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BAR REVIEW LECTURE

WILLS AND
SUCCESSION
ATTY. RONEY JONE P. GANDEZA

SUCCESSION

mode
of
ownership

acquisition

of

property,

rights, obligations
transmitted

through death
by will or by operation of law

QUESTION:
Which of the following is not a
mode
of
acquisition
of
ownership?
a. prescription
b. donation
c. accession
d. law
3

WHAT ARE THE MODES OF


ACQUISITION OF
OWNERSHIP?
DONATION
PRESCRIPTION
INTELLECTUAL CREATION
SUCCESSION
TRADITION
OCCUPATION
LAW (Art. 712, CC)
4

QUESTION:
What is meant by law as a
mode of acquiring ownership?
Cite at least three examples.

ANSWER:
When the Civil code speaks of
law as a distinct mode of
acquiring ownership, it refers
to those instances where the
law, independently of the
other modes of acquiring
ownership,
AUTOMATICALLY
and
DIRECTLY
vests
the
ownership of the thing in a
certain individual once the

EXAMPLES:
Hidden
treasure
which
a
stranger discovers by chance on
anothers property. Here, onehalf of the treasure belongs to
the stranger, while the other half
belongs by operation of law to
the owner of the land. (Art. 438,
CC)
Abandoned beds, when a river
or stream suddenly changes its
course to traverse private lands.
7

Fruits naturally falling from a


tree upon adjacent land. Here,
the ownership of the fruits is
vested automatically in the
owner of the adjacent land.
(Art. 681, CC)

Acquisition of property in a
state
of
co-ownership
if
marriage is governed by the
absolute community regime.
8

WHY IS THERE A NEED TO DISTINGUISH


BETWEEN DONATION INTER
VIVOS AND DONATION MORTIS CAUSA?

The distinctions are important to


determine

Effectivity of donation
Transfer of ownership
Revocability of donation
Predecease of donee
Formalities required by law
9

EFFECTIVITY OF
DONATION
Donation inter vivos takes effect
during the lifetime of the donor.
Donation mortis causa takes
effect upon the death of the
donor.
10

TRANSFER OF OWNERSHIP

In inter vivos, ownership is


transferred to the donee before
the death of the donor.
In mortis causa, ownership is
transferred
only
upon
the
death of donor.
11

DEATH OF DONEE
Inter vivos is valid even if donor
survives the donee.
Mortis causa is void if donor
survives the donee.

12

REVOCABILITY OF
DONATION
Inter vivos is essentially
irrevocable.
Mortis causa is always revocable
during the lifetime of the donor.
13

FORMALITIES
Inter vivos must comply with
the formalities for donations
under Arts. 748 and 749, Civil
Code.
Mortis causa must comply with
the formalities for notarial and
holographic wills.
14

PROBLEM:
X donated in a public instrument a
parcel of land to Y, who accepted it
in the same document. It is there
declared that the donation shall
take effect immediately, with the
donee having the right to take
possession of the land and receive
its fruits but not to dispose of the
land while X is alive, as well as for
ten years following his death.

Moreover, X also reserved in the


same deed his right to sell the
property should he decide to
dispose of it at any time a
right which he did not exercise
at all.
After his death,
brought an action to
property,
alleging
donation was void
did
not
comply

Xs heirs
recover the
that
the
because it
with
the
16

ANSWER:
Yes, the suit will prosper
because the donation did not
comply with the formalities of a
will. In this instance, the fact
that the donor did not intend to
transfer
ownership
or
possession
of
the
donated
property to the donee until the
donors death, would result in a
donation mortis causa and in
this kind of disposition, the
17

The donation mortis causa in


this case which is embodied
only in a public instrument
without the formalities of a
will could not have transferred
ownership of the disputed
property to Y.
18

TRANSMISSION OF
PROPERTY RIGHTS AND

OBLIGATIONS
All
obligations
transmissible,
except
personal obligations.

are
purely

Heirs liability to pay is coextensive with the value of his


inheritance.
19

PROBLEM:
D was the defendant in a civil
case. During the pendency of
the case, he died, and his
children were substituted as
defendants.
If judgment is rendered against
the defendants, can the children
be held personally liable with
their own individual properties?
20

ANSWER:
Despite the substitution,
children are not liable.

the

The remedy of the plaintiff, the


creditor, is to proceed against
the estate of the deceased
debtor.
21

PROBLEM:
A father sold a parcel of land to a
buyer, but had not yet delivered the
parcel by the time he died. Are the
heirs required to make the delivery?

ANSWER:
Yes, because the heirs also
inherit the obligations of the
deceased
which
are
not
extinguished by death.
22

DEATH OF THE DECEDENT


The rights to the succession
are transmitted from the
moment of death of the
decedent. (Art. 777, CC)

23

PRIOR
DEATH

TO

PERSONS

The heirs merely have


an
inchoate right to his property.
AFTER DEATH OF A PERSON

The heirs own the property,


subject
to
the
decedents
liabilities.
They
may
dispose
of
the
property, even if the property is
still under administration.

PROBLEM:
T died with a will survived by his
legitimate children: A, B and C.
Upon Ts death, A, the eldest
son, sold his entire share to
his friend, F.
Is the sale valid?
ANSWER:
The sale is valid because the
rights of A to the inheritance
became vested upon Ts death.

QUESTION:
Is actual death the only trigger
that opens the estate of a
person to succession?

ANSWER:

Yes, subject to two exceptions:


a) presumed death of a person.
b)
judicial
marriage.

dissolution

of
26

PRESUMED DEATH
ORDINARY ABSENCE
If the absentee disappears
under normal conditions, there
being no danger of death, he is
presumed dead for the opening
of his succession at the end of
TEN YEARS.
If he disappeared at age 75, he
is presumed dead at the end of
FIVE YEARS.

EXTRAORDINARY ABSENCE
This is absence coupled with
great probability of death.
An absence of FOUR YEARS is
sufficient for a person to be
presumed dead.

PRESUMPTION OF DEATH DUE


TO EXTRAORDINARY ABSENCE
A person on board a missing
vessel or a missing airplane,
who has not been heard of for
FOUR YEARS since the loss of
the vessel or airplane.
A person in the Armed Forces
who has taken part in war, and
has been missing for FOUR
YEARS.
A person who has been in danger

QUESTION:

If a person disappears with


great probability of death, when
should he be presumed dead?
WER:
The person is presumed to have
died
at
the
time
of
the
disappearance (or at the time of
the calamity, not at the end of
four years.
The presumption of death will
30

NOTE:
While succession really took
place four years before or on
the day of the disappearance,
actual division will only be at
the end of four years.
From the beginning of the four
years,
the
heir
shall
be
considered
the
owner
and
possessor of the property, and
31

PROBLEM:
W, wife of H, filed a petition
seeking a judicial declaration of
presumptive
death
of
her
missing husband, H, who has
been missing and unheard of
since 2005.
Will the petition prosper?
32

ANSWER:
No, because the presumption
is already established by law.
A
judicial
declaration
of
presumptive death is required
only
for
purposes
of
remarriage under Article 41 of
the Family Code.
33

QUESTION:
Suppose H was 76 years old
when he disappeared in 2005,
when shall he be presumed
dead for the opening of his
succession?
a. 2009
b. 2010
c. 2012
d. 2015

34

QUESTION:
What is freak succession?

SUCCESSION
This FREAK
is succession
without the
triggering
effect
of
actual
death.
Article 50 of the Family Code
gives
two
instances
which
require the payment or delivery
of presumptive legitimes before
the actual death of the person

TRANSMISSION BY WILL
OR BY OPERATION OF LAW
If a person dies with a will, his
estate is to be distributed in
accordance with the rules on
testamentary succession.
If he dies without a will, or with
a void will, his estate is to be
distributed in accordance with
the
rules
on
intestate
36

DIFFERENT KINDS
OF SUCCESSION
Testamentary
Intestate
Mixed

37

TESTAMENTARY
This is succession which results
from the designation of an heir,
made in a will, and executed in
the form
prescribed
by
law.
LEGAL OR INTESTATE
This is succession which is effected by
operation of law in default of a will.

MIXED
This is succession effected
partly by will and partly by
38

DIFFERENT KINDS OF HEIRS

COMPULSORY HEIRS
- primary compulsory heirs
- secondary compulsory heirs

VOLUNTARY HEIRS
INTESTATE HEIRS
39

DISTINCTIONS BETWEEN
HEIRS LEGATEES AND
DEVISEES

DEVISEES/LEGATEES are always


called to succeed to individual
items of property.
HEIRS are called to succeed to
an indeterminate, fractional or
aliquot
portion
of
the
decedents estate.
40

DEVISEES/LEGATEES succeed by
particular title.
HEIRS succeed
title.

by

universal

DEVISEES/LEGATEES are always


called to succeed by will.
HEIRS are called to succeed
either by will or by operation of
law.

41

QUESTION:
What is the importance of the
distinction
between heirs on
the
one
hand
and
legatees/devisees
on
the
other?
42

ANSWER:
GENERAL RULE
There is no difference in their
capacity, effect and solemnities.

EXCEPTION
Distinction is important in cases
of:
PRETERITION
IMPERFECT DISINHERITANCE.

43

WHAT IS PRETERITION?

The omission in the testators


will of one, some or all of the
compulsory heirs in the direct
line whether living at the
time of
the execution of the
will or born after the death of
the testator.

REQUISITES OF
PRETERITION
FIRST: There is a total
omission in the inheritance.
SECOND: The omission must
be of a compulsory heir.
THIRD: The compulsory heir
omitted must be in the direct
line.
45

TOTAL OMISSION
IN THE INHERITANCE
THERE IS PRETERITION even if a
compulsory heir is named in the
will, but he is not given any
share, the heir not having been
expressly disinherited.
REASON: Preterition involves an
omission in the inheritance, not
46

NO
PRETERITION
if
a
compulsory heir is given a share
in the inheritance no matter
how small.
REASON: The heir is entitled
only to the completion of his
legitime. (Art. 906, CC)
47

NO PRETERITION even if a
compulsory heir is not given
anything in the will, but he had
already received a donation
from the testator.
REASON: A donation to a
compulsory heir is considered
as an advance of the legitime.
(Art. 1073 CC)
48

NO
PRETERITION
if
a
compulsory heir is given a
legacy, even if less than his
legitime.
REASON:
Remedy
of
the
aggrieved heir is to demand
completion of his legitime.
49

NO PRETERITION if part of the


estate has been given to a
compulsory
heir,
whether
indicated in the will or not.

50

OMITTED HEIR MUST BE A


COMPULSORY HEIR
THERE IS NO PRETERITION of
voluntary heirs or instituted heirs.
NEITHER IS THERE PRETERITION of
intestate heirs, unless they are
compulsory heirs.
51

COMPULSORY HEIR OMITTED


MUST BE IN THE DIRECT LINE
THERE IS NO PRETERITION
a surviving spouse.

of

Although a compulsory heir,


the spouse is not an heir in
the direct line.
52

EFFECTS
PRETERITION
FIRST EFFECT
The institution of heirs is
automatically annulled without
need of court action.
INTESTACY RESULTS.

53

PROBLEM:
T has three legitimate children,
A, B and C. T made a will
instituting his children, A and B,
and a friend, F, as his sole heirs.
C
was
omitted
in
the
inheritance.
Estate is 90,000. How should
the distribution be made?
54

90,000

Instituted Instituted Preterited Instituted

ANSWER:
The preterition of C annuls the
institution of A, B and F as Ts
heirs. Intestacy results.
A, B and C will each get 30,000.
The friend, F, gets nothing.

56

PROBLEM:
T executed a will containing
only one provision whereby he
instituted his sister, S, as his
only heir.
Surviving T when he died were
his parents, F and M, and his
sister, S.
How shall Ts estate of 50,000
be distributed upon his death?
57

50,000

Instituted
58

ANSWER:
The omission of F and M constitutes
preterition which will result in the
annulment of the institution of S.
Consequently, the entire will is void;
estate is to be distributed as in
intestacy.

59

IMPORTANT:
In preterition, the preterited
heir gets his share not only of
the legitime, but also of the free
portion.
This rule differs from a case of
imperfect disinheritance where
the disinherited heirs gets only
his legitime.
60

SECOND EFFECT

Although the institution of heirs


is annulled, the legacies and
devises
shall
remain
valid
insofar
as
they
are
not
inofficious.
In other words, they are not
voided, but they are merely
reducible if the legitime has
been impaired.

PROBLEM:
In Ts will, he gave F, a friend, a
legacy of 10,000; instituted his
son, A, as heir; and deliberately
omitted his other son, B.
If the estate is 100,000, how
should the estate be distributed
on Ts death?
62

100,000

Instituted

Preterite
d

F
Legatee
10,000

63

ANSWER:
The preterition of B renders the
institution of heirs void.
The legacy is effective for the
legitime has not been impaired.
Therefore, the remaining 90,000
will be divided intestate as
follows: A = 45,000
B = 45,000
F = 10,000
64

PROBLEM:
In the previous problem, if the
legacy to F had been 60,000
and the other facts are the
same,
how
would
the
estate
be
ANSWER:
distributed?
Since the estate is 100,000, the
free portion is only 50,000.
The legacy of 60,000 should be
reduced by 10,000.
A=
25,000
B=

65

PROBLEM:
In Ts will, he gave his friend, X,
a legacy of 60,000; instituted A
and another friend, Y, as heirs;
and deliberately omitted B.
If the estate is 100,000, how
should the estate be distributed
on Ts death?
66

100,000

Instituted Preterite Legatee Instituted


d
60,000
67

ANSWER:
The preterition of B renders
void the institution of A and Y.
The legacy to X, though valid, is
reducible because it impairs the
legitime of A and B.
A
25,000
B
25,000
X

=
=

68

OBSERVATIONS:
The legatee (X) is entitled to
receive his legacy.
But the instituted heir (Y) is not
entitled to receive anything
from the estate.

69

WHAT IS INEFFECTIVE
1.. Without
specification of the
DISINHERITANCE?
cause
(no cause stated)
2. Cause denied by the heir and
not proved by the instituted
heir
(false cause)
3. Cause not given by law
(illegal cause)

QUESTION: What are the legal


effects of ineffective, imperfect or
invalid disinheritance?

ANSWER:

FIRST EFFECT: The institution of


heirs is annulled insofar as it
may
prejudice
the
person
disinherited, or insofar as the
legitime of said heir is impaired.
SECOND EFFECT: The devises,
legacies and other testamentary
dispositions shall be valid to
71

PROBLEM:
Testator T has three legitimate
children: A, B, and C.
In his will, T disinherited A and
instituted B and C as his heirs.
The disinheritance of A was
invalid because it was for a
cause not provided by the law.
If

the

hereditary

estate

is
72

90,000

Ineffective
ly
Disinherite
d

Institut
ed

C
Institut
ed

73

ANSWER:
The institution of B and C
remains valid, but their shares
are to be reduced to give A his
legitime.
Had there been preterition
here,
each
would
receive
30,000 each. Therefore:
A - 15,000
B - 37,500
74

PROBLEM:
Estate is 100,000. T gave a
legacy of 70,000 to a friend, X.
Y, a legitimate child, was
ineffectively disinherited.
How much should X and Y get?
75

100,000

Y
INEFFECTIVEL
Y
DISINHERITED

X
LEGATEE
70,000

76

ANSWER:
X (legatee) gets only 50,000.
The legacy to him is reducible
by 20,000 so as not to impair
Ys legitime.
Y (disinherited heir) gets his
legitime of 50,000.
77

QUESTION:
In his will, testator T (a) disinherits
his daughter, A, because she
married a good for nothing gigolo
despite my repeated warnings that
she shouldnt marry him (b) omits
his wife, W, (c) leaves a legacy of
10,000 to his mistress, M, and 5,000
to his driver, E, and (e) institutes his
son, B, as his sole heir. Distribute Ts
estate of 100,000.
78

100,000 T

A
DISINHERITE
D

PRETERITE
D

B
INSTITUTE
D

LEGATE
E

10,00
0

LEGATE
E

5,000

79

ANSWER:
The
disinheritance
of
A
was
ineffective because the ground
relied upon by T does not constitute
a valid ground for disinheritance
under Article 919 of the Civil Code.
Hence, the testamentary provisions
in the will shall be annulled but only
to the extent that As legitime was
impaired.
80

The total omission of W does


not
constitute
preterition
because she is not a compulsory
heir in the direct line. Only
compulsory heirs in the direct
line may be the subject of
preterition. Not having been
preterited,
she is entitled to
her legitime.
The legacy in favor of M is void
under Article 1028 of the Civil
81

The legacy of 5,000 in favor of E


is not inofficious because it does
not exceed
the free portion.
Hence, E shall be entitled to
receive it.
The institution of B, which applies
only to the free portion, shall be
respected.
In sum the estate of T will be
distributed as follows: A 25,000
B 45,000
W 25,000

100,00
0

25,00
0

25,00
0

45,00
0

5,000

83

QUESTION:
If all other facts in the previous
problem are the same, except
that the disinheritance of A was
for a valid cause, how shall Ts
estate be distributed?
ANSWER: A 0
B 50,000 (legitime)
20,000 (by institution)
W 25,000 (legitime)
D 5,000 (legacy)
84

EFFECTS OF A VALID
DISINHERITANCE
Heir is
legitime.

deprived

of

his

Children of the disinherited


child can represent the latter,
but the right of representation
extends only to the legitime.
(Art. 923, CC)
There is no right to represent
85

FORMALITIES
OF A WILL

86

WHAT IS A WILL?
An act whereby a person is:
PERMITTED,
with
the
formalities prescribed by law,
TO CONTROL to a certain
degree the disposition of his
estate.
To take effect after his death

QUESTION:
What are the ambiguities in a
will?

ANSWER:
1. Intrinsic (Latent) ambiguity.
2. Extrinsic (Patent) ambiguity.
88

INTRINSIC AMBIGUITY

INTRINSIC
AMBIGUITY
is
ambiguity
which
does
not
appear on the face of the will. It
is is discovered only by extrinsic
evidence.
EXAMPLE: I institute as heir
my friend, Rod. Testator has
two friends named Rod.

when
there
an imperfect
CASES
OFisINTRINSIC
description
of the heir, legatee
AMBIGUITY
or devisee.
when there is an imperfect
description of the gift being
given (a house)
when only one recipient is
designated, but it turns out
that there are two or more
who fit the description. (Art.

EXTRINSIC AMBIGUITY
appears on the face of the will.
by examining the provision
itself, it is evident that it is not
clear.

EXAMPLE:
I
institute
some of
my brothers
and some of my sisters
as my heirs.

HOW MAY AN AMBIGUITY


IN A WILL BE CURED?
No difference in curing intrinsic
or extrinsic ambiguities.
FIRST, examine the will itself.
SECOND,
evidence.

admit

extrinsic
92

PROBLEM:

T instituted a brother-in-law
as one of his heirs. When T
died, it was discovered that he
has three brothers-in-law: A, B
and C.
In making the will, T orally
stated that he was referring to
brother-in-law, A, but among
Ts
files
was
found
a
memorandum that he wanted
brother-in-law, B, to be his heir.
93

ANSWER:
This is intrinsic ambiguity; the
doubt arises because of
circumstances outside the will.

94

QUESTION:
Is
Ts
oral
declaration
extrinsic evidence?

ANSWER:
Yes, but it is inadmissible to
cure the defect.

95

QUESTION:
Who among the brothers-in-law
should inherit from T?

ANSWER:
B should inherit in view of the
written memorandum which is
admissible extrinsic evidence.
NOTE: In the law on evidence,
evidence is admissible if it is
relevant and competent.

AFTER-ACQUIRED
PROPERTIES
GENERAL
RULE:
Property
acquired
between
the
execution of the will and the
death of the testator are not
included among the properties
disposed of.
EXCEPTION: Unless it appears
in the will that such was the
97

PROBLEM:
T made a will in 1998 giving to his
friend, F, all his cars. In 1998, T had
three cars, but in 2005, when T
died, he had at the time of his
death eight cars.
How many cars will F get?

98

ANSWER:
Three only.
The rule under Article 793 of the
Civil Code is applicable only to
legacies and devises.
As to institution of heirs, Article 781
of the Civil Code applies.

VALIDITY OF WILLS IN POINT


OF TIME
EXTRINSIC VALIDITY Determined
by the law in force at the time
the will is made. (Art. 795, CC)
INTRINSIC VALIDITY Determined
by the law in force at the time of
decedents death.

REQUISITES IN THE
EXECUTION OF A WILL
1. Testator be at least 18 years
of age.
2. Testator be of sound mind.

101

CAN THERE BE A VALID


ORAL WILL?

No. Every will must be in


writing and executed in a
language or dialect known to
the testator. (Art. 804, CC)

KINDS OF WILLS
A will may either be notarial or
holographic depending upon
the formalities or solemnities
which
accompanied
their
execution.

WHAT IS A NOTARIAL WILL?

A notarial will is one which is


executed in accordance with the
formalities prescribed by Arts.
804 to 808 of the Civil Code.

ESSENTIAL
REQUIREMENTS
1. TheOF
will
be in writing.
A must
NOTARIAL
WILL
2.The will must be executed in a
language or dialect known to
the testator.

3. The will must be subscribed


(signed) at the end thereof
by
the
testators
name
written by another person in
his presence, and by his

4. The will must be attested and


subscribed by three or more credible
witnesses in the presence of the
testator and of one another.

5. The testator or the person requested


by him to write his name and the
instrumental witnesses of the will
shall also sign and every page thereof,
except the last, on the left margin.
6. All the pages of the will must be
numbered correlatively in letters
placed on the upper part of each page.
106

7. The will must contain


attestation clause.

an

8. The
will
must
be
acknowledged
before
a
notary public by the testator
and the witnesses.
107

TESTATOR IS DEAF OR DEAFMUTE

9. He must personally read the


will, if able to do so,
otherwise, he shall designate
two persons to read it and
communicate to him, in some
practicable
manner
the
contents thereof.
108

TESTATOR IS BLIND
9. The will shall be read to him

twice; once by one of the


subscribing witnesses, and
again, by the notary public
before whom the will is
acknowledged.

109

PROBLEM:
The probate of a notarial will is
opposed on the ground that it does
not contain a statement attesting
that the language used therein was
known by the testator.
Should the opposition be given due
course?
110

ANSWER:
There is no law which requires
the will must expressly state
language used in the will and
such language was known by
testator.

that
the
that
the

What the law requires is that the


language was known by the testator.
(Suroza v. Honrado, 110 SCRA 381)
111

QUESTION:
If a person is a beneficiary in a
will, is he competent to act as
an instrumental witness?

ANSWER:

Yes, but his institution as an heir, or


the legacy or devise given to him, shall
be rendered void, unless there are
three other competent witnesses. (Art.
823, CC)
In other words, he is disqualified from
inheriting from the testator. (Art. 1027,
112
CC)

MEANING OF SIGNED
IN THE PRESENCE OF
SIGNED IN THE PRESENCE OF does not
mean that the testator and the instrumental
witnesses actually saw each other sign.
TRUE TEST: Whether they might have seen
each other sign, had they chosen to do so,
considering their mental and physical
condition and position with respect to each
other at the moment of inscription of each
signature. (Nera v. Rimando, 18 Phil. 450)

113

WHAT IS MEANT BY
ATTESTATION OF A
WILL?

It is the act of witnessing the


execution of a will by the
testator in order to see and
take note mentally that the
requirements of the law for the
execution
of
a
will
and
that
the
PURPOSE OF ATTESTATION
signature of the testator exists
To render available proof that
as a fact.
there has been compliance with
the statutory requirements for
114

SUBSCRIPTION

The
manual
act
of
the
instrumental
witnesses
in
affixing their signatures in the
will.
Only purpose is identification.

115

DISTINCTIONS BETWEEN
ATTESTATION AND
SUBSCRIPTION
ATTESTATION is an act of the
senses.
SUBSCRIPTION is an act of the
hand.
ATTESTATION is mental.
SUBSCRIPTION is mechanical.
ATTESTATION
is
to
render
available proof that the will had
116

WHAT ARE THE ESSENTIAL


FACTS TO BE STATED IN THE
Number
of pagesCLAUSE?
upon which
ATTESTATION

the will is written.


That the testator signed the will
and every page thereof, or
caused some other person to
write his name, under his
express
direction,
in
the
of the instrumental
presence
That the instrumental
witnesses
witnesses.
witnessed and signed the will
and all the pages thereof in the
presence of the testator and of
117

FORMALITIES OF
HOLOGRAPHIC WILL
1. Written by the hand of the testator
himself.
2. Dated by the hand of the testator
himself.

3. signed by the hand of the


testator himself.
4. Executed in a language or dialect
known to the testator.
118

PROBLEM:
T died in 2005, leaving behind a
holographic will which is entirely
written, dated and signed in her own
handwriting. However, the will
contains insertions and cancellations
which are not authenticated by her
signature. For this reason, the
probate of Ts will is opposed by her
relatives
who
stood
to
inherit
intestate from her.
May Ts will be probated?
119

ANSWER:
Yes, the will as ORIGINALLY
WRITTEN may be probated. The
insertions and alterations were
void
since
they
were
not
authenticated by the full signature
of T pursuant to Article 814 of the
Civil Code.
The original will remains valid
because a holographic will is not
invalidated by the unauthenticated
insertions or alterations. (Ajero v.
Court of Appeals, 236 SCRA 468)
120

PROBLEM:
T executed a will in his own handwriting,
signed by him at the end of each page on
the left marginal space of every page,
except the last page. The document bore
no date. However, below Ts every
signature, were the signature of two
witnesses, who later testified that the will
was executed in their presence on January
1, 1995, and that T was in full possession
of his faculties at that time and even
explained to them the details of the will he
was writing down.
Is the will formally valid?

121

ANSWER:
The will is not valid either as a
notarial will or a holographic will. It
is not valid as a notarial will
because
this
requires
three
witnesses. Neither is it valid as a
holographic will because the will
must be entirely written, dated and
signed by the hand of the testator.
The
fact
that
the
witnesses
testified as to the date of execution
of the will did not cure the defect.
Lacking the date, it cannot be
probated as a holographic will.
122

CONFLICTS RULES IN THE


EXECUTION OF WILLS
TESTATOR IS FILIPINO
. WILL IS EXECUTED IN THE
PHILS.
- Phil. Law
. WILL IS EXECUTED ABROAD
- law of the place
- Phil. law (Arts. 815-816, CC)

123

TESTATOR IS AN ALIEN
WILL IS EXECUTED IN THE
PHILS.
- Phil. law (Art. 17, CC)
- national law (Art. 817, CC)
WILL IS EXECUTED ABROAD
-

lex loci (Art. 17, CC)


national law (Art. 816, CC)
law of domicile
Phil. law

124

PROBLEM:
A, a Filipino, executed a will in
Kuwait while there as a contract
worker. Assume that under the laws
of Kuwait, it is enough that the
testator affix his signature in the
presence of two witnesses and that
the will need not be acknowledged
before a notary public.
May the will be probated in the
Philippines?
125

JOINT WILL
A
single
testamentary
instrument which contains
the wills of two or more
persons jointly executed by
them,
either
for
their
reciprocal benefit or for the
benefit of a third person.
126

IS A JOINT WILL VALID?


Whether in the Philippines
or abroad, Filipino citizens
are
prohibited
from
executing joint wills. This
is a matter of public
policy. (Arts. 818, 819, CC)
REASON: It may lead to
the
commission
of

127

QUESTIO
N:
Is a joint will executed by
aliens
abroad,
valid
according to their national
law and the law of the place
of execution, valid in the
Philippines?

128

ANSWER:
By clear implication under
Art. 819 of the Civil Code,
the prohibition does not
apply to foreigners, only to
Filipinos.
The first par. of Art. 17 of
the
Civil
Code
applies
insofar as alien testators are
concerned.

129

QUESTION:
Manuel, a Filipino, and his
American
wife,
Eleanor,
executed
a Joint Will in
Boston, Massachusetts when
they were residing in said
city.
The
law
of
Massachusetts
allows the
execution
of
joint
wills.
Shortly thereafter, Eleanor
died.
Can
the
will
be

ANSWER:
Yes, the will can be probated in the
Philippines insofar as the estate of
Eleanor is concerned. While the Civil
Code prohibits the execution of joint
wills here and broad, such prohibition
applies only to Filipinos. Hence, the
joint will which is valid where executed
is valid in the Philippines, but only with
respect to Eleanor. Under Article 819, it
is void with respect to Manuel whose
joint will remains void in the Philippines
despite being valid where executed.

SUBSTITUTION OF HEIRS
SUBSTITUTION OF HEIRS is
the appointment of another
heir so that he may enter
into
the
inheritance
in
default of the heir originally
instituted. (Art. 857, CC)
132

KINDS OF
SUBSTITUTION OF HEIRS

133

1. SIMPLE OR COMMON
Takes place when the testator
designates
one
or
more
persons to substitute the heir
or heirs instituted. (Art. 859, CC)

2. BRIEF
Two or more persons are
designated by the testator to
substitute for one heir.
COMPENDIOUS
One person substitutes for two
or more heirs.

134

3. RECIPROCAL
Takes place when two or
more persons are not only
instituted as heirs, but are
also
reciprocally
substituted.

135

4. FIDEICOMMISSARY
Takes place when the FIRST heir
(fiduciary) instituted is entrusted
with the obligation to preserve and
to transmit to a SECOND heir the
whole or part of the inheritance.

Provided the substitution does


not go beyond one degree from
the heir originally instituted.
Provided further that the 1st heir
and the 2nd heirs are living at the
time of the death of the testator. 136

ESSENTIAL REQUISITES OF
FIDEICOMMISSARY
SUBSTITUTION
There must
be a first heir called
primarily to the enjoyment of
the estate.
There must be a second heir.
An obligation clearly imposed upon
the first heir to preserve and
transmit to the second heir the
whole or a part of the estate.
The first and second heirs must
be only one degree apart.
137

Both heirs must be alive


(or at least conceived) at
the time of the testators
death (Art. 863, CC)
Must be made in an
express manner (Art. 867, CC)
Must not burden the
legitime.
138

FIRST REQUISITE

FIRST HEIR
must
be
capacitated;
must accept the inheritance.

Not a mere trustee, for


while he also administers, he
carries out
not anothers
wishes, but his
own, insofar
as the management
of the
property
property
is
concerned.

139

He
is
almost
like
a
usufructuary,
with the right to
enjoy the property.

Like a usufructuary, he cannot


alienate the property itself.

Like a usufructuary, he is
bound to make an inventory to
know what properties he must
preserve and transmit. NO BOND
is required.
140

SECOND REQUISITE

PRESERVE AND TRANSMIT


Obligation must be given clearly
and

expressly.

If mere advice or suggestion, no


fideicommisary substitution.
EXAMPLE: T made X his heir so that
X would enjoy the property as long
as X lived, but after his death, the
same
should
go
to
Y.
No
141
fideicommisary substitution.

THIRD REQUISITE
SECOND HEIR
ownership is consolidated to
him

upon its transmission.

the second heir inherits not

from
the first heir but from
the testator.
must be capacitated to

succeed not the first heir but


the testator.
142

FOURTH REQUISITE
ONE DEGREE APART
The first and second heirs
must be one degree apart.

QUESTION:
What is one degree apart
in
fideicommissary
substitution?
143

ANSWER:
FIRST VIEW: One
degree
apart means one transfer, one
transmission, one substitution,
the purpose being to prevent,
successive entailments regardless of relationship.
(View of JBL Reyes, Puno, Caguioa and Paredes Jr.)

144

SECOND VIEW: One degree


means one generation. This means
that the substitute may be the
parent or child of the first heir;
thus, no other person can be the
fideicommissary.
(View of Tolentino, Paras, Padilla)

145

FIFTH REQUISITE

BOTH HEIRS MUST BE ALIVE


FIRST
HEIR
TESTATOR

PREDECEASES

Disposition shall be considered


merely as a simple substitution.
In which case, the second heir
shall receive the property.
146

SECOND
TESTATOR

HEIR

PREDECEASES

First heir shall receive the property


free from encumbrances.
BOTH HEIRS
TESTATOR

PREDECEASE

Intestacy results, and legal heirs


of the testator shall receive the
property.
147

PROBLEM:
T devised one-half of a parcel of
land to A, and the other half to B,
subject to the condition that upon
Bs death, whether before or after
that of T, the portion devised to
him (B) shall be delivered to A or
his heirs should he die before T.
Upon Ts death, B
demanded
partition of the property. A
refused
on the ground that B is
only a fiduciary heir (second heir).148

ANSWER:
A fideicommissary substitution
has no effect unless it is made
expressly.
The
testamentary
clause under consideration is not
a fideicommissary substitution.
The will establishes only a simple
or
common
substitution,
the
necessary result of which is that
B, upon the death of T, became the
owner of an undivided half of the
property. Being a co-owner, B can
demand partition of the property.

149

PROBLEM:
T died in 1990 with a will. In his will,
he devised a house and lot to his
friend, A, as first heir and to B, As
son, as second heir. B died in 1995
survived by his two children E and F.
A himself died in 2000 survived by
his two children C and D.

150

In the settlement of As estate, E and F


filed a motion to exclude the house and
lot originating from T on the ground
that they are the exclusive owners of
the property.
C and D opposed the motion on the
ground that B, the second heir,
predeceased T, and that therefore, the
fideicommissary substitution did not
produce any effect as far as B, the
second heir, is concerned.
Should the opposition be sustained?

151

T died 1990.

(1st heir)
+ 2000

(2nd heir)
+ 1995

B C D
F

HOUSE AND LOT

152

ANSWER:
No. B, the second heir, acquires a right to the
succession from the time of the testators death,
even though he, B, should die before the fiduciary,
A.
B inherited from T as second heir when the latter
died in 1990. When B died in 1995, he was able to
transmit his right to his own heirs, E and F.
When A (first heir) died in 2000, the right of E and
F over the property became absolute.

153

TESTAMENTARY
CONDITIONS AND DISPOSITIONS

154

QUESTION:
Under the law, the testator
has no right to impose any
condition upon the legitime,
and that should he do so, the
same shall be considered as
not imposed.
Is this rule absolute?
155

ANSWER:
The rule is not absolute.
Testator can validly prohibit
the partition of the legitime
for a period not exceeding 20
years.
This is the only prohibition or
condition that can affect or
burden the legitime. (Arts. 494,
1083, CC)

156

PROBLEM:
A, a bachelor, named his brother, B,
as heir if their sister, C, dies after
ten years following As death. B died
two years after As death, while C
died one year later. As estate is
claimed by D and E, Bs legitimate
children, and by F, G and H, Cs
legitimate children.
If As estate is valued at 150,000,
how shall the distribution be made?
157

If C dies after 10
years following As
death.

150,0
00

D E F G H
158

ANSWER:
In a conditional institution, such as
what is involved in the problem, the
instituted heir (B) must survive not
only the testator but also the
fulfilment of the condition in the will.
(Art. 1034, CC) Since B did not survive
the condition, his institution is
inoperative. Intestacy results. As
estate must therefore be distributed
to all nephews and nieces in equal
shares at 30,000 each.
159

IMPOSSIBLE AND
ILLEGAL CONDITIONS

EFFECT: Impossible or illegal


conditions are deemed not
imposed. (Art. 873, CC)
NOTE: The rule is different
in conditional obligations:
The
condition
and
the
obligation are void. (Art. 1183,
CC)
160

ABSOLUTE PROHIBITION TO
CONTRACT A FIRST MARRIAGE
Condition is void.
Considered as not imposed.
Contrary to public policy.

ABSOLUTE PROHIBITION
TO CONTRACT A RECondition is
void for being contrary
MARRIAGE

to public policy.

162

EXCEPTION: The condition is valid


when imposed:
on the widow by the deceased
spouse.
on the widow by the ascendants or
descendants of the deceased spouse.

RELATIVE
PROHIBITION
TO CONTRACT MARRIAGE

163

Condition is perfectly valid.


EXAMPLE:

Not to marry a particular person.


Not to marry for a particular time.
No to marry for a number of years.

PROBLEM:
H instituted his wife as sole
heir (no other compulsory heirs
existed) on condition that when
she becomes a widow, she must
never remarry. Two years after
H died, the widow remarried.
Is
she
entitled
inheritance?

to

the

164

ANSWER:
The condition is valid insofar
as
the
free
portion
is
concerned, since the absolute
prohibition to remarry was
imposed by the deceased
spouse.
The condition is void insofar
as the legitime is concerned
for no condition can be
imposed on the legitime. (see

165

PROBLEM:
T institutes his friend, F, as
heir on condition that he
should not enter any gambling
casino here or abroad for one
whole year after Ts death.
Is F entitled to receive the
inheritance upon Ts death?
166

ANSWER:
Yes, but he must give a security
to guarantee he would not enter
any gambling casino for one
whole year upon Ts death.
The security is called caucion
muciana.
If he enters any casino during the
prohibited period, he should
return whatever he may have
received, together with its fruits
and interest. (Art. 879, CC)
167

WHAT IS MODAL INSTITUTION?

Modal institution occurs when any or


all of the following are stated:
The object of the institution.
The application of the property left
by the testator.
The charge imposed by the testator.
168

DISTINGUISH BETWEEN MODAL


AND CONDITIONAL INSTITUTION
MODAL INSTITUTION The inheritance is
immediately demandable, provided
security is given. (Art. 882, CC)

that

INSTITUTION WITH A SUSPENSIVE


CONDITION Even if the heir wants to give
security, he will not be allowed to do so, and
will not be allowed to get the property in the
meantime; instead, the property will be
placed under administration. (Art. 880, CC)
169

When the condition, however,


is
RESOLUTORY
or
is
NEGATIVE, the property can be
taken upon the giving of a
security. (Art. 879, CC)
From this point of view, there
is
hardly
any
difference
between
modal
and
conditional institution.

170

PROBLEM:
T institutes his friend, F, as heir
on condition that A marries B.
Modal or conditional?

ANSWER:
This is a suspensive condition; the
inheritance is not demandable
until fulfilment of the condition.
171

PROBLEM:

T institutes his friend, F, as


heir on condition that A does
not smoke for a period of one
year.
Conditional or modal?

ANSWER:
This is a negative condition;
inheritance
is
demandable
right away, provided security is
given.

172

PROBLEM:
Ts will contains the following
testamentary
provision:
I
institute A as heir. He will use
the money for the establishment
of a medical school.
Modal or conditional?

ANSWER:
This is a modal institution;
inheritance is demandable right
away, provided security is given.

173

INSTITUTION OF HEIRS
An act by virtue of which the
testator designates or names
in his will the person or
persons who are to succeed
him in his property and
transmissible
rights
and
obligations. (Art. 840, CC)

WHAT ARE THE LIMITATIONS


ON THE RIGHT OF A PERSON
TO INSTITUTE HEIRS?
One who has no compulsory heirs
may dispose by will all his estate
or any part of it in favor of any
person having capacity to
succeed.
One who has compulsory heirs
may dispose of his estate
provided he does not contravene
the provisions of the law with
regard to the legitime of said
heirs.

175

IMPORTANT PRINCIPLES

INSTITUTION OF HEIRS
PRINCIPLE OF EQUALITY
Heirs
instituted
without
designation of shares shall
inherit in equal parts. (Art.
846, CC)
176

PRINCIPLE OF INDIVIDUALITY
GENERAL RULE:
When the testator institutes some heirs
individually and others collectively as when
he says, I designate as my heirs A and B,
and the children of C, those collectively
designated
shall
be
considered
as
individually instituted.

EXCEPTION:
Unless it clearly
appears that the
intention of the testator was otherwise.
(Art. 847, CC)
177

PRINCIPLE OF SIMULTANEITY
When the testator calls to the
succession a person and his
children, they are all deemed
to
have
been
instituted
simultaneously
and
not
successively. (Art. 849, CC)

178

PROBLEM:
In Ts will, he instituted his
legitimate children, A and B,
the children of his deceased
son, C, and a friend, M, as
heirs without designation of
their shares. Cs children are
D, E and F.
Estate is 180,000. How shall
the distribution be made?
179

A
Institut
ed

180,000

C+

Institut
ed

D
Institut
ed

M
Institut
ed

Institut Institut
ed
ed

180

ANSWER:
Apply Arts. 846 and 847, Civil Code.
ART. 846: Heirs instituted without
designation of shares shall inherit in
equal parts.
ART. 847: When the testator institutes
some heirs individually and others
collectively as when he says, I
designate as my heirs A and B and the
children of C, those collectively
designated shall be considered as
individually instituted, unless it clearly
appears that the intention of the
181

STEP 1
Satisfy the legitimes of A, B, D, E and F.
Estate is 180,000: Legitime portion is
one-half, or 90,000.
As to the legitimes, A and B will inherit
in their own right; while D, E, and F will
inherit by right of representation
182

DISTRIBUTION OF THE LEGITIME

A = 30,000 (own right)


B = 30,000 (own right)
D = 10,000
(right of
rep.)
E = 10,000
(right of
rep.)
F = 10,000
(right of
rep.)
90,000

183

STEP 2
The free portion of 90,000 shall
be divided equally among the
instituted heirs, A, B, D, E, F
and M, in accordance with Arts.
846 and 847.

184

DISTRIBUTION OF THE FREE


PORTION

A = 15,000
B = 15,000
D = 15,000
E = 15,000
F = 15,000
M = 15,000
90,000
185

THEREFORE:
A

= 30,000 as compulsory heir


15,000 as voluntary heir
B = 30,000 as compulsory heir
15,000 as voluntary heir
D = 10,000 by right of rep.
15,000 as voluntary heir
E = same as D
F = same as D
M= 15,000 as voluntary heir
186

QUESTION:
Explain the first paragraph of
Art. 856 of the Civil Code
regarding the predecease of a
voluntary heir.

187

ANSWER:
A voluntary heir who dies before
the testator transmits nothing to
his heirs.

REASON:
A voluntary heir cannot be
represented.
188

SECOND PARAGRAPH OF ART. 856,


CC
A COMPULSORY HEIR who:
1. dies before the testator
2. is incapacitated to succeed
3. renounces the inheritance
shall transmit no right to his own
heirs,
except
in
the
cases
expressly provided in the Civil
Code.

189

QUESTION:
May the right to revoke a will
be waived?

190

ANSWER:
No. Until the death of the testator, a
will is ambulatory and revocable.
The heirs do not acquire a vested
right to the disposition in a will till
after the testators death.

191

REVOCATION OF WILLS

1. by implication of law
2. by some will, codicil or other

writing
3. by an overt act
192

REVOCATION BY AN OVERT ACT

BURNING
Sufficient revocation even if
small part of the will is burned
even though the entire writing
itself is left untouched.
193

PROBLEM:
Testator placed his will on a
stove so that it would be burned
later when a fire would be lighted
in the stove.
The will was later removed by
another person from the stove
before the stove was lighted.
Is the will deemed revoked?
194

ANSWER:
No. While there was intent to
revoke, there was no overt
act of burning.

195

NOTE:
If the person who retrieved
the will was
an heir or
legatee or devisee, he will
not
inherit because he is
incapacitated by reason of
unworthiness under Art. 1032,
CC.

196

OVERT ACT OF TEARING


Even a slight tear is sufficient.
What matters is the intent to
revoke.

197

PROBLEM:
What about if the
crumpled his will?

testator

198

ANSWER:
No revocation.
It is not one of the modes
recognized by law.
NOTE: Tearing of signature is
sufficient revocation because
the signature goes to the very
heart of the will.
199

QUESTION:
What is revocation by the
execution of another will or
codicil?

200

ANSWER:
Revocation may be express or
implied.
Implied revocation consists in
complete
inconsistency
between two wills.
A notarial will may be revoked
by a holographic will, viceversa.
201

PROBLEM:
A, with no known living relatives,
executed a notarial will giving all
his estate to his girlfriend, B. One
day, he had a serious altercation
with B. A few days later, he was
introduced to a charming lady, C,
who later became a dear friend.
Soon
after,
he
executed
a
holographic will expressly revoking
the notarial will and designating
his new friend, C, as sole heir.
202

One day when A was clearing up his


desk, he mistakenly burned, along with
other papers, the only copy of his
holographic will.
His business associate, D, knew well
the contents of the will which was
shown to him by A the day it was
executed. A few days after the burning
incident, A died. Both wills were sought
to be probated in two separate
petitions.
Which of the two petitions will prosper?
203

ANSWER:
The probate of the notarial will will
prosper. The holographic will cannot
be admitted to probate because a
holographic will can only be probated
upon evidence of the will itself,
unless there is a photocopy. But since
the holographic will was lost and
there was no other copy, it cannot be
probated and therefore the notarial
will will be admitted to probate
because there is no revoking will.
204

Section 6, Rule 76 of the Rules of Court


provides that no will shall be proved as
a lost or destroyed will unless its
provisions are clearly and distinctly
proved by at least two credible
witnesses.
If the foregoing two-witness rule to
prove a lost or destroyed will is to be
strictly applied in the instant case, the
holographic will which A mistakenly
burned cannot be probated since there
is only one witness, D, who can be called
to testify as to the execution and
existence of the will.

205

PROBLEM:
T, a bachelor of 60, executed a will
bequeathing a ricefield worth 100,000 to
his friend, F. The will further provided
that all other assets owned by me after
death shall be equally divided between
my two brothers, A and B.
T subsequently married a young woman,
begot a son, and left another will
designating his wife and son as his heirs
in equal shares. The second will did not
expressly revoke the first will. He left an
estate worth 300,000 (including the
ricecefield).
Who is entitled to the ricefield?
acquires the rest of Ts assets?

Who
206

ANSWER:
It must be observed that T left two wills.
In
his first will, T bequeathed the
ricefield to his friend, F, and instituted as
heirs in equal shares his two brothers, A
and B, with respect to the rest of the
estate. In his second will, T instituted his
wife and son as heirs in equal shares.
Under our law on revocation of wills, a
will may be revoked by another will. The
revocation may
be effected either
expressly or impliedly. Since there is no
express revocation, is there an implied
207
revocation in the instant case?

It is undeniable that there is an


implied revocation if the testamentary
dispositions found in the first will are
totally or partially incompatible with
those found in the second will. It is
also
undeniable
that
the
incompatibility must be absolute in
character in the sense that the
testamentary
dispositions
cannot
stand
together.
The
real
issue,
therefore,
is
whether
the
two
testamentary dispositions found in the
first will can stand together with the
testamentary disposition in the second
will.
208

FIRST VIEW
According to the first view, reading the
two wills together it is clear that the
testatorial intention is that only the
testators wife and son shall inherit.
They are instituted as universal heirs
with respect to the hereditary estate in
its totality. Therefore, the second will in
its totality cannot stand together with
the first will in its totality. Consequently,
the incompatibility between the two
wills is total and absolute in character.
Hence, the first will is impliedly revoked
by the second will.
209

The testators widow and son


are, therefore, entitled to the
entire estate, including the
ricefield.
ESTATE 300,000
SON
150,000 (plus 50,000)
WIDOW
75,000 (plus 25,000)
FP
75,000
210

SECOND VIEW
According to the second view,
only the institution of A and B in
the first will as heirs and that
portion or part of the bequest
given to F which will impair the
legitime of Ts son and widow are
revoked by the second will. The
reason is that it is only to that
extent that there is absolute
incompatibility between the two
wills.
211

Consequently, F is entitled to the ricefield


but only to the extent that it does not
encroach upon the legitime of Ts son and
widow.
ESTATE 300,000
SON
150,000
WIDOW
75,000
FP
75,000
Considering that the value of the ricefield
is 100,000, the bequest is inofficious to
the extent of 25,000; it shall be reduced
to that extent.
212

DOCTRINE OF
DEPENDENT RELATIVE
REVOCATION
If the testator revokes his will with
the present intention of making a
new one and the new will is not
made, or if made, fails to take effect
for any reason whatsoever, it will be
presumed that the testator prefers
the old will to intestacy.
The old will can still be admitted to
probate.
213

Stated otherwise, the revocation


is subject to a SUSPENSIVE
CONDITION:
That the testator will make a
new will and that such will shall
take effect.
If such condition is not fulfilled,
then there is no revocation.
214

PROBATE OF WILLS

Probate of wills is a special


proceeding to establish the
validity of a will.
Probate is in the nature of a
proceeding in rem. (Art. 838,
CC)

FORMULA IN THE
COMPUTATION OF NET
HEREDITARY ESTATE

Gross Estate
Debts/Charges
+ Collationable Donations
= Net Hereditary Estate

PROBLEM:
T died leaving an
estate
worth
100,000
and
debts
amounting to 30,000.
During his lifetime, T had given
a donation of P50,000 to A, his
legitimate son. When T died,
two legitimate sons, A and B,
survived him.
How much is the legitime of A
and B?

217

100,000 (debts:
30,000)

DONATION
50,000
218

COMPUTATION:
Gross Estate 100,000
Debts

- 30,000
70,000

Collate
+50,000
120,000 (NHE)
219

ANSWER:
Since the net hereditary estate
is 120,000, the legitime of the
legitimate children is 60,000.
Since there are two children,
each will receive 30,000 as his
legitime.
The legitime of A is only
30,000. The 50,000 donation to
him should first be charged to
the legitime.

220

The excess of 20,000 (50,000


minus 30,000) should be taken
from the free portion which is
60,000.
The net free portion of 40,000
(60,000 minus 20,000) goes to
the instituted heirs.
Out of the actual net assets of
70,000 (because the debts have
been paid), B gets 30,000; A gets
0; free portion of 40,000 equals

221

QUESTION:
Should donations inter vivos to

children be collated?
YES.
Should donations inter vivos to

strangers be collated?
YES.

222

EXPLANATIONS:
Donations to strangers are
collationable because they
are considered as advances
on the free disposal, just as
donations
inter
vivos
to
children are considered as
advances on their legitimes.
Besides, how can the free
portion be determined or
computed unless the value of
said donations be added to
the actual estate?

223

Paragraph 2 of Article 909 of


the Civil Code is clear:
Donations to strangers are also
taken
into
account
in
determining the legitime of
which the testator could have
disposed by his last will.
224

PROBLEM:
A gave B, his legitimate child,
a donation inter vivos of
50,000 and to C, a friend, a
donation
inter
vivos
of
100,000. When A died, his
remaining estate was worth
only 100,000.
If A was survived by his only
child, B, should the donation

225

SOLUTION:
100,000
50,000
100,000
250,000

(actual estate)
(donation to B)
(donation to C)
(NHE)

LEGITIME
= 125,000
FREE PORTION = 125,000
The donation to C (100,000)
does not exceed the free portion
of 125,000. Hence, there is no
need to reduce it.

226

LEGITIME
That part of the testators
property which he cannot
dispose of because the law
has reserved it for certain
heirs who are, therefore,
called compulsory heirs. (Art.
886, CC)

227

PURPOSE OF LEGITIME
LEGITIME is to protect the
children and the surviving
spouse from the unjustified
anger or thoughtlessness of
the other spouse.
If there are no compulsory
heirs,
there can be no
legitime.
228

COMPULSORY HEIRS
In determining who are
compulsory
heirs,
it
is
important to know whether
the testator is LEGITIMATE
ILLEGITIMATE
229

LEGITIMATE

TESTATOR

1.

Legitimate children and their


legitimate descendants.

2.

Legitime parents and


legitimate ascendants.

3.

Surviving spouse.

4.

Illegitimate children and their


descendants,
whether
legitimate or illegitimate.

their

ILLEGITIMATE

TESTATOR
231

1.

Legitimate children and their


legitimate descendants

2.

Illegitimate
parents
OTHER ASCENDANTS)

3.

Surviving spouse

4.

Illegitimate children and their


descendants,
whether
legitimate or illegitimate

(NO

CLASSES OF COMPULSORY
HEIRS
PRIMARY COMPULSORY
HEIRS
They get their legitime even in the
presence
of
other
primary
compulsory heirs and even in the
presence of secondary compulsory
heirs.
They are those mentioned in Nos.
1, 3, 4.

232

SECONDARY COMPULSORY
HEIRS
Parents, legitimate or illegitimate,
are secondary compulsory heirs.
IF TESTATOR IS LEGITIMATE, parents
are excluded by No. 1 only.
IF
TESTATOR
IS
ILLEGITIMATE,
parents are are excluded by Nos. 1
and 4.
233

PROBLEM:
T is the testator; F and M
are his parents; A is Ts
legitimate child; B and C are
Ts illegitimate children; S is
Ts surviving spouse; and W
is the wife of A.
Who are entitled to inherit
from T?
234

M
T

S
C

235

ANSWER:

A, B, C and S are all entitled to their


legitimes even if all of them are
present.
F and M are entitled to their
legitimes only in default of a
legitimate child such as A.
If only F and A are present, A is
entitled to his legitime, but not F.
W, As wife is not a compulsory heir
of T but is a compulsory heir of A.
236

TABLE OF LEGITIMES

237

LEGITIMATE CHILDREN
1/2 of the estate, in equal portions,
whether they survive alone or with
concurring compulsory heirs.

LEGITIMATE PARENTS ALONE


1/2 of the estate, whether they
survive
alone
or
with
other
compulsory heirs.

238

SURVIVING SPOUSE ALONE


1/2 of the estate.
1/3 if marriage is in articulo mortis
and deceased spouse dies within
three months after marriage.
1/2 if despite marriage in articulo
mortis, deceased and surviving
spouse
have
been
living
as
husband and wife for more than
five years (Art. 900, CC)
239

ILLEGITIMATE CHILDREN
ALONE
1/2 of the estate, to be divided
equally among themselves.

ILLEGITIMATE PARENTS ALONE


1/2 of the estate.

240

ONE LEGITIMATE CHILD


SURVIVING SPOUSE
Legitimate child, 1/2 of
estate.
Surviving spouse,1/4 of
estate.

the
the

241

LEGITIMATE CHILDREN
SURVIVING SPOUSE
Legitimate children, 1/2 of the
estate.
Surviving spouse, same as one
LC.
242

LEGITIMATE CHILDREN
ILLEGITIMATE CHILDREN
Legitimate children, 1/2 of the
estate.
Illegitimate children, 1/2 of one
LC.
243

ONE LEGITIMATE CHILD


SURVIVING SPOUSE
ILLEGITIMATE CHILDREN
Legitimate child, 1/2 of the
estate.
Surviving spouse, 1/4 of the
estate.
Illegitimate children, 1/2 of
one LC.

244

LEGITIMATE CHILDREN
SURVIVING SPOUSE
ILLEGITIMATE CHILDREN
Legitimate children, 1/2 of the
estate.
Surviving spouse, share of one LC.
Illegitimate children, 1/2 of one LC.
245

LEGITIMATE PARENTS
ILLEGITIMATE CHILDREN
Legitimate parents, 1/2 of the
estate.
Illegitimate children, 1/4 of the
estate.

246

LEGITIMATE PARENTS
SURVIVING SPOUSE
Legitimate parents, 1/2 of the
estate.
Illegitimate children, 1/4 of the
estate.

247

LEGITIMATE PARENTS
SURVIVING SPOUSE
Legitimate parents, 1/2 of the
estate.
Illegitimate children, 1/4 of the
estate.

248

ILLEGITIMATE CHILDREN
SURVIVING SPOUSE
Illegitimate children, 1/3 of the
estate.
Surviving spouse, 1/3 of the
estate.
249

ILLEGITIMATE PARENTS
CHILDREN OF ANY CLASS
Illegitimate
excluded.

parents

are

250

ILLEGITIMATE PARENTS
SURVIVING SPOUSE
Illegitimate parents, 1/4of the
estate.
Surviving spouse, 1/4 of the
estate.
251

PROBLEM:

T dies leaving an estate of


100,000.
The
surviving
relatives are: A, a legitimate
child, and W, the wife. What
are
the
corresponding
legitimes?

252

100,0
00

253

ANSWER:

A
W
FP

50,000
25,000
25,000

254

PROBLEM
T died with four legitimate
children, A, B, C and D and a
surviving spouse, W. T left
an estate valued at 100,000.
How much is the legitime
of each of the heirs?

255

100,0
00

D
256

ANSWER
A 12,500
B 12,500
C 12,500
D 12,500
W 12,500
FP 37,500
TOTAL
100,000
257

PROBLEM
T is survived by his legitimate
children, A and B, and his
illegitimate children, C and D.
The net value of his estate is
200,000.
What is the legitime of each
of the survivors?
258

200,0
00

259

ANSWER
A
50,000
B
50,000
C
25,000
D
25,000
FP
50,000
TOTAL
200,000
260

PROBLEM
All the facts in the previous
problem are the same, except
that T had left four (instead
of two) illegitimate children,
C, D, E, and F.
What is the legitime of each
of the survivors?
261

200,0
00

262

ANSWER
A
50,000
B
50,000
C
25,000
D
25,000
E
25,000
F
25,000
FP
0_____
TOTAL
200,000
263

PROBLEM
T is survived by his wife, W,
his legitimate child, A, and his
illegitimate child, B. Net value
of the estate is 100,000. What
is
the
legitime
of
each
survivor?

264

100,000

W
B

265

ANSWER

A 50,000
W
25,000
B 25,000
FP 0

266

PROBLEM

Suppose T died with two


illegitimate children, B and C
(instead
of
only
one
illegitimate child, B), what is
the legitime of the survivors?

267

100,000

268

ANSWER
A 50,000
W
25,000
B 12,500
C 12,500
FP
0
269

PROBLEM:
T has three legitimate children; A,
B, and C; a wife, W; a father, F; and
two illegitimate children, D and E.
A is a special child, and T wants
to leave to him as much of his
estate as he can legally do under
the law.
State the aliquot parts of the
estate that T can leave all the
foregoing relatives. Assume a net
estate of 120,000 and that all the
above-named relatives survived T.
270

F
120,000

271

ANSWER
F
A
B
C
W
D
E
FP
TOTAL

0
20,000
20,000
20,000
20,000
10,000
10,000
20,000
120,000
272

DIVISION IN THE
ASCENDING LINE
A and B are the paternal
grandparents, while F is the
father; C and D are the
maternal grandparents while
M is the mother. T is the
testator, leaving a hereditary
estate of 100,000.
273

M
T
100,000
274

EXPLANATION:
If all (except T) survive,
the
grandparents
get
nothing. 50,000 is the
legitime
of
F
and
M
together, so each gets
25,000.
The
remaining
25,000 is the free portion.
275

If
M predeceased T, F gets
50,000
as
legitime.
The
remaining 50,000 is the free
portion.
C
and
D
cannot
represent M, because there is
no right of representation in
the ascending line.
The rule
applies.

of

proximity

also
276

If F and M predeceased T,
and the others are still alive,
the paternal line gets half of
the legitime and the maternal
line gets the other half. The
paternal line gets 25,000 and
this should be divided equally
between A and B.
What has been said of the
paternal line is also true of
the maternal line.

277

PROBLEM:

T
is survived by his
legitimate parents, F and M,
and his wife, W. The net
value
of
the
estate
is
100,000. What is the legitime
of the survivors?

278

100,000
279

ANSWER

F
M
W
FP

25,000
25,000
25,000
25,000

280

QUESTION
T
is survived by his
legitimate parents, F and M,
and his illegitimate children,
A and B. The net value of the
estate is 100,000. What is
the
legitime
of
the
survivors?
281

100,000

M
T

B
282

ANSWER

F
M
A
B
FP

25,000
25,000
12,500
12,500
25,000
283

PROBLEM:
T
is survived by his
legitimate parents, F and M,
his
wife,
W,
and
his
illegitimate children, A and
B. The net value of the
estate is 72,000. What is the
legitime of the survivors?
284

72,000

B
285

ANSWER
F
18,000
M 18,000
W
9,000
A
9,000
B
9,000
FP
9,000
286

PROBLEM
T is survived by his wife, W,
and his illegitimate children,
A and B. The net value of
the estate is 90,000. What is
the
legitime
of
the
survivors?

287

90,000

B
288

ANSWER
W
A
B
FP

30,000
15,000
15,000
30,000

289

PROBLEM
T, an illegitimate person, is
survived by his parents by
nature, F and M, and his
widow, W. The net estate is
100,000. What is the legitime
of the survivors?

290

100,000

Illegitima
te
291

ANSWER
F
12,500
M 12,500
W 25,000
FP 50,000

292

PROBLEM
T, an illegitimate person, is
survived by his parents by
nature, F and M, and his
illegitimate children, A and
B. The net estate is 100,000.
What is the legitime of the
survivors?
293

100,000

Illegitima
te

B
294

ANSWER

F
M
A
B
FP

0
0
25,000
25,000
50,000
295

RESERVA
TRONCAL
system of reservation

A
of
property by virtue of which an
ascendant
inherits
from
his
descendant
property,
which
property the descendant in turn
had acquired by gratuitous title
from another ascendant, or brother
or sister.
ascendant is obliged to reserve
such property for the benefit of
relatives who are within the third
degree and who belong to the line
from which said property came (Art.

RESERVA TRONCAL is an
extraordinary reservation of
property
because
it
constitutes an exception both
to the system of legitime and
the
order
of
intestate
succession.

297

QUESTION
Why is reserva troncal
regarded
as
an
extraordinary
reservation
of property?

298

ANSWER
Instead of the property passing to
the
compulsory
heirs
of
the
ascendant-reservista,
it
passes
automatically and by operation of
law
to
the
relatives
of
the
descendant-propositus
who
are
within the third degree and who
belong to the line from whence it
came.
299

PERSONAL ELEMENTS OF
RESERVA TRONCAL
ORIGIN: The ascendant, brother or
sister from whom the descendantpropositus
has
acquired
the
property by gratuitous title.
PROPOSITUS: The descendant from
whom the ascendant (reservista)
in turn had acquired the property
by operation of law.
300

RESERVISTA: The ascendant of the


propositus who is obliged to
reserve the property.
RESERVATARIOS: The relatives of
the propositus who are within the
third degree and who belong to
the line from which the property
came and for whose benefit the
reservation is constituted.
301

RESERVATARIO
S
RESERVIST
A

ORIGIN

OPERATION
OF LAW

GRATUITOU
S TITLE
PROPOSITU
S

302

ELEMENTS OF RESERVA
TRONCAL
FIRST: The property is inherited by
operation of law (legal succession
or legitime) by an ascendant from
his descendant upon the death of
the latter.
SECOND: The property had been
previously acquired by gratuitous
title (such as donation inter vivos,
remission,
succession)
by
the
descendant from another ascendant 303

THIRD: The descendant has died


without any legitimate issue in the
direct descending line who could
inherit from him.
FOURTH: There are relatives of the
descendant-propositus who are
within the third degree and who
belong to the line from which the
property came. (This is a condition
subsequent. If there be no such
relatives, no reserva troncal.
304

EXAMPLE:
F and M are the parents of C.
F died leaving a will, one
provision of which gave a parcel
of land to C.
One year later, C died without
any descendant, and without
any will. The mother, M, then
inherited the land.
305

The land is subject to reserva troncal.

M owns it only till she dies,


and at her death, it should
not go to anybody whom she
desires, but is reserved by
law in favor of the relatives of
F, the line from which the
property came.
Fs relatives must be within
the third degree, to be
counted from C.
306

FIRST ELEMENT:

ORIGIN

must be an ascendant
brother or sister.

or

must be a legitimate relative


because reserva troncal exists
only in the legitimate family.
The transmission from the
origin to the propositus must
be by gratuitous title.
307

SECOND ELEMENT
PROPOSITUS
must be a legitimate descendant
(or legitimate half-sibling) of the
origin.
the propositus is the descendant
(brother or sister) whose death
gives rise to the reserva, and from
whom the third degree is counted.
While the propositus is still alive,
there is no reserva yet, therefore,
he is the absolute owner of the308

THIRD ELEMENT:
RESERVISTA
The ascendant who inherits
from
the
propositus
by
operation of law. It is he who
has the obligation to reserve.
No reserva if he inherits it as
free portion by virtue of a will.
He is the full owner of the
property, subject to a resolutory
309
condition.

If at reservistas death, there


should still exist relatives
within the third degree of the
propositus, and belonging to
the line from which the
property came, his ownership
is terminated.
the property is not part any
more of his estate. Instead,
ownership is transferred to
the third degree relatives of
the propositus.

310

QUESTION
Can the
mortgage,
otherwise
property?

reservista
dispose
encumber

sell,
or
the

311

ANSWER
Yes,
but
reserva.

subject

to

the

The reservatarios can get the


real
property
from
the
transferee
as
soon
as
ownership is transferred to
such reservatarios, without
prejudice
to
our
Land
Registration Laws.

312

FOURTH ELEMENT:
RESERVATARIOS
Relatives within the 3rd degree
(from the propositus) who will
become the full owners of the
property
the
moment
the
reservista dies.
They inherit the property from
the propositus
Must be a legitimate relative of
the origin and the propositus.

313

PROBLEM:
H died leaving an estate of 100,000.
His widow, W, gave birth to a child
four months after Hs death, but the
child died five hours after birth. Two
days after the childs death, W also
died because she had suffered from
difficult childbirth. The estate of H is
now being claimed by his parents, A
and B, and by C and D, the parents of
W. Who is entitled to Hs estate of
100,000?
314

+ H
100,0
00

D
W

CHIL +
D
5 hrs. after
birth

315

ANSWER:
If the child had an intrauterine life of not less than
seven months, it inherited
from the father. Consequently,
the estate of 100,000 shall be
divided equally between the
child and his mother as legal
heirs. Upon the death of the
child, its share of 50,000 goes
by operation of law to the

316

100,0
00
50,000
operati
on of

D
W

CHIL
D

50,000
operati
on of
law
317

Under Article 891 of the Civil


Code, the reserva is in favor of
relatives
belonging
to
the
paternal line and who are within
three degrees from the child.
The parents of H (A and B) are
entitled to the reserved portion
which is 50,000 as they are two
degrees related from the child.
The 50,000 inherited by W from
H will go to her parents, C and
D, as her legal heirs.
318

However, if the child had an


intra-uterine life of less than
seven months, half of the
estate of H, or 50,000, will be
inherited by W, the widow,
while the other half, or
50,000, will be inherited by
the parents of H. Upon the
death of W, her estate of
50,000 will be inherited by
her own parents, C and D.
319

PROBLEM:

Before his death in 1990, A


donated to his grandson, F, a
child of his predeceased son
D, a house and lot worth
600,000.
In 1995, F died with a will
instituting his mother, E, as
his sole heir. His estate
consisted entirely of the house
and lot which he had received

320

The house and lot is now claimed by:


(a)

(b)

B, widow of A and grandmother of


F
C, son of A and B and uncle of F

G, sister and only living relative of


E

(c)

To whom shall the property be


adjudicated?
321

DONATION

E
F

G
WILL 322

ANSWER:
Half to C; other half to G.
F, the propositus, died with a will
instituting his mother, E, as sole
heir.
Consequently, only one-half of the
property
passed
to
her
by
operation of law since that is her
legitime. Only this portion of the
property has become reservable.
323

B is not entitled to the reservable


portion of the property.
Although a relative of the propositus in
the second degree, B is merely related
by affinity to the ascendant (A) from
whom the property came. She does
not,
therefore, belong to the line
from which the property came.
A reservatario must not only be related
by consanguinity to the propositus
within the third degree, but he must
also be related by consanguinity to the
ascendant from whom the property
came.
324

C
is entitled to the reservable
portion of the property since he is
not only a third degree relative by
consanguinity of the propositus,
but he also belongs to the line
from which the property came.
G, on the other hand, is entitled to
the part of the property which is
not reservable in accordance with
the ordinary rules of intestate
succession.
325

PROBLEM:
D, only daughter of B, married
E, only son of A, in 1981.
A son, X, was born to the
couple in 1982. E died in a
vehicular accident in 1984.
In 1986, D married F, only son
of C. A son, Y, was born to the
couple in 1988. D also died in
a vehicular accident in 1992.

326

In 1995, X, who was very sickly,


donated to his half-brother, Y, a
parcel of land. X died
the
following year.
In 1998 Y also died. He died
intestate
and
without
any
surviving issue. The land which he
had acquired from X was inherited
by his father, F, who was his only
legal heir.
F died intestate in 2002, survived
only by his father, C.
327

The land which had originated


from X is now being claimed by
A and B on the ground that it is
reservable. C claims that the
property belongs to him and
him alone as his inheritance
from his son, F.
Who among the grandfathers is
entitled to the property?
328

C
+

D
+

DONATION

INTESTATE
329

ANSWER:
B alone is entitled to the
property.
The property is reservable.
FIRST, the property had been
acquired by operation of law by
an ascendant (F) from his
descendant (Y) upon the death of
the latter.
SECOND, the property had been
previously acquired by gratuitous
title by the descendant (Y) from a

330

THIRD, descendant (Y) died without any


legitimate issue who can inherit from him.
In order to determine who can qualify as a
reservatario, two tests should be applied:
First, is the claimant a relative of the
descendant-propositus within the third
degree?
Second, does he belong to the line from
which the reservable property came?
Applying the tests, it is clear that:
A cannot qualify because he is not even a
relative of the descendant-propositus, Y.
331

C
+

D
+

DONATION

INTESTATE
332

Neither can C qualify


because he does not
belong to the line from
which
the
property
came.
He
is
not
related
by
consanguinity to X.

333

C
+

D
+

DONATION

INTESTATE
334

Only B can qualify. He is not


only a relative of Y within the
third degree; he also belongs
to the line from which the
reservable property came.

335

C
+

D
+

DONATION

INTESTATE
336

THIRD DEGREE
RELATIVES OF
PROPOSITUS
Parents of the propositus (1st
degree)
Grandparents, full and halfbrothers, full and half-sisters of
the propositus (2nd degree)
Uncles and aunts by blood;
great grandparents; nephews
and nieces of the propositus (3rd
337
degree)

QUESTION
Suppose there are several
persons who can qualify as
reservatarios, to whom shall
the reservable property be
adjudicated?

338

ANSWER
The
rules
of
intestate
succession shall apply.
Art. 891 of the Civil Code merely
determines
the
group
of
relatives
to
whom
the
reservable property should be
returned.
It is silent with regard to the
individual right of such relatives
to the property.

339

If some claimants are in the


direct ascending line and
others are in the collateral
line,
the
principle
of
preference between lines shall
apply.
Relatives of the propositus in
the direct ascending line shall
exclude his relatives in the
collateral line.
If

the

claimants

are

340

If all the claimants belong to


the same line, the principle
of proximity shall apply.

In other words, relatives of


the propositus nearest in
degree shall exclude the
more remote ones.

Thus, between brothers or


sisters and uncles or aunts
brothers and sisters are

341

If some of the claimants are


brothers and sisters of the
propositus and others are
nephews and nieces, the
principle of representation
shall apply.

342

. If
all
the
claimants
are
brothers and sisters of the
propositus and some of them
are of the full-blood and
others are of the half-blood,
the principle of double share
for full blood collaterals shall
apply.
343

PROBLEM:
Among the properties in the estate of D,
who died intestate and without issue, were
a farm, which came from his father, B, and
a house, which he acquired from A, Bs
father. In the partition of Ds inheritance,
the house was allotted to B and the farm to
C, Ds mother. Upon the death of B and C,
who were simultaneously killed in a car
accident, the farm was claimed by A and E,
a child of B and C born after Ds death,
while the house was claimed also by A and
E and F, the latter being Cs child by a prior
marriage.
Who owns the farm and house?
344

A
E
HOUS
E

+
B
FARM

HOUS
E

+
D
A
E

+
C
F

FARM
345

ANSWER:
HOUSE: This property was acquired by D
from
his
grandfather,
A,
and
was
transmitted by D to B, his father. There is no
reserva troncal because there is no change
of line. Hence, E alone is entitled to inherit
the house.
FARM: The farm originally came from B, the
father of D. and from D it went to his
mother, C. There is a change of line line
from paternal to maternal line. The farm is
reservable property and must be acquired
by relatives within the third degree of the
propositus (D) and belonging to the
346
paternal line.

WHO IS ENTITLED TO THE


FARM?
There are two theories:
In the delayed intestacy doctrine,
the preferences in the rules of
intestate
succession
must
be
observed.
Under this theory, A alone will inherit
the farm because in intestacy, the
direct line excludes the collateral
line. Hence, A, the grandfather of P,
should exclude E, the brother of D.
347

The second theory is to the effect


that relatives in the same degree
inherit in equal shares without
distinction as to the direct or
collateral line. Under this theory,
which allows no distinction as to
direct or collateral line, A and E will
inherit the farm in equal shares since
they
are
both
second
degree
relatives of D, both belonging to the
paternal line.
In any case, F does not inherit since
he is not a reservatario.
348

INTESTATE SUCCESSION

349

QUESTION
What is intestate succession?

350

ANSWER:
INTESTATE
SUCCESSION
succession prescribed by
which takes place when
expressed
will
of
decedent has not been
down in a will.

is
law
the
the
set

351

BASIC PRINCIPLES OF
INTESTATE
SUCCESSION

352

CONCURRENCE
Even if there is an order of
intestate
succession,
compulsory heirs are never
excluded from the inheritance.
All
compulsory
heirs
are
intestate heirs, but not all
intestate heirs are compulsory
heirs.

PROXIMITY
Relatives
of
the
decedent
nearest in degree exclude the
more remote ones, without
prejudice
to
the
right
of
representation when proper.
By virtue of representation the
farther becomes just as near.

PROBLEM:
P, deceased, is survived by
A, a legitimate half-sister
on his fathers side, and an
aunt, B, his mothers sister.
He left as his only property
that which was inherited
from his mother. He died
intestate.
Who shall succeed to Ps

355

ANSWER:
A shall succeed to Ps estate. Both A
and B are collateral relatives of the
decedent, P, therefore, the rule of
proximity
is
applicable.
Relatives
nearest in degree exclude the more
remote ones. A is a second degree
relative of P, while C is a third degree
relative.
Besides, under the general order of
intestate
succession,
brothers
and
sisters, whether of the full or half-blood,
are always preferred to uncles or aunts.
356

PREFERENCE OF LINES
Relatives
in
the
direct
descending line exclude those
who
are
in
the
direct
ascending and collateral lines.
Relatives
in
the
direct
ascending line exclude those
who are in the collateral line.

There
is
no
right
of
representation in the ascending
line, but there is right of
representation in the descending
line (Art. 972, par. 1, CC).
In the collateral
line,
RIGHT
OFthe right of
representation
is given only to
REPRESENTATION
children of brothers and sisters.
(Art. 972, par. 2, CC)

MEANING OF
REPRESENTATION
Right by fiction of law.
The representative is raised to the
place and the degree of the
person represented.
Acquires the rights which the
person represented would have if
he were living or if he could have
inherited. (Art. 970, CC)
359

PROPRIETY OF
REPRESENTATION
PREDECEASE
intestate).

(testate

and

INCAPACITY

(testate

and

intestate).

DISINHERITANCE
only).

(testate
360

SCOPE OF REPRESENTATION
In intestate succession, the right of
representation covers all that the
person being represented would
have inherited.
In testamentary succession, the
right of representation covers only
the legitime. (Arts. 865-1035, CC)
There is no right to represent a
voluntary heir.
361

PROBLEM:
T has three legitimate children:
A, B and C. The eldest, A, has a
legitimate child, D. In Ts will,
he gave each child 30,000; but
A predeceased T. Divide Ts
estate of 90,000.
362

+A

90,000

D
363

ANSWER
D gets 15,000
legitime.

which

is

As

B and C will each get 37,5000. D is


not allowed to get the extra
15,000 because in this respect, his
father, A, was a voluntary heir.
HAD T DIED INTESTATE, D gets
30,000 corresponding to the share
of A which represents all that A
would have inherited if he was not
364
incapacitated.

GRANDCHILDREN

GRANCHILDREN ALWAYS inherit by


right of representation.
This is true whether they concur
with children of the decedent or not.
EXCEPTIONS:
Art. 43 and Art. 992, Civil Code
365

GRANCHILDREN INHERIT
IN THEIR OWN RIGHT
Whenever all the children of
the
decedent repudiate the
inheritance,
the
grandchildren inherit in their
own
right,
for
here
representation is not proper.
(Art. 977, CC)

90,00
0

INCAPACITATE
D

PREDECEASED

RENOUNCED

45,000

22,50

22,50

367

NOTE:
Whenever there is succession by
representation, the division of
the estate shall be made per
stirpes.
REASON: The representative or
representatives shall not inherit
more than what the person they
represent would inherit, if he
were living our could inherit. (Art.
974, Civil Code)

368

QUESTION
What are the two ways of
inheriting?

369

ANSWER

per stirpes (as a


group)

per
capita
(per
person)
by representation
ones own right.

370

TESTATE

90,000

Institut
ed
15,000
+
22,500

Institut
ed
15,000
+
22,500

15,000

371

INTESTAT
E

+ A

B
20,00
0

60,00
0

C
20,00
0

D
20,00
0

372

TESTATE

90,000

Institut
ed
22,500
+
22,500

Institut
ed
22,500
+
22,500

373

INTESTAT
E

90,000

C
45,000

45,000

D
0

374

TESTATE

100,00
0

Institut
ed
25,000
+18,7
50

Institut
ed
25,000
+
18,750

12,500

375

INTESTAT
E

100,00
0

40,000

40,000

D
20,000

376

SUCCESSIONAL RIGHTS
OF NEPHEWS AND
NIECES
Nephews and nieces inherit
either
by
right
of
representation or in their
own right. (Art. 975, CC)

Nephews and nieces inherit


by right of representation
when they concur with aunts
and uncles provided that
representation is proper, and
that their own parents should
not have repudiated.
They inherit in their own
right whenever they do not
concur
with
aunts
and
uncles.

378

QUESTION
B and C are As brothers; X,
the legitimate child of B; Y
and Z, the legitimate children
of C. Estate is 90,000. A is the
decedent, If C predeceases A,
divide the estate.

379

C+

90,000

45,000 22,500 22,500


380

+
B

+
C

90,000

30,000 30,000 30,000


381

+
B

+
C

90,000

X
0

45,000 45,000
382

THE IRON CURTAIN RULE


lllegitimate
children
of
legitimates
cannot
represent because of the
barrier.
But illegitimates and
legitimates of illegitimates
can represent. (Arts. 902 and

A
+B
D

C+
E
Art.

G
Art.
384
902

PROBLEM:
P. the illegitimate son of F and
M, died intestate, without any
descendant or ascendant. His
valuable estate is being claimed
by A, the legitimate son of F
from a previous marriage, and B,
the legitimate son of M from a
previous marriage.
Who is entitled to inherit from P?
385

+
P

B
386

ANSWER:
Neither A nor B is entitled to
inherit ab intestato from P.
Both are legitimate relatives of
Ps parents and therefore they
fall
under
the
prohibition
prescribed by Article 992 of the
Civil Code. (Manuel v. Ferrer, 242 SCRA
477)

387

PROBLEM:
P, an illegitimate person, died
intestate survived by B, the
legitimate
brother
of
his
deceased mother A, and D, his
mothers
legitimate
granddaughter
who
is
a
legitimate child of C who
predeceased A.
May B or C or both inherit

388

A
P

B
C
D
389

ANSWER:
B cannot succeed because
uncles have no right to
inherit
from
their
illegitimate
nephews.
D
cannot
succeed
either
because legitimate relatives
have no right to inherit
from an illegitimate child
and vice-versa.
390

EFFECT OF
REPUDIATION
A renouncer can represent,
but cannot be represented.
(Arts. 976 and 977, CC)

PROBLEM
A has two children, B and C. B
has two children D and E. D has
a child F.
B
died
in
1993
but
D
repudiated his share. Later A
died in 1995.
Is D entitled to represent B in
the inheritance of A?

392

A + 1995
1993 +
repudiated

C
E

F
393

INHERITANCE IN
EQUAL SHARES
EXCEPTIONS:
1.

Division in the ascending


line. (Art. 987, par. 2, CC)

2.

Division between relatives


of the full-blood and halfblood. (Art. 1006, CC)

3.

In cases of representation.

PROBLEM
A, B and C are the children
of P; while D and E are the
children of A; F is the child
of B; G is the child of C.

395

P
A
D

120,00
0

G
396

ANSWER
If A, B and C repudiated the
inheritance, the estate will be
divided
among
the
4
grandchildren, and each will
get 30,000 in his own right.
In repudiation, there is no
right of representation. (Art.
977, CC)
397

P
A
D

B
F

120,00
0

C
repudiat
es

G
398

If only C repudiates, A and B will


each get 60,000.
D and E are excluded, because
the nearer excludes the farther.
(Art. 962, CC)

G is also excluded because


there
is
no
right
of
representation
in
case
of
repudiation.
F is excluded by B.

(Art. 977, CC)


399

If A, B and C all predeceased P,


the
4
grandchildren
will
inherit
by
right
of
representation, not in their
own right. Hence, D and E will
each get 20,000; F, 40,000;
and G gets 40,000.

400

A
E

120,00
0

C
G
401

ORDER OF INTESTATE
SUCCESSION

402

ESTATE OF A LEGITIMATE CHILD


1. Legitimate children and their
legitimate descendants. (Art. 979,
CC)

2. Legitimate parents and other


legitimate ascendants. (Art. 985,
CC)

3. Illegitimate children and their


descendants, whether legitimate
or illegitimate. (Arts. 988, 990, 902)

4. Surviving
spouse,
without
prejudice to the rights of
brothers, sisters, nephews,
and nieces, should there by
any. (Art. 995, CC)
5. Collateral relatives up to the
fifth degree of consanguinity.
(Art. 1010, CC)

6. State.

(Art. 1011)
404

ESTATE OF AN ILLEGITIMATE
CHILD
1.Legitimate children and their
legitimate descendants.
(Art.
979, CC)

2.Illegitimate children and other


descendants,
whether
legitimate or illegitimate. (Arts.
988, 989, 990)

3. Illegitimate parents.

(Art. 993, CC)


405

4.Surviving spouse (Art. 994, CC),


without prejudice to the rights
of illegitimate brothers and
sisters and nephews and
nieces who are children of
illegitimate
brothers
and
sisters (by inference from Art. 992)
5.State

406

COMBINATIONS OF
SURVIVAL AND
CONCURRENCE
OF INTESTATE HEIRS

407

1.

LEGITIMATE CHILDREN ALONE


Entire estate to be divided in
equal
shares
as
there
are
legitimate children. (Art. 980, CC)

2.

LEGITIMATE PARENTS ALONE


Entire estate to be divided
equally between the parents. (Art.
985, CC)

3.

SURVIVING SPOUSE ALONE


Entire estate.

(Art. 995, CC)


408

4.

ILLEGITIMATE CHILDREN ALONE


Entire estate. (Art. 988, CC)

5.

BSNN ALONE
Entire estate. (Art. 1003, CC)

6.

ILLEGITIMATE PARENTS ALONE


Entire estate. (Art. 903, CC)
NOTE: Illegitimate parents inherit
intestate
only
in
default
of
legitimate
or
illegitimate
409
descendants of the decedent.

7.

5TH DEGREE RELATIVES


Entire estate. (Art. 1010, CC)

8.

STATE
Entire estate.

(Art. 1011, CC)

410

9.

ONE LEGITIMATE CHILD


SURVIVING SPOUSE
Legitimate
estate.

child,

of

the

Surviving spouse, of
estate. (Arts. 888 and 996, CC)

the

411

10. TWO OR MORE LEGITIMATE


CHILDREN
SURVIVING SPOUSE
Consider the surviving spouse
as a legitimate child and then
divide the estate by the total
number. (Art. 996, CC)
412

11.

LEGITIMATE CHILDREN
ILLEGITIMATE CHILDREN
Estate to be divided in
proportion of two shares for
each legitimate child and one
share for each illegitimate
child.
The
legitimes
of
the
legitimate children shall not
be impaired. (Arts. 983 and 985,
CC)

413

12.

ONE LEGITIMATE CHILD


ILLEGITIMATE CHILDREN
SURVIVING SPOUSE
Legitimate child, of the estate.

(Art. 888, CC)

Surviving
estate.

spouse,

of

the

Illegitimate children, of the


estate. (applying by analogy Arts. 892,
par. 1 and 895,CC)
414

TWO OR MORE LEGITIMATE CHILDREN


ILLEGITIMATE CHILDREN
SURVIVING SPOUSE

13.

Divide the estate according to the ratio


of:
Two shares for each legitimate child.
Two shares for the surviving spouse.
One share each for
child. (Art. 999, CC)

each

illegitimate
415

14.

LEGITIMATE
PARENTS
ILLEGITIMATE CHILDREN
Legitimate
estate.

parents,

of

the

Illegitimate children, of the


estate.
(Art. 991, CC)
416

15. LEGITIMATE PARENTS


SURVIVING SPOUSE
Legitimate parents, of the
estate.
Surviving spouse, of the
estate.
(Art. 997, CC)
417

LEGITIMATE PARENTS
ILLEGITIMATE CHILDREN
SURVIVING SPOUSE

16.

Legitimate parents, of the


estate.
Illegitimate children, of the
estate.
Surviving spouse, of the
estate. (Arts. 896 and 1000, CC)

418

17.

ILLEGITIMATE CHILDREN
SURVIVING SPOUSE
Illegitimate children, of the
estate.
Surviving spouse,
estate. (Art. 998, CC)

of the

419

18.

ILLEGITIMATE PARENTS
CHILDREN OF ANY CLASS
Illegitimate parents, none

(Art.

993, CC).

Legitimate
or
children of the
entire estate.

illegitimate
decedent ,

420

19.

ILLEGITIMATE PARENTS
SURVIVING SPOUSE
Illegitimate parents, of the
estate.
Surviving spouse, of the
estate.
421

20.

SURVIVING SPOUSE
BSNN
Surviving
estate.

spouse,

BSNN, of the estate.

of

the

(Art. 1001,

CC)
422

PROBLEM:
P died without a will. He is
survived by his widow, W, and
by one legitimate son, A. The
estate is 60,000. How shall
the distribution be made?

423

60,00
0

+X

Y
30,00
0

A
30,00
0
424

PROBLEM:
P died without a will. He
is survived by his widow,
W, one legitimate son, A,
and
two
illegitimate
children, B and C. The
estate
is 72,000. How
shall the distribution be
made?
425

72,00
0

+P

W
18,00
0

36,00 9,000 9,000


0

426

ANSWER:
A is entitled to of 72,000,
or 36,000.
W is entitled to of 72,000,
or 18,000.
B and C are entitled to of
72,000, or 18,000, which
shall
be
divided
equally

427

PROBLEM:
P died without a will. He is survived
by:
(1) A and B, his legitimate children.
(2) W, his widow; and
(3)

C, D, E, his illegitimate children.

The net value of his estate is


60,000. How shall the distribution
be made?
428

60,00
0

+P

W
15,000

15,00
0

15,00
0

C D
5,00
0

5,00
0

E
5,00
0
429

PROBLEM:
P died without a will. He is survived
by:
(1) A and B, his legitimate children.
(2) W, his widow; and
(3) C, his illegitimate child.
The net value of his estate is 140,000.
How shall the distribution be made?
430

140,00
0

+P
A

W
C
431

ANSWER:
EXCLUSION THEORY
1. Satisfy the legitimes of the
heirs.
2. The balance must be given to
the legitimate children because
they are first in the order of
intestate succession
432

LEGITIMES:
A
B
W
C

35,000
35,000
35,000
17,500

BALANCE

17,500

It is with respect to the balance


that there is a conflict of opinion.
433

Under the exclusion theory, the


balance of 17,500 is to be
divided equally between A and B,
or 8,750 each.
A
B
W
C

43,750
43,750
35,000
17,500

TOTAL

140,000
434

CONCURRENCE THEORY
1. Satisfy the legitimes of the
heirs.
2.

The balance must be


divided among the heirs in
the proportion of 2:2:2:1.
435

LEGITIMES:
A
B
W
C

35,000
35,000
35,000
17,500

BALANCE

17,500

Under the concurrence theory, the


balance of 17,500 is to be divided
equally among the heirs in the
proportion of 2:2:2:1. Thus,

436

A, B and W are entitled to 2/7 each of


17,500, or 5,000 each.

C is entitled to 1/7 of 17,500, or


2,500.
A
B
W
C

40,000
40,000
40,000
20,000

TOTAL

140,000
437

EXCLUSION OR CONCURRENCE?
Art. 983, CC: Legitimate and illegitimate
inherit in the proportion of 2:1.
Art. 999, CC: Surviving spouse has the
same successional right as a legitimate
child.
Under the exclusion theory, the above
proportions are discarded; the spouse
would receive a share less than that of a
legitimate child.
CONCLUSION: Concurrence theory.

438

PROBLEM:
In the previous problem, B (legitimate)
and C (illegitimate) predeceased P.
(1)

B is survived by two children, D and E.


D is a legitimate child, while E is an
illegitimate child.

(2)

C, on the other hand, is also survived by


two children, F and G. F is a legitimate
child, while G is an illegitimate child.
How shall the distribution be made?
439

140,000

+P
A

B
D

+
E

C
F

+
G
440

ANSWER:
D who is legitimate, can represent his
father B.
E cannot because of Art. 992 of the
Civil Code.
F and G can inherit by right of
representation. The barrier under Art.
992 does not exist.
Since F is legitimate and G is
illegitimate, the share which would
have passed to their father, C, they
shall inherit in the proportion of 2:1.

441

FINAL DISTRIBUTION:
UNDER THE EXCLUSION THEORY
A 43,750 own right
D 43,750 by representation
E none
W 35,500
F 11,666+ by representation
G 5,833+ by representation
TOTAL
140,000
442

PROBLEM:
P died without a will. He is
survived by:
(1) F and
parents.

M,

his

legitimate

(2) W, his widow; and


(3) A, B, C, and
illegitimate children.

D,

his

The net value of his estate is

443

18,00
0

18,00
0

72,000

W
18,00
0

4,500

4,500

4,500

4,500444

HAD P DIED WITH A WILL:


F and M, 1/2 of the estate: 36,000,
or 18,000 each.
W, 1/8 of the estate: 9,000.
A, B, C, and D, 1/4 of the estate:
4,500 each
Free portion of 9,000.
445

PROBLEM:
P died intestate survived by: (a) M, his
mother; (b) W, his widow; (c) A and B,
his legitimate children; (d) E, his
grandson, being the legitimate son of
B; (e) F, his other grandson, being the
son of C who was a legitimate son of P,
and who predeceased P; (f) G, his
grandson, being the son of D, a
legitimate son who repudiated
the
inheritance from P.
Distribute Ts net estate of 120,000.
446

ESTATE:
120,000

M
P
A

W
B
E

C
F

REPUDIATE
D

447

ANSWER:
The legal heirs are A, B, F and W.
E is excluded by B who is still alive.
F represents C who predeceased P.
G is excluded because of the repudiation
of D.
M is excluded by the legitimate children of
P.
The answer may be premised on two
theories: THEORY OF
EXCLUSION and
471
THEORY OF CONCURRENCE.

EXCLUSION
A 20,000 (own right)
B 20,000 (own right)
F 20,000 (representation)
W 20,000
FP 40,000
TOTAL
120,000
Under the Theory of Exclusion, the Free
Portion goes to the legitimate children, A
and B, and grandson F, at 13,333.33 each;
they are entitled to the free portion to
the exclusion of the other heirs because
they are first in the order of succession. 449

CONCURRENCE
In addition to their legitimes, the
heirs A, B, F and W will be given
equal shares in the free portion of
40,000.
A
B
F
W

20,000 plus 10,000


20,000 plus 10,000
20,000 plus 10,000
20,000 plus 10,000
450

PROBLEM:
P died without a will. He is survived by:
(1) W, his widow.
(2) A and B, his legitimate brothers.
(3) D and E, children of his deceased
brother C.
The net value of his estate is 240,000. How
shall the distribution be made?
451

ESTATE:
240,000
120,00
0

40,00
0

40,00
0

20,00
0

20,00
0452

PROBLEM:
P died without a will. He is survived
by:
(1) W, his widow.
(2) X and Y, children of a deceased
legitimate brother, A.
(3) Z, child of a deceased legitimate
sister, B.
The net value of his estate is 240,000.
How shall the distribution be made?
453

ESTATE:
240,000

120,00
0

40,00040,000 40,000
454

PROBLEM:

With her first husband A, B begot two


children, D and E. When A died, B
married C with whom she begot four
legitimate children, F, G, H and I. B and
C are now both dead. D died intestate,
survived by:
(1)

E, a brother of the full-blood.

(2) F, G, H and I, brothers of the halfblood.


The net value of his estate is 120,000.
455
How shall the distribution be made?

ESTATE:
120,000

+ A

+D

E
40,00
0

+
B

20,000 20,000 20,000 20,000


456

PROBLEM:
Suppose that in the previous
problem, ALL the five brothers
of D predeceased him, and the
only survivors are the nephews,
J, being the legitimate son of E,
and K and L, being the
legitimate children of H, how
shall the estate be divided?
457

ESTATE:
120,000

+
B

+
+
+
+
+
E
F
G
H
I
J
60,00

30,00 30,00

458

ANSWER:
The rule of double share for fullblood collateral still applies.
If there are nephews ad nieces
surviving
the
decedent,
relationship by the whole or halfblood becomes material in the
distribution of the estate.
NOTE: The nephews and nieces
inherit in their own right here
because they do not concur with
459
an uncle or aunt.

PROBLEM:
B contracted two marriages:
the first was with A, with
whom
she
begot
two
legitimate children, D and E;
and the second was with C,
with whom she begot four
legitimate children, F, G, H and
I.
D died intestate survived by:

460

(1) E, a brother of the full-blood


(2) F and G, brothers of the half-blood.
(3) J, a son of H, a deceased half-brother.
(4) L, a grandson of I, and a child of K.
The net value of his estate is 120,000.
How shall the distribution be made?
461

+D

B
E

C
F

+
+
H
I
J

ESTATE:

+
K
L
462

ANSWER:
E
F
G
J
L

48,000
24,000
24,000
24,000
0

own right
own right
own right
representing H

TOTAL 120,000
NOTE: L is not entitled to inherit anything
because in the collateral line, inheritance
extends only to nephews and nieces.
463

PROBLEM:
X, an illegitimate person, died without
a will. He is survived by:
(1) F, his father.
(2) W, his widow.
(3) A, his brother.
(4) B and C, his brothers from his
fathers lawful marriage.
If the net value of Xs estate is
120,000. How
shall the distribution

464

ANSWER:
Only F and W are entitled to
inherit, at 60,000 each.
Illegitimate
parents
do
not
exclude the surviving spouse.
A, B, and C, brothers of X, are not
entitled to inherit because they
are excluded by F pursuant to the
principle of preference of line.
465

ACCRETION

466

ACCRETION
Same inheritance, devise or legacy.
Heir, devisee or legatee vacates
share.
(repudiation,
incapacity,
predecease)
Vacated
share
Is
added
incorporated
to
co-heirs,
devises, co-legatees.

or
co467

QUESTION:
When is accretion proper?

468

TESTATE SUCCESSION
1.
2.
3.

predecease
incapacity
repudiation

INTESTATE SUCCESSION
4. repudiation
5. incapacity

469

IMPORTANT
No
accretion
among
compulsory heirs
insofar as
the legitime is concerned.
Accretion, if it takes place,
concerns only the free portion.
(Art, 1021, CC)
470

PROBLEM:
T instituted his legitimate
children, A and B, and a
friend, F, as heirs. Estate is
60,000.
Divide the estate.

471

T
A

60,000

F
472

ANSWER:
The institution of A, B and F
concerns only the free disposal of
30,000. A and B are first given their
respective legitimes (15,000 each).
The free disposal is then divided
equally among the three instituted
heirs:A 15,000 (CH)
10,000 (VH)
B 15,000 (CH)
10,000 (VH)
F 10,000 (VH)
473

QUESTION
Suppose A predeceases T, how
will
his
share
be
divided
between his co-heirs, B and F?

474

ANSWER:
As share in the legitime goes to B in
his own right (since this is the
legitime).
As share in the free portion (10,000)
will go equally to B and F by
accretion since this is the proportion
in which
they were were instituted
to the free portion.
475

If F predeceases T, his share in


the free portion will go to A and
B by accretion.
It is so because they were
instituted as voluntary heirs.

476

QUESTION:
Suppose T gave one-half of his
estate to F, and gave A and B
their respective legitimes of
each, to whom should Fs share
go if he predeceases T?

477

ANSWER
To A and B, not by accretion
for they were not given any
part of the free portion.
Intestacy then results, and A
and B will get Fs share as
intestate heirs.

478

PROBLEM
X died intestate. He is survived
by: (1) A, B, D and E, his
legitimate children; (2) F and G,
legitimate
children
of
C
(predeceased), a legitimate son of
X; (3) H and I, legitimate children
of D; and (4) J and K, legitimate
children of E.
D
is
incapacitated;
while
repudiated the inheritance.

The net value of the estate is

479

ESTATE
:
120,00
0

X
C + D
G

INCAPACITATE
D

REPUDIATED

K
480

ANSWER
There are three vacant shares.
The share which C would have
inherited if he had not predeceased X.
The share which D would have
inherited if he had the capacity to
inherit from X.
The share which E would have
inherited if he had not repudiated it.
481

DISTRIBUTION
SHARES

OF

VACANT

The share of C in the estate goes to his


legitimate children, F and G, by
representation.
The share of D in the estate goes to his
legitimate children, H and I,
by
representation.
The share of E in the estate goes to his
co-heirs, A and B, by accretion. An heir
who repudiates cannot be represented.
482

FINAL DISTRIBUTION
A 24,000 own right
12,000 accretion
B 24,000 own right
12,000 accretion
F 12,000 own right
G 12,000 own right
H 12,000 own right
I 12,000 own right
483

PROBLEM:
Testator instituted A, B and C as
universal heirs to his estate
valued at 65,000.
Testator in his will gave A several
properties
worth
15,000;
B,
20,000; and C, 30,000.
C predeceases the testator. How
shall the distribution be made?
484

ANSWER:
B and C will each get their inheritance.
As share of 15,000 goes to B and C by
right of accretion in the proportion of
2:1. (Art. 1019, CC)
HEIR DEVISE ACCRETION TOTAL
B 20,000
C

30,000

6,000 26,000
9,000 39,000
485

PROBLEM:
P has three legitimate brothers, X, Y and Z.
(1)

X predeceases P, but he is survived by his


legitimate child, A.

(2)

Y is incapacitated, but he has two


legitimate children, B and C.

(3)

Z repudiates the inheritance.

How shall Ps estate of 120,000 be


distributed?
486

ESTATE:
120,000

+
X

INCAPACITATE
D

REPUDIATED

C
487

ANSWER:
The
40,000
share
of
X
who
predeceased X goes to his legitimate
child, A, by representation.
The 40,000 share of Y who is
incapacitated to inherit goes to his
legitimate children, B and C, by
representation, or 20,000 each.
The share of Z who repudiated the
inheritance goes to A, B and C by
accretion in the same proportion
they inherit, or in the proportion of 488

FINAL DISTRIBUTION
A

40,000 by representation
20,000 by accretion

20,000 by representation
10,000 by accretion

20,000 by representation
10,000 by accretion
489

PROBLEM:
Suppose Z is incapacitated?
Same distribution as in the previous
problem.
Suppose Z predeceased the decedent?
A 40,000 own right
B 40,000 own right
C 40,000 own right
490

PROBLEM:
T, an unmarried person and without
any children of any kind, instituted
his friends, A, B, C and D as his
universal heirs to his estate of
210,000.
T intended the distribution of his
estate as follows: A, of the estate;
B, 1/4; C, 1/8; and D, 1/8.
D repudiated the inheritance. How
shall the distribution be made?
491

ESTATE:
120,000

A
1/2

T
B
1/4

C
1/8

REPUDIATE
D

1/8

492

ANSWER:
There is no need to check the
legitimes
since T left no
compulsory heirs.
Assuming there is no provision in
the will regarding substitution of
heirs, accretion exists insofar as
Ds share is concerned.
493

A is to get it of the estate, or


105,000.
B is to get 1/4 of the estate, or 52,500.
C is to get 1/8 of the estate, or 26,250.
D is to get 1/8 of the estate, or 26,250.
If Ds share is rendered vacant because
of his repudiation of the inheritance,
who gets such vacated share?

494

ANSWER:
DS vacant share goes to the other
heirs by right of accretion.
The co-heirs will therefore receive the
vacant share of 26,250 in the same
proportion they inherit.
Since they inherit in the proportion of
4:2:1, the vacant share is to be
divided into 7 parts.
495

FINAL DISTRIBUTION
A
B

105,000 as an instituted heir


15,000 by accretion
52,500 as an instituted heir
7,500 by accretion
26,250 as an instituted heir
3,750 by accretion
496

CAPACITY TO INHERIT

497

QUESTION:
In point of time, what law governs
the capacity of the heir to inherit?

ANSWER:
Art. 1034 CC: The qualification of
the heir to inherit is reckoned at
the time of death of the decedent.
498

PROBLEM:
During his last illness, testator T
confessed to a priest, A, who was
his only son. In his will which he
made shortly after his confession, T
gave his son-priest, A, 60,000 out of
an estate worth 100,000. T gave the
remainder of his estate to his
friend, B.
How shall Ts estate be distributed?
499

ESTATE:
100,000

T
A

B
500

ANSWER:
The son-priest inherits only 50,000 as
his legitime.
The additional 10,000 which is part of
the free portion is nullified by the
disqualification
of
the
son-priest
because he heard the confession of T
during his last illness. (Art. 1027, par. (1), CC)
The excess 10,000 shall accrue in favor
of the instituted heir, F.
501

PROBLEM:
The beneficiary in a will is
the wife of the minister of
the gospel who rendered aid
to the testator during the
latters last illness.
Would she be disqualified
from inheriting from the
testator?
502

ANSWER:
She is qualified. The law extends the
disqualification of priests and ministers
of the gospel to their relatives within
the fourth degree as well as to the
church,
order,
chapter,
community,
organization or institution to which they
may belong. The spouse is not included.
(No. 2, Art. 1027, CC)

Otherwise, we would be reading into the


law what is not found there. Besides,
capacity to succeed is the general rule,
while incapacity to succeed is the
exception.
Hence,
the
rules
on
incapacity must always be strictly
construed.

503

Thank you

NOW GO AND TOP THE BAR!

504