorded by law to the heirs and their descendants 1! i!2le Aliquot of fraction that changes depending on whether or not the heir survives alone or survives with other compulsory heir. ,. Le)itim!te C"ild en !nd Descend!nts %he legitime of legitimate children and descendants consists of one-half of the hereditary estate -egitimate children inherit in equal shares Le)itim!te $! ents !nd Ascend!nts %he legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants. H if concurring with widow&widower and illegitimate children

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Su (i(in) S%ouse - if alone H of the hereditary estate, however if the marriage between the surviving spouse and the testator was solemniIed in articulo mortis and the testator died within . months from the

time of the marriage, the legitime of the surviving spouse as the sole heir shall be !&. of the hereditary estate. - if 2 years or more -!&' will be the share - if he&she concurs with ! legitimate child- J - if concurs with several legitimate children- equal to the share of ! legitimate child - concurs with legitimate ascendants- J --if concurs with legitimate parents and illegitimate children of the decedent-!&1 -#f concurs with illegitimate children- !&. -#f concurs with illegitimate parents-!&4 3. Ille)itim!te C"ild en Alone- H )oncurs with legitimate children and widow&widower-!&' of the share of ! legitimate child )oncurs with l+egitimate ascendants and spouse-7!&4 )oncur with spouse-!&. )oncur with legitimate ascendants- J Ille)itim!te $! ents Alone-!&' as a class )oncur with widow&widower-!&4 )oncur with children&descendants-none

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Rules on Dist i2ution of Le)itimes S%ecific Rules:

#. #n the case of legitimate children and descendants )hildren will inherit in equal shares (per capita share Frandchildren and other descendants inherit by right of representation sub0ect to the iron-barrier rule. #f the person represented predeceased the decedent was incapacitated or was disinherited, the descendants will inherit by right of representation but they cannot inherit by renunciation or repudiation. %hose who inherit by representation inherit per stirpes-the total of which does not exceed the per capita share of the person represented. #n case the nearest class of compulsory heirs repudiate their inheritance, those in the next degree will inherit on their own right and not by the right of representation. 3ne who repudiates will not have the right to be represented. II. Le)itim!te $! ents !nd Ot"e descend!nts 1. 2. 3. 5ivide between the maternal and paternal lines. Githin each line, the ascendants of equal degree inherit in equal share(per capita Ascendants in general who are of different degrees- apply the rule on proximity Ascendants of different lines-apply rule on proximity. "uch reinforces the rule that in the ascending line, there is no right of representation. %heir legitime is sub0ect to Ceserva %roncal.

III.

Le)itime of Ille)itim!te $! ents 3nly parents who recogniIe the child is entitled to the legitime. /othing in the law prohibits the putative father from recogniIing his child after the child,s birth. %hus, if both parents recogniIed said child, divide it equally between the mother and father.

I1. Ille)itim!te C"ild en !s ! Cl!ss !. Ghen concurring with legitimate children, the legitime of the illegitimate children cannot exceed the free portion.

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%he legitime of recogniIed illegitimate children shall pass to their legitimate children&descendants by right of representation. LE'ITIME H NOTES 5ivide by the K of -), whether they survive alone or with concurring )?.

SUR1I1OR -)

! -) "" ' or more -) "" -) #) -) #) -) "" #)

H J H equal to ! -) H H of ! -) H H of ! -) H J H of ! -) All the concurring )? get from the half free portion, the share of the "" having preference over that of the #), whose share may suffer reduction pro rata because there is no preference among themselves.

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Ghether they survive alone or with concurring )?. #) succeed in the J in equal shares.

-6A #) -6A "" -6A "" #) ""

H J H J H !&1 J H

!&. if marriage is in articulo mortis and deceased spouse dies within . mos. after the marriage.

#6 #6 Any child #6 ""

H -excluded-#t depends J J )hildren inherit in the amounts established in the foregoing rules. 3nly the parents are of #) are included. Frandparents and other ascendants are excluded.

TABLE ,. RES$ECTI1E LE'ITIMES O& SUR1I1IN' +EIRS '. Rese (! T onc!l ,. Conce%t #t is an obligation imposed by law upon an ascendant who inherits from a descendant, the latter died without legitimate descendants and the property inherited comes from another ascendant or a

brother or sister by gratuitous tile , is obliged to reserve such property for the benefit of relatives who are within the .rd degree and who belong to the line from which such property came. .. $u %oses 1. %o prevent persons outside a family from acquiring, by some chance or accident, property which otherwise would have remained with the said family8 2. %o reserve certain property in favor of certain persons8

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Elements: a Ceservista &reservoir Ascendant who inherits the property from the descendant %he ascendant must be a legitimate relative from the descendant and he must be qualified and willing to inherit. %he descendant must have died without issuer, that is ,he has no legitimate children or descendants. %he transmission must be by operation of law. ?e is the person obliged to reserve %he reservable property is not part of the estate of the reservista. 6repositus -

the descendant who died and from whose death the reservista in turn had acquired the property by operation of law(donation or thru gratuitous title

Ceservable 6roperty %here must be reservable property whether real or personal and that the property must have come from another ascendant or a brother or sister of the prepositus. $ o%e t* su25ect to Rese (!tion: o Fen. Cule: must be the same property which the reservista had acquired by operation of law from prepositus upon the death of the latter and which the latter, in turn had acquired by gratuitous title during his lifetime from another ascendant, brother&sister. o 9xception: "ubstitution of the reservable property thru unavoidable necessity: i. ii. iii. iv. 6roperty is consumable8 -ost&destroyed thru the fault of the reservista 5eteriorated thru the same cause8 #t has been alienated.

Ceservatarios&reserves %here must be reservatarios who are the beneficiaries of the reserve troncal %hey must be legitimate relatives of the prepositus who belong to the line from which the property came and must be relatives of the prepositus within the . rd degree of consanguinity. %hey must be willing, alive and capable to inherit. Ceservatarios- .rd degree belonging to the line of origin computed from the prepositus o Gho are theyL a parentsM!st degree b grandparentsM 'nd degree c greatgrand parentsM .rd degree d brothers&sistersM'nd collateral degree e uncles&auntsM.rd degree f nephews&niecesM.rd collateral degree

3.

Ri)"ts !nd O2li)!tions of t"e $! ties:

1. Ceservista a. 6rior to his death, he is required to submit an inventory of the reservable property and cause the appraisal of the same. %he inventory must be made thru ad0udication (partition by the court. %o cause annotation of the reserve troncal in the appropriate Cegistry of 6roperty. o Ghen: Githin D7 days from ad0udication o #f there,s a failure to comply with such, any of the reservatarios may compel the reservista to perform the same. %o secure by mortgage (a restitution of movables not alienated, (b payment of damages caused by his fault or negligence, (c return of price received for movables alienated and (d payment of value of immovable alienated. Cequired to furnish a bond with the court to answer fro the property in case the reservista fails to return the same.

b.

c.

d.

e.

Ghile still alive, the reservista is a conditional owner of the property. %hus, he may introduce improvements thereon. /ecessary and useful expenses must be reimbursed by the reservatarios. ?e may dispose the property. %he transferee acquires the same sub0ect to the rules on bad faith and good faith. #f the transferee is in good faith- the reservista,s heirs must pay the value in favor of the reservatarios i.e. cancelling the bond #f the transferee is in bad faith-reservatarios may recover the property ?owever, he cannot dispose of the property mortis causa because by operation of law, upon his death, the property goes to the reservatarios.

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2. Ceservatarios a. b. Nefore the death of the reservista, they can demand inventory and compel annotation and demand the bond. ;pon the death of the reservista, they are entitled to the property reserved. Apply the rules on proximity A reservatorio may dispose of his expectancy to the reservable property during pendency of the reserve in its uncertain and conditional form. #f he dies before the reservista, he has not transmitted anything, but if he survives such reservista, the transmission shall become effective. -

4.

E0tinction of Rese (! T onc!l 1. 5eath of the Ceservista 6roperty will pass to the reservatarios 2. 5eath of all the reservatarios before the death of the reservista %itle is consolidated in favor of the reservista or upon the reservista,s estate. 3. -oss of the reservable property

*ortuitous event- reservista has no obligation to return Gith fault or negligence of the reservista- pay damages equivalent to the value of the property at inventory 9xamples: property is ta+en for public use

4. 6rescription of the right of the reservatarios. %he reservista or his ?eirs may acquire the property thru acquisitive prescription Apply the good faith rule and bad faith rule for movables and immovable 5. Cegistration under the %orrens "ystem as free from reservation. ?owever, it is still sub0ect to the payment of value by the reservista. 6. Cenunciation or waiver by all the reservatarios after the death of the reservista. %here can be no valid waiver whole the reservista lives because such waiver is contrary to the nature and purpose of the reserve. (6aras

III. TESTAMENTAR6 SUCCESSION A. Wills ,. Conce%t !nd N!tu e A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to ta+e effect after his death. 5eclarations of a person,s intentions or wishes operative only post mortem C"! !cte istics of t"e Test!ment! * Act a #t is a mere "tatutory right As such, it must be exercised within the confines or limitations set forth in law. #n the presence of a law allowing such right, the repeal of a law will not affect an executed will. %he determining law is the law enforced at the time of ma+ing the will. #t is a unilateral act #t requires the power&consent of one person only, namely the ma+er of the instrument, thus other persons cannot participate in the ma+ing thereof except for its formalities. 6ersonal: /on-5elegation - %he disposition of property is solely dependent upon the testator. - a third person cannot determine whether or not it should be operative or when it will be operative /on-delegable aspects of a will !. duration or efficacy of the designation of heirs, devisees or legatees8 '. determination of the portions which they are to ta+e, when referred to by name8 and .. determination of whether or not the testamentary disposition is to be operative. 5elegable !. distribution of specific property or sums of money that he may leave in general to specified classes or causes8 and '. designation of the persons, institutions or establishments to which such property or sums are to be given or applied.

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B.

#t is an #ndividual act Ooint wills are prohibited under 6hilippine -aws

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-it is the will of ' or more persons by the same act in the same instrument fort heir reciprocal benefit or for the benefit of some other persons. Cationale: to prevent the danger or possibility of the stronger party from exerting force, violence against the wea+er party to derive more advantage or benefit therefrom. Gills executed by *ilipinos in a foreign country shall not be valid in the 6hilippines, even though authoriIed by the laws of the country where they may have been executed. %wo or more persons cannot ma+e a single 0oint will, either for their reciprocal benefit or for another person. ?owever, separate or individually executed wills, although containing reciprocal provisions (mutual wills , are not prohibited, sub0ect to the rule on disposicion captatoria.

7.

Gith Animus %estandi #t must be expressive of the donative intent of the testator #t must be present at the time of execution of the will )annot be applied retroactively Ambulatory and Cevocable 5uring the lifetime of the testator, the will may be changed or revo+ed. waiver or restriction of this right is void.

1.

D.

*ree and $oluntary Any vice s of consent affecting the testamentary freedom can cause the disallowance of the will. /ote: there is no such thing as voidable will. !7. "olemn and *ormal Act %he right to ma+e a will must follow the formalities and solemnities prescribed by law for its validity. !!. 9ffective (ortis )ausa #t is executed inter vivos byut effective mortis causa /. Rules in t"e Inte % et!tion of Wills a b %he will must be interpreted in accordance with the animus testandi of the %estator. #n case of doubt, testacy should be preferred over intestacy. "trict rules on technicality must not subvert the desire of the testator.

3rdinary words must be given their ordinary meaning unless the contrary appears. )onsequently, technical words must be accorded their technical meanings unless it appears that the testator was not acquainted with the same and in such case, it shall be given its ordinary meaning. - #t is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. - #n case of doubt, that interpretation by which the disposition is to be operative shall be preferred. %hat construction is to be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rules of law. d #n case of imperfect descriptions with the person on the will or the property on the same, such will should not be construed by the imperfections. "uch ambiguity must be corrected according to the intention of the testator. Kinds of Am2i)uities: -atent&#ntrinsic4 that which does not appear on the face of the will and is discovered only by extrinsic evidence. ambiguity is only on the interpretation '. 6atent&extrinsic 4 that which appears on the face of the will itself !.

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4.

+o7 inte % eted: examine the will itself and establish the context on which the will was written #f the !st rule is not applicable, allow evidence aliunde (written ?owever, if despite the rules on interpretation, the identity of the heirs cannot be established the will shall be void since it is considered as a will to an =un+nown personP where said identity cannot be established. #f the imperfection shows that the property does not belong to the testator, the disposition is void.

?owever, the nullity of one or several of the testamentary disposition&s shall not affect the others. ;nless, it can be shown that ' or more dispositions are in fact indivisible such that the nullity of one ma+es the other dispositions void. 6roperty acquired after the ma+ing of a will shall only pass thereby, as if the testator had possessed it at the time of ma+ing the will, should it expressly appear by the will that such was his intention. After acquired properties by he testator-the heirs cannot claim the same unless the will expressly provides or the will is republished or when there is latter codicil.

3.

'o(e nin) L!7 E0t insic (!lidit* 8fo ms9 solemnities of ! 7ill %he law in force at the time of execution

time

*ilipino

6hils-6hilippine -aw Abroad-6hilippine -aw&lex loci celebrationis

Int insic (!lidit*8o de of succession9 c!%!cit* to succeed: -aw at the time of death of the testator because successional rights vest only at the moment of death of the decedent. %he national law of the decedent shall apply

/on-*ilipinos <6hilippines -aw of domicile /ational law 6hilippine law(lex loci celebrationis <abroad <same as above-mentioned <lex loci celebrationis </ational law < in the absence thereof, apply the renvoi doctrine

B.

Test!ment! * C!%!cit* %estamentary )apacity - qualifications and disqualifications provided by law upon a person to ma+e a will - refers to the ability as well as the power to ma+e a will provided certain requirements are complied with - must be present at the time of the execution of the will. - this is also +nown as the Active %estamentary capacity %estamentary power statutory right to dispose of property by acts effective mortis causa also +nown as the #s the 6assive (capacity to receive by virtue of a will

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W"o ! e ;u!lified to m!<e ! 7ill: In )ene !l a /atural persons !. At le!st ,= *e! s of !)e !t t"e time of m!<in) of t"e 7ill

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- a minor cannot execute a valid will. Assistance of the guardian cannot cure the lac+ of capacity. i. (arried persons -A married woman may ma+e a will without the consent of her husband, and without the authority of the court. - in marriage settlemtns or agreements donations of future property must be made thru a will. - they may dispose by will of all his&her separate property as well ashis& her share of the con0ugal partnership or absolute community property. ii.convicted felon -)an still ma+e a will because such is an act mortis cause

2. Must 2e of sound mind !t t"e time of m!<in) of t"e 7ill. "oundness of (ind a W"en Dete mined- at the time of its execution b Me!nin)- %o be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbro+en, unimpaired, or unshattered by disease, in0ury or other cause. #t shall be sufficient if the testator was able at the time of ma+ing the will to +now : !. the nature of the estate to be disposed of8 '. the proper objects of his bounty8 and .. the character of the testamentary act.

$ esum%tions - the law presumes that every person is of sound mind, in the absence of proof to the contrary. %he burden of proof that the testator was not of sound mind at the time of ma+ing his dispositions is on the person who opposes the probate of the will !. Inst!nces 7"en test!to is $ esumed Ins!ne:

if the testator, one month, or less, before ma+ing his will was publicly +nown to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. #f he testator made the will after he had been 0udicially declared insane, and before such 0udicial order had been set aside.

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No % esum%tion of ins!nit* ! ises f om:

%he presence of a mere delirium, since this is temporary, nor form intoxication, for the same reason. '. %he insanity of the parents and children of the testator. Su%e (enin) C!%!cit* (. Su%e (enin) Inc!%!cit* "upervening incapacity does not invalidate an effective will and supervening capacity will not cure an already void will.

d:

C.

&o ms of Wills 9Q%C#/"#) $A-#5#%R- the validity of a will as to its form depends upon the observance of law in force at the time it is made. Nasic *ormalities: 6urpose %he ob0ects of the solemnities surrounding the execution of will are:

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%o close the door against bad faith and fraud8 %o avoid substitution of wills and testaments8 and %o guarantee their truth and authenticity.

COMMON &ORMALITIES ,. E(e * 7ill must 2e in W itin) #t may be handwritten, typed or printed and the material on which it is written is immaterial. /uncupative Gills (oral wills are not allowed. 9xcept: pursuant to lex loci celebrationis-a will executed by a *ilipino abroad can be made valid as long as it is valid in the place where it was executed. .. E0ecuted in ! l!n)u!)e o di!lect <no7n to t"e test!to . (ere translation to the testator ma+es the will void #f the testator resides or is a neighbor in certain locality, it can be presumed that he +nows the language or dialect in said locality. (Abangan v. Abangan, 4' 6hil 47B "uch presumption is only prima facie, and therefore the contrary may be proved. %he fact that the testator +new the will,s language need not appear on the face of the will. 4extrinsic evidence is allowed to prove this. S$ECIAL &ORMALITIES: A. Not! i!l Wills 8O din! * Wills: %hat which requires, among other things, an attestation clause and ac+nowledgment before a notary public. Re;ui ements fo 1!lidit*

!:

Su2sc i%tion refers to the manual act of testator and also of his instrumental witnesses of affixing their signature to the instrument. 6urposes: !. #dentify the testator8 and '. Authenticate the document. ?ow subscribed: i. Subscription by the testator Where to sign: a At the logical end -= 9nd of the willP means the logical end which is the point where the testamentary disposition terminates and not the physical end of the will. Purposes: !. '.

..

%o show that the testamentary purpose therein is expressed is completed8 %o prevent any opportunity for fraud or interpolations between the written matter and the signature8 and %he position of the signature is an internal evidence of finality or completion of said will.

3n the margin of each and every page if the will is contained in several pages

!4

Failure to sign: -#nvalidate the will unless the will is a ! page will and the other page contains the ac+nowledgment or attestation clause

i.

Manner of Signing:

"igning with the same full signature -ideally, the signatures at the logical end and at the margins must be identical -A complete signature is not essential to the validity of a will, provided the part of the name written was affixed to the instrument with intent to execute it as a will. )ustomary signature such as the initials Any other mar+s affix by the testator with animus testandi "ufficient even if at the time of placing, the testator +new how to write and is able to do so. #t is a valid signature if it is the testator,s usual signature or at least one of the ways by which he had signed his name before. %estator can sign with his thumbmar+ or initials or even a rubber stamp or an engraved dye, provided he intends the same to be his signature. %estator can sign with mere cross if he intends that to be his signature.(<Abaya v. Salamero, !7 6hil .278-eario v. -eano .7 m6hil B!' Nut when somebody else writes the testator,s name for him,, the mere placing by the testator of a cross after his name, without her being in the will a statement that somebody had signed for the testator, is not sufficient and the will be considered void, not because of the cross, but because of the failure to state the signing of name by somebody else. (Farcia v. -a )uesta, D7 6hil 41D

ii. iii.

ii.

Signature by Another

Cequisites: !.

#t is the testator,s name that must have been written by the third person&appointee8 - the appointee must write the testator,s name at the logical end and margin of each and every page thereof -the law does not require that the name of the agent be li+ewise written '. %he testator,s name must have been written in his presence8 .. %he third person must have affixed the testator,s name at his express direction8 -=9xpress direction =means that the delegate must be expressly authoriIed to do so. (ere +nowledge on his part that the will is being signed in his behalf is not sufficient. 4. %his fact should be stated in the attestation clause8 and failure to state such fact shall invalidate the entire will

!2

2.

#t should ta+e place in the presence of the instrumental witnesses.

%he person writing for the testator must not be one of the . witnesses but if there are more than . witnesses, one of them may sign for the testator.

2:

Attest!tion !nd Su2sc i%tion %he act of three or more witnesses of witnessing the execution of the will in the presence of the testator and of one another in order to see and ta+e note mentally that such will has been executed in accordance with the requirements prescribed by law. it is the act of the witnesses and not that of the testator. %he witness must be competent and qualified =in the presenceP does not necessarily require actually seeing, but possibility of seeing without any physical obstruction. Ghen a person merely has his bac+ turned , the signing is done in his presence since he could have cast his eyes in the proper direction. (6aras #n case the testator is blind, the presence may be complied with if the signing or action is within the range of the other senses li+e hearing, touch, etc of the testator. (Available "enses %est Test s Used: !."ight-actually saw each other signing the will '.6osition-it is enough that they saw one another signing the will by changing their body position or shifting their gaIe without any physical difficulty or obstruction ..@nowledge-it is enough that they +new the act of signing. ?owever, such test is the least reliable since it would not forestall fraud or bad faith 6urposes: !. #dentification of the instrument8 '. 6rotection of the testator form fraud and deception8 .. %he ascertainment of the testamentary capacity of the testator.

#f the require number of attesting witness are competent, the fact that an additional witness who was incompetent also attested the will, cannot impair its validity. #n case the testator is blind, the presence may be complied with if the signing or action is within the range of the other senses li+e hearing, touch, etc of the testator. (Available "enses %est #mmaterial in what order the acts are performed provided the signature or ac+nowledgment by the testator and the attestation of the witnesses be accomplished in one occasion, and as part of one transaction. (%olentino Attest!tion (s. Su2sc i%tion

ATTESTATION An act of the senses #t is a mental act %he purpose is to render available proof during probate of will, not only of the authenticity of the will, but also of its due execution.

SUBSCRI$TION An act of the hand #t is a mechanical act %he purpose is identification

!B

c:

M! )in!l Si)n!tu es Feneral Cule: %he testator or the person requested by him to write his name and the instrumental witnesses must affix their signature on the left margin of each and every page of the will. 9xceptions: #n the last page when the will consists of two or more pages8 Ghen the will consists of only one page8 Ghen the will consists of two pages, the first of which contains all the testamentary dispositions ands 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. Ghenever the marginal signatures are required, although the law says =left marginP, the purpose is served if they are on the right, top or bottom margin for the only purpose is to identify the pages used,. And thus prevent fraud. %he word =leftP is merely directory. *ailure to have the marginal signatures of the testator and of the witnesses, when needed, is a fatal defect and renders the entire will void. (9state of %ampoy v. Alberatine,--!4.'',*ebruary '2, !DB7 !. '. ..

%he witness can sign with a cross or a mar+, provided tat such is the usual signature, and provided further, that he really +nows how to read and write. %he 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 0ustify denial of probate.(#casiano v. #casiano, FC /o. -!1D7D,Oune .7, !D74 %he law refers to page and not to sheet or leaf or folio, so every page used in the will should be signed on the left margin.

d:

$!)in!tion#Num2e in) Gritten correlatively in letters placed on the upper part of each page. Purpose: to guard against fraud, and to afford means of preventing substitution or of detecting the loss of any of its pages.(-opeI v. -iboro, 1! 6hil 4'D %his is not necessary when the will is written on one sheet only.

#n a notarial will, the pages must be numbered correlatively in the upper corner (left&right .

%he pages containing the attestation clause and ac+nowledgment need not be numbered since strictly spea+ing they are not part of the testamentary disposition. "ubstantial compliance with the statutory requirement is sufficient, thus, the pages need not be correlatively in letters such as =oneP, =twoP or =threeP but may be numbered by mere alphabetical letters or by Arabic /umeral such as =6age !P,P6age 'P or 6age .P or by any form of identification more trustworthy than the conventional numeral words or characters. e: Attest!tion Cl!use

!7

memorandum or record of facts wherein the witnesses certify that the will has been executed before them, and that it has been executed in accordance with the formalities prescribed by law. #t must be signed by the witness, not by the testator as it is a declaration made by the witnesses. #f the testator signed it, is shall be considered as mere surplusage. (Abangan v. Abangan,47 6hil 47B %he attestation is, properly spea+ing, not part of the will itself, but the same may be incorporated into the will itself. 3r it may be written on a separate page. ($illaflor v. %obias,2. 6hil 7!4 $u %oses:

1.

#ncase of failure of memory of the witnesses or in case such witnesses are no longer available, such parts may still be proved8 requisites for the execution of the will8

2. %o render available proof that there has been compliance with the statutory 3. And to minimiIe the commission of fraud or undue influence.
Contents#Re;ui ements: !. )ertify number of pages used upon which the will is written. -the purpose of which is to prevent intercalation or removal of any of the pages thereof -*ailure to state said will invalidate the attestation clause and the entire instrument -however, even if number of pages is omitted in the A) N;% if there is an ac+nowledgment clause which states the number of pages or the will itself mentioned such number of pages, it may still be considered valid applying the -iberal #nterpretation of the law. (%abuada vs. Cosal, FC /o. --.B7..,/ovember 2,!D1' ("an Neda Ceviewer '.the fact that the witnesses saw the testator signed the will and in every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses. -absence of such will render the will invalid - Ghen the testator expressly caused another to sign the former,s name, this fact must be recited in the attestation clause. 3therwise, the will is fatally defective. (Garcia vs. Lacuesta ! Phil "# $ ..that the witnesses themselves signed the will in the presence of the testator and of one another. #n the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect +nown to the testator since it does not form part of the testamentary disposition. %he language used in the attestation clause li+ewise need not even be +nown to the attesting witnesses. Art. 172 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses. ()aneda vs. )A ''' ")CA 71! #t must be signed at the bottom of the Attestation )lause and at the margin of every page of the will by all the instrumental witnesses. %he purpose of which is to prevent belated insertion to the A) and to close the door against any fraud thereto.

Effects of defects o im%e fections in t"e Attest!tion Cl!use:

General %ule: %he will shall be invalidated if the defect of the attestation clause: !. Foes into the very essence of the clause itself8

!1

'. ..

)onsists in the omission of one, some or all of the essential facts which cannot be established by physical examination of the will itself, the defect is substantial in character, as a consequence of which the will is invalidated.

!.

'.

&'ceptions: 5octrine of -iberal #nterpretation *or the 5octrine to apply, the following requisites must be present: %he wil# must have been executed and attested without bad faith, forgery, fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein 8 #t must be proved that the will was in fact executed and attested in substantial with all the requirement of Art. 172 of the /)). Ac<no7led)ment -5one before a notary public or person authoriIed to administer oath - the act of notariIing it will not ma+e it a public document&instrument because the presumption of regularity of execution is not applicable to a will. -%he notary public before whom the will was ac+nowledged cannot be considered as the third instrumental witness since he cannot ac+nowledge before himself his having signed the will. #f the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. %o allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Arts. 172 and 17B. ((ru) vs. *illasor +" S(%, -.$ - it may be done by the instrumental witnesses and the testator on several occasions. -the absence of such will render the will void S%eci!l C!ses

f:

): 1.

Blind Testator / 0lin1ness 2ill not 1ivest the testator of his testamentary capacity / the 2ill e'ecute1 by him shall be rea1 to him t2ice (5ouble-reading requirement a. first, by one of the subscribing witnesses8 and b. secon1, by the notary public before whom the will is ac+nowledged. Art. 171 applies not only to blind testators but also to those who, for one reason or another are incapable of reading their wills (e.g. poor, defective or blurred vision . #n a case where the testator did not read the final draft of the will, but the lawyer who drafted the document, read the same aloud in the presence of the testator, . witnesses, and notary public, the )ourt held that the formal imperfections should be brushed aside when the spirit behind the law was served though the letter was not. (,lvara1o vs. Gaviola 334 S(%, -"5$

2.

Deaf or deaf-mute testator 6eaf/mutism per se is not a groun1 for unsoun1ness of min1. - 7estator must be given opportunity to personally rea1 the 2ill if literate. - if not possible, designation of ' persons to read the will and communicate to him, in some practicable manner i.e sign language, the contents thereof. "uch compliance with this provision must be proved in the probate proceedings. And this is why it would seem wise to state either in the notarial ac+nowledgment or in the attestation clause itself that the said Article has been complied with. Ret it is not essential to do so, as long as sufficient proof is presented (6aras Witnesses to Wills ,. >u!lific!tions 8A.=.? !nd A.=.,: At the time of attesting, the witness must be competent and disinterested and must be:

1. at least !1 years of age. 2. of sound mind at the time of execution of the will. !D

"ame concept of soundness of mind as that of execution of a will

3. able to read and write

this is necessary because they are to attest to the ma+ing of the will

4.

must not be blind, deaf or dumb A blind cannot be a witness because he cannot perceive or observe thus, he cannot attest to the will

5. be residents of the 6hilippines

the purpose of which is for the courts to acquire 0urisdiction (issuance of subpoenas whenever they will be required to testify especially in probate proceedings. Inte ested 7itness A witness to a will who is incapacitated from succeeding from the testator by reason of a devise&legacy or other testamentary disposition therein in his favor, or in favor of his spouse, parent, or child. 9ffects: a b his competence as a witness subsists. %he devise or legacy in his favor or in favor of his spouse, parent or child shall be void.

9xception: Ghen there are three other competent witnesses to such will. 9ffect of "ubsequent #ncompetency: #f the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequent incompetent shall not prevent the allowance of the will. %he competency of a witness to a will is to be determined as of the time of execution of the instrument and not as of the time when the will is presented for probate.

.. !

Dis;u!lific!tions 8A.=.,: not domiciled in the 6hilippines however, when the will is executed in a foreign country, the witnesses need not be domiciled in the 6hilippines those convicted of: a falsification of a document b per0ury c false testimony /otary cannot be a witness a mere charge on the estate of the testator for the payment of debts due at the time of the testator,s death does not prevent his creditors from being competent witnesses to his will 9ffect of 6ardon:

'

a b

#f the pardon was given because of man,s innocence, as when somebody else had been proved to be really guilty person, he can now act as a witness to a will. %his is because there is no metal dishonesty. (6aras #f the absolute pardon was an act of 9xecutive grace of clemency, it is submitted that the disqualification remains, for even an absolute pardon does not remove civil consequences. %he would-be witness still has a taint of mental dishonesty.

B. +olo) !%"ic Wills -

3ne executed by the testator himself, writing, dating and signing it by his own hand, without the attestation of any .rd person

,.

Re;uisites fo 1!lidit*

'7

a. b. c. d.

entirely written by the hand of the testator8 entirely dated by the hand of the testator8 and entirely signed by the hand of the testator. Article 1!7 does not require that the testator must sign he will with his full signature. 9xecuted in a language or dialect +nown to the testator. %he law exacts literal compliance with these requirements. %he 5octrines of liberal interpretation and substantial compliance cannot be applied.

$u %oses: i. %op safeguard the authenticity of the will8 ii. %o deter or prevent any possible insertion or interpolation buy other or any possible forgery.

..

&o m !. %he will must be signed by the testator himself. 8o2: a full signature b customary signature %he full or customary signature is needed8 hence, the full name is not required. "ymbols or seals not allowed but a customary signature is enough %he will can be signed long after it was written. Nut the signing and the date must correlate. A date placed on the will long after the signing is considered a false date. %he use of mar+s will not invalidate the will as long as it can be shown that is the customary signature of the testator. a At the logical end only even if it is contained in several pages '. #t must be dated -the date of execution is material in a holographic will. %he date contained therein is presumed to be the date of execution. -#t must be certain, definite and identifiable or at least ascertainable - if such is undated, the entire instrument is void - %he law does not specify where the date must be written, what is important is that it must be dated. %he date must be in the handwriting of the testator, hence, if printed the whole will is null and void. Feneral Cule: %he date must be complete, that is, it 0ust contain the year, month and day of its execution. ?owever, when here is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the will is established and the only issue is whether or not the date is =*eb.&B! appearing on the holographic will is a valid compliance with Article 1!7 of the /)) and thus, probate of the holographic will should be allowed under the substantial compliance principle. (#n the (atter of #ntestate 9state of Andres de Oesus and Nibliana Coxas de Oesus, FC /o. -.1..1, Oan.'1,!D12

Where:

..

%he language must be +nown to the testator. #t is not sufficient that it be interpreted to him&her. %he will must be entirely written in the hand of the testator himself. if it is typewritten or printed ,in a computer print-out or mimeographed, it is void.(6aras

4.

'!

2. %here must be anuimus testandi. B.#t must be executed at the time that holographic will as allowed, not before, the time of death being immaterial. (6aras Inse tions9 Alte !tions !nd E !su es At anytime after the execution of the will, the testator may ma+e the some alterations, erasures or insertions but the same must be authenticated. Githout authentication, the provision is rendered null and void but the other disposition may remain valid. #f there is one testamentary disposition and there is alteration or erasure and such was not authenticated the entire will is declared void. the holographic Gill in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Gill is voided or revo+ed for the simple reason that nothing remains in the Gill after that which could remain valid. (@alaw v. Celova,!.' "'.7 #n the case of holographic wills, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself (A0ero v. )A,"ept.!2,!DD4 $ostsc i%t Dis%ositions %hese are testamentary dispositions appearing after the signature of the testator. #deally, it must be dated and signed by the testator #f there are several 6" dispositions, they must be individually signed and dated . ?owever, if previous 6"5 were not dated, the date of the subsequent ones is presumed to be the date of the previous 6"5s undated. Any postscript dispositions not signed by the testator shall be void even if such were dated

Codicils !nd inco %o !tion 2* efe ence ,: After the testator has already made a will, a subsequent instrument mortis causa may either be:

! ne7 7ill ma+es independent and distinct dispositions from the prior will ! codicil - literally +nown as =little willP -supplement or addition to a will, annexed to be ta+en as part thereof by which any disposition made in the original will is: a explained b added to c altered d modified - ;pon the death of the testator, both the will and the codicil must be submitted for probate. o a b c Purpose- to explain, add, alter or revo+e a prior will. Formalities- %o be effective, it must be executed as in the case of a will. &ffects- #ts execution has the effect of republishing the will as modified.

.:

Inco %o !tion 2* Refe ence )ontemplates only lists of properties, boo+s of accounts, and inventories. 6rovisions which are in the nature of testamentary dispositions must be contained in the will itself. Re;uisites fo 1!lidit* !. %he document or paper referred to in the will must be in existence at the time of the execution of the will8 - /o incorporation of future document

''

'. .. 4.

%he will must clearly describe and identify the same, stating among other things the number of pages thereof8 #t must be identified by clear and satisfactory proof as the document or paper referred to therein8 #t must be signed by the testator and the witnesses on each and every page, except in case of voluminous boo+s of account or inventories.

provisions which are in the nature of testamentary dispositions must be contained in the will itself. 6arole evidence may be admitted to prove the identity of the document as incorporated. #n case of holographic will, there can be no incorporation by reference if not entirely written, dated and signed by the testator.

TUA: )an a prior will incorporate by reference a codicil latter on madeL /o, because a codicil is not yet in existence at the time of ma+ing of the will.

Re(oc!tion of Wills !nd Test!ment! * Dis%ositions Re(oc!tion -An act of the mind, terminating the potential capacity of the will to operate at the death of the testator, manifested by some outward or visible act or sign, symbolic thereof. "uch right to revo+e a will cannot be waived or restricted. ,. orms

Re(oc!tion 2* Im%lic!tion of L!7 -either because of change in the status or condition of the testator or a change in the relation between the testator and the testamentary heirs.

i.
-

ii. iii. iv. v. vi. vii.

..

preterition revo+es the institution of heir8 when a compulsory heir in the direct line is omitted in the inheritance 0udicial action for recovery of debt revo+es a legacy of credit&remission of debt8 transformation, alienation, or loss of bequeathed property revo+es a legacy of such property8 legal separation revo+es testamentary provisions in favor of the offending spouse8 act of unworthiness by an heir, devisee&legatee revo+es testamentary provisions in his favor8 if both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and testamentary dispositions made by one in favor of the other are revo+ed by operation of law (Art. 44, *amily )ode 8 and void ab initio or annulled marriages revo+e testamentary dispositions made by one spouse in favor of the other (Art. 27, *amily )ode .

Re(oc!tion 2* Su2se;uent Will o Codicil Ny some will, codicil, or other writing, executed as provided in case of wills, which may either be: a. 9xpress 4 when there is a revocatory clause expressly revo+ing the previous will or a part thereof i. subsequent will ii codicil #f the revocation is partial, it will have the effect of republishing the will as of the date of the codicil with respect to all parts not revo+ed #f the revocation is total, there is no republication iii./on-testamentary writing executed as in case of wills #n the three instances above-mentioned, the revocatory clause must be clearly and unmista+ably manifest the intention of the testator to revo+e the previous will.

b.

#mplied 4 when the provisions thereof are partially or entirely inconsistent with those of the previous will

'.

Cequires comparison of two wills executed by the testator at different times. As much as possible, they should be harmoniIed. ?owever, when there are serious irreconcilable differences, the latter will shall prevail as it is expressive of the latter intention of the testator. Ghile express revocation may be effected by a subsequent will, or a codicil, or a nontestamentary writing executed as provided in case of wills, implied revocation may be effected only by either a subsequent will, or a codicil. ("an Neda (emory Aid

/.

Re(oc!tion 2* O(e t Act of Mutil!tion#Dest uction !: +o7 M!de -by burning, tearing, cancelling or obliterating the will %e9uisites:&lements:

!. '. ..

4.

At the time of revocation, the testator must be of sound mind. %he testator must possess Animus Cevocandi. %here 0ust be intention to revo+e the will. %his is the Su25ecti(e $"!se of the act of revocation %here must be the act of burning, tearing, cancelling or obliterating the will performed by the testator or the .rd person in the presence of our under the express direction of the testator. %his is the O25ecti(e $"!se. Noth the sub0ective and ob0ective phase must be completed. 9ither the cancellation or obliteration may result to partial or total revocation. -#f it is cancelled&obliterated-total -3nly a provision-partial )ancellations and obliterations must be authenticated in cases of holographic wills. $ esum%tion of Re(oc!tion !. Ghen the will cannot be found following the death of the testator and it is shown that it was in the testator,s possession when last seen, the presumption is , in the absence of other evidence, that he must have destroyed it animo revocandi. '. Ghenever it is established that the testator had in his possession or had ready access to the will, but upon his death it cannot be found or located, the presumption arises that it must have been revo+ed by him by an overt act animo revocandi. .. Ghere it is shown that the will was in custody of the testator after its execution, and subsequently, it was found among the testator,s effects after his death in such a state of mutilation, cancellation or obliteration as represents a sufficient act of revocation, it will be presumed in the absence of evidence to the contrary, that such act was performed by the testator with the intention of revo+ing the will Doct ine of De%endent Rel!ti(e Re(oc!tion !. A revocation sub0ect to a condition does not revo+e a will unless and until the condition occurs. %hus, where a testator =revo+esP a will with the proven intention that he would execute another will, his failure to validly ma+e a latter will would permit the allowance of the earlier will. '. Ghere the act of destruction is connected with the ma+ing of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition8 and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force ($da. 5e (olo vs. (olo D7 6hil .7 . Re(oc!tion 2* mist!<e A revocation of a will based on a false cause or an illegal cause is null and void. %hus, where a testator by a codicil or later will, expressly grounding such revocation on the assumption of

'4

fact which turns out to be false, as where it is stated that the legatees&devisees named therein are dead, when in fact, they are living, the revocation does not ta+e effect. Effects of Re(oc!tion !. #f the revocation is total, the prior will shall have no force and effect and if the latter will does not dispose of the estate, the estate shall be distributed by intestacy. #t may happen that the revo+ing will may redistribute the hereditary estate, in which case the latter will shall prevail. '. #f it concerns only one provision, both earlier and latter wills must be submitted for probate. .. A valid revocation affects only those provisions which are contingent on death. 3therwise, they shall not be affected. 4. A validly revo+ed will should not be submitted for probate. A Cevocation based on false cause shall be null and void.

Re(oc!tion M!de Outside t"e $"ili%%ines a Ny Cesident *ilipinos-#t must be in accordance with 6hilippine laws. b Ny /on-Cesident i. #n the 6hilippines- 6hilippine law applies ii. 3utside of the 6hilippines- lex loci celebrationis governs Re(oc!tion (. Nullt* Re(oc!tion Act of the testator 6resupposes a valid act Nullit* 6roceeds from the law #nherent in the testament be it an intrinsic or extrinsic defect #nvo+ed after testator,s death by the heirs )an be disregarded by the heirs through voluntary compliance

%a+es place during the lifetime of the testator %estator cannot renounce the right to revo+e

Re%u2lic!tion !nd Re(i(!l of Wills ,. Re%u2lic!tion of Wills a )oncept - %he act of the testator whereby he reproduces in a subse9uent 2ill the dispositions contained in a previous will which is void as to its form, or he executes a co1icil to his will. -#ts purpose is to cure the will of its formal defects or that a will is given effectivity anew. @inds: !. 9xpress&thru re-execution- if the testator reproduces in a subsequent will dispositions contained in a previous one which is void as to its form.

'2

%he will is deemed executed at the date of republication '. )onstructive-if the testator for some reason or another executes a codicil to his will. c 9ffects !. '. .. )odicil revives the previous will %he old will is republished as of the date of the codicilV ma+es it spea+, as it were, from the new and later date. A will republished by a codicil is governed by a statute enacted to the execution of the will, but which was operative when the codicil was executed. A prior will which is void because of testamentary capacity of the testator cannot be republished. Cemedy-ma+e a new will

..

Re(i(!l a )oncept %he restoration to validity of a will previously revo+ed by operation of law b 6rinciple of #nstanter %he express revocation of the first will renders it void because the revocatory clause of the second will, not being testamentary in character, operates to revo+e the previous will instantly upon the execution of the will containing it. c Cevival of #mpliedly Cevo+ed Gill / #n implied revocation, the first will is deemed revived by operation of law on the principle that testacy is preferred over intestacy.

ALLOWANCE AND DISALLOWANCE O& WILLS $ROBATE !. "#$"%&T %o probate a will means to prove before some officer or tribunal vested with law or with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed attested and published as required by law, and that the testator was of sound and disposing mind at the time of execution of said will.

!!. &'!$"!&(%S )#*%'$!$) &'#BAT% !. '. 6robate is mandatory for reasons of public policy. 6robate proceedings are #mprescriptible. /ote: 9ven if there has been intestate proceeding that has already been decided as long as there is a valid will later on found and produced, probate of said will may still be made. As a 0udicial proceeding, probate is a proceeding in rem. #t is binding against the whole world whether or not one participated in the said proceedings. %he notice here is by publication.

..

!!!. $%"%SS!T+ # &'#BAT% /o will shall pass either real or personal property unless it is proved and allowed in accordance with the Cules of )ourt In "a,i-a .. "ourt of Appeals9 t"e Cou t uled t"!t: @! 7ill is essenti!ll* !m2ul!to *A !t !n* time % io to t"e test!to Bs de!t"9 it m!* 2e c"!n)ed o e(o<edA !nd until !dmitted to % o2!te9 it "!s no effect 7"!te(e !nd no i)"t c!n 2e cl!imed t"e eunde 9 t"e l!7 2ein) ;uite e0%licit: CNo 7ill s"!ll %!ss eit"e e!l o %e son!l % o%e t* unless it is % o(ed !nd !llo7ed in !cco d!nce 7it" t"e Rules of Cou t.B@ D . Tolentino9 !n eminent !ut"o it* on ci(il l!79 !lso e0%l!ined t"!t @2efo e !n* 7ill c!n "!(e fo ce o (!lidit* it must 2e % o2!ted. To % o2!te ! 7ill

'B

me!ns to % o(e 2efo e some office o t i2un!l9 (ested 2* l!7 7it" !ut"o it* fo t"!t %u %ose9 t"!t t"e inst ument offe ed to 2e % o(ed is t"e l!st 7ill !nd test!ment of t"e dece!sed %e son 7"ose test!ment! * !ct it is !lle)ed to 2e9 !nd t"!t it "!s 2een e0ecuted9 !ttested !nd %u2lis"ed !s e;ui ed 2* l!79 !nd t"!t t"e test!to 7!s of sound !nd dis%osin) mind. It is ! % oceedin) to est!2lis" t"e (!lidit* of t"e 7ill.@ Mo eo(e 9 t"e % esent!tion of t"e 7ill fo % o2!te is m!nd!to * !nd is ! m!tte of %u2lic %olic*. 8L!s!m (s. Umen)!n9 '.R. No. ,D=,4D Decem2e D9 .??D:

!*. &'#BAT% # A /!((: /0# 1A+ !(%2 A. Ante (ortem 4 that which is had during the lifetime of the testator, the testator himself files the petition for probate of the will. #n this case, a will admitted to probate may still be revo+ed.

N.

6ost (ortem 4 after the testator,s death, the following may file the petition for probate: a. 9xecutor: named by the testator in the will. #f he fails or refuses, it shall be filed by the actual custodian of the will by simply delivering the same to the custody of the court. b. Any person who proves interest8 !. %o the testator '. %o the will .. %o the estate "trangers cannot participate or intervene in probate proceedings.

*. 1ATT%'S '%S#(*%D !$ &'#BAT% &'#"%%D!$)S 9Q%C#/"#) $A-#5#%R a. b. c. d. %estamentary capacity of the testator ie. "oundness of mind, age. 5ue execution of the will. -Ghether or not there is presence of any of the vices of consent. Ghether or not it complies with all the formalities of a notarial or a holographic will. #dentity of the will itself or the will is genuine ((Fallanosa v. Arcangel, 1. " B7B -Ghether or not it is the same will executed by the testator. %his shows that Art. 1.D is /3% exclusive

A probate court cannot resolve questions pertaining to #/%C#/"#) $A-#5#%R of will. %his is only resolvable after the extrinsic validity of will has been established. ?owever, there may be instances when the probate court may immediately delve on the intrinsic validity of a will as when: !. %he will is void on its face that is: a. Ghen it results to total preterition b. Ghen all property disposed of in the will do not belong to the testator8 c. Ghen there is agreement among heirs to dispense with the probate of the will. /ote: these instances must be strictly construed and the minors and incapacitated must be fully represented and their rights protected. /epomuceno: %he probate of a will might become an idle ceremony if on its face it appears to be intrinsically void8 where practical considerations, demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue /3%9: A void will cannot be ratified. T"e int insic (!lidit* is !not"e m!tte !nd ;uestions e)! din) t"e s!me m!* still 2e !ised e(en !fte t"e 7ill "!s 2een !ut"entic!ted. T"us9 it does not necess! il* follo7 t"!t !n e0t insic!ll* (!lid l!st 7ill !nd test!ment is !l7!*s int insic!ll* (!lid. E(en if t"e 7ill 7!s (!lidl* e0ecuted9 if t"e test!to % o(ides fo dis%ositions t"!t de% i(es o im%!i s t"e l!7ful "ei s of t"ei le)itime o i)"tful in"e it!nce !cco din) to t"e l!7s on succession9 t"e unl!7ful % o(isions#dis%ositions t"e eof c!nnot 2e )i(en effect. T"is is

'7

s%eci!ll* so 7"en t"e cou ts "!d !l e!d* dete mined in ! fin!l !nd e0ecuto * decision t"!t t"e 7ill is int insic!ll* (oid. Suc" dete min!tion "!(in) !tt!ined t"!t c"! !cte of fin!lit* is 2indin) on t"is Cou t9 7"ic" 7ill no lon)e 2e distu 2ed. Not t"!t t"is Cou t finds t"e 7ill to 2e int insic!ll* (!lid9 2ut t"!t ! fin!l !nd e0ecuto * decision of 7"ic" t"e %! t* "!d t"e o%%o tunit* to c"!llen)e 2efo e t"e "i)"e t i2un!ls must st!nd !nd s"ould no lon)e 2e ee(!lu!ted. &!ilu e to !(!il of t"e emedies % o(ided 2* l!7 constitutes 7!i(e . And if t"e %! t* does not !(!il of ot"e emedies des%ite its 2elief t"!t it 7!s !)) ie(ed 2* ! decision o cou t !ction9 t"en it is deemed to "!(e full* !) eed !nd is s!tisfied 7it" t"e decision o o de . As e! l* !s ,E,=9 it "!s 2een decl! ed t"!t %u2lic %olic* !nd sound % !ctice dem!nd t"!t9 !t t"e is< of occ!sion!l e o s9 5ud)ments of cou ts must !t some %oint of time fi0ed 2* l!7 2ecome fin!l ot"e 7ise t"e e 7ill 2e no end to liti)!tion. !nteres rei publicae ut finis sit litium F t"e (e * o25ect of 7"ic" t"e cou ts 7e e constituted 7!s to %ut !n end to cont o(e sies. To fulfill t"is %u %ose !nd to do so s%eedil*9 ce t!in time limits9 mo e o less ! 2it ! *9 "!(e to 2e set u% to s%u on t"e slot"ful. T"e onl* inst!nce 7"e e ! %! t* inte ested in ! % o2!te % oceedin) m!* "!(e ! fin!l li;uid!tion set !side is 7"en "e is left out 2* e!son of ci cumst!nces 2e*ond "is cont ol o t" ou)" mist!<e o in!d(e tence not im%ut!2le to ne)li)ence. 8Do ot"eo (s. CA '.R. No. ,?=4=, Decem2e =9 ,EEE: Atty. (.-.Ceyes: ! %he probate court has no authority to pass upon status of person as the same should be made in a separate proceeding, however if by error they were resolved the decision is considered merely provisional& temporary. Tuestions of title to property cannot be passed upon in the probate court. %he 0urisdiction of the probate court merely relates to matters having to do with the settlement of the estate and the probate of wills of deceased persons, and the appointment and removal of administrators, executors, guardians and trustees. %he question of ownership is as a rule, cannot be resolved with finality. %hus for the purpose of determining whether a certain property should be included in the inventory of the estate proceeding, the probate court may pass upon the title thereto, but such is provisional and is sub0ect to the final decision in a separate action to resolve title %he probate of a will is not a bar to the probate of a codicil %he probate of a will is not a bar to the allowance of another will subsequently discovered, provided that the latter is proved to be posterior to the one already probated, or if it is earlier, that the ' wills can stand together. A grant of letters of administration in intestate proceedings is not a conclusive ad0udication of intestacy, so as to bar the probate of a will subsequently discovered. "ub0ect to appeal, a 0udgment allowing the will is considered final and executory and therefore conclusive as to the formalities and due execution thereof.

'

*!. 3U'!SD!"T!#$ A$D &'#"%DU'% A court acquires 0urisdiction to probate a will when it is shown that:8 A person has executed a will or has died leaving a will #n the case of a resident, that he resides or died in the province where the court exercises territorial 0urisdiction. #n the case of a non-resident, that he has estate in the province where the court is situated %hat the testament or last will has been delivered to the court and is in the possession thereof Rules in $ esent!tion fo $ o2!te After executing the will, the testator may deposit such to a . rd person to hold for him but it is always sub0ect to his control A person having custody of a will who neglects to deliver the same to the court without reasonable cause, after notice by the court to do so, may be imprisoned until he delivers the will Contents of t"e $etition: ! ' . 4 2 %he fact of the testator,s death, indicating the time and place %he fact that the deceased left a will, attaching a copy of such %he fact that the will was executed according to law Ghether the person named as executor consents to act as such, or renounces his right to become an executor %he names, ages and residences of the heirs, legatees and devisees of the decedent

A. N. ). 5.

'1

B 7 1

%he probable value and character of the property of the estate %he name of the person whose appointment as executor is prayed for #f the will has not been delivered to the court, the name of the person having custody thereof

3nly persons interested in the allowance or disallowance of the will should be allowed to intervene in the probate. A notice of hearing shall be sent to all the parties concerned. Githout such, the proceedings shall be void and should be annulled %he following must be proved at the hearing of the probate of the will: ! ' . %he fact of the testator,s death, in post mortem probate 6ublication of notice of hearing 9xecution of the will with the formalities required by law Unde t"e Ci(il Code9 due e0ecution includes ! dete min!tion of 7"et"e t"e test!to 7!s of sound !nd dis%osin) mind !t t"e time of its e0ecution9 t"!t "e "!d f eel* e0ecuted t"e 7ill !nd 7!s not !ctin) unde du ess9 f !ud9 men!ce o undue influence !nd t"!t t"e 7ill is )enuine !nd not ! fo )e *9 t"!t "e 7!s of t"e % o%e test!ment! * !)e !nd t"!t "e is ! %e son not e0% essl* % o"i2ited 2* l!7 f om m!<in) ! 7ill. 8Do ot"eo (s. CA9 '.R. No. ,?=4=, Decem2e =9 ,EEE: /o lost or destroyed will shall be proved unless its execution and validity has been established and proved to be in existence at the testator,s death, or shown to have been accidentally or fraudulently destroyed without his +nowledge, nor unless its provisions clearly and distinctly proved. *!!. &'#DU"T!#$ # /!T$%SS%S #n the probate of a holographic will, it shall be necessary that at least one witness who +nows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. #f the will is contested, at least three of such witnesses shall be required. #n the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (Art. 1!! Gitnesses to the execution of the will should be presented. %he number and character of witnesses to be presented depends on each circumstance *!!!. % %"TS # A((#/A$"% # /!(( "ub0ect to the right of appeal, the allowance of the will either during the lifetime of the testator or after his death, shall be conclusive as to its due execution 3nce a decree of probate becomes final in accordance with the rules of procedure, it is res ju1icata A final decree of probate is conclusive as to the due execution of the will (i.e., as to the will,s extrinsic or formal validity only !4. D!SA((#/A$"% # /!((S a. b. %he law enumerates the different grounds for disallowing wills. /o other ground than those provided may serve as a reason for denying probate of the will. Frounds: 8A t. =/E9 CC: ! #f the formalities required by law have not been complied with. ' #f the testator was insane or otherwise mentally incapable of ma+ing a will, at the time of its execution. -Ghen the ground relied upon is vitiation of consent, the same is inconsistent with unsoundness of mind. 3ne is exclusive of the other. . #f it was executed through force or under duress, or the influence of fear or threats. -$ices in consent render the will void unli+e in ordinary contracts where they are merely considered voidable. 4 #f it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person. *actors )onsidered: a. *amily Celations b. 9conomic 5ependence c. (ental Gea+ness d. "piritual Celations

'D

e. 2 B

%estator is under the moral ascendance of some other person and said ascendance has been abused.

#f the signature of the testator was procured by fraud #f the testator acted by mista+e or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto

/3%9: #f any of these grounds is proved, the will shall be void c. d. e. %he grounds are matters involved in formal validity. ?ence, once the probate becomes final, it forecloses any challenge on any of the grounds provided above. A will should not be disallowed on dubious grounds. $oluntary Cecognition of an illegitimate child made in a will is immediately effective. %he will may serve as proof of filiation under the category of private authentic writing. ?owever, if the ground for nullity is vitiation of consent, voluntary recognition is also void.

INTRINSIC 1ALIDIT6 8Settlement $"!se: INSTITUTION O& +EIRS !. 1%A$!$) -%his is a testamentary act by the testator in designating persons who are to succeed his transmissible rights and obligations. -6roperty here is understood in its generic sense, and is limited by: a legitime b corpse CA .4D: A person may validly grant to a licensed physician, surgeon, +nown scientist, or any medical or scientific institution, including eye ban+s and other similar institutions, authority to detach at any time after the grantorWs death any organ, part or parts of his body and to utiliIe the same for medical, surgical or scientific purposes c special law (e.g. )AC6 -%his applies as well to institution of devisees and legatees -%his applies to the *ree 5isposable 6ortion (*56 only. T" ee 'ene !l $ inci%les 'o(e nin) Institution of +ei s !. E;u!lit* 8eirs institute1 2ithout 1esignation of shares shall inherit in e9ual parts. (,rt. #"4$ -#t applies when two or more persons are instituted or named by the same person in the same inheritance. 9xample: =# bequeath J of my hereditary estate to ?iede and CachelleP %hus, ?iede shall inherit H of the J while the other H of the J shall be inherited by Cachelle. 7he same applies if the testator shoul1 collectively institute his brothers an1 sisters; 2hether of the full bloo1 or half bloo1; the inheritance shall be 1istribute1 e9ually unless a 1ifferent intention appears. (,. #"#$ #n #ntestacy, be it noted that full blood inherits twice as half-blood. #n testacy, they inherit in equal shares.

$ esum%tions of E;u!lit* 8t"e follo7in) ules do NOT !%%l* if it is cle! l* s"o7n t"!t t"e test!to intended ot"e 7ise:: ! ?eirs instituted without designation of shares shall inherit in equal parts -Applies only to heirs of the same class and 0uridical relation. -%his is in relation to the disposable portion only Ghen some are instituted individually and others collectively, those collectively designated shall be considered individually instituted Ghether full or half-blood, brothers and sisters shall inherit equally

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.7

-%his article refers only to testamentary succession Ghen the testator calls to the succession a person and his children, they are all deemed instituted simultaneously and not successively

2.

Indi(idu!lit* When the testator institutes some heirs in1ivi1ually an1 others collectively as 2hen he says; <= 1esignate as my heirs , an1 0; an1 the chil1ren of (;< those collectively 1esignate1 shall be consi1ere1 as in1ivi1ually institute1; unless it clearly appears that the intention of the testator 2as other2ise. (,rt. #"5$ - %his operates when a person or a group are called to succeed in the same inheritance. - #nstitution is deemed individual. - #t operates when there is a definite class. 9xample: = # designate as my heirs the ?ead of the )ivil -aw 5epartment of the "-; )ollege of -aw and all *ourth Rear students Natch '77D-'7!7.P %hus, since there are 21 *ourth years plus the )ivil -aw 5epartment ?ead then the estate of the testator shall be divided into 2D parts.

c.

Simult!neit* When the testator calls to the succession a person an1 his chil1ren they are all 1eeme1 to have been institute1 simultaneously an1 not successively. (,. #" $ -%herefore, the children here need not wait for the death of their parent.

!!. '%5U!S!T%S # *A(!D A$D %

%"T!*% !$ST!TUT!#$ # 0%!'S

A. !t must be made through a .alid 6ill. A will shall be $A-#5 even though: !. An heir is not instituted '. %he institution does not comprise the entire estate .. %he person instituted: a. 5oes not accept the inheritance b. #s incapacitated to succeed /3%9: the testamentary dispositions validly made shall be complied with, the remainder passing to the legal heirs. 6rovisions in favor of disqualified heirs are inoperative. ?ow much can be disposed of by will: ! ' #f there are no compulsory heirs - the entire hereditary estate #f there are compulsory heirs - the disposable portion

B. !t must be 6ithin the limits and authority prescribed by la6. ?eirs instituted in a will inherit only the 5*6 (5isposable *ree 6ortion never the legitimes. %hus, in a will, if the testator institutes the forced heirs to their legitimes, such is considered superfluity, but if it is as to the 5*6, it is considered in addition to their legitimes unless otherwise prescribed by the testator. 3n the other hand, if a stranger is instituted in the legitimes, such is void. %ruth vs. *alsity of )ause of #nstitution (Art. 127 %he institution must be based on a true and lawful cause, =sub demonstrationeG Feneral Cule: the falsity of the stated cause does /3% affect the validity of the institution 9xception: these requisites must )3/);C in order that the institution of an heir will be void ( Austria vs. Ceyes .! " 724 ! %hat the cause for the institution of an heir is expressed or found on the will itself

.!

Ghen the testator says =# institute my best friend Oohn 6aulP, this is not what is contemplated by law. *or the cause to be >stated,> it should go li+e this: =# institute Oohn 6aul 2ec!use he is my best friend.P ' . %hat the cause is proven to be false or erroneous %hat there is proof on the *A)9 3* %?9 G#-- that the testator would not have made such institution had he +nown the falsity of the cause

#n effect, this narrows the area of application because of the great burden to prove /3%9: the same rules apply for >causes contrary to law> ". The heirs instituted must be certain or at least ascertainable as to identity. Identific!tion of "ei s ! %he heir shall be designated by name and surname ' . #f having the same name, the testator shall indicate some circumstance by which the heir shall be +nown

An error in the name, surname or circumstance shall /3% vitiate the institution when it is possible #/ A/R 3%?9C (A//9C, to +now with certainty the person instituted #f there are errors and ambiguities: a -oo+ first at the will b %hen, resort to extrinsic evidence (parole evidence is allowed but /3% the declarations of the testator 4 An omission of the name will still be valid if the heir is designated in such a manner that there can be no doubt as to who was instituted #f those having the same name, surname and circumstances )A//3% be identified even with proof, none shall be an heir 5ispositions for an ;/@/3G/ 69C"3/ shall be $3#5

Un<no7n %e son - one whose identity cannot be determined because he is not yet individualiIed8 it does /3% mean one who is not acquainted with the testator As distinguished from an inexistent person or one who has no capacity 7 9xception to (B : by some event or circumstance (past, present or future , the identity is +nown #n this case, the un+nown person becomes individualiIed %he event or circumstance (;"% appear in the will itself E0ce%tion to t"e e0ce%tion: a %he determination of the heir is delegated to another b %he instituted heir does /3% have the capacity to succeed at the testatorWs death c A disposition in favor of a definite class or group is $A-#5. 1. 3ne who has no compulsory heirs may dispose by will of all his estate or any part of it in favor having capacity to succeed (Art. 14' of any person

D. or the heirs so instituted7 they must be 8ualified at the time of the opening of succession of the testator. %hey must be alive, capacitated and willing to inherit. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this )ode. (Art. 12B %. There should be no preterition. Re;uisites: !. 3mission of a compulsory heir. '. %hat omitted compulsory heir must be in the direct line. (ie. -egitimate children, recogniIed illegitimates, parents, and other ascendants

.'

/ote: A spouse cannot assail a will on the basis of preterition. ?e or she is a compulsory heir but not in the direct line. .. %he omitted compulsory heir must be alive at the time of opening of succession. %he phrase =time of opening of successionP means: -%ime of execution of the will -%ime of death of the testator or -Norn thereafter 4. %he 3mission must be total. %his implies complete forgetfulness of the testator and the forgetfulness is over the inheritance on the estate. 6reterition does not open the door to #ntestacy. i. #f testator Albus 5umbledore, gives H of his hereditary estate to Oennifer, a stranger, there is no preterition. %he daughter will still inherit. %he omission under preterition is not by the G#-- but by #/?9C#%A/)9. ii. #f for example, the daughter is given ' million pesos before the death of Albus 5umbledore, and Oennifer is instituted as an heir in the will, there is no preterition. iii. #f Albus 5umbledore gives his entire hereditary estate to Oennifer sub0ect to legacy of ! (illion to the daughter, there is no preterition. Cemedy of the daughter: %o demand completion of legitime and not to annul the will on ground of preterition. iv. #f the daughter predeceased the testator and the widow as well as Oennifer survived the testator, there is no preterition. %he compulsory heir must be alive at the time of opening of succession sub0ect to the legitime of the daughter and sub0ect to the right of representation of the heirs of the daughter. In inte % etin) t"is % o(ision9 Hustice Ed)! do $! !s !d(!nced t"e o%inion t"!t if t"e %! tition is m!de 2* !n !ct inter .i.os9 no fo m!lities ! e % esc i2ed 2* t"e A ticle. The partition 6ill of course be effecti.e only after death. It does not necess! il* e;ui e t"e fo m!lities of ! 7ill fo !fte !ll it is not t"e %! tition t"!t is t"e mode of !c;ui in) o7ne s"i%. Neit"e 7ill t"e fo m!lities of ! don!tion 2e e;ui ed since don!tion 7ill not 2e t"e mode of !c;ui in) t"e o7ne s"i% "e e !fte de!t"A since no 7ill "!s 2een m!de it follo7s t"!t t"e mode 7ill 2e succession 8intest!te succession:. Besides9 t"e %! tition "e e is me el* t"e %"*sic!l dete min!tion of t"e %! t to 2e )i(en to e!c" "ei . T"e "isto ic!l !ntecedent of A ticle ,?=? of t"e Ne7 Ci(il Code is A ticle ,?4D of t"e old Ci(il Code. T"e onl* c"!n)e in t"e % o(ision is t"!t A ticle ,?=? no7 %e mits !n* person 8not ! test!to 9 !s unde t"e old l!7: to %! tition "is est!te 2* !ct inter .i.os. T"is 7!s intended to !2 o)!te t"e t"en % e(!ilin) doct ine t"!t fo ! test!to to %! tition "is est!te 2* !n !ct inter .i.os9 "e must fi st m!<e ! 7ill 7it" !ll t"e fo m!lities % o(ided 2* l!7. 8HLT A) o (s. B!l!ns!)9 '.R. No. ,3,==. M! c" ,,9 .??4:.

. Inte % et!tions of Institution of +ei s 1. !n addition to legitime 9xample: %he testator left a widow, and a daughter whom he gave a legacy of ! (illion. ?is estate shall be divided as follows: %otal value: '4 (illion wife

daughter

the legacy of ! million to the daughter will come from this portion
fdp

..

'. -egacy as -egitime %otal value: '4 (illion

widow to Q

#f !' million, added #s the ! million legacy %o the daughter

fdp

<there is no preterition. %he remedy of the daughter is to demand completion of her legitime.

Effects of T ue !nd Com%lete $ ete ition !. #t will annul the institution of universal heirs '. -egacies and devisees in the same will will remain valid unless inofficious. Ghen there is a true and complete preterition, intestacy will ta+e place and the order of distribution shall be: a. As to the legitimes first b. %estamentary heirs ie. the legacies and the devisees c. ;niversal heirs /ote: %here may be an instance where the institution of a universal heir may be valid but may not have an inheritance due to insufficiency or lac+ of estate.

9xample: ! legitimate child Gidow 9ntire estate to Candy B million to Analyn %otal value: '4 (illion widow to Analyn

legitimate child
fdp

%here is no preterition. %he #nstitution of Candy is valid but he cannot inherit because he has nothing to inherit. +o7 S"! es ! e fi0ed in f!(o of Instituted +ei s ,. As s%ecified 2* t"e test!to 9xample: #n the will: H for Oennifer and J for ?iede #n this case, follow what was prescribed by the testator. #f it exceeds the whole of the hereditary estate, reduce the shares pro rata. 9xample: %he estate is worth '4 million Oennifer: .&1MD million ?iede: 2&1M!2 million ?owever, if the shares do not cover the entire estate, the rule is, the remainder shall pass by #/%9"%A)R. 9xample: ?iede: J MB million Oennifer: H M!' million !1 million

.4

%he balance of B million will pass by #ntestacy. ?owever if the testator intended the instituted heirs to inherit the entire estate and this could be gleaned from the expressions of the will itself, increase the shares of the shares of the heirs proportionately. %hus, in the example, ?iede will inherit 1 million and Oennifer will inherit !B million. .. E;u!lit* 9xample: # hereby give to ?iede, Cachelle, Oennifer, Candy, Oohn 6aul, Analyn and Nrenda my entire hereditary estate. #n this case, divide the estate equally. 1oid o Ino%e !ti(e Institution a. b. c. d. e. 6redecease, #ncapacity, Cepudiation: %he instituted heirs acquires nothing, transmits nothing. %he institution is also rendered void if it is based on false cause8 %he institution is also rendered ineffective if the heirs cannot be ascertained8 Ghen there is preterition, the institution of a universal heir is void except as to the devisees and legacies. #nvalid disinheritance

9ffects: %he will shall still be submitted for probate even if there is preterition. #n case of vacancy in the 5*6, the original heir cannot inherit. a. $acant shares will pass to the substitute b. #n the absence of first, it will pass to a co-heir by right of accretion c. #f there is no substitute and there are no co-heirs, the final resolution shall pass by intestacy. SUBSTITUTION O& +EIRS %he act by which the testator designates the person or persons to ta+e the place of the heir or heirs first instituted. #t may be considered as a subsidiary and conditional institution. @inds: a b heir compendious -one heir is designated to ta+e the place of two or more heirs 3rdinarye Ceciprocal- #f heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. -#f there are more than one substitute, they shall have the same share in the substitution as in the institution. c d

$ulgar- that which ta+es place when the testator designates one or more persons to substitute the heirs&s instituted in case of death, repudiation or incapacity of the original heir brief -there are two or more persons designated by the testator to substitute for only one

*ideicommissary Cequisites:

a. *irst heir (fiduciary called to the succession. b. An obligation clearly imposed upon such first heir to preserve the property and to transmit it to the second heir. c. "econd heir (fideicommissary to whom the property is transmitted by the first heir. Githout the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir, there is no fideicommissary substitution (Cabadilla vs. )A ..4 ")CA 2''

6ending transmission of property, the fiduciary is entitled to all the rights of a usufructuary, although the fideicommissary is entitled to all the rights of a na+ed owner.

#nstances when substitution ta+es place: a. instituted heir predeceases the testator8 b. incapacity of the instituted heir to succeed from the testator8 and c. repudiation of the inheritance.

.2

9ffect of substitution: Feneral rule: once the substitution has ta+en place, the substitute shall not only ta+e over the share that would have passed to the instituted heir, but he shall be sub0ect to the same charges and conditions imposed upon such instituted heir. 9xceptions: (! Ghen the testator has expressly to the contrary8 (' Ghen the charges or conditions are personally applicable only to the heir instituted.

-imitations: a. "ubstitution must not go beyond one degree from the heir originally instituted. b. =5egreeP means degree of relationship. c. *iduciary and fideicommissary must be living at the time of the death of the testator. d . "ubstitution must not burden the legitime of compulsory heirs. e. "ubstitution must be made expressly. A fideicommissary substitution is void if the first heir is not related in the !st degree to the second heir (CamireI vs. $da. 5e CamireI !!! ")CA 774

TESTAMENTAR6 DIS$OSITIONS !. 9!$DS A. $u e o Sim%le: %he heir inherits sub0ect neither to a condition nor a period. %he heirs acquires right to succession from the moment of death of the testator sub0ect to probate of the will. B. Condition!l !. Gith a term: modal or sub modo '. Gith a cause or motive: sub demonstracione %he condition may be a future and an uncertain event. #t may be: !. )asual: %he happening of which is dependent on chance or will of a third person. '. 6otestative: %he happening of which is dependent on the will of the heir. .. (ixed: %he happening of which is dependent partly by chance or will of a third person and partly by the will of the heir.

!!. 'U(%S #$ "#$D!T!#$S !. /o condition may be imposed upon the legitime of compulsory heirs. E0ce%tions: a. #f to +eep the agricultural, industrial, or manufacturing enterprise intact, the testator may in this case give it to one heir and order that the legitime of the other children to whom the property is not assigned, be paid in cash.(!717, )) 8 b. #f there is a prohibition against partition for a maximum period of '7 years. '. )onditions are construed as such if expressly made in the will. %hey are never presumed. )onditional institution suspends the right to inherit that is why they must be expressly and clearly made not presumed. %he testator must provide for the consequence of non-compliance of the condition. #f there is no consequence given in case of non-compliance, it shall be construed not as a conditional but a modal institution. 9xample: # give my car to Candy provided he passes the bar examination, if he does not, the property will be given to my brother.

.B

SABINIAN DOCTRINE: %he testator cannot impose any impossible or illegal condition. %he condition must not be contrary to law, good customs or public policy because after all, the ma+ing of a will is a mere statutory right. #f there is an illegal or impossible condition, the same shall be treated as not written. !!!. *#!D "#$D!T!#$S A. A2solute condition not to m! * o not to em! *. -%his condition unnecessarily infringes the freedom to change one,s civil status. -5isregard this illegal condition but if it is a relative condition not to marry or remarry such must be observed and if violated, the heir must be sub0ected to the consequence given by the testator. 9xample of a relative condition not to marry: X6rovided she does not marry until she passes the bar and if she marries, she losses her inheritance. +OWE1ER9 !n !2solute % o"i2ition not to em! * is (!lid unde t"e follo7in) ci cumst!nces: !. #f imposed by the testator upon his husband or wife. %his is valid as to the 5isposable *ree 6ortion but not as to the legitime. '. #f imposed by the ascendant or descendant of the spouse upon the widow or widower. A resolutory condition not to marry or not to remarry even if absolute is valid even if it affects usufruct, pension or allowance. 9xample: =;pon my death, # hereby instruct that ten thousand pesos will be given as monthly allowance to my daughter until she marries.P B. No Contest !nd &o feitu e Cl!use -#t is a provision in a will stating that whoever questions the will or any part thereof losses his right to the inheritance. %his is void here in the 6hilippines although valid in the ;nited "tates. -%his is prohibited as it prevents the ascertainment of truth which is contrary to public policy. -5isregard the no contest and forfeiture clause. C. Dis%osicion C!%t!to i! -%his is a provision or disposition instituting an heir on the condition that the latter would institute the testator or some other person on the testator,s will. 9xample: # hereby give Oennifer my estate provided that Oennifer gives her entire estate also to me. W"en 7ill t"e condition 2e fulfilledI !. #f the condition is casual, the heir must comply with the condition immediately upon learning of the death of the testator. '. #f positive potestative, happening is dependent on the will of the heir. .. #f the condition is fulfilled prior to the death of the testator, repeat the condition. 4. #f the condition is not fulfilled prior to the death of the testator, the heir must comply immediately upon death of the testator. 2. #f the testator +new of prior fulfillment of condition and the same was not altered in the will, the condition must be repeated. #f he has no +nowledge, there is no need to do it again especially if it is impossible or impractible to do it again. 9xample, if upon death of the testator Cachelle already passed the bar, Cachelle now cannot pass the bar examination again. NE'ATI1E CONDITION: not to do or not to give on the part of the heir. %he heir must furnish a security upon the opening of succession called caucion mociana. #f the negative condition is violated, the other heirs may proceed against said heir. 9xample: X.6rovided Candy shall not drin+ foreverX. -#f the condition is breached, the inheritance is forfeited and the caucion mociana shall answer for that breach in case the property cannot be returned.

.7

%he heir must strictly comply with the negative condition. ?owever, substantial performance shall be allowed in the following: !. #f the heir exerts all reasonable efforts to comply strictly in good faith but he cannot. 9xample:P...provided Oohn 6aul garners gold medal in tae+wondoP Oohn trained '4&78 hired the best trainor8 paid the best training center yet he won bronIe meal. #n this case, Oohn 6aul is still entitled to inherit. '. #f the persons interested in the will prevented the heir from fulfilling the condition. !*. % %"TS # "#$D!T!#$A( T%STA1%$TA'+ D!S&#S!T!#$ !. #f the condition is resolutory the heir acquires the right to succession from the moment of death of the testator sub0ect to extinguishment upon happening of the condition8 '. #f suspensive, the property shall first be placed under administration. %his is to prevent the property from stagnating. %his is applicable in instances where the caucion was not paid or if the fulfillment becomes indubitable. %he conditional heir must be qualified, alive, and willing to inherit not 0ust at the time of the testator,s death but also upon fulfillment of the condition. %hus, if the conditional heir died before the fulfillment of the condition, the institution is inoperative. Test!ment! * Dis%osition 7it" ! te m Te m: a future or certain event, which will definitely come or happen. ,. Resoluto * Te m #f the heir is sub0ect to resolutory term, rights are acquired from the moment of death of the testator sub0ect to extinguishment from the moment period ta+es place. .. Sus%ensi(e Te m %his does not prevent the heir,s right to succession from attaching. Ghat is suspended is the demandability of the inheritance. Nefore the happening of the term, the property shall be possessed first by the legal or intestate heirs. %hat is why they are required to furnish bond to guaranty delivery of property upon happening of the period in favor of the testate heirs or his legal representatives. Mod!l Institution Kinds: ,. Mode in t"e fo m of s%eci!l %u %ose o o25ecti(e in )i(in) t"e in"e it!nce. 9xample: =# hereby give to "aint -ouis ;niversity )ollege of -aw a legacy of 2 (illion pesos for scholarship fund of indigent students. .. Mode 2* definite !%%lic!tion of t"e % o%e t*.

9xample: =# hereby give ?iede a legacy of !7 million provided she builds a temple.P /. Mode in t"e fo m of some c"! )e o 2u den 9xample: =# hereby give Cachelle 2 million pesos provided she gives my friend a brand new expedition.P -this burden must not exceed the value of the inheritance. #n case of doubt as to whether the disposition is conditional or modal, the institution shall be presumed as a modal institution because a modal institution is less onerous on the part of the heir.

.1

(odal institution see+s to promote greater the liberality of the testator. #t does not suspend the right to inherit. Effects of Mod!l Institution !. %he heir can only enter possession of the property upon payment of bond or security unless dispensed with by the testator. %his is to ensure strict compliance thereof. '. #n case the mode is not fulfilled, the heir must return the inheritance. #nclude on the return all fruits, interests and income derived. Moti(!ted Institution: Sub Demonstracione #t is one where the heir is designated under an express cause, reason or basis. Rules: !. #f the cause stated in the will is proven to be false or erroneous, disregard the cause and the heir can still inherit 9Q)96% when it clearly appears in the will that the testator would have not designated the heir had he +nown of the falsity of the cause. =# hereby give a legacy of 2 million to Q for having landed K! in the recent Nar 9xaminations. (#t turns out that Q only passed the bar and not K! Q here can still inherit. /othing in the provision would reveal that had he +nown of the falsity, he would have not disposed the same. %he cause here is merely descriptive of the heir. =# hereby award a legacy of 2 million pesos to Q for topping the recent bar exam +nowing that the exam is one of the toughest in the history of bar and considering the difficulties one has to undergo while ta+ing the same. (Q did not top the bar exam Q cannot inherit.

COLLATION !. "ollation is Understood in Three Senses ,. Coll!tion !s Com%ut!tion: A process whereby the value of all donations intervivos made by the testator are added to the value of the estate 6urpose: %o arrive at the value of the inheritance due to the heirs. .. Coll!tion 2* Im%ut!tion %his requires that the value of the donations intervivos made to compulsory heirs be charged against their legitimes because these are considered advances to their legitimes. "imilarly, the value of the donation intervivos made to strangers must be imputed or charged against the *ree 5isposable 6ortion because they are considered advances from the *56. /. Coll!tion 2* Retu n o Reduction %his requires a return of either of the value of the property or the property itself to he estate because they encroached on the value of the legitime. !!. ST%&S: "tep #: 5etermine the Fross 9state *or purposes of determining the gross estate, consider among others the following8 -receivables -valuate cash deposits -upraise value of artwor+s -valuate real properties -value of void contracts ie. $oid donations. -if married, liquidate the property of both spouses.

.D

"tep ': "ubtract all debts and liabilities that survived the death of the testator. "tep .: )ollation As )omputation "tep 4: 5etermine the -egitimes and the *ree 5isposable 6ortion "tep 2: )ollation As #mputation "tep B: )ollation As Ceduction RULES &OR REDUCTION !. -egacies or devises which are declared in the will shall be paid in preference to others8 it shall not suffer reduction until the latter have been applied in full to the payment of legitime. ?ow to determine if such legacy or devise is preferredL #t can be inferred from the use of the words8 =it shall be given firstP or =preferredP #f the legacy consists of a usufruct or life annuity and the same exceeds the *56, the rules are: a. b. %he compulsory heirs shall comply with the will. After all, the heir here retains only the usufruct. Five the entire *56 to the heir, the usufruct plus the na+ed ownership. %his is as long as the legitime is not impaired.

'. #f the property sub0ect to reduction is a devise of a real property which is not physically divisible, the rules are: a. #f reduction absorbs H or more than half of the value of the property, the real property shall remain with the compulsory heirs but as to the devisee, the compulsory heirs shall pay him in cash. b. #f less than half of the value of the real property, the same shall go to the devisee but the compulsory heirs to complete their legitime must be paid in cash. #f the real property can be conveniently divided, then it shall be divided. #f conflict arises, sell the property and divide the proceeds. .. #f after reducing the legacies and devises, there is still impairment of legitimes, reduce now the 5onation #ntervivos. Ghy this CuleL Necause donation #ntervivos were made earlier than legacies and devises. 6riority in time is priority in right. a. Ceduce first those of recent dates if different in dates. b. #f made at the same time, reduce them pro rata. Ou ules of succession e;ui e t"!t 2efo e !n* conclusion !s to t"e le)!l s"! e due to ! com%ulso * "ei m!* 2e e!c"ed9 t"e follo7in) ste%s must 2e t!<en: 8,: t"e net est!te of t"e decedent must 2e !sce t!ined9 2* deductin) !ll t"e %!*!2le o2li)!tions !nd c"! )es f om t"e (!lue of t"e % o%e t* o7ned 2* t"e dece!sed !t t"e time of "is de!t"A 8.: t"e (!lue of !ll don!tions su25ect to coll!tion 7ould 2e !dded to it. T"us9 it is t"e (!lue of t"e % o%e t* !t t"e time it is don!ted9 !nd not t"e % o%e t* itself9 7"ic" is 2 ou)"t to coll!tion. Conse;uentl*9 e(en 7"en t"e don!tion is found inofficious !nd educed to t"e e0tent t"!t it im%!i ed 1icto Js le)itime9 % i(!te es%ondents 7ill not ecei(e ! co es%ondin) s"! e in t"e % o%e t* don!ted. T"us9 in t"is c!se 7"e e t"e coll!t!2le % o%e t* is !n immo(!2le9 7"!t m!* 2e ecei(ed is: 8,: !n e;ui(!lent9 !s muc" !s %ossi2le9 in % o%e t* of t"e s!me n!tu e9 cl!ss !nd ;u!lit*A 8.: if suc" is im% !ctic!2le9 t"e e;ui(!lent (!lue of t"e im%!i ed le)itime in c!s" o m! <et!2le secu itiesA o 8/: in t"e !2sence of c!s" o secu ities in t"e est!te9 so muc" of suc" ot"e % o%e t* !s m!* 2e necess! *9 to 2e sold in %u2lic !uction. 8Im%e i!l (s. CA '.R. No. ,,.3=/ Octo2e =9 ,EEE: O de of $!*ment o Dist i2ution !. -egitimes of )ompulsory ?eirs '. ;ndelivered 5onations .. 6referred legacies or 5evises

47

4. 3rdinary -egacies or 5evises 2. ;niversal ?eir (if something is left O de of Reduction !. 3rdinary -egacies or 5evises '. 6referred -egacies or 5evises .. 5onations #ntervivos DISIN+ERITANCE !. "#$"%&T Disin"e it!nce 4 the act by which the testator, for a 0ust cause, deprives a compulsory heir of his right to the legitime. #t is a testamentary disposition by which a person is deprived of, or excluded from, the inheritance to which he has a right -#t totally excludes the disinherited heir (even in a previous will -%he rules here are strictly construed -%his is not applicable to voluntary or testamentary heirs. - %his does not apply also in intestacy. !!. '%5U!S!T%S #' D!S!$0%'!TA$"% ! %hat it must be expressed in a (!lid 7ill never by implication -%his means the formalities and solemnities were complied with -A will is recogniIed as valid only if admitted by the probate court ' %hat it be for a cause designated by law -%his is an exclusive list . %hat it be made expressly, stating the cause in the will -#t is advisable to put in the details constituting the grounds, N;% mere statement of the ground is already sufficient, in either case it has to be proved. 4 %he cause must be certain and true, and must be proved by the interested heirs 3/-R if the person disinherited should deny it -?ence there must be a probate of the will 2 #t must be %3%A-deprive the disinherited heir not 0ust from the legitime but also from shares in the free portion. B %hat it must be unconditional -Nut the pardon may be conditional 7 %hat the heir disinherited must be designated by name or in such manner as to leave no room for doubt as to who is intended -%he rules with regard to designating by name in institution of heirs is followed

III. CAUSES &OR DISIN+ERITANCE K - the ground is also present under !7.' (unworthiness . /3%9: Ghen the ground for disinheritance overlaps with unworthiness, the choice is upon the testator. #f he disinherits, then the rules on disinheritance shall apply. N;% if he is silent, then the rules on unworthiness will come into play.

A. "auses for Disinheritance of "hildren and Descendants7 legitimate or illegitimate ,rt. . . 7he follo2ing shall be sufficient causes for the 1isinheritance of chil1ren an1 1escen1ants; legitimate as 2ell as illegitimate: (.$ When a chil1 or 1escen1ant has been foun1 guilty of an attempt against the life of the testator; his or her spouse; 1escen1ants; or ascen1ants> -there is no need for a final 0udgment at the time of the ma+ing of the will but the final 0udgment of conviction promulgated after the testator,s death shall have a retroactive effect at the moment of the testator,s death. -#f there is acquittal i.e. the heir is convicted of serious physical in0uries instead of attempted or frustrated murder or homicide, said heir cannot be disinherited.

4!

(3$ When a chil1 or 1escen1ant has accuse1 the testator of a crime for 2hich the la2 prescribes imprisonment for si' years or more; if the accusation has been foun1 groun1less> %he following must concur: a. Accusation must be made by the heir either as private complainant or as a witness. b. %he penalty imposable under the law for such crime must be B years or more c. %he accusation must be shown to be false -#f the accused is acquitted and the acquittal is anchored on reasonable doubt, the accusation here does not necessarily mean that it is false. (-$ When a chil1 or 1escen1ant has been convicte1 of a1ultery or concubinage 2ith the spouse of the testator> /ote: this cannot be the basis of a spouse,s disinheritance. ("$ When a chil1 or 1escen1ant by frau1; violence; intimi1ation; or un1ue influence causes the testator to ma?e a 2ill or to change one alrea1y ma1e> (+$ , refusal 2ithout justifiable cause to support the parent or ascen1ant 2ho 1isinherits such chil1 or 1escen1ant> /%he child or descendant must be capable of giving support. %here must be legal obligation to give support. (4$ Maltreatment of the testator by 2or1 or 1ee1; by the chil1 or 1escen1ant> (5$ When a chil1 or 1escen1ant lea1s a 1ishonorable or 1isgraceful life> (#$ (onviction of a crime; 2hich carries 2ith it the penalty of civil inter1iction W"ile R.A. No. =44. "!s un;u!lifiedl* 7it"d !7n f om !n !do%te ! conse;uenti!l i)"t to escind t"e !do%tion dec ee e(en in c!ses 7"e e t"e !do%tion mi)"t cle! l* tu n out to 2e undesi !2le9 it em!ins9 ne(e t"eless9 t"e 2ounden dut* of t"e Cou t to !%%l* t"e l!7. Dura le: sed le: 7ould 2e t"e "!c<ne*ed t uism t"!t t"ose c!u)"t in t"e l!7 "!(e to li(e 7it". It is still note7o t"*9 "o7e(e 9 t"!t !n !do%te 9 7"ile 2! ed f om se(e in) t"e le)!l ties of !do%tion9 c!n !l7!*s fo (!lid e!sons c!use t"e fo feitu e of ce t!in 2enefits ot"e 7ise !cc uin) to !n undese (in) c"ild. &o inst!nce9 u%on t"e ) ounds eco)niLed 2* l!79 !n !do%te m!* den* to !n !do%ted c"ild "is le)itime !nd9 2* ! 7ill !nd test!ment9 m!* f eel* e0clude "im f om "!(in) ! s"! e in t"e dis%os!2le %o tion of "is est!te. 8L!"om (s. Si2ulo '.R. No. ,3/E=E Hul* ,39 .??/:

B. "auses for Disinheritance of &arents or Ascendants ,rt. 3!. 7he follo2ing shall be sufficient causes for the 1isinheritance of parents or ascen1ants; 2hether legitimate or illegitimate: (.$ When the parents have aban1one1 their chil1ren or in1uce1 their 1aughters to live a corrupt or immoral life; or attempte1 against their virtue> -abandonment: when the parent fails to comply with his parental obligation -there is no need of conviction by final 0udgment (3$ When the parent or ascen1ant has been convicte1 of an attempt against the life of the testator; his or her spouse; 1escen1ants; or ascen1ants> -conviction by final 0udgment is necessary and retroactive . (-$ When the parent or ascen1ant has accuse1 the testator of a crime for 2hich the la2 prescribes imprisonment for si' years or more; if the accusation has been foun1 to be false> ("$ When the parent or ascen1ant has been convicte1 of a1ultery or concubinage 2ith the spouse of the testator> (+$ When the parent or ascen1ant by frau1; violence; intimi1ation; or un1ue influence causes the testator to ma?e a 2ill or to change one alrea1y ma1e>

4'

(4$ 7he loss of parental authority for causes specifie1 in this (o1e>

Frounds for loss of parental authority: a adoption b appointment of general guardian c abandonment d final 0udgment of the )ourt e absence or incapacity f civil interdiction g excessiveness, harshness or cruelty h corrupting orders i compelling to beg 0 acts of lasciviousness + sexual abuse @ote: in cases 2here parental authority is restore1; the 1isinheritance alrea1y ma1e remains vali1. (the is base1 on the majority opinion of the authorities$ (5$ 7he refusal to support the chil1ren or 1escen1ants 2ithout justifiable cause> (#$ ,n attempt by one of the parents against the life of the other; unless there has been a reconciliation bet2een them. C. "auses for Disinheritance of a Spouse ,rt. 3.. 7he follo2ing shall be sufficient causes for 1isinheriting a spouse: (.$ When the spouse has been convicte1 of an attempt against the life of the testator; his or her 1escen1ants; or ascen1ants> (3$ When the spouse has accuse1 the testator of a crime for 2hich the la2 prescribes imprisonment of si' years or more; an1 the accusation has been foun1 to be false> (-$ When the spouse by frau1; violence; intimi1ation; or un1ue influence cause the testator to ma?e a 2ill or to change one alrea1y ma1e> ("$ When the spouse has given cause for legal separation> /there is no need for a decree of legal separation

Frounds for legal separation: a repeated physical violence&grossly abusive conduct on the spouse or child b compelling to change religion or political affiliation c prostitution or corruption d imprisonment of more than B years even if pardoned e drug addiction or habitual alcoholism f lesbianism or homosexuality g bigamy h sexual infidelity or perversion i attempt on life 0 abandonment of ! year (+$ When the spouse has given groun1s for the loss of parental authority> (4$ Anjustifiable refusal to support the chil1ren or the other spouse. Addition: (7 . Article 4. of the *amily )ode: #n case of valid bigamous marriage, if the spouse who contracted the subsequent marriage was in bad faith. !*: % %"TS # D!S!$0%'!TA$"%: 5isinheritance deprives a compulsory heir from:

4.

a. b.

his legitime all his shares coming from the 5isposable *ree 6ortion -Any legacy or devise made to a disinherited compulsory heir is revo+ed. - A disinherited heir may be represented by his descendants because disinheritance id personal. %he disinherited heir cannot however exercise parental usufruct or administration over the property given to the minor who acquired the property by right of representation.

%he consequences of disinheritance will be set aside when there is RECONCILIATION: A. Reconcili!tion: Re;uisites: ! ' . Cefers expressly to the heir disinherited "pecifically to the acts causing the disinheritance 6ardon accepted by the heir

Effects: !. #f reconciliation too+ place before the execution of the will or codicil containing the disinheritance, the testator no longer has the right to disinherit. %he subsequent disinheritance will be totally invalid. %he cause of disinheritance has ceased to exist. '. #f reconciliation too+ place after the execution of the disinheriting will or codicil, the disinheritance is rendered inoperative because by the time of death of the testator, the heir is already qualified to inherit. B. C!uses fo ! ' . e(oc!tion of disin"e it!nce:

Ceconciliation "ubsequent institution of the disinherited heir (reconciliation /ullity of the will containing the disinheritance

Ri)"t of e% esent!tion: #n case there is disinheritance there is a right of representation N;% only with respect to the direct 59")9/5#/F line (this refers 3/-R to children and descendants8 Art. D!D . %he disinherited parent shall /3% have the usufruct or administration of the property (A disinherited ascendant or spouse )A//3% be represented *. !1&'#&%'7 !$% %"T!*%7 !$*A(!D D!S!$0%'!TA$"%

.. #t is improper, ineffective, and invalid if it is without specification as to the cause8 '. #f the cause or the ground is not among those set forth in law8 .. #f the truth of the cause is denied and the same has not been proved. E&&ECTS: !. #t would annul the institution of universal heirs but only insofar as the legitimes are impaired8 '. -egacies and 5evises for as long as they are not inofficious remain valid.

(%)A"!%S A$D D%*!S%S !. D% !$!T!#$S LE'AC6: A testamentary disposition whereby the testator grants an economic benefit or advantage to an heir other than an aliquot fraction of the entire estate. R!tion!le: "o that the testator may prevent persons not entitled to benefit or inherit from him to be entitled as such. Diffe ence: ! -egatee&5evisee 4 institution of a specific&determinate thing as stated in the will ' #nstitution of heir 4 institution to an aliquot portion of the estate as stated in the will ,ll things an1 rights 2hich are 2ithin the commerce of man may be be9ueathe1 or 1evise1 (,rt. 3".$ #t is /3% required that the thing belong to the testator

44

%o be within the commerce of man, the thing should be: ! "usceptible of appropriation or of being sub0ected to property rights of natural or 0uridical persons ' %ransmissible from one person to another, such that they may be disposed of as forming part of one,s patrimony %he following are outside the commerce of man: ! )ommon things (e.g. air, light ' 6roperty of public ownership, public use or owned by the "tate . %es nullius, belonging to no one 4 %hose which are inalienable (e.g. sacred and religious things 2 %hose forming part of edifices and which cannot be separated from them without being destroyed !!. 9!$DS; "(ASS%S: A. As to o25ect o % o%e t* )i(en: !. Le)!c*- gift of personal or movable property. %erm used: =to bequeathP 2. De(ise-gift of a real or immovable property. %erm used: =to deviseP #t may also be: a. 'ene ic: example: =# hereby give Nrenda a watch.P b. S%ecific: example: =# hereby give Nrenda my watch.P B. As to t"e $e son Bu dened !. Le)!c* o De(ise $ o%e -#t is chargeable against the estate -%he obligation to pay shall be borne by the estate of the testator or the executor or administrator. -#f the testate or intestate heirs of the testator ta+es over the property bequeathed or devised, they shall be solidarily in case of loss or destruction of the thing devised or bequeathed.

2. Su2-Le)!c* -%he burden of paying is imposed by the testator on another legatee or heir. #f the sub-legacy is imposed upon only # heir or legatee, the latter is entirely liable. #f two or more heirs, then all of them shall be liable to the sublegacy in proportion to their inheritance. #f there is no specified share, all of them are equally liable. %he heirs however, cannot be burdened beyond the value of their inheritance. W"o is c"! )ed 7it" t"e 2u den of le)!cies !nd de(isesI ! 'ene !l Rule: the estate 9xecutor 4 identified and stated in the will to execute its provisions Administrator 4 0udicially appointed in the absence of an express designation of an executor in a will, or in case of intestacy ' ?owever, the testator may impose the burden on a testamentary heir or a legatee or devisee (sublegacy&devise

Su25ect to t"e follo7in) ules: a )ompulsory heir 4 shall not be liable for the charge beyond the amount of the free portion given them b 6rimary legatees and devisees 4 shall be liable for the charge only to the extent of the value of the legacy or devise they received /ote: this is a +ind of modal institution Ghen the testator charges on the heirs with a legacy or devise, he alone shall be bound. "hould he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit "ub-legacies or sub-devises: a legacy or devise made to a .rd person of a thing belonging to an heir, legatee or devisee

42

Tolentino: sub-devises and legacies are $A-#5 only if: ! %he testator ma+es an express charge on the heir, legatee or devisee ' %he testator orders that the thing be acquired by his estate and delivered to the .rd party beneficiary /3%9: #f the testator did not +now that the thing belonged to his heir, devisee or legatee, the disposition of such thing to a .rd person is $3#5 =f t2o or more heirs ta?e possession of the estate; they shall be soli1arily liable for the loss or 1estruction of a thing 1evise1 or be9ueathe1; even though only one of them shoul1 have been negligent (,rt. 35$ Gho is liable in case of eviction and other warranties (e.g. hidden encumbrances or defects ! Feneral Cule 4 the estate ' %he heir, devisee or legatee charged (Art. D'1 /3%9: %his applies 3/-R if the legacy or devise is F9/9C#) =f the testator; heir; or legatee o2ns only a part of; or an interest in the thing be9ueathe1; the legacy or 1evise shall be un1erstoo1 limite1 to such part or interest; unless the testator e'pressly 1eclares that he gives the thing in its entirety. (#4"a$ 'ene !l Rule: conveys only the interest or part owned by the testator (this applies whether or not the testator +new that the thing was partly owned by a stranger E0ce%tion: when the testator 9Q6C9""-R declares that he bequeaths the thing as a whole in the will itself (/3%9: the testator must have +nowledge that he,s bequeathing a property partly belonging to a stranger 3C this should be proved by competent evidence !!!. (%)A"+ # S&%"! !" T0!$): !. #f the thing belongs to the testator, successional rights are transferred from the moment of death of said testator. %he legatee is entitled to the income accruing from the thing itself from the time of death of the testator. #n case the legacy or devise is a mortgaged property, the general rule is that the legatee or devisees is not obliged to pay the debt secured by the mortgage unless required by the testator. %hus, under the general rule, the devise is free from burden unless said devise is in the form of usufruct, easement or other real rights attached thereto, in such case, it shall only expire upon the death of the usufructuary or upon the expiration of the usufruct. #f the thing bequeathed is sub0ect to co-ownership, the legacy shall be co-exclusive only to the interest of the testator. '. -egacy of "pecific %hings not belonging to the %estator: Cules a. #f at the time of the execution of will the thing does not belong to the testator but the testator believes otherwise, the legacy is $3#5. %he erroneous belief and the fact that it is not owned by the testator ma+e the legacy void. ;nless, after the ma+ing of the will, the testator, subsequently acquire ownership over the thing so that at the time of death, it belongs already to the testator. %his time the disposition is validated. #f the legacy does not belong to the testator and such fact is +nown to him, the disposition is valid if there is an order left by the testator to the estate to acquire the thing so that the same will be delivered to the legatee. #n the event the owner of the property refuses to sell the same to the estate of the testator, the legatee shall be entitled to a reasonable value of the thing in cash. #f at the time of the ma+ing of the will the property does not belong to the testator but to the legatee, the legacy is void. #t is null and void regardless of any intervening disposition unless the legatee-owner alienated it in favor of the testator so that at the time of death, the property belongs to the testator. #f the thing bequeathed did not belong to the legatee nor the testator at the time of the ma+ing of the will, but the legatee subsequently acquires the same, apply the rule on whether the legatee acquired the thing onerously or gratuitously. %hus, if the legatee acquired the property from the owner by sale, said legatee shall be entitled to reimbursement from the testator,s estate. #f acquired from the real owner, gratuitously, there is no reimbursement available. #f at the time of the ma+ing of the will, the property belongs to the testator but after the ma+ing of the will, he alienated it in favor of a third person and then it was acquired by the legatee or devisee prior to the death of the testator, the legacy is deemed revo+ed. (#mplied Cevocation B!l!ne 4 -&5 deemed revo+ed

b.

c.

d.

e. i.

4B

Tolentino 4 no intention to revo+e (N;% if the testator has not alienated the thing directly to the -&5, but to a .rd person and the former 0ust acquired it from the latter, there is an intention to revo+e -%he moment to be considered in the rules is the date of the execution of the will ( e0ce%t when the thing is alienated by the -&5 to the testator himself and the latter continues in possession until death 7ransformation; 6estruction; ,lienation by the testator of a thing bequeathed in a will shall be interpreted as revocation regardless of who owns the same at the time of death of the testator. !*. (%)A"+ # A )%$%'!" T0!$): a. b. De.ises: %he devise is valid if there are things of such nature or +ind within the hereditary estate. $3#5 if none. %he time to determine the existence of the immovable would be the time of death of the testator. (egacies: #t is valid whether or not the same is found in the estate. %he estate may procure such thing to pay the legatee.

ii.

*. (%)A"+ # SU1 # 1#$%+ #f the estate has no cash, the legacy is still valid. %he legacy must be satisfied by selling the movables first. #f insufficient, then the immovables. %he movables or immovables must have not been disposed of to other persons. *!. (%)A"+ # "0#!"% %he %estator gives the legatee or heir the right to choose. #t is a special +ind of generic legacy. 9xample: # hereby give to Cachel any 0ewelry from my estate. *!!. A(T%'$AT!*% (%)A"+ %he characteristics of alternative obligation are present. %he testator prescribes the inheritance. %he heir may choose only among those stated in the will as differentiated from a legacy of choice wherein the inheritance is within that class. 9xample: # hereby give Nrenda my car or my 0ewelry. *!!. (%)A"+ # '!)0TS Le)!c* of C edit -Ghen the testator bequeaths to another a credit against a .rd person . 7!*s: )ollecting the credit and delivering the proceeds to the legatee Assigning all the actions in the credit (but /3 warranty of its existence

! '

-%he legacy of the thing given as security is a remission of the guaranty only, but not the principal obligation Le)!c* of W!i(e of C edit -A remission of the debt (hence the credit is included in the assets of the estate and is sub0ect to the rules on inofficious donations -/ot to be confused with an ac+nowledgement that the debt has been paid . <inds: ! "pecific 4 only the debt specifically mentioned is remitted ' Feneric 4 only those existing at the time the will was made is remitted, but not those subsequently contracted /3%9: if the total debts exceed the free portion, the rules on application of payments should be applied #f payment is made with +nowledge of the legacy, it amounts to renunciation $ o(isions Common to 2ot" le)!cies %he legacy shall comprise all interests on the credit or debt which may be due the testator A% %?9 %#(9 3* ?#" 59A%? %he legacy shall be revo+ed if the testator, after the will has been made, brings a 0udicial action for the recovery of the credit or debt (;/-9"" provided otherwise by the testator

47

C: Le)!c* to ! C edito 'ene !l Rule: #t will be treated li+e any other legacy or devise and will /3% be imputed to the debt (no change of creditor-debtor relationship E0ce%tion: will be imputed to the debt if the testator so provides, and if the debt exceeds the -&5, the excess may be demanded 3f course, it will be better for the creditor to renounce the -&5 and file a claim for her credit. #f the testator,s debt is secured by pledge or mortgage, and he expressly bequeaths the thing pledged or mortgaged as payment of his debt, such will constitute dacion en pago. Ghen the testator does not expressly state that he leaves a legacy to the creditor, but merely directs a payment of a debt, there is /3 -9FA)R in favor of the creditor D.: Le)!c* of Educ!tion %his refers to school and educational related expenses not living expenses. #f no amount is specified, it shall cover only the amount for the legatee to complete his professional, vocational or general course. "trictly personal and cannot be transmitted to the heirs unless otherwise provided by the testator 5uration: ! Age of ma0ority8 or ' )ompletion of a professional, vocational or general course -6rovided the course is pursued diligently /3%9: whichever comes later Amount: ! 6rimarily 4 that fixed by the testator ' "econdarily 4 that which is proper as determined by: a "ocial standing and circumstances of the legatee b $alue of the disposable portion of the estate c E: Le)!c* of Su%%o t %he sum specified by the testator even if insufficient cannot be increased. #n the absence of specified amount8 !. %he amount shall be that amount regularly given by the testator to the legatee prior to said testator,s death. '. #n the absence thereof, balance the needs of the legatee vs. the capacity or means of the estate. -"trictly personal and cannot be transmitted to the heirs unless otherwise provided by the testator -5uration: the legatee,s lifetime, unless otherwise provided by the testator -Amount: ! primarily 4 that fixed by the testator ' secondarily 4 that which the testator during his lifetimes used to give the legatee by way of support, unless (AC@95-R 5#"6C363C%#3/A%9 to the value of the disposable portion . tertiarily 4 that which is proper as determined by: a social standing and circumstances of the legatee b value of the disposable portion of the estate 9xtinguishment of support (applies also to education : ! death of legatee ' reduced resources to the point where he cannot give support without neglecting his or his family,s needs . legatee has improved his fortune that he no longer needs allowance 4 legatee has committed acts giving rise to disinheritance 2 legatee is a descendant, brother or sister and need for support is caused by bad conduct or lac+ of application to wor+ /3%9: these were omitted by the *amily )ode *. -egacy of 6ension

%he first payment thereof shall be due at the time of the testator,s death and it may be requested even before probate. %he amount is fixed and the regularity of payment must be specified in the will. 6ension may be made in advance by the estate. Nut note that the debts should be paid first (unless the legatee files a bond . ?owever, should the legacy prove not inofficious, the date of effectivity retroacts to the decedent,s death

41

=f the thing be9ueathe1 shoul1 be subject to a usufruct; the legatee or 1evisee shall respect such right until it is legally e'tinguishe1 (,rt. "4$ Dem!nd!2ilit*9 O7ne s"i% !nd & uits of Le)!cies o De(ises A: Dem!nd!2ilit*: ! ' . 6ure a and determinate 4 upon the testator,s death b and generic 4 upon the testator,s death with suspensive term 4 upon arrival of the term conditional (suspensive 4 upon the happening of the condition

B: W"en o7ne s"i% (ests: ! 6ure a and determinate 4 upon the testator,s death b and generic: i. if from the testator,s estate 4 upon the testator,s death ii. if from a .rd person 4 upon acquisition ' with suspensive term 4 upon arrival of the term, but the right to it vests upon the testator,s death . conditional (suspensive 4 upon the testator,s death if the condition is fulfilled (retroacts /3%9: the owner bears the improvements and deteriorations (N;% if the loss is imputable to the person obliged to deliver, the latter is liable for the loss ) & uits (includes unborn offspring and uncollected, ;/5;9 income : !. 6ure a and determinate 4 upon the testator,s death b and generic 4 upon determination, unless the testator provides otherwise ' Gith suspensive term 4 upon arrival of the term . )onditional (suspensive 4 upon the happening of the condition, unless the testator provides otherwise #f the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: ! Cemuneratory legacies or devises ' -egacies or devises declared by the testator to be preferential . -egacies for support 4 -egacies for education 2 -egacies or devises of a specific, determinate thing which forms a part of the estate (must be wholly owned by the testator B All others pro rata -%hose first in order of payment must be paid in full, and if nothing remains for those following, then these are rendered inoperative for lac+ of sufficient property As distinguished from D!!: #nstances when D27 will arise: ! %otal estate cannot cover the total -egacies or 5evises, even when there are no debts against the estate 4 apply D27 ' Fross estate would have been sufficient but becomes insufficient due to payment of debts and expenses: a %estator provided for payment 4 apply D27 b %estator has /3% provided for payment 4 the -egacies or 5evises will be first reduced proportionately (except specific -egacies or 5evises in accordance with the testator,s will , thereafter D27 applies

/ote: -%he thing bequeathed shall be delivered upon the testator,s death: ! Gith all its accessories -All those things, which are necessary for the thing -%he accessory however must be such with respect to the principal thing ' Gith all its accessions -%hat produced by the thing or which is incorporated or attached thereto either naturally or artificially

4D

. #n the condition in which it may be upon the death of the testator. -%he person obliged to deliver the thing must deliver the very thing bequeathed and not 0ust its value (sub0ect to agreement between the parties --egacies of money must be paid in cash, even though the heir or the estate may not have any (hence property can be sold -9xpenses for delivery: -Norne by the estate -Nut these must be necess! * expenses (voluntary delivery -#f there is litigation, the court will determine who bears the costs %he legatee or devisee cannot ta+e possession of the thing bequeathed upon his own authority, but shall request its delivery and possession (Art. D2. Rules on Acce%t!nce !nd Re%udi!tion of Le)!cies o De(ises A: , Le)!c* o De(ise 'ene !l Rule: acceptance may be total or partial E0ce%tion: if the -egacy or 5evise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous part and renounce the onerous8 any other combination is permitted -#f the -egatee or 5evisee dies before accepting or renouncing, his heirs shall exercise such right as to their pro-indiviso share, in the same manner above. B: . Le)!cies o De(ises to s!me eci%ient: ! ' . #f both gratuitous 4 recipient may accept or renounce either or both #f both onerous 4 recipient may accept or renounce either or both #f one gratuitous and the other onerous 4 recipient cannot accept the gratuitous and renounce the onerous8 any other combination is permitted /3%9: Nut if the testator intends them to be inseparable, N3%? must be accepted or renounced C.: Le)!cies o De(ises to one 7"o is !lso ! com%ulso * "ei : recipient may accept either or both the -egacy or 5evise and the legitime D.: Rules A-C will not apply if the testator provides otherwise E.: Rules in c!se of e%udi!tion 2* o inc!%!cit* of Le)!tee o De(isee o 7"en it 2ecomes ineffecti(e ! 6rimarily 4 substitution ' "econdarily 4 accretion . %ertiarily - intestacy C!uses fo e(oc!tion 2* o%e !tion of l!7 A: T !nsfo m!tion Applies 3/-R to specific things belonging to the testator #t must be N3%? in (not mere incorporation : ! form 4 external appearance of the ob0ect ' denomination 4 name by which it is +nown by all, according to its nature and class B: Alien!tion -#t may be onerous or gratuitous -#t must be $3-;/%ACR -%he alienation revo+es the -egacy or 5evise even if for any reason the thing reverts to the testator, 9Q)96%: ! if the reversion is caused by the annulment of the alienation and the cause for annulment was vitiation of consent on the grantor,s part, either by reason of incapacity or of duress ' if the reversion is by virtue of redemption in a sale with pacto de retro -#f the alienation is sub0ect to a suspensive condition, the mere fact of alienation does not revo+e the -egacy or 5evise yet until the condition arrives

27

#f partial, it applies only to the alienated part C: Tot!l Loss D.: Ot"e C!uses: nullity of the will, non-compliance with suspensive conditions, sale of thing to pay debts of the estate, etc. , mista?e as to the name of the thing be9ueathe1 or 1evise1; is of no conse9uence if it is possible to i1entify the thing 2hich the testator inten1e1 to be9ueath or 1evise (ta?e note of the rules in the general provisions on 2ills: parole evi1ence is allo2e1 but oral 1eclarations of the testator is not$ (,rt. +#$ A t. E4E -A disposition made in general terms in favor of the testator,s relatives shall be understood to be in favor of those nearest in degree (;/-9"" provided by the testator -Cefers to degree, whether ascending, descending or collateral -Cight of representation does /3% exist in this institution --imited to relatives in the 2th degree *!!!. !$#&%'AT!*% (%)A"!%S #' D%*!S%S %hey are inoperative because they cannot be implemented by reason of the following: !. #mplied Cevocation '. *or causes inherent in the heir or legatee-predecease, incapacity, repudiation. #t may also arise from legal separation or disinheritance. .. *ortuitous causes i.e. the entire hereditary estate is absorbed by legitimes. 4. #nofficiousness: it is ineffective to the extent that they affect the legitimes. %he remedy is to as+ for reduction. 2. -oss-3bligation is extinguished. #f it is due to the fault of the testator, the legacy is extinguished but if the loss is caused by third person, the legacy is valid. %he third person indemnifies the legatee. LE'AL OR INTESTATE SUCCESSION !. )%$%'A( &'!$"!&(%S: <=>?-=>= ""@ A. Conce%t: --egal or intestate succession is that mode of transmission mortis causa which ta+es place in the absence of the expressed will of the decedent embodied in a testament. #t is a form of succession by operation of law. -' fundamental characteristics: ! legal succession 4 because it is succession conferred by law ' intestate succession 4 because it ta+es place only in the absence of a will B. Le)!l Succession (s. &o ced Succession !. *orced "uccession is coercive where the intention of the owner of property is entirely irrelevant. #n intestate succession, such is presumptive of the will of the decedent. #t see+s to follow what a decedent would have intended had a will been made. '. *orced succession is always superior over intestate succession. #ntestate succession is subordinate to testate succession. #n forced succession, heirs are called forced heirs. #n intestate succession, heirs are called legal or intestate heirs. #t includes relatives up to the fifth degree as well as the estate or the Cepublic. C. B!sic $ inci%les !. As a rule, legal or intestate heirs are relatives by consanguinity up to the fifth degree by the decedent except only for the widow or widower and the "tate. '. Apply the principles of exclusion and the rule of proximity. %he nearest relativesexclude the remoter ones sub0ect to the right of representation but there is no right of representation in the ascending line. %here is right of representation in favor of nephews and nieces of the decedent. .. $ inci%le of Concu ence: %he presence of one class of heirs would not necessarily exclude the others.

2!

E;u!lit* in de) ee is e;u!lit* in s"! es. E0ce%tions: a. #n the ascending line because in this line, it is divided between the maternal and the paternal sides. b. Also for brothers and sisters. *ull blood siblings inherit twice as much as half-blood siblings. c. #n the descending line, legitimate and illegitimate children do not inherit in equal shares. d. Cight of representation: /o equality in shares although there may be equality in proximity. D. W"en Intest!c* T!<es $l!ce a. #f a person dies: ! Githout a will ' Gith a void will . Gill which loses its efficacy /3%9: legally, the result is the same in each instance: there is no will b. Ghen the will: ! 5oes not institute an heir ' 5isposes of property partially (includes cases where the dispositions are void /3%9: intestacy here may be total or partial

c. #n the following instances: ! %he ";"69/"#$9 condition attached to the institution of heir does not happen ' 6redecease . Cepudiation /3%9: Nut intestacy will /3% happen if there is: a "ubstitution b Cight of accretion d. #ncapacity of the heir instituted: ! !7'7 4 relative incapacity ' !7'1 4 donations . !7.' 4 unworthiness /3%9: Nut intestacy will /3% happen if there is: a "ubstitution b Cight of accretion e. 3ther causes of intestacy:

! ?appening of a resolutory condition ' 9xpiration of a resolutory term . /on-compliance or impossibility of complying with the testator,s will 4 6reterition /3%9: it was the intention of the legislature to embrace within the provisions of Art. DB7 all the causes for intestate or legal succession #n default of testamentary heirs, the law vests the inheritance in accordance with the rules hereinafter set forth: #n the legitimate and illegitimate relatives of the deceased #n the surviving spouse #n the "tate

! ' .

5isinheritance of intestate heirs: ! %acit 4 when a voluntary heir is instituted, thereby excluding the intestate heir ' 9xpress 4 exclusion of intestate heir without instituting any heir /3%9: unli+e the disinheritance of compulsory heirs, this exclusion does /3% require any legal cause but depends solely upon the will of the testator ' /otable features of an e0% ess disinheritance of an intestate heir: %he "tate cannot be excluded by this method

2'

'

9xclusion of a person does /3% extend to his descendants and successors unless the will provides for such extension

E. B!sic Rules of Intest!c* a. %he rule of preference of lines -%he . lines of relationship are: ! %he descending ' %he ascending . %he collateral /3%9: the descending excludes the ascending and collateral, and the ascending excludes the collateral b. %he rule of proximity of degree %he nearer exclude the more remote E0ce%tions: ! Cepresentation ' 6reference among lines c. %he rule of equality among relatives of the same degree Celatives in the same degree shall inherit in equal shares E0ce%tions: ! 6reference among lines ' 5istinction between legitimate and illegitimate filiations . Cule of division by line in the ascending line 4 5istinction between whole and half-blood among brothers and sisters as well as nephews and nieces 2 Cepresentation &. Rel!tions"i%s ,. Conce%t -Celationship is mar+ed by degree. 5egree is illustrated by line. A line may be direct or collateral. %he direct line may be ascending or descending. -6roximity of relationship is determined by the number of generations. 9ach generation forms a degree. A se ies of de) ees fo ms ! line 7"ic" m!* eit"e 2e: ,. Di ect 4 that constituted by the series of degrees among ascendants and descendants a 5escending 4 unites the head of the family with those who descend from him b Ascending 4 binds a person with those from whom he descends .. Coll!te !l 4 that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor #t is important to distinguish: ! 5escending and ascending (both direct 4 because descending is preferred over the ascending ' 5irect and collateral 4 because the direct is preferred over the collateral Com%ut!tion of de) ees A: Di ect line -%here is no legal limit to the number of degrees for entitlement to intestate succession (except human mortality -3ne generation M one degree B: Coll!te !l line -)omputation of degrees is important because intestate succession extends 3/-R to the 2th degree -(ode of computation: ! *rom one reference point, ascend to nearest common ancestor ' %hen descend to the other reference point . /umber of generations comprising the ascent and the descent is the degree of collateral relationship /. &ull !nd +!lf-Blood Rel!tions"i%s

2.

Definition: !. &ull 2lood 4 that existing between persons who have the same father and the same mother 2. +!lf 2lood 4 that existing between persons who have the same father, but the not the same mother, or the same mother, but not the same father #mportance of distinction: there is a ':! ratio with reference to: ! Nrothers and sisters ' /ephews and nieces /3%9: with respect to other collateral relatives, it is /3% material A t. ED= -)ontemplates a case where there are several relatives of the same degree and only one or more of them do not wish to succeed -Accretion in intestacy among heirs of the same degree occurs in case of predecease, incapacity, or renunciation, sub0ect to the following rules: ! in case of predecease or incapacity, representation if proper, will prevent accretion ' relatives must be in the same +ind of relationship 4 this is because of the principle of preference of lines in intestate succession8 thus there can be no accretion among a grandchild and a brother (even if both are in the second degree because they are not inheriting together in the first place A t. EDE -6resupposes a case where the only nearest relative or relatives e%udi!te the inheritance, leaving none in the same degree to succeed -9ffect: those of the ne! est de) ee shall inherit in their own right -#n case there is predecease or incapacity by all in the same degree, the same rule applies (9xcept in cases where representation is proper: remember that descendants always inherit by right of representation '. 1!c!ncies in Intest!c* Ghen a vacancy in the estate is created by reason of predecease, incapacity, repudiation of intestate heir, the following shall be observed: ,. $ edece!se a. #t shall pass by right of representation whenever the elements are present. b. #n the absence of representatives, the vacant shares shall pass to the co-heirs in their own rights. %he coheirs here refer to the other heirs belonging to the same class and degree as that who predeceased the decedent or who was incapacitated to inherit from the decedent. c. #n the absence of co-heirs, vacant shares will pass to the relatives next in degree in their own right as a class not as representatives. .. Renunci!tion o Re%udi!tion a. #t shall pass to the co-heirs of the repudiating heir by accretion. 5o not give it to the representatives. 3ne who repudiates cannot be represented. #f all heirs belonging to the same class and degree repudiates, give it to those next in degree not by representation but in their own right until the fifth degree and eventually the Cepublic.

!!. '!)0T # '%&'%S%$TAT!#$: <=A?-=AA ""@ A. Conce%t. -Cepresentation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if the were living or if he would have inherited -%he provisions on right of representation must be strictly interpreted and applied -#nstances when representation operates: ! 6redecease ' #ncapacity or unworthiness . 5isinheritance /3%9: representation /9$9C operates in renunciation -#n what +inds of succession does representation operates:

24

! '

%he legitime #ntestacy

/3%9: there is /3 representation in testamentary succession (its equivalent is =substitutionP B. B!sic Elements !. #t is a right created by law. -Ny law and not by the person represented -%he representative must be qualified to inherit from the decedent, not from the person represented. '. #n all cases, the representative is a relative of the decedent remoter in degree than the person represented. - %he person represented is in fact nearer in degree to the decedent.

C. W"o M!* Re% esent Rules -#n what line does representation obtain: ! Gith respect to the legitime: only in the direct descending line ' Gith respect to intestacy: a #n the direct descending line b #n 3/9 instance in the collateral: nephews and nieces representing brothers and sisters of the deceased (they (;"% concur with uncles and aunts Re% esent!tion of ille)itim!te c"ild en: #f the child to be represented is legitimate 4 only legitimate descendants can represent him #f the child to be represented is illegitimate 4 N3%? legitimate and illegitimate descendants can represent him -An adopted can neither represent nor be represented -A person may represent him whose inheritance he has renounced -%he representative receives only what the person represented would have received. #f there are more than one representative in the same degree, then divide the portion equally, without pre0udice to the distinction between legitimate and illegitimate children, when applicable

! '

Rules on ;u!lific!tion: ! %he representative must be qualified to succeed the decedent ' %he representative need not be qualified to succeed the decedent Re% esent!tion 2* ) !ndc"ild en !nd ne%"e7s#nieces: ! #f all the children are disqualified: grandchildren still inherit by representation ' #f all the brother&sisters are disqualified: the nephews&nieces inherit per capita NOTE: if only some, not all children or brothers&sisters are disqualified, the rule is the same C"ild en !nd descend!nts !l7!*s in"e it 2* i)"t of e% esent!tion D. No Ri)"t of Re% esent!tion !%%lies in t"e &ollo7in): ,. In t"e di ect descendin) line. -5escendants of the decedent will benefit to the right of representation sub0ect to the #C3/-NACC#9C C;-9. .. T"e i)"t of e% esent!tion 7ill !lso 2enefit coll!te !l el!ti(es but only nephews and nieces of the decedent. /ephews and nieces must be qualified. %hey must concur with other brothers and sisters of the decedent. %he right of representation cannot go beyond nephews and nieces. E. W"o C!n In"e it 2* Ri)"t of Re% esent!tion !. -egitimate descendants of the legitimate child who predeceased the decedent or who is incapacitated to inherit from the decedent.

22

'. -egitimate or illegitimate descendant representing an illegitimate child of the decedent. .. /ephews and /ieces concurring with brothers and sisters of the decedent.

&. 1!c!ncies filled 2* Re% esent!tion !. "hares of heirs who predeceased the 5ecedent. Cight to represent applies to #ntestacy and -egitimes. !!!. #'D%' # SU""%SS!#$: <=AB-1?1C ""@ A. B!sic $ inci%les: #t is mandatory. #t is presumptive of the wishes and desires of the 5ecedent had he made. a valid will. #t follows natural law. Rules of E0clusion !nd Concu ence: !. Le)itim!te C"ild en: ! 9xcludes parents, collaterals and "tate ' )oncur with surviving spouse and illegitimate children . Are excluded by no one 2. Ille)itim!te C"ild en: ! 9xcludes illegitimate parents, collaterals and "tate ' )oncur with surviving spouse and legitimate children and legitimate parents . Are excluded by no one c. Le)itim!te $! ents: ! 9xcludes collaterals and "tate ' )oncur with surviving spouse and illegitimate children . Are excluded by legitimate children d. Ille)itim!te $! ents: ! 9xcludes collaterals and "tate ' )oncur with surviving spouse . Are excluded by legitimate children and illegitimate children e. Su (i(in) S%ouse: ! 9xcludes collaterals other than brothers, sisters, nephews and nieces and "tate ' )oncur with legitimate children, illegitimate children, legitimate parents, illegitimate parents, brothers, sisters, nephews and nieces . #s excluded by no one f. B ! ' . ot"e s !nd Siste s9 Ne%"e7s !nd Nieces: 9xcludes all other collaterals and "tate )oncur with surviving spouse Are excluded by legitimate children, illegitimate children, legitimate parents, illegitimate parents,

). Ot"e Coll!te !ls: ! 9xcludes collaterals in remoter degrees and "tate ' )oncur with collaterals in the same degree . Are excluded by legitimate children, illegitimate children, legitimate parents, illegitimate parents, surviving spouse, brothers, sisters, nephews and nieces ". St!te: ! 9xcludes no one ' )oncurs with no one . #s excluded by everyone ORDER O& INTESTATE SUCCESSION A. Le)itim!te Decedent !. )oncurrence by legitimate children, descendants, widow, recogniIed illegitimate children and their descendants.

2B

!7 parts-legitimate !7 parts-widow 2 parts-illegitimate '. -egitimate children and descendants concurring with widow or widower !7 parts-legitimate !7 parts-widow

.. -egitimate children only -9ntire estate, equal division -"ayson: Adopted child shall be deemed to be a legitimate child. Nut the relationship is only between the adopting parent and the adopted child 4. #n the absence of legitimate children and descendants. -)oncurrent succession by legitimate parents or ascendants, widower and illegitimate as a class. --egitimate parents get H of the estate8 spouse and the illegitimate children get J each (the latter to share among themselves if more than ! )oncurrent succession by parents or ascendants and spouse8 or parents and illegitimate as a class8 or spouse and illegitimate as a class -5ivide H, H for each class B. 6arents or ascendants alone or illegitimate alone as a class -entire estate Gidow or widower concurring with brothers or sisters of the decedent or widow or widower concurring with nephews and nieces -H, H "pouse alone, brothers or sisters alone, nephews and nieces alone -entire estate Fo degree by degree up to the fifth degree

2.

7.

1.

D.

!7. Cepublic of the 6hilippines.

B. Ille)itim!te Decedent !. )oncurrence by legitimate children, descendants, widow, recogniIed illegitimate children and their descendants. !7 parts-legitimate !7 parts-widow 2 parts-illegitimate '. -egitimate children and descendants concurring with widow or widower !7 parts-legitimate !7 parts-widow --egitimate children or descendants with illegitimate children or descendants !7 parts-legitimate 2 parts-illegitimate -#llegitimate children or descendants with widow or widower 2 parts-illegitimate !7 parts-spouse .. -egitimate children only8 or illegitimate children only

27

-9ntire estate, equal division 4. 6arents and "pouse -5ivide H, H for each class 9. 6arents or ascendants alone -entire estate Gidow or widower concurring with brothers or sisters of the decedent or widow or widower concurring with nephews and nieces -H, H

*.

F. "pouse alone, brothers or sisters alone, nephews and nieces alone -entire estate sub0ect to iron-barrier rule

?.

Cepublic of the 6hilippines.

/ote: #f the decedent is illegitimate, intestate estate cannot pass beyond nephews and nieces and parents. C. Decedent is !n Ado%ted C"ild !. )oncurrence by legitimate children, descendants, widow, recogniIed illegitimate children and their descendants. !7 parts-legitimate !7 parts-widow 2 parts-illegitimate '. Adopters and Niological parents -5ivide H, H for each class .. Gidow or widower and adopters or #llegitimate children and adopters -5ivide H, H for each class 4. Gidow or widower and #llegitimate children and adopters 5ivide !&., !&., !&. for each class 2. Adopters only 9ntires 9state B. )ollateral relatives up to the fifth degree only. Rules: !. Ghenever legitimate children or descendants are present, fix first the legitimes because these are the minimum shares in intestacy. %he residual estate must be divided in the following proportion. !7 parts for each legitimate child !7 parts for the widow 2 parts for each illegitimate child -"hares in intestacy cannot be less than the legitimes. E0!m%le: '4 million estate: . legitimate children8 spouse8 # illegitimate child Distribution: A-!7 parts---------------- 4 millionY!7&42<BM!,...,...... N-!7 parts---------------- 4 millionY!7&42<BM!,...,...... )-!7 parts---------------- 4 millionY!7&42<BM!,...,......

21

Gidow-!7 parts--------- 4 millionY!7&42<BM!,...,...... #lleg. )hild-2 parts------ ' millionY2&42<BMBBB, BBB.BB 42 parts '. 3ne legitimate child with widow or widower 5ivide H, H for each class ("antillon vs. )A !4 " 2B. .. 6arents or ascendantsYwidow or widowerYillegitimate children: apply Article !777, )) -!&', J, J, respectively. 5o not use legitimes. 4. %wo classes oe groups of intestate heirs concurring with one another - 5ivide H, H for each class -"ub0ect to the proportion of half-blood brothers and sisters. -E0ce%tion: legitimate childrenYillegitimate children: fix their legitimes and then A66-R the !7:2 ratio. 2. 6arents or Ascendants -paternal or maternal -sub0ect to reserve troncal B. Cepublic of the 6hilippines %hrough 9scheat 6roceedings initiated by the "olicitor Feneral. -%he whole estate -Assignment and disposition of the decedent,s assets: a if the decedent is a resident of the 6hilippines at any time: i. personal property 4 to the municipality of last residence ii. real property 4 where situated b if the decedent was never a resident of the 6hilippines: -6ersonal and real property will be given to where such is located +o7 % o%e t* is to 2e used: a *or the benefit of public educational and charitable institutions in the respective municipalities&cities b Alternatively at the instance of an interested party, or motu proprio, the court may order the creation of a permanent trust for the benefit of the institutions concerned -#n order that the "tate may ta+e possession of the property, the Cules on 9scheat in the Cules of )ourt must be followed -#f a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within 4 *e! s from the date the property was delivered to the "tate, such person shall be entitled to the possession of the same, or if sold, the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent Succession!l B! Rule -An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother8 nor shall such children or relatives inherit in the same manner from the illegitimate child -)orpus: %here is no reciprocal succession between legitimate and illegitimate relatives. --eonardo: An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father -5iaI: #t is clear from Art. DD' that the phrase =legitimateX relatives of his father or motherP includes all the +indred of the person spo+en of Rules in $! ti!l Intest!c*: ! %he law of legitimes must be brought into operation in partial intestacy, because the testamentary dispositions can affect only the disposable portion but never the legitimes #f among the concurring intestate heirs there are compulsory heirs, whose legal or intestate portions exceed their respective legitimes, then the amount of the testamentary disposition must be deducted from the disposable portion, to be borne by all the intestate heirs in the proportions that they are entitled to receive from such disposable portion as intestate heirs

'

2D

#f the legal or intestate share of a compulsory heir is equal to his legitime, then the amount of the testamentary disposition must be deducted only from the legal or intestate shares of the others, in the proportion stated above #f the testamentary dispositions consume the entire disposable portion, then the intestate heirs who are compulsory heirs will get only their legitimes, and those who are not compulsory heirs will get nothing. $RO1ISIONS COMMON TO BOT+ TESTATE AND INTESTATE SUCCESSION ACCRETION

!. "#$"%&T ,ccretion is a right by virtue of 2hich; 2hen t2o or more persons are calle1 to the same inheritance; 1evise or legacy; the part assigne1 to the one 2ho renounces or cannot receive his share; or 2ho 1ie1 before the testator; is a11e1 or incorporate1 to that of his co/heirs; co/1evisees; or co/legatees. (,rt. .!.+.$ - #mplied institution of co-heirs based on the will of the decedent. -Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devises or co-legatees -%he testator can expressly provide that there shall be no accretion among persons who would otherwise be entitled thereto -)onversely, the testator may validly provide for accretion in a case where no accretion would ta+e place under the provisions of the law -%he repudiation of accretion is permissible -%here can be accretion 3/-R when there is no representation 3ccasions for the operation of accretion: ! renunciation ' predecease . incapacity Elements of Acc etion ! %wo or more persons (several sub0ects are called to the same inheritance or to the same portion thereof, pro in1iviso (single ob0ect

(eaning of pro in1iviso: a either the co-heirs are instituted without individual designation of shares b the co-heirs are instituted with the specification that they share equally (in equal shares or that they have the same fractional sharing for each c will accretion occur if the fractional sharings of the co-heirs are unequalL %olentino: /3 Nalane: R9" O$: if it refers to the estate as a whole, accretion applies8 if actual property, there is no accretion -#t must be in the same will and under the same testamentary disposition, without the testator ma+ing a distribution of shares among them or fixing a quota or amount for each heir by designations which ma+e each one the owner of a separate mass of property -%he resolution of the question will always depend upon the language of the will and the interpretation which may be placed thereon by the courts -#n case of money or fungible goods, if the share of each heir is not earmar+ed, there shall be a right of accretion ' $acancy of "hare -Cenunciation, predecease, or incapacity of one (or more but less than all of the instituted heirs -%olentino,s other causes which may give rise to accretion in testamentary succession: a b c non-fulfillment of a suspensive condition imposed upon the heir instituted absence of the heir, long enough to declare him presumptively dead inefficacy or nullity of the testamentary disposition (e.g. error in the name, surname or characteristics of the heir concur with the fact that the person cannot otherwise be identified

B7

/3%9: #n testamentary succession, accretion is subordinate to substitution if the testator has so provided. %his is because substitution is the testator,s express intent, whereas accretion is merely his implied intent. #f there is neither substitution nor accretion, the part left vacant will lapse into intestacy II. ACCRETION IN INTESTAC6 A$$LIES ! #n repudiation or renunciation ' #n predecease, only if representation does not ta+e place (%olentino: there is no accretion here . #n incapacity or unworthiness, only if representation does not ta+e place NOTE: accretion really applies to testamentary dispositions only. Nut the law says it is also applicable to intestacy $ o(isions 7it" e)! d to "ei s -%he heirs to whom the portion goes by the right of accretion ta+e it in the same proportion that they inherit -%he 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, 9Q)96%: ! in testamentary succession, if the testator provides otherwise ' if the obligation is purely personal, and hence intransmissible -Among the compulsory heirs the right of accretion shall ta+e place only when the free portion is left to two or more of them, or to any one of them and to a stranger -/3 accretion in legitime: should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right and not by the right of accretion CA$ACIT6 TO SUCCEED I. "#$"%&T -%hese provisions apply to N3%? testate and intestate -%he nationality of the decedent governs with regard to capacity to succeed. -%he critical time to consider is the (3(9/% 3* 59A%?. #f the institution is conditional, the time of t"e com%li!nce 7it" t"e condition shall also be considered (there must be capacity to succeed during that time -6rescriptive period is 2 years from the time the disqualified person too+ possession for: ! An action for a declaration of incapacity8 and ' *or the recovery of the inheritance, devise or legacy /3%9: it may be brought by any one who may have an interest in the succession -Acceptance: -)onsummation of succession -(anifestation of the heir to ma+e his own the property, rights and obligations transmitted to him -#n legacies and devises, you cannot accept those which are beneficial and re0ect the onerous -%he acceptance retroacts to the moment of death II. /0# A'% "A&A"!TAT%D ,.: 'ene !l ci(il c!%!cit*: 6ersons who are not incapacitated may inherit by will or by operation of law (presumption of capacity . #t applies to both natural and 0uridical persons. a /atural persons i. (ust be living at the moment of succession (6arish 6riest , except in case of representation when it is proper ii. A child already conceived provided it be born later b Oudicial persons 9ntities given legal personalities (ust also be =livingP 4 invested by law or charter with a 0uridical personality !7'B (9nabling )lause : A testamentary disposition may be made to the "tate, provinces, municipal corporations, private corporations, organiIations, or associations (/3%9: %he law allows associations to succeed even though they do not have 0uridical personalities /3%9: %he basis of capacity is 0uridical personality or capacity (the fitness to be the sub0ect of 0uridical relations which may be brought about either by death (natural or recognition (0uridical A% %?9 (3(9/% of death of the decedent. .: Not inc!%!cit!ted 2* l!7

B!

!: i.

ii.

iii.

iv. v. vi.

Un7o t"iness 8,?/.: )ases of: -Abandonment of child (broad view -#nducement to lead a corrupt life (there must be an element of permanence and habituality -Attempt on the child,s virtue (that would amount to rape, acts of lasciviousness or seduction 8 O$: an attempt on the granddaughter is an attempt on the mother Attempt on life of the testator, spouse, descendant or ascendant -Attempt here is satisfied as long as there is an intent to +ill -%here must be a *#/A- conviction *alse accusation -%here must be an accusation -#t was 0udicially declared as false and there was an !c;uitt!l -%he offense charged is punishable by B years or more $iolent death (doesn,t apply unless there is a law Adultery or concubinage with the test!to Bs s%ouse -%here must be a final conviction Acts relating to a will: )ausing the testator to ma+e a will (must be accompanied by vices of consent )ausing the testator to change a will (must be accompanied by vices of consent 6reventing the decedent to ma+e a will (must be accompanied by vices of consent 6reventing the testator to revo+e a will (must be accompanied by vices of consent "upplanting, concealing or altering a will(must be accompanied by vices of consent *alsifying or forging a will

/3%9: %his is based on morality. #t applies to N3%? testate and intestate and includes le)itimes 6AC53/ (applies only in unworthiness : may either be: i. 9xpress - written ii. #mplied 4 elements: 9xecution of the offended party in the will of the offender,s name %here must be +nowledge of the unworthiness %he execution must be A*%9C the act of unworthiness was done !!!. 9!$DS # !$"A&A"!T+ A. A2solute Inc!%!cit* A person cannot inherit from anyone under any circumstances. Ouridical 6ersons: #f expressly prohibited by their charters. /atural persons: #f they are devoid of legal or Ouridical capacity. Un2o n C"ild: *or all purposes favorable to him, he is considered born. ?e must meet however the conditions for legal birth to wit: a. #ntrauterine life of 7 months b. Alive at the moment of complete separation from the mother,s womb c. Alive for '4 hours. +OWE1ER9 in the following instances, the institution is valid although the heir is devoid of legal personality8 !. %estator disposes his estate for the benefit of testatorDs soul. 9xample: # hereby dispose my estate for the benefit of my soul. %his is valid. %he estate shall be distributed as follows: a. H to the church where the testator belongs at the time of his death so that the former may use the inheritance for pious wor+s in favor of the testator,s soul. b. H to the "tate-for the use of public schools or charitable institutions. '. Institution of t"e $oo An ad hoc committee of three shall be created. a. )ity or municipal mayor b. )ity or municipal treasurer c. (%) 0udge of the city or municipality

B'

%hey are tas+ed to determine the persons belonging to the class and are qualified to inherit. B. Rel!ti(e Inc!%!cit* 3ne is incapacitated to inherit from a specified %estator or decedent. ' ounds: ,. B* e!son of %ossi2le Undue Influence (a %he priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period8 (b %he relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organiIation, or institution to which such priest or minister may belong8 (c A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof8 nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid8 (d Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children8 (e Any physician, surgeon, nurse, health officer or druggist who too+ care of the testator during his last illness8 (f #ndividuals, associations and corporations not permitted by law to inherit. .. &o Conside !tion of $u2lic $olic* o $u2lic Mo !ls (a %hose made between persons who were guilty of adultery or concubinage8 (b %hose made between persons found guilty of the same criminal offense, in consideration thereof8 (c %hose made to a public officer or his wife, descendants and ascendants, by reason of his office. /. B* Re!son of Un7o t"iness (a 6arents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue8 (b Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants8 (c 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 groundless8 (d Any heir of full age who, having +nowledge 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 ta+en action8 this prohibition shall not apply to cases wherein, according to law, there is no obligation to ma+e an accusation8 (e Any person convicted of adultery or concubinage with the spouse of the testator8 (f Any person who by fraud, violence, intimidation, or undue influence should cause the testator to ma+e a will or to change one already made8 (g Any person who by the same means prevents another from ma+ing a will, or from revo+ing one already made, or who supplants, conceals, or alters the latterWs will8 (h Any person who falsifies or forges a supposed will of the decedent. $ o"i2ition on Inte %osition Inte %osition m!* 2e m!de in / 7!*s: ! Ny the institution of a person who has capacity, with a verbal charge or direction to deliver the inheritance to the incapacitated person ' Ny disguising the disposition in the form of a contract . Ny simulating debts in favor of the incapacitated person %he prohibited interposition must always be 6C3$95 %his applies only to incapacity under !7'7 and the prohibition on donations under !7'1

Ot"e el!ted % o(isions: ! Cepresentation is present in unworthiness E0tent of e% esent!tion 4 extends not only to the legitime, but also to whatever portion in intestate succession the person represented may have been entitled to

B.

-%he person so excluded shall /3% en0oy the usufruct and administration of the property thus inherited by his children Alienations of hereditary property, and acts of administration performed by the excluded heir, 2efo e t"e 5udici!l o de of e0clusion, are valid as to .rd persons who acted in good faith -%he validity of the alienation is determined by the good faith or bad faith of the transferee not of the excluded heir (transferor -9lements of good faith of the transferee: a ?e must have acquired the thing fo (!lue b Githout +nowledge of the transferor,s title -#n case of valid alienations by the disqualified heir, the rightful heirs are not without a remedy, they may go after the disqualified heir for damages -?owever, distinguish between a person who was /9$9C an heir, in which case follow the rules on sales %he un7o t"* "ei who is excluded from the succession has the following rights: a. %o demand indemnity for any expenses incurred in the preservation of the property b. %o enforce such credits as he may have against the estate %he disqualified heir, who too+ possession of the hereditary property disregarding the provision stated in the preceding articles shall: a. Ne obligated to return the property with accessions b. Ne liable for fruits which were received and could have been received

ACCE$TANCE AND RE$UDIATION Definitions Acce%t!nce 4 the act by which the person called to succeed by universal title either by the testator or by law manifests his will of ma+ing his own the universality of the rights and obligations which are transmitted to him Re%udi!tion 4 the manifestation by the heir of his desire not to succeed to the said universality C"! !cte istics ! #t is purely voluntary and free ' 6AC%#A- acceptance or repudiation is permissible . #ts effects shall always retroact to the moment of the decedent,s death 4 Acceptance or repudiation with a term or condition is prohibited Re;uisites ! the heir must be certain of the death of the person from whom he is to inherit8 A/5 ' the heir must be certain of his rights to the inheritance W"oI ! Any person who has the capacity to act ' As to minor or incapacitated persons: a Ny their parents or guardians 4 when the acceptance is purely beneficial to the minor or incapacitated person $! ents !nd )u! di!ns m!* not t"e efo e e%udi!te t"e in"e it!nce of t"ei 7! ds 7it"out 5udici!l !%% o(!l. T"is is 2ec!use e%udi!tion !mounts to !n !lien!tion of % o%e t* 7"ic" must %!ss t"e cou tJs sc utin* in o de to % otect t"e inte est of t"e 7! d. Not "!(in) 2een 5udici!ll* !ut"o iLed9 t"e Rele!se !nd W!i(e of Cl!im in t"e inst!nt c!se is (oid !nd 7ill not 2! % i(!te es%ondents f om !sse tin) t"ei i)"ts !s "ei s of t"e dece!sed. 8'u* (s. CA. '.R. No. ,D/M?M Se%tem2e ,49 .??D: b. Gith court approval Ghen it is sub0ect to a charge or condition to be performed by the beneficiary (%olentino . As to inheritance left to the poor: a the person designated by the testator to determine the beneficiaries can only accept, not re0ect the grant b the persons selected as qualified recipients are, for their own part, free to accept or renounce the benefit

B4

4 2

As to corporations, associations, institutions and entities qualified to acquire property: a acceptance may be made by their lawful representatives b repudiation must be with the approval of the court 6ublic official establishments can neither accept not repudiate an inheritance without the approval of the government (department head N%u2lic est!2lis"mentG refers to organiIations which have their own social and public purpose, such as for culture, beneficence and other similar purposes, separate from the mere manifestations of the governmental functions of the "tate A married person of age and not incapacitated for any reason may accept or renounce an inheritance without his or her spouse,s consent As to deaf-mutes: a can read and write 4 may accept or repudiate personally or through an agent b cannot read and write -guardians may accept -but repudiation must be with 0udicial approval

B 7

Kinds of Acce%t!nce A 9xpress ! 6ublic document8 or ' 6rivate document %acit -3ne resulting from acts by which the intention to accept is necessarily implied, 3C which one would have no right to do except in the capacity of an heir 9xamples: ! Ghen the heir sells, donates or assigns his right ' Ghen the heir renounces his right for the benefit of one or more heirs . Ghen the renunciation is in favor of A-- the co-heirs but in proportions different from those in which they would receive by accretion 4 Ghen the renunciation is in favor of all heirs indiscriminately for )3/"#59CA%#3/ 2 Ghen the heir demands partition of the inheritance B Ghen he alienates some ob0ects of the inheritance 7 Ghen he performs such li+e acts which show the clear intention to accept Acts not constituting acceptance: ! Absolute repudiation: repudiation without consideration in favor of the persons to whom his share will pass in the absence of the heir repudiating ' Acts which the heir has the right to perform even without the character of an heir (acts of mere preservation or provisional administration ) #mplied -Githin .7 days after the court issued an order for the distribution of the estate, the heirs, devisees and legatees shall signify whether they accept or repudiate8 failure to do so within that time is deemed an acceptance

&o m of Renunci!tion ! 6ublic or authentic instrument =Aut"entic inst umentG refers to one whose genuineness is admitted or clearly proved ' 6etition filed in the settlement proceedings Accion $!uli!n! -%he right given to creditors to impugn transactions of their debtors which will pre0udice them Re;uisites: ! %here must be a repudiation by the heir-debtor in legal form, a repudiation valid in law ' %hat there must be credits existing against the heir who repudiates . %hat 0udicial authoriIation must be obtained before the creditors may accept for the debtor 4 %hat the act of repudiation % e5udices the claims of the creditors -%hey must be creditors before the repudiation

B2

-%he heir-debtor must have received something from the estate -%he heir-debtor must not have other properties -%he right of the creditor to accept the inheritance in the name of the debtor extends only to the amount or value necessary to satisfy the credit. Any amount in excess of that, may be validly renounced by the debtor-heir. $ o(isions 7it" e)! d to "ei s -#f the heir should die without having accepted or repudiated the inheritance, his right shall be transmitted to his heirs (but the heir,s heir (;"% have accepted his own predecessor,s inheritance -"hould there be several heirs called to the inheritance, some of them may accept and the others may repudiate it -Ghen a person is N3%? a testamentary heir A/5 an intestate heir with respect to the same inheritance: ! if he renounces as testamentary heir 4 he is deemed to have renounced as intestate heir as well ' if he renounces as intestate heir G#%?3;% @/3G-95F9 of his being a testamentary heir 4 he is /3% deemed to have renounced as testamentary heir and may therefore accept or renounce separately in the latter capacity Nalane: if with +nowledge, he can still accept /3%9: %his rule does /3% apply to the legitime I e(oc!2ilit* of !n !cce%t!nce o e%udi!tion E0ce%tions: ! $itiated consent a (ista+e or error -(ust refer to the substance of the thing (relative who is alive but is mista+en for another who has died or the principal condition -%he error: i. (ust not be due to the negligence of the heir ii. (ust be based on facts and circumstances which the heir could not have +nown notwithstanding due diligence on his part iii. (ust be distinguished from errors attributable to the heir who fails to appraise exactly the amount of the estate, or who believing that he will win a litigation loses the same, and the li+e b $iolence -Cefers to external acts imposed upon the heir c #ntimidation -Gor+s internally upon the mind of the heir forcing him to accept or repudiate d ;ndue influence e *raud -(ust be practiced by a .rd person -(ust be serious and consisting of insidious words or machinations Appearance of an un+nown will -Ghere the will institutes another person or when it grants additional legacies or revo+ed some -Nut it does /3% apply when the un+nown will only clarifies a doubtful clause, or modifies insignificant details or a previous one 3ther )auses -Acceptance or repudiation by a person who is not entitled to the inheritance -Ghen the institution depends upon the fulfillment of a suspensive condition which is not realiIed -%he birth of a posthumous child who is not born or is born dead

'

COLLATION !. "#$"%&T A$D &U'&#S% %o equaliIe or tarify the shares of compulsory heirs not 0ust as to quantity of the inheritance but as to quality as well. #t is demandable as a matter of right to those compulsory heirs who are pre0udiced. Coll!tion is t"e !ct 2* (i tue of 7"ic" descend!nts o ot"e fo ced "ei s 7"o inte (ene in t"e di(ision of t"e in"e it!nce of !n !scend!nt 2 in) into t"e common m!ss9 t"e % o%e t* 7"ic" t"e* ecei(ed f om "im9 so t"!t t"e di(ision m!* 2e m!de !cco din) to l!7 !nd t"e 7ill of t"e test!to . Coll!tion is onl* e;ui ed of com%ulso * "ei s succeedin) 7it" ot"e com%ulso * "ei s !nd in(ol(es % o%e t* o i)"ts ecei(ed 2* don!tion o ) !tuitous title du in) t"e lifetime of t"e decedent. T"e %u %ose is to !tt!in e;u!lit* !mon) t"e com%ulso * "ei s in so f! !s %ossi2le fo it is % esumed t"!t t"e intention of

BB

t"e test!to o % edecesso in inte est m!<in) ! don!tion o ) !tuitous t !nsfe to ! fo ced "ei is to )i(e "im somet"in) in !d(!nce on !ccount of "is s"! e in t"e est!te9 !nd t"!t t"e % edecesso Js 7ill is to t e!t !ll "is "ei s e;u!ll*9 in t"e !2sence of !n* e0% ession to t"e cont ! *. Coll!tion does not im%ose !n* lien on t"e % o%e t* o t"e su25ect m!tte of coll!tion!2le don!tion. W"!t is 2 ou)"t to coll!tion is not t"e % o%e t* don!ted itself9 2ut !t"e t"e (!lue of suc" % o%e t* !t t"e time it 7!s don!ted9 t"e !tion!le 2ein) t"!t t"e don!tion is ! e!l !lien!tion 7"ic" con(e*s o7ne s"i% u%on its !cce%t!nce9 "ence !n* inc e!se in (!lue o !n* dete io !tion o loss t"e eof is fo t"e !ccount of t"e "ei o donee. 81iLconde (s. CA9 '.R. No. ,,=33E &e2 u! * ,,9 ,EE=:

!!. "#((AT!#$ AS U$D%'ST##D !$ T0'%% S%$S%S ,. Coll!tion !s Com%ut!tion: A process whereby the value of all donations intervivos made by the testator are added to the value of the estate 6urpose: %o arrive at the value of the inheritance due to the heirs. .. Coll!tion 2* Im%ut!tion %his requires that the value of the donations intervivos made to compulsory heirs be charged against their legitimes because these are considered advances to their legitimes. "imilarly, the value of the donation intervivos made to strangers must be imputed or charged against the *ree 5isposable 6ortion because they are considered advances from the *56. /. Coll!tion 2* Retu n o Reduction %his requires a return of either of the value of the property or the property itself to he estate because they encroached on the value of the legitime. !!!. '%5U!S!T%S !. %wo or more compulsory heirs. '. Act of liberality or gratuitous benefit conferred by a decedent to a compulsory heir. -#t may be direct as in donation intervivos or indirect. 9xamples: #ndirect a. "um of money paid by a parent for the heir,s election expenses. b. "um paid by a parent for the debts of a compulsory heir. c. "um paid for fines or similar expenses incurred by an heir. /ote: a. "ums paid for support, education, medical attendance including expenses on apprenticeship, etc.- /3% collatable b. )areer expenses for any professional or vocational course are sub0ect to collation if the same was required by the decedent or when it is inofficious. #n the absence of proof, H is collatable. c. Gedding gifts given by the parent to a child if consisting of 0ewelry, clothing or outfit are chargeable against the 5isposable *ree 6ortion provided it does not exceed !&!7 of the 5*6. Any excess shall be chargeable to the legitime. #f it consists of other items other than those mentioned, it is chargeable to the legitime. d. Gedding reception paid by the parent is collatable. e. 6roperty left by will to a compulsory heir is not collatable unless it is in satisfaction of legitime, if so, it can be sub0ected to reduction when found to be inofficious.

..

)omplete #dentity between the heirs and the Neneficiaries of the Act of -iberality. %he identity may be actual or constructive. %he compulsory heirs must be the same persons who would be benefited otherwise, there would be no collation. ?owever, in the case of grandchildren, when they inherit by right of representation, they shall be required to bring bach to collation everything that their parents received. (oreover, one who repudiates has no obligation to bring bac+ to collation any donated property received by him. %he donation is entirely charged against the 5isposable *ree 6ortion.

B7

T"us9 t"e % o2!te cou tJs o de of coll!tion !)!inst %etitione is un7! !nted fo t"e o2li)!tion to coll!te is lod)ed 7it" Est ellit!9 t"e "ei 9 !nd not to "e ein %etitione 7"o does not "!(e !n* inte est in R!f!elJs est!te. As it st!nds9 coll!tion of t"e $! !O!;ue % o%e t* is im% o%e fo 9 to e%e!t9 coll!tion co(e s onl* % o%e ties ) !tuitousl* )i(en 2* t"e decedent du in) "is lifetime to "is com%ulso * "ei s 7"ic" f!ct does not o2t!in !nent t"e t !nsfe of t"e $! !O!;ue % o%e t*. Mo eo(e 9 R!f!el9 in ! %u2lic inst ument9 (olunt! il* !nd 7illfull* 7!i(ed !n* @cl!ims9 i)"ts9 o7ne s"i% !nd %! tici%!tion !s "ei @ in t"e $! !O!;ue % o%e t*. &in!ll*9 it is futile fo t"e % o2!te cou t to !sce t!in 7"et"e o not t"e 1!lenLuel! % o%e t* m!* 2e 2 ou)"t to coll!tion. Est ellit!9 it s"ould 2e st essed9 died !"e!d of R!f!el. In f!ct9 it 7!s R!f!el 7"o in"e ited f om Est ellit! !n !mount mo e t"!n t"e (!lue of t"e 1!lenLuel! % o%e t*. +ence9 e(en !ssumin) t"!t t"e 1!lenLuel! % o%e t* m!* 2e coll!ted coll!tion m!* not 2e !llo7ed !s t"e (!lue of t"e 1!lenLuel! % o%e t* "!s lon) 2een etu ned to t"e est!te of R!f!el. T"e efo e9 !n* dete min!tion 2* t"e % o2!te cou t on t"e m!tte se (es no (!lid !nd 2indin) %u %ose. 81iLconde (s. CA9 '.R. No. ,,=33E &e2 u! * ,,9 ,EE=: 4. %here should be no prohibition or inofficiousness. Rule on Inofficious dis%ositions -%estamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive -3nly compulsory heirs whose legitimes are impaired may bring an action to reduce -%hose entitled to as+ for reduction of inofficious donations cannot renounce their right during the lifetime of the donor. !*. 1%T0#DS # "#((AT!#$ !. )3--A%#3/ NR $A-;9" -"ame thing donated shall not be brought bac+ to the hereditary estate. )ollate only the values thereof at the time of donation. -#nclude the values of all the fruits accruing from the time of death of the decedent because they are considered as accrued property in the value of the property. --oss, deterioration or improvement shall be borne by the donee because he is the owner. -%he value of the donated property shall be imputed or subtracted from the ultimate share of the heir in the hereditary estate. -%he other co-heirs are entitled to receive an equivalent amount or property as that already received by the donee-compulsory heir. '. )3--A%#3/ NR C9%;C/#/F %?9 6C369C%R 53/A%95 #/ @#/5 --oss, deterioration or improvement is borne by the estate. -%he immovable collated should entitle the donee reimbursement for all +inds of improvements that increased the value of the thing before partition. -%he donation made by both parents to one compulsory heir is sub0ect of collation that is H for each parent. Ste%s to dete mine t"e le)itime ! 5etermination of the value of the property which remains at the time of the testator,s death -determination of the value of the property: a #f there are 0udicial proceedings 4 administrator assisted by tax appraisers b #f no 0udicial proceedings 4 the true value, /3% the assessed value /3%9: sentimental value shall /3% be considered ' 5etermination of the obligations, debts and charges which have to be paid out or deducted from the value of the property thus left -#f the obligation is for the !st time created by testamentary disposition, it is /3% deductible -3nly obligations with monetary value which are not extinguished by death are considered here 5etermination of the difference between the assets and the liabilities, giving rise to the net hereditary estate %he addition to the net value thus found, of the value, at the time they were made, of donations sub0ect to collation -#ncludes donations made to N3%? compulsory heirs and strangers . conce%ts of Coll!tion 2* Tolentino:

. 4

B1

a b

(ere mathematical operation by the addition of the value of the donations made by the testator to the value of the hereditary estate %he return to the hereditary estate of property disposed of by lucrative title by the testator during his lifetime

S%eci!l %u %ose of coll!tion: property donated may be ta+en =in the account of the partitionP, and such value charged against the share of the compulsory heir donee in the legitime -)ollation should ta+e place 3/-R when there are compulsory heirs, and their presence is determined at the time of the testator,s death, /3% at the time the donation was made -%he value of the donations were sub0ect to collation is determined as of the time when the donations were made even though their 0ust value may not then have been assessed. -Any increase or decrease of the thing is for the donee,s account -%he true value at the time of the donation must be 6C3$95 by competent evidence -Aside from ordinary donations, tacit or indirect donations are included 2 5etermination of the amount of the legitimes by getting from the total thus found the portion that the law provides as legitime of each compulsory heir

Rules on Coll!tion !nd Im%ut!tion ! 5onations inter vivos to compulsory heirs: -#mputed to the legitime (considered as an advance -%he surviving spouse is not included since donations during marriage between spouses is prohibited E0ce%tions (the donation in this case will be treated as if given to a stranger : a #f the donor provided otherwise b %he donation exceeds the legitime c %he compulsory heir: i. 5ies ii. #s incapacitated iii. #s disinherited /3%9: and there are /3 descendants d Amount given for the pursuit of vocational, professional or other careers e Cepudiation by the heir f %estamentary dispositions E0ce%tion to t"e e0ce%tion: if the donation is inofficious, they will be reduced ' 5onations inter vivos to strangers (from the free portion : -A stranger is anyone who does not succeed as a compulsory heir -/ecessarily imputed to the disposable portion, hence if it exceeds the latter, then it will have to be reduced as inofficious -%here are /3 exceptions Reduction of dis%ositions 7"en t"e le)itimes ! e im%!i ed (ethod of reduction (Art. D!! : ! Ceduce pro rata the non-preferred legacies and devises and testamentary dispositions ' Ceduce pro rata the preferred legacies and devises (contra D27 . Ceduce the donations inter vivos according to the inverse order of their dates (if on the same date, they are reduced pro rata /3%9: these reductions shall be to the extent required to complete the legitimes, even if in the process the disposition is reduced to nothing

De(ises#Le)!cies of usuf uct#life !nnuities#%ensions -%he value of such is difficult to determine, because it depends upon the length of life of the recipient Rules to follo7: ! #f upon being capitaliIed according to actuarial standards, the value of the grant exceeds the free portion, it has to be reduced because the legitime cannot be impaired ' %he testator can impose no usufruct or any other encumbrance on the part that passes as legitime . "ub0ect to the two rules 0ust stated, the compulsory heirs may elect between ceding to the devisee&legatee the free portion (or the proportional part thereof corresponding to the said legacy&devise, in case there are other dispositions or complying with the terms of the usufruct or life annuity or pension

BD

Rule on test!ment! * dis%ositions to com%ulso * "ei s 'ene !l Rule: they should not be imputed to the legitime, but to the free portion8 hence the compulsory heir receives the testamentary disposition in addition to his legitime E0ce%tion: if the testator provides otherwise, in which case the testamentary disposition will be merged with the legitime Ce t!in ules on coll!tion !s im%ut!tion A Frandchildren inheriting by representation concurrently with children (uncles and aunts of the grandchildren who are inheriting in their own right8 the grandchildren have to collate or impute: ! Ghatever the parent whom they are representing would have been obliged to collate ' Ghatever they themselves have received from the grandparent by gratuitous title N 6arents 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 ) /either shall donations to the spouse of the child be brought to collation8 but if they have been given by the parent to the spouses 0ointly, the child shall be obliged to bring to collation H of the thing donated 5 #n the collation of a donation made by both parents, H shall be brought to the inheritance of the father, and the other half, to that of the mother. %hat given by one alone shall be brought to collation in his or her inheritance W"!t 7ould 2e coll!ted A %he following are totally /3% sub0ect to collation: ! "upport ' 9ducation (limited to secondary instruction . (edical attendance (even in extraordinary illness 4 Apprenticeship 2 3rdinary equipment B )ustomary gifts N 9xpenses for child,s professional, vocational or other career: Feneral Cule: /3% charged against the recipient,s legitime, but against the free portion ;/-9"": the parents provide otherwise in which case it will be charged against the legitime, but the child is entitled to deduct from said amount the sum corresponding to what his parents would have spent on him had he stayed at home ). "ums paid by a parent for the child: ! #n satisfaction for the latter,s debts ' 9lection expenses . *ines 4 "imilar expenses ) %he following items given by ascendants to their ascendants are exempted from collation: ! Gedding gifts ' Oewelry . )lothing and outfit /3%9: ?owever, the presents should not exceed !&!7 of the sum disposable by will. #f it does exceed, it will be imputed to the legitime if a compulsory heir or otherwise as inofficious it if exceeds !&!7 of the free portion if a stranger E;u!lit* of "ei s -%here should not only be equivalence in amount but as far as possible, the property should be of the same nature, class and quality -#n case no such equality can be effected: ! #f immovable 4 equivalent in case of securities8 or in its absence, so much of the other property shall be sold at public auction ' #f movable 4 right to select an equivalent of other personal property of the inheritance at its 0ust price -Noth rules above will yield to a contrary agreement among the heirs

On f uits !nd inte ests -#t shall not pertain to the estate 9Q)96% from the day on which the succession is opened -"tandard of assessment: fruits and interest of the property of the estate of the same +ind and quality as that sub0ect to collation Rules on e0%enses 7"en t"e donee is o2li)ed to etu n ! %he donation is %3%A--R inofficious: a /ecessary expenses 4 full extent reimbursement b ;seful expenses 4 full extent provided it is still in existence c 3rnamental expenses 4 no reimbursement, but right of removal granted if no in0ury to the estate will be caused ' %he donation is 6AC%-R inofficious: a /ecessary expenses 4 reimbursement is partial, in proportion to the value to be returned

77

b c

;seful expenses 4 reimbursement is partial, in proportion to the value to be returned 3rnamental expenses 4 no reimbursement, but right of removal granted if no in0ury to the estate will be caused8 unless the property is physically divided and the ornament happens to be located in the portion assigned to him, in which case he will have all the rights of ownership

Administ !tion % oceedin)s "hould any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are sub0ect to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given $ esc i%ti(e $e iod: Ri)"t to Dem!nd Coll!tion 'ene !l Rule: #t is #(6C9")C#6%#N-9 while the donor is still alive. E0ce%tions: !f the donor is dead: a. %en years-because the donee has 0ust title, thus in good faith. b. #f there was a simulated contract, it is imprescriptible because it is a decl8aration of nullity of a $oid )ontract. c. #f %)% was issued, !7 years, because it is in the action for recovery or conveyance. d. #f there is a voidable contract, 4 years, because it is a declaration of nullity of a $oidable contract. $ARTITION AND DISTRIBUTION !. "#$"%&T # &A'T!T!#$ Partition; in general; is the separation; 1ivision an1 assignment of a thing hel1 in common among those to 2hom it may belong. 7he thing itself may be 1ivi1e1; or its value. (,rt. .!5 $ -#t refers to any act of separation, division or assignment of a thing, movable or immovable, which is owned in common. -#t may be a division of the thing itself if physically possible or as division of the value of the thing. -%he denomination of )ontract is immaterial as long as there is an act of division, the same refers to partition. -#t is not a (ode of Acquiring 3wnership. $! tition is t"e se%! !tion9 di(ision !nd !ssi)nment of ! t"in) "eld in common !mon) t"ose to 7"om it m!* 2elon). If m!* 2e effected e0t !5udici!ll* 2* t"e "ei s t"emsel(es t" ou)" ! %u2lic inst ument filed 2efo e t"e e)iste of deeds. +o7e(e 9 !s 2et7een t"e %! ties9 ! %u2lic inst ument is neit"e constituti(e no !n in"e ent element of ! cont !ct of %! tition. Since e)ist !tion se (es !s const ucti(e notice to t"i d %e sons9 !n o !l %! tition 2* t"e "ei s is (!lid if no c edito s ! e !ffected. Mo eo(e 9 e(en t"e e;ui ement of ! 7 itten memo !ndum unde t"e st!tute of f !uds does not !%%l* to %! titions effected 2* t"e "ei s 7"e e no c edito s ! e in(ol(ed conside in) t"!t suc" t !ns!ction is not ! con(e*!nce of % o%e t* esultin) in c"!n)e of o7ne s"i% 2ut me el* ! desi)n!tion !nd se) e)!tion of t"!t %! t 7"ic" 2elon)s to e!c" "ei . 8M!est !do (s. CA9 '.R. No. ,///34 M! c" E9 .???:

W"en does %! tition t!<e %l!ceI 'ene !l Rule: testate and intestate proceedings E0ce%tions: ! %estator himself partitions either by will or an act inter vivos ' 9xtra-0udicial partition by the heirs . "ummary settlement of estate

Kinds of $! tition ,. Actu!l 4 physical division of the thing among co-heirs .. Const ucti(e 4 any act, other than physical division, which terminates the co-ownership:

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!.: 9very act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise or any other transaction 2.: "hould a thing be indivisible, or would be much impaired by its being divided, it may be ad0udicated to one of the heirs, provided he shall pay the other the excess in cash8 nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done !!. %4T'A3UD!"!A( &A'T!T!#$ a. By the testator;Decedent During (ifetime;&artition !nter.i.os Shoul1 a person ma?e partition of his estate by an act inter vivos; or by 2ill; such partition shall be respecte1; insofar as it 1oes not preju1ice the legitime of the compulsory heirs. (,rt. .!#!$ In inte % etin) t"is % o(ision9 Hustice Ed)! do $! !s !d(!nced t"e o%inion t"!t if t"e %! tition is m!de 2* !n !ct inter .i.os9 no fo m!lities ! e % esc i2ed 2* t"e A ticle. The partition 6ill of course be effecti.e only after death. It does not necess! il* e;ui e t"e fo m!lities of ! 7ill fo !fte !ll it is not t"e %! tition t"!t is t"e mode of !c;ui in) o7ne s"i%. Neit"e 7ill t"e fo m!lities of ! don!tion 2e e;ui ed since don!tion 7ill not 2e t"e mode of !c;ui in) t"e o7ne s"i% "e e !fte de!t"A since no 7ill "!s 2een m!de it follo7s t"!t t"e mode 7ill 2e succession 8intest!te succession:. Besides9 t"e %! tition "e e is me el* t"e %"*sic!l dete min!tion of t"e %! t to 2e )i(en to e!c" "ei . T"e "isto ic!l !ntecedent of A ticle ,?=? of t"e Ne7 Ci(il Code is A ticle ,?4D of t"e old Ci(il Code. T"e onl* c"!n)e in t"e % o(ision is t"!t A ticle ,?=? no7 %e mits !n* person 8not ! test!to 9 !s unde t"e old l!7: to %! tition "is est!te 2* !ct inter .i.os. T"is 7!s intended to !2 o)!te t"e t"en % e(!ilin) doct ine t"!t fo ! test!to to %! tition "is est!te 2* !n !ct inter .i.os9 "e must fi st m!<e ! 7ill 7it" !ll t"e fo m!lities % o(ided 2* l!7. 8HLT A) o (s. B!l!ns!)9 '.R. No. ,3,==. M! c" ,,9 .??4:. 2. B* t"e %e son Commisioned 2* t"e Test!to , person may; by an act inter vivos or mortis causa; intrust the mere po2er to ma?e the partition after his 1eath to any person 2ho is not one of the co/heirs. 7he provisions of this an1 of the prece1ing article shall be observe1 even shoul1 there be among the co/heirs a minor or a person subject to guar1ianship> but the man1atary; in such case; shall ma?e an inventory of the property of the estate; after notifying the co/heirs; the cre1itors; an1 the legatees or 1evisees. (,rt. .!#..$ c. B* Co-+ei s T"us9 fo ! %! tition %u su!nt to section , of Rule M3 to 2e (!lid9 t"e follo7in) conditions must concu : 8,: t"e decedent left no 7illA 8.: t"e decedent left no de2ts9 o if t"e e 7e e de2ts left9 !ll "!d 2een %!idA 8/: t"e "ei s ! e !ll of !)e9 o if t"e* ! e mino s9 t"e l!tte ! e e% esented 2* t"ei 5udici!l )u! di!n o le)!l e% esent!ti(esA 83: t"e %! tition 7!s m!de 2* me!ns of ! %u2lic inst ument o !ffid!(it dul* filed 7it" t"e Re)iste of Deeds. An e0t !5udici!l settlement is ! cont !ct !nd it is ! 7ell-ent enc"ed doct ine t"!t t"e l!7 does not elie(e ! %! t* f om t"e effects of ! cont !ct9 ente ed into 7it" !ll t"e e;ui ed fo m!lities !nd 7it" full !7! eness of 7"!t "e 7!s doin)9 sim%l* 2ec!use t"e cont !ct tu ned out to 2e ! foolis" o un7ise in(estment. T"e efo e9 !lt"ou)" %l!intiffs-!%%ell!nts m!* e) et "!(in) !lien!ted t"ei "e edit! * s"! es in f!(o of t"ei siste Asuncion9 t"e* must no7 2e conside ed 2ound 2* t"ei o7n cont !ctu!l !cts. 8+ei s of Te(es (s. CA ,/ Octo2e ,EEE: !!!. 3UD!"!A( S%TT(%1%$T <'ules AC-=?@ A. Summ! * Settlement 8RULE 74 of the Rules of Court) B. 'egular Administration &roceedings

". #rdinary Action for &artition In !ctions fo %! tition9 t"e cou t c!nnot % o%e l* issue !n o de to di(ide t"e % o%e t* unless it fi st m!<es ! dete min!tion !s to t"e e0istence of coo7ne s"i%. T"e cou t must initi!ll* settle t"e issue of o7ne s"i%9 t"e fi st st!)e in !n !ction fo %! tition. Needless to st!te9 !n !ction fo %! tition 7ill not lie if t"e cl!im!nt "!s no i)"tful inte est o(e t"e su25ect % o%e t*. In f!ct9 Section , of Rule DE e;ui es t"e %! t* filin) t"e !ction to st!te in "is com%l!int t"e @n!tu e !nd t"e e0tent of "is title@ to t"e e!l est!te. Until !nd unless t"e issue of o7ne s"i% is definitel* esol(ed9 it 7ould 2e % em!tu e to

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effect ! %! tition of t"e % o%e ties. 8+ei s of 1el!s;ueL (s. CA9 '.R. No. ,.DEED &e2 u! * ,49 .???: !*. /0# 1A+ D%1A$D &A'T!T!#$2 A: T"e "ei s t"emsel(es 8e0t !-5udici!ll* o in !n o din! * !ction of %! tition: -%he decedent must have left no debts (aglucot--aw 4 in cases involving oral partition under which the parties went into possession, exercised acts of ownership, or otherwise partly performed the partition agreement, equity will confirm such partition. 6roperties embraced in a will cannot be validly partitioned among the heirs until after the will is probated. B: T"e cou t in ! o din! * !ction fo %! tition9 o in t"e cou se of !dminist !tion % oceedin)s -Any party in interest may bring the action -A 0udicial partition does not bind the heirs who were not parties thereto. C: T"e test!to "imself N!tu e of t"e %! tition: ! %a+es effect only upon death ' Cevocable as long as the decedent is alive ?ow partition is made: Ny will Ny act inter vivos -egasto: however, there must first be a will with all the formalities provided by law8 hence when the will is null and void for lac+ of legal requisites, the partition made of the estate during the lifetime of the deceased is li+ewise null and void Nalane: a partition 7it"out ! 7ill can be made provided the partition should conform exactly to the portions provided in intestate succession. *orm of partition inter vivos: in writing and in public instrument (Nalane: obiter in )haveI held that oral partition is valid --imitation on the partition by the testator: legitimes )A//3% be impaired -A parent desiring to +eep any enterprise intact may order that the legitime of the other children to whom the property is not assigned be paid in cash. D: A / d %e son desi)n!ted 2* t"e test!to 8MANDATAR6: -%he mandatary cannot be a co-heir to insure fairness and impartiality considering that she is not under the )ourt,s control -#n case there is a minor co-heir, the mandatary shall ma+e an inventory of the property of the estate -#t is the simple power to partition that may be delegated by the testator, but not the disposition or distribution of the estate. E.: 1olunt! * "ei s upon whom some condition has been imposed )A//3% demand a partition until the condition has been fulfilled -%he other heirs not so instituted should not be deprived of their right to demand partition, sub0ect to the obligation to protect the inchoate right of the conditional heir, by furnishing adequate security -%he partition in the preceding paragraph is 6C3$#"#3/A-.

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1. 'U(%S A: $! tition is )ene !ll* ! m!tte of i)"t 'ene !l Rule: any co-heir may demand partition at any time

E0ce%tions:

7.

Ghen forbidden by the testator for a period not exceeding '7 years (this even covers the legitimes E0ce%tion to t"e e0ce%tion: a Ghen any of the causes for the dissolution of a partnership occurs b Ghen the court finds compelling reasons for partition /3%9: this shall be made upon petition of one of the co-heirs A prohibition of partition imply a prohibition on alienation or any constructi.e partition. Nalane: when the co-heirs agree on indivision for a period not exceeding !7 years renewable for li+e periods (in accordance with the rules on co-ownership

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B: E;u!lit* !mon) co-"ei s -#n the partition of the estate, equality shall be observed as far as possible >u!ntit!ti(e e;u!lit* P the shares of the co-heirs are not necessarily equal in value, but are determined by law and by will >u!lit!ti(e e;u!lit* P whatever the aliquot portions are, the law mandates equality in nature, +ind and quality, sub0ect to the following qualifications: ! #f the decedent has made the partition himself ' #f the co-heirs agree otherwise . #f it is impossible or impracticable C: Mutu!l Accountin) -;pon partition, the co-heirs shall render a mutual accounting of benefits received and expenses incurred by each of them -6eriod contemplated: between the decedent,s death and partition time D: Le)!l Redem%tion 2* Co-"ei Re;uisites: ! %hat there are several heirs of the common inheritance ' %hat one of them sells his hereditary rights -?ence if the alienation is not a sale, one requisite is lac+ing -"ales can be voluntary or forced (execution sales . %hat the sale is made to a stranger -All persons who are not heirs by will or law are strangers -%he heirs must A)%;A--R succeed 4 %hat the sale is 2efo e partition -%o distinguish it from Art. !B'7 which applies where the co-ownership covers specific property -%his article applies where the co-ownership covers the (A"" of the hereditary estate and presupposes the fact that there has as yet been no distribution of the estate 2 %hat one or more of the co-heirs demand the repurchase within a period of , mont", counted from the time he or they were notified in writing of the sale Consistent 7it" !fo es!id ulin)9 in t"e inte % et!tion of ! el!ted % o(ision 8A ticle ,D./ of t"e Ne7 Ci(il Code: t"is Cou t "!d st essed t"!t 7 itten notice is indis%ens!2le9 !ctu!l <no7led)e of t"e s!le !c;ui ed in some ot"e m!nne s 2* t"e edem%tione 9 not7it"st!ndin). +e o s"e is still entitled to 7 itten notice9 !s e0!cted 2* t"e Code9 to emo(e !ll unce t!int* !s to t"e s!le9 its te ms !nd its (!lidit*9 !nd to ;uiet !n* dou2t t"!t t"e !lien!tion is not definiti(e. T"e l!7 not "!(in) % o(ided fo !n* !lte n!ti(e9 t"e met"od of notific!tions em!ins e0clusi(e9 t"ou)" t"e Code does not % esc i2e !n* %! ticul! fo m of 7 itten notice no !n* distincti(e met"od fo 7 itten notific!tion of edem%tion 8Cone5e o et !l. (. Cou t of A%%e!ls et !l.9 ,D SCRA MM4 Q,EDDRA Etcu2!n (. Cou t of A%%e!ls9 ,3= SCRA 4?M Q,E=MRA C!2 e ! (. 1ill!nue(!9 '.R. No. M4?DE9 A% il ,49,E==:. 8'! ci! (s. C!l!lim!n9 '.R. No. L-.D=44 A% il ,M9 ,E=E: -3/-R a co-heir, regardless of their number, can exercise the right of redemption. -O$: a legatee is /3% a co-owner anymore, since she receives a specific property already -#f an heir has himself sold his own right, he is not entitled to ma+e the redemption of the right sold by another heir to a .rd party, because he himself ceases to be an heir after selling his right -3nce subrogation has ta+en place, the other co-heirs, even within the period of ! month, can no longer as+ for redemption -%he period of ! month should be counted from the time the that the co-heir is notified #/ GC#%#/F of the actual sale

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-Farcia: written notice is required, without it the period does /3% commence to run registration with the Cegister of 5eeds is not sufficient notice most especially because the property involved was unregistered land -Nalane: in ' recent cases, the )ourt has relaxed the requirement of written notice and held that actual notice to, or +nowledge by the co-heir meets the legal requirement %hat the buyer is reimbursed the price of the sale

%his article does /3% apply to sales of property of a decedent by the executor or administrator on orders of the probate court *!. ST%&S !$ &A'T!T!#$ ! Ghen there are ' or more heirs, the whole estate of the decedent is, before partition, owned in common by such heirs -9ach heir is therefore a co-owner and may sell her interest ' ?owever, the debts and obligations of the deceased must first be paid. . Ghen there are intestate or testamentary proceedings, there may be an 3C59C 3* 5#"%C#N;%#3/ before actual partition is made -%he order of distribution, generally based on a pro0ect of partition, designates the shares which pertain to the heirs, devisees or legatees -6artial distribution may be made even before the debts and expenses have been paid, if the distributees give a bond or deposit -%he order of distribution is conclusive upon all parties who have notice of the proceedings, but does /3% bind those who have no notice 4 6artition, or the A)%;A- division of the properties -6hysical division of the property among the beneficiaries according to their proportions fixed and determined in the distribution -%he thing itself maybe divided or its value 6artition ends the co-ownership among the co-heirs as to thing partitioned *!!. % %"TS # &A'T!T!#$: A A partition legally made confers upon each heir the exclusive ownership of the property ad0udicated to him N %he titles of acquisition or ownership of each property shall be delivered to the co-heir -Ghen the title comprises ' or more pieces of land or one piece of land divided between ' or more co-heirs: ! %itle delivered to the one having the larger interest, and authentic copies of the title furnished to other co-heirs at the expense of the estate8 3C ' #f the interest of each co-heir should be the same, the oldest shall have the title. Garranties . <inds: W! !nt* !)!inst e(iction -Action for eviction presupposes that the portion assigned to each heir really represented the share which pertained to such heir but that it afterwards suffers changes through the exercise by a . rd person of special rights over the property ad0udicated -%he ob0ect of this warranty is not to see+ a new partition but merely to compel the other heirs to ma+e good the damages suffered by the heir concerned by reason of the eviction -%here is eviction although the heir is not deprived of the ownership of the property allotted to him, if he is deprived of any other right, such as usufruct, easement, etc. .: W! !nt* !s to ;u!lit* -#ncludes a warranty against hidden defects -%he reciprocal obligation of warranty shall be proportionate to the respective hereditary shares of the co-heirs -#nsolvency of one of the obligors: his portion shall be borne proportionally by all, including the one entitled to the warranty -%hose who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve (9xcept: insolvency 0udicially declared which extinguishes all obligations -An action to enforce the warranty among co-heirs must be brought within ,? *e! s from the date the right of action accrues )redit assigned to a co-heir in partition -%he warranty covers only insolvency of the decedent,s debtor at the time of the partition, not subsequent insolvency, for which the co-heir ta+es the ris+ -%he warranty has a prescriptive period of 2 years following the partition -)o-heirs do not warrant bad debts of +nown and accepted by the distributee -#f bad debts were not assigned to a co-heir, and was collected, the amount collected shall be distributed proportionately ,: %he obligation of warranty among co-heirs shall cease when there is:

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6artition by the testator himself >u!lific!tions: a ;nless it appears or it be reasonably presumed his intention was otherwise b %he legitime shall always remain unimpaired Agreement among the co-heirs to suppress the warranty -;/-9"" there was bad faith "upervening events causing the loss or the diminution in value *ault of the co-heir Gaiver

*!!!. '%S"!SS!#$ A$D $U((!T+ # &A'T!T!#$ A: C!uses fo !nnulment ! %hose where one of the parties is incapable of giving consent ' %hose where the consent is vitiated by mista+e, violence, intimidation, undue influence or fraud /3%9: these are susceptible of ratification B: C!uses fo escission ! A partition, 0udicial or extra-0udicial, may be rescinded on account of lesion, when any one of the co-heirs received things whose value is -9"", by at least J, than the share to which he is entitled, considering the value of the things at the time they were ad0udicated E0ce%tion: a partition made by the testator himself is not sub0ect to rescission E0ce%tion to t"e e0ce%tion: ! #mpairment of the legitime (even if lesion is less than J ' (ista+e by the testator or vitiation of his intent -An heir who has alienated the whole or a considerable part of the real property ad0udicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. -%he action for rescission on account of lesion shall prescribe after 3 *e! s from the time the partition was made -!ncompleteness of partition is /3% a ground for rescission. %he remedy is supplemental partition %hose agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number %hose underta+en in fraud of creditors when the latter cannot in any other manner collect the claims due them %hose which refer to things under litigation of they have been entered into by the defendants without the +nowledge and approval of the litigants or of competent 0udicial authority

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C: Rules: -%he heir who is sued shall have ' options: -A partition made with preterition (not that in 124 of any compulsory heir shall not be rescinded, ;/-9"": ! #t was proved there was bad faith ' #t was proved there was fraud /3%9: on the part of the other persons interested (nevertheless, the latter shall proportionately pay the person omitted -A partition which includes a person believed to be an heir, but who is not, shall be $3#5 only with respect to such person. %he exclusion of petitioner 5elia $iado, alleged to be a retardate, from the deed of extra0udicial settlement verily has had the effect of preterition. %his +ind of preterition, however, in the absence of proof of fraud and bad faith, does not 0ustify a collateral attac+ on %ransfer )ertificate of %itle /o. .7.B4B. %he relief, as so correctly pointed out by the )ourt of Appeals, instead rests on Article !!74 of the )ivil )ode to the effect that where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand of the case for further proceedings to ma+e the proper valuation of the isarog property and ascertainment of the amount due petitioner 5elia $iado. (/on vs. )A F.C. /o. !.7'17 *ebruary !2, '777 .B2phi..nCt <<<

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