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SUCCESSION

SUCCESSION

A mode of acquisition by virtue of whichthe property, rights and obligations tothe extent of the value of theinheritance, of a person are transmittedthrough his death to another or others

either by his will or by operation of law.(Art. 774)

Kinds:1. Testamentary or Testacy (by will);2. Legal or intestacy (by operation of law

based on the decedents presumed will);3. Mixed (Partly Testamentary and Legal); and4. Partition inter vivos (to a certain degree).

Elements:1. DECEDENT (subjective element)2. SUCCESSORS (subjective element)

a. Heirs - those who are called to thewhole or to an aliquot portion of theinheritance either by will or byoperation of law1) Voluntary those instituted by the

testator in his will, to succeed tothe inheritance or the portionthereof of which the testator canfreely dispose.

2) Compulsory or Forced those whosucceed by force of law to someportion of the inheritance, in anamount predetermined by law,known as the legitime.

3) Legal or Intestate those whosucceed to the estate of thedecedent who dies without a validwill, or to the portion of such estatenot disposed of by will.

b. Devisees or legatees - persons to whomgifts of real or personal property arerespectively given by virtue of a will

NOTE: The distinctions between heirs anddevisees/legatees are significant in these

cases:1. Preterition (pretermission)2. Imperfect disinheritance3. After-acquired properties4. Acceptance or non-repudiation of

the successional rights.

3. DEATH OF THE DECEDENT (casual element)

Moment when rights to succeed aretransmitted (Art 777)

However, a person may be presumeddead for the purpose of opening hissuccession (see rules on presumptive

death). In this case, succession is only ofprovisional character because there isalways the chance that the absentee maystill be alive.

4. Inheritance (objective element);

NOTE: Whatever may be the time when actualtransmission takes place, succession takes placein any event at the moment of the decedentsdeath. (Lorenzo vs. Posadas 64 Phil 353)

SUCCESSION INHERITANCERefers to the legalmode by whichinheritance istransmitted to thepersons entitledto it

Refers to theuniversality orentirety of theproperty, rightsand obligations of aperson who died

Inheritance includes:1. PROPERTY, RIGHTS AND OBLIGATIONS NOT

EXTINGUISHED BY DEATHGeneral rules on rights and obligations

extinguished by his deatha) Rights which arepurely personal are by

their nature and purposeintransmissible for they areextinguished by death (e.g. thoserelating to civil personality, familyrights, discharge of office).

b) Rights which arepatrimonial or relatingto property are generally part ofinheritance as they are notextinguished by death.

c) Rights of obligations are by naturetransmissible and may constitute part

of inheritance both with respect to therights of the creditor and as regards tothe obligations of the debtor.

2. ALL WHICH HAVE ACCRUED THERETO SINCETHE OPENING OF SUCCESSION (Article 781Civil Code)

I. TESTAMENTARY SUCCESSION

A. CONCEPT

WILL - an act whereby a person is permitted,with the formalities prescribed by law, tocontrol to a certain degree the disposition of hisestate to take effect after his death (Art. 783)

NOTE: Thus, a document that does not purportto dispose of ones estate either by theinstitution of heirs or designation ofdevisees/legatees or, indirectly, by effecting adisinheritance, is not to be governed by the lawon testamentary succession but by some otherapplicable laws.

Kinds of Wills:1. Notarial or ordinary2. Holographic

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Characteristics of a Will:1. UNILATERAL2. STRICTLY PERSONAL ACT - The disposition

of property is solely dependent upon thetestator.

NOTE: The following acts MAY NOT be left tothe discretion of a third person: (Article 785,787 Civil Code)duration or efficacy of the designation of heirs,

devisees or legatees;determination of the portions which they are to

take, when referred to by name; anddetermination of whether or not the

testamentary disposition is to be operative.

NOTE: However, the following acts MAY beentrusted to a third person: (Article 786 CivilCode)

a. distribution of specific property or sumsof money that he may leave in general tospecified classes or causes; and

b. designation of the persons, institutions orestablishments to which such property orsums are to be given or applied.

3. FREE AND VOLUNTARY ACT Any viceaffecting the testamentary freedom can causethe disallowance of the will.4. FORMAL AND SOLEMN ACT The formalitiesare essential for the validity of the will.5. ACT MORTIS CAUSA6. AMBULATORY AND REVOCABLE DURING THE

TESTATORS LIFETIME7. INDIVIDUAL ACT Two or more personscannot make a single joint will, either for their

reciprocal benefit or for another person.However, separate or individually executedwills, although containing reciprocal provisions(mutual wills), are not prohibited, subject tothe rule on disposicion captatoria.8. DISPOSITION OF PROPERTY

B. INTERPRETATION OF WILLS (ARTS. 788-792)The testators intent (animus testandi), as wellas giving effect to such intent, is primordial. Itis sometimes said that the supreme law insuccession is the intent of the testator. All rulesof construction are designed to ascertain and

give effect to that intention. It is only when theintention of the testator is contrary to law,morals, or public policy that it cannot be giveneffect.

In case of doubt, that interpretation by whichthe disposition is to be operative shall bepreferred. That construction is to be adoptedwhich will sustain and uphold the will in all itsparts, if it can be done consistently with theestablished rules of law.

Kinds of Ambiguities: (Article 786)1. LATENT OR INTRINSIC AMBIGUITIES thatwhich does not appear on the face of the willand is discovered only by extrinsic evidence.

2. PATENT OR EXTRINSIC AMBIGUITIES thatwhich appears on the face of the will itself

NOTES:

There is no distinction between patent and

latent ambiguities, in so far as theadmissibility of parol or extrinsic evidenceto aid testamentary disposition isconcerned.

Extrinsic evidence to explain ambiguities ina will cannot include oral declarations ofthe testator as to his intention.

The validity of a will as to its form depends

upon the observance of law in force at thetime it is made. (Art. 795).

If a law different from the law in force atthe time of the execution of the will goesinto effect before or after the death of thetestator, such a law shall not affect thevalidity of the will, provided that such willwas duly executed In accordance with the

formalities prescribed by law in force at thetime it was made.

AFTER-ACQUIRED PROPERTY (Art. 793)Gen. Rule: Property acquired during the periodbetween the execution of the will and thedeath of the testator is NOT included among theproperty disposed of.Exception: When a contrary intentionexpressly appears in the will

NOTE: This rule applies only to legacies anddevises and not to institution of heirs.

C. TESTAMENTARY CAPACITY refers to the ability as well as the power tomake a will.- must be present at the time of the executionof the will.

Requisites:

1. At least 18 years of age2. Of sound mind, i.e., the ability to know:

a. the nature of the estate to be disposed

of;b. theproper objects of his bounty; andc. the character of the testamentary act.

NOTE: The lawpresumes that the testator is ofsound mind, UNLESS:a. he, one month or less, before making hiswill, was publicly known to be insane; orb. was under guardianship at the time ofmaking his will. (Torres and Lopez de Bueno vs.Lopez 48 Phil 772)

In both cases, the burden of proving sanityis cast upon proponents of the will.

Effect of Certain Infirmities:

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1. mere senility or infirmity of old age doesnot necessarily imply that a person lackstestamentary capacity;

2. physical infirmity or disease is notinconsistent with testamentary capacity;

3. persons suffering from idiocy (thosecongenitally deficient in intellect),imbecility (those who are mentallydeficient as a result of disease), and seniledementia (peculiar decay of the mentalfaculties whereby the person afflicted isreduced to second childhood) do notpossess the necessary mental capacity tomake a will;

4. an insane delusion which will render oneincapable of making a will may be definedas a belief in things which do not exist, andwhich no rational mind would believe toexist;

5. if the insane delusion touches to subjectmatter of the will, testamentary dispositionis void.

6. a deaf-mute and blind person can make awill (i.e. Art. 807-808). A blind man with asound and disposing mind can make aholographic will.

7. an intoxicated person or person under theinfluence of drugs may make a will as thereis no complete loss of understanding.

Exception: where the testator has usedintoxicating liquor or drugs excessively tosuch an extent as to impair his mind, sothat at the time the will is executed, hedoes not know the extent and value of hisproperty, or the names of persons who are

the natural objects of his bounty, theinstrument thus executed will be deniedprobate for lack of testamentary capacity.

D. FORMALITIES OF WILLS(EXTRINSIC VALIDITY)

COMMON FORMALITIES1. Every will must be in writing; and2. Executed in a language or dialect known to

the testator.

SPECIAL FORMALITIES

I. NOTARIAL OR ORDINARY WILLa. SUBSCRIPTION made at the end thereof by

the testator himself or by the testator'sname written by some other person in hispresence and by his express direction;

Subscription refers to the manual actof testator and also of his instrumentalwitnesses of affixing their signature tothe instrument.

b. ATTESTATION AND SUBSCRIPTION -(evidenced by an attestation clause) by 3or more credible witnesses in the presenceof the testator and of one another;

Attestation consists in the act ofwitnesses of witnessing the execution ofthe will in order to see and take note

mentally that such will has beenexecuted in accordance withrequirements prescribed by law.

ATTESTATION SUBSCRIPTION1. an act of the

senses1. an act of thehand

2. mental act 2. mechanical act

3. purpose is torender available

proof duringprobate of will

3. purpose isidentification

c. MARGINAL SIGNATURES affixed by thetestator or the person requested by him towrite his name and the instrumentalwitnesses of the will on each and everypage thereof, except the last, on the leftmargin;

Exceptions to the rule that all of the pages ofthe will shall have to be signed on the leftmargin by the testator and witnesses::

(1) in the last page, when the will consistsof two or more pages;(2) when the will consists of only one page;(3) when the will consists of two pages, thefirst of which contains all the testamentarydispositions and is signed at the bottom bythe testator and the witnesses and thesecond contains only the attestation clauseduly signed at the bottom by the witnesses.

The inadvertent failure of one witness toaffix his signature to one page of atestament, due to the simultaneous liftingof two pages in the course of signing, is notper se sufficient to justify denial of probate(Icasiano vs. Icasiano II SCRA 422).

d. PAGE NUMBERINGS Written correlatively inletters placed on the upper part of eachpage;

NOTE: This is not necessary when all of thedispositive parts of a will are written on onesheet only.

e. ACKNOWLEDGMENT Done before a notarypublic by the testator and the instrumentalwitnesses.

NOTE: The notary public before whom the willwas acknowledged cannot be considered as thethird instrumental witness since he cannotacknowledge before himself his having signedthe will. If the third witness were the notarypublic himself, he would have to avow, assent,or admit his having signed the will in front ofhimself. To allow such would have the effect ofhaving only two attesting witnesses to the will

which would be in contravention of Arts. 805and 806. (Cruz vs. Villasor 54 SCRA 31)MANNER OF SIGNING:

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The use of any signature, marks or designintended by the testator to authenticaterenders the will sufficiently signed by thetestator.

A signature by mark will be sufficient evenif at the time of placing it, the testatorknew how to write and is able to do so.

It is sufficiently signed by writing hisinitials, or his first name, or he may use

even an assumed name. A complete signature is not essential to the

validity of a will, provided the part of thename written was affixed to the instrumentwith intent to execute it as a will.

ATTESTATION CLAUSE- memorandum or record of facts wherein thewitnesses certify that the will has beenexecuted before them, and that it has beenexecuted in accordance with the formalitiesprescribed by law.

Absence of this clause will render the will a

nullity.

It must state the followingESSENTIAL FACTS:1. the number of pages used upon which

the will is written;HOWEVER, even if number of pages is omittedin the AC BUT if there is an acknowledgmentclause which states the number of pages or thewill itself mentioned such number of pages, itmay still be considered valid applying theLiberal Interpretation of the law. (Tabuada vs.Rosal)

2. the fact that the testator signed thewill and every page thereof, or causedsome other person to write his name,under his express direction, in thepresence of the instrumental witnesses;

When the testator expressly caused anotherto sign the formers name, this fact must berecited in the attestation clause.Otherwise, the will is fatally defective.(Garcia vs. Lacuesta 90 Phil 489)

3. that the witnesses witnessed and signed

the will and all the pages thereof in thepresence of the testator and of oneanother.

TEST OF PRESENCE: Not whether theyactually saw each other sign, but whetherthey might have seen each other sign hadthey chosen to do so considering theirmental and physical condition and positionwith relation to each other at the momentof inscription of each signature. (Jabonetavs. Gustilo)

In the case of an ordinary or attested will,its attestation clause need not be writtenin a language or dialect known to the

testatorsince it does not form part of thetestamentary disposition.

The language used in the attestation clauselikewise need not even be known to theattesting witnesses. Art. 805 merelyrequires that, in such a case, theattestation clause shall be interpreted tosaid witnesses. (Caneda vs. CA 222 SCRA781)

Effects of defects or imperfections in theAttestation Clause:

If the defect of the attestation clause goesinto the very essence of the clause itself orconsists in the omission of one, some, or allof the essential facts, and such omissioncannot be cured by an examination of thewill itself, the defect is substantial incharacter, as a consequence of which thewill is invalidated.

However, In the absence of bad faith,

forgery, fraud, or undue and improperpressure and influence, defects andimperfections in the form of attestation orin the language used therein shall notrender the will invalid if it is proved thatthe will was in fact executed and attestedin substantial compliance with Art. 805(formal requirements). This is known as theDOCTRINE OF LIBERAL INTERPRETATION(Art. 809)

Purposes of requiring witness to attest and to

subscribe to a will:1. identification of the instrument2. protection of the testator from fraud and

deception3. the ascertainment of the testamentary

capacity of the testator.

NOTE: Certain points to consider(Tolentino)1. Mere knowledge by testator that another is

signing, and acquiescing in it, there beingno express direction, is NOT sufficient.

2. Not required that the name of the personwho writes the testators name should also

appear on the will; enough that testatorsname is written.

3. If the required numbers of attesting witnessare competent, the fact that an additionalwitness, who was incompetent also attestedto the will, cannot impair the validity.

4. Immaterial in what order the acts areperformed provided the signature oracknowledgment by the testator and theattestation of the witnesses beaccomplished in one occasion, and as partof one transaction.

5. The law refers to page and not to sheet orleaf or folio, so every page used in the willshould be signed on the left margin.

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6. An attestation clause need be signed ONLYby the witnesses and not by the testator asit is a declaration made by the witnesses.

7. date of will:a. ordinary will: not an essential part;b. holographic will: an essential part.

8. Failure or error to state the place ofexecution will not invalidate the will.

9. Signing of a will by the testator andwitnesses and acknowledgment before anotary public, need not be a single act.

10. Testamentary capacitymust also exist atthe time of acknowledgment.

ADDITIONAL REQUIREMENTS FOR SPECIALCASES1. Deaf or deaf-mute testator:

a) personal reading of the will, if able todo so; OR

b) if not possible, designation of 2 personsto read the will and communicate tohim, in some practicable manner, thecontents thereof. (Article 807)

2. Blind testator: Double-reading requirement:a. first, by one of the subscribing

witnesses, ANDb. second, by the notary public before

whom the will is acknowledged.(Article 808)

Art. 808 applies not only to blind testatorsbut also to those who, for one reason oranother are incapable of reading their wills(e.g. poor, defective or blurred vision).

In a case where the testator did not read

the final draft of the will, but the lawyerwho drafted the document, read the samealoud in the presence of the testator, 3witnesses, and notary public, the Court heldthat the formal imperfections should bebrushed aside when the spirit behind thelaw was served though the letter was not.(Alvarado vs. Gaviola 226 SCRA 347)

WITNESS TO NOTARIAL WILLS(ARTS. 820 & 821)Requirements:

1. of sound mind;2. able to read and write;3. not blind, deaf or dumb;4. at least 18 years of age;5. domiciled in the Philippines;6. has not been convicted of falsification of a

document, perjury, or false testimony

NOTE: A witness need not know the contentsof the will, and need not be shown to have hada good standing in the community where helives. Also, the acknowledging notary publiccannot be one of the 3 minimum numbers of

witnesses.Interested witness

A witness to a will who is incapacitatedfrom succeeding from the testator by

reason of a devise/legacy or othertestamentary disposition therein in hisfavor, or in favor of his spouse, parent, orchild. However, his competence as awitness subsists.

2. HOLOGRAPHIC WILL (Article 810)a. entirely written by the hand of the

testator;b. entirely dated by the hand of the

testator; andc. entirely signed by the hand of the

testator.

NOTE: The law exacts literal compliance withthese requirements. HENCE, THE DOCTRINE OFLIBERAL INTERPRETATION CANNOT BE APPLIED.

Nevertheless, the Court held in a case thatas a general rule, the date in aholographic will should include the day,month, and year of its execution. However,

when there is no appearance of fraud, badfaith, undue influence and pressure and theauthenticity of the will is established andthe only issue is whether or not the dateFEB./61 appearing on the will is a validcompliance with Art. 810, probate of theholographic will should be allowed underthe principle of substantial compliance. (Inthe matter of Intestate Estate of Andres de

Jesus and Bibiana Roxas de Jesus, 134 SCRA245)

Rule in case of insertion, cancellation,

erasure or alteration: Testator must authenticate the same by his

FULL SIGNATURE. (Article 814)

NOTE: In the case of Kalaw vs. Relova (134SCRA 241), the holographic will in dispute hadonly one substantial provision, which wasaltered by substituting the original heir withanother, but which alteration did not carry therequisite of full authentication by the fullsignature of the testator, the effect must bethat the entire will is voided or revoked for thesimple reason that nothing remains in the willafter that which could remain valid.

Effects of words written by another andinserted in the words written by the testator:a. If the insertion was made after the

execution of the will, but without theconsent of the testator, such insertion isconsidered as not written, because thevalidity of the will cannot be defeated bythe malice or caprice of third person.

b. If the insertion after the execution of thewill was with the consent of the testator,

the will remains valid but the insertion isvoid.c. If the insertion after the execution is

validated by the testator by his signature

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thereon, then the insertion becomes part ofthe will, and the entire will becomes void,because of failure to comply with therequirement that it must be wholly writtenby the testator.

d. If the insertion made by a third person ismade contemporaneous to the execution ofthe will, then the will is void because it isnot written entirely by the testator.

Probate of Holographic Will1. If UNCONTESTED, requires that at least 1

witness who knows the handwriting andsignature of the testator explicitly declarethat the will and signature are in thehandwriting of the testator; if no witness,expert testimony may be resorted to.

2. If CONTESTED, requires at least 3 of suchcredible witnesses, if none expert witness.

NOTE: Where the testator himself petitions forthe probate of his holographic will and no

contest is file, the fact that he affirms that theholographic will and the signature are in hisown handwriting, shall be sufficient evidencethereof. If the holographic will is contested,the burden of disproving the genuineness anddue execution thereof shall be on thecontestant.

A photostatic or xerox copy of a lost ordestroyed holographic will may be admittedbecause the authenticity of the handwritingof the deceased can be determined by theprobate court, as comparison can be made

with the standard writings of the testator.(Rodelas vs. Aranza, 119 SCRA 16)

GOVERNING LAW ON FORMALITIES1. As to time:

The validity of a will as to its form dependsupon the observance of the law in force atthe time it is made. Its intrinsic validity,however, is judged at the time of thedecedents death by the law of hisnationality.

2. As to place:

a. Filipino testator executing a will in thePhilippines: Philippine law

b. Filipino testator executing a will outside ofthe Philippines: either1) The law of the country in which it is

executed; or2) The law of the Philippines.

c. Alien testator executing a will in thePhilippines: either1) The law of the Philippines; or2) The law of the country of which he is a

citizen or subject.d. Alien testator executing a will outside of

the Philippines: either1) The law of the place where it is

executed; or

2) The law of the place in which heresides; or

3) The law of his country; or4) The law of the Philippines.

Aspects of the will governed by National Lawof the Decedent (Article 1039 and Article 16Civil Code)a. Order of successionb. Amount of successional rightsc. Intrinsic validityd. Capacity to succeed

Joint will a single testamentary instrumentwhich contains the wills of two or morepersons, jointly executed by them, either fortheir reciprocal benefit or for the benefit of athird person--will of 2 or more persons is made in the sameinstrument and is jointly signed by them

Mutual wills wills executed pursuant to an

agreement between two or more persons todispose of their property in a particularmanner, each in consideration of the other--separate wills of 2 persons, which arereciprocal in their provisions.

Reciprocal wills- wills in which the testatorsname each other as beneficiaries under similartestamentary plans

NOTE: A will that is both joint and mutual isone executed jointly by two or more persons,the provisions of which are reciprocal and which

shows on its face that the devises are made inconsideration of the other. Such is prohibited.

Reasons:1. will is purely personal and unilateral act2. contrary to the revocable character of a

will3. may expose the testator to undue

influence, and may even induce one of thetestators to kill the other.

NOTE: Joint wills executed by Filipinos in aforeign country shall not be valid in the

Philippines, even though authorized by theforeign country in which they may have beenexecuted (Article 819 Civil Code).

This prohibition is applicable only injoint wills executed by Filipinos in a foreigncountry; it does NOT APPLY to joint willsexecuted by aliens.

E. CODICIL AND INCORPORATION BYREFERENCE

CODICIL

A supplement or addition to a will, madeafter the execution of a will and annexed tobe taken as a part thereof, by which any

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disposition made in the original will isexplained, added to, or altered. (Article825)

NOTE: To be effective, it must be executed asin the case of a will. Its execution has theeffect of republishing the will as modified.

INCORPORATION BY REFERENCE(ART 827)

Contemplates only lists of properties, booksof accounts, and inventories.

Provisions which are in the nature oftestamentary dispositions must becontained in the will itself.

Requisites for a valid incorporation byreference: (ART 827)1. The document or paper referred to in the

will must be in existence at the time of theexecution of the will;

2. The will must clearly describe and identifythe same, stating among other things the

number of pages thereof;3. It must be identified by clear and

satisfactory proof as the document or paperreferred to therein;

4. It must be signed by the testator and thewitnesses on each and every page, exceptin case of voluminous books of account orinventories.

F. REVOCATION OF WILLS ANDTESTAMENTARY DISPOSITIONS

REVOCATION

An act of the mind, terminating thepotential capacity of the will to operate atthe death of the testator, manifested bysome outward or visible act or sign,symbolic thereof. Such right to revoke a willcannot be waived or restricted.

LAWS WHICH GOVERN REVOCATION (ART 829)1. If the revocation takes place in the

Philippines, whether the testator isdomiciled in the Philippines or in someother country, it is valid when it is inaccordance with the laws of thePhilippines

2. If the revocation takes place outside thePhilippines, by a testator who is domiciledin the Philippines, it is valid when it is inaccordance with the laws of thePhilippines

3. Revocation done outside the Philippines, bya testator who does not have his domicilein this country, is valid when it is doneaccording to the:a. laws of the place where the will was

made, or

b. laws of the place in which the testatorhad his domicile at the time ofrevocation;

MODES OF REVOCATION (ART 830)1. By implication of law:

a. legal separation revokes testamentaryprovisions in favor of the offendingspouse;

b. preterition revokes the institution ofheir;

c. judicial action for recovery of debtrevokes a legacy of credit/remission ofdebt;

d. transformation, alienation, or loss ofbequeathed property revokes a legacyof such property;

e. act of unworthiness by an heir,devisee/legatee revokes testamentaryprovisions in his favor;

f. if both spouses of the subsequentmarriage acted in bad faith, saidmarriage shall be void ab initio andtestamentary dispositions made by onein favor of the other are revoked byoperation of law (Art. 44, Family Code);

andg. void ab initio or annulled marriagesrevoke testamentary dispositions madeby one spouse in favor of the other(Art. 50, Family Code).

2. By some will, codicil, or other writing,executed as provided in case of wills, whichmay either be:a. Express when there is a revocatory

clause expressly revoking the previouswill or a part thereof

b. Implied when the provisions thereofare partially or entirely inconsistent

with those of the previous willNOTE: While express revocation may beeffected by a subsequent will, or a codicil, or anontestamentary writing executed as providedin case of wills, implied revocation may beeffected only by either a subsequent will, or acodicil.

3. By burning, tearing, cancelling, orobliterating the will.Requisites:a. testamentary capacity at the time of

performing the act of destruction;

b. intent to revoke (animus revocandi);c. actual physical act of destruction;d. completion of the subjective phase; ande. performed by the testator himself or by

some other person in his presence andexpress direction

(THE LIST IS EXCLUSIVE.)

NOTE: The act of revocation is a personal act ofthe testator. He cannot delegate to an agentthe authority to do the act for him. Anotherperson, however, may be selected by him as aninstrument and directed to do the revocatory

acts in his presence. A destruction notaccomplished in the testators presence is anineffective revocation of the will.

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DOCTRINE OF PRESUMED REVOCATION

Whenever it is established that the testatorhad in his possession or had ready access tothe will, but upon his death it cannot befound or located, the presumption arisesthat it must have been revoked by him byan overt act.

Where it is shown that the will was incustody of the testator after its execution,

and subsequently, it was found among thetestators effects after his death in such astate of mutilation, cancellation orobliteration as represents a sufficient act ofrevocation, it will be presumed in theabsence of evidence to the contrary, thatsuch act was performed by the testatorwith the intention of revoking the will.

DOCTRINE OF DEPENDENT RELATIVEREVOCATION (ART 832)

A revocation subject to a condition does notrevoke a will unless and until the condition

occurs. Thus, where a testator revokes awill with the proven intention that he wouldexecute another will, his failure to validlymake a latter will would permit theallowance of the earlier will.

Where the act of destruction is connectedwith the making of another will so as fairlyto raise the inference that the testatormeant the revocation of the old to dependupon the efficacy of the new dispositionintended to be substituted, the revocationwill be conditional and dependent upon the

efficacy of the new disposition; and if forany reason, the new will intended to bemade as a substitute is inoperative, therevocation fails and the original willremains in full force (Vda. De Molo vs. Molo90 Phil 37).

Revocation by mistake

A revocation of a will based on a falsecause or an illegal cause is null and void.Thus, where a testator by a codicil or laterwill, expressly grounding such revocation onthe assumption of fact which turns out tobe false, as where it is stated that thelegatees/devisees named therein are dead,when in fact, they are living, the revocationdoes not take effect.

G. REPUBLICATION AND REVIVAL OF WILLS

REPUBLICATION

The act of the testator whereby hereproduces in a subsequent will (express)the dispositions contained in a previous willwhich is void as to its form, or he executes

a codicil (constructive) to his will. Its purpose is to cure the will of its formal

defects.

NOTES:

To republish a will void as to its form, all

the dispositions must be reproduced orcopiedin the new or subsequent will;

To republish a will valid as to its form butalready revoked the execution of a codicilwhich makes reference to the revoked willis sufficient.

Effects of Republication by virtue of a Codicil:1. Codicil revives the previous will2. The old will is republished as of the date of

the codicil makes it speak, as it were,from the new and later date.

3. A will republished by a codicil is governedby a statute enacted to the execution ofthe will, but which was operative when thecodicil was executed.

REPUBLICATION REVIVAL

1. Takes place by

an act of thetestator

1. Takes place by

operation of law.

2. Corrects extrinsicand intrinsicdefects.

2. Restores arevoked will

REVIVAL

The restoration to validity of a willpreviously revoked by operation of law(implied revocation).

PRINCIPLE OF INSTANTER

The express revocation of the first willrenders it void because the revocatoryclause of the second will, not beingtestamentary in character, operates torevoke the previous will instantly upon theexecution of the will containing it.

NOTE: In implied revocation, the first will isnot instantly revoked by the second willbecause the inconsistent testamentarydispositions of the latter do not take effectimmediately but only after the death of thetestator.H. ALLOWANCE AND DISALLOWANCE OF WILLS

PROBATE

A special proceeding mandatorily requiredfor the purpose of establishing the validityof a will.

The statute of limitations is not applicableto probate of wills.

Questions determinable by the probate court:(ICE)1. identity of the will;2. testamentary capacity of the testator at the

time of the execution of the will; and3. due execution of the will.

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GENERAL RULE: In probate proceeding, thecourts area of inquiry is limited to anexamination of, and resolution on the extrinsicvalidity if the will, the due execution thereof,the testatrixs testamentary capacity and thecompliance with the requisites or solemnitiesprescribed by law. The probate court cannotinquire into the intrinsic validity oftestamentary provisions.

EXCEPTION: Practical considerations, e.g.when the will is intrinsically void on its face.

In Nuguid vs Nuguid (17 SCRA 449), theSupreme Court held that, if the case wereto be remanded for probate of the will,nothing will be gained. On the contrary,this litigation would be protracted. And foraught that appears in the record, in theevent of probate or if the court rejects thewill, probability exists that the case willcome up once again before us on the same

issue of the intrinsic validity or nullity ofthe will. RESULT: waste of time, effort,expense, plus added anxiety.

In Nepomuceno vs CA (139 SCRA 207), theCourt ruled that the court can inquire asto the intrinsic validity of the will becausethere was an express statement that thebeneficiary was a mistress.

NOTES:

Criminal action will not lie against theforger of a will which had been dulyadmitted to probate by a court of

competent jurisdiction. (Mercado vs. Santos66 Phil. 215)

The fact that the will has been allowedwithout opposition and the order allowingthe same has become final and executory isnot a bar to the presentation of a codicil,provided it complies with all the formalitiesfor executing a will. It is not necessary thatthe will and codicil be probated together asthe codicil may be concealed by aninterested party. They may be probatedone after the other. (Macam vs. Gatmaitan60 Phil 358)

When a will is declared void because it hasnot been executed in accordance with theformalities required by law, but one of theintestate heirs, after the settlement of thedebts of the deceased, pays a legacy incompliance with a clause in the defectivewill, the payment is effective andirrevocable (Article 1430, NCC; NaturalObligations).

Grounds for Disallowance of a Will (ART 839)1. Formalities required by law have not beencomplied with;

2. Testator was insane, or otherwise incapableof making a will, at the time of itsexecution;

3. Will was executed through force or underduress, or the influence of fear, or threats;

4. Will was procured by undue and improperpressure and influence, on the part of thebeneficiary or of some other person;

5. Signature of the testator was procured byfraud;

6. Testator acted by mistake or did not intendthat the instrument he signed should be hiswill at the time of affixing his signaturethereto.

NOTE: GROUNDS ARE EXCLUSIVE.

Fair arguments, persuasion, appeal toemotions, and entreaties which, withoutfraud or deceit or actual coercion,compulsion or restraint do not constituteundue influence sufficient to invalidate a

will. (Barreto vs. Reyes 98 Phil 996) Burden is on the person challenging the will

to show that such influence was exerted atthe time of its execution.

To make a case of UNDUE INFLUENCE, thefree agency of the testator must be shownto have been destroyed; but to establish aground of contest based on FRAUD, freeagency of the testator need not be shown tohave been destroyed.

Allegations of fraud and undue influenceare mutually repugnant and exclude eachother; their joining as grounds for opposing

probate shows absence of definite evidenceagainst the validity of the will (Icasiano vs.Icasiano 11 SCRA 422)

REVOCATION DISALLOWANCE1. voluntary act ofthe testator.

1. given by judicialdecree.

2. with or without

cause.

2. must always be

for a legal cause.

3. may be partial ortotal.

3. always totalexcept: when theground of fraud orinfluence forexample affectsonly certainportions of thewill.

I. INSTITUTION OF HEIRS(ARTS. 840-856)

INSTITUTION An act by virtue of which a testator

designates in his will the person or persons

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who are to succeed him in his property andtransmissible rights and obligations. (Art840)

The proper test in order to determine thevalidity of an institution of heir is thepossibility of finally ascertaining theidentity of the instituted heir by intrinsic orextrinsic evidence.

PRESUMPTIONS1. Presumption of Equality Heirs instituted

without designation of shares shall inherit inequal parts. This is limited only to the casewhere all of the heirs are of the same classor juridical condition, and where there arecompulsory heirs among the heirsinstituted, it should be applied only to thedisposable free portion.

2. Presumption of Individuality When thetestator institutes some heirs individuallyand others collectively, those collectivelydesignated shall be considered as

individually instituted, unless it clearlyappears that the intention of the testatorwas otherwise.

3. Presumption of Simultaneity when thetestator calls to the succession a person andhis children, they are all deemed to havebeen instituted simultaneously and notsuccessively.

INSTITUTION BASED ON A FALSE CAUSE(Article 850)

GENERAL RULE: The statement of a falsecause for the institution of an heir shall be

considered as not written. Reason: Generosity of the testator is the

real cause of the testamentary disposition.

EXCEPTION:If it appears from the face of thewill that the testator would not have made theinstitution had he known the falsity of thecause.

Example: Where the person instituted is atotal stranger to the testator, it is obviousthat the real cause of the testamentarydisposition is not the generosity of thetestator but the fact itself which turned out

to be false.

REQUISITES FOR THE ANNULMENT OFINSTITUTION OF HEIRS:1. cause of institution of heirs must be stated

in will;2. cause must be shown to be false;3. it must appear from the face of the will

that the testator would not have made theinstitution had he known the falsity of thecause.

Where the one-sentence will

institutes the petitioner as the sole,universal heir and preterits the parents ofthe testatrix, and it contains no specificlegacies or bequests, such universal

institution of petitioner, by itself, is void.Intestate succession ensues. (Nuguid vs.Nuguid, et al. 17 SCRA 449)

PRETERITION (ART. 854)

Omission in the testators will of one, some,or all of the compulsory heirs in the directline, whether living at the time of theexecution of the will or born after thedeath of the testator.

Requisites:1. The heir omitted must be a compulsory heir

in the direct line;2. The omission must be complete and total in

character; and3. The compulsory heir omitted must survive

the testator.

There is no total omission when:a. A devise/legacy has been given to the

heir by the testator

b. A donation inter vivos has beenpreviously given to the heir by thetestator; or

c. Anything is left from the inheritancewhich the heir may get by way ofintestacy.

NOTE: In the above cases, the remedy ofthe heir is completion of legitime under Art.906, in case the value of the propertyreceived is less than the value of thelegitime.

Effects of Preterition:1. It annuls the institution of heir;2. The devises and legacies are valid insofar as

they are not inofficious; and3. If the omitted compulsory heir should die

before the testator, the institution shall beeffectual, without prejudice to the right ofrepresentation.

NOTE: In case ofomission without preterition,the rule in Art. 855 should be followed. Thesuggested alternate phrasing of Dr. Tolentino tothe said article is: The share of thecompulsory heir omitted in a will must be first

taken from the part of the estate not disposedof by the will, if any; if that is not sufficient,so much as may be necessary must be taken

proportionally from the shares of the heirsgiven to them by will.

PRETERITION DISINHERITANCE

1. deprivation of acompulsory heir ofhis legitime is tacit

1. deprivation of acompulsory heir ofhis legitime isexpress.

2. may be voluntarybut the lawpresumes that it isinvoluntary

2. alwaysvoluntary.

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3. law presumesthat there has beenmerely an oversightor mistake on thepart of the testator.

3. done with alegal cause.

4. omitted heir getsnot only his legitimebut also his share inthe free portion notdisposed of by wayof legacies/ devises.

4. if disinheritanceis not lawful,compulsory heir ismerely restored tohis legitime.

Where the deceased left no descendants,legitimate or illegitimate, but she leftforced heirs in the direct ascending lineher parents, and her holographic will doesnot explicitly disinherit them but simplyomits them altogether, the case is one ofpreterition of parents, not a case ofineffective disinheritance. (Nuguid vs.Nuguid 17 SCRA 449)

NOTE: Preterition of the surviving spouse (SS)does not entirely annul the institution of theheir since SS is not a compulsory heir in thedirect line. However, since Article 842 protectsthe legitime of the SS, the institution ispartially annulled by reducing the rights of theinstituted heir to the extent necessary to coverthe legitime of SS. (Tolentino)

EFFECT OF PREDECEASE--an heir who dies before the testator shalltransmit no right to his own heirs (rule is

absolute with respect to a voluntary heir)--what is transmitted to the representatives ofcompulsory heir is his right to the legitime andnot to the free portionEFFECT OF INCAPACITY--A voluntary heir who is incapacitated tosucceed from testator shall transmit no right tohis own heirs.--compulsory heir may be represented, but onlywith respect to his legitime

EFFECT OF REPUDIATION--whether voluntary or compulsory, the heir

who repudiates his inheritance cannot transmitany right to his own heirs.

J. SUBSTITUTION OF HEIRS(ARTS 857-870)

SUBSTITUTION

The act by which the testator designatesthe person or persons to take the place ofthe heir or heirs first instituted (Tolentino).It may be considered as a subsidiary andconditional institution.

Kinds:1. Simple or Common (that which takes place

when the testator designates one or morepersons to substitute the heirs/s instituted

in case such heir/s should die before him,or should not wish, or should beincapacitated to accept the inheritance)

2. Brief or Compendious: brief(there are twoor more persons designated by the testatorto substitute for only one heir),compendious (one heir is designated to takethe place of two or more heirs)

Instances when substitution takesplace:

a. instituted heir predeceases thetestator;

b. incapacity of the instituted heir tosucceed from the testator; and

c. repudiation of the inheritance.

Effect of substitution:General rule: once the substitution hastaken place, the substitute shall not onlytake over the share that would have passedto the instituted heir, but he shall be

subject to the same charges and conditionsimposed upon such instituted heir.Exceptions:(1) When the testator has expressly to thecontrary;(2) When the charges or conditions arepersonally applicable only to the heirinstituted.

3. FideicommissaryRequisites:

a. First heir (fiduciary) called to thesuccession.

b. An obligation clearly imposed upon suchfirst heir to preserve the property and totransmit it to the second heir.

c. Second heir (fideicommissary) to whomthe property is transmitted by the first heir.

Without the obligation clearly imposingupon the first heir the preservation of theproperty and its transmission to the secondheir, there is no fideicommissarysubstitution (Rabadilla vs. CA 334 SCRA522)

NOTE: Pending transmission of property, the

fiduciary is entitled to all the rights of ausufructuary, although the fideicommissary isentitled to all the rights of a naked owner.

Limitations:a. Substitution must not go beyond one degree

from the heir originally instituted.b. Degree means degree of relationship.c. Fiduciary and fideicommissary must be

living at the time of the death of thetestator.

d. Substitution must not burden the legitimeof compulsory heirs.

e. Substitution must be made expressly.

A fideicommissary substitution is void if thefirst heir is not related in the 1st degree to

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the second heir (Ramirez vs. Vda. DeRamirez 111 SCRA 704)

K. CONDITIONAL, MODAL TESTAMENTARYDISPOSITIONS, AND TESTAMENTARYDISPOSITIONS WITH A TERM (ART 871-885)

GENERAL RULE: The institution of an heirmay be made 1) conditionally, 2) for a term, or

3) for a certain purpose or cause (modal).Conditions, terms, and modes however, are notpresumed; they must be clearly expressed inthe will. The condition must fairly appear fromthe language of the will. Otherwise, it is notbinding.

LIMITATIONS:1. The testator cannot impose any charge,

burden, encumbrance, condition, orsubstitution whatsoever upon the legitimeof compulsory heirs.

2. Impossible conditions and those contrary tolaw or good customs are presumed to havebeen imposed erroneously or throughoversight, thus, are considered as notimposed.

3. An absolute condition not to contract afirst marriage is always void and will beconsidered as not written.

4. An absolute condition not to contract asubsequent marriage is generally void,unless imposed upon a widow or widower bythe deceased spouse or by the lattersascendants or descendants. Even so,

however, the legitime of the survivingspouse cannot be impaired.

An absolute condition not to contractmarriage when validly imposed is resolutoryin character. Consequently, if the testatorinstitutes his wife as heir subject to thecondition that she will never marry again,she immediately acquires a right to theinheritance upon the death of testator, butif she violates the condition by contractinga 2nd marriage, she loses her right to saidinheritance.

NOTE: However, the following relativeconditions regarding marriage have beenconsidered as valid and binding:

a. generic condition to contract marriage;b. specific condition to contract marriage

with a determinate person; andc. specific condition not to contract

marriage with a determinate person.

5. Any disposition made upon the conditionthat the heir shall make some provisions in

his will in favor of the testator or of anyother person shall be void (disposicioncaptatoria).

6. Conditions imposed by the testator uponthe heirs shall be governed by the rulesestablished for conditional obligations in allmatters not provided for by the law onsuccession.

Kinds of Conditions1. Potestative Condition depends exclusively

upon the will of the heir, devisee, orlegatee, and must be performed by himpersonally.

2. Causal Condition depends upon the will ofthe heir, devisee, or legatee, but upon thewill of a third person.

3. Mixed depends jointly upon the will of theheir, devisee, or legatee and upon chanceand/or will of a third person.

Fulfillment of Conditions:1. Potestative Conditions must be fulfilled

after the death of the testator (exceptwhen it has already been fulfilled and is of

such nature that it cannot be repeated);2. Causal or mixed conditions may be fulfilledeither before or after such death, unlessthe testator has provided otherwise.

MODAL INSTITUTION (INSTITUCION SUB MODO)

Attachment by the testator to an institutionof heir, or to a devise or legacy, of astatement of the:a. object of the institution;b. application of the property left by

testator; orc. charge imposed by him.

NOTES:

When in doubt as to whether there is a

condition or merely a mode, consider thesame as mode.

When in doubt as to whether there is amode or merely a suggestion, consider sameonly as a suggestion.

The condition suspends but does notobligate; the mode obligates but does not

suspend (for he who inherits with a mode isalready an heir; one who inheritsconditionally is not yet an heir)

DOCTRINE of CONSTRUCTIVE FULFILLMENT:When without the fault of the fault of the heir,an institucion sub modo cannot take effect inthe exact manner stated by the testator, itshall be complied with in a manner mostanalogous to and in conformity with his wishes.

NOTE:

If the condition is casual, the doctrine is not

applicable since the fulfillment of the eventwhich constitutes the condition isindependent of the will of the heir,

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devisee/legatee. If the condition ispotestative or mixed, the doctrine isapplicable.

L. LEGITIMES (ARTS 886 914)

LEGITIME

That part of the testators property whichhe cannot dispose of because the law hasreserved it for certain heirs who are,therefore, called compulsory heirs.

The course of action to enforce a legitimeaccrues upon the death of the donor-decedent since it is only then that the netestate may be ascertained and on whichbasis, the legitime may be determined.

(Imperial vs. CA 316 SCRA 313)

NOTE: One half of the estate is alwaysreserved for the primary or secondarycompulsory heirs. The other half is what istermed under the NCC as the free portionfrom which the legitime of the concurringcompulsory heirs are taken. This free portionis different from the disposable free portionover which the testator has testamentarycontrol. The disposable free portion is thatwhich remains after the legitime has beencovered.

COMPULSORY HEIRS (CH)

Those for whom the legitime is reserved bylaw, and who succeed whether the testatorlikes it or not. They cannot be deprived bythe testator of their legitime except bydisinheritance properly effected.

Kinds of Compulsory Heirs:1. Primary those who have precedence over

and exclude other CH. E.g. LCD.2. Secondary those who succeed only in the

absence of the primaryCH. E.g. LPA or IP.

3. Concurring those who succeed togetherwith the primary or secondary CH. E.g. ICDand SS.

If the testator isa LEGITIMATE

person

If the testator isan ILLEGITIMATE

person

1. Legitimatechildren anddescendants(LCD)

1. Legitimatechildren anddescendants(LCD)

2. In default of the foregoing,legitimateparents and

2. Illegitimatechildren anddescendants(ICD)

ascendants(LPA)

3. Survivingspouse (SS)

3. In default of the foregoing,illegitimate

parents only(IP)

4. Illegitimatechildren anddescendants(ICD)

4. Survivingspouse (SS)

NOTES:

See Sections 17 & 18 of R.A. 8552.

By force of the Family Code, adoptedchildren are deemed legitimate children ofthe adopters.

By force of the Family Code, IC without

distinction and so long as their filiation isduly established or proved in accordancewith law, are each entitled to 1/2 of thelegitime of a LC, thus abrogating the 5:4ratio between natural and non-naturalIC.

RULES:1. Direct descending line

a. Rule of preference between linesb. Rule of proximityc. Right of representation ad infinitum in

case of predecease, incapacity, or

disinheritance (LC: LD only; IC: both LDand ID)

d. If all the LC repudiate their legitime,the next generation of LD succeed intheir own right

2. Direct ascending linea. Rule of division by linesb. Rule of equal division

3. Non-impairment of legitime

TABLE OF LEGITIMES

SURVIVOR LEGITIME NOTES

LC Divide by the# of LC,whether theysurvive aloneor withconcurringCH.

1 LCSS

2 or moreLCSS

equal to 1LC

LCIC

of 1 LC

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LCSSIC

of 1 LC

All theconcurring CHget from thehalf freeportion, theshare of theSS havingpreferenceover that ofthe IC, whoseshare maysufferreduction prorata becausethere is nopreferenceamongthemselves.

LPA Whether theysurvive aloneor withconcurringCH.

LPAIC

IC succeed inthe in equalshares.

LPASS

LPASSIC

1/8

IC Divide equallyamong the IC.

SSIC

1/31/3

SS 1/3 if marriage is inarticulomortis anddeceasedspouse dieswithin 3 mos.after themarriage.

IP

IPAny child

-excluded-It depends

Childreninherit in theamountsestablished inthe foregoingrules.

IPSS

Only theparents are ofIC areincluded.Grandparentsand otherascendantsare excluded.

STEPS IN DETERMINING THE LEGITIME OFCOMPULSORY HEIRS:1. Determination of the gross value of the

estate at the time of the death of thetestator;

2. Determination of all debts and chargeswhich are chargeable against the estate;

3. Determination of the net value of theestate by deducting all the debts andcharges from the gross value of the estate;

4. Collation or addition of the value of all

donations inter vivos to the net value of theestate;

5. Determination of the amount of thelegitime from the total thus found;

6. Imputation of the value of all donationsinter vivos made to compulsory heirsagainst their legitime and of the value of alldonations inter vivos made to strangersagainst the disposable free portion andrestoration to the hereditary estate if thedonation is inofficious; and

7. Distribution of the residue of the estate inaccordance with the will of the testator

COLLATION1. Fictitious mathematical process of adding

the value of the thing donated to the netvalue of the hereditary estate (Art. 908 andArts. 1061-1077).

2. Act of charging or imputing such valueagainst the legitime of the compulsory heirto whom the thing was donated (Arts. 1061-1077).

3. Actual act of restoring to the hereditaryestate that part of the donation which isinofficious in order not to impair thelegitime of compulsory heirs.

RESERVA TRONCAL (ART 891)

The reservation by virtue of which anascendant who inherits from his descendantany property which the latter may haveacquired by gratuitous title from anotherascendant or a brother or sister, is obligedto reserve such property for the benefit of

relatives who are within the 3rd

degree andwho belong to the line from which suchproperty came.

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It constitutes as an exception to both thesystem of legitime and the order ofintestate succession.

Purposes:1. To reserve certain property in favor of

certain persons;2. To prevent persons outside a family from

acquiring, by some chance or accident,property which otherwise would haveremained with the said family;

3. To maintain a separation between paternaland maternal lines.

NOTE: Considering the rationale for reservatroncal which is to ultimately revert ownershipof property that originally belongs to a line ofrelatives but which by force of law passes to adifferent line, the reserva would have no reasonto arise where the ascendants who acquire theproperty themselves belong to the line ofrelatives from which the property was, in turn,acquired by the descendant.

Requisites:1. The property should have been acquired byoperation of law by an ascendant(reservista) from his descendant(propositus) upon the death of the latter.

2. The property should have been previouslyacquired by gratuitous title by thedescendant (propositus) from anotherascendant or from a brother or sister(originator).

3. The descendant (propositus) should havedied without any legitimate issue in thedirect descending line who could inherit

from him.

Personal elements:1. Originator the ascendant, or brother or

sister from whom the propositus hadacquired the property by gratuitous title(e.g. donation, remission, testate orintestate succession);

2. Propositus the descendant who died andfrom whose death the reservista in turn hadacquired the property by operation of law(e.g. by way of legitime or intestatesuccession). The so-called arbiter of the

fate of the reserva troncal.3. Reservista the ascendant, not belonging

to the line from which the property came(Justice Vitug) that is the only compulsoryheir and is obliged to reservethe property.

NOTE: Dr. Tolentino is of the view that even ifthe reservista and the originator belong to thesame line, there is still an obligation to reserve.4. Reservatarios the relatives of the

propositus within the 3 rd degree and whobelong to the line from which the propertycame and for whose benefit the reservationis constituted. They must be related by

blood not only to the propositus but also tothe originator.

NOTE: All personal elements must be joined bybonds of legitimate relationship.

NOTE: In determining the right of thereservatarios over the reservable property,there are 2 events to consider:1. Death of propositus: all qualified

reservatarios acquire an inchoate right.Reservista owns the property subject to aresolutory condition.

2. Death of reservista:surviving reservatariosacquire a perfect right.

NOTE: The NCC did not provide for the rules onhow the reservatarios would succeed to thereservista. However, the following rules onintestacy have been consistently applied:

a. Rule of preference between linesb. Rule of proximityc. Right of representation (provided that

the representative is a relative of thedescendant- propositus within 3rd

degree, and that he belongs to the linefrom which the reservable propertycame)

d. Full blood/double share rule in Art.1006

Property subject to reservation: must bethe same property which the reservista hadacquired by operation of law frompropositus upon the death of the latter andwhich the latter, in turn had acquired bygratuitous title during his lifetime fromanother ascendant, brother/sister.

Obligations of Reservista:(1) To make an inventory of all reservable

property;(2) To appraise value of all reservable

movable property;(3) To annotate in Registry of property the

reservable character of all reservableimmovable property;

(4) To secure by mortgage (a) restitutionof movables not alienated, (b) paymentof damages caused by his fault ornegligence, (c) return of price received

for movables alienated and (d)payment of value of immovablealienated.

A reservatorio may dispose of his

expentancy to the reservable propertyduring pendency of the reserve in itsuncertain and conditional form. If he diesbefore the reservista, he has nottransmitted anything, but if he survivessuch reservista, the transmission shallbecome effective.

A will may prevent the constitution of a

reserva. In case of testate succession, onlythe legitime passes by operation of law. The

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propositus may, by will, opt to give thelegitime of his ascendant without giving tothe latter properties he had acquired bygratuitous title from another ascendant, orbrother or sister. In such case, a reservatroncal is avoided.

However, if the ascendant was notdisentitled in the will to receive suchproperties, the reserva minima rule(proportional reserva) should be followed. Therule holds that all property passing to thereservista must be considered as passing partlyby operation of law and partly by will of thepropositus. Thus, one half of the propertiesacquired by gratuitous title should bereservable, and the other half should be free.

Causes for Extinguishment of Reserva Troncal:1. Death of reservatarios;2. Death of all relatives of propositus within

the 3rd degree who belong to the line fromwhich the property came;

3. Loss of the reservable property for causesnot due to the fault or negligence of thereservista.

4. Waiver or renunciation by the reservatarios;5. Prescription of the right of the

reservatarios, when the reservista holds theproperty adversely against them in theconcept of an absolute owner;

6. Registration by the reservista of theproperty as free property under the LandRegistration Act

M. DISINHERITANCE (ART 915 923)

A testamentary disposition by which aperson is deprived of, or excluded from, theinheritance to which he has a right.

A disinheritance properly effected totallyexcludes the disinherited heir from theinheritance. The disinherited heir isdeprived not only of the legitime but alsoof such part of the free portion that wouldhave passed to him by a previous will(which is revoked, as inconsistent with, thesubsequent disinheritance) or by intestatesuccession.

Requisites:1. Effected only through a valid will;2. For a cause expressly stated by law;3. Cause must be stated in the will itself;4. Cause must be certain and true;5. Unconditional;6. Total; and7. The heir disinherited must be designated in

such a manner that there can be no doubtas to his identity.

Effects of Disinheritance:

1. Deprivation of the compulsory heir who isdisinherited of any participation in theinheritance including the legitime.

2. The children/descendants of the persondisinherited shall take his or her place andshall preserve the rights of compulsory heirswith respect to the legitime.

3. The disinherited parent shall not have theusufruct or administration of the propertywhich constitutes the legitime.

IMPERFECT DISINHERITANCE

A disinheritance which does not have one ormore of the essential requisites for itsvalidity.

Effects:1. If testator had made disposition of the

entire estate: annulment of thetestamentary dispositions only in so far asthey prejudice the legitime of the persondisinherited; does not affect thedispositions of the testator with respect tothe free portion.

2. If testator did not dispose of the freeportion: compulsory heir is given all that he

is entitled to receive as if thedisinheritance has not been made, withoutprejudice to lawful dispositions made by thetestator in favor of others.

3. Devises, legacies and other testamentarydispositions shall be valid to such extent aswill not impair the legitime.

IMPERFECTDISINHERITANCE

PRETERITION

1. The persondisinherited may beany compulsory heir

1. The personomitted must be acompulsory heir inthe direct line

2. Always express 2. Always implied

3.Always intentional 3. May beintentional orunintentional

4. Effect: Partialannulment of institution of heirs

4. Effect: Totalannulment of institution of heirs

Common Causes for Disinheritance of childrenor descendants, parents or ascendants, andspouse:1. When the heir has been found guilty of an

attempt against the life of the testator,his/her descendants or ascendants, andspouse in case of children and parents;

2. When the heir has accused the testator of acrime for which the law prescribesimprisonment for 6 years or more, if theaccusation has been found groundless;

3. When the heir by fraud, violence,intimidation, or undue influence causes thetestator to make a will or to change onealready made;

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4. Refusal without justifiable cause to supportthe testator who disinherits such heir.

Peculiar Causes for Disinheritance1. Children/Descendants:

a. When the child/descendant has beenconvicted of adultery or concubinagewith the spouse of the testator;

b. Maltreatment of the testator by word ordeed by the child/descendant;

c. When the child/descendant leads adishonorable or disgraceful life;Conviction of a crime which carries withit a penalty of civil interdiction.

2. Parents/Ascendants:a. When the parents have abandoned their

children or induced their daughters tolive a corrupt or immoral life, orattempted against their virtue;

b. When the parent/ascendant has beenconvicted of adultery or concubinage

with the spouse of the testator;c. Loss of parental authority for causesspecified in the Code; and

d. Attempt by one of the parents againstthe life of the other, unless there hasbeen reconciliation between them.

3. Spouse:a. When the spouse has given cause for

legal separation; When the spouse hasgiven grounds for the loss of parentalauthority.

Revocation of Disinheritance:

1. Reconciliation;2. Subsequent institution of the disinherited

heir; and3. Nullity of the will which contains the

disinheritance.

NOTE: Once disinheritance has been revoked orrendered ineffectual, it cannot be renewedexcept for causes subsequent to the revocationor based on new grounds.

RECONCILIATION

It is the resumption of genuine cordial

relationship between the testator and thedisinherited heir, approximating that whichprevailed before the testator learned of thecause for disinheritance, reciprocallymanifested by their actions subsequent tothe act of disinheritance.

A subsequent reconciliation between theoffender and the offended person deprivesthe latter of the right to disinherit, andrenders ineffectual any disinheritance thatmay have been made. (Art. 922)

NOTES:

Mere civility which may characterize theirrelationship, a conduct that is naturally

expected of every decent person, is notenough.

In order to be effective, the testator must

pardon the disinherited heir. Such pardonmust specifically refer to the heir and tothe acts causing the disinheritance. Theheir must accept the pardon.

No particular form is required. It may be

made expressly or tacitly.

NOTE: Where the cause for disinheritance islikewise a ground for unworthiness to succeed,what is the effect of a subsequentreconciliation upon the heirs capacity tosucceed?1. If disinheritance has been made: Rule on

reconciliation applies. The disinheritancebecomes ineffective.

2. If disinheritance has not been made: Ruleon reconciliation does not apply. The heircontinues to be incapacitated to succeedunless pardoned by the testator under Art.

1033. The law effects the disinheritance.

N. LEGACIES AND DEVISES (ARTS. 924 959)

Persons charged with legacies and devises:(1) compulsory heir;(2) voluntary heir;(3) legatee or devisee;(4) estate

NOTES:

If the will is silent with regard to the person

who shall pay or deliver the legacy/devise,there is a presumption that such legacy ordevise constitutes a charge against thedecedents estate.

Since legacies and devises are to be takenfrom the disposable free portion of theestate, thus, the provisions on institution ofheirs are generally applicable to them.

STATUS OFPROPERTY GIVEN BY

LEGACY/DEVISE

EFFECT ON THELEGACY/DEVISE

1. Belonging to thetestator at the time ofthe execution of thewill until his death

Effective

2. Belonging to thetestator at the time ofthe execution of thewill but alienated infavor of a 3rd person

Revoked

3. Belonging to the

testator at the time ofthe execution of thewill but alienated infavor of the

No revocation.

There is a clearintention tocomply withlegacy or devise.

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legatee/deviseegratuitously

4. Belonging to thetestator at the time ofthe execution of thewill but alienated infavor of the legatee ordevisee onerously

Legatee/deviseecan demandreimbursementfrom the heir orestate

5. Not belonging to thetestator at the timethe will is executed buthe has ordered that thething be acquired inorder that it be givento the legatee/devisee

Effective

6. Not belonging to thetestator at the timethe will is executedand the testatorerroneously believedthat the thingpertained to him

Void

7. Not belonging to thetestator at the timethe will is executed butafterwards becomes hisby whatever title

Effective

8. Already belonged tothe legatee/devisee atthe time of theexecution of the willeven though anotherperson may haveinterest therein

Ineffective

9. Already belonged tothe legatee or deviseeat the time of theexecution of the willeven though it mayhave beensubsequently alienatedby him

Ineffective

10.Testator hadknowledge that thething bequeathedbelonged to a third

person and thelegatee/deviseeacquired the property

gratuitously after theexecution of the will

Legatee/deviseecan claim nothingby virtue of thelegacy/devise

11.Testator hadknowledge that thething bequeathedbelonged to a thirdperson and thelegatee/deviseeacquired the propertyby onerous title

Legatee/deviseecan demandreimbursementfrom the heir orestate

ART. 911 ART. 950

Order ofpreference:

(LIPO)

Order of preference:(RPSESO)

1. Legitime ofcompulsoryheirs

2. Donations intervivos

3. Preferentiallegacies ordevices

4. All otherlegacies ordevicesprorata

1. Remuneratory L/D2.Preferential L/D3.L for support4.L for education5.L/D of a specific,

determinate thingwhich forms a partof the estate

All otherspro rata

Application: Application:

(1) When thereduction isnecessary to

preserve thelegitime of compulsory heirsfrom impairmentwhether there are

(1) When there are nocompulsory heirs andthe entire estate is

distributed by thetestator as legaciesor devises; or

donations intervivos or not; or

(2) When,although, thelegitime has beenpreserved by thetestator himselfthere are

donations intervivos.

(2) When there arecompulsory heirs buttheir legitime hasalready beenprovided for by thetestator and thereare no donationsinter vivos.

NOTES:

In case of reduction in the above cases, theinverse order of payment should befollowed.

When the question of reduction isexclusively among legatees and deviseesthemselves, Article 950governs; but when

there is a conflict between compulsory heirsand devisees and legatees, Article 911applies.

GROUNDS FOR REVOCATION OF LEGACIES ANDDEVISES (ART 957)1. Testator transforms the thing bequeathed

in such a manner that it does not retaineither the form or the denomination it had.

2. Testator by any title or for any causealienates the thing bequeathed, or any partthereof, it being understood that in the

latter case the legacy or devise shall bewithout effect only with respect to the partalienated.

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Except: when the thing should again belongto the testator after alienation.

3. Thing bequeathed is totally lost during thelifetime of the testator, or after his deathwithout the heirs fault

4. Other causes: nullity of the will;noncompliance with suspensive conditionsaffecting the bequests; sale of the thing topay the debts of the deceased during thesettlement of his estate.

NOTE: LIST IS NOT EXCLUSIVE

II. LEGAL OR INTESTATE SUCCESSION

That which is effected by operation of lawin the absence or default of a will.

CAUSES OF INTESTACY1. If a person dies without a will, or with a

void will, or one which has subsequentlylost its validity;

2. Absence of an institution of heir;3. Partial institution of heir. In such case,

intestacy takes place as to the undisposedportion (mixed succession);

4. Non-fulfillment of suspensive conditionattached to the institution of heir;

5. Predecease of the instituted heir;6. Repudiation by the instituted heir;7. Incapacity of instituted heir;8. Preterition. Intestacy may be total or

partial depending on whether or not thereare legacies/devises;

9. Fulfillment of resolutory condition;10. Expiration of term or period of institution;11. Non-compliance or impossibility of

compliance with the will.

NOTE: In all cases where there has been aninstitution of heir,follow the I.S.R.A.I. orderofJustice Paras. If the Institution fails,Substitution occurs. If there is no substitute,the right ofRepresentation applies in the directdescending line to the legitime if the vacancy is

caused by predecease, incapacity, ordisinheritance. The right ofAccretion applies tothe free portion when the requisites in Art.1016 are present. If there is no substitute, andthe right of Representation or Accretion doesnot apply, the rules on Intestate successionshall take over.

A. RULES1. Rule of Preference between lines

Those in the direct descending line shallexclude those in the direct ascendingand collateral lines, and those in the

direct ascending line shall, in turn,exclude those in the collateral line.

2. Rule of Proximity

The relative nearest in degree excludesthe more distant ones, saving the rightof representation when it properlytakes place.

This rule is subject to the rule ofpreference between lines.

3. Rule of Equal Division

Relatives in the same degree shallinherit in equal shares.

EXCEPTIONS:a) Division in the ascending line (betweenpaternal and maternal grandparents);

b) Division among brothers and sisters,some of whom are of the full and othersof half blood; and

c) Division In cases where the right ofrepresentation takes place.

NOTE: This rule is subject to the rule ofpreference between lines.

4. Rule of Barrier between the legitimatefamily and the illegitimate family

The illegitimate family cannot inherit

by intestate succession from thelegitimate family and vice-versa.

5. Rule of Double Share for full bloodcollaterals

When full and half-blood brothers orsisters, nephews or nieces, survive, thefull blood shall take a portion in theinheritance double that of the half-blood.

NOTE: In case of a disposition made in generalterms under Article 959, only the Rule ofProximity applies.

B. RELATIONSHIP (ARTS. 963 969)1. Number of generations determines

proximity.2. Each generation forms a degree.3. A series of degrees forms a line.4. A line may be direct or collateral. A direct

line is that constituted by the series ofdegrees among ascendants and descendants(ascending and descending).

5. A collateral line is that constituted by theseries of degrees among persons who arenot ascendants or descendants, but whocome from a common ancestor.

6. Full blood: same father and mother; halfblood: only one of either parent is thesame.

7. In adoption, the legal filiation is personaland exists only between the adopter andthe adopted. The adopted is deemed alegitimate child of the adopter (AP), butstill remains as an intestate heir of hisnatural parents and other blood relatives.

C. RIGHT OF REPRESENTATION (RR)

(ARTS. 970 977) A right created by fiction of law, by virtue

of which the representative is raised to theplace and degree of the person

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represented, and acquires the rights whichthe latter would have if he were living or ifhe could have inherited. Therepresentative is called to the succession bythe law not by the person represented. Hesucceeds the one whom the personrepresented would have succeeded.

NOTES:

In the direct line, representation takesplace ad infinitum in the direct descendingline, never in the ascending.

In the collateral line, representation takesplace only in favor of the children ofbrothers or sisters (nephews and nieces),whether of the full or half-blood, and onlyif they concur with at least 1 uncle or aunt.

1. Testamentary Successiona) When a compulsory heir in the direct

descending line had predeceased thetestator and was survived by his

children or descendants.b) When a compulsory heir in the direct

descending line is excluded from theinheritance due to incapacity orunworthiness and he has children ordescendants.

c) When a compulsory heir in the directdescending line is disinherited and hehas children or descendants;representation covers only the legitime.

d) A legatee/devisee who died after thedeath of the testator may berepresented by his heirs.

2. Intestate Successiona) When a legal heir in the direct

descending line had predeceased thedecedent and was survived by hischildren or descendants.

b) When a legal heir in the directdescending line is excluded from theinheritance due to incapacity orunworthiness and he has children ordescendants.

c) When brothers or sisters had

predeceasedthe decedent and they hadchildren or descendants.d) When illegitimate children represent

their illegitimate parents who alreadydied in the estate of their grandparents.

e) When nephews and nieces inherittogether with their uncles and aunts inrepresentation of their deceasedparents who are the brothers or sistersof said uncles and aunts.

D. INTESTATE OR LEGAL HEIRS

Those who are called by law to the

succession either in the absence of a will orof qualified heirs, and who are deemedcalled based on the presumed will of thedecedent.

REGULAR ORDER OF SUCCESSION (Decedent isa legitimate person):1. Legitimate children or descendants (LCD)2. Legitimate parents or ascendants (LPA)3. Illegitimate children or descendants (ICD)4. Surviving spouse (SS)5. Brothers and sisters, nephews and nieces

(BS/NN)6. Other collateral relatives within the 5th

degree (C5)7. State

IRREGULAR ORDER OF SUCCESSION (Decedentis an illegitimate person):1. Legitimate children or descendants (LCD)2. Illegitimate children or descendants (ICD)3. Illegitimate parents (IP)4. Surviving spouse (SS)5. Brothers and sisters, nephews and nieces

(BS/NN)6. State

ORDER OF CONCURRENCE1. LCD, ICD, and SS2. LPA, ICD, and SS3. ICD and SS4. SS and IP5. BS/NN and SS6. C5 (alone)7. State (alone)

TABLE OF INTESTATE SHARES

SURVIVOR INTESTATE SHAREAny classalone

Entire estate

1 LCSS

1/21/2(Diongson vs. Cinco, 74SCRA 118)

2 or more LCSS

Consider SS as 1 LC, thendivide estate by totalnumber.

LPASS

1/21/2

LPASSIC

1/21/41/4

IPSS

1/21/2(The law is silent. Applyconcurrence theory.)

SSBS/NN

1/21/2

1 LCSSIC

First, satisfy legitimes.Estate would beinsufficient. Reduction

must be made accordingto the rules on legitimes.The legitimes of LCD andSS shall always be first

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satisfied in preferenceto the ICD.

2 or more LCSSIC

First, satisfy legitimes.There would be anexcess in the estate.Distribute such excess inthe proportion 1:2:2, inaccordance with theconcurrence theory.

ORDER OF CONCURRENCE IN THE CASE OFADOPTED CHILD

SURVIVORS SHARE1. LPA/IP

AP

2. LPA/IPAPSS

3. LPA AP

ICD

4. LPAAPSSICD

1/3

1/31/3

CARDINAL PRINCIPLES OF INTESTATESUCCESSION (Justice Paras)1. Even if there is an order of intestate

succession, the Compulsory Heirs (CH) arenever excluded. The Civil Code follows theconcurrence theory, not the exclusiontheory.

2. Right of Representation (RR) in thecollateral line occurs only in intestatesuccession, never in testamentarysuccession because a voluntary heir cannotbe represented (collateral relatives are notCH).

3. The intestate shares are either equal to orgreater than the legitime.

4. GENERAL RULE: Grandchildren alwaysinherit by RR, provided representation isproper.

EXCEPTION: Whenever all the childrenrepudiate, the grandchildren inherit in theirown right because RR would not be proper.

5. Nephews and nieces inherit either by RR orin their Own Right (OR).a. RR: when they concur with aunts and

uncles (provided that RR is proper)

b. OR: when they do not concur with auntsand uncles.

6. ICD of legitimates cannot represent becauseof the barrier, but both the ICD and LCD ofillegitimates can.

7. There can be reserva troncal in intestatesuccession.

8. A renouncer can represent, but cannot berepresented.

9. A person who cannot represent a nearrelative cannot also represent a relativefarther in degree.

III. MIXED SUCCESSION OR PARTIAL

INTESTACY

Succession that is effected partly by willand partly by operation of law.

RULES:1. The law of legitimes must be brought into

operation in partial intestacy, because thetestamentary dispositions can affect onlythe disposable free portion but never thelegitimes.

2. If among the concurring intestate heirsthere are compulsory heirs, whose legal or

intestate portions exceed their respectivelegitimes, then the amount of thetestamentary disposition must be deductedfrom the disposable free portion, to beborne by all the intestate heirs in theproportions that they are entitled toreceive from such disposable free portion asintestate heirs.

3. If the intestate share of a compulsory heir isequal to his legitime, then the amount ofthe testamentary disposition must bededucted only from the intestate shares ofthe others, in the proportions stated above.

4. If the testamentary dispositions consumethe entire disposable free portion, then theintestate heirs who are compulsory heirswill get only their legitime, and those whoare not compulsory heirs will get nothing.

IV. PROVISIONS COMMON TO TESTAMENTARYAND INTESTATE SUCCESSIONS

A. RIGHT OF ACCRETION (A)

(ARTS 1015 1023) A right by virtue of which, when two or

more persons are called to the sameinheritance, devise or legacy, the partassigned to one who renounce or cannotreceive his share, or who died beforetestator, is added or incorporated to that ofhis co-heirs, co-devisees, or co-legatees.

A right based on the presumed will of thedeceased that he prefers to give certainproperties to certain individuals, ratherthan to his legal heirs.

Requisites:1. 2 or more persons must have been called to

the same inheritance, legacy or devise, or

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to the same portion thereof,pro indiviso;and

2. there must be a vacancy in the inheritance,legacy or devise (caused by predecease,incapacity, repudiation, nonfulfillment ofsuspensive condition or void or ineffectivetestamentary dispositions.)

EFFECTS of PREDECEASE, INCAPACITY,DISINHERITANCE, or REPUDIATION in bothTESTAMENTARY and INTESTATE SUCCESSION

CAUSE OFVACANCY

TESTAMENTARYSUCCESSION

INTESTATESUCCES-

SION(IS)

Legitime FreePortion

Predecease 1. RR2. IS

1. A2. IS

1. RR2. IS

Incapacity RR2.IS

AIS

1.RR2.IS

Disinheri-tance

1.RR2.IS

_ _

Repudia-tion

IS A A

Summary:(A) In testamentarysuccession:

(1) Legitime:(a) In case of predecease of an heir,

there is representation if there arechildren or descendants; if none,the others inherit in their ownright.

(b) In case of incapacity, results arethe same as in predecease.

(c) In case of disinheritance, resultsare the same as in predecease.

(d) In case of repudiation by an heir,the others inherit in their ownright.

(2) Disposable free portion:Accretion takes place when requisitesare present; but if such requisites arenot present, the others inherit in theirown right.

(B) In intestate succession:(1) In case of predecease, there is

representation if there are children or

descendants; if none, the others inherit intheir own right.

(2) In case of incapacity, results are the sameas in predecease.

(3) In case of repudiation, there is alwaysaccretion.

B. CAPACITY TO SUCCEED BY WILL OR BYINTESTACY (ARTS. 1024 1040)

Requisites:1. The heir, legatee/devisee must be living or

in existence at the moment the successionopens; and

2. He must not be incapacitated ordisqualified by law to succeed.

THE FOLLOWING ARE INCAPABLE OFSUCCEEDING:A. Based on Undue Influence or Interest:(PIGRAP)1. Priest who heard the confession of the

testator during his last illness, or theminister of the gospel who extendedspiritual aid to him during the same period;

2. Individuals, associations and corporationsnot permitted by law to inherit;

3. Guardian with respect to testamentarydispositions given by a ward in his favorbefore the final accounts of theguardianship have been approved, even ifthe testator should die after the approvalthereof; nevertheless, any provision madeby the ward in favor of the guardian whenthe latter is his ascendant, descendant,brother, sister, or spouse, shall be valid;

4. Relatives of such priest or minister of thegospel within the 4th degree, the church,

order, chapter, community, organization orinstitution to which such priest or ministermay belong;

5. Attesting witness to the execution of a will,the spouse, parents or children, or any oneclaiming under such witness, spouse,parents or children; and

6. Physician, surgeon, nurse, health officer ordruggist who took care of the testatorduring his last illness.

B. Based on Morality or Public Policy(ART 739)

1. Those made in favor of a person with whomthe testator was guilty of adultery orconcubinage at the time of the making of thewill.

2. Those made in consideration of a crime ofwhich both the testator and the beneficiaryhave n found guilty.

3. Those made in favor of a public officer or hisspouse, descendants and ascendants, byreason of his public office

C. Based on Acts of Unworthiness (A4F3P)1. Parents who have abandoned their children

or induced their daughters to lead a corruptor immoral life, or attempted against theirvirtue;

2. Any person who has been convicted of anattempt against the life of the testator,his/her spouse, descendants or ascendants;

3. Any person who has accused the testator ofa crime for which the law prescribesimprisonment for 6 years or more, if theaccusation has been found groundless;

4. Any person convicted of adultery orconcubinage with the spouse of thetestator;

5. Any heir of full age who, having knowledgeof the violent death of the testator, shouldfail to report it to an officer of the lawwithin a month, unless the authorities have

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already taken action; this prohibition shallnot apply

3 Succession Ready

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