1

TITLE IV SUCCESSION CHAPTER I GENERAL PROVISIONS What are the modes of acqu r !" o#!ersh $% a. b. c. d. e. f. Occupation Intellectual creation Law Donation Testate and intestate succession Tradition (In consequence of contracts) Prescription 1

certain

g.

Thus, under the Civil Code, succession is one of the modes of acquirin ownership! The first three are ori inal and the last four are derivative! Theor& of mode a!d t t'e "ode is a wa# or process of acquirin or transferrin ownership$ while title refers to the %uridical act or deed which is not sufficient &# itself to transfer ownership &ut it provides a %uridical %ustification for the effectuation of a mode! Consequentl#, mode directl# produces a real ri ht, while title serves onl# to produce a means or occasion for its acquisition! In other words, mode is the cause, while title is the means! Thus, if a seller sells his car to a &u#er, the sale is the title while the deliver# (tradition) is the mode which ma'es the &u#er the owner of the rin ! ( title merel# creates a personal ri ht which could real ri ht if followed with deliver#! MODE OCCUPATION )*I+,-* TITLE P-OP*-T.
)*I+*D I)

/IT0O,T ( 12O/2 O/2*-

(rticle 314 2CC

2
INTELLECTUAL
CREATION

*"*-5*2C* 7O-C*

O- DI)CO6*-.

O-I5I2(LIT.

O- 2O6*LT.

LAW

O7 L(/

CO2C,--*2C*

O7

P-*-*8,I)IT* CO2DITIO2)

DONATION SUCCESSION TRADITION PRESCRIPTION

7O-"(LITI*)9D*LI6*-. D*(T0 D*LI6*-. L(P)*

O7 P-*)C-I:*D P*-IOD

(5-**"*2T L(/

O7 P(-TI*)

O- /ILL

(5-**"*2T PO))*))IO2

O7 T0*

P(-TI*) I2 T0*

CO2C*PT O7 (2 O/2*-

2ote that in the law on succession, the title is also the mode! 0ereditar# ri hts are transferred from the moment of death of the decedent ((rticle 333)! Deliver# (tradition) is not a condition pre;requisite to transfer ownership! (ctual possession, however, ma# &e e<ercised onl# upon actual deliver# ((rticle 1=>?$ 1=?1)! What s success o!% )uccession is a mode of acquisition &# virtue of which the propert#, ri hts and o&li ations to the e<tent of the value of the inheritance, of a person are transmitted throu h his death to another or others either &# will or &# operation of law! 4 This is hereditar# succession! What are the e'eme!ts of success o! as def !ed (& the C ) ' Code% 1! It is a mode or wa# of acquirin ownership$ 4! There is transmission of propert#, ri hts and o&li ations to another or others$ @! (s to transmission of o&li ations, it is onl# to the e<tent of the value of the inheritance$ A! The cause of transmission is the death of the decedent$ B! The procedure of transmission ma# &e &# will or operation of law$

6.
2 3

The acceptance of the inheritance &# the heir which is understood even if not e<pressl# stated in the (rticle! @ (rticle 33A 2CC (rticle B@@ 2CCC DThe possession of hereditar# propert# is deemed transmitted to the heir without interruption, and from

Whe! are success o!a' r "hts )ested% )uccessional ri hts are transmitted as of the moment of death of the decedent! A )uccessional ri hts are therefore vested as of the moment of death of the decedent! What 'a# "o)er!s d str (ut o! of estate% The law in force at the time of death of the deceased shall overn the distri&ution of his estate and not the law at the time of distri&ution! What s the d ffere!ce (et#ee! a decede!t a!d a testator% a! Decedent E This term is used in Civil Law when reference is made to a person who died with propert# to transmit to his heirs throu h succession! The word is applica&le whether or not the deceased e<ecuted a will! 0ence DdecedentF is a eneral term for &oth situations! &! Testator E This term is used onl# in reference to a decedent who left a valid will! ( decedent who did not leave an# will cannot &e called a testator! What !c'udes !her ta!ce% a! Propert#$ &! Transmissi&le ri hts (those not e<tin uished &# death)$ c! Transmissi&le o&li ations (those not e<tin uished &# death)$ and

d.

(ll propert# which have accrued thereto since the openin of the succession (death of the decedent)! B The latter refers to after;acquired propert#, that is, not onl# propert# acquired &etween the period of the e<ecution of the will and the death of the testator, &ut also accruin propert# until the distri&ution of the estate!

the moment of death of the decedent, in case the inheritance is accepted! One who validl# renounces an inheritance is deemed never to have possessed the same!F 4 (rticle 333 2CC 5 (rticle 3>1 2CC

4
2ote however that if the decedent died with a valid will, the after;acquired propert# shall not pass to the desi nated heir unless the same is e<pressl# stated in the will or the intention clearl# appears!G /hen the testator used eneral terms in the disposition of his propert# such as Dmy entire estateF, Dall my propertyF, etc! the intention to pass after;acquired propert# is deduci&le in the a&sence of the contrar# conte<t! What $ro$ert es% a! &! are e*am$'es of after+acqu red

(lluvial deposits Interests on credits

These are accretions and accessions! 0owever, the# are not strictl# inherited for the# form part of the estate onl# after the heirs &ecome the owners thereof, hence, properl# spea'in , the# are acquired &# accretion as an incident of ownership under the law, and not &# succession! Propert# acquired &# the testator &etween the time the will is made and the time he dies, is not iven to the desi nated heir unless the contrar# has &een e<pressl# provided! )uch propert# is acquired prior to the death, not afterwards! What are !tra!sm ss ('e r "hts% The# are ri hts e<tin uished upon the death of the decedent! The heirs could not succeed to intransmissi&le ri hts! What are the r "hts a!d o(' "at o!s% a! &! c! d! e! f! ! e*am$'es of !tra!sm ss ('e

The ri ht to receive support$ The o&li ation to ive support$ The ri ht of usufruct$ Criminal lia&ilit#$ Political position$ The ri ht of parental authorit#$ and "arital ri hts! cr ter a ! determ ! !"

What are the !tra!sm ss ('e r "hts%

(rticle 3?@ 2CC

5
a! /hen the ri hts are purel# personal in nature such as the dischar e of pu&lic office$ and

b.

/hen ri hts are e<pressl# made intransmissi&le &# law li'e usufruct! 3 Are he rs ' a('e for the $erso!a' de(ts of the decede!t% U$ to #hat e*te!t ma& a! he r !her t o(' "at o!s of h s $redecessor+ !+ !terest% The heirs are onl# entitled to et what remains in the inheritance after pa#ment of all o&li ations! 0owever, the heirs are not lia&le for the de&ts of the decedent which de&ts must &e paid or char ed a ainst the propert# left &# the deceased! (nd if this propert# is not enou h to defra# all the inde&tedness, the heirs are not lia&le to pa# the &alance! (Pavia vs. Dela Rosa, P!il. "#$ S%ilon& ' Co. vs. C!io ( Tayson, )* P!il. )$ Centeneral vs. Sotto, " P!il. +,*) Thus, the heir ma# inherit o&li ations &ut onl# to the e<tent of the value of the inheritance! The heir cannot &e required to pa# more than what he ets! (Na-ar vs. Nistal, )). SCRA *.) It is the estate of the decedent, instead of the heirs, who is vested and char ed with his ri hts and o&li ations, which survive after his death! 7or this purpose, it has &een held that it is the estate, rather than the heir, which must &e considered the decedentHs personalit#! Are mo!etar& o(' "at o!s #h ch the decede!t !curred dur !" h s ' fet me tra!sm ss ('e to the he rs so that the 'atter ma& (e char"ed d rect'& for the $a&me!t thereof% 2o! )uch monetar# o&li ations are intransmissi&le! The# must &e liquidated in the testate or intestate proceedin s (-ule >3, )ection B, -ules of Court) /hile the decedent is dead, nevertheless, his estate is considered a %uridical person with the ri ht to sue and &e sued throu h the e<ecutor or administrator as the case ma# &e! 0eirs are the continuit# of the %uridical personalit# of the decedent and as such can file an action to protect the latterHs estate! Literall# construed, however, mone# o&li ations of the deceased, under (rticle 33A, pass to the heirs, to the e<tent that the# inherit from him! )eemin l#, therefore, this article mandates that the heirs receive the estate, and then
7

(rticle G=@, par 1 2CC

6
pa# off the creditors! Philippine procedural law, however, influenced &# the common;law s#stem, has laid down a different method for the pa#ment of mone# de&ts, which is found in -ules >> to ?= of the -ules of Court! It is onl# a/ter the de&ts are paid that the residue of the estate is distri&uted amon the successors! > In our s#stem, therefore, mone# de&ts are, properl# spea'in , not transmitted to the heirs nor paid &# them! The estate pa#s them$ it is onl# what is left after the de&ts are paid that are transmitted to the heirs! Are co!tractua' o(' "at o!s tra!sm ss ('e% 5enerall#, unless otherwise provided in the contract, contractual o&li ations are transmissi&le! Thus, if the decedent is the lessor in a contract of lease with a definite period, his heirs will inherit the o&li ation to respect the lease! )imilarl#, in a contract of sale, the heirs are o&li ated to deliver the propert# sold &# their predecessor E in E interest to the &u#er! (Pamplona vs. Moreto, .0 SCRA "*1) ?
8

D-ule ?=, )ec! 1! W!en t!e or2er /or t!e 2istri3%tion o/ resi2%e ma2e. E /hen the de&ts, funeral char es, and e<penses of administration, the allowance to the widow, and inheritance ta<, if an#, char ea&le to the estate in accordance with law, have &een paid, the court, on the application of the e<ecutor or administrator, or of a person interested in the estate, and after hearin upon notice, shall assi n the residue of the estate to the person entitled to the same, namin them and the proportions, or parts, to which each is entitled, and such persons ma# demand and recover their respective shares from the e<ecutor or administrator, or an# other person havin the same in his possession! If there is a controvers# &efore the court as to who are the lawful heirs of the deceased person or as to the distri&utive shares to which person is entitled under the law, the controvers# shall &e heard and decided as in ordinar# cases! 2o distri&ution shall &e allowed until the pa#ment of the o&li ations a&ove mentioned has &een made or provided for, unless the distri&utes, or an# of them, ive a &ond, in a sum to &e fi<ed &# the court, conditioned for the pa#ment of said o&li ations within such time as the court directs!F 9 D(rticle 1@11! Contracts ta'e effect onl# &etween the parties, the assi ns and heirs, e<cept in case where the ri hts and o&li ations arisin from the contract are not transmissi&le &# their nature, or stipulation or &# provision of law! The heirs

In the case of Estate o/ 4erman2y vs. L%5on S%rety Co., In-., )## P!il. , ., it was held thatC DThe &indin effect of contracts upon the heirs of the deceased part# is not altered &# the provision of our -ules of Court that mone# de&ts of a deceased must &e liquidated and paid from his estate &efore the residue is distri&uted amon said heirs (-ule >?)! The reason is that whatever pa#ment is thus made from the estate is ultimatel# a pa#ment &# the heirs or distri&utes, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have &een entitled to receive! ,nder our law, therefore, the eneral rule is that a part#Hs contractual ri hts and o&li ations are transmissi&le to the successors! It must, however, &e made clear that the heirs are lia&le onl# to the e<tent of the value of their inheritance!F What s mea!t (& !her ta!ce% , st !"u sh t from success o!The inheritance ma# &e defined as the universalit# of all properties, ri hts and o&li ations constitutin the patrimon# of the decedent which are not e<tin uished &# his death and which are availa&le for distri&ution amon his heirs after settlement or liquidation! )uccession is the le al mode &# which such propert#, ri hts and o&li ations are transmitted! In other words, the inheritance is merel# the o&%ective element of succession! I!her ta!ce d st !"u shed from success o! a!d $atr mo!& Inheritance refers to the totalit# of the decedentHs propert#, ri hts and o&li ations transmitted to his successor, while succession refers to the le al mode or manner &# which the# are acquired or transmitted, thus the first is the o&%ective of the second! are not lia&le &e#ond the value of the propert# received from the decedent!F

Patrimon# refers to the a re ate of all %uridical relations of a person suscepti&le of economic valuation, while inheritance refers to the mass or totalit# of the patrimon# of the decedent, which is not e<tin uished &# his death, thus the first is &roader than the second! What are the requ s tes for a! effect )e tra!sm ss o! (& success o!% .Requ s tes (efore r "hts ma& (e tra!sm tted mortis causa/

a.

Death, whether actual or presumptive 1= (ordinar# E 1=, B #ears$ e<tra ordinar# E A #ears) ()uccession ta'es place at the time of disappearance, however, actual division ta'es place at the end of the required period)$ &! The e<press will of the testator callin certain persons to succeed him or in default thereof, the provision of law prescri&in the successor$ c! -i hts or properties are transmissi&le$ d! Transferee must &e alive (not predeceased), willin (no repudiation) and capacitated (no disinheritance) to inherit! Whe! s the mome!t of tra!sm ss o! of r "hts% -i hts to the succession are transmitted from the ver# moment of death of the decedent! 11 It is understood of course that there is acceptance of the inheritance! 14 The time of death is the determinin point when the heirs acquire a definite ri ht to the inheritance whether such ri ht &e pure or conditional! O(ser)at o!s0

The ri ht to the succession is not transmitte2$ it &ecomes veste2! To sa# that it is transmitte2 upon death implies that &efore the decedentHs death, the ri ht to the succession was possessed &# the decedent (which is a&surd)! To sa# it vests upon death implies that &efore the decedentHs death the ri ht is merel# inchoate (which is correct)!
10 11 12

(rticle @?1 2CC (rticle 333 2CC 6i2e (rticle B@@ 2CC

9
(rticle 333 merel# specifies the time of vestin of the successional ri ht! It presumes that the person succeedin 1) has a ri ht to succeed &# le itime (compulsor# succession), or &# law (intestate succession)$ 4) has the le al capacit# to succeed$ and @) accepts the successional portion!

The vestin of the ri ht occurs immediatel# upon the decedentHs death$ i.e. without a momentHs interruption! 7rom this principle, o&vious consequences flow, thusC a! Durin the lifetime of the decedent, the ri ht of the heirs is a mere e<pectanc#! ,ntil the death had supervened, the ri ht to succession is merel# speculative for in the meantime, the law ma# chan e, the will of the testator ma# var#, or the circumstances ma# &e modified to such an e<tent that he who e<pects to receive propert# ma# &e deprived of it! Indeed, the moment of death is the determinin point when an heir acquires a definite ri ht to the inheritance$ &! The ri ht of the heirs is vested from the moment of death even &efore %udicial declaration$ c! Previous declaration of heirship is not essential$ d! Liquidation is not necessar#$ e! Ta< o&li ations accrue at the moment of death of the decedent$

f.
13

The law in force at the time of the decedentHs death will determine who the heirs should &e! (6i2e7 Uson vs. Del Rosario, .* P!il. 1,#)$ 1@ 7actsC "aria ,son was the lawful wife of 7austino 2e&reda who upon his death in 1?AB left five parcels of land! 7austino 2e&reda left no other heir e<cept his widow, "aria ,son! Defendant "aria Del -osario was the common law wife of 2e&reda with whom she has several ille itimate children, the other defendants! "aria ,son file the present action for the recover# of the ownership and the possession of said lands claimin that when 2e&reda died his common law wife too' possession of said lands! The defendant contended that under the new Civil Code, which too' effect in 1?B=, the ille itimate children are iven the status and ri hts of natural children and are entitled to the successional ri hts which the law accords to the latter and &ecause these successional ri hts were declared for the first time in the new Civil Code, the# shall &e iven retroactive effect even thou h the even which ave rise to them ma# have occurred under the prior le islation!

10 g. h.
Ownership passes to the heir at the ver# moment of death, who therefore, from that moment acquires the ri ht to dispose of his share (6i2e7 8ose 2e 9or:a vs. Tasiana v2a 2e 9or:a, +0 SCRA 1"")$ and The heirs have the ri ht to &e su&stituted for the deceased as part# in an action that survives (6i2e7 9onilla vs. 9ar-ena, ") SCRA +.))! I''ustrat o!s0 12 32 4 are the he rs of A #ho d ed2 'ea) !" a! estate of te! hectares- 5efore $art t o!2 ca! 1 se'' h s share # thout the co!se!t of 3 a!d 4% Wh&% .es, &ecause his hereditar# share was transmitted from the moment of death of (! There is no le al &ar therefore, for I to sell his share immediatel# even if the actual e<tent of his share has not &een determined! (Testate Estate o/ Tan&-o$ 8ose 2e 9or:a vs. Tasiana v2a 2e 9or:a, +0 SCRA 1"") A d ed # thout a # '' ! 67892 sur) )ed (& three 'e" t mate ch 'dre! 52 C a!d ,- Immed ate'&2 u$o! the death of A2 5 so'd h s e!t re r "ht to the !her ta!ce to 12 a th rd $erso! for :92 999-99- Is the sa'e )a' d% -ulin C There is no merit in this claim! (rticle 44B@ a&ove referred to provides indeed that ri hts which are declared for the first time shall have retroactive effect even thou h the event which ave rise to them ma# have occurred under the former le islation, &ut this is so onl# when the new ri hts do not pre%udice an# vested or acquired ri ht of the same ori in! Thus, said article provides that Dif a ri ht should &e declared for the first time in this Code, it shall &e effective at once, even thou h the act or event which ive rise thereto ma# have &een done or ma# have occurred under the prior le islation, provided said new ri ht does not pre%udice or impair an# vested or acquired ri ht of the same ori in!F (s alread# stated in the earl# part of this decision, the ri ht of ownership of "aria ,son over the lands in question &ecame vested in 1?AB upon the death of her late hus&and and this is so &ecause of the imperative provision of the law which commands that the ri hts to succession are transmitted from the moment of death! The new ri ht reco niJed &# the new Civil Code in favor of the ille itimate children of the deceased cannot, therefore, &e asserted to the impairment of the vested ri ht of "aria ,son over the lands in dispute!

11

.es! Su$$ose that the hered tar& estate #as f !a''& $art t o!ed ! 678:- Accord !" to the $ro;ect $f $art t o!2 52 C a!d , sha'' (e e!t t'ed to <92 999-99 each- , ho#e)er re$ud ated h s share of the !her ta!ce- U!der the 'a#2 the <92 999-992 #h ch #ou'd ha)e $assed to h m2 sha'' !o# accrue to 5 a!d C ! equa' shares- Who sha'' !o# (e e!t t'ed to the 6=2 999 accru !" to 5% I is now entitled to the 1B, ===!==!In other words, he can now compel the estate of ( to pa# to him not onl# @=, === to which : is entitled as a le al heir, &ut even the 1B, === to which : is entitled &# ri ht of accretion! This is &ecause of the principle of retroactivit# as applied to acts and acceptance or repudiation ((rt! 1=A4 2CC)! What are the > !ds of success o!% a! Compulsor# E succession to the le itime (this prevails over all 'inds)$ &! Testamentar# E which results from the desi nation of an heir made &# the testator in a will$ c! Le al or intestate E where the decedent did not e<ecute a will$ or if there was a will, it is void$ or there ma# &e succession &# operation of law$ d! "i<ed Ethat which is effected partl# &# will and partl# &# operation of law$ and

e.

Contractual E that which is effected when the future spouses donate to each other in their marria e settlement their future propert# to ta'e effect upon the death of the donor to the e<tent laid down &# the provisions of the civil code relatin to testamentar# succession! This is &# wa# of e<ception of par! 4, (rticle 1@A3! 1A 0owever, it should &e e<ecuted &# the formalities of a will! 1B
14

(rticle 1@A3! < < < D2o contract ma# &e entered into upon future inheritance e<cept in cases e<pressl# authoriJed &# law! 15 (rticle >A! DIf the future spouses a ree upon a re ime other than the a&solute communit# of propert#, the# cannot donate to each other in their marria e settlements more than one; fifth of their present propert#! (n# e<cess shall &e considered void!

12

Are !u!cu$at )e # ''s a''o#ed% 2uncupative or orals wills are not allowed in the Philippines! ( tape; recorded will is still a nuncupative will What s the d ffere!ce (et#ee! a! he r2 de) see a!d 'e"atee% 0eir E a person called to the succession either &# the provision of a will or &# operation of law! The# succeed &# universal title, that is, to all or fraction or aliquot part of the properties, ri hts and o&li ations! Devisee E a person to whom ifts of particular real properties are iven &# virtue of a will (devises)! Le atees E a person to whom ifts of particular personal properties are iven &# virtue of a will (le acies)! What s the m$orta!ce of the d st !ct o! (et#ee! he rs o! the o!e ha!d2 a!d 'e"atees a!d de) sees o! the other% a! In the case of preterition (omission of a compulsor# heir in the inheritance), an instituted voluntar# heir ets nothin , &ut a devisee or le atee still ets the propert# iven as lon as the le itime is not impaired$ &! /hile there can &e heirs in either testate, le al or mi<ed succession, le atees and devisees can e<ist in testamentar# succession$ c! The heir represents the %uridical personalit# of the deceased so that he acquires not onl# his propert# and ri hts &ut also his o&li ations not e<tin uished &# death &ut onl# to the e<tent of the value of their inheritance, while a devisee or le atee does not represent the personalit# of the deceased re ardless of the quantit# or value pf the devise or le ac#$ d! The heir inherit an indeterminate quantit# of inheritance the value of which cannot &e determined or Donations of future propert# shall &e overned &# the provisions on testamentar# succession and the formalities of wills!F

13
fi<ed until the inheritance is liquidated, while the devisee succeeds to a determinate thin or amount$ e! The heir succeeds to the remainder of the estate after all de&ts, devises and le acies have &een paid, while a devisee succeeds onl# to the definite thin or amount &equeathed$ f! The heir succeeds &# eneral ri ht, while the devisee succeeds &# special or particular title$ and ! The heir who succeeds &# operation of law must &e a relative while the devisee ma# &e a relative or not! CHAPTER : TESTA?ENTAR3 SUCCESSION Sect o! I- WILLS Su(sect o! 6- WILLS IN GENERAL What s a # ''% ( will is an act where&# a person is permitted, with the formalities prescri&ed &# law, to control to a certain de ree the disposition of his estate, to ta'e effect after his death! 1G What are the esse!t a' e'eme!ts of a # ''% 1! The ma'in of a will is a statutor# (not a natural) ri ht$ 4! It is a unilateral act! (Thus no acceptance &# the transferees is needed while the testator is still alive)$

3. 4. 5. 6.
16 17 18

It is a solemn or formal act$

13

There must &e anim%s testan2i$ The testator must &e capacitated to ma'e a will$
1>

The will is strictl# a personal act in all matters that are essential$ 1? (rticle 3>@ 2CC 6i2e (rticle 3>@ 2CC (rticles 3G? E 3?> 2CC

14 7. Is effective mortis -a%sa$ 8. It is essentiall# revoca&le or am&ulator#$ 9. It is free from vitiated consent$ 10. It is an individual act (as distin uished from
4= 41 44

a %oint act)$ 4@ and 11! It disposes of the testatorHs estate (whether totall# pr partiall#) in accordance with his wishes! Wh& does the 'a# use the #ord @$erm ttedA% :ecause the ma'in of a will is merel# a statutor# ri ht conferred &# law! It must &e considered su&ordinated to law and pu&lic polic#! (nd the ma'in thereof must conform to the formalities prescri&ed &# law! Wh& s t that the 'a# sa&s the testator ca! o!'& co!tro' to a certa ! de"ree the d s$os t o! of h s estate% :ecause the ri ht to ma'e a will, as conferred &# law, is not a&solute, thus, if there are compulsor# heirs, the power of the decedent to dispose if his estate is limited to the free disposa&le portion &ecause of the s#stem of le itime! What are the character st cs of a # ''% 1! 4! @! A! Purel# personal ((rticles 3>A E 3>B$ 3>3) 7ree and intelli ent ((rticle >@?) )olemn and formal ((rticles >=A E >1A$ >4= E >41) -evoca&le and am&ulator# ((rticle >4>) Mortis -a%sa ((rticle 3>@) Individual ((rticle >1>)

5.
G!

7.

*<ecuted with anim%s testan2i ((rticle 3>@) >! *<ecuted with testamentar# capacit# ((rticles 3?G E >=@) ?! ,nilateral ((rticle 3>@) 1=! Dispositive of propert# ((rticle 3>@) 11! )tatutor# ((rticle 3>@)
19 20 21 22 23

(rticle 3>A 2CC (rticle 333 2CC (rticle >4> 2CC (rticle >@? 2CC 6i2e (rticles >1> and >1?!

15

Other character st cs of a # ''0 Thou h not e<plicit in (rticle 3>@, a will has also the followin implied characteristicsC 1! It is a written act ((rticles >=B and >1=)$

2.

It can &e e<ecuted onl# &# a capacitated person, meanin one who is of a e 4A and of sound mind ((rticles 3?G;3?>) Is Bose R Ca'Ds $oem @U't mo Ad osA a # ''% The crucial words are found in the poems 1@th stanJaC DA!i te to2o, mis pa2res, mis amores; (To #ou I leave ever#thin , m# parents, m# loves!) Declared the )upreme CourtC It is a literar# piece of wor' and was so intended! If it were intended as a will the poem would have &een entitled DUltimo 6ol%ntasF and not DUltimo A2iosF 0is poem merel# e<presses a thou ht of partin and not of &equeathin ! :esides, at that time, he 'nows that he has no 'nown propert#! Therefore an instrument which merel# e<presses a last wish as a thou ht or advice &ut does not contain a disposition of propert# and was not e<ecuted with anim%s testan2i, cannot &e le all# considered a will in a %udicial sense! (Montinola v. 4er3osa, , C.A. Rep. <*n2 S= p. ,"") What $ro) s o!s ! a # '' ca!!ot (e 'eft to the d scret o! of a th rd $erso!% 1! The duration or efficac# of the desi nation of heirs, devisees or le atees$ or

2. 3.

The determination of the portions which the# are to ta'e, when referred to &# name! 4B The determination on whether or not the testamentar# disposition is to &e operative! 4G (The heir, however, is free to accept or renounce the testamentar# &enefit!) What $ro) s o!s ! a # '' that ca! (e e!trusted to a th rd $erso!%

24 25 26

,nder -!(! 2o! G>=? (1?>?) le al a e is now 1> #ears! (rticle 3>B 2CC (rticle 3>3 2CC

16
1! The manner of distri&ution of specific propert# or sums of mone# that he ma# leave in eneral to specified classes or causes$ and

2.

The desi nation of the persons, institutions or esta&lishments to which such propert# or sums of mone# are to &e iven or applied! 43 0ere, there is no dele ation of the will of testator! The testator has alread# e<pressed his will and entrusted merel# to the third person the e<ecution of same so as to carr# out his purpose! 0owever, under provision, two thin s must &e determined &# the testatorC the has the this

a! The propert# or amount of mone# to &e iven$ and &! The class or the cause to &e &enefited! What Art c'es% s the d st !ct o! (et#ee! the t#o

In (rticle 3>G there are no particular names desi nated, whereas in (rticle 3>B, the recipients of the &ount# of the testator are specified either individuall# or as a roup! In the latter (rticle, the third person simpl# implements the details of the testamentar# dispositions made &# the testator! I''ustrat o!0 ( testator se re ated P1 "illion for the relief of the victims of "t! Pinatu&o! 0e desi nated a third person to carr# out this testamentar# disposition! The third person will now ma'e the necessar# distri&ution of the mone# to the said victims! Third is a valid dele ation of power E which involves the implementation of the disposition as willed &# the testator! What are the > !ds of am( "u t& ! a # ''%
4>

1! Latent or intrinsic am&i uit# E this am&i uit# is hidden &ecause it does not appear on the face of the will (not o&vious on the face of the will), and is discovered onl# &# e<trinsic evidence! *<amplesC

27 28

(rticle 3>G 2CC (rticle 3>? 2CC

17
Latent as to person E DI institute to K of m# estate m# first cousin LoseF (and the testator has more than one first cousin named Lose)! Latent as to propert# E DI devise to m# cousin Pedro m# fishpond in 5in oo Cit#F (and the testator has more than one fishpond in 5in oo Cit#)! 4! Patent or e<trinsic am&i uit# E this am&i uit# appears on the face of the will! It is apparent and not hidden (o&vious on the face of the will)$ in other words, &# e<aminin the provisions itself, it is evident that it is not clear! *<amplesC Patent as to person E DI institute to K of m# estate some of m# first cousinsF Patent as to propert# E DI &equeath to m# cousin Pedro some of m# cars!F

?atters co)ered (& the Art c'e The situations covered areC a! There is an imperfect description of the heir, le atee, or devisee$ &! There is an imperfect description of the ift iven$ or c! ( description to which no person or propert# e<actl# answers$ or d! (n uncertaint# arisin upon the face of the will! Ho# ma& the am( "u t es (e cured%
4?

a! :# e<aminin the will itself &! The e<trinsic or parol evidence of the testator c! Testimonial evidence e<cludin the oral declarations of the testator is inadmissi&le! I''ustrat o!s0
29

(rticle 3>? 2CC

18

The testator ! h s # '' "a)e h s fr e!d 1 a s$ec f ed $arce' of 'a!d- It tur!ed out that he has : fr e!ds (& that !ame- Ho#e)er2 #h 'e ma> !" the # ''2 the testator ora''& stated that he #as referr !" to h s !e "h(or 12 (ut amo!" h s f 'es #as fou!d a 'etter stat !" that he #a!ted to " )e the 'a!d to 1 of ?a'a&(a'a& C t&aWhat > !d of am( "u t& s th s%

This is a latent or intrinsic am&i uit#, &ecause the provision is clear &# itself, the dou&t arisin onl# &ecause of circumstances outside of the will! (Is the testatorDs ora' dec'arat o! adm ss ('e%

The testatorHs oral declaration is e<trinsic evidence &ut should not &e admitted, &# e<press provision of the law, in order to discoura e per%ur#! cTo #hom shou'd the 'a!d (e " )e!%

The house should &e iven to I of "ala#&ala# Cit# in view of the written memorandum, which is indeed admissi&le e<trinsic evidence! What s the effect f the am( "u t& cou'd !ot (e e*$'a !ed% If the am&i uit# cannot &e e<plained or is too dou&tful and &e#ond construction despite resort to parol evidence, it &ecomes incura&le! The testamentar# provisions shall then &e inoperative! What are the ru'es o! !ter$retat o! of #ords% What are the e*ce$t o!s%@=

1.

Ordinar# words have their ordinar# meanin s (understood in its la#manHs sense or meanin )! (7or instance, a Dnatural childF is understood to &e a child &orn to his parents &# nature as distin uished from an adopted child!) *<ception E If there is a clear intention that another meanin was usedE provided that other meanin can &e determined!
30

(rticle 3?1 2CC

19

2.

Technical words have technical meanin s (a word which has its own meanin as defined in the rules or laws of a certain su&%ect, discipline, science and the li'e)! (Thus, a Dnatural childF in civil law has a meanin different from its ordinar# sense! It means a child &orn to parents who at the time of its conception, were capacitated to marr# &ut did not marr# each other) *<ceptions E (1) if there is a contrar# intention$ or (4) if it appears that the will was drafted &# the testator alone, who did not 'now the technical meanin ! What # ''% /hen a testator ma'es a will, the presumption is that he intends to dispose of all his propert#! There is no presumption to die intestate as to an# portion of his estate when the lan ua e used can clearl# cover the entire estate! The presumption a ainst intestac# is so stron that pro&ate courts will adopt an# reasona&le construction of a will to ma'e it effective and avoid intestac#! (9oot! vs. >in&, ,0 III. + ", )+ N.E. ?*n2@ 0+1= What s the effect of !)a' d t& of o!e of se)era' $ro) s o!s% @1 1! *ven of one disposition or provision is invalid, it does not necessaril# follow that all others are also invalid! 4! *<ception E when the indivisi&le in intent or nature! various dispositions are s the $resum$t o! ! the ma> !" of a

What s the ru'e res$ect !" after acqu red $ro$ert es% What are the e*ce$t o!s% @4 1! /hat are iven &# will are onl# those properties alread# possessed and owned &# the testator at the time the will was made, not those acquired after (after; acquired properties)! Properties acquired after the ma'in of the will do not pass to the instituted heirs! 4!
31 32

*<ceptionsC

(rticle 3?4 2CC (rticle 3?@ 2CC

20

a! If it e<pressl# appears in the will that it was the intention to ive such Dafter;acquiredF properties$

b.

If the will is repu&lished or modified &# a su&sequent will or codicil (in which case, the properties owned at the time of such repu&lication or modification shall &e iven! @@

c.

If at the time the testator made the will he erroneousl# thou ht that he owned certain properties, the ift of said properties will not &e valid, unless after ma'in the will, said properties will &elon to him!@A

d.
@B

Le acies of credit or remission are effective onl# as re ards that part of the credit or de&t e<istin at the time of the death of the testator! I! e)er& de) se or 'e"ac&2 #hat s the "e!era' ru'e as to #hat !terest of the testator ma& (e d s$osed of% What are the e*ce$t o!s% @G

1.

5eneral ruleC In a le ac# or devise the testator ives e<actl# the interest he has in the thin ! @3The entire interest of the testator in the propert# is iven E not more, not less! 4! *<ceptionsC

a! 0e can conve# a lesser interest if such intent clearl# appears in the will$

b.
33 34

0e can conve# a reater interest, thus the law provides Dif the testator M owns onl# a part of, or an interest in the thin &equeathed, the le ac# or devise (rticle >@G 2CC 6i2e (rticle ?@= 2CC 35 (rticle ?@B, par! 1 2CC 36 (rticle 3?A 2CC 37 -eal properties are enumerated in (rticle A1B and personal properties in (rticles A1G and A13 2CC

21
shall &e understood limited to such part or interest, unless the testator e<pressl# declares that he ives the thin in its entiret#! @> In this case, if the person ownin the interest to &e acquired does not wish to part with it, the solution in (rticle ?@1 can &e applied$ i.e. the le atee or devisee shall &e entitled onl# to the %ust value of the interest that should have &een acquired!

c.

0e can even conve# propert# which he ver# well 'now does not &elon to him @? provided that it also does not &elon to the le atee or devisee! A= (If the testator thou ht the propert# was his, althou h it is not reall# his, the le ac# or devise is void, unless the propert# su&sequentl# &ecomes his!A1) What 'a# sha'' determ !e the )a' d t& of a # '' as to ts form% A4 (! 1! a! (spects of validit# of wills *<trinsic validit# E refers to the requirement of form (formal validit#) 5overnin law as to time a) 7or 7ilipinos E the law in force when the will was e<ecuted! &) 7or forei ners E same rule (2oteC The assumption here, of course, is that the will is &ein pro&ated here!) 5overnin law as to place a) 7or 7ilipinos E

&!

(1)

Law of citiJenship E If the testator is a 7ilipino, he can o&serve Philippine laws$ A@ or

38 39 40 41 42 43

(rticle ?4? 2CC 6i2e (rticles ?@= and ?@1 2CC 6i2e (rticle ?@3 2CC 6ide (rticle ?@= 2CC (rticle 3?B 2CC (rticles >=A; >1A 2CC

22 (2) (4)
Law of domicile E laws of the countr# where Dhe ma# &eF$ AA or (@) Law of residence$ or Law of place of e<ecution E law of the countr# where he e<ecutes the will$ AB or (B) Philippine law &) 7or forei ners E

(1)

If the testator is an alien who is a&road, he can follow the law of his domicile, or his nationalit# or Philippine laws AG or where he e<ecutes the will! A3

(2)

If the testator is an alien in the Philippines, he can follow the law of his nationalit# A> or the laws of the Philippines, since he e<ecutes the will here! A? 4! Intrinsic validit# E refers to the su&stance of the provisions (su&stantive validit#)

a.

5overnin law as to time E successional ri hts are overned &# the law in force at the time of the decedentHs death! B=

a)
44 45

7or 7ilipinos E the law as of the time of death ((rticle 44G@B1) (rticle >1B 2CC (rticle 13 2CC (LeA lo-i -ele3rationis or lo-%s re&it a-t%m= 46 (rticle >1G 2CC 47 (rticle 13 2CC 48 (rticle >13 2CC 49 (rticle 13 2CC 50 6i2e (rticle 44G@ 2CC 51 (rticle 44G@! -i hts to the inheritance of a person who died, with or without a will, &efore the effectivit# of this Code, shall &e overned &# the Civil Code of 1>>?, &# other previous laws, and &# the -ules of Court! The inheritance of those who, with or without a will, die after the &e innin of the effectivit# of this Code, shall &e ad%udicated and

23 b)
&! 7or forei ners E depends on their personal law ((rticle 1G, par! 4$ B4 (rticle 1=@? B@ ) 5overnin law as to place

a)

7or 7ilipinos E the national law (Philippine law) of the decedent, that is, the law of his countr# or nationalit# BA ; re ardless of the place of e<ecution! 0owever, if the conflict rules under the national law of the deceased refer the matter to the law of the domicile and the forei ner was domiciled in the Philippines at the moment of death, our courts will have to appl# the Philippine international law on succession (Renvoi doctrine)! &) 7or forei ners E their national law ((rticle 1G, par! 4$ (rticle 1=@?) I''ustrat o!0 1 e*ecuted a ho'o"ra$h c # '' ! 67:<- It #as $rese!ted for $ro(ate ! 67E8- It #as a''o#ed ! 67=:Was the a''o#a!ce )a' d%

distri&uted in accordance with this new &od# of laws and &# the -ules of Court$ &ut the testamentar# provisions shall &e carried out insofar as the# ma# &e permitted &# this Code! Therefore, leitimes, &etterments, le acies and &equests shall &e respected$ however, their amount shall &e reduced if no other manner can ever# heir &e iven his full share accordin to this Code! 52 (rticle 1G! Par! 4 < < < 0owever, intestate and testamentar# succession, &oth with respect to the order of succession and the amount of successional ri hts and the intrinsic validit# of testamentar# provisions, shall &e re ulated &# the national law of the person whose succession is under consideration, whatever ma# &e the nature of the propert# and re ardless wherein said propert# ma# &e found! 53 (rticle 1=@?! Capacit# to succeed is overned &# the law of the nation of the decedent! 54 (rticle 1G 2CC

24
2o, &ecause there was no law authoriJin the e<ecution of a holo raphic will in 1?4@! The law sa#s that the validit# of a will depends upon the o&servance of the law at the time it is made! BB Pro('ems0 a1 made a # '' !st tut !" h s fr e!d 3 as h s o!'& he r- He had !o 'e" t mate desce!da!ts or asce!da!ts or # fe- He had a reco"! Ced s$ur ous ch 'd 4- 1 d ed ! 67E7- Ca! 4 !her t% + cannot inherit &ecause the father died in 1?A? (under the old Civil Code)! The intrinsic validit# of a will is overned &# the law in force at the time of the testatorHs death! BG (lthou h (rticle 44B@ provides indeed that ri hts which are declared for the first time shall have retroactive effect even thou h the event which ave rise to them ma# have occurred under the former le islation, &ut this is so onl# when the new ri hts do not pre%udice an# vested or acquired ri ht of the same ori in! Thus, said article provides that Dif a ri ht should &e declared for the first time in this Code, it shall &e effective at once, even thou h the act or event which ive rise thereto ma# have &een done or ma# have occurred under the prior le islation, provided said new ri ht does not pre%udice or impair an# vested or acquired ri ht of the same ori in!F the ri ht of ownership of . &ecame vested in 1?A? upon the death of the testator and this is so &ecause of the imperative provision of the law which commands that the ri hts to succession are transmitted from the moment of death! The new ri ht reco niJed &# the new Civil Code in favor of the ille itimate child of the deceased cannot, therefore, &e asserted to the impairment of the vested ri ht of .! (A! Amer ca! e*ecuted a # '' ! the Ph ' $$ !es2 o(ser) !" Ph ' $$ !e 'a#s2 a!d d str (ut !" h s estate ! accorda!ce # th Ph ' $$ !e 'a#s- Is the # '' )a' d% The provision is void, &ecause the estate must &e distri&uted in accordance with the laws of his countr#, and not the law of the Philippines! (rticle 1G providesC D-eal propert# as well as personal propert# is su&%ect to
55 56

6da de *nriqueJ vs! "i uel (&adia, L;31>>, (u ust ?, 1?BA (rticle 44G@ 2CC

25
the law of the countr# where it is situated! 0owever, intestate and testamentar# succession &oth with respect to the order of succession n the amount of successional ri hts and the intrinsic validit# of testamentar# provisions shall &e re ulated &# the national law of the person whose succession is under consideration, whatever ma# &e the nature of the propert#, and re ardless of the countr# wherein said propert# ma# &e found!F c12 a! Amer ca! had a 'e" t mate ch 'd 3- 1 made a # '' ! the Ph ' o(ser) !" Ph ' so'em! t esI! h s # ''2 he "a)e a'' h s $ro$ert es fou!d here ! the Ph ' to h s fr e!d 4 # thout " ) !" a!&th !" to 3I! the USA2 there are !o com$u'sor& he rs- Ca! 3 !s st that he (e " )e! a share% )ince under (merica law as assumed in the pro&lem a child is not a compulsor# heir, it follows that . cannot insist that he &e iven a share! It was valid for the testator to disre ard him! ?a& a # '' )o d at the t me of e*ecut o! )a' dated (& su(seque!t 'a# cha!" !" the forma' t es requ red% ( will which is void for failure to o&serve the formalities required at the time of its e<ecution cannot &e validated &# the passa e of a new law chan in the formalities which now suits its form! Su(sect o! :- TESTA?ENTAR3 CAPACIT3 AN, INTENT , st !"u sh (et#ee! testame!tar& ca$ac t& a!d testame!tar& $o#erTestamentar# capacit# E as used in the new Civil Code, is the ri ht to ma'e a will provided certain conditions are complied with! Testamentar# power E is the statutor# ri ht to dispose of propert# &# acts effective mortis -a%sa) Who ha)e testame!tar& ca$ac t&% 1! (ll natural persons, unless disqualified &# law! Luridical

26
persons are not ranted testamentar# capacit#$ 4! Persons 1> #ears or over$ and @! Persons of sound mind at the time the will is made! Who are d squa' f ed $erso!s% 1! Those under 1>$ B3 and 4! Those of unsound mind$
B>

A2 a m !or2 e*ecuted a 'ast # '' a!d testame!tHe d ed at the a"e of :62 after #h ch h s # '' #as su(m tted to $ro(ate- If &ou #ere the ;ud"e2 #ou'd &ou a$$ro)e t% 2o, &ecause the will is void! ,nder the law, a person who is a minor cannot e<ecute a will! 0is supervenin capacit# cannot validate a void will! Note0 In the computation of a e of the testator, (rticle 1@ of the Civil Code shall overn! ( #ear consists of @GB da#s! The last da# of the required #ear (1>th) should have alread# passed to qualif# a person to ma'e a will! Our law does not reco niJe fractions of a da#! Does the e<tra da# in a leap #ear affect the computation of the a e of the testatorN .es, &ecause (rticle 1@ spea's of a #ear as containin @GB da#s! This is a Dle al #earF which is not a calendar #ear! The le al #ear and calendar #ear do not coincide &ecause (rticle 1@ does not reco niJe a leap #ear! The le al #ear must alwa#s &e @GB da#s! What s u!sou!d!ess of m !d . !sa! t&/% This is defined &# the Code onl# &# indirection &ecause onl# soundness of mind is defined! ((rticle 3??) What s sou!d!ess of m !d .sa! t&/% 2e ativel#C

57 58

(rticle 3?3 2CC (rticle 3?> 2CC

27
2ot necessar# that the testator &e in full possession of reasonin faculties$ 2ot necessar# that the testatorHs mind &e wholl# un&ro'en, unimpaired, unshattered &# disease, in%ur#, or other cause! Positivel#C (&ilit# to 'now three thin sC 1! 4! @! 2ature of the estate to &e disposed of$ Proper o&%ects of oneHs &ount#$ and Character of the testamentar# act! (It is not required, in order for this requisite to &e present, that the testator 'nows the le al nature of the will with the erudition of a civilest! (ll that he needs to 'now is that the document he is e<ecutin is one that disposes of his propert# upon death! s the $resum$t o! as to sou!d!ess of

What m !d%

5eneral rule E re&utta&le presumption of sanit# ((rticle >==) *<ceptions E presumption of insanit#C 1! 4! two instances of re&utta&le

/hen the testator, one month or less, &efore the e<ecution of the will was pu&licl# 'nown to &e insane ((rticle >==)$ and /hen the testator e<ecuted the will after &ein placed under uardianship or ordered committed, in either case, for insanit# (under -ules ?@ and 1=1, respectivel#, of the -ules of Court), and &efore said order has &een lifted! s the t me for determ ! !" me!ta'

What ca$ac t&%

It is the time of e<ecution of the will$ no other temporal criterion is to &e applied ((rticle >=1)! At the t me A e*ecuted h s # ''2 he #as sa!eO!e da& thereafter2 he (ecame !sa!e- What s the effect of ADs su(seque!t !sa! t&%

28
The will is not avoided! The rule is that supervenin incapacit# does not invalidate an effective will! ((rt! >=1) Ca! a death co!) ct ma>e a # ''% ( death convict, &efore his e<ecution is e<pressl# allowed &# law to ma'e a will! ( convict under civil interdiction is allowed to ma'e a will &ecause the civil interdiction prohi&its a disposition of propert# inter vivos , not mortis -a%sa. SU5SECTION <- FOR?S OF WILLS What are the > !ds of # ''s a''o#ed ! the Ph ' $$ !es% a! Ordinar# or notarial will E that which requires, amon other thin s, an attestation clause, and ac'nowled ment &efore a notar# pu&lic! 0olo raph or holo raphic will E the most important feature of which is its &ein written entirel#, from the date to the si nature, in the handwritin of the testator! 0ere, neither an attestation clause nor an ac'nowled ment &efore a notar# pu&lic is needed!

&!

What are the commo! requ reme!ts of a # '' 'a d do#! (& Art c'e G9E% 1! 4! In writin $ and In a lan ua e or dialect 'nown to the testator!

2otesC Oral wills are not reco niJed in the Code! In S%ro5a vs. 4onra2o, ))# SCRA , , the will was declared void &ecause in the openin para raph of the will, it was stated that *n lish was a lan ua e Dunderstood and 'nownF to the testratri< (the testatri< was illiterate)! :ut in its concludin para raph, it was stated that the will was read to the testratri< Dand was translated

29
into 7ilipino lan ua e! That could onl# mean that the will was written in a lan ua e not 'nown to the illiterate testratri< and, therefore, it is void &ecause of the mandator# provision of (rticle >=A of the Civil Code! Translation of the lan ua e used will not cure the defect -ule in attestation clause is differentC The lan ua e or dialect need not &e 'nown to the testator! The attestation clause of the ordinar# or notarial will need not &e 'nown to the testator! This is not a part of the testatmentar# disposition! *ven the witness to the will need not 'now the lan ua e or dialect used in the attestation clause! The law, however requires that it &e interpreted to them, if the# do not 'now it! ((rticle >=B, par! A) Presumption of complianceC It ma# sometimes &e presumed that the testator 'new the lan ua e in which the will was written! On the authorit# of A3an&an vs. A3an&an, +# P!il. +"0, an2 Bon5ales vs. La%rel, +0 P!il. "1#, it seems that, in order for the presumptions to appl#, the followin must appearC 1! 4! The will must &e in a lan ua e or dialect enerall# spo'en in the place of e<ecution$ and The testator must &e a native or resident of said localit#!

What are the requ s tes of a !otar a' # ''% (side from the fundamental requisites that the testator &e at least 1> #ears old, and possessed of a sound mindC a! &! c! The will must &e in writin ! There can &e no oral will It must &e e<ecuted in a lan ua e or dialect 'nown to the testator! It must &e su&scri&ed at the end thereof &# the testator himself or &# the testatorHs

30
name written &# some other person in his presence or direction It must &e attested and su&scri&ed &# three or more credi&le witnesses in the presence of the testator and of one another It must &e si ned on each and ever# pa e thereof &# the testator and the witnesses, e<cept the last pa e, on the left mar in (ll pa es must &e num&ered correlativel# in letters placed on the upper part of each pa e The attestation shall state the num&er of pa es used upon which the will is written, and the fact that the testator si ned the will and ever# pa e therefore, or caused some other person to write his name, under his e<press direction, in the presence of the instrumental witnesses, and that the latter witnessed and si ned the will and all the pa es thereof in the presence of the testator and of one another It must &e ac'nowled ed &efore a notar# pu&lic &# the testator and the witnesses!

d! e! f! !

h! 2otesC

)ome discrepanciesC 1) Par! 1, (rticle >=B E 2o statement that the testator must si n in the presence of the witnesses! Par! 4, (rticle >=B = 2o statement that the testator and the witnesses must si n ever# pa e in one anotherHs presence!

4)

These two thin s, however, are required to &e stated in the attestation clause! The onl# conclusion, therefore, is it cannot &e presumed that the attestation clause was meant to tell a lie! @) On the other hand, the attestation clause is not required to state that the a ent si ned in the testatorHs presence E a

31
circumstance mandated &# the first and second para raph of the article! Indication of date E There is not requirement that an attested will should &e dated, unli'e a holo raphic will! D)u&scri&ed &# the testatorF E The article uses two words, referrin to this requirement, apparentl# interchan ea&l#C s%3s-ri3e and si&n! )trictl# spea'in , the# are not e<actl# s#non#mous! To su&scri&e necessaril# denotes writin , more precisel#, to write under$ to si n simpl# means to place a distin uishin mar'! Thus, si nin has a &roader meanin than su&scri&in $ not ever# si nature is necessaril# a su&scription$ not ever# distin uishin mar' is a writin !

Is $'ac !" of the testatorDs thum( mar> or thum($r !t a s "!ature # th ! the co!tem$'at o! of th s art c'e% ,oes t com$'& # th the statutor& requ reme!t% In Matias vs. Sal%2, LC)#"1), *, 8%ne ).1 , it was held that the requisite that the will should &e si ned &# the testator is satisfied &# a thum&print or other mar' affi<ed &# him (De Bala vs. Ona, 1, P!il. )#+$ Dolar vs. Dian-in, 11 P!il. +".$ Neyra vs, Neyra, +* O.B. * )"$ Lope5 vs. Li3oro, +0 O.B. ?S%pp. To No)@=$ and that where such mar' is affi<ed &# the decedent, it is unnecessar# to state in the attestation clause that another person wrote the testatorHs name at his request (Paya2 vs. Tolentino, 0* P!il. +.)! Is a cross as a s "!ature suff c e!t% ( si n of the cross, placed &# the testator does not compl# with the statutor# requirement of si nature, unless it is the testatorHs usual manner of si nature or one of his usual st#les of si nin ! (Bar-ia vs. La-%esta, .# P!il. + .) What are the requ s tes for s "! !" (& the a"e!t of the testator% Two requisites for si nin &# the a entC 1! The a ent must si n testatorHs presence$ and in the

32
4! It must &e done &# his e<press direction!

What must the a"e!t #r te% It is unimportant whether the person who writes the name of the testator si ns his own or not! The important thin is that it clearl# appears that the name of the testator was si ned at his e<press direction in the presence of three witnesses and that the# attested and su&scri&ed it in his presence! That is all the statute requires! There is no necessit#, so far as the validit# of the will is concerned, for the person who writes the name of the principal in the document to si n his own name also! (9ar%t vs. Ca3a-%n&an, *) P!il. +0)) ?a& # t!esses% the a"e!t (e o!e of the attest !"

If there are more than three witnesses E .es! If there are onl# three E De&ata&le! e!d% Is t !ecessar& that the # '' s s "!ed at the

If the will contains onl# dispositive provisions, there will &e no am&i uit# as to where the end of the will is! If, however, the will contains non;dispositive para raphs after the testamentar# dispositions, one can refer to two 'inds of endC the p!ysi-al end E where the writin stops$ or the lo&i-al end E where the last testamentar# disposition ends! )urel#, si nin at the ph#sical end is alwa#s permissi&le, &ut equall# permissi&le is si nin at the lo ical end! The non;dispositive portions are not essential parts of the will! 2oteC )i nin &efore the end invalidates not onl# the dispositions that come after, &ut the entire will, &ecause then one of the statutor# requirements would not have &een complied with! Is t requ red that the # t!esses actua''& sa# the testator aff *ed h s s "!ature ! the # ''%

33

2o, &ecause the phrase Din the presenceF does not necessaril# require actual seein , &ut onl# the possi&ilit# of seein without ph#sical o&struction! In La&oneta vs! 5ustilo, B Phil! BA1, it was said that if a witness merel# turned his &ac', the si nin is still considered in his presence! (Could have seen it had he chosen to) What s the true test to determ !e the $rese!ce of the testator a!d the # t!esses ! the e*ecut o! of a # ''% In Nera vs. Riman2o, ) P!il. +1), it was held that the true test of presence of the testator and the witnesses in the e<ecution of a will is not whether the# actuall# saw each other si n, &ut whether the# mi ht have seen each other si n, had the# chosen to do so, considerin their mental and ph#sical condition at the moment of inscription of each si nature! :ut it is especiall# to &e noted that the position of the parties with relation to each other at t!e moment o/ t!e s%3s-ription o/ ea-! si&nat%re, must &e such that the# ma# see each other si n of the# choose to do so! It does not depend upon proof of the fact that their e#es were actuall# cast upon the paper at the moment of its su&scription &# each of them, &ut that at the moment of its su&scription and their position with relation to each other were such that &# merel# castin their e#es in the proper direction the# could have seen each other si n! Thus, actual seein is not required, &ut the a&ilit# to see each other &# merel# castin their e#es in the proper direction! A e*ecuted a # ''- At the t me he aff *ed h s s "!ature ! the # ''2 12 o!e of the three !strume!ta' # t!esses2 #as outs de of the room2 ta'> !" to a fr e!dWhe! the # '' #as su(m tted to $ro(ate2 t #as o$$osed o! the "rou!d that the # '' s )o d2 as o!e of the # t!esses #as !ot $rese!t #he! the testator aff *ed h s s "!ature ! the # ''- W '' &ou a$$ro)e the # ''2 f &ou #ere the ;ud"e% 2o, &ecause the will was not si ned in the presence of one of the instrumental witnesses! The law requires that at the time the testator or all the instrumental witnesses affi<ed their si natures, the same must &e done in the presence of one another! )ince I was out of the room, he could not &e considered as present and could not have seen the si nin of

34
the document, as there was ph#sical o&struction! (Nera vs. Riman2i, ) P!il. +1#) What are the t#o d st !ct th !"s requ red of the # t!esses% 1! 4! (ttestin E which is the act of witnessin $ and )u&scri&in E which is the act of si nin their names in the proper places of the will!

:oth must &e done! What s attestat o! c'ause% The attestation clause is a record or memorandum of facts wherein the instrumental witnesses certif# that the will has &een e<ecuted &efore them and that it has &een e<ecuted in accordance with the formalities prescri&ed &# law! ( Toray vs. A3a:a, +" O//. Ba5. ,*")

(ttestation clause is mandator#! E ( will without an attestation clause is void and cannot &e pro&ated! (In re Estate o/ Ne%marD, +0 P!il. +))

What s the $ur$ose of the attestat o! c'ause% Its purpose is to preserve in permanent form a record of the facts attendin the e<ecution of the will so that in case of failure if memor# of the witnesses or in case the# are no lon er availa&le, such facts ma# still &e proved! (Leynes vs. Leynes, 0 P!il. "+1) Is there a!& d ffere!ce (et#ee! attestat o! a!d su(scr $t o!% (ttestation and su&scription differ in meanin ! (ttestation is the act of the senses, while su&scription is the act of the hand! The former is mental the latter is mechanical, and to attest a will is to 'now that it was pu&lished as such, and to certif# the facts required to constitute an actual and le al pu&lication$ &ut to su&scri&e a paper pu&lished as a will is onl# to write on the same paper the names of the witnesses, for sole purpose of identification! (Cane2a vs. Co%rt o/ Appeals, *** SCRA " ))

35

In To3oa2a vs. Rosal, it was held that attestation consists in witnessin the testatorHs e<ecution of the will in order to see and ta'e note mentall# that those thin s are done which the statute requires for the e<ecution of a will and that the si nature of the testator e<ists as a fact! On the other hand, su&scription is the si nin of the witnessesH names upon the same paper for the purpose of identification of such paper as the will which was e<ecuted &# the testator! (s it involves a mental act, there would &e no means, therefore of ascertainin &# a ph#sical e<amination of the will whether the witnesses had indeed si ned in the presence of the testator and of each other unless this is su&stantiall# e<pressed in the attestation! Shou'd the attestat o! c'ause (e #r tte! ! a 'a!"ua"e or d a'ect >!o#! to the testator% The attestation clause need not &e written in a lan ua e or dialect 'nown to the testator since it does not form part of the testamentar# disposition! (Cane2a vs. Co%rt o/ Appeals, *** SCRA " )) Shou'd the 'a!"ua"e used ! the attestat o! c'ause (e >!o#! to the attest !" # t!esses% The lan ua e used in the attestation clause need not &e 'nown to the attestin witnesses! The last para raph of (rticle >=B merel# requires that, in such a case, the attestation must &e interpreted to the witnesses! (Cane2a vs. Co%rt o/ Appeals, *** SCRA " )) What are the esse!t a' facts #h ch must (e stated ! the attestat o! c'ause% 1! 4! The num&er of pa es used upon which the will is written$ That the testator si ned, or e<pressl# caused another to si n, the will and ever# pa e thereof in the presence of the attestin witnesses$ and That the attestin witnesses witnessed the si nin &# the testator of the will and all its pa es, and that said witnesses also si ned the will and ever# pa e thereof in the presence of the testator and of one another!

@!

36
What s the effect of 'ac> stateme!ts ! the attestat o! c'ause% of the a(o)e

,nder the third para raph of (rticle >=B, such a clause, the complete lac' of which would result in the invalidit# of the will! (Cane2a vs. Co%rt o/ Appeals, *** SCRA " )) In Uy CoE%e vs. Sio-a, it was held that when the attestation clause failed to state the num&er of sheets or pa es upon which the will was written, the will cannot &e pro&ated (In re Will o/ An2ra2a, +* P!il. ) #)! )uch statement is mandator#! 2on;compliance therewith invalidates the will! )uch fact cannot &e proven &# evidence ali%n2e.

/hen the testator had e<pressl# directed another to si n the formerHs name in the will, this fact must &e stated in the attestation clause! Otherwise, the will is fatall# defective! (Bar-ia vs. La-%esta, .# P!il. + .)

The s "!atures of the # t!esses are o! to$ or at the r "ht or (ottom mar" !- Is the # '' )a' d% Wh&% .es, &ecause there was su&stantial compliance with the law! The purpose of the law is merel# to identif# the pa es used and to prevent fraud! ((vena vs! 5arcia, A4 Phil! 1AB) There is a mandator# and a director# part to this requirementC The mandator# part E the si nin the witnessesH presence! on ever# pa e in

The director# part E the place of the si nature, i.e. the left mar in$ the si nature can &e affi<ed an#where! A e*ecuted a # '' co!s st !" of te! $a"es- At the $ro(ate2 52 o!e of h s ch 'dre! !ter$osed a! o$$os t o! o! the "rou!d that A a!d o!e of the # t!esses has !ot s "!ed o!e of the $a"es of the sameRu'e o! the o$$os t o! a!d c te &our reaso!s for &our ru' !"-

37
(s a rule, the testator and the instrumental witnesses must si n the will on each and ever# pa e thereof! The defect is fatal if there is failure to have the ori inal si natures! (Estate o/ Tampoy vs. Al3erastine, LC)+,**, Fe3. *1, ).0#)! 0owever, if there was a mere inadvertence of one of the three witnesses or even the testator, where he for ot to si n on one of the pa es, the will must &e admitted to pro&ate &ecause of the application of the li&eralit# rule! The will must &e respected, rather than havin the testator die intestate! (I-asiano vs. I-asiano, LC) ."., 8%ne ,#, ).0+) ?a& the !otar& $u(' c h mse'f (e a # t!ess ! a 'ast # '' a!d testame!t% Wh&% 2o, &ecause the notar# pu&lic cannot &e considered as third instrumental witness since he could not have ac'nowled e &efore himself his havin si ned the will! 0e cannot split his personalit# into two so that one will appear &efore the other to ac'nowled e his participation in the ma'in of the will! To permit such a situation to o&tain would &e sanctionin a sheer a&surdit#! (Cr%5 vs. 6illasor, 1+ SCRA ,)) What s the $ur$ose of the 'a# ! requ r !" that the $a"es of the # '' (e !um(ered% The purpose is to prevent fraud, and to afford means of preventin su&stitution of the will! (Lope5 vs. Le3oro, ) P!il. +*.) The attestat o! c'ause of 1Ds # '' does !ot co!ta ! h s s "!ature- At ts $ro(ate2 t s (e !" o$$osed o! that (as s- Is the o$$os t o! correct% Wh&% 2o, &ecause the attestation clause is not an act of the testator! It is an act of the instrumental witnesses! The testatorHs failure to si n it is not fatal$ it is immaterial! (A3an&an vs. A3an&an, +# P!il. +0"$ Estate o/ Pa%la Tray, LC *+)1, 8%ly ,), ).1#$ Fernan2e5 vs. 6er&el 2e Dios, +0 P!il. .**) Su$$ose the attestat o! does !ot state the !um(er of $a"es2 s the # '' )a' d% Wh&% .es! In Ta3oa2a vs. 4on. Rosal, + SCRA ).1, the )upreme said that even the attestation clause does not state the num&er of pa es, if the same can &e determined from the will, it is valid! This is &ecause of the li&eralit# rule or that

38
there was su&stantial compliance with the law! (Sin&son vs. Florentino, O-t. *1, ).1*$ Pere5 vs. Rosal, )) SCRA ).1) What s the effect f the !strume!ta' # t!esses d d !ot s "! the attestat o! c'ause% Wh&% The will is void, &ecause the total a&sence of the si nature of the witnesses shows their non;participation! (In re7 Testate o/ 6i-ente Ca&ro, April *., ).1,?.* P!il. )#,*@) The attestation clause must &e si ned &# the witnesses at the &ottom thereof, and not on the left hand mar in, otherwise, it would &e eas# to add such clause to a will on a su&sequent occasion and in the a&sence of the testator and an# or all of the witnesses! If the entire document consists of onl# two sheets, the first containin the will and the second, the attestation clause, there need not &e an# mar inal si natures at all (A3an&an vs. A3an&an, +# P!il. +"0) Su$$ose the attestat o! c'ause does !ot state that the # '' #as s "!ed (& the testator ! the $rese!ce of the # t!esses2 s the # '' )a' d% Wh&% (s a rule, it is void, e<cept if such statement is made in some other parts of the will! (Bil vs. M%r-iano, LC,,0*, Mar-! ), ).1)$ Sin&son vs. Florentino, O-t. *1, ).1*$ Pere5 vs. Rosal, )) SCRA ).1) If the ac>!o#'ed"me!t of the # '' #as !ot s "!ed (& the !otar& $u(' c ! the $rese!ce of the testator a!d the # t!esses2 s the # '' )a' d% The notar# pu&lic need not &e present at the time of the e<ecution of the will! In 8avellana vs. Le2esma, ." P!il. 4B>, it was held that whether or not the notar# si ned the certification of ac'nowled ment in the presence of the testator and the witnesses does not affect the validit# of the will! ( comparison of (rticles >=B and >=G of the new Civil Code reveals that while the testator and witnesses must si n in t!e presen-e o/ ea-! ot!er. (ll that is thereafter required is that Dever# will must &e ac'nowled ed &efore a notar# pu&lic &# the testator and the witnessesC ((rticle >=G)$ i.e. that the latter should avow to the certif#in officer the authenticit# of their si natures and the voluntariness of their actions in e<ecutin the testamentar# dispositions! The su&sequent si nin and sealin &# the notar# of his certification that the testament was dul# ac'nowled ed &# the participants therein

39
is no part of the ac'nowled ment itself nor of the testamentar# act! 0ence, their separate e<ecution out of the presence of the testator and his witnesses can not &e said to violate the rule that testaments should &e completed without interruption! Thus, the certification of ac'nowled ment need not &e si ned &# the notar# in the presence of the testator and the witnesses! (rticle >=G does not require that the testator and the witnesses must ac'nowled e on the same da# that it was e<ecuted! 2either does the article require that the testator and the witnesses must ac'nowled e in one anotherHs presence! 0owever, if the ac'nowled ement is done &# the testator and the witnesses separatel#, all of them must retain their respective capacities until the last one has ac'nowled ed! 0owever, the e<ecution of the will must &e done in one occasion! ((ndalis vs! Pul ueras, B? Phil! GA@) ( notarial will althou h notariJed is not considered a pu&lic document &ecause the notar# is not required to retain a cop# thereof or to file a cop# with the office of the Cler' of Court where copies of documents notariJed &# notaries are su&mitted ever# month! The rationale &ehind is to 'eep the contents of the will secret so that the testator ma# not &e undul# pressured or influenced to chan e his will &# unscrupulous relatives or interested persons! The notar# pu&lic is not even allowed to read the will unless permitted &# the testator! The onl# time the notar# pu&lic is required to read the will is when the will is e<ecuted &# a &lind person! ((rticle >=>)

Ca! the !otar& $u(' c (e cou!ted as o!e of the attest !" # t!esses% In Cr%5 vs. 6illasor, 1+ SCRA ,), the notar# pu&lic &efore whom the will was ac'nowled ed cannot &e considered as the third instrumental witness since he cannot ac'nowled e &efore himself his havin si ned the will! Consequentl#, if the third witness was the notar# pu&lic

40
himself, he would have to avow, assent, or admit his havin si ned the will in front of himself! This cannot &e done &ecause he cannot split his personalit# into two so that one will appear &efore the other to ac'nowled e his participation in the ma'in of the will! To permit such a situation to o&tain would &e sanctionin a sheer a&surdit#! 2ote that the affi<in required for validit#! of documentar# stamp is not

What are the t#o s$ec a' requ reme!ts for ha!d ca$$ed testator% (! 7or deaf 9 deaf E mute testatorC 1! 4! If a&le to read E he must read the will personall#$ If una&le to read E he must desi nate two persons to read the will and communicated to him in some practica&le manner its contents!

:!

7or &lind testatorC The will must &e read to him twice, once &# one of the su&scri&in witnesses, and another time &# the notar#!

What s the effect of fa 'ure to com$'& # th the requ s tes of read !" the # '' u!der Art c'e G9G% If the will was not read twice &# the persons mentioned in the will, the will is void! Provision of (rticle >=> is mandator#! This provision is also applica&le when the testator is incapa&le of readin the will himself (as when he is illiterate) (Bar-ia vs. 6asE%e5, ,* SCRA + .=$ or due to poor, defective or &lurred vision (Alvara2o vs. Baviola, 8r. **0 SCRA ,+ )! What are the d st !ct o!s (et#ee! Art c'es G9H a!d G9G% 1! In (rticle >=3 (deaf or deaf;mute testator) E if the testator is literate, he must personall# read the will! In (rticle >=> (&lind testator) E whether literate or not, the will must &e read ti him &ecause he cannot see!

41
4! In (rticle >=3 E if illiterate, the will must &e read &# two persons desi nated &# the testator! In (rticle >=> E whether literate or not, the will must &e read twice! The readin shall &e done &# one of the su&scri&in witnesses and &# the notar# pu&lic &efore whom the will is ac'nowled ed! In (rticle >=3 E readin &# the two desi nated persons is not enou h! The# must communicate the contents to the testator! In (rticle >=> E readin is enou h &ecause the testator can hear and listen!

@!

What s the effect of su(sta!t a' com$' a!ce of the forma' requ s tes% In the a&sence of &ad faith, for er#, or fraud, or undue influence and improper pressure and influence, defects and imperfections in the form of attestation or in the lan ua e used therein shall not render the will invalid if it is proved that the will was in fact e<ecuted and attested in su&stantial compliance with all the requirements of (rticle >=B! ((rticle >=?) 2ote that the article spea's onl# of defects and imperfections in the form of the attestation or in the lan ua e used therein! It does not cover the su&stance or the &asic elements of an attestation clause which are mandator#! If the &asic requirements are omitted, li'e the a&sence of an attestation clause, a&sence of the si natures of the required num&er of witnesses on the attestation clause, the a&sence of a statement that the testator si ned the will in the presence of the instrumental witnesses, will invalidate the will! 2o amount of li&eral interpretation would save the will! s the test ! determ ! !" su(sta!t a'

What com$' a!ce%

In determinin whether the statements made in the attestation clause compl# su&stantiall# with what the law requires, the correct rule is that omissions which can &e supplied &# an e<amination of the will itself, without resortin to e<trinsic evidence, will not &e fatal$ &ut omissions which

42
cannot &e supplied e<cept &# presentin invalidate the attestation clause! evidence ali%n2e will

There must &e a strict compliance with the su&stantial requirements of an attestation clause of the will to insure its authenticit# &ut formal imperfections which do not affect the will, must &e disre arded so as not to defeat the testatorHs wishes! Ho# ca! su(sta!t )e defect (e cured% .Art c'e

G97/ Defects of su&stance can &e cured onl# &# evidence within the will itself E not &# evidence ali%n2e (e<trinsic evidence)! What s a ho'o"ra$h c # ''% ( holo raphic will is one entirel# written, dated and si ned &# the hand of the testator! State the forma' t es of a ho'o"ra$h c # ''( holo raphic will must &eC a! &! c! d! In a lan ua e 'nown to the testator$ *ntirel# written in the handwritin of the testator$ Completel# dated$ )i ned &# the testator$ /ith anim%s testan2i$ *<ecuted at the time holo raphic wills are allowed!

e.
f!

The ho'o"ra$h c # '' of A has !o date e*ce$t the o!e fou!d o! the seco!d $a"e of the same- Is the # '' )a' d% Wh&% .es, since the law does not specif# an# particular location where the date should &e placed! (La3ra2or vs. CA, ) + SCRA )"#) 1 e*ecuted a ho'o"ra$h c # '' dated Chr stmas ,a& 6779A- Is the # '' )a' d% Wh&% .es, &ecause it was completel# dated, written si ned &# the testator! The date Christmas da# 1??= su&stantial compliance with the requirements of the (RoAas vs. De 8es%s, 8r. B.R. No. , ,, , 8an. * , ). 1? and is a law! ),+

43
SCRA *+1@) The law has a tender re ard for the will of the testator e<pressed in his last will and testament &ecause the testatorHs disposition is &etter than that which the law can ma'e! /here the date written is D7e&9G1F without the specific date of the month havin &een indicated, the pro&ate of the holo raphic will was allowed followin the rule of su&stantial compliance! Where shou'd the testator s "! the ho'o"ra$h c # ''% The testator should si n at the end of the will! This is infera&le from the wordin s of (rticle >14! (n# additional provision after the si nature of the testator must further &e si ned and dated! Clearl# then, the si nature must &e placed at end of the dispositions! # ''s% What s the co!ce$t of $ro(ate of ho'o"ra$h c

Pro&ate is the allowance of a will after provin &efore a competent courtC 1! 4! Its due e<ecution &# the testator$ and Its compliance with the solemnities prescri&ed &# law!

,nless a will is allowed pro&ate, it shall not pass an# propert#! (nd the effect of the pro&ate of a will I that Dit is conclusive to its due e<ecution!F Pro&ate is limited however to the formal or e<trinsic validit# of the will! The pro&ate of notarial wills is >@>! overned &# (rticle ! the

What are the ssues to (e reso')ed $ro(ate of a ho'o"ra$h c # ''%

In a petition to admit a holo raphic will to pro&ate, the onl# issues to &e resolved are the followin C

44
1! 4! @! /hether the instrument su&mitted is, indeed the decedentHs last will and testament$ /hether said will was e<ecuted in accordance with the formalities prescri&ed &# law$ whether the decedent had the necessar# testamentar# capacit# at the time the will was e<ecuted$ and /hether the e<ecution of the will and its si nin were the voluntar# acts of the decedent! (A:ero vs. CA)

4.

I! the $ro(ate of a ho'o"ra$h c # ''2 ho# ma!& # t!esses must (e $rese!ted% It shall &e necessar# that at least one witness who 'nows the handwritin of the testator e<plicitl# declare that the will and the si nature are in the handwritin of the testator! If the will is contested, at least three of such witnesses shall &e prepared! In the a&sence of a competent witness, and if the court deem it necessar#, e<pert testimon# ma# &e resorted to! Ca! a ho'o"ra$h c # '' (e $ro(ated u$o! the test mo!& of # t!esses% Is t !ecessar& to $roduce the docume!t tse'f% .Ca! a 'ost ho'o"ra$h c # '' (e $ro(ated%/ In Ban vs. Gap, )#+ P!il. 1#., if the holo raphic will has &een lost or destro#ed and no other cop# is availa&le, the will cannot &e pro&ated &ecause the &est and onl# evidence is the handwritin of the testator in said will! Ca! co$&% ( photostatic or Iero< cop# of the holo raphic will ma# &e allowed &ecause a comparison can &e made with the standard writin s of the testator! (Ro2elas vs. Aran5a, )). SCRA )0)! In Ban vs. Gap, the Court ruled that Dthe e<ecution and the contents of a lost or destro#ed holo raphic will ma# not &e proved &# the &are testimon# of witnesses who have seen and9or read such will! The will itself must &e presented$ otherwise, it shall produce no effect! The law re ards the t (e $ro)e! (& a $hotostat c or 1ero*

45
document itself as material proof of authenticit#! :ut in 7ootnote > of said decision, it sa#s that DPerhaps it ma# &e proved &# a photo raphic or photastatic cop#! *ven a mimeo raphed or car&on cop#$ or &# other similar means, if an#, where&# the authenticit# of the handwritin of the deceased ma# &e e<hi&ited and tested &efore the pro&ate court!F What are the forma' requ reme!ts add t o!a' d s$os t o!s ! a ho'o"ra$h c # ''% A! B! )i nature$ and Date for

What are the ru'es #he! there are se)era' add t o!a' d s$os t o!s% 1! 4! @! )i nature and date$ or *ach additional disposition si ned and undated, &ut the last disposition si ned and date! If, in the case of several additional dispositions the additional ones &efore the last are dated &ut not si ned, onl# the last will &e valid, provided the last is si ned and dated!

What are the ru'es for cur !" defects% .Art c'e G6</ a! &! c! If the last disposition is si ned and dated E

Precedin dispositions which are si ned &ut not dated are validated! Precedin dispositions, which are not si ned &ut dated, are void! Precedin dispositions which are not si ned and not dated are void, unless written on the same date and occasion as the latter disposition The discussion a&ove presupposes that the latter disposition was dated and si ned &# the testator himself! Therefore$

46
a! If done &# another, without the testatorHs consent, same will not affect the previous dispositions, which remain void if in themselves void$ and remain valid if in themselves valid! If done another with the testatorHs consent, same effects in (d), &ecause the latter disposition is not reall# holo raphic (not done &# the testator himself!)

&!

Su$$ose there s a! a'terat o! # thout the fu'' s "!ature2 s the #ho'e # '' )o d% .Art c'e G6E/ 2o, onl# the alteration is void! 0owever, if what was altered was the date or the si nature, the alteration without the full si nature ma'es the whole will void! 2oteC 7ull si nature does not necessaril# mean the testatorHs full name$ it rather means his usual and customar# si nature!

A e*ecuted a ho'o"ra$h c # '' ! 678:- He authe!t cated or s "!ed the # '' # th h s ! t a's- I! add t o!2 there s a! !serted testame!tar& d s$os t o! fou!d ! $a"e t#o of the # '' a'so authe!t cated # th h s ! t a's- Are such authe!t cat o!s )a' d% /e must distin uish! The act of ( in si nin the will with his initials is a valid authentication! This is clear from (rticle >1=! The law merel# requires that the will must &e entirel# written, dated and si ned &# the hand of the testator himself! 0owever, the act of ( in authenticatin the inserted testamentar# disposition with his initials is not a valid authentication! This is clear from (rticle >1A, which declares that in case of an# insertion, cancellation, erasure or alteration in a holo raphic will, the testator must authenticate the same &# his full si nature! G )e the ru'es "o)er! !" the forma' )a' d t& of # ''s(rticles >1B, >1G and >13 la# down the rules of formal validit# of willsC 1! 4! ( 7ilipino a&road ((rticle >1B) (n alien a&road ((rticle >1G)

47
@! (n alien in the Philippines ((rticle >13) 2ot covered is a situation of a 7ilipino e<ecutin will in the Philippines a

*ver# testator, whether 7ilipino or alien, wherever he ma# &e, has five choices as to what law to follow for the form of his willC 1! 4! @! A! B! The law of his citiJenship ((rticles >1G and >13 for aliens$ appl#in to 7ilipinos &# analo #, (rticle 1B) The law of the place of e<ecution ((rticle 13) The law of his domicile ((rticle >1G for aliens a&road$ appl#in to aliens in the Philippines and to 7ilipinos &# analo #) The law of his residence ()ame &asis as O@P) The Philippine law ((rticles >1G and >13 for aliens, (rticle 1B, appl#in to 7ilipinos &# analo #)

ThusC 1! If the testator is a 7ilipino and the will is e<ecuted in the Philippines, then its formal validit# is overned &# the Civil code of the Philippines ((rticle 13)! If the testator is a 7ilipino and the will is e<ecuted in a forei n countr#, then its formal validit# is overned either (a) &# the law of the place where the will is made, or (&) &# the Civil Code of the Philippines! It must &e o&served that (rticle >1B of the 2ew Civil code does not state that a will made &# a 7ilipino in a forei n countr# ma# &e e<ecuted in accordance with the formalities prescri&ed &# the Civil Code of the Philippines! In spite of the omission, however, it is su&mitted that such a will ma# still &e admitted to pro&ate in the Philippines! 2ot to rant this concession to 7ilipino citiJens would &e illo ical and unfair considerin the fact that it is even ranted to forei ners! ((rtcile >1G) If the testator is a forei ner and the will is e<ecuted in the Philippines, then its formal validit# is overned either (a) &# the Civil Code of the Philippines ((rticle 13), or (&) &# the law of his own countr# ((rticle >13)! If the testator is a forei ner and the will is e<ecuted in a forei n countr#, then its formal

4!

@!

A!

48
validit# is overned either (a) &# the law of the place where the will is made ((rticle 13), or &# the law of his own countr# ((rticle >1G), or &# the law of the countr# where he resides, or (d) &# the Civil Code of the Philippines! What s a ;o !t # ''% , st !"u sh t from mutua' a!d rec $roca' # ''s( %oint will is a sin le testamentar# instrument which contains the wills of two or more persons %ointl# e<ecuted &# them, either for their reciprocal &enefit or for the &enefit of a third person! "utual wills are wills e<ecuted pursuant to an a reement &etween two persons to dispose of their propert# in a particular manner, each in consideration of the other! -eciprocal wills are wills in which the testators name each other as &eneficiaries under similar testamentar# plans! It is clear from these definitions that a %oint will ma# either &e mutual or reciprocal, althou h it is not necessar# so, %ust as mutual or reciprocal wills ma# &e %oint of the# are contained in a sin le testamentar# instrument!

Are ;o !t # ''s a''o#ed%

1! 4!

If e<ecuted &# 7ilipinos in the Philippines ((rticle >1>) E void! If e<ecuted &# 7ilipinos a&road ((rticle >1?) E void even if authoriJed &# the law of the place of e<ecution (an e<ception to the permissive provision of (rticles 13 and >1B) If e<ecuted &# aliens a&road E (rticle >1G! overned &#

@! A!

If e<ecuted &# aliens in the Philippines E controvertedC One view E void$ &ecause of pu&lic polic#$ (nother view E (rticle >13 overns! If e<ecuted &# a 7ilipino, alwa#s void$ as to the alien, O@P or OAP would appl#!

B!

49
SU5SECTION E- WITNESSES TO WILLS What are the s * qua' f cat o!s for # t!esses to !otar a' # ''s% (t the time of attestin , the# must$ a! &! c! d! e! f! &e of sound mind &e at least 1> #ears of a e &e a&le to read and write not &e &lind, deaf, or dum& &e domiciled in the Philippines not have &een convicted (&# final %ud ment) of falsification of a document, per%ur#, or false testimon# d st !"u shed from

Ho# s com$ete!ce cred ( ' t& .of a # t!ess/%

In Bon5ales vs. CA, .# SCRA, ) ,, it was held that in the strict sense, the competenc# of a person to &e an instrumental witness to a will is determined &# the statute, that is (rticles >4= and >41, whereas his credi&ilit# depends on the appreciation of his testimon# and arises from the &elief and conclusion of the Court that said witness is tellin the truth! Competenc# as a witness is one thin , and it is another to &e a credi&le witness, so credi&le that the Court must accept what he sa#s! Trial courts ma# allow a person to testif# as a witness upon a iven matter &ecause he is competent, &ut ma# thereafter decide whether to &elieve or not to &elieve his testimon#! Thus, the rule is that the instrumental witness in order to &e competent must &e shown to have the qualifications under (rticles >4= and none of the disqualifications under (rticle >41 and for their respective testimon# to &e credi&le, that is worth# of &elief and entitled credence, it is not mandator# that evidence &e first esta&lished on record that the witnesses have a ood standin in the communit# or that the# are honest and upri ht or reputed to &e trustworth# and relia&le, for a person is presumed to &e such unless the contrar# is esta&lished otherwise! In other words, the instrumental witnesses must &e competent and their testimonies must &e credi&le &efore the court allows the pro&ate of the will the# have attested!

50
The term Dcredi&le witness or witnessesF means competent witnesses and not those who testif# to facts from or upon hearsa# evidence! Capacit# to &e a witness in court (-ule 1@=, )ection 4=, -evised -ules of *vidence) B? is different from capacit# to &e a witness in wills! The latter has more restrictions!

Is t a requ reme!t that the # t!esses ca! s$ea> a!d #r te the )er& 'a!"ua"e ! #h ch the # '' #as #r tte!% Is t esse!t a' for the # t!esses to >!o# the 'a!"ua"e ! #h ch the attestat o! has (ee! #r tte!% 2o, since after all, the witnesses do not even have to 'now the contents of the will! It is not even essential for the witnesses to 'now the lan ua e in which the attestation has &een written! It is sufficient that the same &e interpreted to him! What s the effect of the su(seque!t !ca$ac t& of a # t!ess% It shall not prevent the allowance of the will! :ut of course the said witness cannot testif#! This does not mean however that the validit# of the will is impaired &# such fact! 1 made a !otar a' # '' # th A2 5 a!d C as # t!esses- As de form the other testame!tar& $ro) s o!s ! the # ''2 A #as " )e! a $ ece of 'a!d as a de) se- Is the # '' )a' d% The will is valid, since there were three credi&le witnesses! 0owever, while ( is capacitated as a witness, he is incapacitated to receive the devise, hence the provision re ardin said devise should &e disre arded, the rest of the will &ein valid! To #hom does the d squa' f cat o! e*te!d to% 1.
59

the witness$

)ection 4=! /itnesses$ their qualifications! E *<cept as provided in the ne<t succeedin section, all persons who can perceive, and perceivin , can ma'e 'nown their perception to others, ma# &e witnesses!

51
2. 3. 4. 5. the spouse of the witness$ the parent of the witness$ the child of the witness$ an#one claimin the ri ht of said witness, spouse, parent or child (e<! The creditor of the witness if the said creditor has not &een paid!)

What s the $ur$ose of the 'a# ! ma> !" th s d squa' f cat o!% To prevent undue influence What s the effect of th s d squa' f cat o! f the # t!ess s a com$u'sor& he r% The said heir is still entitled to the le itime! Ca! cred tors of the estate of the testator act as !strume!ta' # t!esses to a # ''% .es! :ut he is disqualified to inherit! 0owever, he is qualified to receive his credit, which after all cannot &e considered a ift! Ca! a # t!ess #ho s d squa' f ed to u!der Art c'e G:E st '' (e a # t!ess ! court% !her t

.es! 0e is disqualified to inherit &ut not to testif#! 0e can attest to the due e<ecution of the will at the pro&ate hearin ! 0e will &e admitted as a witness as if the devise or le ac# had not &een made or iven! SU5SECTION =- CO,ICILS AN, INCORPORATION 53 REFERENCE Ho# s su(seque!t # ''% a cod c ' d st !"u shed from a

( codicil, &# definition, e<plains, adds to, or alters a disposition in a prior will$ while a su&sequent will ma'es independent and distinct dispositions! The distinction, however, is purel# academic &ecause (rticle >4G requires the codicil to &e in the form of a will an#wa#!

52
What requ reme!ts must (e com$' ed # th ! order that a cod c ' ma& (e effect )e% It is required that the codicil &e e<ecuted as in the case of a will ((rticle >4G)! This means that the testator must also possess testamentar# capacit# and must compl# with the formalities prescri&ed &# law in the e<ecution of a will! What s the ru'e ! case of co!f' ct (et#ee! a # '' a!d a cod c '% The codicil should prevail, e<pression of the testatorHs wishes! it &ein the later

Is there a! e*ce$t o! to the ru'e that f a! !strume!t s !ot e*ecuted # th a'' the forma' t es of a # ''2 t ca!!ot (e adm tted to $ro(ate% The eneral rule is that an instrument which is not e<ecuted in accordance with the formalities of a will shall not &e pro&ated! The e<ception is iven in (rticle >43 which permits incorporation &# reference provided the requisites enumerated are present! What are the requ s tes for the )a' d t& of docume!ts !cor$orated ! a # '' (& refere!ce% 1. The document or paper must referred to in the will must &e in e<istence at the time of the e<ecution of the will$ The will must clearl# descri&e and identif# the same, statin amon other thin s the num&er of pa es thereof$ It must &e identified &# clear and satisfactor# proof as the document or papers referred to therein$ It must &e si ned &# the testator and the witnesses on each and ever# pa e, e<cept in case of voluminous &oo's of account or inventories!

2.

3.

4.

Comme!ts o! the fore"o !" requ s tes0

53
1! In 2o! (1), if the document or paper was prepared after the e<ecution of the will, the validit# of the will is not affected! The reference to the writin must appear on the face of the will! That the document was in e<istence at the time the will was made can &e proved &# e<trinsic evidence! In 2o! (4), the pa es must &e stated even if the writin consists of voluminous &oo's of accounts or inventories mentioned in 2o! (A)! The description and identification of the writin , and the statement of the num&er of pa es thereof must li'ewise appear on the face of the will! In 2o! (@), the identification of the writin ma# &e shown &# e<trinsic evidence! 2ote that (rticle >43 can refer onl# to such documents as inventories, &oo's of accounts, documents of title, and papers of similar nature$ the document should, under no circumstances, ma'e testamentar# dispositions, for then the formal requirements for will would &e circumvented! In the si nin of documents or papers (when not voluminous), there is no need to ma'e an attestation clause! The attestation clause on the will is enou h! (Unson vs. A3ella, +, P!il. +.+)

4!

@!

Ca! ho'o"ra$h c # '' !cor$orate docume!ts (& refere!ce% The test of (rticle >43 su ests a ne ative answer! Para raph A of the article requires the si natures of the testator and the Hitnesses on ever# pa e of the incorporated documents (e<cept voluminous anne<es)! It seems, therefore, that onl# attested will can incorporate documents &# reference, since onl# attested wills are witnesses (unless, of course, the testator e<ecutes a holo raphic will, and superfluousl#, has it witnessed)! (lso, a holo raphic will requires that its contents &e in the handwritin of the testator, thus if the other instrument is not entirel# in the handwritin of the testator, it is su&mitted that there can &e no valid incorporation &# reference in a holo raphic will! ?ust the cod c ' co!form to the form of the # '' to #h ch t refers% .That s2 a ho'o"ra$h c cod c ' for a

54
ho'o"ra$h c # ''2 a!d !otar a' cod c ' for a !otar a' # ''%/ The law does not require this! Thus, an attested will ma# have a holo raphic codicil$ a holo raphic will ma# have an attested codicil! It is enou h that the codicil has the formalities of a will! (rticle >4G requires that the codicil &e e<ecuted as in the case Dof a willF, not Dof the willF! SU5SECTION 8- REVOCATION OF WILLS AN, TESTA?ENTAR3 ,ISPOSITIONS What are the co!f' cts ru'es for re)ocat o! of # ''s% a! 7or revocation outside the PhilippinesC (1) If not domiciled PhilippinesC a) in the

follow the law of the place where the will was made$ or follow the law of the place where the testator was domiciled at that time!

&)

(4) If domiciled in the Philippines (this situation is not covered &# (rticle >4?)C a) follow the law of Philippines (since domicile is here)$ or the his

b)
c)

follow the eneral rule of leA lo-i -ele3rationis of the revocation$ or follow the law of the place where the will was made (&# analo # with the rules on revocation where the testator is a non; Philippine domiciliar#)

55

&!

If revocation is in the Philippines, follow Philippine law!

What are the modes of re)o> !" a # '' u!der Ph ' $$ !e 'a#% 1! :# implication of law$ 4! :# a su&sequent will or codicil, or other writin done with the formalities of a will$ and @! :# overt acts of ph#sical destruction! ((rticle >@=) What are e*am$'es of re)ocat o! (& m$' cat o! or o$erat o! of 'a#% 1! 4! @! A! B! Preterition ((rticle >BA)$ Le al separation ((rticle G@, 7C) ,nworthiness to succeed ((rticle 1=@4)$ Transformation, alienation, or loss of the o&%ect devised or &equeathed ((rticle ?B3)$ Ludicial demand of a credit as a le ac# ((rticle ?@G)!

What are the requ s tes for a )a' d re)ocat o! (& a su(seque!t !strume!t%

1.
4! @!

The su&sequent instrument must compl# with the formal requirements of a will$ (Molo vs. Molo, .# P!il. ,") The testator must possess testamentar# capacit#$ The su&sequent instrument must either contain an e<press revocator# clause or &e incompati&le with the prior will ((rticle >@1) O-evocation &# a su&sequent instrument ma# &e e<press or impliedP!

Li'e an# other will, such wills must &e pro&ated in order to ta'e effect! (Molo vs. Molo)

What are the four #a&s of destro& !" a # ''% 1! 4! @! A! :urnin $ Tearin $ Cancelin $ or O&literatin !

56
What are the requ s tes for re)ocat o! (& o)ert There must &e an overt act specified &# the law$ There must &e a completion at least of the su&%ective sta e$ There must &e anim%s revo-an2i or intent to revo'e$ The testator at the time of revo'in must have capacit# to ma'e a will$ The revocation must &e done &# the testator himself, or &# some other person in his presence and &# his e<press direction!

act% 1) 4)

3)
A) B)

Thus there must &e -orp%s E the ph#sical destruction itself$ there must &e evidence of ph#sical destruction$ and anim%s E the capacit# and intent to revo'e! Corp%s and anim%s without the other revocation! must concur! One will not produce

*ven if the testator shall state that his will is irrevoca&le, such provision will have no &indin effect on him &ecause Dan# waiver or restriction of this ri ht is voidF ((rticle >4>)!

Is the mere !te!t to re)o>e suff c e!t to effect re)ocat o! of a # ''% 2o, intent to revo'e is not sufficient! This is onl# one of the elements! There must &e overt act of &urnin , tearin , o&literatin , or cancelin &# the testator or an# one under his e<press direction! (Manaloto vs. Ca, BR No. "0+0+, Fe3r%ary *., ). ) T2 the testator2 thre# h s # '' o! a sto)e (ut t #as !ot (ur!ed (ecause H2 o!e of the he rs tr ed to reco)er t from the sto)e- Was the # '' re)o>ed% 2o, &ecause there was no ph#sical destruction! 0owever, the heir who saved it is not entitled to inherit due to unworthiness ((rticle 1=@4)!

57
T e*ecuted a # '' ! 6779 # th h s !e$he# N #ho #as ' ) !" # th h m as a $r !c $a' (e!ef c ar&- I! 67762 # th !te!t to re)o>e the # ''2 he se!t N to "et t from the safe so that he ca! destro& tI ho#e)er2 >!o# !" of the !te!t of h s u!c'e2 su(st tuted a!other $a$er !s de the e!)e'o$e a!d h d the rea' # ''- It #as th s e!)e'o$e #h ch he "a)e to the testator- The 'atter2 # thout !)est "at !" the co!te!ts2 su(seque!t'& destro&ed t (& (ur! !"- After h s death ! 677:2 N $rese!ted the # ''2 #h ch #as h dde!2 for $ro(ate- Is there a re)ocat o! ! th s case% There is no revocation &# &urnin &ecause althou h there was intent to revo'e, #et there was no actual ph#sical destruction! 2ot all the intention in the world without destruction can revo'e a will$ and not all the destruction in the world without the intention can revo'e a will! The two must alwa#s o to ether! 0owever, the heir who saved it is not entitled to inherit due to unworthiness ((rticle 1=@4)! What s the effect of crum$' !" of a # ''% Crumplin of a will is not equivalent to tearin ! There us no revocation of the same! 0owever, in RoAas vs. RoAas, + P!il., the )upreme Court said that crumplin with intent to revo'e constitutes revocation! What s the effect of tear !" of the # '' u$ to the s "!ature o!'&% If the testator tears the will up to the si nature, there is revocation &ecause to oes to the heart of the will! 0owever, if it is onl# the si nature of the witness, there is no revocation! 1 made a # '' ma> !" 3 h s he r- 1 the! 'ear!ed that 3 #as dead2 so he made a!other # '' !st tut !" 4 as he r- If 3 tur!s out to (e st '' a' )e2 #ho !her ts% . inherits, &ecause the revocation was &ased on a false cause! What f the testator states ! h s seco!d # ''0 @I am !ot sure #hether 3 s dead or st '' a' )e- Ho#e)er2 I here(& re)o>e the 'e"ac& to h m #h ch I made ! m& f rst # ''-A Is there a re)ocat o! of the 'e"ac&%

58
.es, for here, he cannot &e said to &e proceedin upon an error! If a # '' s destro&ed # thout the testatorDs e*$ress d rect o!2 ca! the # '' st '' (e esta(' shed a!d the testatorDs estate d str (uted ! accorda!ce there# th% .es, &ut the same must &e proved in accordance with the rules of evidenceC a) the contents of the will$ &) its due e<ecution$ and the fact of its unauthoriJed destruction, cancellation, or o&literation! Ca! there (e re)ocat o! (& ora' dec'arat o!% -evocation cannot &e done &# mere parol! 5enerall# spea'in , revocation of a written will can &e accomplished &# the testator onl# &# another writin , &# destruction of the instrument, or &# some act manifest thereon, e<cept where, under the doctrine of implied revocation &# a chan e in circumstances, he ma# revo'e his will indirectl# &# some act which results in such a chan e! If a su(seque!t # '' #h ch re)o>es a $r or # '' a!d the sa d su(seque!t # '' (ecomes !o$erat )e (& reaso! of the !ca$ac t& of or re$ud at o! (& the he rs des "!ated there !2 does th s fact affect the re)ocat o!% .W '' the re)ocat o! made (& the testator ! sa d su(seque!t # '' rema ! effect )e%/ ( revocation made in a su&sequent will shall ta'e effect, even if the new will should &ecome operative &# reason of the incapacit# of the heirs, devisees, or le atees desi nated therein, or &# their renunciation ((rticle >@4)! The reason is that the act of revo'in a will is entirel# distinct, separate and independent from the testamentar# disposition contained in the su&sequent will! "oreover, the incapacit# of or repudiation &#, the heirs is &e#ond the control of the testator, &ut the act of revocation is within his a&solute control! What re)ocat o!% s the doctr !e of de$e!de!t re'at )e

The failure of the new testamentar# disposition, upon whose validit# the revocation depends, is equivalent to the non;fulfillment of a suspensive condition, and hence prevents the revocation of the ori inal will! :ut a mere intent

59
to ma'e at some time a will in place of that destro#ed will not render the destruction conditional! It must appear that the revocation is dependent upon the valid e<ecution of a new will! This doctrine is not limited to the e<istence of some other document and has &een applied where a will was destro#ed as a consequence of a mista'e of law! What s the effect of m$' ed re)ocat o!% It onl# annuls such dispositions in the prior will as are inconsistent with or contrar# to those contained in the later will! ((rticle >@1) What s the effect of re)ocat o! reco"! t o! of a! ''e" t mate ch 'd% o! the

The reco nition of an ille itimate child does not lose its le al effect, even thou h the will wherein it was made should &e revo'ed! ((rticle >@A) SU5SECTION H- REPU5LICATION AN, REVIVAL OF WILLS What s re$u(' cat o!% It is the process of re;esta&lishin a will, which has &ecome useless &ecause it was void, or had &een revo'e! Ho# ma& re$u(' cat o! (e made% 1! *<press repu&lication or repu&lication &# re; e<ecution of the ori inal will E the testator reproduces in a su&sequent will the dispositions contained in a previous one which is void as to its form (the ori inal provisions are copied)$ and Implied repu&lication or repu&lication &# reference E the testator e<ecutes a codicil referrin to a previousl# revo'ed will which is valid as to its form, or to a will which is void not as to its form &ut for other causes, such as want of testamentar# capacit#! ! re$u(' cat o! (& re+

4!

What are the requ s tes e*ecut o!%

60
1! 4! @! The ori inal will must &e void as its form$ (ll the testamentar# dispositions in the ori inal will must &e reproduced (not merel# referred to) in the su&sequent will$ The new will must &e e<ecuted in accordance with the formalities required &# law!

What are the ru'es ! re$u(' cat o!% 1! To repu&lish a will void as to its form, all the dispositions must &e reproduced in the new or su&sequent will! To repu&lish a will valid as its form &ut alread# revo'ed, the e<ecution of a codicil which ma'es reference to the revo'ed will is sufficient!

4!

What are the effects of re$u(' cat o! (& ) rtue of a cod c '% 1! 4! The codicil revives the previous will! The old will is repu&lished as of the date of the codicil E ma'es it spea', as it were, from the new and later date!

( will repu&lished &# a codicil is overned &# a statute enacted su&sequent to the e<ecution of the will, &ut which was operative when the codicil was e<ecuted! What are the requ s tes ! re$u(' cat o! (& refere!ce% 1! 4! @! The will must &e void for causes other than as to its form$ The codicil must refer to the previous will$ and It must &e e<ecuted as in the case of a will!

@!

What s re) )a' of # ''s% -evival is the restoration or re;esta&lishment of a revo'ed will or revo'ed provisions thereof, to effectiveness, &# virtue of le al provisions! What s the d ffere!ce (et#ee! re$u(' cat o! a!d re) )a'% 1! 4! -epu&lication of wills is an the act of the testator! -evival is one that ta'es place &# operation of law!

61

What are e*am$'es of re) )a' (& o$erat o! of 'a#% 1! :# implication of (rticle >@3 if the second will merel# impliedl# revo'ed the first will, and the second will was itself revo'ed, the first will is automaticall# revived! If a compulsor# heir in the direct line is omitted, the institution of heir is annulled$ &ut should the omitted heir die &efore the testator, the institution is revived, without pre%udice to the ri ht of representation ((rticle >BA)!

4!

A$$' cat o!0 6T e*ecuted t#o # ''s- U!der the f rst # ''2 A s the o!'& (e!ef c ar&2 #h 'e u!der the seco!d # ''2 5 s the o!'& (e!ef c ar&- Su(seque!t'&2 he e*ecuted a cod c ' #here ! he e*$ress'& re)o>ed the seco!d # ''- ?a& the f rst # '' !o# (e adm tted to $ro(ate as h s 'ast # '' a!d testame!t%

.es! *<press revocation is superior to implied revocation! /hen T e<pressl# revo'ed his second will &# a codicil, the effect is that the will ceases to e<ist and is as inoperative as if it has never &een written! Consequentl#, there is now onl# one will of T which remains E the first will which was e<ecuted! In realit#, the first will was not considered revived since it has never &een validl# revo'ed in the first place! :T made < # ''s- W '' No- : e*$ress'& re)o>ed W '' No- 6- W '' No- < re)o>ed W '' No- :- Is W '' No- 6 re) )ed%

2o, &# e<press provision of (rticle >@3! The rule is &ased on the principle that the revocator# clause of the second will too' effect immediatel# or at the instant the revo'in will was made! (This is the principle of instanter) <T made < # ''s- W '' No2 : s com$'ete'& !co!s ste!t # th2 a!d therefore2 m$' ed'& r$ea's W '' No- 6- Later2 # '' No- < re)o>es W '' No- :- Is the W '' No- 6 re) )ed%

62
.es! This is a clear inference from (rticle >@3! )ince the (rticle uses the word De<pressl#F, it follows that in case of an DimpliedF revocation &# the second will, an automatic revival of the first occurs! (pparentl#, the reason is the fact that an Dimplied revocationF is am&ulator#, the consistenc# &ein trul# and actuall# apparent onl# mortis -a%sa, when the properties are distri&uted! ET made W '' No- 62 the! W '' No- : e*$ress'& re)o> !" the f rst- The! he destro&ed W '' No:2 a!d ora''& e*$ressed h s des re that h s f rst # '' (e fo''o#ed- Shou'd th s (e a''o#ed%

2o, the oral e<pression of the desire to revive cannot &e iven effect! 0e should have made a new will or codicil! Su(sect o! G- ALLOWANCE AN, ,ISALLOWANCE OF WILLS .PRO5ATE/ What s $ro(ate% It is the act of provin &efore a competent court the due e<ecution of a will &# a person possessed of testamentar# capacit#, as well as approval thereof &# said court! What are the > !ds of $ro(ate%

1. 2.
1!

Pro&ate durin the lifetime of the testator (anteC motem)$ and Pro&ate after the testatorHs death (post motem)!

Wh& s there a !eed for $ro(ate% It is essential &ecause under the law, Dno will shall pass either personal or real propert# unless it is proved and allowed in accordance with the -ules of Court (-ule 3B, )ection 1)! Pro&ate proceedin which is in rem cannot &e dispensed with and su&stituted &# an# other proceedin , %udicial or e<tra;%udicial$ and )uppression of a will from pro&ate is contrar# to law and pu&lic ploci#! Purpose of pro&ate of a willC To esta&lish conclusivel# a ainst ever#one, once and for all, the facts that the will was e<ecuted with the formalities

2.
@!

63
required &# law and that the testator was in a condition to ma'e a will, is the purpose of the proceedin s for the pro&ate of a will! The %ud ment in such proceedin s determines and can determine nothin more! In them the court has no power to pass upon the validit# of an# provisions made in the will! It can not decide, for e<ample, that a certain le ac# is void and another one valid! )uch question must &e decided in some other proceedin ! (Castane2a v. Alemany, , P!il. +*0) This is so &ecause althou h the allowance of a will is conclusive as to its due e<ecution, it is not so as to intrinsic validit# of the provisions made therein, which is covered &# su&stantive law relative to descent and distri&ution! The pro&ate of a will does not effect the le itimate ri hts of the heirs at law or of the widow in the estate! What are the t#o $arts of post-mortem $ro(ate% 1! The pro&ate proper, which deals with e<trinsic validit#, that is, proof of testamentar# capacit# and due e<ecution are presented, and the court then issued an order allowin or disallowin the will$ The inquir# into intrinsic validit# and the distri&ution itself of the properties! ssues to (e reso')ed ! $ro(ate

4!

What are the $roceed !"s% 1! 4! @!

/hether the instrument su&mitted is, indeed, the decedentHs last will and testament$ in other words, the question is one of identit#$ /hether the said will was e<ecuted in accordance with the formalities required &# law$ in other words, the question is one of due e<ecution$ /hether the decedent had the necessar# testamentar# capacit# at the time the will was e<ecuted$ in other words, the question is one of capacit#$ /hether the e<ecution of the will and its si nin were the voluntar# acts of the decedent! (A:ero vs. Ca, s%pra.)

4.

Whe! $ro(ate court ma& determ !e matters other tha! the due e*ecut o!0

64
In e<ceptional cases, as where the defect is apparent on its face, the pro&ate court ma# determine the intrinsic validit# of the will even &efore the formal validit# of the will is esta&lished, as the pro&ate of a will ma# &ecome a useless ceremon# if the will is intrinsicall# invalid! (9alanay, 8r. vs. Martine5, LC ,.*+", 8%ne *", )."1), as where the devise was intrinsicall# invalid since the will itself stated that the devisee was the paramour of the testator! /here 4 successive inconsistent wills were presented for pro&ate and the issue of filiations was squarel# raised &# the pleadin s and had to &e decided in order to determine whether the testator intended reall# to revo'e the first will! /hen the issue is revocation, it is the function of the court to e<amine the words of the will! (Rarreto v. Reyes, . P!il. ..0) It can inquire as to whether the disinheritance &# the testator of an heir is le al, and receive evidence durin the hearin in support of the validit# of the provision of disinheritance! (s a matter of fact even the question of the status of a natural child is an issue which is completel# not ermane to the main question of pro&ate, could &e decided in a pro&ate proceedin when it is raised in con%unction therewith! (Severino vs. Severino, ++ P!il. ,+,, 4ila2o v. Pon-e 2e Leon, 1# O.B. ***) The eneral rule is that questions of title to propert# cannot &e passed upon in testate or intestate proceedin s! The pro&ate court can decide onl# provisionall# questions of title to propert# for the purpose of inclusion into, or e<clusion from the inventor#, without pre%udice to a final determination of the question in a separate action! It is onl# when the parties interested are all heirs and the# a ree to su&mit to the pro&ate court the question as to title of propert# that the pro&ate court ma# definitel# pass %ud ment thereon! (Alvare5 vs. Espirit%, B.R. No. LC ) ,,, A%&. )+, ).01) The successional ri hts of an oppositor to the pro&ate of a will ma# &e inquired in a pro&ate

65
proceedin ! )aid the )upreme CourtC DIt is ur ed that as pro&ate is onl# concerned with the due e<ecution of a testament, an# rulin on the successional ri hts of the oppositors is premature! Inquir# into the hereditar# ri hts of the oppositors is not premature, if the purpose is to determine whether their opposition should &e e<cluded in order to simplif# and accelerate the proceedin s! If the oppositors can not ain an# hereditar# interest in the estate, whether the will is pro&ated or not, their intervention would merel# result in unnecessar# complication! (Ca-! v. U2an, No. LC)...0, April ,#, ).1#) ,oes the $ro(ate court ha)e ;ur sd ct o! to dec de quest o!s o! o#!ersh $% 5enerall# no, e<ceptC 1! /hen the parties voluntaril# su&mit this matter to the court$ /hen all the claimants have le al interests in the propert#, and with their consent, the# su&mit the question of ownership to the pro&ate court and the interest of third persons are not pre%udiced (9ay3ayan vs. AE%ino, )+. SCRA ) 0$ San-!es vs. CA, BR )# .+", Septem3er *., )..")! /hen provisionall#, ownership is passed upon to determine whether or not the propert# involved is part of the estate! OThe court ma# onl# provisionall# pass upon titles of properties to &e included in the inventor# of estate properties, su&%ect to final decision in a separate action to resolve the question of ownership!P

2.

@!

I! $ro(ate $roceed !"s2 ! #hat !sta!ces2 f a!&2 ma& $roof of f ' at o! (e a''o#ed a!d for #hat $ur$ose%

66
1! If it is essential to esta&lish which of the two wills has &een revo'ed$ To ive prima /a-ie proof whether or not an oppositor or intervenor who claims to &e related to the testator, can &e allowed to intervene in the pro&ate proceedin s for the purpose of protectin his ri hts! 2ote however, that the final decision on the matter of relationships can &e threshed out either in another case, or even in the later sta es of the settlement proceedin s, the sta e when the declaration of heirship is made, and onl# after the pro&ate order has a&een made!

2.

What s the $rescr $t )e $er od for !st tut !" $ro(ate $roceed !"% Prescription is not applica&le! The )tatute of Limitations fi<es time limits for the filin of civil actions &ut not in special proceedin of which pro&ate is admittedl# one! This is &ecause pro&ate proceedin s are not e<clusivel# esta&lished in the interest of the survivin heirs &ut primaril# for the protection of the testatorHs e<pressed wishes that are entitled to respect as an effect of ownership and of the ri ht of disposition! If the pro&ate of validl# e<ecuted wills is required of pu&lic polic#, the )tate could not have intended the statute to defeat pu&lic polic#! Is esto$$e' a$$' ca('e to $ro(ate $roceed !"s% 2o, it does not appl# to pro&ate proceedin s for the# are vested with pu&lic interest, and if estoppel would &e a applied, the ascertainment of the truth ma# &e &loc'ed! This should &e avoided for the primar# purpose of a pro&ate proceedin is not the protection of the interest of livin persons! Notes0 The provision made &# the testator that his DLast /ill and Testament shall not &e ventilated in courtF, cannot deprive the courts of their authorit# to determine if his will referred to should &e allowed or not! It is not the parties interested in one wa# or another in a case that can confer or ta'e awa# from

67
the courts the %urisdiction and authorit# to resolve and decide what the law itself desires to &e resolved and decided! 0owever, an instrument which neither disposes of propert#, as it onl# appoints an e<ecutor, not &ein testamentar# in character, is not entitled to pro&ate, althou h e<ecuted with all the formalities required &# law! ( codicil should &e pro&ated, even thou h it contains nothin &ut the revocation of a former will!

I! the case of a ho'o"ra$h c # ''2 a!d there s !o co!test2 ho# ma!& # t!ess s requ red to test f&% Onl# one witness is required, and in his a&sence, e<pert evidence ma# &e resorted to! If the testator h mse'f test f es2 #hat must he $ro)e% 0e si nature! needs merel# affirm his handwritin and

If a ho'o"ra$h c # '' s co!tested2 ho# ma!& # t!esses are !eeded% @ witnesses must &e presented! What s the requ s te qua!tum of e) de!ce to $ro)e a 'ost or destro&ed !otar a' # ''% &) In the a&sence of contest E 4 credi&le witnesses, who do not need to &e the attestin witnesses, must clearl# esta&lishC 1! 4! The due e<ecution and formal validit# of the will The e<istence of the will at the time of the death of the testator or its fraudulent or accidental destruction in the lifetime of the testator and without his 'nowled e The provisions of said will!

@!

68
c) If contested E all the su&scri&in witnesses and the notar# pu&lic who must testif# on the facts mentioned a&ove!

This applies onl# to a lost or destro#ed notarial will and not to a holo raphic will! ( lost or destro#ed holo raphic will cannot &e proved &# the &are testimon# of witnesses who have seen and9 or read such will as the pro&ate thereof requires identification of the handwritin and si nature of the testator ()ection B, 11 and 14, -ule 3G), presupposin the availa&ilit# of the holo raphic will in court! The )upreme Court however, intimated that perhaps it ma# &e proved &# photostatic, photo raphic or car&on copies! (efore the

What are the requ reme!ts d str (ut o! of the $ro$ert es% 1! 4! @!

There must &e a decree of partition allocatin propert# to each heir$ Then pa#ment of the estate ta<$ and 7inall#, the distri&utive shares ma# &e delivered!

Ho# s a $ro(ate $roceed !" term !ated% 1! 4! @! ,pon approval of the pro%ect of partition$ The rantin of the petition to close the proceedin s$ and The consequent issuance of the orders of distri&ution directin the deliver# of the properties to the heirs in accordance with the ad%udication made in the will!

What e) de!ce are !ecessar& for the a''o#a!ce of # ''s #h ch ha)e (ee! $ro(ated outs de of the Ph ' $$ !es% 1! 4! @! The due e<ecution of the will in accordance with the forei n laws$ That the testator has his domicile in the forei n countr#, and not in the Philippines$ That the will has &een admitted to pro&ate in such countr#$

69
A! B! The fact that he forei n tri&unal is a pro&ate court$ and The laws of a forei n countr# on procedure and allowance of wills! What s the effect of the a''o#a!ce of a # ''% )u&%ect to the ri ht of appeal, the allowance of the will, either durin the lifetime of the testator or after his death, shall &e conclusive as to its due e<ecution! PERTINENT PROVISIONS -,L* 3B

)ection 1 E 2o will shall pass real or personal estate unless it is proved and allowed in the proper court! )u&%ect to the ri ht of appeal, such allowance of the will shall &e conclusive as to its due e<ecution! -,L* 3G

)ection B E I I I I If no person appears to contest the allowance, the court ma# rant allowance thereof on the testimon# of one of the su&scri&in witness onl#, if such witness will testif# that the will was e<ecuted as is required &# law! In the case of a holo raphic will, it shall &e necessar# that at least one witness who 'nows the handwritin and si nature of the testator e<plicitl# declare that the will and the si nature are in the handwritin if the testator! In the a&sence if an# such competent witness, and if the court deem it necessar#, e<pert testimon# ma# &e resorted to! )ection 11 E If the will is contested, all the su&scri&in witnesses and the notar# pu&lic in the case of wills e<ecuted under the Civil Code of the Philippines, if present in the Philippines and not insane, must &e produced and e<amined, and the death, a&sence, or insanit# of an# of them must &e satisfactoril# shown to the court! If all or some of such witnesses are present in the Philippines &ut outside the province where the will has &een filed, their deposition ma# &e ta'en! If an# or all of them testif# a ainst the due e<ecution of the will, or do not remem&er havin attested to it, or are

70
otherwise of dou&tful credi&ilit#, the will ma#, nevertheless, &e allowed if the court is satisfied from the testimon# of other witnesses and from all the evidence presented that the will was e<ecuted and attested in the manner required &# law! If a holo raphic will is contested, the same shall &e allowed if at least @ witnesses who 'now the handwritin and si nature of the testator e<plicitl# declare that the will and the si nature are in the handwritin of the testator, in the a&sence of an# competent witness, and if the court deem it necessar#, e<pert testimon# ma# &e resorted to! )ection 14 E /here the testator himself petitions for the pro&ate of his holo raphic will and no contest is filed, the fact that he affirms that the holo raphic will and the si nature are in own handwritin , shall &e sufficient evidence of the enuineness and due e<ecution thereof! If the holo raphic is contested, the &urden of disprovin the enuineness and due e<ecution thereof shall &e on the contestant! The testator ma#, in his turn, present such additional proof as ma# &e necessar# to re&ut the evidence for the contestant! # ''% 1! 4! @! A! B! G! 3! What are the "rou!ds for the d sa''o#a!ce of a If the formalities required &# law have not &een complied with$ If the testator was insane, or otherwise mentall# incapa&le of ma'in a will, at the time of its e<ecution$ If the will was e<ecuted throu h force or duress, or under the influence of fear, or threats$ If it was procured &# undue and improper pressure and influence on the part of the &eneficiar# or some other person$ If the si nature of the testator was procured throu h fraud$ If the testator acted &# mista'e or did not intend that the instrument he si ned should &e his will at the time of affi<in his si nature thereto$ and If the will was e<pressl# revo'ed ((rticle >@?)!

2oteC The rounds are e<clusive (A:ero vs. CA, BR No. )#0"*#, Septem3er )1, )..+)!

71

What s the d ffere!ce (et#ee! the =th a!d 8th "rou!d% ,nder the Bth round, the testator is aware that he is si nin a will &ut was tric'ed into si nin said will, that is, that althou h the testator 'nows it is a will, the contents thereof are not accordin to his wishes and he would not have si ned the will were it not for the fraud emplo#ed on hi! The Gth round, on the other hand, contemplates the situation where the testator did not intend to si n a will &ut some other document as happens when, for e<ample, the testator &elieves he is si nin a promissor# note or a contract &ut in lieu thereof, a will is su&stituted! There is no intent, therefore, to ma'e or si n a will &ut some other document under the Gth round! SECTION :- + INSTITUTION OF HEIR What s !st tut o! of he rs% Institution of heirs is one where the testator desi nates in his will the person or persons to succeed him in his propert# and transmissi&le ri hts and o&li ations! ((rticle >A=) This simpl# means the desi nation of the testator in his will of the person or persons who are oin to succeed him in his propert# and transmissi&le ri hts and o&li ations! G )e the ru'es o! !st tut o! of he rs1. :ein a voluntar# heir of the testator, it cannot affect the le itime, otherwise, the compulsor# heirs would &e undul# pre%udiced$ It is applica&le onl# in testate succession$ It affects onl# the free portion! ( conceived child ma# &e instituted if the conditions in (rticles A= and A1 are present! ((rt! 1=4B)

2. 3. 4.

What are the restr ct o!s m$osed (& 'a# u$o! the $o#er of the testator to d s$ose of h s $ro$ert&%

72
a! Lia&ilit# of estate for testatorHs o&li ations E 0is estate is lia&le for all le al o&li ations incurred &# him! This restriction ta'es precedence over the ri ht of compulsor# heirs to their le itime! -i ht of compulsor# heirs to their le itime E The testator cannot dispose of or encum&er the le al portion due to his compulsor# heirs &# force of law!

&!

What s the e*te!t of the freedom of d s$os t o! of the testator% The testator is free to dispose of the /ree portion of his estate to an#one who is qualified to succeed! The /ree portion is the remainder of the estate after all the le itimes of the compulsor# heirs had &een satisfied! Co!ce$t of com$u'sor& or forced he rs0 The# are those for whom le itimes are reserved and the# succeed to the inheritance re ardless of the wishes of the testator and cannot &e deprived of their le itimes e<cept &# valid disinheritance! Compulsor# heirs are not however compelled to accept their le itimes &ecause the# ma# re%ect them! The# are called compulsor# &ecause the# could not &e disre arded &# the decedent! Their le itimes are forced, so to spea', a ainst the estate! G= Co!ce$t of 'e" t me0
60

(rticle >>3 enumerates the compulsor# heirs E 1! Le itimate children and descendants, with respect to their le itimate parents and ascendants$ 4! In default of the fore oin , le itimate parents and ascendants, with respect to their le itimate children and descendants$ @! The widow or widower$ A! (c'nowled ed natural children, and natural children &# le al fiction$ B! Other ille itimate children referred to in (rticle 4>3$ Compulsor# heirs mentioned in 2os! @, A and B are not e<cluded &# those in 2os! 1 and 4$ neither do the# e<clude one another!

73
Le itime is that part of the testatorHs propert# which he cannot dispose of &ecause the law has reserved it for certain heirs whom he cannot disre ard 'nown as compulsor# or forced heirs! Onl# compulsor# or forced question the institution! heirs can

?a& a! u!(or! ch 'd (e !st tuted as a! he r% It depends! ( child alread# conceived at the time of death of the decedent is capa&le of succeedin $ provi2e2, it &e &orn later under the condition prescri&ed in (rticle A1 of the Code G1 ((rticle 1=4B, second para raph)! Otherwise, the institution is void &ecause the foetus did not &ecome a person! What f the testator #a!ts to d s$ose a'' h s $ro$ert es o!erous'& dur !" h s ' fet me2 ca! he do so e)e! f he has com$u'sor& he rs% What are the character st cs of a! he r% 1! 0e is a testamentar# heir as distin uished from a le al or intestate heir! 0e is also different from a devisee or le atee! 0e continues the %uridical personalit# of the testator &ut onl# in relation to the inheritance without &ein personall# lia&le for the testatorHs de&ts! 0e is a natural person ((rt! A= to A4), even if onl# a conceived child, &ut not a child not #et conceived! 0owever, testamentar# dispositions ma# &e made in favor of a %uridical person, e<cept those not permitted &# law to succeed! 0e acquires ri hts which are limited to the disposa&le portion of the inheritance !st tuted

4!

@!

A!

61

(rticle A1! 7or civil purposes, the foetus is considered &orn if it is alive at the time it is completel# delivered from the motherHs wom&! 0owever, if the foetus had an intra;uterine life of less than seven months, it is not deemed &orn if it dies within twent# four hours after its complete deliver# from the maternal wom&!

74
and cannot impair that portion 'nown as le itime! 0e is presumed to have &een instituted, where there are several heirs, equall#, individuall# and simultaneousl# with the others, unless the contrar# intention appears!

B!

he rs%

?a& a # '' (e )a' d e)e! f t does !ot !st tute

.es! ( will shall &e valid even thou h (1) it should not contain an institution of an heir, or (4) such institution should not comprise the entire estate, and even thou h (@) the person so instituted should not accept the inheritance or (A) should &e incapacitated to succeed! ((rt! >A4, par 1) If the desi nated heir repudiates the inheritance or is incapacitated, the inheritance will devolve &# accretion on the qualified heirs, if an# ((rticle 1=1G)! In le al succession, the share of the person who repudiates the inheritance shall alwa#s accrue to his co;heirs ((rticle 1=1>)!

If a # '' does !ot !st tute a! he r2 s there a !eed to $ro(ate the # ''% 2o, e<ceptC a! &! c! /hen the will reco niJes an ille itimate child$ /hen it disinherits a compulsor# heir$ /hen it instituted an e<ecutor!

What are the requ s tes ! "e!era' for a )a' d a!d effect )e !st tut o! of he rs% 1! 4! @! A! That the testator has the capacit# to ma'e the institution$ That in ma'in the institution of heir the testator is not su&%ected to an# vice that vitiates consent$ That the institution is made in a will$ That the institution is made personall# &# the testator without leavin it to the will or discretion of a third person$

75
B! That the person instituted is identified or identifia&le in the will with sufficient clarit# to leave no dou&t as to the testatorHs intention, since the institution of an un'nown heir is void$ That there &e no preterition of a compulsor# heir in the direct line! State the ru'es ! the des "!at o! of the he rs1! 4! @! The testator shall desi nate the heir &# name and surname$ /hen there are two or more persons havin the same names, he shall indicate some circumstances &# which the instituted heir ma# &e 'nown$ *ven thou h the testator ma# have omitted the name of the heir, should he desi nate him in such a manner that there can &e no dou&t as to who has &een instituted, the institution shall &e valid ((rt! >A@) (n error in the name, surname or circumstances of the heir shall not vitiate the institution when it is possi&le, in an# other manner, to 'now with certaint# the person instituted$ If amon persons havin the same names and surnames, there is a similarit# of circumstance in such a wa# that even with the use of other proof, the person instituted cannot &e identified$ none of them shall &e an heir! ((rt! >AA)$ Disposition in favor of an un'nown person shall &e void, unless &# some event or circumstance his identit# &ecomes certain! ((rt! >AB)$ ( disposition in favor of a definite class or roup shall &e valid! ((rt! >AB, par 4)$ The desi nation of name and surname is director#! /hat is required is that the identit# of the desi nated successor &e sufficientl# esta&lished! If there is am&i uit# in the desi nation, the am&i uit# should &e resolved in accordance with (rt! 3>?! Ho# much ca! (e d s$osed of (& # ''% 1! 4! If the testator leaves no compulsor# heirs E the entire estate! If the testator leaves compulsor# heirs E the disposa&le portion, that is, the net hereditar# estate minus the le itime!

G!

A!

B!

G! 3! >!

76
2oteC The amount of the le itmes depends on the 'inds and num&er of compulsor# heirs! 6arious com&inations are possi&le! Consequentl#, the amount of the disposa&le portion is also varia&le!

What s the effect of om ss o! of the !ame of the he rs% If &# inadvertence or for an# reason the name of the heir desi nated is omitted in the institution, &ut nevertheless he is descri&ed in such a manner that there is no dou&t as to the identit# of the said heir, the institution is valid! What s the effect of error c rcumsta!ces of the he r% ! the !ame or

*rrors in the spellin of the name, surname or in the circumstances of the heir shall not invalidate the institution when the identit# of the heir desi nated could still &e ascertained in some other manner! Ho# s the testatorDs am( "u t& ascerta !ed% 1! 4! @! !te!t o! ! case of

:# e<aminin the will itself$ The e<trinsic or parol evidence of the testator$ Testimonial evidence e<cludin the oral declarations of the testator is inadmissi&le! adm ss ('e to

Ca! e*tr !s c e) de!ce (e determ !e the de!t t& of the he r%

Imperfect description ma# &e corrected &# e<trinsic evidence &ut not the testimon# re ardin the oral declaration of the testator! What s the effect of am( "u t& resu't !" ! the !o!+ de!t f cat o! of the he r% If there is dou&t and am&i uit# on the identit# of the person instituted as heir &# reason of the fact that there are persons of similar names, surnames and similarit# of circumstances, none of them shall inherit! What s the effect of a!& d s$os t o! ! fa)or of a! u!>!o#! $erso!%

77

The disposition is void and ineffectual E unless &# some event or circumstance his identit# &ecomes certain! This event or circumstance can happen in the future or after the death of the testator! Ca! the testator " )e h s e!t re free $ort o! to a $erso! he does !ot $erso!a''& >!o#% .es, the un'nown person referred to in (rticle >AB refers to one who cannot &e identified and not to one whom the testator does not personall# 'now! The &asis of the nullit# is the incapa&ilit# of determination of the intention of the testator! Is the des "!at o! )a' d f the de!t t& s !ot >!o#! at the t me of ma> !" of the # ''% .es, provided the said identit# can &e 'nown in the future &# some circumstance! Ho#% :# esta&lishin certain criteria at the proper time, e.&. D7irst 7ilipino who wins a old medal in the Ol#mpicsF! What are the ' m tat o!s of the ru'e that a! he r ma& (e )a' d'& !st tuted f (& some future e)e!t h s de!t t& ma& (e >!o#!% 1! /here the determination of the heir is dele ated to another, the disposition is void under (rticle 3>B$ thus, the testator cannot validl# provide DI here&# institute as m# heir the person whom m# &rother Luan ma# desi nate!F /here the instituted heir when identified does not have the capacit# to succeed at the time of the death of the testator, the disposition is void under (rticle 1=4B$ thus if the testator provides, DI institute as m# heir the first child of m# &rother LuanF and the said child is conceived and &orn after the death of the testator! What are the c'asses or "rou$s #ho ca! (e !st tuted as he rs% 1! 4! (rticle >A> E :rothers and sisters, some of the full &lood, others half &lood$ (rticle >A? E ( person and his children$

4!

78
@! A! (rticle ?B? ; The testatorHs relative (nearest in de ree)$ (rticle 1=@= E The poor in eneral livin in the domicile of the testator or the poor in a definite localit#!

The testator $ro) des0 @I " )e 6J< of m& estate to A2 5 a!d C- C s a c'ass of $eo$'e- Ho# do &ou d ) de the estate% It is not to &e interpreted as 19@ to (, : and class C! -ather, the 19@ of the estate should &e divided equall# amon (, : and the mem&ers of class c! /h#N :ecause the presumption is that the mem&ers of C were individuall# desi nated! If the testator sa&s2 @I " )e 6J< of m& estate to A2 5 a!d c'ass C as a u! t2 the! 6J< # '' (e d ) ded equa''& amo!" A2 5 a!d c'ass CIf it is not possi&le to resolve the am&i uit#, the testatorHs intent &ecomes indetermina&le and, therefore, intestac# as to that portion will result! If there are se)era' he rs #ho #ere !st tuted (ut there s !o des "!at o! of the r res$ect )e shares2 #hat ru'e sha'' a$$'&% Institution of heirs without desi nation of shares shall effect in the heirs inheritin in equal parts! (9elen vs. 9PI, LC )++"#, O-t. ,), ).0#) There is, however an e<ception to the rule! If of the persons instituted, one is a compulsor# heir, the rule would not appl#! The le itime of that heir has to &e removed first$ otherwise, he would &e undul# pre%udiced! This article will appl# onl# in testamentar# succession, that is to sa#, onl# amon testamentar# heirs! It will not appl# to an heir who is &oth a compulsor# and a testamentar# heir, for in that case the heir will et his le itime and his testamentar# portion! This presumption should not &e interpreted in an a&solute manner &ut should &e limited to the cases where all the heirs are of the same class or %uridical condition so that, in case the testator should

79
institute one who is a compulsor# heir and another a voluntar# one without desi natin the portion which each one ma# receive, the share of &oth shall not &e the same &ecause the compulsor# heir shall first &e entitled to what corresponds to him as a le itime, and then the &alance shall &e divided &# him and the voluntar# heir in equal portions! A !st tuted 52 h s fr e!d2 a!d the 'atterDs ch 'dre! C a!d ,- State the ru'e/hen the testator calls to the succession a person and his children, the# are all deemed to have &een instituted simultaneousl# and not successivel#! ((rt! >A?)

The word descendants includes children and randchildren! The# succeed per -apita (per person), and not per stirpes (&# roups)!

What are the "o)er! !" $r !c $'es ! !st tut o! of he rs% 1! 4! @! *qualit# E the heirs instituted without desi nation of shares inherit in equal parts! Individualit# E the presumption is that heirs collectivel# desi nated are considered individuall# instituted unless the contrar# appears! )imultaneit# E The presumption is that several heirs are instituted simultaneousl# and not successivel# unless the contrar# appears!

A had < 'e" t mate ch 'dre! 52 C2 a!d ,- ,2 ho#e)er d ed ! :9992 sur) )ed (& : 'e" t mate ch 'dre!2 E a!d F- A d ed ! :99: # th a # ''- I! the # '' he made the fo''o# !" !st tut o! of he rs0 @I des "!ate as m& he rs 5 a!d C2 a!d the ch 'dre! of ,-A The !et rema !der or res due of the estate of A s P6:92 999-99Ho# sha'' the d str (ut o! (e made% There are 4 provisions of the Civil Code, which must &e applied, (rticles >AG and >A3! /here there are compulsor# heirs amon the heirs instituted, or where all of them are compulsor# heirs, the provision of (rt! >AG should &e applied onl# to the free or disposa&le portion! Consequentl#, the distri&ution shall &e made as followsC

80
7irst, satisf# the le itime of :, C, * and 7! : and C shall &e entitled to 4=, ===!== each in their own ri ht, while * and 7 shall &e entitled to 1=, ===!== each &# representation! Then the free portion of G=, === shall &e divided amon all of them in equal parts in accordance with (rt! >AG! Therefore, the shares of each will &eC : E @B, ===! C E @B, === * E 4B, === 7 E 4B, === 7or mass institution, see (rticles 3>G, >A@ (&rothers and sisters), >A? (desi nation of a person and his children), 1=4? (pra#ers and pious wor's for the &enefit of his soul), and 1=@= (poor)!

1 # thout a!& com$u'sor& he rs e*ecuted a # '' a!d "a)e a'' h s $ro$ert es to 32 a fr e!d- Is the # '' )a' d% .es, &ecause one who has no compulsor# heirs ma# dispose &# will of all his estate or an# part of it in favor of an# person havin capacit# to succeed! ((rticle >A4, par! 1) State the effect f a testator !st tuted h s (rothers a!d s sters of the fu'' a!d ha'f ('oodThe inheritance shall &e distri&uted equall#, unless a different intention appears! ((rticle >A>) Note0 a! In testamentar# succession E equalit# of shares of full and half &lood &rothers and sisters, unless the testator provides otherwise! In intestac# E proportion of 4C1 &etween full and half &lood &rothers and sisters ((rticle 1==G), and onl# if the qualification in (rticle ??4 does not appl#! ((rticle ??4 E (n ille itimate child has no ri ht to inherit a3 intestato from the le itimate children and relatives of his father or mother, nor shall such children or relatives inherit in the same manner from the ille itimate child!)

b.

81
,oes Art c'e GEG a$$'& e)e! to ''e" t mate (rothers a!d s sters ! cases #here the testator s of 'e" t mate status a!d ) ce )ersa% .es, &ecause (rticle >A> ma'es no distinction! 1 !st tuted the fo''o# !" as h s he rs0 H s fu'' (rother2 h s ha'f (rother2 h s ste$(rother2 h s (rother ! 'a# a!d h s ''e" t mate (rother- Ho# much # '' each "et f the estate s :92 999% *ach ets 4=, ===! /hile the law mentions onl# full and the half;&rother, it is evident that the others ma# &e considered in the same cate or# as stran ers, ma'in (rticle >AG applica&le! State the effect of a stateme!t of a fa'se cause ! the !st tut o! of he rsIt shall &e considered as not written, unless it appears from the will that the testator would not have made such institution if he had 'nown the falsit# of such cause! ((rticle >B=)

( false cause refers to the erroneo%s reason for the institution of an heir! Note0

The eneral rule E The falsit# of the stated cause for the testamentar# institution does not affect the validit# or efficac# of the institution! -easonC Testamentar# dispositions are ultimatel# &ased on li&eralit#! *<ception E The falsit# of the stated cause for institution will set aside the institution, if certain factors are present! 5efore the !st tut o! of he rs ma& (e a!!u''ed u!der Art c'e G=92 #hat are the requ s tes that must co!cur% 1! 4! The cause for the institution of heirs must &e stated in the will$ The cause must &e shown to &e false$ It must appear from the face of the will that the testator would not have made such institution of he

3.

82
had 'nown the falsit# of the cause! (A%stria vs. Reyes, ,) SCRA "1+) Note0 This article does not restrict the operation of (rticle 1=4> in relation to (rticle 3@? declarin void certain testamentar# dispositions, &e reason of pu&lic polic#! The annullin factor in those 4 articles is not falsit# &ut ille alit#! A s the ta''est ! the c'ass- I " )e h m K of m& estate- If A s !ot the ta''est2 s the !st tut o! !effect )e% 2o, follow the eneral rule &ecause the real cause was not the hei ht &ut the li&eralit# of the testator! If I institute m# &rother I as m# heir &ecause he saved m# sonHs life, the falsit# of this cause will &e merel# incidental and will not vitiate the institution of I since the fundamental reason for the institution is his &lood relationship to me! :ut if in the a&ove e<ample, I should &e a total stran er, then the fact that he did not save m# sonHs life would annul his institution &ecause there would &e no reason for m# institutin a total stran er as m# heir were it not for the fact that he saved m# sonHs life! What s the effect f the cause s co!trar& to

'a#%

The same will not &e considered as written %nless such ille al cause appears to &e the sole reason for the institution of the heir! 1 !st tutes 3 (ecause he #a!ts h m to > '' 4- Is the !st tut o! )a' d% 2o, it is void since the real motive is ille al! 1 !st tutes 3 (ecause dur !" the 'ast e'ect o!2 he #as a f'& !" )oter- Is the !st tut o! )a' d% .es, &ecause the real motive here is enerosit#, li&eralit# or affection and the ille al cause is onl# incidental! I! Art c'es G=: a!d G=<2 #hat are the requ s tes ! order that the sa d art c'es # '' a$$'&%

83
1! 4! @! A! There are more than one instituted heir$ The testator intended them to et the whole estate or the whole disposa&le portion, as the case ma# &e$ The testator has desi nated a definite portion for each heir$ The total of portions is less or more than the whole estate or free portion as the case ma# &e!

Note0 In (rticle >B4, the total of all the portions is less than the whole estate or the whole disposa&le portion! Therefore, a proportionate increase is necessar#! The difference cannot pass &# intestac# &ecause the intention is clear to ive the instituted heirs the entire amount! In (rticle >B@, the reverse occurs! The total e<ceeds the whole estate or the whole disposa&le portion! Thus a proportionate reduction must &e made! A$$' cat o!0 6The )a'ue of the estate of T s P62 :992 999- He s$ec f ca''& $ro) des ! h s # '' that a s$ec f c car )a'ued at :992 999 "oes to AI a s$ec f c $arce' of 'a!d #orth <992 999 to 5I a!d a'' the other $ro$ert es to C- Ho# # '' the estate (e d ) ded% ( ets the car plus 4==, ===$ : land plus @==, === and C ets 3==, === :ets the

T !st tutes 12 3 a!d 4 as h s so'e he rs " ) !" each of them a! a' quot $art of h s estate of <892 999 as fo''o#s0 I; 19@ (P14=, ===) .; K (P?=, ===) +; 19G (PG=, ===) P43=, === :alanceC P?=, === will &e distri&uted as followsC 14943 < ?=, === Q P A=, === ?943 < ?=, === Q P@=, === G943 < ?=, === Q P4=, === P?=, ===

<-

Su$$ose ! the $reced !" e*am$'e2 the a' quot $arts " )e! to 12 3 a!d 4 are as fo''o#s0

84

1+ K .6G92 999/ 3+ 6J< .6:92 999/ 4+ L .792 999/ <792 999 E*cess0 <92 999 I E 1>9@? < @=, === Q P1@, >AG . E 149@? < @=, === Q P ?, 4@1 + E ?9@? < @=, === Q P G, ?4@ P @=, === EThe testator has !o com$u'sor& he rs- He !d cates ! the # '' h s !te!t o! to " )e h s e!t re estate to h s he rs- He " )es L to A2 6J8 to 5 a!d 6J< to C- The estate s #orth 6:92 9992 therefore2 A "ets <92 9992 5 "ets :92 999 a!d C "ets E92 999-99 or a tota' of 792 999- S !ce the estate s 6:92 9992 #hat # '' &ou do # th the rema ! !" <92 999% a! 5et the least common denominatorC 14! (Q @914 :Q 4914 CQA914 &! 5et the ratio of the shares with each other! ((@) C :(4) C C(A) @R4RAQ? c! "ultipl# the remainder (@=, ===) &# the share of each heir with respect to the ratio in (&)! 7or ($ @9? < @=, === Q 1=, ===! (@ < @=, === Q ?=, === 9 ? Q 1=, ===!) 7or :C 49? < @=, === Q G, GGG!G3 (4 < @=, === Q G=, === 9 ? Q G, GGG!G3) 7or CC A9? < @=, === Q 1@!@@@!@@ (A < @=, === Q 14=, === 9 ? Q 1@, @@@!@@)

85
d! (dd the result to what the# ori inall# received and the sum will complete their inheritance! 7or (C @=, === R 1=, === Q A=, === 7or &C 4=, === R G, GGG!G3 Q 4G, GGG!G3 7or CC A=, === R 1@, @@@!@@ Q B@, @@@!@@ e! (dd #our fi ures in (d) to ma'e sure that it equals to the value of the entire estate (To ma'e sure that #ou did not ma'e a mista'e) A=, === R 4G, GGG!G3 R B@, @@@!@@ R 14=, ===! f! If #ou want to et the inheritance of each ri ht awa#, multipl# the ratio in (c) with the value of the whole estate! 7or (C @9? < 14=, === Q A=, ===! 7or :C 49? < 14=, === Q 4G, GGG!G3 7or CC A9? < 14=, === Q B@, @@@!@@ .ou faster! =et the same result &ut

If A !st tutes as h s so'e he rs 12 3 a!d 42 1 to L a!d 3 to L a!d 4 to 6J< of the estate a!d the tota' estate s 6:2 9992 the! accord !" to the d s$os t o!2 1 # '' rece )e <2 9992 3 <2 999 a!d 4 E2 999 there(& 'ea) !" a (a'a!ce of :2 999 u!d s$osed of- Th s (a'a!ce # '' (e " )e! to the he rs $ro$ort o!a''&- 12 therefore2 # '' "et furthermore <J69 * :2 999 or 8992 3 # '' "et the same a!d 4 # '' ha)e EJ69 * :2999 or G992 thus 1 # '' "et a tota' of <2 8992 3 <2 899 a!d 4 E2 G99 or a tota' of 6:2 999-

86
8The testator has !o com$u'sor& he rs- He !d cates ! the # '' h s !te!t o! to " )e h s e!t re estate to h s he rs- He " )es K to A2 6J< to 5 a!d 6JE to C- The estate s #orth <92 9992 therefore2 A "ets 6=2 9992 5 "ets 692 999 a!d C "ets H2 =99 or a tota' of <:2 =99 S !ce the estate s <92 9992 #hat # '' &ou do # th the e*cess of :2 =99% 1. 5et the least denominatorC 14 ( Q G914 : Q A914 C Q @914 2. 5et the ratio of the shares with each other! ((G) C :(A) C C(@) G R A R @ Q 1@ 3. "ultipl# the e<cess &# the share of each heir in the ration in (ii)! 7or (C G91@ < 4, B== Q 1, 1B@!>A 7or :C A91@ < 4, B== Q 3G?!4@ 7or CC @91@ < 4, B== Q B3G!?@ 4. )u&tract the results in (iii) from what each heir was to receive initiall#! 7or (C 1B, === E 1, 1B@!>A Q 1@, >AG!1G 7or :C 1=, === E 3G?!4@ Q ?, 4@=!33 7or CC 3, B== E B3G!?@ Q G, ?4@!=3 common

87
5. (dd the fi ures in (iv) to ma'e sure it equals to the value of the whole estate! 1@, >AG!1G R ?, 4@=!33 R G, ?4@!=3 Q @=, ===! If #ou want to et the inheritance of each ri ht awa#, multipl# the ratio in (iii ) &# the value of the estate! 7or (C G91@ < @=, === Q 1@, >AG!1G 7or :C A91@ < @=, === Q ?, 4@=!33 7or CC @91@ < @=, === Q G, ?4@!=3 HIf the testator has !st tuted as he rs2 12 3 a!d 4 a!d he " )es 1 K2 to 3 6J< a!d 4 a!other 6J< a!d the estate or the a)a 'a('e free $ort o! amou!ts to 6:2 9992 the! ! that case2 1 shou'd "et 82 9992 3 E2 999 a!d 4 E2 999 #h ch # '' tota' 6E2 999 or more tha! the estate a)a 'a('eThe e*cess s :2 999- Th s sha'' (e d ) ded $ro$ort o!a''& amo!" the he rs- Thus2 s !ce 1 "ets K or <J82 3 6J< or :J8 a!d 4 a!other 6J< or :J82 the $ro$ort o! s <0:0:- Therefore2 1Ds share ! the :2 999 sha'' (e <JH2 3Ds share # '' (e :JH a!d 4Ds share # '' a'so (e :JH or * # '' "et G=H-6E :JH2 3 # '' "et =H6-E: 8JH a!d 4 =H6-E: 8JH- These amou!ts sha'' (e deducted from that #h ch the& ou"ht to rece )e-

6.

What s $reter t o! a!d ts effects% Preterition or omission of one, some or all of the compulsor# heirs in the direct line, whether livin at the time of the e<ecution of the will or &orn after the death of the testator, shall annul the institution of heir! Devises and le acies are valid insofar as the# are not inoficious! ((rticle >BA) What are the three > !ds of $reter t o!% 1! Preterition or omission of a compulsor# heir in the direct line covered &# (rticle >BA$

88
4! @! Preterition or omission of a propert#, o&%ects or securities in the pro%ect of partition covered &# (rticle 11=@$ Preterition or omission of an heir in the pro%ect of partition su&mitted to the court for approval covered &# article 11=A!

What are the requ s tes of $reter t o!%

1.
4! @!

The heir omitted must &e a compulsor# heir in the direct line (le itimate, ille itimate and adopted children included) The omission from the inheritance must &e total and complete in character$ The compulsor# heir omitted should survive the testator, or there is a ri ht of representation! The law considers as preterition the omission of a compulsor# heir in the direct line, whether livin at the time of the e<ecution of the will or &orn after the death of the testator! (lso evidentl# included are those &orn after the e<ecution of the will and &efore the death of the testator so lon as the# are alive at the time of the death of the testator! 0owever, should the compulsor# heir predecease the testator, Dthe institution shall &e effectualH i!e!, it is the same as if there had &een no preterition! :ut if the preterited heir has le itimate children and descendants who have preferential ri ht of succession &# ri ht of representation ((rticle ?3=), the institution will &e annulled, %ust the same i!e!, preterition will still result notwithstandin that the preterited heir died &efore the testator! )hould the compulsor# heirs omitted, however predecease the testator, there is no preterition unless there is a ri ht of representation in which case preterition will still result notwithstandin the predecease of said compulsor# heir!

Where s there !o om ss o!0

89
1! If the heir in question is instituted in the will &ut the portion iven to him &# the will is less than his le itime inasmuch as the heir received somethin from the inheritance! The heirHs remed# is not found on (rticle >BA &ut in (rticles ?=G and ?=3 for the completion of their le itime! If the heir is iven a le ac# or devise! )hould the value of the le ac# or devise &e less than the recipientHs le itime, his remed# is for completion of his le itime under (rticles ?=G and ?=3! If the heir had received a donation inter vivos from the testator E the donation inter vivos is treated as an advance on the le itime under (rticles ?=G, ?=?, ?1= and 1=G4! If the heir is not mentioned in the will nor was a recipient of a donation inter vivos from the testator, &ut not all of the estate is disposed of &# will! The omitted heir in this instance would receive somethin &# intestac#, from the portion not disposed of &# will! The ri ht of the heir, should the vacant portion &e less than his le itime, will simpl# to demand completion of his le itime under (rticle ?=G and ?=3!

4!

3.

A!

NOTE0 7or there to &e preterition, there, the heir in question must have received nothin from the testator &# wa# ofC a! &! Testamentar# succession, Le ac# or devise, Donation inter vivos, or propter n%ptials, Intestac#!

c.
d!

Preterition means total omission in the inheritance! )ummariJin therefore, total omission means that the omitted compulsor# heir receives nothin under the will, whether as heir, le atee or devisee, has received nothin &# wa# of donation intervivos or propter n%ptials, and will receive nothin &# wa# of intestate succession! What are the effects of $reter t o!% 1! The institution of heirs is annulled, that is, &# force or operation of law$

90
4! @! The devises and le acies shall &e valid, unless inofficious$ this simpl# means the# are reduci&le to preserve the affected le itimes$ If the compulsor# heirs would predecease the testator, the institution of heir shall &e effectual, &ut the omitted heir would &e represented &# his heirs, when representation is proper!

Other effects0 1! 4! If the omitted heir is not in the direct line (li'e a spouse), onl# his le itime is iven to him and the institution of heir is annulled up to that e<tent onl#! (s intestac# results, the previous appointment of the e<ecutor is rendered moot and academic! The appointment of an administrator &ecomes necessar#! Who are art c'e% 1! 4! Compulsor# heirs in the or descendants, and in children or descendants, Ille itimate descendants direct line E covers children proper cases, in default of parents or ascendants$ or ascendants$ !c'uded # th ! the term of the

3.

I%asiCpost!%mos children!

There is a flaw in the wordin of the (rticle! The phrase Dwhether livin at the time of the e<ecution of the will or &orn after the death of the testatorF does not, &# its terms, include those compulsor# heirs in the direct line &orn after the e<ecution of the will &ut &efore the testatorHs death (los -%asi post%mos) )uch children are, without dou&t, to &e included within the purview of the protection of this (rticle! This ap is merel# the result of careless draftin (accordin to "anresa)

A!

(dopted children! &ou i! d st !"u sh $reter t o! from

Ho# do d s !her ta!ce%

Preterition ma# &e intentional &ut is presumed to &e involuntar#,

91
while disinheritance voluntar#! ii! is alwa#s

In preterition, the law presumes that there has &een merel# some mista'es or oversi ht, while in disinheritance, there is some le al cause or reason! In preterition, the nullit# of the institution is total resultin in intestac#, savin devises and le acies, while in disinheritance, the nullit# is partial, i!e! not onl# insofar as it ma# pre%udice the heir disinherited! In preterition, the omitted compulsor# heir ets his share from the entire estate, i!e! not onl# his share of the le itime &ut also of the free portion not disposed of &# wa# of devises and le acies, while in disinheritance, if valid, the compulsor# heir is e<cluded from the inheritance and if defective, the compulsor# heir is merel# restored to his le itime, and testamentar# dispositions which are inofficious reduced! In pretertion, a compulsor# heir in the direct line is omitted, while in disinheritance, an# compulsor# heir ma# &e disinherited thou h not in the direct line! The e<press deprivation of the le itime constitutes disinheritance! The tacit deprivation of the same is called preterition! This is not to sa# however, that disinheritance and preterition are the same! Disinheritance consists precisel# in the

iii!

iv!

v!

92
deprivation of a compulsor# heir of his le itime &# virtue of a %ust cause provided for &# law, and since disinheritance is alwa#s e<press, it is alwa#s voluntar#! Preterition, on the other hand, is the omission of an heir in the will! Consequentl#, preterition ma# also &e voluntar# &ut the law presumes that it is voluntar# A$$' cat o!0 6I! h s # ''2 1 stated0 @I !st tuted m& : ch 'dre! A a!d 5 as m& so'e he rs to m& e!t re estate2 a!d to C2 m& other ch 'd2 I " )e !oth !"- Is there $reter t o! here% There is disinheritance ((rticle ?1>), not preterition! 0ere I ma'es it 'nown that he reall# had no intention to ive an# part of his estate to C! If the disinheritance is improper, C can still et his le itime! The institution of ( and : remains valid!

2.

1 !st tutes h s so!s A a!d 52 a!d a fr e!d CH s <rd so! , #as om tted- If the e!t re estate s 792 999-992 ho# shou'd h s estate (e d str (uted% )ince the institution is annulled, it is as if there was no institution, hence, intestate succession ta'es place! (, : and D will et ?=, ===! C, the friend ets nothin !

<-

1 had : so!s2 A a!d 5- I! 1Ds # ''2 he "a)e C a fr e!d a 'e"ac& of 692 999 out of a! estate of 6992 999- A a!d 5 #ere om tted- Ho# shou'd the estate o! 1Ds death (e d str (uted% )ince the estate is worth 1==, ===, the free portion is B=, ===! Therefore, the le ac# of 1=, === is not inofficious and should remain effective! The

93
remainin ?=, === should &etween the 4 estate! E&e divided equall#

1 had : 'e" t mate so!s A a!d 5- I! 1Ds # ''2 he "a)e a fr e!d C a 'e"ac& of 692 999- He a'so !st tuted A as he r a!d de' (erate'& om tted 5If the estate s 6992 9992 ho# shou'd the estate (e d str (uted o! 1Ds death% In view of the preterition, the institution of ( is not valid, &ut the le ac# is effective for the le itime has not &een impaired! Therefore, the remainin ?=, === shall &e divided intestate &etween ( and :!

=-

I! the $ro('em a(o)e2 su$$ose the 'e"ac& s 892 9992 ho# #ou'd the estate (e d str (uted% The estate &ein 1==, ===, the free portion is onl# B=, ===, hence, the le ac# of G=, === is inofficious and should &e reduced &# 1=, ===, leavin ( and : 4B, === each!

8-

1 !st tuted 3 a fr e!d as he r to a! estate of 6992 999- 3 d es ahead of 1 (ut 'ea)es a so! 4U$o! 1Ds death2 # '' 4 "et a!&th !"% 2o, &ecause . the father was a voluntar# heir who predeceased the testator! The estate should therefore o to the intestate heirs of I!

H-

T has three 'e" t mate ch 'dre!2 12 3 a!d 4- He !st tutes ! h s # '' 12 3 a!d h s cous ! C- The estate s 6=92 999The institution is totall# annulled! There is total intestac#! Thus, I, . and + will et B=, === each and C ets nothin

G-

I! the same e*am$'e2 T " )es !stead to C a de) se of rea' $ro$ert& #orth <92 999The remainin 14=, === of the estate shall &e distri&uted A=, === each to I, . and +! I! the $reced !" e*am$'e2 the 'e"ac& " )e! to C s 6992 999-

7-

94
The le ac# is inofficious &# 4B, ===! The estate shall &e distri&uted &e distri&uted as followsC 3B, === to C, 4B, === equall# I, . and +! 69- Su$$ose2 ! the f rst e*am$'e2 4 s " )e! 6=2 999+ will &e entitled to his full le itime of 4B, === (he ets additional 1=, ===)! The &alance of 14B, === shall &e distri&uted equall# &etween I, # and J! 66- Same2 (ut T " )es to C h s cous ! =92 9992 1 a!d 3 6992 999 to (e d ) ded equa''& (et#ee! them2 out of h s e!t re estate of 6=92 999There is no preterition! + is entitled onl# to et his share of the le itime of 4B, ===! C will et the B=, === as it is not inofficious and the remainder of 3B, === shall &e divided equall# &etween I and .! The presumption is that T wants + to receive onl# his share of the le itime! 6:- Su$$ose ! the f rst e*am$'e2 4 s the # fe of TIs there $reter t o!% There is no preterition &ecause + is not a compulsor# heir in the direct line! + shall &e merel# restored to her le itime to &e ta'en from the free portion! ,nder (rticle >?4 (par, 4), it shall &e equal to the le itime of each pf I and .! The le itme of I and . is S of the hereditar# estate or 3B, === ((rt! >>>, Opar! 1P! The# et @3, B== each! )o, + also ets @3, B==! The remainder shall o to C! Ca! there (e $reter t o! of a! ado$ted ch 'd% .es, &ecause an adopted child has the same ri hts as a le itimate child! (A-ain vs. IAC, O-t. *", ). ") 1 o(;ected to the # '' of 32 h s so!2 o! the "rou!d that .a/ He has !ot (ee! !st tuted2 he (e !" the o!'& he r of h s so!I a!d .(/ That e)e! f he s !st tuted2 h s share s 'ess tha! 42 h s # fe2 as the free $ort o! #as 'eft to 4Ru'e o! 1Ds o(;ect o!s-

95 a.
0is o&%ection is proper if the parents of . are the onl# nearest relatives, . havin no issues! (N%&%i2 vs. N%&%i2, )" SCRA ++.)! There is preterition if the parents, who are the onl# closest relatives of the decedent are not instituted, &ecause while the law mentions of Ddirect lineF, it does not ma'e a distinction, whether ascendin or descendin ! The will is still valid even if the share of one of the heirs is less than the other! 6ariation in the shares of the heirs is normal and is the essence of the law! (4eirs o/ MontinolaC Samson vs. CA, B.R. No. "00+ , Fe3. *0, ). )

b.

If a s ster of the decede!t s !ot !st tuted2 ca! she o$$ose the $ro(ate of the # '' o! the "rou!d of $reter t o!% 2o, &ecause a sister is not a compulsor# heir in the direct line! )he is a relative in the collateral line! ((rticle >BA$ 6ent%ra vs. 6ent%ra, April *", ). ) 12 the dau"hter+ !+'a# of A2 o$$osed the # '' of the 'atter co!te!d !" that 1 #as !ot !st tuted as a! he r2 he!ce2 there s $reter t o!- Is 1Ds co!te!t o! correct% Wh&% 2o! Preterition of a dau hter;in;law does not annul the institution of heirs &ecause she is not a compulsor# heir in the direct line of her mother;in;law! (Rosales vs. Rosales, Fe3. *", ). ") ,ur !" the ' fet me of A2 he e*ecuted a 'ast # '' a!d testame!t !st tut !" h s $are!ts 1 a!d 3- At the $ro(ate of the # ''2 52 a! ''e" t mate so! of A2 o$$osed o! the "rou!d of $reter t o!- W '' the co!te!t o! of 5 $ros$er% .es, &ecause there was preterition of a compulsor# heir in the direct descendin line! The law does not ma'e a distinction whether the heir is le itimate or ille itimate!

96
Su$$ose that t s the hus(a!d or the # fe #ho s om tted ! the testatorDs # ''2 #ou'd there (e a $reter t o!2 #h ch #ou'd ha)e the effect of a!!u'' !" the !st tut o! of he rs% 2o, &ecause a hus&and or wife is not a compulsor# heir in the direct line! 0owever, such hus&and or wife would still &e entitled to his or her le itime, in other words, there would &e an annulment of the institution of heirs &ut onl# to the e<tent that the le itime of such hus&and or wife is pre%udiced! Is there a!& d ffere!ce as to effect (et#ee! the om ss o! of a forced he r (& m sta>e or !ad)erte!ce a!d )o'u!tar& or !te!t o!a' om ss o!% .es, in A-ain vs. IAC, B.R. No. "*"#0, O-t. *", ). ", it was held that if preterition is &# mista'e or inadvertence, there is true preterition and total intestac# results! The reason for this is the ina&ilit# to determine how the testator would have distri&uted his estate if none of the heirs had &een omitted or for otten! If the omission is intentional, the effect would &e a defective disinheritance covered &# (rticle ?1>, in which case the institution of heirs is not wholl# void &ut onl# insofar as it pre%udices the le itime of the person disinherited! The nullit# is partial unli'e in true preterition where the nullit# is total! Preterition is presumed to &e onl# an involuntar# omission$ that if the testator had 'nown of the e<istence of the compulsor# heir at the time of the e<ecution of the will, he would have instituted such heir! On the other hand, if the testator attempts to disinherit a compulsor# heir, the presumption of the law is that he wants such heir to receive as little as possi&le from the estate! What s the r "ht of the $reter ted he r or he rs% The# are entitled not onl# to their shares of the le itime &ut also to those of the free portion which was not e<pressl# disposed of &# the testator &# wa# of devise and le acies, unli'e in the case of improper disinheritance or incomplete le itime wherein their ri ht is limited to the completion of their le itime! If the omitted heir is not in the direct line, the institution of heir is annulled onl# to the e<tent that it impairs the le itime! This is not true preterition!

97
If a! he r #as om tted2 from #here # '' h s share (e ta>e!% i! ii! The estate not disposed of &# will$ or Proportionatel# from the shares of the other compulsor# heirs, if the first is not enou h! ((rt! >BB)

Out' !e of the ru'es u!der Art c'e G=80 1ind of heir Compulsor # Predecease Transmits nothin -epresentatio n Transmits nothin 2o representation Transmits nothin -epresentatio n A$$' cat o!0 6A a!d 5 are 'e" t mate ch 'dre! of 1- C s a 'e" t mate ch 'd of A- The estate s #orth 6992 999- A a!d 5 #ere !st tuted he rsIf A d es (efore 12 ho# much Incapacit# Transmits nothin -epresentatio n Transmits nothin 2o representation Transmits nothin -epresentatio n -enunciation Transmits nothin 2o representatio n Transmits nothin 2o representatio n Transmits nothin 2o representatio n Disinheritanc e Transmits nothin -epresentatio n 2ot applica&le

6oluntar#

Le al

2ot applica&le

i! # '' C a!d 5 "et%

( was a compulsor# heir to the le itime of 4B, ===! Therefore, C will et onl# 4B, === in representation of (! The remainin 3B, === will all o to :! ii! If A s !ca$ac tated% The same answer as (i)! iii! If A re!ou!ces the !her ta!ce%

98

C ets nothin since a person who renounces an inheritance cannot &e represented! Therefore, ever#thin oes to :! :T has t#o 'e" t mate ch 'dre!2 1 a!d 3- 1 has a ch 'd C- 3 s ch 'd'ess- T !st tutes 12 3 a!d F .a fr e!d/ as he rs a!d " )es a 'e"ac& of 692 999 to L- The )a'ue of the estate s 6992 999a! I predeceases T E )ince I is a compulsor# heir instituted in a will, he can &e represented with respect to the le itime onl#! (s to the free portion, he is a voluntar# heir! 0ence C ets onl# 4B, ===! . and 7 et the undisposed portion of GB, === equall#! L will et the 1=, ===! In testate succession, the ri ht of representation pertains onl# to the le itime! If T dies without a will, and I and . are the sole heirs, c will et B=, === &# ri ht of representation of <! In intestate succession, the ri ht of representation covers the whole share of the person represented! &! c! . predeceases T E I and 7 equall#, L ets 1=, === et ?=, ===

7 predecease T E )ince he is a voluntar# heir, he cannot &e represented! 0e transmits a&solutel# nothin to his heirs! I and . et ?=, === equall#, L will et 1=, ===! In testate succession, onl# compulsor# heirs ma# &e represented! L predeceases T E )ince he, as le atee, is not a compulsor# heir, he cannot also &e represented! I, . and 7 et the entire inheritance equall#! If . renounces the inheritance, how much would C etN C will et nothin !

d!

e!

Notes0

99

/hen there is ri ht of representation, the representative inherits directl#, not from the person represented (the one who predeceases, &ecomes incapacitated, or has &een disinherited), &ut from the one whom the person represented would have succeed, i!e!, the testator or decedent whose estate is inherited! In the case of representation, the heir represented does not transmit his ri hts to the heir representin him$ the representative acquires directl# from the decedent or testator the ri hts which the person represented would have received if he had inherited! (rticle ?31 providesC DThe representative does not succeed the person represented &ut the one whom the person represented would have succeed! (s "r! Lustice L!:!L! -e#es sa#s, DThe code in fact reco niJes no e<ceptions to this rule! The ri ht of representation does not constitute an e<ception, &ecause the one representin does not acquire the inheritance from the one represented! This is e<pressl# reco niJed &# (rticle ?31! 0ence the representation does not impl# that the one represented acquires and transmits ri hts to his representative!F Thus, the phrase De<cept in cases e<pressl# provided for in this CodeF in the second para raph of (rt! >BG does not reall# provide e<ceptions to the three situations mentioned in the said (rticle! It is still true that the heir or person transmits nothin to heirs havin acquired none! There is onl# representation with re ard to the le itime &ecause the compulsor# heir is onl# one with re ard to the le itime and is a voluntar# heir with re ard to the free portion! The ri ht of representation e<ists onl# in case of predecease, incapacit# and disinheritance &ut does not e<ist in repudiation! Therefore, if the heir is voluntar# and he predeceases or repudiates or is incapacitated to succeed, he transmits nothin to the heirs a&solutel# &ecause there is no ri ht of representation as to the voluntar# heir! In the case of the compulsor# heir he transmits no ri hts to his heirs in case of

100
predecease, incapacit#, repudiation or disinheritance without pre%udice to the ri ht of representation which, however, ma# e<ist onl# in case of predecease, incapacit# or disinheritance &ut never when there is repudiation! 2ote that a compulsor# heir in the ascendin line cannot &e represented ((rticle ?33)! In the collateral line, it ta'es place onl# in favor of nephews and nieces of the deceased when the# survive with &rothers and sisters of said decedent! (n heir, even thou h a compulsor# one, who has repudiated his share of the inheritance ma# not &e represented! ((rt! ?33) &ecause one who validl# renounces an inheritance is deemed never to have received the same ((rt! B@@, par! 4)! The rule is a&solute! :ut a person ma# represent him whose inheritance he has renounced! ((rt! ?3G) Thus a son who renounced the inheritance from his father ma# represent the father in the inheritance from the latterHs father! Thus, in testate succession, the ri ht of representation covers onl# the le itime! In intestate succession, it covers the entire share of the person represented! The whole inheritance would descend &# the rules of intestate succession! SECTION :- + SU5STITUTION OF HEIRS ,ef !e su(st tut o! of he rs)u&stitution is the appointment of another heir so that he ma# enter into the inheritance in default of the heir ori inall# instituted! What ru'es o! !st tut o! of he r are made a$$' ca('e ! su(st tut o!% )ince su&stitution is merel# a second institution, the principles and rules on institution of heir are applica&le to su&stitution, e<cept in so far as the# ma# &e modified &# the e<press provisions on su&stitution! Thus E

101
a! The su&stitution can affect onl# that portion of the inheritance for which institution can &e made$ namel#, the free portion where there are compulsor# heirs and the entire estate when there are none! The manner in which the testator should desi nate and identif# the su&stitute is overned &# the pertinent rules on institution ((rticles >A@ to >AB) If two or more persons are su&stituted for another, their shares are to &e determined &# the same rules which appl# to the institution of several heirs ((rticles >AG to >A?, and >B1 to >B@)! ( su&stitute who dies &efore the testator, or who is incapacitated to succeed, or who repudiates the inheritance, does not transmit ri hts to his own heirs ((rticle >BG)!

&!

c!

d!

What $ro$ert& of the testator ma& (e the su(;ect of su(st tut o!% )u&stitution can never refer to the le itime &ecause the law prohi&its the testator from imposin an# &urden, encum&rance, condition or su&stitution of an# 'ind whatsoever on the le itime! Therefore, su&stitution ma# refer onl# to the free portion! Ca! 'e"ac es% there (e su(st tut o! ! de) ses a!d

There can &e su&stitution in devises and le acies &ecause there is no prohi&ition in our law re ardin su&stitution and it ma# &e %ustified under the principle of disposition of the testator! Ho# accret o!% s su(st tut o! d st !"u shed from

(ccretion is a ri ht &# virtue of which when two or more persons are called to the same inheritance, devise or le ac#, the part assi ned to the one who renounces or cannot receive his share, or who died &efore the testator, is added or incorporated to that of his co;heirs, co;devisees, or co; le atees! (s in su&stitution, therefore, a vacant portion of the inheritance oes to another heir!

102
In case of conflictin claims &etween a su&stitute and an heir entitled to accretion, the former should &e preferred, &ecause his ri ht from the e<press will of the testator while that of the latter is derived onl# from a will presumed &# law! What are the $ur$oses of su(st tut o!% 1! 4! @! To prevent the propert# from fallin into the ownership of people not desired &# the testator$ To prevent the effects of intestate succession$ To allow the testator reater freedom to help or reward those who &# reason of services rendered to the testator, are more worth# of his affection and deservin of his &ount# than intestate heirs! It is desi ned for the prosperit# and herita e of the famil#! What s the !ature or character of su(st tut o!% 1! )u&stitution o&tains onl# in testate succession, hence, there is no su&stitution in intestate succession$ 4! It is a consequence of the principle of freedom of disposition, which is reco niJed in favor of the testator$ @! it is nothin more than a su&sidiar# or secondar# institution of a second or su&sequent heir, hence, )ection 4 on Institution of 0eir also applies e<cept insofar as its provisions ma &e modified &# those on su&stitution$ A! It is reall# a conditional institution, involvin as it does a suspensive conditional for the su&stitute heir, hence the provisions on conditional su&stitution are also suppletoril# applica&le$ B! It ma# refer onl# to the free portion &ecause the law prohi&its the testator from imposin an# &urden, encum&rance, condition, or su&stitution of an# 'ind whatsoever on the le itime ((rticle >34, ?=A)$ and G! It has preference, after institution of heir, over ri ht of representation, ri ht of accretion and intestac#!

A!

103
What s the order of $r or t& ! case of !st tut o!2 su(st tut o!2 re$rese!tat o!2 accret o! a!d !testac&% 1! Institution E if there is a valid and effective institution of heirs, the institution shall &e followed ((rticle >A=)! The instituted heirs shall inherit even if there is a provision for su&stitution! )u&stitution E If there is a provision for su&stitution, the su&stitute9s will inherit if the instituted heir9s &ecome incapacitated, or repudiated the inheritance or predeceased the decedent and there are no availa&le representatives! )u&stitution is conditional institution! -epresentation E If there is no provision for su&stitution, the instituted heir9s who could not inherit will &e represented &# their descendant9s or representative9s if representation is proper and applica&le ((rticle ?3=)! 0owever, a repudiatin heir cannot &e represented ((rticle ?33) (ccretion E If the instituted heir predeceased the decedent, or was incapacitated and representation is not proper and applica&le, or if he repudiated the inheritance, his share which &ecomes a vacant portion of the inheritance shall &e inherited &# his co;heirs, co;devisees or co;le atees &# accretion ((rticle 1=1B)! Intestac# E If institution, su&stitution, representation and accretion all failed, intestac# will set in! The estate will &e divided in accordance with the rules on intestac# ((rticle ?G= to 1=1A)! What are the > !ds of su(st tut o! of he rs% 1! )imple or common (vul ar)$

4!

@!

A!

B!

/here the testator desi nates one or more persons to su&stitute the heir or heirs instituted in case of (1) predecease$ (4) renunciation or repudiation$ and (@) incapacit#!

2.

:rief or compendious (3revilo-%a J -ompen2iosa)$

/here two or more persons are su&stituted for one (&rief su&stitution), and one person for two or more heirs (compendious su&stitution)

104 3.
-eciprocal (re-ipro-a)

/here the instituted heirs are also made the su&stitute of each other!

4.

7ideicommissar# (/i2ei-ommisaria)!

/here the testator institutes a first heir, and char es him to preserve and transmit the whole or part of the inheritance later on to a second heir! Note0 In realit#, there are onl# two 'inds of su&stitutionC the simple and the fideicommissar#! These two are mutuall# e<clusive, i!e!, a su&stitution must &e one or the other, and cannot &e &oth at the same time! The other two enumerated E the &rief or compendious and the reciprocal are mere variations of either the simple of fideicommissar#! What are the causes of s m$'e su(st tut o!% a! &! c! Predecease of the first heir -enunciation of the first heir$ Incapacit# of the first heir! for s m$'e

Ho# ma& the testator $ro) de su(st tut o! # th a'' three causesN a! &!

:# specif#in all the three causes$ :# merel# providin for a su&stitution!

Ho# ma& restr cted s m$'e su(st tut o! (e made% :# specif#in onl# one or two of the three causes! 1 !st tuted A a!d 5 as su(st tute- 1 d d !ot state the causes for #h ch the su(st tut o! ma& (e made- What shou'd these causes (e% (ll or an# of the three cases, unless I has provided otherwise! If the seco!d he r .or the su(st tute/ e!ters !to the !her ta!ce2 does he do so (ecause he succeeds from the f rst he r%

105

2o! The second heir succeeds from the testator and not from the first heir! Note0 It ma# happen that the heir for whom a su&stitute is appointed is a compulsor# heir of the testator! In such case, the su&stitution cannot affect the le itime, &ecause the law prohi&its the testator from imposin an# char es, conditions, or limitations upon that part of his inheritance! :esides, the power to appoint a su&stitute emanates onl# from the freedom to dispose &# will$ since the le itime is not su&%ect to the free disposal of the testator, there is nothin to %ustif# his ri ht to order vul ar su&stitution as to such part! What are the !sta!ces #he! the su(st tut o! s e*t !"u shed% a! &! c! d! e! f! /hen the su&stitute predeceases the testator$ /hen the su&stituted is incapacitated$ /hen the su&stitute renounces the inheritance$ /hen the institution of heir is annulled &# preterition$ /hen the institution or the su&stitution is revo'ed &# the testator$ /hen the will is void or disallowed or revo'ed!

In case of simple or vul ar su&stitution, the same is e<tin uishedC a) :# the nullit# of the will$ &) :# the annulment of the institution of heir$ c) :# the death of the su&stitute &efore the testator$ d) /hen the su&stitute himself is incapacitated to succeed the testator, and e) /hen the su&stitute repudiates or renounces the inheritance! If the su&stitution is conditioned upon the renunciation of the inheritance &#

106
the first heir, the su&stitution is e<tin uished &# the death of the su&stitute &efore the repudiation &# the instituted heir! )uch su&stitution is essentiall# a conditional institution of the second heir! Therefore, the second heir must have the capacit# at the time the condition (renunciation &# first heir) happens! To have capacit#, the second heir must &e livin at that time ((rticle 1=4B)$ hence, if he had died prior to the happenin of the condition, or the renunciation, he cannot succeed &ecause of want of capacit#! The capacit# must &e determined, not onl# at the time of the testatorHs death &ut also when the condition happens ((rticle 1=@A, par! @)! 1 made a # '' !st tut !" A as he r2 a!d 5 as su(st tute- I! 677=2 5 d ed2 'ea) !" C2 h s ch 'd- I! :9992 1 d ed (ut 5 s !ca$ac tated to !her t- Ca! C !her t from 1% 2o, &ecause : is a voluntar# heir and since he predeceased the testator, he transmits nothin to his own heirs! 1 made a # '' !st tut !" 5 as he r2 a!d 5 as su(st tute- 1 d ed ! :999- 5 re!ou!ced the !her ta!ce ! :996- 5 d ed ! :99:- Ca! C2 the ch 'd of 5 !her t from 1Ds estate% .es, &ecause this is not a case of predecease on the part of :, who after all survived the testator, and immediatel# inherited from I, su&%ect to the condition of :Hs non; inheritance! )ince the condition was fulfilled, : inherited! C ets the estate not as an heir of I &ut as an heir of :! 1 !st tutes A to 6:92 9992 5 to :92 9992 a!d C to E92 999- The estate s 6G92 999- A made the su(st tute of 5 or CI 5 a!d C are su(st tutes of A- A $redeceased 5 a!d C- Ho# much # '' 5 a!d C "et% : ets G=, ===! (4=, === &# institution, A=, === &# su&stitution) C ets 14=, ===! (A=, === &# institution, >=, === &# su&stitution)

107
1 ma>es the fo''o# !" $ro) s o!s ! h s # ''0 @I !st tute A a!d 5 to 6J< of m& estate a!d !om !ate C as the r su(st tute-A If A $redeceases 52 # '' the 6J< $ort o! "o to C% 2o, the 19@ portion oes to :! There is no su&stitution &# C! )u&stitution occurs onl# of &oth ( and : are disqualified! (The o&vious e<ception to this is a case where the testator provides for su&stitution in the event of the death (or renunciation or incapacit#) of an# one of the ori inal heirs!) Note0 If one is su&stituted for two or more ori inal heirs ; effect of default of one &ut not all of the ori inal heirsC su&stitution will not ta'e place$ the share left vacant will accrue to the survivin co;heir or co;heirs! )u&stitution will ta'e place onl# if all the ori inal heirs are disqualified! A2 5 a!d C are !st tuted2 res$ect )e'&2 to K2 6J< a!d 6J8 of the estate- Shou'd A $redecease the testator2 ho# much #ou'd 5 a!d C "et% : and C will acquire (Hs S portion in the proportion of 4C1 (since their testamentar# shares are 19@ and 19G)! Shou'd 5 $redecease2 ho# much #ou'd A a!d C "et% ( and C will et :Hs 19@ portion in the proportion of @C1 (correspondin to the testamentar# shares of S and 19G)! Shou'd C $redecease2 Ho# much #ou'd A a!d 5 "et% ( and : will share CHs 19G portion in the proportion of @C4, &# the same lo ic! Note0 If heirs instituted in unequal shares should &e reciprocall# su&stituted shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearl# appears that the intention of the testator was otherwise! If there are more than one su&stitute, the# shall have the same share in the su&stitution as in the institution! @I !st tute A2 5 a!d C to 6J< of m& estate a!d ! case the& a'' d e (efore me2 I !st tute , (& #a& of s m$'e su(st tut o!-A If A a!d 5 $redeceases the testator2 # '' , "et a!& share%

108

2o, the su&stitution will ta'e effect onl# upon the death of all the three! 0owever, if what was stated was Dan# or M all die &efore meF, then D will et ( and :Hs share! @I !st tute A to 6J<2 5 to 6J82 a!d C to K of m& estate a!d (& #a& of s m$'e su(st tut o!2 I !st tute them as su(st tutes of o!e a!other-A If C $redeceases the testator2 ho# # '' h s share (e d ) ded f the estate s #orth 892 999% ( Q 19@ Q 4=, === : Q 19G Q 1=, === C Q S Q @=, === a! 5et the LCD of the remainin heirs C G ( Q 49G : Q 19G &! 5et the ratio &etween the remainin and the sum of the ratiosC 4C1 Q @ ( Q 49@ : Q 19@ c! "ultipl# the ori inal share of C &# the ratio in (&) ( Q 49@ < S Q 49G : Q 19@ < S Q19G d! (dd the result in (c) to their ori inal shares ( Q 49G R 49G Q A9G : Q 19G R 19G Q 49G e! "ultipl# the result in (d) &# the value of the estate ( Q A9G < G=, === Q A=, === : Q 49G < G=, === Q 4=, === Art c'e G88 $ro) des that @the seco!d he r sha'' acqu re a r "ht to the success o! from the t me of the testatorDs death2 e)e! thou"h he shou'd d e (efore the heirs

109
f duc ar&- The r "ht of the seco!d he r sha'' $ass to h s he r-A Is t $oss ('e that the seco!d he r has !o he rs% That the second heir has no heirs is impossi&le! 0is heirs areC descendants, ascendants, and collateral relatives to the fifth de ree, then the state! What s the effect of the char"es a!d co!d t o!s m$osed o! the su(st tut o!% 5eneral ruleC If the su&stitute inherits, he must fulfill the conditions imposed on the ori inal heir! *<ceptionsC 1! 4! If the testator has e<pressl# provided the contrar# (which must appear in the will)$ If the char es or conditions are personall# applica&le onl# to the heir instituted!

, st !"u sh (et#ee! a f de comm ssar& su(st tut o! from a s m$'e su(st tut o!/hile in the simple su&stitution, onl# one of the heirs inherits, in the fideicommissar#, &oth inherit the propert# or ri ht simultaneousl#, althou h the en%o#ment and possession are successive! What are the requ s tes of the f de comm ssar& su(st tut o!% a! &! There must &e a first heir called primaril# to the en%o#ment of the propert# There must &e an o&li ation clearl# imposed upon him to preserve and transmit to a third person the whole or part of the inheritance$ There must &e a second heir$ The first and second heirs must &e onl# one de ree apart$ :oth heirs must &e alive or at least conceived at the time of the testatorHs death$ It must &e made in an e<press manner$ It must not &urden the le itime (it must &e imposed on the free portion onl#)$ and It must not &e conditional!

c! d! e! f! ! h!

110
What does the requ reme!t @o!e de"reeA

mea!%

There is no question that onl# one transmission is allowed in /i2ei-omisoria, from the first heir to the second heir! :ut, on top of that, does the term Done de reeF mean that the second heir must &e in the first de ree of relationship with the first heir, as the word Dde reeF is used in (rticle ?G@, ?GA and ?GGN In other words, must the second heir &e either a child or a parent of the first heirN .es, ruled the -amireJ, 111 )C-( 3=A! )upreme Court in Palacios vs!

"anresa, "orell and )ancheJ -oman construe the word Dde reeF as eneration, and the present Code has o&viousl# followed this interpretation, &# provin that the su&stitution shall not o &e#ond one de ree Tfrom the heir ori inall# instituted!H The Code thus clearl# indicates that the second heir must &e related to and &e one eneration from the first heir! 7rom this, it follows that the fideicommissar# can onl# &e either a child or a parent of the first heir! These are the onl# relatives who are one eneration or de ree from the fiduciar#! What s the te!ure of f duc ar&% Primar# rule E the period indicated &# the testator )econdar# rule E if the testator did not indicate a period, then the fiduciar#Hs lifetime! What does the requ s te @that (oth he rs must (e ' ) !" a!d qua' f ed to succeed at the t me of the testatorDs deathA mea!% Livin E this requisite is defined in (rticles A=;A1 8ualified E (rticles 1=4A;1=@A This two;fold requirement is to &e met onl# upon the testatorHs death, and this applies not onl# to the fiduciar# &ut to the second heir as well! Thus, the second heir need not survive the first heir$ the second heirHs own heirs merel# ta'e his place! What s the !ature of the r "hts of the f duc ar& he r a!d the f de comm ssar& su(st tute # th res$ect to

111
the $ro$ert& #h ch su(st tut o!% s the su(;ect matter of the

,pon the death of the testator or /i2ei-omitente, the fiduciar# heir acquires all the ri hts of a usufructuar# until the moment of deliver# to the fideicommissar# su&stitute! In other words, pendin the transmission or deliver#, he shall possess the &eneficial ownership of the propert#, althou h the na'ed ownership is vested in the fideicommissar# su&stitute! What are the o(' "at o!s of the f duc ar& he r% 1! Preservation of the propert#! Corollar# to this o&li ation is the o&li ation to ma'e an inventor# of the propert#! :ecause of this o&li ation to preserve, he cannot alienate the propert# itself, althou h he ma# alienate his ri ht to the propert#$ Transmission of the propert# to the fideicommissar# su&stitute! The time of transmission shall depend on the will of the testator! If the time is not desi nated, then the transmission shall ta'e place upon the death of the fiduciar# heir! Is a f duc ar& (ou!d to fur! sh a (o!d% ( fiduciar#, &ein considered in the same situation as a usufructuar#, is not &ound to furnish a &ond! I! a f de comm ssar& su(st tut o!2 !o $er od #as f *ed (& the testator as #he! the $ro$ert& sha'' (e tra!sm tted to the seco!d he r- What ru'e sha'' a$$'&% In the a&sence of a period fi<ed &# the testator, the inheritance is supposed to &e delivered at the death of the first heir! 1 de) sed a 'a!d to A- He $ro) ded ! the # '' that A #ou'd e!;o& the 'a!d as 'o!" as A ' )ed2 ( t after h s death2 the same shou'd "o to 5- Is there a f de comm ssar& su(st tut o! here% 2o, &ecause there was no o&li ation to preserve! 1 !st tuted A as the f rst he r2 a!d 5 .ADs (rother/2 as seco!d he r ! a f de comm ssar& su(st tut o!- Whe! 1 d es2 A "ot the $ro$ert&- W '' 5 !o# "et the $ro$ert&%

4!

112
2o, &ecause the fideicommissar# su&stitution was not valid, :, &ein a relative of the second de ree of (! Consequentl#, (Hs heirs et the propert#! 1 !st tuted A as f rst he r2 5 .ADs so!/ as seco!d he rI a!d C .5Ds mother/ as th rd he r ! a f de comm ssar& su(st tut o!- Is th s )a' d% It is valid insofar as ( will et and then :! :ut on deathHs, C does not et the propert# as a result of the fideicommissar# su&stitution &ecause C is not one de ree apart for (! 1 !st tuted a as f rst he r2 ADs th rd ch 'd as seco!d he r- If A does !ot st '' ha)e a ch 'd at the t me 1 d es2 ca! the f de comm ssar& su(st tut o! (e " )e! effect% 2o, for the second heir was not #et livin or conceived at the testatorHs death! This is so even if at the time ( dies, the third child alread# e<ists! 1 !st tutes A as f rst he r2 5 as seco!d he r- 5 d es ! :999I 1 d es ! :996- I! :99:2 does A !her t% .es, for while the su&stitution is not valid, the institution remains valid! he r% 1! Ho# much shou'd (e de' )ered to the seco!d The eneral rule is that the fiduciar# should deliver the propert# intact and undiminished to the fideicommissar# heir upon the arrival of the period! The onl# deductions allowed, in the a&sence of a contrar# provision in the will areC 1! Le itimate e<penses E li'e necessar# repairs for the preservation of the propert# Le itimate credits$ Le itimate improvements E necessar# and useful improvements

4!

4! @!

What s the ru'e o! dama"e or deter orat o!%

113

1! 4!

If caused &# a fortuitous event or ordinar# wear and tear E fiduciar# not lia&le! If caused &# fiduciar#Hs fault or ne li ence E fiduciar# lia&le!

1 !st tuted A as f rst he r2 a!d 5 as seco!d he r- 1 d ed ! :999- 5 d ed ! :9962 'ea) !" a so! C- O! ADs death2 # '' C "et the $ro$ert&% .es! On IHs death in 4===, ( ot the propert# and on (Hs death, same should o to the heirs of :! : reall# had alread# inherited from I since he acquired the ri ht from IHs death$ and his ri ht oes to C, his heir, even if : predeceased the fiduciar# (! 0ad : predeceased I, : would never have acquired an# ri ht to the propert# and would not &e a&le to transmit same to his own heir! What $ro) s o!s sha'' !ot ta>e effect% 1! 7ideicommissar# su&stitutions which are not made in an e<press manner, either &# ivin them this name, or imposin upon the fiduciar# the a&solute o&li ation to deliver the propert# to a second heir! O2ote that the lac' of this element does not, &# the fact alone, nullif# the institution! It onl# means that the institution is not a /i2ei-omisaria! It could$ however &e somethin else, as was the case in PCI9 v. Es-olinP 4! Provisions which contain a perpetual prohi&ition to alienate, and even a temporar# one, &e#ond the limit fi<ed in (rticle >G@! OIf there is /i2ei-omisaria, the limit is the first heirHs lifetime! If there is no /i2ei-omisaria, the limit is 4= #ears!P @! Those which impose upon the heir the char e of pa#in to various persons successivel#, &e#ond the limit fi<ed in (rticle >G@, a certain income or pension OConforma&l# to the limits set in (rticle >G@, there can onl# &e two &eneficiaries of the pension, one after the other, and the second must &e one de ree from the first! There is no prohi&ition, however, on simultaneous &eneficiaries!P

114

A!

Those, which leave to a person the whole or part of, the hereditar# propert# in order that he ma# appl# or invest the same accordin to secret instructions communicated to him &# the testator! OThe ostensi&le heir is in realit# onl# a dumm#, &ecause in realit#, the person intended to &e &enefited is the one to whom the secret instructions refer!P

If the testator m$oses a 'o!"er $er od tha! :9 &ears2 s the $roh ( t o! )a' d% .es, &ut onl# for 4= #ears! If there s a f de comm ssar& su(st tut o!2 ca! the testator m$ose a $er od 'o!"er tha! :9 &ears% .es, &ecause the limitation will not appl#! -ather, (rticle >G@ will appl#, which allows, as a period, the lifetime of the first heir! 1 de) sed a 'a!d to A a!d $roh ( ted h m !e)er to se'' the $ro$ert&- Is the $roh ( t o! )a' d% )trictl# spea'in , the prohi&ition is of no effect, &ut considerin (rticle >3=, the same would &e valid, &ut onl# for the first twent# #ears! 1 !st tuted A as f rst he r2 a!d 5 as seco!d he r ! a f de comm ssar& su(st tut o!- 1 d ed a!d A "ot the $ro$ert&- If A ' )es for =9 &ears more2 ca! A se'' the $ro$ert&% 2o, he must preserve the propert# till his death, then : ta'es the propert#! 1 !st tuted A as f rst he r2 a!d 5 as seco!d he r ! a f de comm ssar& su(st tut o!- 1 ordered A !ot to se'' the $ro$ert& for <9 &ears2 a!d after sa d $er od to de' )er the $ro$ert& the $ro$ert& to 5- Is th s a )a' d st $u'at o!% .es, even if the period e<ceeds 4= #ears, for after all, at the end of the @= #ears, ( cannot ive the propert# to an#&od# e<cept :! "oreover, if the first heir can &e prohi&ited to alienate as lon as he lives in order that the same could &e

115
delivered to the second heir, wh# not for a period of @= #earsN Of course, even if @= #ears have not elapsed #et, if the first heir has alread# died, the propert# should &e iven to : &# virtue of the fideicommissar# su&stitution! 1 !st tuted A as h s o!'& he r (ut $roh ( ted h m a!d a'' #ho ma& su(seque!t'& !her t form h m to d s$ose of the $ro$ert& for a $er od of :9 &ears- 1 d edIf A d es < &ears after 12 # '' ADs so! 5 st '' (ou!d to res$ect the tem$orar& $roh ( t o!% .es, for the ne<t 13 #ears! Su$$ose 5 d ed after 69 &ears more2 a!d the $ro$ert& s ! tur! !her ted (& C #ho s h s so!2 s C (ou!d !ot to a' e!ate for the rema ! !" H &ears% 2o more, &ecause althou h a total of 1@ #ears has lapsed, still to impose the prohi&ition for the remainin 3 #ears on C would &e &e#ond the limits of (rticle >G@, since C is not a first de ree relative of ( who ori inall# inherited the propert#! OIn case there is no fideicommissar# su&stitution, the testator can prohi&it an heir, and all those who ma# inherit from the latter, for a total period of 4= #ears, provided the same prohi&ition will not o &e#ond the limits imposed &# (rticle >G@ (does not o &e#ond one de ree from the heir ori inall# instituted)P 1 d ed ! 67=: # th a # ''- I! the # ''2 he de) sed a house a!d 'ot to A as f duc ar& he rs a!d to the 'atterDs so!2 C2 as f de comm ssar& su(st tute2 dec'ar !" that sa d $ro$ert& sha'' !ot (e a' e!ated for 699 &ears- A d ed ! 678:- ?a& 5 !o# )a' d'& a' e!ate the $ro$ert&% 2o! @ of article >G3 provides that provisions which contain a perpetual prohi&ition to alienate, and even a temporar# one, &e#ond the limit fi<ed in (rticle >G@ shall not ta'e effect! There are onl# two limitations stated in (rticle >G@! The# areC first that the su&stitution must not o &e#ond one de ree from the heir ori inall# instituted$ and se-on2, that &oth the first heir and the second heir must &e livin at the time of the death of the testator! It is evident that in testamentar# dispositions, which contain a perpetual prohi&ition to alienate, neither one nor the other can possi&l# &e violated! 0e onl# limitation, which is violated, is that

116
provided in (rticle >3=! The prohi&ition to alienate is ood for 4= #ears! :e#ond that, it is void! Therefore, in the instant pro&lem, C must still have to wait for 1?34 &efore he can validl# alienated the propert#! What s the effect of f de comm ssar& su(st tut o!% the !u'' t& of the

It does not pre%udice the validit# of the institution of the heirs first desi nated$ the fideicommissar# clause shall simpl# &e considered as not written! 1 !st tuted A as f rst he r2 a!d 5 as seco!d he r- If 5 $redeceases 12 # '' A st '' !her t% .es, as instituted heir, notwithstandin the invalidit# of the fideicommissar# su&stitution! The clause on su&stitution is simpl# considered as not written! 1 ! h s # '' "a)e to A the !a>ed o#!ersh $ of h s house a!d 5 the usufruct o)er the same- Is th s a''o#ed% .es, &ecause the na'ed ownership of the propert# is reall# distinct and severa&le from the use of fruits (the &eneficial ownership) thereof! ?a& the usufruct (e " )e! to 5 a!d ,2 a stra!"er s mu'ta!eous'&% .es, and in such a case, : and C would &e co;owners of the usufruct and of the usufructuar# ri hts! 1 d s$osed of h s house ! a # '' " ) !" the !a>ed o#!ersh $ of the same to AI a!d to 5 a!d C2 success )e'&2 the usufruct- Th s mea!s that 5 f rst "ets the usufruct2 a!d after 5 d es2 the usufruct "oes to C- Is th s d s$os t o! of the usufruct )a' d% .es, provided that : is a first de ree relative of C$ and &oth : and C are alive at the time I dies! A #as " )e! h s 'e" t me ! the form of a house ! the # '' (ut #as $roh ( ted to se'' the same # th ! a $er od of 69 &ears- Ca! A se'' the house e)e! (efore the e*$ rat o! of sa d $er od%

117
.es, the prohi&ition, even if less than 4= #ears cannot &e applied to the le itime! What are the $ur$oses of the $roh ( t o! of the a' e!at o! of the estate for more tha! :9 &ears% a! &! To ive more impetus to the socialiJation of ownership$ To prevent perpetuation of lar e holdin s!

Summar&0 1! Prohi&ition to alienate applies to voluntar# heirs for a period of not e<ceedin 4= #ears! *<ceptionC 7ideicommissar# su&stitution! Prohi&ition to alienate cannot &e imposed on the le itime! (rticle ?=A provides that D2o &urden, encum&rance, condition or su&stitution of an# 'ind whatsoever can &e imposed on le itime! The onl# condition that can &e validl# imposed on a le itime is the prohi&ition to partition which shall not e<ceed 4= #ears ((rticle 1=>@ in relation to (rticle A?A) which provides that a donor or testator ma# prohi&it partition for a period which shall not e<ceed 4= #ears! )u&stitution as to le itime E It is not onl# fideicommissar# su&stitution that cannot &e esta&lished with respect to the le itimes of compulsor# heirs$ all 'inds of su&stitutions are prohi&ited in so far as le itimes are concerned! If the testator provides for a su&stitution in relation to a le itme, the su&stitution is considered as not imposed! SECTION E

4!

@!

118
CON,ITIONAL TESTA?ENTAR3 ,ISPOSITIONS AN, TESTA?ENTAR3 ,ISPOSITIONS WITH A TER? What are > !ds of testame!tar& d s$os t o!s% 1! 4! @! Conditional dispositions ((rticles >3@, >3A, >3B, >3G, >>@ (par! 4), >3?, >>=, >>1 and >>A)$ Dispositions with a term ((rticles >3> and >>B)$ and Dispositions with a mode (modal dispositions) ((rticles >>4 and >>@ (par! 1)! Ho# are co!d t o!s c'ass f ed% 1! :# the form of its esta&lishment into e<press or tacit *<press conditions are those which are imposed e<plicitl#$ tacit conditions are those which are not e<pressl# stated &ut which are understood or which can &e inferred lo icall# and %uridicall# from the e<pression of the will of the testator! 4! :# its effect into suspensive and resolutor# )uspensive conditions are those which prevent the effectivit# of the ri ht which the# affect until the fulfillment of the condition imposed$ resolutor# conditions are those which e<tin uish on their fulfillment the ri ht created, which ri ht e<ists until then, there&# restorin the thin s which are the o&%ect of the ri ht! @! :# reason of its fulfillment into potestative, casual or mi<ed Potestative conditions are those which depend for their fulfillment on the will of the heir or le atee$ casual conditions are those which depend on chance or an event$ and mi<ed conditions are those which depend at the same time on the will of the heir and chance or on the will of the heir and a third person! A! :# reason of the nature of the fact into positive and ne ative Positive conditions are those which are fulfilled &# ivin or doin somethin and ne ative

119
conditions are those which are fulfilled &# a&stainin from doin somethin ! B! :# reason of its adaptation to the technical concept of condition into proper or improper! Included in the improper conditions are the followin C i! Impossi&le conditions E those which cannot &e fulfilled either &ecause the# are contrar# to the laws of nature, to morals or to law! (m&i uous conditions E which &ecause of their defective statement are o&scure and unintelli i&le! Captatro# conditions E which are a species of those contrar# to morals! The# impose on the heir the condition that he should provide for the testator or a third person as a condition of &ein named as heir!

ii!

iii!

GENERAL PROVISIONS What s the "e!era' ru'e o! the testame!tar& freedom of the testator .Art c'e GH6/% 5*2*-(L -,L*C The ri ht of the testator to impose conditions, terms and modes sprin s from the testamentar# freedom! If he has the ri ht to dispose of his estate mortis -a%sa, then he has the ri ht to ma'e the dispositions su&%ect to a condition, term or mode! What s the e*ce$t o! to th s testame!tar& d s$os t o! .Art c'e GH:/% *IC*PTIO2C The le itime passes &# strict operation of law, independentl# of the testatorHs will! This is the lo ical consequence of the principle that the testator cannot impose an# char e, condition or su&stitution whatsoever upon the le itimes, and should he do so, the same shall &e considered as not written! Therefore, the condition can &e imposed onl# on the free portion and never on the le itme!

120

*IC*PTIO2 TO T0* *IC*PTIO2C (rticle 1=>@ ; The testator can validl# impose a prohi&ition a ainst the P(-TITIO2 of the le itime (not disposition), for a period not e<ceedin 4= #ears! This is the onl# prohi&ition or condition that can affect or &urden the le itme! CON,ITIONS What are the "e!era' ru'es o! co!d t o!s% 1! m$os t o! of

The conditions to affect the disposition must appear in the lan ua e of the will and cannot &e presumed! Parol evidence to prove the e<istence of oral or other conditions cannot &e allowed! 0owever, if the condition appears in a document incorporated &# reference into the will, it is proper to consider said condition! Impossi&le conditions and those contrar# to law or ood morals shall &e considered as not imposed and shall in no manner pre%udice the heir, even if the testator should provide otherwise ((rticle >3@)! This rule is also applica&le in donations! 0owever, the rule in civil o&li ations is different, in that impossi&le conditions shall annul the o&li ation which depends upon them! This is so &ecause the condition that is imposed &ecomes an inte ral part of the causa of the o&li ation and the elimination of that condition for &ein impossi&le or ille al results in a failure of cause! On the other hand, testamentar# dispositions and donations are &oth ratuitous and li&eral$ thus, the imposition of the condition does not displace li&eralit# as the &asis of the rant! The rule under (rticle >3@ therefore, departs from the eneral rule in o&li ations where the impossi&ilit# of the condition annuls the o&li ations dependent on them!

4!

121
What are the > !ds of co!d t o!s% 1! )uspensive condition ; If an heir is instituted su&%ect to a suspensive condition, what is acquired is onl# a hope or e<pectanc#! It is however a hope or e<pectanc# that is protected &# law! The inheritance shall &e placed under administration until the condition is fulfilled, or it &ecomes certain that it cannot &e fulfilled! -esolutor# condition ; If an heir is instituted su&%ect to a resolutor# condition, he acquires a ri ht to the inheritance immediatel# upon the testatorHs death! This ri ht, however, is su&%ect to the threat of e<tinction! If the condition is fulfilled or voided, such ri ht is e<tin uished! Conditions prohi&itin marria e! The prohi&ition is a ainst first marria e when the heir or le atee is sin le! The prohi&ition is a ainst a su&sequent marria e when it refers to the survivin spouse or to one who is a widow or widower! What are the ru'es o! co!d t o!s $roh ( t !" marr a"e% 1! 4! If a first marria e is prohi&ited E the condition is alwa#s considered as not imposed! If a su&sequent marria e is prohi&ited (remarria e)C a! (&solute prohi&ition E when the heir le atee is for&idden to marr# an# person an# time or place or when he or she required to remain unmarried or widowhood! or at is in

4!

@!

*ffectC 6oid as it is contrar# to moralit# and pu&lic polic#! *<ceptionsC a) If imposed &# the deceased spouse or &# his ascendants or descendants E condition is valid!

122
&) If imposed &# an#one else E condition is considered as not written!

&!

-elative prohi&ition (to marr# or remarr#) E when it refers onl# to a particular persons or roup of persons or when it refers onl# to a particular period or places! *ffectC 6alid, unless it &ecomes so onerous or &urdensome

What are the ru'es ! order that the a(so'ute co!d t o! !ot to co!tract a su(seque!t marr a"e (e )a' d a!d e!forcea('e% 1! In order, however, that the a&solute condition not to contract a su&sequent marria e imposed &# the deceased spouse on the survivin spouse &e valid, it must &e e<pressl# stated in the will and the condition cannot &e implied from the conte<t of the will! This a&solute prohi&ition to contract a second marria e is onl# applica&le to the free portion which is iven to the survivin spouse &ut cannot appl# to the le itime of the widow or widower &ecause as re ards le itime, the law prohi&its an# condition from &ein imposed upon it! fo''o# !" co!d t o!s )a' d a!d

4!

Are the e!forcea('e%

6/ Co!d t o! to co!tract marr a"e + This condition is valid as there is no prohi&ition on the imposition of a condition to marr#, either with reference to a particular person or not! :/ Usufruct or a''o#a!ce u!der certa ! co!d t o!s The law allows in the second para raph of (rticle >3A the ri ht of usufruct or an allowance or some personal prestation to &e &equeathed to an# person durin the time he or she should remain unmarried or in widowhood!

123 3) 4) 5) 6)
Re'at )e $roh ( t o!2 e-"-2 @Not marr& a 'a#&erA E valid Co!d t o! to re!ou!ce a re' " o! E not valid Co!d t o! to e!ter !to a re' " ous ' fe E valid Co!d t o! to 'ea)e $r esthoodJre' " ous ' fe E de&ata&le, as the same can &e considered not valid as &ein contrar# to pu&lic polic#! Co!d t o!s !ot co)ered (& the $roh ( t o!0 The followin conditions are not included in the article and therefore implicitl# allowedC a! &! c! The eneric condition imposin marria e The specific condition of marr#in particular person The specific condition of not marr#in determinate person a a

/ith re ard to the conditions imposin marria e, the same are valid provided that the# are suscepti&le of performance! :ut if the# are impossi&le of performance, the# shall &e deemed as an impossi&le condition and, therefore, considered as not written! The heir or le atee will then &e deemed instituted without a condition! captatoria or d s$os t o!

What s scriptura ca$tator a%

(rticle >3B providesC D(n# disposition made upon the condition that the heir shall ma'e some provision in his will in favor of the testator or of an# other person shall &e void! Is scriptura captatoria or d s$os t o! ca$tator a a''o#ed% S-ript%ra -aptatoria (or disposition captatoria) is prohi&ited! 2ote that what is declared void here is not merel# the condition &ut the testamentar# disposition itself which contains the condition! What are the reaso!s #h& scriptura captatoria or d s$os t o! ca$tator a s !ot a''o#ed%

124
1! The captatoria converts testamentar# rants into a contractual transaction$ It deprives the heir of testamentar# freedom$ It ives the testator the power to dispose mortis -a%sa not onl# for his propert# &ut of his heirs!

4!

3.

2oteC If the favor to &e done &# the heir will not &e made in a will, &oth the disposition and the condition should &e considered valid! What co!d t o!s% are $otestat )e2 1! 4! @! casua' a!d m *ed

Potestative condition E one that depends solel# on the will of the heir Casual condition E one that depends on the will of a third person or on chance "i<ed E one that depends partl# on the will of the heir and partl# on the will of a third person or chance

State the ru'es(! a! Potestative ((rticle >3G) PositiveC 1! 5eneral rule E must &e fulfilled as soon as the heir learns of the testatorHs death 4! *<ceptions E a! If the condition was alread# complied with at the time the heir learns of the testatorHs death$ and

125
&! If the condition is of such nature that it cannot &e fulfilled a ain @! Constructive compliance ((rticle >>@ par 4) E condition is deemed fulfilled! &! 2e ativeC

:!

The heir must ive securit# to uarantee (caucion muciana) the return of the value of the propert#, fruits, and interests, in case of contravention! Casual or mi<ed ((rticle >33) a! 5eneral rule E ma# &e fulfilled at an# time, &efore or after the testatorHs death, unless the testator provides otherwise! &! 8ualifications E if alread# fulfilled at the time of the e<ecution of the willC

(1) If the testator was unaware of the fact of fulfillment E the condition is deemed fulfilled! (4) aware of the fact of fulfillmentC If the testator was

i! If can no lon er &e fulfilled a ain E condition is deemed fulfilled! ii! If it can &e fulfilled a ain E the condition must &e fulfilled a ain State the ru'es o! co!struct )e com$' a!ce .Art c'e GG<2 $ar :/! 1! If casual E not applica&le$ 4! If mi<edC a! If dependent partl# on chance E not applica&le &! If dependent partl# on the will of a third part#C c! If third part# is an interested part# E applica&le

126
d! If third part# is not an interested part# E not applica&le! Pe!d !" the fu'f ''me!t of the sus$e!s )e co!d t o!2 #hat must (e do!e # th the $ro$ert&% .Art c'e GG9 a!d GG6/ :etween the time of the testatorHs death and the time of fulfillment of the suspensive condition or the certaint# of its non;occurrence, the propert# must &e place under administration! The propert# shall &e in the e<ecutorHs or administratorHs custod# until the heir furnishes the -a%-ion m%-iana! The procedural rules overnin the appointment of administrator is overned &# -ules 33;?= of the -ules of Court! State the effects of the fu'f ''me!t or !o!+ fu'f ''me!t of the sus$e!s )e co!d t o!1! 4! If the condition happens E the propert# will &e turned over to the instituted heir$ If it &ecomes certain that the condition will not happen E the propert# will &e turned over to a secondar# heir, and if there is none, to the intestate heirs!

2ote that this article is not applica&le to institutions with a term despite the wordin of the article! Institution with a term is overned &# (rticle >>B, par! 4! To do otherwise would result to an irreconcila&le conflict with that article, which mandates that &efore the arrival of the term, the propert# should &e iven to the le al heirs! TER?S What are the d ffere!t terms% 1! )uspensive term ((rticle >3>) ( suspensive term is one that merel# suspends the demanda&ilit# of a ri ht! It is sure to happen! ( suspensive condition, on the other hand suspends, not merel# the demanda&ilit#, &ut even the acquisition itself of the ri ht! The heirHs ri hts vests upon the testatorHs death! Therefore, should the heir die &efore the arrival of the suspensive term, he merel# transmits

127
his ri hts who can demand the propert# when the term arrives! The rule in this article is similar to a fideicommissar# su&stitution! State the ru'es0 1! 4! The ri ht of the instituted heir is suspended until the arrival of the term! The instituted heir acquires his ri hts after the testatorHs death &ut even &efore the arrival of the term! )hould the instituted die &efore the arrival of the term! 0e transmits his ri hts to his own heirs! :efore the arrival of the suspensive term, the propert# should &e delivered to the intestate heirs! ( caucion muciana has to &e posted &# the intestate heirs! The intestate heirs here are merel# considered a usufructuar# &ecause the# have the o&li ation of preservin the propert# until the arrival of the term when the# must turnover the propert# to the second heir

@!

A!

2oteC If the heir is instituted to a suspensive condition and he dies after the testator &ut &efore the fulfillment of the condition, he does not transmit his ri hts to his own heirs, for he never inherited! 4! -esolutor# term Ru'es0 1! The ri hts of the instituted heir are immediatel# demanda&le, althou h the# are e<tin uished upon the arrival of the date or time desi nated &# the testator! Therefore, &efore the arrival of the term, the propert# should &e delivered to the instituted heir!

4!

128
@! A! /hen the term arrives, he must the intestate heirs! 2o caucion muciana is required! ive it to

?O,ES .Art c'e GG:/ What s a mode% ( mode (instit%-ion s%3 mo2o) is an o&li ation imposed upon the heir, without suspendin (unli'e in a conditional disposition), the effectivit# of the institution! State the ru'es0 ( mode must &e clearl# imposed as an o&li ation in order to &e considered as one! "ere preferences or wishes e<pressed &# the testator are not modes! -equisitesC a! &! The testator states the o&%ect of the institution The testator states the purpose or application of the propert# left The testator states the char e impose &# him upon the heir! (8o!nny Ra3a2illa vs. CA, BR No. )),"*1, 8%ne *., *###) Ca%-ion m%-iana should &e posted &# the instituted heir! !st tut o! a!d

c. d.

, st !"u sh (et#ee! moda' co!d t o!a' testame!tar& d s$os t o!1!

( mode imposes an o&li ation upon the heir or le atee &ut it does not affect the efficac# of his ri hts to the succession$ while in a conditional testamentar# disposition, the condition must happen or &e fulfilled in order for the heir to &e entitled to succeed to the testator! The condition suspends &ut does not o&li ate$ while the mode o&li ates &ut does not suspend! To some e<tent, it is similar to a resolutor# condition! (Lohnn# -a&adilla vs! C(, i&id!)

4!

Pr !c $'es0

129
/hen in dou&t as to whether there is a condition or merel# a mode, consider, consider them as a mode! /hen in dou&t as to whether there is a mode or merel# a su estion, consider same onl# as a su estion! CAUCION ?UCIANA What s caucion muciana? It is a securit# to &e put up to protect the ri hts of the heirs who would succeed to the propert#, in case the condition, term or mode is violated! What are the !sta!ces #here caucion muciana s !eeded% 1! 4! @! )uspensive condition ((rticle >>B) 2e ative potestative condition ((rticle >3?) "odal institution ((rticle >>4, par! 4)

SU5STANTIAL CO?PLIANCE What are the ru'es ! su(sta!t a' com$' a!ce% 1! If the instituted heir, without his fault cannot compl# with the condition e<actl# in the manner imposed &# the testator, it shall &e complied with in a manner most analo ous to and in conformit# with his wishes! If the person interested in the condition (li'e the intestate heir) should prevent its fulfillment, the condition shall &e deemed to have &een complied with, provided that the instituted heir is without fault! /hen applica&leC 1) 4) a! &! If casual E not applica&le$ If mi<edC If dependent partl# on chance E not applica&le If dependent partl# on the will of a third part#C 1! If third part# is an interested part# E applica&le 4! If third part# is not an interested part# Enot applica&le!

4!

@!

130

PLACING OF ESTATE UN,ER A,?INISTRATION What are the !sta!ces #he! the estate $'aced u!der adm ! strat o!% 1! 4! s

/hen the heir is instituted under a suspensive condition! /here the heir instituted is su&%ect to a ne ative potestative condition and he does not ive a securit# when demanded &# the heirs entitled to the same! SECTION =- LEGITI?E What s 'e" t me%

Le itime is that part of the testatorHs propert# which he cannot dispose of &ecause the law has reserved it for certain heirs who are, therefore, called compulsor# heirs ((rticle >>G)! The le itime consists of a part or fraction of the entiret# of the hereditar# estate, and not a specific or determinate propert#! 7rom the definition of le itime in (rticle >>G, it is patent that the portion of the hereditar# estate called le itime is to a certain e<tent withdrawn from the patrimon# if the testator thus preventin him from disposin it &# ratuitous title! Of course, he can still en%o# the same &ecause it is still his! It is onl# upon his death that his heirs &ecome entitled thereto ((rticle 333)! The le itimes are translated into properties onl# upon the deliver# if the properties to the heirs, which is usuall# done after all claims a ainst the estate ahs &een settled! ( testator who has compulsor# or forced heirs cannot impair the le itimes of the latter ((rticle >A4)! (ccordin l#, if he has no forced or compulsor# heirs, he ma# dispose of all his estate or an# part of it in favor of an# persons havin capacit# to succeed (I3i2.)! Ca! the testator de$r )e h s com$u'sor& he rs of the r 'e" t me%

131

2o, the testator cannot deprive his compulsor# heirs of their le itme, e<cept in cases e<pressl# specified &# law ((rticle ?=A)!

,oes the testator ha)e the $o#er to m$ose (urde!s o! 'e" t me% Wh&%

2o, the testator cannot impose upon the le itime an# &urden, encum&rance, condition or su&stitution of an# 'ind whatsoever ((rticle ?=A)! This is so &ecause of the principle that the le itime passes &# strict operation of law! Ca! the o#!er d s$ose of the 'e" t me (& o!erous t t'e% .es &ecause in such a case, the alienated propert# is su&stituted &# an equivalent! 0owever, his power of disposal &# ratuitous title, whether inter vivos or mortis -a%sa is limited! What s the !sta!ce ! #h ch the 'a# a''o#s the testator to de$r )e a com$u'sor& he r of h s 'e" t me%

The onl# instance in which the law allows the testator to deprive the compulsor# heirs of their le itimes is disinheritance ((rticles ?1B;?4@), the rounds of which are set forth in (rticles ?1?;?41!

Are there !sta!ces ! #h ch the 'a# "ra!ts the testator some $o#er o)er the 'e" t me%

.es, the followin laws rant the testator some power over the le itimeC

1.

(rticle 1=>=, par! 4 E partition inter vivos of a will!

132

D( parent who, in the interest of his heirs or her famil#, desires to 'eep an# a ricultural, industrial, or manufacturin enterprise intact, ma# avail himself of the ri ht ranted him in this article, &# or orderin that the le itime of the other children to whom the propert# is not assi ned, &e paid in cash!F 4! (rticle 1=>@, par 1 E Indivision for 4= #ears! D*ver# co;heir has a ri ht to demand the division of the estate unless the testator should have e<pressl# for&idden its partition, in which case the period of indivision shall not e<ceed twent# #ears as provided in (rticle A?A! This power of the testator to prohi&it applies to le itime!F

Are there restr ct o!s o! the 'e" t me m$osed (& 'a#%

.es, the followin are restrictions imposed &# law on le itimeC

1!

(rticle 1B? of the 7amil# Code E famil# home shall continue for 1= #ears! DThe famil# home shall continue despite the death of one or &oth spouses or of the unmarried head of the famil# for a period of 1= #ears or for as lon as there is a minor &eneficiar#, and the heirs cannot partition the same unless the court finds compellin reasons therefore! This rule shall appl# re ardless of whoever owns the propert# or constituted the famil# home!F

2.

The reserva tron-al (to &e discussed separatel#)!

133
What are the $oss ('e #a&s of d stur( !" the 'e" t mes of com$u'sor& he rs% The le itime of a compulsor# heir ma# &e distur&ed in an# of the followin wa#C 1! 4! @! :# preterition of a compulsor# heir in the direct line ((rticle >BA)$ :# not ivin the full le itime of the heir to which he is entitled ((rticle ?=G)$ :# imperfect or defective disinheritance of the compulsor# heir ((rticle ?1>)! (The disinheritance is imperfect when it does not follow the requisites prescri&ed &# law)$ ,nder the a&ove circumstances, the compulsor# heir does not lose his le itime althou h there is distur&ance! A! :# validl# disinheritin the compulsor# heir ((rticle ?1B)! This is a case of deprivation of le itme which is e<pressl# allowed ((rticle ?=A)! that determ !e the

What are the factors amou!t of 'e" t me of a! he r%

The amount of le itme of an heir is determined &# several factors, particularl#C 1! 4! @! A! The The The The amount of the propert#$ num&er of compulsor#$ relations of such heirs to the testator$ and percenta e of shares assi ned to them &# law!

What are the > !ds of he rs% 1. Compulsor# heirs; the# are those for whom the law reserves a portion of a decedentHs estate &# wa# of le itime! 6oluntar#, testamentar#, or testate heirs; the# are so called to the succession &# virtue of the e<pressed will of the testator$ Le al or intestate heirs; The# are those called to the succession &# operation of law in the a&sence of voluntar# heirs desi nated &# the testator!

2.

3.

Who are com$u'sor& he rs% .Art c'e GGH/

134

(4) Le itimate children and descendants, with respect to their le itimate parents and ascendants$ (@) In default of the fore oin , le itimate parents and ascendants, with respect to their le itimate children and descendants$ (A) The widow or widower$ (B) O(c'nowled ed natural children, and natural children &# le al fictionP$

(6) OOther
4>3P!G4

ille itimate children referred to in (rticle

Compulsor# heirs mentioned in 2os! @, A and B are not e<cluded &# those in 2os! 1 and 4$ neither do the# e<clude one another! In all cases of ille itimate children, their filiation must &e dul# proved! The father or mother of ille itimate children of the three classes mentioned, shall inherit in the manner and to the e<tent esta&lished &# this Code! Ame!dme!t to Art c'e GGH0 The 7amil# Code which &ecame effective on (u ust @, 1?>>, classified all 'inds of ille itimate children (natural and spurious) into one eneral roup E ille&itimate -!il2ren. The distinction &etween the different 'inds of ille itimate children under the Civil Code had &een a&olished ((rticle 1GB 7C)! The le itimes of ille itimate children have also &een fi<ed &# the 7amil# Code into one; half (194) of the le itime of a le itimate child ((rticle 13G 7C)! Thus, under the law now, there are onl# four (A) roups of compulsor# heirsC

1. 2. 3.

First, le itimate children and descendants, with respect to their le itimate parents and ascendants$ Se-on2, in default of the fore oin , the le itimate parents and ascendants, with respect to their le itimate children and descendants$ T!ir2, the widow or widower ((rticle >>3)$
62

Para raphs A and B O&rac'etedP are deemed deleted &# (rticle 1GB, *O 2o! 4=? U7amil# CodeV, and to read Dille&itimate -!il2ren;!

135 4.
1! Fo%rt!, the ille itimate children ((rticle 1GB 7C) What are the c'asses of com$u'sor& he rs% The primar# compulsor# heirs E the# are the le itimate children and9or descendants! The# are preferred over, and e<clude, the secondar# compulsor# heirs! The secondar# compulsor# heirs E the# are the le itimate parents and9or ascendants$ ille itimate parents! The# receive le itime onl# in default of the primar# compulsor# heirs! The concurrin compulsor# heirs E the# are the survivin spouse, ille itimate children and9or descendants! The# succeed as compulsor# heirs to ether with the primar# or secondar# heirs, e<cept onl# that ille itimate children9descendants e<clude ille itimate parents! What does the term 'e" t mate ch 'd or 'e" t mate ch 'dre! a!d 'e" t mate $are!ts !c'ude%

4!

@!

1.
4! @! A!

( le all# adopted child pursuant to (rt! 1>? 7C$ G@ Le itimated children$ In proper cases, le itimate descendants other than le itimate children$ The term le itimate parents includes, in proper cases, le itimate ascendants other than parents! ''e" t mate

What s the co!d t o! (efore ch 'dre! cou'd (ecome com$u'sor& he rs%

There must &e reco nition of the ille itimate relationship! (rticles 134 and 13B of the 7amil# Code provide the rules on esta&lishment of filiation! GA
63 )ection 1>! S%--ession. E In le al and intestate succession, the adopter(s) and the adoptee shall have reciprocal ri hts of succession without distinction from le itimate filiation! 0owever, if the adoptee and his9her &iolo ical parent(s) left a will, the law on testamentar# succession overn (-!(! 2o! >BB4)! 64 (rticle 134! The filiation of le itimate children is esta&lished &# an# of the followin C 1! The record of &irth appearin in the civil re ister or final %ud ment$

136

What are the d ffere!t com$utat o!s for the 'e" t mes of each com$u'sor& he r%

LC alone E S of the estate! LC and )) E LCC S of the estate$ ))C a share equivalent to 1 child!

1LC and )) E LCC S of the estate$ ))C K of the estate!

LC and IC E LCC S of the estate$ ICC S share of 1LC!

LC, IC, and )) E LCC S of the estate$ ICC S of share of 1LC$

(n admission of le itimate filiation in a pu&lic instrument or a private handwritten instrument and si ned &# the parent concerned$ In the a&sence of the fore oin evidence, the le itimate filiation shall &e proved &#C 1! The open and continuous possession if the status of a le itimate child$ or 4! (n# other means allowed &# the -ules of Court and special laws (7amil# Code)! (rticle 13B! Ille itimate children ma# esta&lish their ille itimate filiation in the same wa# and the same evidence as le itimate children! The action must &e &rou ht within the same period specified in (rticle 13@, e<cept when the action is &ased on the second para raph of (rticle 134, in which case the action ma# &e &rou ht durin the lifetime of the alle ed parent (7amil# Code)!

4!

137
))C a share equal to 1LC (the share of )) is preferred over those of the IC which shall &e reduced if necessar#)!

1LC, IC and )) E LCC S of the estate ICC S of share of 1LC$ ))C K (preferred) of the estate!

LP alone E S of the estate! LP and IC E LPC S of the estate$ ICC K of the estate! LP and )) E LPC S of the estate$ ))C K of the estate!

LP, IC and )) E LPC S of the estate$ ICC K of the estate$ ))C 19> of the estate!

)) alone E S of the estate (19@ of the estate if marria e is in articulo mortis$ S of the estate if livin to ether for B #ears)!

)) and IC E ))C 19@ of the estate$ ICC 19@ of the estate!

)) and IP E ))C K of the estate$

138
IPC K of the estate!

IC alone E S of the estate! IP alone E S of the estate! LEGITI?E OF SURVIVNG SPOUSE IN TESTA?ENTAR3 SUCCESSION .TESTAC3/

Co!curr !" He rs )pouse alone )pouse 1 le ! Child )pouse 4 or more le ! children )pouse Le ! Children Ille ! Children

Le" t me S$ 19@$ S K S )ame share of 1 le ! child S )ame share of 1 le ! child S -emainder not to e<ceed free portion

Free Port o! S K

Art c'e (rt! ?== (rt! >?4

-emainder

(rt! >?>

-emainder

(rt! >?3 (rt! >?B (rt!13G, 7C! GB

)pouse Le ! Parents )pouse

K S K

(rts!>>? W >?@ (rt! ?=@

65 (pplies if free portion is sufficient, otherwise, free portion will &e divided equall#! (,nless otherwise specified &# the testator, sharin in the availa&le free portion is equal O(rticle >AGP!

139
Ille ! Parents )pouse Ille ! Children )pouse Le ! parents Ille ! Children )pouse :rothers and sisters, nephews and nieces K 19@ 19@ 19> S K S 2one
GG

19@

(rt! >?A

19>

(rt! >?? UCf! (rt 1===V (rt! ?==

LEGITI?ES OF CHIL,RENJPARENTS AS SOLE HEIRS IN TESTA?ENTAR3 SUCCESSION .TESTAC3/

He rs Le itimate child9children Ille itimate child9children Le itimate parents Ille itimate parents

Share (lone E S (lone E S (lone E S (lone E S

Free Port o! S S S S

Art c'e (rticle >>> (rticle ?=1 (rticle >>? (rticle ?=@

LEGITI?ES OF ILLEGITI?ATE CHIL,RENJLEGITI?ATE PARENTS OR CHIL,REN IN TESTA?ENTAR3 SUCCESSION .TESTAC3/

66 Reason77 The# are not compulsor# heirs! 0ence, the# are not entitled to le itime! The# can &ecome heirs onl# in intestatAe succession ((rticle 1==1 and ??A) or if desi nated as devisees or le atees, i.e. as voluntar# heirs!

140

He rs Le itimate parents Ille itimate children Le itimate children Ille itimate Children Ille itimate children Ille itimate parents

Share S K

Free Port o! K

Art c'e (rts! >>> W >?G

S S of share of 1 le ! child S 2one (&ein e<cluded)

-emainder, if an#

(rts! 13G(7C)

(rt! ?=@

Art c'e GGH me!t o!s of @ch 'dre! a!d desce!da!tsA a!d @'e" t mate $are!ts a!d asce!da!tsAI does t mea! that the& a'' automat ca''& succeed to the !her ta!ce%

2o, in their cate or# as compulsor# heirs, the rule is that the nearer e<cludes the more remote, e<cept in cases where the ri ht of representation is proper! This is 'nown as the rule of Dpro<imit#F!

?a& a com$u'sor& he r re!ou!ce or com$rom se h s future 'e" t me% What are ts co!seque!ces%

2o, ever# renunciation or compromise as re ards future le itime &etween the person owin it and his compulsor# heirs is void, and the latter ma# claim the same upon the death of the former ((rticle ?=B)!

141

What are the co!seque!ces ! case there s re!u!c at o! or com$rom se%

a! &!

The compulsor# heir ma# claim his le itime upon the death of the person owin it$ :ut the compulsor# heir must &rin to collation whatever he ma# have received &# virtue of the renunciation or compromise ((rticle ?=B)! That is, an# propert#, which the compulsor# heir ma# have ratuitousl# received from his predecessor &# virtue of the renunciation or compromise, will &e considered an advance of his le itime and must &e dul# credited!

What s the reaso! of the fore"o !" ru'e%

a!

&!

c!

:efore the predecessorHs death, the heirHs ri ht is simpl# inchoate which does not vest in the heir until the moment of the death of the testator! ((rticle 333) )uch renunciation or compromise contravenes the polic# of the law which see's to secure to the testator the reatest possi&le freedom in disposin of his propert# &# will ((rticle 3>@), and to prevent the utiliJation of the will form as a vehicle fro imposin contractual o&li ations on the testator! ( future le itime involves future inheritance, and under (rticle 1@A3, par! 4, Dno contract ma# &e entered into upon future inheritance e<cept in cases e<pressl# authoriJed &# law!

As #orded2 the art c'e refers to tra!sact o!s of com$rom se or re!u!c at o! (et#ee! a $ros$ect )e com$u'sor& he r a!d the $redecessor- Is a tra!sact o! (et#ee! the $ros$ect )e com$u'sor& he r a!d a!other $ros$ect )e com$u'sor& he r2 or (et#ee! a $ros$ect )e com$u'sor& he r a!d a stra!"er $roh ( ted%

142
.es, pursuant to (rticle 1@A3, which provides that D2o contract ma# &e entered into upon future inheritance e<cept in cases e<pressl# authoriJed &# lawN

What s the sco$e of $roh ( t o!%

1! 4!

(n# renunciation of future le itimes, whether for a valua&le consideration or not, made unilaterall# or otherwise$ The waiver of the ri ht to as' for the reduction of an officious donation either &# the heirHs e<press declaration or &# consentin to the donation ((rticle 334)$ and (rticle 1@A3!
G3

3.

What are the !sta!ces #here the $roh ( t o! s !ot a$$' ca('e%

1!

4!

-enunciations or compromises made after the death of the testator, for in such a case, the ri ht to le itime &ein alread# an acquired ri ht and no lon er an e<pectanc#$ Donations or remissions made &# the testator to the compulsor# heirs as advances of the le itime! Their acceptance does not amount to renunciation of future le itime

The ru'e s that a!&th !" that a com$u'sor& he r rece )es (& "ratu tous t t'e from the $redecessor s co!s dered a! ad)a!ce o! the 'e" tme a!d s deducted there from- Are there e*ce$t o!s to th s ru'e%

.es, the# areC (rticle 1@A3! (ll thin s which are not outside the commerce of men, includin future thin s, ma# &e the o&%ect of a contract! (ll ri hts which are not intransmissi&le ma# also &e the o&%ect of contracts! 2o contract ma# &e entered into upon future inheritance e<cept in cases e<pressl# authoriJed &# law!
67

143

1.
4!

(rticle 1=G4 E If the predecessor ave the compulsor# heir a donation inter vivos and provided that it was not to &e char ed a ainst the le itime$ (rticle 1=G@ E Testamentar# dispositions made &# the predecessor to the compulsor# heir, unless the testator provides that it should &e considered part of the le itime!

What s the remed& of the com$u'sor& he r to #hom the testator has 'eft a!& t t'e 'ess tha! the 'e" t me (e'o!" !" to h m%

0e ma# demand that the same &e full# satisfied ((rticle ?=G)!

What s mea!t @(& a!& t t'eA referred to ! the art c'e%

It applies to transmissions &# ratuitous title! It also includes donation inter vivos, which are considered advances on the le itime!

What s the remed& of the com$u'sor& he r f there are testame!tar& d s$os t o!s that e*ceed the d s$osa('e $ort o!%

The compulsor# heir ma# petition that the same &e reduced to the e<tent that the le itmes ma# have &een impaired, in so far as the# ma# &e inofficious or e<cessive ((rticle ?=3)!

, st !"u sh com$'et o! of 'e" t me from $reter t o!-

1!

In case of preterition, i norance or facult# memor# on the part of the testator can &e presumed &ut such

144
presumption does not lie in case the compulsor# heir has &een iven somethin ! In the former, the compulsor# heir is not totall# deprived of his le itime! Thus, the compulsor# heir does not lose his le itime &ut on the other hand, he cannot claim more than his le itime! 0e has therefore a ri ht to claim what is lac'in , that is, the completion of the portion that &# law &elon s to him! 0owever, in the case of preterition, the compulsor# heir who was totall# omitted has the ri ht to demand his le itime and also demand that the institution of heirs &e annulled e<cept the devises and le acies! Ho# s 'e" t me determ !ed%

4!

The value of the propert# left at the death of the testator shall &e considered, deductin all de&ts and char es, which shall not include those imposed in the will! To the net value of the hereditar# estate, shall &e deducted the value of all donations &# the testator that are su&%ect to collation at the time he made them ((rticle ?=>)!

7O-",L(C Propert# left E de&ts and char es R value of collationa&le donations Q net hereditar# estate!

What are the se)e! d st !ct ste$s ! the d str (ut o! of the hered tar& estate ! testame!tar& success o!%

1! 4! @!

The determination of the value of the estate at the time of the testatorHs death$ The determination of all deducti&le de&ts and char es which are char ea&le to the testatorHs estate$ The determination of the net hereditar# estate &# deductin all of the de&ts and char es from the value of the estate$ The collation or addition of the value of all donations inter vivos to the net value of the estate$ The determination of the amount of the le itime from the total thus found in accordance with the

4.
B!

145
rules esta&lished in (rticle >>> to (rticle ?=@ of the Civil Code$

6.
3!

Imputation of the value of the donation inter vivos a ainst the le itime of the donee, if made to a compulsor# heir, or a ainst the free portion, if made to a stran er$ and finall#, Distri&ution of the net estate in accordance with the will of the testator!

What are the ste$sJ ma!!er of com$ut !" the hered tar& estate%

@ stepsC

1!

Inventor# of all e<istin assets E (1) This will involve an appraisal 9 valuation of these e<istin assets at the time of the decedentHs death! (4) These assets include onl# those propert# and o&li ations that survive the decedent$ i!e!, those, which are not e<tin uished &# his death! (@) The value determined &# this inventor# will constitute the ross assets!

4!

Deductin unpaid de&ts and char es E (1) (ll unpaid o&li ations of the decedent should &e deducted from the ross assets! (4) Onl# those o&li ations with monetar# value, which are not e<tin uished &# death, are considered here! Thus, those o&li ations, which are purel# persona$ are not ta'en into account! (@) The difference &etween the ross assets and th unpaid o&li ations will &e availa&le assets!

@! (ddin the value of donations inter vivos E

146 (1) To
the availa&le assets should &e added all the inter vivos donations made &# the decedent! of the time the# were respectivel# made! (n# increase or decrease in value from the time the# were made to the time of the decedentHs death shall &e for the doneeHs account, since donation transfers ownership to the donee!

(2) The donations inter vivos shall &e valued as

(3) The

sum of the availa&le assets and all donations inter vivos is the net hereditar# estate!

NOTES0

Collation is not necessar# when there are no compulsor# heirs for the reason that there is no le itime to &e determined! The value of the donations shall &e determined as of the time the# were made and not at the time of the death of the testator! The collation of the donation does not mean that the properties donated shall &e &rou ht &ac' to the estate &ut onl# the value thereof, determined as of the time the# were made, should &e added to the net value of the estate to determine the whole estate of the testator!

What s the ru'e as to do!at o!s inter vivos to com$u'sor& he rs%

147
The# shall &e imputed to his le itime$ i.e!, considered as an advance to his le itime ((rticle ?=?, par! 1)!

Is there a! e*ce$t o! to th s ru'e%

.es, this rule of imputation to the le itime will not appl# of the donor provided otherwise ((rticle 1=G4), in which case the donation will &e imputed to the disposa&le portion of the estate!

What s the ru'e as to do!at o!s inter vivos to stra!"ers%

1!

( stran er is an#one who does not succeed as a compulsor# heir$ Donations inter vivos to stran ers are necessar# imputed to that part of the estate which the testator could have disposed &# his last will (the disposa&le portion) ((rticle ?=?, par! 4)! In so far as the# ma# &e inofficious or ma# e<ceed the disposa&le portion, the# shall &e reduced ((rticle ?=?, par! @)! Summar& of do!at o!s0

2.
@!

a!

Donation to a child, whether le itimate or ille itimate 5eneral rule E char ed to le itime

*<ceptions E

1! 4!

If the donee who is a child without descendant predecease the testator, is incapacitated or is disinherited$ In case the donee;child repudiates the inheritance$

148
@! In case the donor;testator has e<pressl# provided that there shall &e no collation unless it impairs the le itime!

b.

Donation to parents or ascendants ((rticle 1=G4) G> E 5eneral rule E char ed to le itime *<ceptions E

1! 4! c!

/hen the testator provides otherwise$ /hen the# are not compulsor# heirs!

Donation to spouse E 5eneral rule E not allowed!

*<ception E ifts of moderate value$ treat the same as a donation to a compulsor# heir!

d!

Donation to stran ers E char ed to free portion!

What s the order of $r or t es to (e o(ser)ed ! the reduct o! of the testatorDs "ratu tous d s$os t o!s%

NOTE0 The donations made to le itimate parents or ascendants or to the parents of ille itimate children should onl# &e char ed to their le itime when the# are compulsor# heirs, since the# are not primar# compulsor# heirs &ut onl# secondar# and, therefore, ma# not alwa#s &e compulsor# heirs if there are present the primar# compulsor# heirs!

68

149
(fter the le itime has &een determined in accordance with (rticles ?=> to ?1=, the reduction shall &e made as followsC

1!

Donations shall &e respected as lon as the le itime can &e covered, reducin or annullin , if necessar#, the devises or le acies made in the will$ The reduction of the devises or le acies shall &e pro rata, without an# distinction whatever$ If the testator has directed that a certain devise or le ac# &e paid in preference to others, it shall not suffer an# reduction until the latter have &een applied in full to the pa#ment of the le itime$ If the devise or le ac# consists of a usufruct or life annuit#, whose value ma# &e considered reater than that of the disposa&le portion, the compulsor# heirs ma# choose &etween compl#in with the testamentar# provision and deliverin to the devisee or le atee the part of the inheritance of which the testator could freel# dispose ((rticle ?11)! What are methods Mru'esN of reduct o!%

2.
@!

A!

1. 2. 3.

7irst, reduce pro rata the non;preferred le acies and ((rt! ?11 O4P), and the testamentar# dispositions ((rt! ?=3)! (mon these le acies, devises, and testamentar# dispositions there is no preference$ )econd, reduce pro rata the preferred le acies and devises ((rt! ?11, last par!)$ Third, reduce the donations inter vivos accordin to the inverse order of their dates (i!e!, the oldest is the most preferred) ((rt! 33@)! If the donations were made with the same date, the# shall &e reduced pro rata.

Note0 These reductions shall &e to the e<tent required to complete the le itimes, even if in the process the disposition is reduced to nothin !

Ho# s Art c'e 766 reco!c 'ed # th Art c'e 7=9%

150

(rticle ?11 provides that if the devise or le ac# must &e reduced the reduction shall &e pro rata without distinction whatever$ whereas (rticle ?B= provides an order of preference in the reduction of the devises and le acies! (lthou h seemin l# contradictor#, these articles can &e reconciled &# appl#in (rticle ?11 to those cases where the le ac# or devise must &e reduced (1) &ecause it is necessar# to preserve the le itime and (4) when althou h the le itime is unimpaired, reduction is necessar# &ecause there are donations and the donations and the le acies to ether e<ceed the free portion! /hile (rticle ?B= will &e applied when the reduction is &etween the le acies themselves alone &ecause there are no compulsor# neither heirs$ nor donation inter vivos, or there &ein compulsor# heirs their le itimes are unimpaired and there are no donations!

What s the order of $a&me!t from the hered tar& estate%

1!

The le itimes shall first &e paid$ Then the donations inter vivos$ 2e<t, the preferred devises and le acies$ and Lastl#, the other devises and le acies and all other testamentar# dispositions to ta'e effect mortis -a%sa, shall &e reduced pro rata, without distinction, in case the free portion is not sufficient!

2.
@!

4.

The )a'ue of the testatorDs estate at the t me of h s death s PE92 999- Ho#e)er2 the c'a ms a"a !st h s estate (ased o! o(' "at o!s !curred (& h m dur !" h s ' fet me amou!ted to P692 999- ,ur !" h s ' fet me2 he had a'so made t#o do!at o!s P6=2 999 to a 'e" tmate ch 'd @AA2 a!d a!other P6=2 999 to a fr e!d @FA- I! h s # ''2 he !st tuted h s t#o 'e" t mate ch 'dre!2 A a!d 52 as h s he rs- Ho# sha'' h s estate (e d str (uted%

1. 2. 3.

PA=, === E P1=, === Q P@=, === P@=, === R P1B, === R P1B, === Q PG=, === Determine the le itime of ( and : Q P1B, === each

151
4. 5. Determine the free disposa&le portion Q P@=, === 5ive the le itimesC : Q P1B, ===$ ( Q P1B, === Othe donation to ( of P1B, === shall &e imputed to his le itimeP 5ive P1B, === donation to 7 from the free disposa&le portion :alance of the hereditar# estate is P1B, ===, which shall &e divided equall# to (, and :$ thus, each shall et P44, B==!== each! OP1B, === R 3, B==P

6. 7.

Testator 1 d es # th : 'e" t mate ch 'dre! A a!d 5I a!d o!e ac>!o#'ed"ed ch 'd C- Wh 'e a' )e2 1 made a do!at o! of P692 999 to AI P692 999 to C a!d a!other P692 999 to a tota' stra!"er- H s "ross estate s P<92 999 a!d h s de(ts a!d ' a( ' t es are P692 999- , ) de the estate of 1-

1! 4!

P@=, === E P1=, === Q P4=, === P4=, === R P1=, === R P1=, === R P1=, === (donations) Q PB=, ===! @! Determine the le itimesC P4B, === to ( and : or P14, B== each! A! 7ree disposa&le is P4B, ===! B! 5et CHs le itime from free disposalC PG, 4B=! G! :alance of free disposal E P1>, 3B=! 3! Donation of P1=, === made to ( shall &e imputa&le to his le itime of P14, B==! >! The donation of P1=, === made to C shall &e imputa&le to his le itime of PG, 4B=, there is therefore an e<cess of P@, 3B= which shall &e imputed to the free portion! ?! The donation of P1=, === made to d shall &e char ed to the free portion! 1=! The free portion amounts to P1>, 3B= and the donations imputed to it are the e<cess of P@, 3B= in the donation to c and the whole donation of P1=, === to D or a total of P1@, 3B=! Testator 1 d es 'ea) !" h s 'e" t mate ch 'dre! A a!d 52 sur) ) !" s$ouse S a!d o!e ac>!o#'ed"ed !atura' ch 'd C- Wh 'e a' )e 1 do!ated P=2 999 to A ! 677=2 a!other P=2 999 to C ! 677G a!d P692 999 to , a )er& "ood fr e!d ! 677<- H s "ross estate at the t me

152
of h s death f P:92 999- H s de(ts a!d ' a( ' t es amou!t to P6=2 999- , ) de the estate0

1! 4! @! A! B! G! 3!

>! ?!

P4=, === E P1B, === Q PB, === PB, === R PB, === R PB, === R P1=, === Q P4B, === P14, B== is the le itime of ( and : or PG, 4B= each! 7ree portion is P14, B== E le itime of ) PG, 4B= and le itime of C P@, 14B! 7ree disposal O&alanceP E P@, 14B! Donation of PB, === to ( shall &e imputed to his le itime of PG, 4B= Donation to C of PB, === shall &e imputed to his le itime of P@, 14B and therefore e<ceeds the same &# P1, >3B which to ether with the P1=, === donation to D or a total of P11, >3B shall &e char ed to the free portion which amounts onl# to P@, 14B and should &e reduced! The reduction shall &e &ased on the dates of the donation in the inverse order of dates! )ince the donation to D is earlier than that of C, the whole donation of C, which is P1, >3B will &e revo'ed and then the donation of D will furthermore &e reduced &# PG, >3B! 0ence C will return to the estate P1, >3B and D will return G, >3B!

If the de) se has to (e reduced (ecause t s !off c ous a!d the th !" " )e!2 as de) se s !d ) s ('e2 #hat are the ru'es%

1! 4! @!

If the e<tent of reduction is less than S of the value of the thin E it should &e iven to the devisee! If e<tent of reduction is S or more of the value of the thin E it should &e iven to the compulsor# heir! In ether case, there should &e pecuniar# reim&ursement to the part# who did not et his ph#sical portion of the thin devised ((rticle ?14)!

If !e ther $art& e'ects to e*erc se th s r "ht2 ho# shou'd the th !" de) sed (e d s$osed of%

1!

(n# other heir or devisee, who elects to do so, ma# acquire the thin and pa# the parties (the

153
compulsor# heir and the devisee in question) their respective shares in mone#! If no heir or devise elects to acquire it, it shall &e sold at a pu&lic auction and the net proceeds accordin l# divided &etween the parties concerned ((rticle ?1@)!

4!

Summar& of the ' m tat o!s of the $o#er of the testator to d s$ose of as he ma& deem f t the free $ort o!0

1.
4! @!

The free portion must &e a&solutel# free portion i.e!, the remainder of the estate after all le itimes have &een deducted! The a&solutel# free portion, which can &e freel# disposed of, does not include those properties overned &# special laws such as the friar lands! The person to whom it is &equeathed must have the capacit# to succeed the testator! RESERVA TRONCAL .Art c'e G76/ What s the doctr !e of reserva troncal%

It is a s#stem of reserve &# virtue of which an ascendant who inherits from his descendant an# propert# which the latter ma# have acquired &# ratuitous title from another ascendant, or a &rother or sister, is o&li ed to reserve such propert# as he ma# have acquired &# operation of law for the &enefit of relatives who are within the third de ree and who &elon to the line from which the said propert# came! Illustration and dia ramC Reservatorio O (Ori in) - (Reservista)

P <Preposit%s)

154
P (preposit%s) inherits a piece of land from his father, O (ori in)! )u&sequentl#, P dies intestate, sin le and without issue, and the land is in turn inherited &# his mother - (reservista)! - is now required to reserve the propert# in favor of PHs paternal relatives within the third de ree (rerservatorios)! What are the three tra!sm ss o!s are !)o')ed ! a reserva troncal% 1. 7irst transmission &# ratuitous title from an ascendant or &rother or sister to the decedent$ ( posterior transmission &# operation of law, from the decedent in favor of another ascendant &elon in to another OOperation of lawC 1) compulsor# succession$ 4) intestate succession! Cannot &eC 1) testate succession, 4) donationP$ ( third transmission of the same propert# from the reservoir or reservista to the reservatorio! -*)*-6I)T(

2.

3.

()C*2D(2T

()C*2D(2T (-*C*I6*) :. L(/)

@-D D*5-** (-*)*-6(TO-IO)) -*L(TI6*) D*)C*2D(2T (P-*PO)IT,)) L*5! -*L(TI6*) 1! -*C*I6*) P-OP*-T. :. 5-(T,ITO,) TITL* What are the $ur$oses of reserve troncal? 4! DI*D /IT0O,T I)),*

155

1! 4!

To prevent certain properties from passin from one famil# to the other or from one trun' or from one line to the other throu h accident of lac' of heir$ To maintain as a&solute as possi&le, with respect to the propert# to which it refers, a separation &etween the paternal and maternal line so that propert# of one line ma# not pass to the other or throu h them to stran ers! !)o')ed ! a reserva

Who are the $erso!s troncal%

1. 2. 3. 4.

Ori in or mediate source ; the ascendant, &rother or sister, 'nown as the ori in, from whom the descendant;proposit%s acquired the propert# &# ratuitous title! Reservista ; the ascendant acquired the propert# &# operation of law$ Preposit%s ; the descendant who acquired the propert# &# ratuitous title from an ascendant$ Reservatorio ; the relatives of proposit%s, who are within the third de and who &elon to the line from which propert# came and for whose &enefit reservation is constituted! the ree the the

What are the requ s tes ! reserva troncal? 1! 4! @! A! The propert# was acquired &# a person from an ascendant or from a &rother or sister &# ratuitous title$ Propert# was inherited &# operation of law &# an ascendant from a descendant upon the death of the latter$ Descendant should have died without an# le itimate issue in the direct descendin line who could inherit from him$ There must &e relatives of the descendant who are within the third de ree and who &elon to the line from which the propert# came!

Notes0

156
(ll relationship must &e le itimate! In effect, this requirement punishes le itimate relations &ecause if the relation is ille itimate, there is no o&li ation to reserve! 0owever, it does not necessaril# mean that all four are related to each other, for the ascendant; reservista ma# not &e related at all to the ascendant from where the propert# ori inated! It onl# means that the parties are related to the preposit%s le itimatel#! The point of reference is the preposit%s! The term descendant should read person, &ecause if the rantor is a &rother or sister, the one acquirin o&viousl# is not a descendant! That the descendant died without le itimate issue, &ecause onl# le itimate descendants will prevent the propert# from &ein inherited &# the le itimate ascendin line &# operation of law! Transmission &# operation of law is limited to succession, either to the le itime or &# intestac#! What s the mea! !" of the term @d& !" # thout

ssueA%

The issue of a person consists of his children, randchildren, and all other lineal descendants! It means d#in without issue (descendants) in the lifetime or at the death of the part# and not an indefinite failure of issue! Ca! there (e reser)e ado$ted ch 'd% f the prepositus s a!

,nder the old ruleC 2o, &ecause adoption onl# creates a personal relationship &etween the adopter and the adopted$ hence, there are no relatives of the adopted or adopter &# adoption! 7or the same reason, an adopted child cannot claim the &enefit of reserva tron-al, and therefore cannot &e a reserve throu h adoption! ,nder the new ruleC .es! The adopted ma# represent the adopter in the inheritance of the latterHs parents ()ection 13, -!(! 2o! >BB4 O1?>>P)! G?
69

)ection 13! Le&itima-y. E The adoptee shall &e considered the le itimate son9dau hter of the adopter(s) for all intents and purposes and as such is entitled to all the ri hts and

157

Su$$ose that there are se)era' $erso!s #ho ca! qua' f& as reservatorios2 to #hom sha'' the reser)a('e $ro$ert& (e ad;ud cated% In such a case, the rules of intestate succession shall appl#! This is &ecause (rticle >?1 merel# determines the roup of relatives to whom the reserva&le propert# should &e returned$ it is silent with re ard to the individual ri ht of such relatives to the propert#! Thus, the followin principles of intestate succession still appl#C

1.

The principle of preference E relatives of the preposit%s in the direct ascendin line shall e<clude his relatives in the collateral line$ randparents are preferred over &rothers and sisters! O-elatives in the direct ascendin shall e<clude relatives in the collateral lines!P$ If all claimants &elon to the same line, the principle of pro<imit# shall appl# E relatives of the preposit%s nearest in de ree shall e<clude the more remote ones$ Principle of representation E provided that the representatives are relatives of the preposit%s within the third de ree$ If all of the claimants are &rothers and sisters of the preposit%s and some of the half &lood and others of the full &lood, the principle of dou&le share for the full &lood collaterals shall appl# E those of the full &lood shall &e entitled to dou&le the share of those of the half &lood! s the mea! !" of @' !eA ! reserva

2. 3. 4.

What troncal?

The term DlineF is not used in the :%ri2i-oC &eometri-al sense of direct or collateral lines, &ut in the familiar sense of paternal and maternal lines! *<ceptionC /hen the ori in is a full;&lood &rother or sister, who comes from the same common parents, the line would &e the same! Ca! mo!e& (e reser)ed% o&li ations provided &# law to le itimate sons9dau hters &orn to them without discrimination of an# 'ind! < < < < )-!(! 2o! >BB4C Domestic (doption (ct of 1?>>)!

158

.es! In mone#, the propert# is the purchasin power and not the &ills! (s such, the value of the mone# can &e reserved! The or " !Jmed ate source0 0e is either an ascendant or a &rother or sister of the preposit%s7 1! 4! If an ascendant E he ma# &e an# de ree of ascent$ If a &rother9sister E there are 4 schools of thou htC

a.

If the ori in is a &rother9sister, the relationship must &e of the half &lood, &ecause otherwise the propert# would not chan e lines in passin to a common ascendant of the preposit%s and the &rother! There should, in other words &e no reserve if the fraternal relationship is of the full &lood for them it would not &e possi&le to identif# the line of ori in;whether paternal or maternal (L:L -e#es)$ It does not matter whether the fraternal relationship is of the full; or the half;&lood! In either case a reseva ma# arise! )ince the law ma'es no distinction, we should not ma'e one ("anresa)!

b.

The prepositus or propositus0 0e is either a descendant or a &rother9sister of the ori in, who receives the propert# from the ori in &# ratuitous title! Thus, in the scheme of the reserva tron-al, he is the first transferee of the propert#! 0e is the point of reference of the @rd de ree relationship! /hile the propert# is still with the preposit%s there is as #et no reserve! Durin the lifetime of the preposit%s, he is the full owner of the propert#! 0e can therefore alienate the propert# and defeat the seeds of reserva tron-al at this point of time! 0e can even prevent the supposed reservor from receivin it (&# operation of law) causin its partition! The reserve arises onl# upon the second transferor!

159
The ori in must &e a le itimate relative &ecause reserva tron-al e<ists onl# in the le itimate famil#! The preposit%s must &e a le itimate descendant or a le itimate half &rother of the ori in of the propert#! The reservista or reservor 0e is an ascendant of the preposit%s &# whatever de ree! The reservista must &e an ascendant other than the ori in$ otherwise, if the two parties are the same person, there would &e no reserva tron-al! 0e must &e another ascendant other than the mediate source, if the mediate source is an ascendant! The reservor must have inherited the propert# &# operation of law (as share in le al succession or as le itime in testamentar# succession)! If he acquire it throu h other means, there is no o&li ation to reserve! Reserva tron-al &e ins once the reservista inherits the propert#! 0e is &ound &# the o&li ation! The ownership of the reservoir over the propert# is full ownership su&%ect, however, to two (4) resolutor# conditionsC (1) his death$ and (4) on his death, the presence of relatives of the preposit%s who are within the third de ree of consan uinit#! ,pon the death of the reservor, his ownership is terminated and the same is transferred to the reserves! Shou'd the or " ! a!d the reservista (e'o!" to d ffere!t ' !es% 8uer# illustratedC ( receives &# donation a parcel of land from his paternal randfather I! ,pon (Hs death, the parcel passes &# intestac# to his father . (IHs son)! The propert# never left the line! Is . o&li ed to reserveN One viewC 2o, &ecause Danother ascendant is one &elon in to a line other than that of the reservista;! (nother viewC .es, &ecauseC 1) the law ma'es no distinction, and 4) the purpose of the reserve is not onl# curative, &ut also preventive$ i.e. to prevent the propert# from leavin the line! This is the view accepted &# the ma%orit#!

160
?a& the reservista se'' the reser)a('e $ro$ert&% If so2 #hat s the !ature of the sa'e% .es, &ecause he acquired ownership of the reserva&le propert# upon the death of the descendant proposit%s! The sale, however, is su&%ect to the resolutor# condition that there must e<ist, at the time of his death, relatives of the descendant who are within the third de ree and who &elon to the line from which the propert# came! In this case, the &u#er acquires a limited and revoca&le title! (fter the death of the reservista, the reservatorios ma# rescind the contract &ecause the resolutor# condition to which the reserve is su&%ect has alread# &een fulfilled! If the reservor has alienated the propert#, his estate will reim&urse the reserves for the value of the reserved properties which were alienated (L%nso2 vs. Orte&a, +0 P!il. 00+)! Ca! the reservista e*ecute a # '' d s$os !" of the reser)a('e $ro$ert&% 2o, &ecause the reserva&le propert# does &elon to him or his estate! The propert# &elon s to the reservatorios if the# are e<istin upon the reservistaHs death! The reservoir cannot dispose of the reserva&le propert# &# acts mortis -a%sa &ecause upon his death, the propert# does not &elon to his estate! (utomaticall#, and &# operation of law, the reserves if there are an#, &ecome the owners thereof! Is the reser)ed $ro$ert& $art of the reservistaDs estate #h ch ca! (e tra!sm tted to h s he rs or #h ch ma& (e used to $a& the de(ts of h s estate% ( reservista is nothin &ut a life usufructuar# or a fiduciar# of the reserva&le propert# received! -eserva&le propert# neither comes, nor falls under the a&solute dominion of the ascendant who inherits and receives same from descendant, therefore does not form part of his propert# nor &ecome the le itime of his forced heirs! It &ecomes his own propert# onl# in case that all relatives of his own descendant shall have died in which case said reserva&le propert# losses such character OFlorentino vs. Florentino, +# P!il. + #P!

161
The reserved propert# is not part of the reservistaHs estate upon his death! It does not even answer to the de&ts of the latter OCano vs. Dire-tor, )#1 P!il. )P! The reserva&le propert# cannot &e transmitted &# a reservista to his or her own successors mortis -a%sa so lon as a reservatorio within the @rd de ree from the proposit%s are in e<istence when the reservista dies! Consequentl#, the creditors of the reservor cannot attach or lev# on e<ecution a reserva&le propert# temporaril# held &# the reservor. Ca! the $ro$ert& reser)ed (e su(st tuted% The ver# same propert# must o to the process of transmissions in order for the reserve to arise! Thus, the same propert# must come from the mediate source, to the preposit%s &# ratuitous title, and to the reservista &# operation of law! If the preposit%s su&stitutes the propert# &# sellin , &arterin , or e<chan in it, the su&stitute cannot &e reserved, since while the propert# is with the preposit%s, there is #et no reserve, which commences onl# when the propert# is received &# the reservista! Consequentl#, the preposit%s has, over the propert#, plenar# powers of ownership, and he ma# e<ercise these powers to thwart a potential reserve. This refers to all 'inds of properties E real or personal, fun i&le or non fun i&le! What s the !ature of reservistaDs r "ht%

1. 2.
@!

The reservistaHs ri ht over the reserved propert# is one of ownership$ The ownership is su&%ect to a resolutor# condition, i.e. the e<istence of reservatorios at the time of the reservistaHs death$ The ri ht of ownership is aliena&le, &ut su&%ect to the same resolutor# condition$ The reservistaHs ri ht of ownership is re istra&le! # ''2 $refer some

4.

Ca! the reservista2 (& reservatorios o)er the others%

162
The# have no power to appoint &# will such reservatorios who would et the reserved propert#! Su$$ose the reservista s sur) )ed (& the u!c'es a!d au!ts a!d (& !e$he#s a!d ! eces of the prepositus2 #ho sha'' (e e!t t'ed to the $ro$ert& reser)ed% The uncles and aunts shall not share in the reserva&le propert#, since under the law of intestate succession, a decedentHs uncles and aunts ma# not succeed a3 intestate so lon as nephews and nieces of the decedent survive and are willin and qualified to inherit! The reservatorios or reservees: The# are usuall# the followin C

1. 2.

1st de ree E father, mother$ 4nd de ree E rand parents of the line from which the properties ori inated and the &rothers of dou&le relationship or the half &lood comin form the source of the propert#$ @rd de ree E reat randparents from said line, the 1st de ree uncles and the nephews, children of the &rothers or half &rothers of the descendant as the case ma# &e!

3.

The reserve is in favor of a class, collectivel# referred to as the reservatorios! What are reservatorio? the requ reme!ts to (e a

1. 2. 3.

The reservee <reservatorio= relations of consan uinit#$

must

have

dou&le

0e must &e related &# &lood to the descendant E preposit%s or to the other ascendant, or &rother or sister (ori in) from whom the propert# came$ 0e must &e within the third de ree from the preposit%s$

163
A! 0e must &elon to the line from which the propert# came! This is determined &# the ori in9mediate source$ The# must &e le itimate relatives of the ori in and preposit%s$ The# must &e livin at the time of the death of the reservista thou h ma# not have e<isted #et at the time of death of the proposit%s!

5. 6.

?ust the reservatorio a'so (e re'ated to the med ate source% One viewC 2o, the article onl# spea's solel# of two lines, the paternal and the maternal of the descendant, without re ard to su&stitutions! (nother viewC .es, otherwise, results would arise completel# contrar# to the purpose of the reserve, which is to prevent propert# from passin to persons not of the line of ori in! Reserva ! fa)or of reservatorios2 as a c'ass co!seque!ce0 To (e qua' f ed as a reservatorio2 s t !ecessar& that o!e must a'read& (e ' ) !" #he! the prepositus d es% The &etter opinion seems to &e that this is not required, &ecause the reserve is esta&lished in favor of a roup or class$ the relatives within the third de ree;not in favor of specified individuals, as lon as one &elon s to the class when the reservista dies, then one is a reservatorio! (s lon therefore as the reservatorio is alive at the time of the reservistaHs death, he qualifies as such, even if he was conceived and &orn after the preposit%s death! What are therefore the o!'& requ s tes for the $ass !" of the t t'e from the reservista to the reservatorio% The# are (1) death of the reservista$ and (4) the fact that the reservatorio has survived the reservista! From #hom do the reservatorios !her t% The# inherit from the descendant proposit%s and not from the reservista, of whom the reservatorios are the heirs

164
mortis -a%sa, su&%ect to the condition that the# must survive the reservista! The reserva&le propert# is not part of the estate of the reservista, who ma# not dispose of it &# will, as lon as there are reservatorios e<istin ! Is there $refere!ce amo!" the reservatorios% The# are &eneficiaries in equal shares, re ardless of the difference in de ree of relationship with the preposit%s. Is there re$rese!tat o! amo!" reservatorios% (s in intestate succession, the rule of preference of de ree amon reservatorios is qualified &# the rule of representation! If the claimants of the propert# after the death of the reservor are &rothers and sisters of the preposit%s and nephews and nieces (children of other &rothers and sisters who have predeceased the reservoir), the ri ht of representation is applica&le as lon as the representatives are relatives to the preposit%s within the third de ree (Florentino vs. Florentino, +# P!il. + .)! What are the reservatorioDs r "hts%

(1) The (2) The

reservatorios have a ri ht of e<pectanc# over the propert#$

ri ht is su&%ect to a suspensive condition, i.e. the e<pectanc# ripens into ownership if the reservatorios survive the reservista$ (@) The ri ht is aliena&le, &ut su&%ect to the same suspensive condition$ (A) The ri ht is re istra&le! Ca! the reservatorio (reservee) a' e!ate h s r "ht of e*$ecta!c& dur !" the ' fet me of the reservor% The )upreme Court answered in the ne ative in the case of E2roso vs. Sa3lan, *+ P!il. *.1, decided on )eptem&er 1@, 1?1@! Later, the )upreme Court in the case of Sienes vs. Espar-ia, ) SCRA "1# decided on "arch 4A, 1?G1 a&andoned the E2roso doctrine holdin that the reservee ma# alienate the reserva&le propert# durin the lifetime of the reservor su&%ect to the resolutor# condition that he would survive the reservor! If he does not survive the reservor, the ownership of the latter &ecomes fi<ed and consolidated renderin ineffective the sale made &# the reservee!

165

,nder the new Civil Code, Dfuture propert#F or Dthereafter;acquired propert#F which is merel# an e<pectanc# can &e sold ((rticles 1AG1 and 1AG4)! 3= Reserva Ma ima a!d Reserva Minima What are reserva ma ima a!d reserva minima? Reserva maAima is a principle which provides that the reserva applies to all the propert# ratuitousl# acquired from the ascendant, &rother or sister which could &e included within the le itime of the reservor received from the estate of the preposit%s. Reseva minima, on the other hand provides that all propert# passin to the reservor must &e considered as passin partl# &# operation of law and partl# &# will of the preposit%s! -esultin l#, one;half of the propert# acquired ratuitousl# &# the preposit%s should &e reserva&le propert# and the other half should &e free and remain in the estate of the reservor. I''ustrat o!0 A d ed 'ea) !" a # ''- C rece )ed P62 9992 999 from A (& ) rtue of the 'atterDs # ''- C ! h s o#! r "ht2 acqu red $ro$ert es #orth P:2 9992 999- C d ed # thout ssue- I! h s # ''2 he "a)e the e!t ret& of h s estate .P<2 9992 999/ to 5- O!e+ha'f of th s P< ? '' o! #as rece )ed (& 5 (& o$erat o! of 'a# .i!e! 'e" t me/ a!d the other ha'f (& # '' as )o'u!tar& he r(rticle 1AG1! Thin s havin potential e<istence ma# &e the o&%ect of the contract of sale! The efficac# of the sale of a mere hope or e<pectanc# is deemed su&%ect to the condition that the thin will come into e<istence! The sale of a vain hope or e<pectanc# is void! (rticle 1AG4! The oods which form the su&%ect of a contract of sale ma# &e either e<istin oods, owned or possessed &# the seller, or oods to &e manufactured, raised, or acquired &# the seller after the perfection of the contract of sale, in this Title called Dfuture oodsF! There ma# &e a contract of sale of oods, whose acquisition &# the seller depends upon a contin enc# which ma# or ma# not happen!
70

166

Whe! 5 d ed2 there s a sur) ) !" re'at )e #ho qua' f ed as a reservee .,/Is the e!t re $ro$ert& .P<2 9992 999/ rece )ed (& 5 reser)a('e% The reserva&le propert# refers onl# to the P1 "illion received &# C from ( and not the entire P@, ===, ===! Out of th s reser)a('e $ort o!% P6 ? '' o!2 ho# much s the

1.

:ased on the principle of reserva maAima, the reserva&le portion of the estate of C shall include all properties or mone# which can &e comprised within the one;half of the inheritance constitutin the l itime of the reservor (:)! )ince the le itime of : in the entire estate of C is P1, B==, ===! It is clear that the P1, ===, === received &# C ratuitousl# from ( can &e contained within that le itime! 0ence, this P1, ===, === is totall# reserva&le! :ased on the principle of reserva minima, the reserva&le propert# is onl# PB==, ===! This is premised on the fact that onl# one;half of the P1, ===, === was received &# : (reservor) as le itime which is &# operation of law, &ecause the other half (PB==, ===) was received &# will &# : as voluntar# heir!

2.

Su$$ose C d ed !testate a!d 5 s h s o!'& !testate he r2 ho# much s the reser)a('e $ro$ert&% (ll the amount received from ( is reserva&le propert# &ecause all was received &# operation of all! Note0 The principles of reserva maAima and reserva minima are advocated &# "anresa and )caevola! These principles or theories need not &e followed in the Philippines! The# will onl# complicate the alread# complicated reserva tron-al. The law must &e interpreted to mean that the entire propert# actuall# received &# the preposit%s &e considered reserva&le! The phrase D&# operation of lawF should not &e considered in its technical sense! It should &e read simpl# to mean DinheritedF &# the reservor! Otherwise, if some part of the propert# will &e retained &# the reservor, the intention to return the propert# to the Dtrun'F where it came from is partl# defeated! Therefore, if reserva tron-al is applica&le, the

167
pro&lem will %ust &e a matter 'nowin its value and which reservees, if there are an#! If shall remain part of the estate to his own heirs! of identif#in the propert# or must &e transmitted to the there are none, the propert# of the reservor and shall pass

E*t !"u shme!t Ho# ma& the reserva (e e*t !"u shed%

1. 2. 3.

The death of the reservor or reservista$ The death or incapacit# of all the would;&e reservatorios or reservees durin the lifetime of the reservor or reservista $ -enunciation or waiver &# all the reservatorios of their ri ht to the reserva made su&sequent to the death of the reservor, provided that no other reservatorio is &orn su&sequentl#$ Total fortuitous loss or destruction of the reserved propert# without an# fault or ne li ence on the part of the reservor or reservista $ Confusion or mer er of ri hts, as when the reservatorio acquire the reservistaHs ri ht &# a contract inter vivos$ Prescription of action to recover propert# from the estate of the reservor or adverse possession! Prescription is ten #ears! -e istration of the reserved propert# under the Torrens )#stem as free from the reservation and its su&sequent alienation to a third part# who ot it in ood faith (De los Reyes vs. Paterno, ,+ P!il. +"#)$ *stoppel and laches (Arroyo vs. Berona, 1 P!il. *00)!

4. 5. 6. 7.

8.

What are the r "hts a!d o(' "at o!s of the $art es%

a.

-i hts of the reservatoriosC (1) To demand inventor# and appraisal of mova&les$

168
(4) To demand annotation of reserva&le character of the immova&le within ?= da#s$ (@) To demand securit# and &ond!

b.

O&li ations of the reservistasC (1) To inventor# and appraise mova&les within ?= da#s$ (4) To annotate reserva&le character of the immova&le within ?= da#s$ (@) To ive securit# and &ond$ (A) 0e must not su&stitute the reserva&le propert# with another! SECTION 8- ,ISINHERITANCE

,ef !e d s !her ta!ce It is the process or act, thru a testamentar# disposition of deprivin in a will an# compulsor# heir of his le itime for true and lawful causes! What are d s !her ta!ce% 1! the requ s tes of a )a' d

It must &e made in a will ((rticle ?1G)$ 1!1 The will must &e formal and valid$ 1!4 The will must not have &een revo'ed E at least in so far as the disinheritance is concerned!

4! @!

Disinheritance must &e e<pressl# made, that is, the identit# of the heir must &e identified$ It must specif# the cause ((rticles ?1G;?1>)$ @!1 (rticle ?1? for descendant$ @!4 (rticle ?4= for ascendant$ and @!@ (rticle ?41 for survivin spouse

A!

It must &e for a cause specified &# law Ofor a le al causeP ((rticle ?1G in relation to (rticles ?1?;?41)$

169

A!1 The cause must &e stated in the will! B! G! 3! It must &e unconditional and a&solute$ It must &e total or complete disinheritance$ The cause must &e certain and true ((rticle ?1>)$ 3!1 It must &e for an e<istin cause E its e<istence must &e proved &# evidence! 3!4 If the truth of the cause is denied, it must &e proved &# the proponent ((rticle ?13) Who has the (urde! of $ro) !" the truth of the cause for d s !her ta!ce% If there is a testamentar# disposition where&# a compulsor# heir is &ein disinherited for a cause mentioned in the law, &ut the said heir denies the truth of the alle ed cause, the &urden of proof rests upon the heirs (not necessaril# forced heirs) who wish to sustain the disinheritance ((rticle ?13)! If the# cannot prove the truth or e<istence of the cause, the disinheritance is void and the compulsor# heir could not &e deprived of his le itime! Preponderance of evidence is enou h in provin the truth of the cause for disinheritance! A #as d s !her ted (& h s father o! the "rou!d of refusa' # thout ;ust f a('e cause to su$$ort h m- He de! ed t- What s the effect of such de! a'% The other heirs should then prove the truth of the cause for disinheritance! ,nder the law, the &urden of provin the truth of the cause of the disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should den# it ((rticle ?13)! Proponent of disinheritance has the &urden of proof! There is no presumption that the cause is true! The presumption is falsehood! What s the effect of d s !her ta!ce% The effect of disinheritance is not %ust deprivation is not %ust deprivation of the le itime &ut the total e<clusion of the disinherited heir, from the inheritance! Thus, the disinherited heir forfeitsC

170

a! &! c!

0is le itime$ 0is intestate portion$ and (n# other testamentar# disposition made in a prior will of the disinheritin testator! What s !effect )e d s !her ta!ce%

It is disinheritance which lac's one or other of the requisites, either &ecause it isC 1! 4! @! /ithout a specification of the cause, or 7or a cause the truth of which, if contradicted, is not proved, or The cause of which is not one of those set forth in the Civil Code ((rticle ?1>)! What s the effect of !effect )e d s !her ta!ce% 1! 4! @! It shall annul the institution of heirs insofar as it ma# pre%udice the person disinherited$ :ut the devises and le acies and other testamentar# dispositions shall &e valid to such e<tent as will not impair the le itime ((rticle ?1>)$ The effect of a defective or imperfect disinheritance is the same as that of preterition of a compulsor# heir ((rticle >BA)!

If there s !effect )e or m$erfect d s !her ta!ce2 # '' the he r ! quest o! "et a!& $art of the free $ort o! other tha! h s 'e" t me% The heir in question ets his le itime, &ut as to whether he will also et an# part if the intestate portion or not, depends on whether the testator ave awa# the free portion throu h testamentar# dispositions! If he did, these dispositions are valid and the compulsor# heir improperl# disinherited ets his le itime! If the testator did not, the compulsor# heir will &e entitled to his correspondin share of the free portion as well! What s the d ffere!ce d s !her ta!ce a!d $reter t o!% (et#ee! m$erfect

In preterition, the institution of heirs is completel# annulled, while in imperfect disinheritance, the institution remains valid, &ut must &e reduced insofar as the le itime has &een impaired!

171

What are the suff c e!t causes for the d s !her ta!ce of ch 'dre! a!d desce!da!ts2 'e" t mate as #e'' as ''e" t mate% 1! /hen a child or descendant has &een found uilt# of an attempt a ainst the life of the testator, his or her spouse, descendants, or ascendants$ /hen a child or descendant has accused the testator of a crime for which the law prescri&es imprisonment for si< #ears or more, if the accusation has &een found roundless$ /hen a child or descendant has &een convicted of adulter# or concu&ina e with the spouse of the testator$ /hen a child or descendant &# fraud, violence, intimidation, or undue influence causes the testator to ma'e a will or chan e one alread# made$ ( refusal without %ustifia&le cause to support the parent or ascendant who disinherits such child or descendant$ "altreatment of the testator &# word or deed, &# the child or descendant$ /hen a child or descendant leads a dishonora&le or dis raceful life$ Conviction of a crime which carries with it the penalt# of civil interdiction ((rticle ?1?)!

4!

@! A!

B! G! 3! >!

NOTE0 *numeration is e<clusive! The list is an e<clusive list and not illustrative! What does the term ch 'dre! a!d desce!da!ts !c'ude ! Art c'e 767% The children or descendants referred to in the (rticle include the le itimate and ille itimate (reco niJed) children and include randchildren, reat; randchildren and so on! The# are compulsor# heirs! Ca! a! !testate he r #ho s !ot a com$u'sor& he r (e the su(;ect of d s !her ta!ce% Intestate heirs who are not compulsor# heirs (not entitled to le itime) cannot &e the su&%ect of disinheritance! The ri ht to disinherit must &e e<ercised throu h a will where

172
the specific cause for disinheritance must &e specificall# stated! Re0 Par- 6 .Attem$t a"a !st the ' fe of testator/ The word attempt is used non;technicall# and should not &e construed to limit the provision to the attempted sta e of the felon#! (ll sta es of commission are included E whether attempted, frustrated or consummated! The felon# must &e an intentional one E the intent to 'ill must &e present, thus rec'less imprudence resultin in homicide is not covered! 7inal conviction is required! If the child or descendant participated in the commission of the crime as an accomplice, he can still &e disinherited, :ut if he is %ust an accessor# after;the;fact, as his participation was su&sequent to the commission of the crime, he could not &e disinherited! If after havin &een found uilt# as a principal or an accomplice, the child or descendant is ranted e<ecutive clemenc# or pardon, he ma# still &e disinherited! The disinheritance is personal to the testator! 0e has the prero ative to e<clude a person from his estate if there is a valid round! Re0 Par- : .Grou!d'ess or (ase'ess accusat o! a"a !st the testator/ The word accused is enericall#, and will include filin of the complaint &efore the prosecutor, or presentin incriminatin evidence a ainst the testator, or even suppressin e<culpator# evidence! The accusation must &e in connection with a criminal case! The accusation must &e for a crime which carries a penalt# of at least si< #ears imprisonment (afflicitive penalt#)!

173
The testator must &e acquitted! The accusation must &e found roundless, i!e!, the %ud ment of acquittal must state either that no crime was committed or that the accused did not commit the crime! (n acquittal on reasona&le dou&t will not &e a round for disinheritance! Re0 Par- < .Co!) ct o! co!cu( !a"e # th the testator/ 7inal conviction is required! The uilt# spouse is deemed disinherited &# operation of law in case of a le al separation decreed &# the court ((rticle G@ Opar! AP 7C)! This is disinheritance without formal disposition in a will! If &oth the child and the spouse happen to &e compulsor# heirs of the testator, he could disinherit them to ether in his will! :ut there must first &e conviction if the &asis is (rticle ?1? (par! @)! ,nder (rticle ?41 (par! A), conviction is not required! It is enou h to prove the adulter# or concu&ina e durin the testate or intestate proceedin s! Re0 Par- E .Caus !" the testator to ma>e a # '' or cha!"e a'read& made/ Does not mention prevent, &ut prevention is a round for unworthiness ((rt! 1=@4) which has the same effect as disinheritance! Re0 Par- = .U!;ust f a('e refusa' to " )e su$$ort/ There must have &een a need and a demand for support either %udiciall# or e<tra;%udiciall#! The demand must have &een un%ustifia&l# refused! Re0 Par- 8 .?a'treatme!t of the testator/ This will include a wide ran e of misdeeds, &ut it is required that the act of ver&al or ph#sical assault &e of a serious nature! for adu'ter& or s$ouse of the

174

"altreatment could &e &# word or &# deed! (ll acts of ph#sical violence a ainst the testator &ut not sufficient to 'ill are encompassed in maltreatment! Otherwise, the act or acts ma# fall under para raph 1! *<ampleC The son shoots his father! The father is wounded &ut recovers! The father does not want a scandal so he does not file char es a ainst his son! )o he disinherits his son not under 2o! 1 &ut under 2o! G! 2o conviction is required$ in fact, it is not even required that an# criminal case &e filed Re0 Par- H .Lead !" a d sho!ora('e or d s"racefu' ' fe/

The operative word here is TleadH! There must &e a ha&itualit#, continuit# and constanc# to the conduct to ma'e it fall under this para raph The dishonora&le or dis raceful conduct need not &e se<ual in nature$ dru pushin or smu lin is included! Re0 Par- G .Co!) ct o! for a cr me # th c ) ' !terd ct o!/

7inal conviction is required! Summar&0

1!

Conviction is required in 2os! 1, 4, @ W ?! Common causesC Para raphs 1, 4, @, A, B of (rticle ?1? are also amon the causes for disinheritin parents and ascendants (6i2eC Para raphs 4, @, A, B and 3 of (rticle ?4=)! Para raphs 1, 4, @ and A are amon the causes which constitute acts of unworthiness which disqualif# an heir, devisee or le atee from succeedin the testator (6i2eC Para raphs 4, @, B and G of (rticle 1=@4)

2. 3.

175
Ca! a! ado$ted ch 'd (e d s !her ted (& the ado$t !" $are!t% ,nder the Domestic (doption (ct of 1?>> (-!(!) 2o! >BB4 approved on 7e&ruar# 4B, 1?>>), adopted children can &e disinherited &# the adoptin parents ()ection 1?, -!(! >BB4)! The reason for this is that, the ri ht of the adoptin parent to rescind the adoption authoriJed under (rticle 1?4 of the 7amil# Code had &een a&ro ated &# the new law! Instead of rescission, the new law simpl# authoriJed the adoptin parents to disinherit the adopted if an# of the causes for disinheritance under (rticle ?1? e<ists! This new provision is a complementar# to the prevailin %urisprudence that adopted children, if preterited in a will, shall cause the nullification of the institution if heirs (A-ain vs. IAC, )11 SCRA 1##)! If the adopter died intestate, no disinheritance could &e effected &ecause disinheritance can appl# onl# in testamentar# succession! ,nder the new law, the adopted child is impliedl# iven the ri ht of representation which ri ht was not accorded to him &efore ()ection 13, -!(! 2o! >BB4)! What are the suff c e!t causes d s !her ta!ce of $are!ts or asce!da!ts2 'e" t mate or ''e" t mate% 1! 4! @! for the #hether

A! B!

G!

/hen the parents have a&andoned their children or induced their dau hters to live a corrupt or immoral life, or attempted a ainst their virtue$ /hen a parent or ascendant has &een convicted of an attempt a ainst the life of the testator, his or her spouse, descendants, or ascendants$ /hen the parent or ascendant has accused the testator of a crime for which the law prescri&es an imprisonment for si< #ears or more, if the accusation has &een found to &e false$ /hen the parent or ascendant has &een convicted of adulter# or concu&ina e with the spouse of the testator$ /hen the parent or ascendant &# fraud, violence, intimidation, or undue influence causes the testator to ma'e a will or chan e one alread# made$ The loss of parental authorit# for causes specified in this Code$

176
3! >! The refusal to support the children or descendants without %ustifia&le cause$ (n attempt &# one of the parents a ainst the life of the other, unless there has &een reconciliation &etween them ((rticle ?4=)!

NOTES0 *numeration is e<clusive! 2os! 4, B W 3 are the same as the rounds in (rt! ?1?! *<ception to par! GC (doption, a e of ma%orit#! The loss of parental authorit# should have &een effected eitherC i! ii! iii! :# final %ud ment in a criminal case, or :# final %ud ment in a le al separation proceedin , or :# %udicial order due to e<cessive harshness, corruptin orders or e<amples or counsels, ma'in the child &e , or a&andonment!

-elatedl#, those found uilt# of adulter# or concu&ina e with one another cannot donate properties to each other ((rticle 3@?)! 2either can the# succeed each other ((rticle 1=4>)! *<ception to par! >C If the offended parent has for iven the offendin parent or if reconciliation has &een reached &etween them, the disinheritance of the former will not &e sanctioned &# law!

What are the suff c e!t causes for d s !her t !" of a s$ouse% 1! 4! /hen the spouse has &een convicted of an attempt a ainst the life of the testator, his or her descendants, or ascendants$ /hen the spouse has accused the testator of a crime for which the law prescri&es imprisonment for si< #ears or more, and the accusation has &een found to &e false$ /hen the spouse &# fraud, violence, intimidation or undue influence causes the latter to ma'e a will or to chan e one alread# made$

@!

177
A! B! G! /hen the spouse has iven rounds for le al separation$ /hen the spouse has iven rounds for the loss of parental authorit#$ ,n%ustifia&le refusal to support the children or the other spouse ((rticle ?41)!

NoteC ( decree of le al separation is not required! What s the effect of su(seque!t reco!c ' at o!% ( su&sequent reconciliation &etween the offender and the offended person deprives the latter of the ri ht to disinherit and renders ineffectual an# disinheritance that ma# have &een made ((rticle ?44) Therefore, if reconciliation occurs &efore the disinheritance is made E ri ht to disinherit is e<tin uished! If it occurs after the disinheritance is made E disinheritance is set aside! In this case, no revocation of the will is needed! The reconciliation itself repudiates the will! What are the other #a&s of ' ft !" or re)o> !" d s !her ta!ce% 1! 4! 2ullification of the will of the testator! The su&sequent institution of the disinherited heir in a su&sequent will! What s the effect d s !her ta!ce% a! &! of sett !" as de the

c!

The disinherited heir is restored to his le itime$ If the disinheritin will did not dispose of the disposa&le portion, the disinherited heir is entitled to his proportionate share (in intestac#), if an#, of the disposa&le portion! If the disinheritin will disposed of disposa&le portion in favor of testamentar# heirs, such dispositions remain valid!

Note0 There is no required form of reconciliation! It ma# &e e<press or implied! In fact, the mere act of livin to ether in the same house is sufficient! Is there d s !her ta!ce% a r "ht of re$rese!tat o! !

178

The ri ht of representation is ranted to descendants of disinherited descendants onl# ((rticle ?34 provides that the ri ht of representation ta'es place in the direct descendin line, &ut never in the ascendin line)! Thus, a disinherited child will &e represented &# his children or other descendants! 0owever, if the heir disinherited is a parent9ascendant or spouse, the children or descendants of the disinherited heir do not have an# ri ht of representation! The ver# propert# which the children and descendants have received as le itime in representation of the disinherited heir cannot &e administered &# the disinherited heir$ neither can he e<ercise an# ri ht of usufruct over the same ((rticle ?4@)! What s the e*te!t of re$rese!tat o!% The representative ta'es the place of the disinherited heir not onl# with respect to the le time &ut also to an# intestate portion that the disinherited heir would have inherited, if the free portion was not disposed in favor of testamentar# heirs! -epresentation, therefore, occurs in compulsor# and intestate succession! SECTION H- LEGACIES AN, ,EVISES What s 'e"ac&% It is a testamentar# disposition of personal propert# &# particular title! What s de) se% It is a testamentar# disposition of real propert# &# particular title! , st !"u sh ord !ar& he r'e"atee a!d de) see from a!

*ssentiall#, the difference is that an heir receives an aliquot or fractional part of the inheritance, whereas a le atee

179
or devisee receives specific or respectivel#! What s the def ! t o!Jd st !ct o!% eneric personalt# or realt#, m$orta!ce of the

To distin uish it from a testamentar# disposition to an heir &ecause of the effects of preterition! What ca! (e de) sed or (equeathed% (n#thin within the commerce of man! It is not required that the thin devised or &equeathed &elon to the testator! What s the ' m tat o! o! the 'e"ac& or de) se% It should not impair the le itime! Who s char"ed # th the $a&me!t or de' )er& of a 'e"ac& or de) se% 5eneral rule E the estate! 0owever, the testator ma# impose the &urden on a testamentar# heir or a le atee or devisee, who shall &e &ound there&#! This will &e in the nature of a su&sidiar# le ac# or devise, and as far as the heir, le atee or devisee, it will &e a mode! What s the e*te!t of ' a( ' t& of he r2 de) see or 'e"atee ! case of su(s d ar& 'e"ac es or de) ses% The value of the &enefit received &# the testator! What s the ' a( ' t& of t#o or more he rs #ho ta>e $ossess o! of the estate for the 'oss or destruct o! of a th !" de) sed or (equeathed% The# shall &e solidaril# lia&le, even thou h onl# one of them should have &een ne li ent! The lia&ilit# imposed here is &ased on malice, fault or ne li ence! Who s ' a('e for e) ct o!% 5eneral rule E the estate!

180
In case of a su&sidiar# le ac# or devise E the heir, le atee, or devisee char ed! State the ru'e f the testator2 he r or 'e"atee o#!s o!'& a $art of2 or a! !terest ! the th !" (equeathed5eneral rule E conve#s onl# the interest or part owned &# the testator! *<ception E if the testator provides otherwise! State the ru'e f the testator co!)e&s more tha! he o#!sThe estate should tr# to acquire the part or interest owned &# the other parties! If the other parties are unwillin to alienate, the estate should ive the le atee9devisee the monetar# equivalent! State the ru'e #he! the 'e"ac&Jde) se of a th !" (e'o!"s to a!other1! If the testator ordered the acquisition of the thin E the order should &e complied with! If the owner is unwillin to part with the thin , the le atee9devisee should &e iven the monetar# value! If the testator erroneousl# &elieved that the thin &elon ed to him Ele ac#9devise is void! *<ception E if su&sequent to the ma'in of the disposition, the thin is acquired &# the testator onerousl# or ratuitousl#, the disposition is validated!

4! @!

State the ru'e f the 'e"ac&Jde) se of a th !" a'read& (e'o!"ed to the 'e"ateeJde) see1! 4! The le ac# of devise shall &e void$ and It shall not &e validate &# an alienation &# the le atee9devisee su&sequent to the ma'in of the will

State the ru'e f the th !" #as o#!ed (& a!other $erso! at the t me of ma> !" of the # '' a!d acqu red thereafter (& the 'e"ateeJde) see-

181
1! 4! If the testator erroneousl# &elieved that it &elon ed to him E the le ac#9devise is void! If the testator was not in error E a!

If the thin was acquired onerousl# &# the le atee9devisee E the latter is entitled to reim&ursement$ &! If the thin was acquired ratuitousl# &# the le atee9devisee E nothin more is due$ c! If the thin was owned &# the testator at the time of ma'in of the will and acquired thereafter from him &# the le atee9devisee E (rticles ?@4 and ?@@ are silent on this, &ut (rticle ?B3, par! 4 can &e applied and the le ac#9devise should &e deemed revo'ed! State the ru'es ! 'e"ac& of cred t or rem ss o!1! 4! @! It applies onl# to amount still unpaid at the time of the testatorHs death$ It is deemed revo'ed if testator su&sequentl# sues the de&tor for collection$ If eneric, it applies onl# to those e<istin at the time of the e<ecution of the will, unless otherwise provided! f the 'e"ac&Jde) se s to a

State the ru'e cred tor-

5eneral rule E treated li'e an# other le ac#9devise and therefore will not &e imputed to the de&t! *<ception E imputed to the de&t of the testator so provides, and if the de&t e<ceeds the le ac#9devise, the e<cess ma# &e demanded as an o&li ation of the estate! ,ef !e a'ter!at )e 'e"ac esJde) sesOne which provides that, amon mentioned, onl# one is to &e iven! Who has the r "ht of cho ce% 1! 4! In a direct le ac#9devise E the estate, throu h the e<ecutor or administrator$ In a su&sidiar# le ac#9devise ; the heir, le atee or devisee char ed! several thin s

182

What are the ru'es f the $erso! #ho choose d es (efore cho ce s made% 1! 4! If the the ri If the the ri

s to

choice &elon ed to e<ecutor or administrator E ht is transmitted to his successor;in;interest$ choice &elon s to an heir, le atee, or devisee E ht is transmitted to his own heirs! 7inalit# of choice E choice is irrevoca&le! ru'e o! )a' d t& of "e!er c

What s the 'e"ac esJde) ses% 1! 4!

5eneric le ac# E valid even if no such mova&les e<ist in the testatorHs estate upon his death! The estate will simpl# have to acquire what is iven &# le ac#! 5eneric devise E valid onl# if there e<ists such an immova&le in the testatorHs estate at the time of his death!

What s the durat o! a!d amou!t of 'e"ac& for educat o!% 1! 4! Duration E a e of ma%orit# (1>) or the completion of a professional, vocational, or eneral course whichever comes later$ (mount E . . Primaril# E that fi<ed &# the testator )econdaril# E that which is proper, as determined &# (i) the social standin and circumstances of the le atee, and (ii) the value of the disposa&le portion of the estate

What s the durat o! a!d amou!t of 'e"ac& for su$$ort% 1! 4! Duration E the le ateeHs lifetime, unless the testator provides otherwise! (mount E a! Primaril# E that fi<ed &# the testator$

183
&! )econdaril# ; that which the testator durin his lifetime used to ive the le atee &# wa# of support, unless mar'edl# disproportionate to the value of the disposa&le portion$ Tertiaril# E that which is reasona&le, on the &asis of (i) the social standin and circumstances of the le atee, and (ii) the value of the disposa&le portion! 'e"ac& of $er od ca' $e!s o!

c!

Whe! s a dema!da('e%

,pon the death of the testator, and the succeedin ones at the &e innin of the period without dut# to reim&urse should the le atee die &efore the lapse of the period! Whe! s a de) seJ'e"ac& dema!da('e% 1! 4! @! If pure and determinate E upon the testatorHs death! If pure and eneric E upon the testatorHs death! If conditional (suspensive) E upon the happenin of the condition! Whe! does o#!ersh $ of the de) seJ'e"ac& If pure and determinate E upon the testatorHs death! If pure and eneric E a! &! @! A! If from testatorHs estate E upon testatorHs death! If acquired from a third person E upon acquisition!

)est% 1! 4!

If with suspensive term E upon arrival of the term &ut ri ht to it vests upon the testatorHs death! If conditional (suspensive) E upon the testatorHs death, if the condition is fulfilled!

Whe! sha'' the de) seeJ'e"atee e!t t'ed to the fru ts of the de) seJ'e"ac&% 1! 4! @! If pure and determinate E upon the testatorHs death! If pure and eneric E upon determination, unless testator provides otherwise! If with a suspensive term E upon the arrival of the term!

184
A! If conditional suspensive E upon the happenin of the condition, unless the testator provides otherwise!

If the estate shou'd !ot (e suff c e!t to co)er a'' the 'e"ac es or de) se2 #hat s the order $a&me!t that must (e fo''o#ed% 1! 4! @! A! B! -emunerator# le acies and devises$ Le acies or devises declared &# the testator to &e preferential$ Le acies for support$ Le acies for education$ Le acies or devises of a specific, determinate thin which forms a part of the estate$ (ll other pro rata! acce$ta!ce a!d

6.

What are the ru'es o! re$ud at o! of 'e"ac esJde) ses%

5eneral rule ; acceptance ma# &e total or partial! *<ception E if the le ac#9devise is partl# onerous and partl# ratuitous, the recipient cannot accept the ratuitous part and renounce the onerous part! (n# other com&ination however is permitted! If the 'e"ateeJde) see d es (efore acce$t !" or re!ou!c !" the 'e"ac&Jde) se2 #ho ca! e*erc se such r "ht to acce$t or re!ou!ce% 0is heirs as to their proCin2iviso share! What are the ru'es ! case there s re$ud at o! (& or !ca$ac t& of 'e"ateeJde) see% 1! 4! @! Primaril# E su&stitution$ )econdaril# E accretion$ Tertiaril# E intestac#!

Whe! ma& a 'e"ac& or de) se (e re)o>ed (& o$erat o! of 'a#% 1! 4! @! A! Transformation of the thin $ (lienation$ Total loss$ If the le ac# is a credit a ainst a third person or the remission of de&t, and the testator, su&sequent to

185
the ma'in of the will, &rin s an action a ainst the de&tor for pa#ment! CHAPTER <- INTESTATE SUCCESSION What s 'e"a' or !testate success o!% It is one, which ta'es place &# operation of law in the a&sence of a valid will! Whe! does 'e"a' or !testate success o! ta>e $'ace% 1! 4! If a person dies without a will, or with a void will, or one which has su&sequentl# lost its validit#$ /hen the will does not institute an heir to, or dispose of all the propert# &elon in to the testator! In such a case, le al succession shall ta'e place onl# with respect to the propert# of which the testator has not disposed$ If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies &efore the testator, or repudiates the inheritance, there &ein no su&stitution and no ri ht of accretion$ /hen the heir instituted is incapa&le of succeedin , e<cept in cases provided in the Civil Code$ /hen there is preterition of a compulsor# heir in the direct line$ If the testamentar# disposition is su&%ect to a resolutor# condition and such condition is fulfilled$ If the testamentar# disposition is su&%ect to a resolutor# term and such term e<pires$ In case of ineffective dispositions ((rticles ?G= W >BA)! What are the three (as c ru'es of !testac&% 1! 4! @! The rule of preference of lines$ The rule of pro<imit#$ and The rule of equalit# amon relatives of the same de ree!

@!

A! B! G! 3! >!

What s mea!t (& the $r !c $'e of $refere!ce of ' !es ! !testate success o!%

186
It refers to the principle &# virtue of which relatives of the decedent who are in the direct descendin line shall e<clude those who are in the direct ascendin or in the collateral line, while those who are in the direct ascendin line, on the other hand, shall e<clude those who are in the collateral line! What s mea!t (& the $r !c $'e of $ro* m t&% It refers to the rule &# virtue of which relatives of the decedent nearest in de ree shall e<clude the more remote ones! ((rticle ?G4) This rule, however, presupposes the fact that all the relatives involved should &elon to the same line! In other words, it is su&%ect to the principle of preference &etween lines! Is there $ro* m t&% a! e*ce$t o! to the $r !c $'e of

There is one e<ception to this rule and that is when the ri ht of representation properl# ta'es place! The reason for this is that in representation, the representative is raised &# le al fiction to the place and de ree of the person represented so that he acquires the ri hts which the latter would have of he were livin or if he could have inherited! What are the e*ce$t o!s to the ru'e that re'at )es ! the same de"ree sha'' !her t ! equa' shares% 1! The rule of division &# line in the ascendin line ((rticle ?>3), that is, when the inheritance is divided &etween paternal and maternal randparents! In this case, if two randparents survive the decedent in the paternal line and &# one randparent in the maternal line, one;half shall pass to the survivin randparent in the maternal line! The distinction &etween full;&lood and half;&lood relationships amon &rothers and sisters, as well as nephews and nieces ((rticles 1==G W 1==>), that is, when the inheritance is divided amon &rothers and sisters, some of whom are of the full &lood and others of the half &lood! In this case, those of the full &lood shall &e entitled to dou&le the share of those of the half &lood! (2OT*C This distinction is important onl# with reference to &rothers and sisters and nephews and nieces, &ecause there is a ratio of 4C1 for full;&lood and half;&lood relationship

4!

187
respectivel#! :ut with respect to other collateral relatives, the full;&lood and half;&lood relationship is immaterial!) In certain cases when the ri ht of representation ta'es place! In this case, the division of the inheritance is per stripes and not per capita! ((rticle ?3A)! The rule of preference of lines! The distinction &etween le itimate and ille itimate filiations (the ratio under the present law is 4C1 ((rticle ?>@, in relation to (rticle >?B as amended &# (rticle 13G, 7amil# Code)!

@!

A! B!

What s mea!t (& de"ree% Ho# s $ro* m t& of re'at o!sh $ determ !ed% Pro<imit# of relationship is determined &# the num&er of enerations! *ach eneration forms a de ree ((rticle ?G@)! What s mea!t (& ' !e% Line refers to a series of de rees, which ma# &e either direct or collateral! ,ef !e the d ffere!t > !ds of ' !es1! ( direct line is that constituted &# the series of de rees amon ascendants and descendants! There is no le al limit to the num&er of de rees for entitlement to intestate succession! ( collateral line, on the other hand, is that constituted &# the series of de rees amon persons who are not ascendants and descendants, &ut who come from a common ancestor! ((rticle ?GA) Computation of de rees is particularl# important in the collateral line &ecause intestate succession e<tends onl# to the Bth de ree of collateral relationships! The direct line, in turn, ma# either &e descendin or ascendin ! The former unites the head of the famil# with those who descend him! The latter &inds a person with those from whom he descends! ((rticle ?GB) Who are co''atera's (& de"rees%

2.

@!

188
1! 4! @! A! 7irst de ree E none )econd de ree E &rothers and sisters Third de ree E @!1 ,ncles and aunts @!4 2ephews and nieces 7ourth de ree E A!1 7irst cousins A!4 :rothers and sisters of randparent (5randuncles and randaunts) A!@ 5randchildren of a &rother or sister (5randnephews and randnieces) 7ifth de ree E B!1 ( child of a first cousin B!4 7irst cousin of a parent B!@ :rothers and sisters of a reat; randparent B!A 5reat randchildren of a &rother or sister! ,ef !e re$rese!tat o!It is a ri ht crated &# fiction of law, &# virtue of which the representative is raised to the place and de ree of the person represented, and acquires the ri hts, which the latter would have if he were livin or if he could have inherited ((rticle ?3=)! Is there accret o! ! !testac&% There is accretion in intestac# amon heirs of the same de ree, in case of predecease, incapacit#, or renunciation of an# one of them! -elatives must &e in the same 'ind of relationship to the decedent! This is &ecause of the principle of preference of lines in intestate succession, thus there can &e no accretion amon a randchild, a randparent and a &rother of the decedent, even if the# are all related to him in the second de ree, &ecause the# are not inheritin to ether in the first place! *<ception E when there is no accretionC In case of predecease or incapacit#, representation if proper, will prevent accretion from occurrin ((rticle ?G>)! What s the effect of re!u!c at o! (& a'' ! the same de"ree% The ri ht of succession should first &e passed on the heirs in succeedin de rees (in successive order) &efore the

B!

189
ne<t line can succeed, &ecause of the rule if preference of lines! ThusC 1! 4! The descendin line first E if all the descendants of a certain de ree renounce, succession passes to the descendants of the ne<t de ree, and so on$ The ascendin line ne<t E should no one &e left in the descendin line, the heirs in the ascendin line acquire the ri ht of succession, a ain in order of de rees of pro<imit#$ The collateral line last E onl# if all the descendants and ascendants renounce will the collateral relatives acquire the ri ht to succeed! ((rticle ?G?) Notes0 The# inherit in their own ri ht and cannot represent the person repudiatin the inheritance! -epresentation does not appl# in cases of universal renunciation outlined a&ove, &ecause there is no representation in renunciation! What s re$rese!tat o!% -epresentation is a ri ht created &# fiction of law, &# virtue of which the representative is raised to the place and the de ree of the person represented, and acquire the ri hts, which the latter would have if he were livin , or if he could have inherited ((rticle ?3=)! The representative is called to the succession &# law and not &# the person represented! The representative does not succeed the person represented &ut the one whom the person represented would have succeeded ((rticle ?31)! In order that representation ma# ta'e place, it is necessar# that the representative himself &e capa&le of succeedin the decedent ((rticle ?3@) I! #hat > !ds of success o! do re$rese!tat o! o$erate% a! &! Le itime$ and Intestac#!

@!

190
I! #hat ' !e or ' !es re$rese!tat o! ta>e $'ace% 1! 4! @! sha'' the r "ht of

It ta'es place in the direct descendin line, &ut never in the ascendin line ((rticle ?34)! In the collateral line, it ta'es place onl# in favor of the children of &rothers or sisters, whether the# &e of the full or half &lood ((rticle ?34)! /hen children of one or more &rothers or sisters of the deceased survive, if the# survive with their uncles or aunts! :ut if the# alone survive, the# shall inherit in equal portions ((rticle ?3B)!

Whe! does the r "ht of re$rese!tat o! ta>e $'ace% What are the !sta!ces #he! re$rese!tat o! o$erates% 1! In testamentar# successionC a! In case a compulsor# heir in the direct descendin line dies &efore the testator survived &# his children or descendants ((rticle >BG)$ In case a compulsor# heir in the direct descendin line is incapacitated to succeed from the testator and has children and descendants ((rticles >BG, 1=@B)$ In case a compulsor# heir in the direct descendin line is disinherited and he has children or descendants ((rticle ?4@)!

&!

c!

4!

In intestate successionC a! In case a le al heir in the direct descendin line dies &efore the decedent survived &# his children or descendant ((rticles ?>1, ?>4), or in the a&sence of other heirs who can e<clude them from the succession, a &rother or sister dies &efore the decedent survived &# his or her own children ((rticles ?34, ?3B)$ In case a le al heir in the direct descendin line is incapacitated to succeed from the decedent ((rticles 1=@B) and he has children or descendants, or in the a&sence of other heirs who can e<clude them from the succession, a &rother or sister is incapacitated to succeed from the decedent

&!

191
and he or she has children! ((rticles ?34, ?3B, 1=@B)! Ca! a! he r #ho re$ud ates h s !her ta!ce (e re$rese!ted% 2o, &ecause an heir who has repudiated inheritance ma# not &e represented ((rticle ?33)! his

Ca! a )o'u!tar& he r or 'e"atee or de) see #ho d es (efore the testator or #ho s !ca$ac tated to succeed (e re$rese!ted% 2o, since in testamentar# succession, the ri ht of representation is a ri ht, which pertains onl# to the le itime of compulsor# heirs ((rticle >BG)! What are the d ffere!t ' m tat o!s m$osed (& 'a# to the r "ht of re$rese!tat o! ! the co''atera' ' !e% (1) The ri ht can &e e<ercised onl# &# nephews and nieces of the decedent ((rticles 3?4, ?3B)$ (4) The ri ht can &e e<ercised &# nephews and nieces of the decedent onl# if the# concur with at least one &rother or sister of the decedent ((rticle ?3B)! Otherwise, if the# are the onl# survivors, the# shall inherit in their own ri ht and not &# ri ht of representation! (@) The ri ht of representation in the collateral line is possi&le onl# in intestate succession$ in other words, it cannot possi&l# ta'e place in testamentar# succession! In testamentar# succession, onl# compulsor# heirs ma# &e represented ((rticle >BG)! It is, of course, o&vious that &rothers and sisters are not compulsor# heirs! If instituted, the# are classified as mere voluntar# heirs! Ca! a! ''e" t mate $erso! (e re$rese!ted% If the child to &e represented is le itimate E onl# le itimate children9descendants can represent him ((rticle ??4)!

192
If the child to &e represented is ille itimate E &oth le itimate and ille itimate children9descendants can represent him ((rticles ?=4, ?>?, ??=) Is there re$rese!tat o! (& a re!ou!cer% (lthou h a renouncer cannot &e represented, he can represent the person whose inheritance he has renounced ((rticle ?3G)! The reason is in (rticle ?31 DThe representative does not succeed the person represented &ut the one whom the person represented would have succeeded! Ho# does re$rese!tat o! o$erate% Per stirpes E the representative receives onl# what the person represented would have received! If there are more than one representative in the same de ree, then the portion is divided equall#, without pre%udice to the distinction &etween le itimate and ille itimate children, when applica&le! What are the ru'es o! qua' f cat o!% 1! 4! @! The representative must &e qualified to succeed the decedent ((rticle ?3@)! The representative need not &e qualified to succeed the person represented ((rticle ?31)! The person represented need not &e qualified to succeed the decedent E in fact, the reason wh# representation is ta'in place is that the person represented is not qualified, &ecause of predecease, or incapacit#, or disinheritance!

What s the share2 #h ch s " )e! to a $erso! #ho !her ts (& r "ht of re$rese!tat o!% In testamentar# succession, the share which is iven to the representative is the le itime of the compulsor# heir who is represented, while in intestate succession, it is the entire share of the le al heir who is represented! What s the d ffere!ce ! the ru'e ! case of re$rese!tat o! (& "ra!dch 'dre! a!d re$rese!tat o! (& !e$he#s a!d ! eces%

193 1. 2.
If all the children are disqualified E the randchildren still inherit &# representation ((rticle ?>4) (Per stirpes)! If all the &rothers and sisters are disqualified E the nephews and nieces inherit per -apita ((rticle ?3B)!

Who are !testate he rs% 1. 2. 3. 4. 5. 6. Le itimate children9 descendants$ Ille itimate children9descendants$ Le itimate parents9ascendants$ Ille itimate parents$ )urvivin spouse$ :rothers, sisters, nephews, nieces$ Other collaterals E to the Bth de ree$ )tate!

7.
8.

What s the order of !testate success o!% 1. If the decedent is a le itimate personC

(1) Le itimate children or descendants! a. b. *<clude parents, collaterals and state! The# concur with survivin spouse and ille itimate children! The# are e<cluded &# no one!

c.

(4) Le itimate parents or ascendants! *<clude state collaterals and

a.

194
b. Concur with ille itimate children and survivin spouse The# are e<cluded &# le itimate children

c. (@) Ille itimate children! a.

b.

c. (A) Ille itimate parents! a. b. c.

*<clude parents, state Concur spouse, children parents The# are one

ille itimate collaterals and with and survivin le itimate le itimate

e<cluded &# no

*<clude collaterals and state Concur with survivin spouse The# are e<cluded &# le itimate children and ille itimate children

(B) The survivin spouse! a. *<cludes collaterals other than &rothers, sisters, nephews and nieces and state Concurs with le itimate children, ille itimate children, le itimate parents, ille itimate parents, &rothers, sisters, nephews and nieces *<cluded &# no one!

b.

c.

(G) :rothers and sisters, nephews and nieces! a. b. *<clude all other collaterals and the state Concur with survivin spouse

195
c. (re e<cluded &# le children, ille children, le parents, and ille parents! itimate itimate itimate itimate

(3) Other collateral relatives within the fifth de ree! a. *<clude collaterals in remoter de ree and the state Concur with collaterals in the same de ree (re e<cluded &# le itimate children, ille itimate children, le itimate parents, ille itimate parents, survivin spouse, &rothers and sisters, and nephews and nieces!

b. c.

(>) )tate! a. b. c. 2. *<cludes no one Concurs with no one Is e<cluded &# ever#one

If the decedent is an ille itimate personC and

O7or rules of e<clusion concurrence, see a&oveP (1) (4) (@) (A)

Le itimate children and descendants$ Ille itimate children$ 2atural or spurious parents$ The survivin spouse su&%ect to the concurrent ri ht of &rothers and sisters, nephews and nieces$ (B) :rothers and sisters, nephews and nieces$ (G) )tate! Who amo!" the 'e"a' he rs e!umerated a(o)e ca!!ot (e e*c'uded from the success o!% (1) Le itimate children or descendants$ (4) Ille itimate children$ and (@) )urvivin spouse!

196

What are the d ffere!t com( !at o!s !testate success o! .Art c'es 7HG to 6966/% 1! Le itimate children alone ((rticle ?3?) E The whole of the estate, divided equall#! 4!

Le itimate children and ille itimate children ((rticles ?>@ and 13G 7C) E The whole estate, each ille itimate child ettin S the share of one le itimate child!

@!

Le itimate children and survivin ??G) E

spouse ((rticle

The whole estate, divided equall# (the survivin spouse counted as one le itimate child)! A! Le itimate children, survivin spouse and ille itimate children ((rticles ??? and 13G, 7C) E The whole estate, the survivin spouse &ein counted as one le itimate child and each ille itimate child ettin S of the share of one le itimate child! B! G! Le itimate parents alone ((rticle ?>B) E The whole estate, divided equall#! Le itmate ascendants (other than parents) alone ((rticle ?>3) E The whole estate, o&servin , in proper cases, the rule of division &# line! 3! Le itimate parents and ille itimate children ((rticle ??1) E Le itimate parents E S of the estate$ Ille itimate children E S of the estate! >! Le itimate parents and survivin ??3) E spouse ((rticle

Le itimate parents E S of the estate$

197
)urvivin spouse E S of the estate! ?! Le itimate parents, survivin children ((rticle 1===) E spouse, ille itimate

Le itimate parents E S of the estate$ )urvivin spouse E K of the estate$ Ille itimate children E K of the estate! 1=! Ille itimate children alone ((rticle ?>>) E The whole of estate, divided equall#! 11! Ille itimate children and survivin ??>) E spouse ((rticle

Ille itimate children ; S of the estate$ )urvivin spouse E S of the estate! 14! )urvivin spouse alone ((rticle ??A W ??B) E The whole of the estate! 1@! )urvivin spouse and ille itimate parents E (2o article overnin ) )urvivin spouse E S of the estate$ Ille itimate parents E S of the estate &# analo # with (rticle ??3! 1A! )urvivin spouse and le itimate &rothers and sisters, nephews and nieces ((rticle 1==1) E )urvivin spouse E S of the estate$ Le itimate &rothers, sisters, nephews and nieces E S of the estate (the nephews and nieces inheritin &# representation, in proper cases)! 1B! )urvivin spouse and ille itimate &rothers sisters, nephews and nieces ((rticle ??A) E )urvivin estate$ spouse E S of and the

Ille itimate &rothers, sisters, nephews, nieces E S of the estate (the nephews and nieces inheritin

198
&# representation, cases)! 1G! Ille itimate parents alone ((rticle ??@) E The whole estate! 13! Ille itimate parents and children of an# 'ind ((rticle ??@) E Ille itimate parents E e<cluded$ Children E inherit in accordance with 2os! 1, 4 W 1=, supra! 1>! Le itimate &rothers and sisters alone ((rticles 1==A W 1==G) E The whole estate, with a &rother9sister of the half;&lood inheritin S the share of a &rother9sister of the full;&lood$ Le itimate &rothers and sisters, nephews and nieces ((rticle 1==B W 1==>) E the whole of the estate, o&servin the 4C1 proportion of full; and half;&lood fraternit# (2o! 1>, supra) and the nephews and nieces inheritin &# representation in proper cases! 1?! 2ephews and nieces with aunts and uncle ((rticle 1==? &# inference) E ,ncles and aunts E e<cluded$ 2ephews and nieces E inherit in accordance with 2o! 44, infra! 4=! Ille itimate &rothers and sisters alone (no article overnin ) E The whole estate, o&servin the 4C1 proportion of full; and half; &lood fraternit# E &# analo # with 2o! 1>, supra! 41! Ille itimate &rothers, sisters, nephews, and nieces (no article overnin ) E in proper

199

The whole estate, as in 2o! 1?, supra, &# analo #! 44! 2ephews and nieces alone ((rticle ?3B W 1==>) E The whole estate, per capita, &ut o&servin the 4C1 proportion for the full; and the half;&lood! 4@! Other collaterals ((rticle 1==? W 1=1=) E The whole estate, per capita, the nearer in de ree e<cludin the more remote! 4A! )tate ((rticle 1=11) E The whole estate, assi ned and disposed as followsC a! If decedent is a resident of the Philippines at an# timeC 1! 4! &! If decedent PhilippinesC Personalit# propert# E to municipalit# of last residence -eal propert# E where situated a resident of the

never 1!

Personal propert# and real propert# E where respectivel# situated!

c!

0ow propert# is to &e usedC 1! 7or the &enefit of pu&lic education and charita&le institutions in the respective municipalities9cities situated! (lternativel#, at the instance of an interested

4!

200
part#, or motu propio, court ma# order creation of a permanent trust for the &enefit of the institution concerned! What are the success o!a' r "hts of ''e" t mate ch 'dre! ! !testate success o!% a! If the# survive alone as a class E the# are entitled to the entire estate! ((rticles ?>>, ?>?, ??=, ?>@) If the# survive with le itimate descendants E estate shall &e divided with the proportion of 4C1! ((rticles >?B, ?>@) If the# survive with ascendants E if decedent is le itimate, the le itimate ascendants are entitled to S of the estate, while the ille itimates are entitled to the other S! ((rticle ??1) If the decedent is ille itimate, ascendants are e<cluded$ consequentl#, the ille itimates are entitled to the entire estate! ((rticle ??@) If the# survive with spouse E the ille itimates are entitled to S of estate, while the survivin spouse is entitled to the other S ((rticle ??>) If the# survive with le itimate descendants and spouse E estate shall &e divided in the proportion of 4F1, with the survivin spouse ettin the same share as that of a le itimate child! ((rticle ???, ?>@) If the# survive with ascendants and spouse E if decedent is le itimate, the le itimate ascendants are entitled to S of the estate$ the ille itimates are entitled to K! ((rticle 1===)If the decedent is ille itimate, the parents are e<cluded$ consequentl#, the ille itimates are entitled to S of estate, while the survivin spouse is entitled to the other S! ((rticle ??@, ??A)

&!

c!

d!

e!

f!

201
Ca! a! ''e" t mate ch 'd !her t a" intestato from the 'e" t mate ch 'dre! a!d re'at )es of h s father or mother2 a!d ) ce )ersa% 2o, an ille itimate child has no ri ht to inherit a3 instestato from the le itimate children and relatives of his father or mother$ nor shall such children or relatives inherit in the same manner from the ille itimate child ((rticle ??4)! This is the well 'nown, and much criticiJed, successional &arrier &etween le itimate and the ille itimate relatives of a decedent! What are the success o!a' r "hts sur) ) !" s$ouse ! !testate success o!% of the

(1) If he or she survives alone E he or she is entitled to the entire estate ((rticle ??B)$ (4) If she or he survives with le itimate descendants E he or she shall have the same share as that of each le itimate child ((rticle ??G)$ (@) If he or she survives with ascendants E if decedent is le itimate, the le itimate ascendants are entitled to S of estate, while he or she is entitled to the other S! ((rticle ??3) If decedent is ille itimate, the same rule applies ((rticle ??A)$ (A) If he or she survives with ille itimate children E the ille itimates are entitled to S of the estate, while she or he is entitled to the other S ((rticle ??>)$ (B) If she or he survives with &rothers and sisters, nephews and nieces E he or she is entitled to S of the estate, while &rothers and sisters, nephews and nieces are entitled to the other S ((rticle 1==1)$ (G) If he or she survives with le itimate descendants and ille itimate children E estate shall &e divided in accordance with the proportion of 4C1, with the survivin spouse ettin the same share as that of a le itimate child ((rticle ???, ?>@)$ (3) If he or she survives with ascendants and ille itimate children E if decedent is le itimate, the le itimate ascendants are entitled to S of estate, the ille itimates are entitled to K, and the survivin spouse is entitled to K! ((rticle 1===) If decedent is ille itimate, the parents are e<cluded$ consequentl#, the ille itimates are entitled to S of estate, while the survivin spouse is entitled to the other S! ((rticle ??@, ??A)

202
INTESTAC30 INTESTATE SHARE OF SURVIVING SPOUSE

SPOUSE AN, CONCURRING HEIRS 1! )pouse alone 1! )pouse 4! 1 le ! Child 1! )pouse 4! 4 or more le ! children 1! )pouse 1! (ll 1! S 4! S

SHARE

ARTICLE

(rticles ??B W ??G (rticle ??G

Divide the estate &# total num&er of le itimate children plus the spouse! )pouse is considered as one child! 1! )ame share as one le itimate child 4! 4 shares each @! 1 share each 1! S 4! S 1! S 4! S

(rticle ??G

(rticles ??? W 13G 7C 31

4! Le ! Children @! Ille ! children 1! )pouse 4! Le ! parents 1! )pouse 4! Ille ! parents

(rticle ??3

(rticle ??1 (&# analo #) (rticle >>? (&# analo #)

1! )pouse

1! S

(rticle ??>

71

Form%la7 The le itimate and ille itimate children will divide the estate in the proportion of 4C1! The survivin spouse will &e considered as one le itimate child! If due to the num&er of ille itimate children, the le itimes of the le itimate children and the spouse are impaired, the ille itimate children will receive onl# what is the equivalent of the free portion in testamentar# succession!

203
4! Ille ! children 1!)pouse 4! Le ! parents @! Ille ! Children 1! )pouse 4! :rothers W sisters, nephews W nieces 4! S 1! K 4! S @! K 1! S 4! K (rticles 1==1 W ??A (rticle 1===

S$ec a' case !ot !c'uded ! the chart o! !testac&0

(rticle ??? does not cover the situation where the mere survivors are (1) one le itimate child$ (4) one or more ille itimate children$ and (@) spouse!

If the survivin spouse is iven a share equivalent to the share of the le itimate child (which is one;half of the estate), nothin would &e left to the ille itimate children!

In order not to deprive the ille itimate children of their le itimes, the fair solution is to appl# &# analo&y the provisions of (rticle >?4 under Testamentar# )uccession ()ee par! 4 Chart on Testac#)! In which situation, the survivin spouse will et a share equivalent to K of the estate! The other K will o to the ille itimate children! What co!d t o!s must e* st ! order that the estate of the decede!t sha'' (e escheated ! fa)or of the state% a! &! c! 7irst, the decedent must have died intestate$ )econd, he dies seiJed of real and9or personal properties in the Philippines$ and Third, he leaves no heir or person entitled to such real and personal properties!

What are the ru'es o! ado$ted ch 'dre!%

204

The present rules are contained in (rticle 1>? of the 7amil# CodeC DThe adopted child inherits from his adopter in e<actl# the same wa# and to e<actl# the same e<tent as a le itimate childF The adopted child remains an heir (&oth compulsor# and intesate) of his parents and &lood relatives, as if he had not &een adopted! )ee -!(! 2o! >BB4! What are the ru'es o! success o! to the estate of a! ado$ted ch 'd% 1! 4! Le itimate and ille itimate children and survivin spouse ; )ame as 2os! 1, 4, @, A, 1=, 11 and 14, supra! :iolo ical parents Parents9ascendants E S of the estate (dopter E S of the estate @! )urvivin spouse or ille itimate children R adopter )pouse or ille itimate children E S of the estate (dopter E S of the estate A! )urvivin spouse children R adopter and ille itimate

)pouse E 19@ of the estate Ille itimate children E 19@ of the estate (dopter E 19@ of the estate B! G! (dopter alone E the whole estate Collateral &lood relatives alone E Civil Code on intestac# applies! )ee 2os! 1> to 4A, supra!

CHAPTER E- PROVISIONS CO??ON TO TESTATE AN, INTESTATE SUCCESSION

205
SECTION 6- RIGHT OF ACCRETION ,ef !e accret o! (ccretion is a ri ht &# virtue of which, when two or more persons are called to the same inheritance, devise or le ac#, the pat assi ned to the one who renounces or cannot receive his share, or who died &efore the decedent, is added or incorporated to that of his co;heir, co;devisee, or co; le atee ((rticle 1=1B)! Whe! does the r "ht of accret o! ta>e $'ace% a! In case of testamentar# successionC 1) 4) @) A) B) Predecease of the instituted heir Incapacit# of the instituted heir -epudiation &# the instituted heir 2on fulfillment of the suspensive condition imposed upon the instituted heir Ineffective testamentar# dispositions

2OT*C There must &e renunciation, predecease, or incapacit# of one (or more &ut less than all) of the instituted heirs! &! In case of intestate successionC 1) 4) @) Predecease Incapacit# -epudiated

What are the requ s tes2 #h ch must co!cur ! order for accret o! to ta>e $'ace ! testame!tar& success o!% a. b. Two or more persons are called to the same inheritance, le ac# or devise %ointl# or pro indiviso$ There is a vacanc# in the inheritance, le ac# or devise as a result of predecease, incapacit#, repudiation, or some other cause ((rticle 1=1G)!

In intestate succession, onl# one requisite is necessar# E that there must &e a vacanc# in the inheritance as a result of predecease!

206
, st !"u sh re$rese!tat o! from accret o!I! In testamentar# successionC a! (s to le itimeC i! In case of prerdecease of an heir, there is representation if there are children or descendants$ if none, the other heirs inherit in their own ri ht! In case of incapacit# of an heir, the results are the same as in predecease! In case of disinheritance of an heir, the results are the same as in incapacit# or predecease! In case of repudiation &# an heir, the other heirs inherit in their own ri ht$ no accretion!

ii! iii!

iv!

&!

(s to the free portionC

(ccretion ta'es place when the requisites in (rticle 1=1G are present, provided that there is no su&stituted, &ut if such requisites are not present, the other heirs inherit in their own ri ht! II! In intestate successionC a. In case of predecease, there is representation if there are children or descendants$ if none, the heirs inherit in their own ri ht, the result &ein the same as accretion! In case of incapacit#, there is representation if there are children or descendants$ if none, accretion ta'es place! In case of repudiation, there is alwa#s accretion!

b.

c.

2OT*C In intestac#, accretion is su&ordinate to representation! In testamentar# succession, accretion is su&ordinate to su&stitution, if the testator so provides! This is &ecause su&stitution is the testatorHs e<press intent, whereas accretion is merel# his implied intent!

207
Art c'e 69:9 $ro) des that the he rs #hom the !her ta!ce accrues sha'' succeed to a' the r "hts a!d o(' "at o!s #h ch the he r #ho re!ou!ced or cou'd !ot rece )e t #ou'd ha)e had- What are the e*ce$t o!s to th s ru'e% a. b. In testamentar# succession, if the testator provides otherwise$ If the o&li ation is purel# personal, and hence intransmissi&le!

Amo!" com$u'sor& he rs2 #he! does the r "ht of accret o! ta>e $'ace% D(mon compulsor# heirs the ri ht of accretion shall ta'e place onl# when the free portion is left to two or more of them, or to an# one of them and to a stran er!F ((rticle 1=41, par 1) Is there accret o! ! 'e" t me% 2o, (rticle 1=41, par! 4 provides that should the part repudiated &e the le itime, the other co;heirs shall succeed to it in their own ri ht, and not &# accretion! State the (as c ru'es ! 'e"a' success o!a. The share of the person who repudiates the inheritance shall alwa#s accrue to his co;heirs! ((rticle 1=1>) The share of the person who repudiates shall o to his co;heirs &# their own ri ht in the same proportion the# inherit ((rticle 1=1?) The heirs inherit all the ri hts and o&li ations ((rticle 1=4=) (mon the compulsor# heirs the ri ht of accretion shall ta'e place onl# when the free portion is left to two or more of them, or to an# one of them and to a stran er!F ((rticle 1=41, par 1) )hould the part repudiated &e the le itime, the other co;heirs shall succeed to it in their own ri ht, and not &# accretion! ((rticle 1=41)

b.

c. d.

e.

Is there accret o! f the re!u!c at o! of !her ta!ce #as made dur !" the ' fet me of the decede!t%

208
2o, said renunciation is void, havin &een done durin the lifetime of the decedent! -enunciation of future inheritance is void! ((rticle ?=B)! (ccretion ta'es place when there is renunciation after the decedentHs death, &ecause the heir who renounced alread# acquired a vested ri ht over his share! Su$$ose that the $erso! #ho s !ca$ac tated to !her t has ch 'dre!2 # '' h s share accrue to h s co+ he rs% 2o, &ecause accretion applies onl# if the ri ht of representation would not ta'e place! ((rticle ?G>)! SECTION :- CAPACIT3 TO SUCCEE, 53 WILL OR 53 INTESTAC3 I! order that a $erso! ca! !her t e ther (& # '' or (& !testac&2 #hat requ s tes must co!cur% a! &! That the heir, le atee or devisee must &e livin or in e<istence at the moment the succession opens$ That such heir, le atee or devisee must not &e incapacitated or disqualified &# law to succeed! ((rticles1=4A, 1=4B)

Ca! a th !" or a! e!t t& #h ch s !e ther !atura' !or a ;ur d ca' $erso! !her t (& # ''% (s a eneral rule, a thin or an entit#, which is neither a natural nor a %uridical person, cannot inherit &# will! This is apparent from (rticle 1=4B, which declares that in order to &e capacitated to inherit, the heir, le atee or devisee must &e livin at the moment the succession opens! There are however some well 'nown e<ceptions, such as those or aniJations or associations for reli ious, scientific, cultural, educational, or charita&le purposes mentioned in (rticle 1=4G or the poor in eneral contemplated in (rticle 1=@=! G )e a!d !ca$ac t&def !e the d ffere!t > !ds of

Incapacit# to succeed ma# either &eC

209
a! (&solute incapacit# E the incapacit# of a person, whether natural or %uridical, to succeed an# person in an# form with re ard to an# propert#! -elative incapacit# E the incapacit# of a person, whether %uridical or natural, to succeed &# reason of a special relation which he has to the decedent or to other persons, or to the propert# disposed of!

&!

Who are a(so'ute'& !ca$ac tated to succeed% a! &! c! What !ca$ac t&% a! &! c! d! Those not livin at the moment the succession is opened ((rticle 1=4B, par! 1)$ Individuals, associations and corporations not permitted &# law to inherit ((rticle 1=43, par G)$ and ,ncertain persons! ((rticle >BB) are the d ffere!t > !ds of re'at )e

Incapacit# &ased on the possi&ilit# of undue influence or on interest ((rticle 1=43) Incapacit# &ased on pu&lic polic# or moralit# ((rticles 1=4>, 3@?) Incapacit# &# reason of unworthiness ((rticle 1=@4)$ and Incapacit# &# operation of law, such as the incapacit# of the uilt# spouse to inherit a& intestato from the innocent spouse if there is a decree of le al separation, or the incapacit# of ille itimate children and le itimate relatives of the decedent to inherit a& intestato from each other ((rticle ??4)

Who are !ca$ac tated to !her t (& # ''% 1! The priest who heard the confession of the testator durin his last illness, or the minister of the ospel who e<tended spiritual aid to him durin the same period! The relatives of such priest or minister of the ospel within the fourth de ree, the church, order, chapter, communit#, or aniJation, or institution to which such priest or minister ma# &elon !

4!

210
@! ( uardian with respect to testamentar# dispositions iven &# a ward in his favor &efore the final accounts of uardianship have &een approved, even if the testator should die after the approval thereof$ nevertheless, an# provision made &# the ward in favor of the uardian when the latter is his ascendant, descendant, &rother, sister or spouse, shall &e valid! (n# attestin witness to the e<ecution of the will, the spouse, parents, or children, or an# one claimin under such witness, spouse, parents, children! (n# ph#sical, sur eon, nurse, health officer or dru ist who too' care of the testator durin his last illness! Individuals, associations and corporations not permitted &# law to inherit! ((rticle 1=43) The person with whom the testator was uilt# of adulter# and concu&ina e at the time of the e<ecution of the will! Those persons found uilt# of the same criminal offense as the testator, when the inheritance, le ac# or devise is the consideration thereof! ( pu&lic officer or his spouse, descendants and ascendants, when the inheritance, le ac# or devise is iven to such officer or his spouse, descendants and ascendants &# reason of his office! ((rticle 3@?)

A! B! G! 3! >! ?!

2OT*C Those who are disqualified from receivin donations under (rticle 3@? are li'ewise disqualified from receivin testamentar# dispositions from the parties specified in that article! ((rticle 1=4>) I! Art c'e 69:H2 ca! the !ca$ac tated he r st '' e!t t'ed to h s 'e" t me or to a! !testate $ort o!% .es, &ecause this article applies onl# to testamentar# succession! It has no application to the le itime or to intestac# Who are !ca$a('e of succeed !" (& reaso! of u!#orth !ess% 1! 4! Parents who have a&andoned their children or induced their dau hters to lead a corrupt or immoral life, or attempted a ainst their virtue! (n# person who has &een convicted of an attempt a ainst the life of the testator, his or her spouse, descendants, or ascendants!

211
@! (n# person who has accused the testator of a crime for which the law prescri&es imprisonment of si< #ears or more, if the accusation has &een found roundless! (n# heir of full a e, who havin 'nowled e 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 alread# ta'en action$ this prohi&ition shall not appl# to cases wherein, accordin to law, there is no o&li ation to ma'e an accusation! (n# person convicted of adulter# or concu&ina e with the spouse of the latter! (n# person who &# fraud, violence, intimidation, or undue influence should cause the testator to ma'e a will or to chan e one alread# made! (n# person who &# the same means prevents another from ma'in a will, from revo'in one alread# made, or who supplants, conceals, or alters the latterHs will! (n# person who falsifies or for es a supposed will of the decedent!

A!

B! G! 3!

>!

What s the effect of u!#orth !ess as to the success o!a' r "hts of the he r% ,nworthiness ives rise to total disqualification, i!e!, the unworth# heir is incapacitated to succeed from the offended part# &# an# form of successionC the le itime, testamentar#, and intestate! OThus, unworthiness and disinheritance have identical effects!P 0ow ma# the cause of unworthiness &e erasedN 1! 4! ( written condonation, or The e<ecution &# the offended part# of a will with 'nowled e of the cause of unworthiness!

)ince the acts of unworthiness are offenses directed a ainst the decedent, onl# the decedent and no other can erase the effects of such acts of unworthiness! 0e can do this &# pardonin the offense either e<pressl# or impliedl#! There is an e<press pardon when the decedent condones the act of unworthiness in writin ! There is an implied pardon when the testator with 'nowled e of the act of unworthiness, e<ecutes a will institutin the person who has committed the offense as an heir! ((rticle 1=@@)

212
What s the com$u'sor& he rs% effect of !ca$ac t& u$o!

If the heir who is incapa&le of succeedin is a compulsor# heir, whether or not his ri ht to the le itime is affected shall depend upon the cause of the incapacit#! If the incapacit# is due to an# of the causes specified in either (rticle 1=43 or 1=4>, onl# the free portion iven to him is affected, &ut not his le itime! If the incapacit# however, is due to an# of the causes specified in (rticle 1=@4, it is clear that even the le itime of the compulsor# heir who has committed the act of unworthiness is affected! If a! !ca$ac tated he r has a'read& ta>e! $ossess o! of h s !her ta!ce after the decede!tDs death2 #hat s the remed& of the other he rs% (n# person who has an interest in the succession ma# &rin an action a ainst the incapacitated heir for a declaration of incapacit# and for the recover# of the inheritance, devise or le ac#! W th ! #hat $er od must the act o! (e (ou"ht% The action must &e &ou ht within five #ears from the time the incapacitated heir too' possession thereof! ((rticle 1=A=) Whe! s ca$ac t& determ !ed% 1! 4! 5eneral rule E the time of the decedentHs death! -easonC That is when succession vests ((rticle 333) If institution is su&%ect to a suspensive conditionC a) &) @! Time of decedentHs death, and Time of happenin of condition

If final %ud ment is a requisite of unworthiness E time of final %ud ment! O7inal %ud ment is required in Pars! 4,@ and B of (rticle 1=@4P Is there re$rese!tat o! ! u!#orth !ess%

.es, unworthiness is one of the three occasions for representation to operate!

213

/hat is unworthinessN

the

e<tent

of

representation

in

It e<tends not onl# to the le itime, &ut also to whatever portion in intestate succession the person represented What s the ' a( ' t& of the $erso! #ho s !ca$a('e of success o! #ho e!ters !to the $ossess o! of the hered tar& $ro$ert&% a! &! The o&li ation to return, with accessions$ Lia&ilit# for fruits, which were received and could have &een received!

2oteC These are the same rules laid down in (rticle BA?, &ecause he is deemed in &ad faith and the law applies to him the rules on possession of &ad faith! SECTION <- ACCEPTANCE AN, REPU,IATION OF INHERITANCE ,ef !e acce$ta!ce a!d re$ud at o!(cceptance of inheritance is the act &# virtue of which the person called to succeed &# universal title &# the testator or &# law manifests his will to ma'e as his own the universalit# of the ri hts and o&li ations which are transferred to him! -epudiation is the manifestation &# such heir his desire not to succeed to said universalit#! 2oteC In all hereditar# succession, three moments can &e distin uishedC a! &! c! The openin of the succession$ The availa&ilit# of the same$ and The acquisition of the same!

The succession of a person is opened at the moment of his death$ it &ecomes availa&le from the moment it can &e accepted$ and it is acquired throu h acceptance! /hat is the nature of acceptance and repudiation of inheritanceN

214
It is an act, which is purel# voluntar# and free! ((rticle 1=A1) Whe! a! he r acce$ts or !her ta!ce2 #he! # '' t ta>e effect% re$ud ates hs

The effects of the acceptance or repudiation shall alwa#s retroact to the moment of the death of the decedent! ((rticle 1=A4) ConsequencesC a! (cceptance E the successor will &e deemed to have owned and possessed the propert# from the precise moment of the decedentHs death! This rule has consequence with respect to acquisitive prescription, capacit# to succeed, representation, etc! -enunciation E the renouncer is deemed never to have owned or possessed the propert# ((rticle B@@) 34! Consequentl#, the su&stitute, co;heir, or intestate heir who ets the propert# in default of the renouncer is deemed to have owned and possessed it from the moment of the decedentHs death! Conditional institutions E *ven if the institution is conditional, the principle of retroactivit# still applies! Consequentl#, upon the happenin of the condition, the propert# passes to the heir &ut with retroactive effect! OThis is the same principle in conditional o&li ations ((rticle 11>3)P )imilarl#, if the condition does not happen, the propert# oes to the appropriate successor, with the same retroactive effect!

b.

c!

Whe! ma& a! he r2 'e"atee or de) see acce$t or re$ud ate h s !her ta!ce% /hen the followin requisites are presentC

72

(rticle B@@C DThe possession of hereditar# propert# is deemed transmitted to the heir without interruption, and from the moment of death of the decedent, in case the inheritance is accepted! One who validl# renounces an inheritance is deemed never to have possessed the same!F

215
1! 4! 0e is certain of the death of the person from whom he is to inherit$ and 0e is certain of his ri ht to the inheritance, le ac# or devise! ((rticle 1=A@)

What are the requ s tes of a )a' d #a )er of !her ta!ce% 7or a waiver to e<ist, three elements are essentialC 1! 4! The e<istence of a ri ht$ The 'nowled e of the e<istence thereof$ (n intention to relinquish such ri ht! O9orromeoC 4errera vs. 9orromeo, B.R. No. +))"), 8%ly *,, ). "P

3.

Who ma& acce$t or re$ud ate a! !her ta!ce2 'e"ac& or de) se% (s a eneral rule, if the heir, le atee or devisee has the free disposal of his propert# Ocapacit#P, he himself ma# accept or repudiate his inheritance, le ac# or devise! /hat are the special limitations on acceptance and repudiation imposed &# law on other casesN 1! If the &eneficiar# cannot freel# dispose of his propert# as in the case ofC 1) "inors 4) Incapacitated parties @) Deaf mutes who cannot read and write, A) (n insolvent %udiciall# declared, B) One under civil interdiction, The# ma# accept or renounce onl# throu h their uardian or le al representatives! 0owever, for renunciation, %udicial authoriJation is necessar# Ocourt approvalP! ((rticles 1=AA, 1=A>) 4! If the &eneficiar# is the poor, the ri ht to accept shall &elon to the persons empowered under (rticle 1=@= OThe person authoriJed &# the testator or in his default, the e<ecutor, or in his default, the administratorP! (s far as the ri ht to repudiate is concerned, it ma# &e e<ercised onl# &# the &eneficiar# themselves once the# are finall#

216
determined! ((rticle 1=AA) Thus, 1) these authoriJed individuals can onl# accept, not re%ect the rant$ 4) the person selected as qualified recipients are, for their own part, free accept or renounce the &enefit! If the &eneficiar# is a corporation, association, institution or entit#, the ri ht to accept or repudiate &elon s to the le al representative, &ut in case of repudiation, %udicial authoriJation is necessar#! ((rticle 1=AB) If the &eneficiar# is a married woman of a e, she ma# repudiate without the consent of her hus&and!

@!

A!

Ho# ma& the acce$ta!ce of a! !her ta!ce2 'e"ac& or de) se (e made% What are the > !ds of acce$ta!ce% a! &! *<press E one that is made in a pu&lic or private document! Tacit or implied ; one resultin from acts &# which the intention to accept is necessaril# implied, or which one would have no ri ht to do e<cept in the capacit# of an heir! ((rticle 1=A?)P Presumed E when the heirs, devisees or le atees do not si nif# to the court their repudiation of the inheritance within thirt# da#s after the court has issued an order for the distri&ution of the estate! ((rticle 1=B3)

c!

Whe! s a! !her ta!ce deemed acce$ted% It is deemed accepted in the followin casesC 1! 4! @! If the heir sells, donates or assi ns his ri ht to a stran er, or to his co;heirs, or to an# of them$ If the heir renounces the same, even thou h ratuitousl#, for the &enefit of one or more of his co; heir$ If he renounces it for a price in favor of all his co; heirs indiscriminatel#$ &ut if the renunciation should &e ratuitous, and the co;heirs in whose favor it is made are those upon whom the portion renounced should devolve &# virtue of accretion, the inheritance shall not &e deemed accepted$ ((rticle 1=B=) If he performs acts of preservation or administration from which it can &e inferred that he has assumed the title or capacit# of an heir$ ((rticle 1=A?)

A!

217
B! G! If he fails to accept or repudiate within a period of thirt# da#s after the issuance of the order of distri&ution of the estate! ((rticle 1=B3) /hen the heir demands partition of the inheritance!

Ho# ma& a! !her ta!ce2 'e"ac& or de) se (e re$ud ated% -epudiation of an inheritance, le ac# or devise must alwa#s &e e<press! This can &e done eitherC 1! 4! @! :# means of a pu&lic instrument, or :# means of an authentic instrument, or :# means of a petition presented to the court havin %urisdiction over the testate proceedin s! ((rticle 1=B1)

2oteC /hile acceptance ma# &e tacit or e<press, repudiation is alwa#s e<press and never tacit! The law considers the act of repudiation more solemn that the act of acceptance! Su$$ose that a! he r re$ud ates h s !her ta!ce to the $re;ud ce of h s cred tors2 #hat s the remed& of the 'atter ! order to $rotect the r r "ht% The creditors in such case ma# petition the court to authoriJe them to accept the inheritance, le ac# or devise in the name of the heir! This acceptance, however, shall &enefit them onl# to the e<tent sufficient to cover the amount of their credits! The e<cess, should there &e an#, shall in no case pertains to the renouncer, &ut shall &e ad%udicated to the persons to whom it ma# &elon in accordance with the rules esta&lished in the Civil Code! ((rticle 1=B4) 2oteC This is an instance of accion pauliana, which is the ri ht iven to creditors to impu n or set aside contracts, transactions, or dispositions of their de&tors which will pre%udice or defraud them If the he r shou'd d e # thout ha) !" acce$ted or re$ud ated the !her ta!ce2 s h s r "ht to the !her ta!ce e*t !"u shed% 2o, if the heir should die without havin accepted or repudiated the inheritance, his ri ht shall &e transmitted to

218
his heirs! ((rticle 1=B@) This rule is a consequence of the principle that the ri ht of succession vests at the moment of death ((rticle 333)! Therefore, the ri ht of the heir who dies &efore acceptin or renouncin is alread# vested and is transmitted to the heir! :ut in order that this &e availa&le two requisites must concurC a! &! That the inheritance is either availa&le or transmissi&le$ The death of the heir without havin accepted or repudiated the inheritance!

What s the effect f a $erso! #ho s ca''ed to the same !her ta!ce2 as a! he r (& # '' a!d a( !testato2 re$ud ates the !her ta!ce as a testame!tar& he r% 0e is understood to have repudiated it in &oth capacities ((rticle 1=BB)$ that is, if he renounces as testamentar# heir, he is deemed to have renounced as intestate heir as well! What s the effect f a! he r re!ou!ces as a! !testate he r # thout >!o#'ed"e of h s (e !" a testame!tar& he r% 0e ma# still accept it in the latter capacit# ((rticle 1=BB, 4nd par)$ that is, he is not deemed to have renounced as testamentar# heir and ma# therefore accept or renounce separatel# in his capacit# as a testamentar# heir! -ationaleC The testamentar# disposition is the e<press will of the testator, whereas intestac# is onl# his implied will! One who renounces the e<press will is deemed to have renounced the implied also, &ut not the other wa# around! 2oteC This rule is not applica&le to le itime! In view of the rationale of the rule, should the heir &e simultaneousl# as compulsor# heir and a testamentar# heir, he can accept either or &oth! The le itime passes not &ecause of an# implied will or wish of the decedent &ut &# strict operation of law, irrespective of the decedentHs wishes! Thus, the term a& intestato in this article refers solel# to intestate succession! What s the !ature of the acce$ta!ce or re$ud at o! of a! !her ta!ce%

219

The acceptance or repudiation of an inheritance, once made, is irrevoca&le, and cannot &e impu ned ((rticle 1=BG)! The e<ceptions areC a! /hen it was made throu h an# of the causes that vitiate consent! The factors vitiatin consent areC 1) violence, 4) intimidation, @) undue influence, A) mista'e, and B) fraud! Or an un'nown will appear! This applies if the newl# discovered will is su&sequent to an# will, which ma# have formed the &asis for the acceptance or renouncement! The new will, if valid and admitted to pro&ate, reopens the whole affair and will call for a new acceptance or renunciation! SECTION =- COLLATION 1! /hat is meant &# collationN It refers to the act of restorin to the common mass of the hereditar# estate, either actuall# or fictitiousl#, an# propert# or ri ht, which a compulsor# heir, who succeeds with other compulsor# heirs, ma# have received &# wa# of donation or an# other ratuitous title from the decedent, durin the lifetime of the latter, &ut whish is understood for le al purposes as an advance of his le itime! 4! /hat is the o&%ect of collationN Its o&%ect is in order that no descendant will &e deprived of his le itime or portions correspondin to him, and to determine whether the decedent has disposed properties more than what he can ive awa# in accordance with law to the pre%udice of his compulsor# heirs! *qualit# amon children will thus &e insured! @! /hat are the three 'inds of collations under the law on successionN O/hat are the three eneral acts included in collationNP

&!

220
a! Collation as computation E this is a simple accountin or arithmetical process, where&# the value of all donations inter vivos made &# the decedent is added to his availa&le assets in order to arrive at the value of the net hereditar# estate! ((rticle ?=>) (rticles coveredC 1=G1, 1=G3 (as e<ception to 1=G1), 1=31, and 1=34! &! an

Collation as imputation E this is the process &# which donations inter vivos made &# the decedent are correspondin l# char ed either to the doneeHs le itime or a ainst the disposa&le portion! 5eneral ruleC If compulsor# heir, imputa&le to the le itime! *<ceptionC /hen the testator has provided otherwise! (rticles coveredC 1=G4, 1=G@, 1=GA, 1=GB, 1=GG, 1=G>, 1=G?, 1=31, 1=34, and 1=3@!

c!

Collation as return E this ta'es place when the donation inter vivos is found to &e inofficious and so much of its value as inofficious is returned to the decedentHs estate to satisf# the le itime! (rticles coveredC 1=3B, 1=3>

A!

/hat is the difference &etween the collation referred to in (rticles 1=G1 to 1=33 and the collation referred to in (rticles ?=> to ?1=N ,nder (rticles ?=> to ?1=, collation refers to the mathematical process of addin the value of the thin donated to the net value of the hereditar# estate! It is a process, which is applica&le to all donations inter vivos, whether to compulsor# heirs or to stran ers! The immediate purpose is to determine or compute the le itime of compulsor# heirs! ,nder (rticles 1=G1 to 1=33, collation refers to the su&sequent act of char in or imputin the value of the thin donated a ainst the le itime of the compulsor# heir to whom the donation is made!

221
Thus, when the Code sa#s that a propert# or ri ht which a compulsor# heir had received &# ratuitous title from the decedent, durin the lifetime of the latter, must &e &rou ht to collation, what is meant is that the value of such propert# or ri ht shall &e considered as an advance of his le itime and, therefore, imputa&le a ainst it durin the partition! 0ence, it is applica&le onl# to donations made to a compulsor# heir who succeeds with other compulsor# heirs! B! /hat properties or ri hts, which a compulsor# heir ma# have received &# ratuitous title form the decedent, are not su&%ect to collationN a! &! Propert# left &# will ((rticle 1=G@)$ Propert# which ma# have &een donated &# an ascendant of the compulsor# heir to the children of the latter ((rticle 1=GB) -easonC :ecause the said person is not the recipient of the conve#ance! The donation to the randchild should therefore &e imputed to the free portion, since it is a donation to a stran er! c! Propert# donated to the spouse of the compulsor# heir ((rticle 1=GG)$ The donation stran er! here is one made to a

If the donation is made to the spouses %ointl#, one;half &elon s to the donorHs child and should &e treated in accordance with (rticle 1=G4 and the other half is the propert# of the donorHs son E or dau hter; in;law and should &e treated as a donation to a stran er! d! *<penses for support, education, medical attendance even in e<traordinar# illness, apprenticeship, ordinar# equipment, or customar# ifts ((rticle 1=G3) )cope of support E the eneral covera e of support is defined in (rticle 1?A of the

222
7amil# Code! 7or purposes of this article, however, support has a more restricted meanin $ it does not include e<penses for the recipientHs professional, vocational, or other career, &ecause that is overned &# (rticle 1=G>) e! *<penses incurred &# parents in ivin their children a profession, vocational, or other career ((rticle 1=G>)$ /eddin ifts consistin of %ewelries, clothin , and outfit, iven &# parents or ascendants, so lon as the# do not e<ceed one;tenth of the disposa&le portion! ((rticle 1=3=) The ift will &e imputed to the free portion to the e<tent of one;tenth of the free portion! :e#ond the value, the e<cess will &e imputa&le to the recipientHs le itime! Common e<ception to all the fore oin C /hen the testator provides otherwise! ((rticle 1=G4) 2oteC /hen the law sa#s that the a&ove properties shall not &e &rou ht to collation, what is meant is that their value shall not &e imputa&le a ainst the le itime of the compulsor# heir to whom the# are iven or donated, &ut a ainst the free or disposa&le portion! It is onl# in the case of the fourth that the e<penses are not at all imputa&le, even a ainst the free or disposa&le portion! Therefore, the o&li ation to &rin &ac' either the propert# or the value to the mass of the estate is alwa#s present with re ard to properties received &# donation or &# ratuitous title! 0owever, there ma# &e difference in imputation$ it is either imputa&le to the le itime or the free portion! )ince donations or ifts &# ratuitous title to compulsor# heirs are enerall# char ea&le to the their le itime, when the testator provides that there &e no collation, the evident meanin is that it

f!

223
should not &e imputed to the le itime &ut to the free portion! That is the reason wh# if it e<ceeds the free portion it should &e reduced insofar as it is inofficious! G! If the owner of a propert# sells it to his heirs and transfers them durin his lifetime, are these collationa&leN 2o, &ecause the# did not involve ratuitous transfers of future inheritance, hence, not collationa&le! *ssentiall#, collation mandated under (rticle 1=G1 contemplates properties conve#ed inter vivos &# the decedent to an heir &# wa# of donation or other ratuitous title! 3! -ules on imputation of donations inter vivosC a! Donations to compulsor# heirsC 1) 5eneral ruleC )hould &e imputed to the heirHs le itime Oconsidered as an advance on the le itimeP *<ceptions Odonation will have to &e imputed to the free portionPC i! ii! If the donor provides otherwise$ or If the donee renounces the inheritance, &ecause in this case the donee ives up his status as a compulsor# heir and therefore cannot &e considered as one! ((rticle 1=G4) stran ers E

4)

&! >!

Donations inter vivos to imputed to the free portion!

/hat are the instances when donations inter vivos are to &e imputed to the free portionN a! /hen made to stran ers$

224
&! c! d! ?! /hen made to compulsor# heirs, and the donor so provides$ /hen made to compulsor# heirs who renounce the inheritance$ /hen in e<cess of the compulsor# heirHs le itime, as to the e<cess!

/hat is the o&li ation of randchildren who inherit &# representation concurrentl# with children (uncles and aunts) who are inheritin in their own ri htN ((rticle 1=GA) The randchildren shall &rin to collationC a! &! /hatever the parents whom the# are representin would have &een o&li ed to collate$ and /hatever the# themselves have received from the randparent &# ratuitous title (su&%ect to the same rules and e<ceptions laid down in (rticle 1=G4)!

Cases where the randchildren inherit in their own ri ht as would happen in case of repudiation &# the parents ; the said randchildren shall &e &ound to collate what the# themselves have received from the randparent durin his lifetime and not the donation iven to their father since as to that portion, it is equivalent to a donation made to a stran er and therefore imputa&le to the free portion! 1=! /hat is the rule as to sums paid &# a parent in satisfaction of the de&ts of his children, election e<penses, fines, and similar e<pensesN ((rticle 1=G?) The# shall &e &rou ht to collation, meanin , it should &e imputa&le to the childHs le itime! 11! /hat value should &e considered in the computation and imputationN ((rticle 1=31) Onl# the value of the thin donated at the time the donation was made should &e considered in the computation of the donorHs estate!

225
-easonC (n# appreciation or depreciation of the thin after that time should &e for the doneeHs account, since donation transfers ownership to him! Thus an# accretion should &elon to him! 14! /hat are ri hts of the co;heirs if the doneeHs share shall &e reduced &# an amount equal to that alread# received &# himN ((rticle 1=3@ and 1=3A) a! &! The doneeHs co;heirs shall receive an equivalent, as much as possi&le, in propert# of the same nature, class and qualit#! If this is not possi&le i! If the propert# was immova&leC (1) The co;heirs shall &e entitled to receive its equivalent in cash or securities, at the rate of quotation! (4) )hould there &e neither cash nor mar'eta&le securities in the estate, so much of the other propert# as ma# &e necessar# shall &e sold to pu&lic autction! ii! If the propert# was mova&leC (1) The co;heirs shall onl# have a ri ht to select an equivalent of other personal propert# of the inheritance at its %ust price!

1@! /ho owns the fruits and interests of collationa&le propertiesN ((rticle 1=3B)

226
a! &! The entiret# of the fruits and interests shall pertain to the compulsor# heir, onl# if the donation is totall# inofficious! If the donation is onl# partiall# inofficious, the ri ht to the fruits and interests shall &e pro&ated &etween the compulsor# heir and the donee, in proportion to their respective interests over the propert#!

1A! If the donation is totall# inofficious and the thin has to &e returned in its entiret#, what are the o&li ations of the co;heirs to the doneeN ((rticle 1=3G)

a. b. c.

-eim&ursement to the full e<tent of the necessar# e<penses incurred (The same rule in (rticle BAG, par! 1)3@ -eim&ursement to the full e<tent of useful e<penses provided that the improvement is still in e<istence! (The same rule in (rticle BAG, par! 4)3A 2o reim&ursement as to ornamental e<penses, &ut ri ht of removal is ranted if no in%ur# to the estate will &e cause! ((rticle BA>)3B

1B! If the donation is partiall# inofficious and the thin has to &e returned onl# in part, what are the o&li ations of the co;heirs to the doneeN

73

(rticle BAG, par! 1! 2ecessar# e<penses shall &e refunded to ever# possessor$ &ut onl# the possessor in ood faith ma# retain the thin until he has &een reim&ursed therefore! 74 (rticle BAG, par 4! ,seful e<penses shall &e refunded onl# to the possessor in ood faith with the same ri ht of retention, the person who has defeated him in the possession havin the option of refundin the amount of the e<penses or of pa#in the increase in value which the thin ma# have acquired &# reason thereof! 75 (rticle BA>! *<penses for pure lu<ur# or mere pleasure shall not &e refunded to the possessor in ood faith$ &ut he ma# remove the ornaments with which he has em&ellished the principal thin if it suffers no in%ur# there&#, and if his successor in the possession does not prefer to refund the amount e<pended!

227
a! &! Partial reim&ursement of necessar# and useful e<penses, in proportion to the value to &e returned! (s to ornamental e<penses, the same rule as in total return applies, unless the propert# is ph#sicall# divided and the ornament happens to &e located in the portion assi ned to him, in which case he will have all the ri hts of ownership!

SECTION 8- PARTITION AN, ,ISTRI5UTION OF ESTATE I1! PARTITION

Define partition! Partition, in eneral, is the separation, division and assi nment of a thin held in common amon those to whom it ma# &elon ! The thin itself ma# &e divided, or its value! ((rticle 1=3?) *ver# act, which is intended to put an end to indivision amon co;heirs and le atees or devisees, is deemed to &e a partition, althou h it should purport to &e a sale, an e<chan e, a compromise, or an# other transaction! ((rticle 1=>4)

4!

/hat are the different 'inds of partitionN c! (s re ards its e<tentC 1) Total E when all the thin s comprised in the whole estate are divided amon all of the participants or co;owners! Partial E when some of the thin s are divided amon all or some of the participants or co; owners, the rest remainin in a state of indivision or communit# ownership!

4)

d!

(s re ards its durationC

228
1) Provisional E when the division is merel# temporar# or transitor# until a final or definite division is made! Definite E when it is sta&le, final and a&solute!

4) e!

(s re ards the manner or method &# which it is doneC 1) *<tra;%udicial E when it is effected &# the testator himself, or &# some person named &# such testator, or &# the participants or co;owners themselves amica&l# or &# common accord! (1) "ade &# the testator ((rticle 1=>=) (4) "ade &# the decedent in an act inter vivos ((rticle 1=>=) (@) "ade &# the heirs themselves (-ule 3A, )ec!, -ules of Court) (A) "ade &# a third person entrusted &# the testator or decedent ((rticle 1=>1, par! 1)! 4) Ludicial E when the court intervenes in the division!

@!

,nder the -ules of Court, there are four wa#s &# which the estate of the decedent ma# &e partitionedC c! d! e! f! :# e<tra;%udicial settlement (-ule 3A, )ec! 1) :# ordinar# action for partition (-ule 3A, )ec! 1) :# %udicial summar# settlement (-ule 3A, )ec! 4) :# administration proceedin s (-ule 3? to -ule ?1)

229
The last three are %udicial in character! A! /ho ma# effect the partition of the decedentHs estateN a! &! c! d! B! :# the decedent himself durin his lifetime &# an act inter vivos or &# will ((rticle 1=>=)$ :# a third person desi nated &# the decedent &# means of an act inter vivos or &# will ((rticle 1=>1)$ or :# the heirs themselves ((rticles 1=>@, 1=>A)$ or :# a competent court in accordance with the -ules of Court (-ules 3A;?1)

If the decedent himself partitions his estate &# an act inter vivos, is a will necessar# for the validit# of the partitionN ( mere partition inter vivos which does not o&serve the formalities of a will cannot, &# itself, ma'e testamentar# dispositions, &ecause that would circumvent the requirement of law that dispositions mortis causa can &e made onl# &# means of a will! ( person cannot, in the uise of ma'in a partition, ma'e disposition of propert# to ta'e effect upon his death!

G!

/hat is the nature of partition made &# the causante (decedent)C a! &! It ta'es effect onl# upon death$ It is revoca&le as lon as the causante is alive$ hence the causante can chan e or modif# it, or even rescind it durin his lifetime!

3!

0ow ma# the causante ma'e the partitionN d! e! :# will, or :# act inter vivos

>!

/hat is the limitation on partition &# causanteC

230
The le itimes of the causanteHs compulsor# heirs cannot &e impaired &# partition made &# him, whether in a will or &# an act inter vivos! ?! /hat is the rule as to partition to 'eep an enterprise intactN ( parent who, in the interest of his or her famil#, desires to 'eep an# a ricultural, industrial, or manufacturin enterprise intact, ma# partition his or her estate &# an act inter vivos, or &# will, &# orderin that the le itime of the other children to whom the propert# is not assi ned, &e paid in cash ((rticle 1=>=)! a! &! c! Onl# the parent is allowed the privile e of this (rticle ((rticle 1=>=) This privile e can &e e<ercised onl# if enou h cash or other propert# is availa&le to satisf# the le itimes of the other children! ,nder no circumstances should the le itimes &e impaired!

1=! Is it possi&le for the testator to prohi&it the partition of his entire estate even if there are compulsor# heirsN .es, &ut in such a case the period of indivision shall not e<ceed 4= #ears! This power of the testator applies even to the le itime of compulsor# heirs! ((rticle 1=>@) 11! /ho can demand the partition of the decedentHs estate after his deathN a! &! c! d! :# an# compulsor# heir, or :# an# voluntar# heir, or :# an# le atee or devisee, or :# an# person who has acquired an interest in the estate!

14! /hen ma# an heir demand the division of the estateN

231
*ver# co;heir has a ri ht to demand the division of the estate at an# time ((rticle 1=>@)! This is the same rule laid down in (rticle A?A, par! 1!3G 1@! /hat are the instances when partition cannot &e demandedN a! /hen the partition has &een e<pressl# prohi&ited &# the testator for a period which shall not e<ceed 4= #ears ((rticle 1?>@) *<ceptionC Despite this imposed indivision, partition ma# &e demandedC i! ii! &! /hen an# of the causes for the dissolution of a partnership occurs ((rticles 1>@= E 1>@1) /hen the court finds compellin reason for partition!

c! d!

/hen the co;heirs have a reed that the estate shall not &e divided for a period, which shall not e<ceed 1= #ears, renewa&le for another 1= #ears! ((rticle A?A) /hen the partition is prohi&ited &# law ((rticle A?A) /hen to partition the estate would render it unservicea&le for the use for which it is intended! ((rticle A?A)

1A! /here there are two or more heirs, the whole estate of the decedent is, &efore its partition, owned in common &# such heirs, su&%ect to the pa#ment of the de&ts of the deceased! ((rticle 1=3>) The immediate effect of the decedentHs death is the vestin of the success ional ri hts of the successors &ecause the ri hts to the succession are transmitted from the moment of the death of the decedent ((rticle 333)! The estate however is a mass of properties! The immediate effect, therefore, of the decedentHs death is a co;ownership of the heirs over
76

(rticle A?A, par! 1! 2o co;owner shall &e o&li ed to remain in the co;ownership! *ach co;owner ma# demand at an# time the partition of the thin owned in common, in so far as his share is concerned!

232
the entire mass! Partition ends the co;ownership amon the co;heirs as to the thin partitioned! 1inds of partitionC a! &! (ctual E ph#sical division of the thin amon the co;heirs$ Constructive E an# act, other than ph#sical division, which terminates the co; ownership, such asC i! *ver# act which is intended to put an end to indivision amon co; heirs and le atees or devisees is deemed to &e a partition, althou h it should purport to &e a sale, an e<chan e, a compromise, or an# other transaction ((rticle 1=>4) ii! )ale of the thin and division of the proceeds amon the heirs, resorted to when the thin is essentiall# indivisi&le or if ph#sical partition will so diminish its value that it &ecomes unservicea&le or useless ((rticle 1=>G)

1B! In institutions with a suspensive condition, when can the voluntar# heirs demand partitionN a! &! The# cannot demand a partition until the condition has &een fulfilled$ :ut the other co;heirs ma# demand it &# ivin sufficient securit# for the ri hts which the said voluntar# heirs ma# have in case the condition should &e complied with, and until it is 'nown that the condition has not &een fulfilled or can never &e complied with, the partition shall &e understood to &e provisional! ((rticle 1=>A)

1G! (rticle 1?>B provides for the equalit# amon heirsC a! &! 8uantitative E the shares of the co;heirs are not necessaril# equal in value, &ut are determined &# law and &# will 8ualitative E whatever the aliquot portions &e, however, the law mandates equalit# in nature, 'ind and qualit#! OThus if an heir

233
ets a parcel of land, the other heirs should also &e iven parcels of land!P 13! /hat are the e<ceptions or qualifications to the requirement of qualitative equalit#N a! &! c! If the causante has made the partition himself$ If the co;heirs a ree otherwise$ If qualitative equalit# is impossi&le or impractica&le!

1>! If an heir sells his hereditar# ri ht to a stran er &efore the partition of the decedentHs estate, what is the ri ht iven to the other co;heirsN The co;heirs in such a case are su&ro ated to the ri hts of the purchaser &# reim&ursin him for the price of the sale, provided the# do so within the period of one month from the time the# were notified in writin of the sale &# the vendor! ((rticle 1=>>) 1?! /hat requisites must concur in order that the ri ht of le al redemption ma# &e availed ofN a! &! c! d! e! f! There must &e several co;heirs$ One of them sells his hereditar# ri hts The &u#er must &e a stran er$ The sale must &e &efore partition (t least one co;heir must demand the redemption! The ri ht is e<ercised within a period of one month to &e counted from the time the# were notified in writin &# the co;heir vendor$ and The vendee is reim&ursed for the price of the sale!

! 2oteC

X)ale must &e made to stran er E a stran er within the meanin of this article is an#one who is not a co; heir! (:asa vs, ( uilar, 113 )C-( 14>) X/hen ri ht of redemption ma# &e e<ercised E the ri ht ma# &e e<ercised onl# &efore partition, not after! (Caro vs, C(, 11@ )C-( 1=)

234
X/ritten notice is required E without it period does not commence to run (5arcia vs! Calaliman, 134 )C-( 4=1) 4=! /hat is the rule if a thin is indivisi&le, or would &e much impaired &# its &ein dividedN ((rticle 1=>G) a! &! The thin ma# &e ad%udicated to one of the co;heirs, provided he shall pa# the others the e<cess in cash$ )ell the thin in a pu&lic auction if an# of the heirs should demand that the thin &e sold at pu&lic auction, provided that stran ers are allowed to &id!

41! ,pon partition, what are the o&li ations of the co; heirs amon each otherN ((rticle 1=>3) The co;heirs shall reim&urse one anotherC a! &! c! 7or the income and fruits which each one of them ma# have received from an# propert# of the estate 7or an# useful and necessar# e<penses made upon such properties 7or an# dama e thereto throu h malice or ne lect!

The same rule in co;ownership ((rticle B==) 44! To whom shall the title &e delivered if it comprises two or more pieces of land, which have &een assi ned to two or more co;heirs, or when it covers one piece of land, which has &een divided &etween two or more co;heirsN a! The title shall &e delivered to the one havin the lar est interest and authentic copies of the title shall &e furnished to the other heir at the e<pense of the estate! If the interest of each co;heir should &e the same, the oldest shall have the title! ((rticle 1=?=)

&!

2oteC This article onl# provides for the ri ht over the document! The co;heirs, however, have the ri ht to have the title divided into individual titles, separate

235
for each of the owners to correspond to the separate portions held &# them respectivel#! 6EFFECTS OF PARTITION

4@! /hat is the o&li ation of the co;heirs after the partition has &een madeN The co;heirs are reciprocall# &ound to warrant the title to, and qualit# of, each propert# ad%udicated! ((rticle 1=?4) Partition amon co;heirs imposes upon them the same mutual o&li ation of warranties imposed amon co;owners in eneral ((rticle B=1)33 -ules on warrantiesC (rticles 1BA3;1B>= (Title on )ales, insofar as the# are not inconsistent with the rules iven in this su&section) 4A! /hat is the e<tent of lia&ilit# of the co;heirs on warrant#N The reciprocal o&li ation of warrant# shall &e proportionate to the respective hereditar# shares of the co;heirs! ((rticle 1=?@) 4B! /hat is the effect of the mutual warrant# of the co; heirs if an# of them is insolventN The other co;heirs shall &e lia&le for his part in the same proportion, deductin the part correspondin to the one who should &e indemnified! ((rticle 1=?@) 4G! /hat is the ri ht of the heirs who pa# for the insolvent heirN Those who pa# for the insolvent heir shall have a ri ht of action a ainst him for reim&ursement, should his financial condition improve! ((rticle 1=?@, par! 4)
77

(rticle B=1! *ver# co;owner shall, after partition, &e lia&le for defects of title and qualit# of the portion assi ned to each of the co;owners!

236
*<ception O/hen there is nor ri ht to &e reim&ursedP /hen the insolvenc# has &een %udiciall# declared, since %udiciall# declared insolvenc# e<tin uishes all o&li ations! 43! /hat is the period within which to file an action to enforce the warrant# amon co;heirsN It must &e &rou ht within ten #ears from the ri ht of action accrues! ((rticle 1=?A) 4>! If a credit should &e assi ned as collecti&le, what is the effect of the su&sequent insolvenc# of the de&torHs estate on the co;heirsN The co;heirs shall not &e lia&le for the su&sequent insolvenc# of the de&tor of the estate, &ut onl# for his insolvenc# at the time the partition is made ((rticle 1=?B)! OThe warrant# covers onl# insolvenc# of the decedentHs de&tor at the time of partition, not su&sequent insolvenc#, for which the co;heir ta'es the ris'!P 4?! /hat is the period within which the warrant# of the solvenc# of the de&tor can &e enforcedN It can onl# &e enforced durin the five #ears followin the partition! ((rticle 1=?B, par! 4) /arrant# for ood de&ts E that the de&tor is solvent at the time of the partition (not later)! The warrant# is ood for five #ears followin the date of the partition! There is no warrant# for &ad de&ts E an heir accepts them at his own ris'! @=! (re co;heirs &ound to warrant &ad de&tsN Co;heirs do not warrant &ad de&ts ifC a! &! )o 'nown to the distri&utee$ and (ccepted &# the distri&utee! ((rticle 1=?B, par! @)

@1! /hen ma# the o&li ation of warrant# amon co;heirs ceaseN

237

a!

&! c!

d! e!

/hen the testator himself has made the partition, unless it appears, or it ma# &e reasona&l# presumed, that his intention was otherwise, &ut the le itime shall alwa#s remain unimpaired$ /hen it has &een so e<pressl# stipulated in the a reement of partition, unless there has &een &ad faith$ /hen the eviction is due to a cause su&sequent to the partition, or has &een caused &# the fault of the distri&utee of the propert#! ((rticle 1=?G) )upervenin event causin the loss or the diminution in value /aiver 6RESCISSION PARTITION AN, NULLIT3 OF

@4! /hat are the causes of rescission or annulment of a partitionN ( partition ma# &e rescinded or annulled for the same causes as contracts! ((rticle 1=?3) a! &! Causes for annulmentC (rticle 1@?= Causes for rescissionC (rticle 1@>1 and (rticle 1=?> (lesion)

@@! /hen ma# a partition, %udicial or e<tra;%udicial &e rescinded on account of lesionN /hen an# one of the co;heirs received thin s whose value of less, &# at least one;fourth, than the share to which he is entitled, considerin the value of the thin s at the time the# were ad%udicated! ((rticle 1=?>) Lesion is economic in%ur# where the part# receives less than he is entitled to receive! 2ote the sli ht variation from pars! 1 W 4 of (rticle 1@>1, which specifies more than one;fourth, while (rticle 1=?>, provides for a minimum lesion for rescission, which is one;fourth (4BY)! In cases of partition of the inheritance, (rticle 1=?> applies!

238

@A! /hat is the e<ception to the rule that partition can &e impu ned on the round of lesionN ( partition made &# the testator himself is not su&%ect to rescission even in case of lesion in the amount specified in (rticle 1=?>! ((rticle 1=??) *<ceptionsC a! &! Impairment of the le itime (*ven if lesion is less than one;fourth) "ista'e &# the testator or vitiation of his intent! ((rticle 1=??)

@B! /hat is the prescriptive period for the action of rescission on account of lesionN 7our #ears from the time the partition was made ((rticle 11==)! This is the same period laid down in the eneral rule of rescission of contracts ((rticle 1@>?) @G! /hat are the options of the heir who is sued for rescissionN a! To have a re;partition OIn which case, the old partition will not &e distur&ed in its entiret# &ut it shall onl# &e &etween those who have &een pre%udiced and those who have received more than their %ust share!P, or To indemnif# the co;heir the amount of the lesion suffered, &# pa#ment in cash or &# the deliver# of a thin in the same 'ind and qualit# as that awarded to the plaintiff ((rticle 11=1)!

&!

2ote that it is the co;heir who is sued for rescission who has the option! If the propert# iven to the heir demandin the rescission consists of real propert# and said heir has alienated in whole or a considera&le part of the real propert#, he cannot maintain an action for rescission on the round of lesion, &ut he shall have a ri ht to &e indemnified in cash! ((rticle 11=4)

239
@3! /hat is the effect if there is a preterition of an# of the compulsor# heirs in the partition of the decedentHs estateN ( partition made with preterition of an# of the compulsor# heirs shall not &e rescinded, unless it is proved that there was &ad faith or fraud on the part of the other persons interested$ &ut the latter shall &e proportionatel# o&li ed to pa# to the person omitted the share which &elon s to him ((rticle 11=A) @>! /hat is the effect if the partition includes a person &elieved to &e an heir, &ut who is notN ( partition, which includes a person, &elieved to &e an heir, &ut who is not, shall &e void onl# with respect to such person! ((rticle 11=B)