CIVIL LAW REVIEWER 4

2013 BAR EXAMINATIONS SUCCESSION

I. General Provisions
DEFINITION OF SUCCESSION

SUCCESION - Is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law (Art. 774) 1 ELEMENTS OF SUCCESSION 1. Death of the Decedent However, a person may be presumed dead for the purpose of opening his succession (see rules on presumptive death). In this case, succession is only of provisional character because there is always the chance that the absentee may be alive. 2. Successors (subjective element) a. Heirs those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation on law i. voluntary ii. compulsory or forced iii. legal or intestate b. Devisees or Legatees persons to whom gifts of real or personal property are respectively given by virtue of a will. The distinctions between heirs and devisees/legatees are significant in these cases: 1. Preterition 2. Imperfect disinheritance 3. After-acquired properties 4. Acceptance or non-repudiation of the successional rights.

3. Inheritance (objective element) is the subject matter of Succession it includes: Property and transmissible rights and obligations Existing at the time of his death AND those which have accrued thereto since the opening of succession. RIGHTS EXTINGUISHED BY DEATH 1. Support 2. Usufruct
1 Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (n)

3. 4. 5. 6. 7.

Those arising from personal consideration Personal easements Partnership rights Agency Life Annuity Inheritance Refers to the universality or entirety of the property, rights and obligations of a person who died.

Succession Refers to the legal mode by which inheritance is transmitted to the persons entitled to it. KINDS OF SUCCESSION

1. Testamentary or testacy (by will) that which results from the designation of an heir, made in a will executed in the form prescribed by law 2. Legal or Intestate that which takes place by operation of law in the absence of a valid will 3. Mixed that which is effected partly by will and partly by operation of law 4. Partition inter vivos (to a certain degree). KINDS OF HEIRS 1. Compulsory those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance 2. Voluntary or Testamentary those who are instituted by the testator in his will, to succeed to the portion of the inheritance of which the testator can freely dispose 3. Legal or Intestate those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will

II. Testamentary Succession

A. CONCEPT DEFINITION OF WILL (Art. 783 2, CC) - It is 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 Characteristics of a will: 1. Unilateral

2 Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. (667a)

2. Strictly personal act - The disposition of property is solely dependent upon the testator. The following acts may not be left to the discretion of a third person: a. duration or efficacy of the designation of heirs, devisees or legatees; b. determination of the portions which they are to take, when referred to by name; and c. determination of whether or not the testamentary disposition is to be operative. However, the following acts may be entrusted to a third person: a. distribution of specific property or sums of money that he may leave in general to specified classes or causes; and b. designation of the persons, institutions or establishments to which such property or sums are to be given or applied.

3. Free and voluntary act Any vice affecting the testamentary freedom can cause the disallowance of the will. 4. Formal and solemn act The formalities are essential for the validity of the will. 5. Act mortis causa 6. Ambulatory and revocable during the testators lifetime 7. Individual act Two or more persons cannot make a single joint will, either for their reciprocal benefit or for another person. However, separate or individually executed wills, although containing reciprocal provisions (mutual wills), are not prohibited, subject to the rule on disposicion captatoria. 8. Disposition of property B. INTERPRETATION OF WILLS The testators intent (animus testandi), as well as giving effect to such intent, is primordial. It is sometimes said that the supreme law in succession is the intent of the testator. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. Follow the rules prescribed under Arts. 788 to 792.

C. TESTAMENTARY CAPACITY The capacity must be present at the time of the execution of the will. REQUISITE 1. All persons who are not expressly prohibited by law (Art. 796, CC) 2. Eighteen (18) years old and above (Art. 797, CC) 3. Of sound mind at the time of the execution of the will (Art. 798, CC) Supervening capacity or incapacity does not affect the will. Of sound mind, i.e., the ability to know: a. the nature of the estate to be disposed of; b. the proper objects of his bounty; and c. the character of the testamentary act. The law presumes that the testator is of sound mind, unless: a. he, one month or less, before making his will, was publicly known to be insane; and b. was under guardianship at the time of making his will.
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D. FORMALITIES OF WILLS KINDS OF WILLS 1. Notarial an ordinary or attested will (Articles 804-808, CC) 2. Holographic a handwritten will (Art. 810, CC) COMMON REQUIREMENTS TO BOTH WILLS (Art. 804, CC) 1. In writing 2. In a language or dialect known to the testator REQUISITES FOR A VALID NOTARIAL WILL 1. In writing (Art. 804, CC) 2. In a language or dialect known to the testator (Art. 804, CC) 3. Subscribed at the end by the testator himself or by the testators name written by some other person in his presence, and by his express direction (Art. 805, CC) *Requisite of a signature: satisfied by a thumbprint Matias vs. Salud. However, a cross does not. Garcia vs. Lacuesta 4. Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another (Art. 805, CC) * Test of Presence: Not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. Jaboneta vs. Gustilo, 5 Phil. 541 5. Each and every page, except the last, must be signed by the testator or by the person requested by him to write his name, and by the instrumental witnesses of the will, on the left margin. (Art. 805, CC) * Exceptions: a. when the will consists of only one page b. when the will consists of only two pages, the first of which contains all dispositions and is signed at the bottom by the testator and the witnesses, and the second page contains only the attestation clause duly signed at the bottom by the witnesses. Abangan vs. Abangan *Note: The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Icasiano vs. Icasiano, 11 SCRA 422 6. Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page. (Art. 805, CC) example, page one of five pages 7. It must contain an attestation clause, stating the following (Art. 805, CC) a. The number of pages used upon which the will is written. b. The fact that the testator signed the will and every page, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses. c. All the instrumental witnesses witnessed and signed the will and all the pages in the presence of the testator and of one another.

8. It must be acknowledged before a notary public by the testator and the witnesses. (Art. 806, CC) * Note: The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. To allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Articles 805 and 806. Cruz vs. Villasor, 54 SCRA 31 ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BE DEAF OR A DEAF-MUTE (Art. 807, CC) 1. Testator must personally read the will, if able to do so. 2. Otherwise, testator shall designate two persons to read the will and communicate its contents to him in some practicable manner. ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BE BLIND (Art. 808, CC) The will shall be read to the testator twice 1. Once by one of the subscribing witnesses 2. Once by the notary public before whom the will is acknowledged REQUISITES FOR A HOLOGRAPHIC WILL 1. In writing (Art. 804, CC) 2. In a language or dialect known to the testator (Art. 804, CC) 3. Entirely written, dated, and signed by the hand of the testator himself (Art. 810, CC) AMENDING A WILL 1. Notarial only through a codicil 2. Holographic a. Dispositions may be added below the signature, provided that said dispositions are also dated and signed, and everything is written by the hand of the testator himself b. Certain dispositions or additional matter may be suppressed or inserted provided that such is signed by the testator and written by the hand of the testator himself c. Through a codicil which may either be notarial or holographic

EFFECT OF INSERTION WRITTEN BY ANOTHER PERSON ON THE VALIDITY OF A HOLOGRAPHIC WILL WRITTEN BY THE TESTATOR When Made After the execution of the will, without the consent of the testator After the execution of the will, with the consent of the testator After the execution of the will, validated by the testator by his signature
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Effect Insertion is considered not written. The validity of the will cannot be defeated by the malice or caprice of a third person. Will is valid. Insertion is void. Insertion becomes part of the will. Entire will becomes void because it did not comply with the

Contemporaneous to the execution of the will

requirement that it must be wholly written by the testator. Will is void because it is not written entirely by the testator.

RULES IN CASE OF SUBSEQUENT DISPOSITIONS Subsequent Disposition Signed Not dated Last disposition is signed and dated Not signed Dated Signed Not dated Effect Valid Void Void but it does not affect the validity of the other dispositions or the will itself

QUALIFICATIONS OF WITNESSES TO A NOTARIAL WILL (Arts. 820 821, CC (SABRDC)) 1. 2. 3. 4. 5. 6. Of sound mind Of the age of 18 years or more Not blind, deaf or dumb Able to read and write Domiciled in the Philippines Have not been convicted of falsification of a document, perjury or false testimony

INTERESTED WITNESS (Art. 823, CC) - A witness who attests to the execution of a will which gives a legacy or devise to that witness, or his spouse, or his parent or his child. *Effect: The devise or legacy, insofar as it concerns that witness or his spouse or his parent or his child, shall be void unless there are three other witnesses to such will. His competence as a witness shall subsist. GOVERNING LAW As to time Formal Validity Intrinsic Validity Governing Law Law in force at the time the will is made Law of decedents nationality at the time of his death (Art. 16, CC As to Place

Testator Filipino Alien

Place of Execution of the Will Philippines (Art. 16, CC) Outside of the Philippines (Art. 815, CC) Philippines (Art. 817, CC) Outside the Philippines (Art. 816, CC)

Governing Law Philippine Law 1. Law of the country in which it is executed; or 2. Philippine Law 1. Philippine Law; or 2. Law of the Country of which testator is a citizen or subject. 1. Law of the place where the will is executed; or 2. Law of the place where the testator resides; or 3. Law of the testators country; or 4. Philippine Law
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ASPECTS OF THE WILL GOVERNED BY THE NATIONAL LAW OF THE DECEDENT (Arts. 16 and 1039, CC) 1. 2. 3. 4. Order of succession Capacity to succeed Amount of successional rights Intrinsic validity of testamentary provisions

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

MUTUAL WILLS - Executed pursuant to an agreement between two or more persons - to dispose of their property in a particular manner - each in consideration of the other separate wills of two persons which are reciprocal in their provisions

RECIPROCAL WILLS - Testators name each other as beneficiaries - under similar testamentary plans Note: A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal and which shows on its face that the devises are made in consideration of the other. Such is prohibited under Art. 819, CC. Prohibition is applicable only to joint wills executed by Filipinos.

D. CODICIL AND INCORPORATION BY REFERENCE DEFINITION OF A CODICIL (Arts. 825 826, CC) It is a supplement or addition to a will made after the execution of a will and annexed to be taken as a part of the will by which any disposition made in the original will is explained, added to, or altered It is executed as in the case of a will.

REQUISITES FOR INCORPORATION BY REFERENCE (Art. 827, CC) 1. The document or paper referred to in the will must be in existence at the time of the execution of the will. 2. The will must clearly describe and identify the same, stating among other things the number of pages thereof. 3. It must be identified by clear and satisfactory proof as the document or paper referred to therein. And 4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.

E. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS MODES OF REVOKING A WILL (Art. 830,CC) 1. By implication of law
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2. By the execution of a will, codicil or other writing executed as provided in the case of wills 3. By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction *Note: It must be done any time before the death of the testator. The right of revocation cannot be waived or restricted. (Art. 828, CC) LAWS WHICH GOVERN REVOCATION (Art. 829, CC) PLACE OF REVOCATION In the Philippines Outside the Philippines TESTATORS DOMICIL Philippines or in some other country Philippines Foreign country GOVERNING LAW

Philippine Law

Philippine Law 1. Law of the place where the will was made; or 2. Law of the place in which The testator had his domicile at the time of revocation.

DOCTRINE OF DEPENDENT RELATIVE REVOCATION - A revocation subject to a condition does not revoke a will unless and until the condition occurs. Thus, where a testator revokes a will with the proven intention that he would execute another will, his failure to validly make a latter will would permit the allowance of the earlier will. - Where the act of destruction is connected with the making of another will so as to fairly raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remain in full force. Molo vs. Molo, 90 Phil. 37

F. ALLOWANCE AND DISALLOWANCE OF WILLS PROBATE - It is a special proceeding by which the validity of a will may be established. - Probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title. Pastor vs. CA 1983 - Probate of a will bars criminal prosecution of the alleged forger of the probated will. Mercado vs. Santos 1938 MATTERS TO BE PROVED IN A PROBATE 1. Whether the instrument which is offered for probate is the last will and testament of the decedent 2. Whether the will has been executed in accordance with the formalities prescribed by law 3. Whether the testator had testamentary capacity at the time of the execution of the will
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GROUNDS FOR DISALLOWANCE OF A WILL (Art. 839, CC) FIFU SM 1. If the Formalities required by law have not been complied with. 2. If the testator was Insane, or otherwise mentally incapable of making a will, at the time of its execution. 3. If it was executed through Force or under duress, or the influence of fear, or threats. 4. If it was procured by Undue and improper pressure and influence, on the part of the beneficiary or of some other person. 5. If the Signature of the testator was procured by fraud. 6. If the testator acted by Mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. *This list is exclusive.

REVOCATION VS. DISALLOWANCE REVOCATION Voluntary act of the testator With or without cause May be partial or total DISALLOWANCE Given by judicial decree Must always be for a legal cause Always total except when the ground of fraud or influence for example affects only certain portions of the will

G. INSTITUTION OF HEIRS DEFINITION OF INSTITUTION OF HEIRS (Art. 840, CC) - It is an act by virtue of which a testator designates in his will - the person/s who are to succeed him in his property and transmissible rights and obligations. REQUISITES FOR A VALID INSTITUTION OF HEIR (DACCVP) 1. 2. 3. 4. 5. 6. Designation in will of person/s to succeed Will specifically assigns to such person an inchoate share in the estate The person so named has capacity to succeed The will is formally valid No vice of consent is present No preterition results from the effect of such will

THREE PRINCIPLES IN THE INSTITUTION OF HEIRS 1. Equality heirs who are instituted without designation of shares shall inherit in equal parts. (Art. 846, CC) 2. Individuality heirs collectively instituted are deemed individually named unless a contrary intent is proven. (Art. 847, CC) 3. 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)i
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INSTITUTION BASED ON A FALSE CAUSE (Art. 850, CC) - General Rule: The statement of a false cause for the institution of an heir shall be considered as not written. - Exception: If it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. In this case, the institution shall be annulled. - Requisites of Annulment under 850: 1. cause for institution of heirs must be stated in the will 2. cause must be shown as false 3. it must appear form the face of the will that the testator would not have made such institution if he had known the falsity of the cause. Austria vs. Reyes 1970

RULES REGARDING A PERSONS RIGHT TO DISPOSE OF HIS ESTATE (Art. 842, CC) 1. If testator has no compulsory heirs a. He can give his estate to any person having capacity to succeed. b. He must respect restriction imposed by special laws. 2. If testator has compulsory heirs a. He can give the disposable portion to strangers. b. Legitimes of compulsory heirs must be respected.

CONCEPT OF PRETERITION (Art. 854, CC) 1. 2. 3. 4. There must be a total omission of one, some or all of the heir/s in the will. The omission must be that of a compulsory heir. The compulsory heir omitted must be of the direct line. The omitted compulsory heir must be living at the time of the testators death or must at least have been conceived before the testators death.

EFFECTS OF PRETERITION (Art. 854, CC) 1. The institution of the heir is annulled. 2. Devises and legacies shall remain valid as long as they are not inofficious. 3. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation. PRETERITION VS. DISINHERITANCE

PRETERITION Tacit deprivation of legitime Presumed to be involuntary as it is an omission to mention an heir or though mentioned, is not instituted as an heir. But it may also be voluntary. Presumed by law to be a mere oversight or mistake The omitted compulsory heir gets his legitime plus his share in the free portion not disposed of
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DISINHERITANCE Express deprivation of legitime Always voluntary

Legal cause is present Even a compulsory heir may be totally excluded. If disinheritance is not

by way of legacies and devises.

lawfully made, the compulsory heir is restored to his legitime.

EFFECTS OF PREDECEASE, INCAPACITY, REPUDIATION HEIR Voluntary PREDECEASE No right transmitted to the heirs of the voluntary heir. Right to the legitime and not to the free portion transmitted to the representatives of the compulsory heir. INCAPACITY No right transmitted to the heirs of the voluntary heir. Compulsory heir may be represented but only with respect to his legitime. REPUDIATION Voluntary heir who repudiated cannot transmit any right to his own heirs. Compulsory heir who repudiated cannot transmit any right to his own heirs.

Compulsory

KINDS OF INSTITUTIONS 1. Simple or Pure the rights to the succession are transmitted from the moment of the death of the decedent. (Art. 777, CC) 2. Conditional may be potestative, causal or mixed. (See Arts. 871 884) * Disposicion Captatoria disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person. This is void. (Art. 875, CC)

3. With a Term designation of the day or time when the effects of the institution of an heir shall commence or cease. (Art. 885, CC) 4. Modal institution where the testator states the following: (Art. 882, CC) a. the object of the institution; or b. the purpose of the application of the property left by the testator; or c. the charge imposed by the creator upon the heir. * Doctrine of Constructive Compliance When without the fault of the heir, the modal institution cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. (Art. 883, CC) H. SUBSTITUTION OF HEIRS DEFINITION OF SUBSITUTION (Art. 857, CC) - It is the appointment of another heir - so that he may enter into the inheritance in default of the heir originally instituted. CLASSES OF SUBSITITUTION 1. Vulgar or Simple the testator may designate one or more person/s to substitute the heir/s instituted in case such heir/s should: (Art. 859, CC) a. die before him (predecease) b. should not wish to accept the inheritance (renounce) c. should be incapacitated to accept the inheritance (incapacitated)
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2. Brief or Compendious (Art. 860, CC) a. Brief - two or more persons designated by the testator to substitute for only one heir. b. Compendious One person is designated to take the place of two or more heirs. 3. Reciprocal If the heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution. (Art. 861, CC) 4. Fideicommissary if the testator institutes an heir with an obligation to preserve and to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or the fiduciary heir, the one to receive the property is the fideicommissary or the second heir. (Art. 863, CC) REQUISITES FOR A FIDEICOMMISSARY SUBSTITUTION (Arts. 863 865, CC) 1. A fiduciary or first heir instituted entrusted with the obligation to preserve and to transmit to a fideicommissary substitute or second heir the whole or part of the inheritance. 2. The substitution must not go beyond one degree from the heir originally instituted. 3. The fiduciary heir and the fideicommissary are living at the time of the death of the testator. 4. The fideicommissary substitution must be expressly made. 5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime. I. LEGITIMES DEFINITION OF LEGITIME (Art. 886, CC) - It is that part of the testators property which he cannot dispose of - because the law has reserved it for his compulsory heirs CLASSES OF COMPULSORY HEIRS (Art. 887, CC) 1. Primary those who have precedence over and exclude other compulsory heirs a. Legitimate children and legitimate descendants with respect to their legitimate parents and ascendants 2. Secondary those who succeed only in the absence of the primary compulsory heirs a. Legitimate parents and legitimate ascendants with respect to their legitimate children and descendants b. Illegitimate parents with respect to their illegitimate children 3. Concurring those who succeed together with the primary or the secondary compulsory heirs a. Widow or widower (legitimate) b. Illegitimate children and illegitimate descendants

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COMPULSORY HEIRS If the testator is a LEGITIMATE CHILD 1. LC and descendants 2. In default of no. 1, LP and ascendants 3. SS 4. IC and descendants
Legitmate children- LC Illegitimate children- ILC

If the testator is an ILLEGITIMATE CHILD 1. LC and descendants 2. ILC and descendants 3. In default of nos. 1- 2, ILP only 4. SS
Surviving spouse- SS Legimate Parents- LP Illegitimate Parents- ILP

SPECIFIC RULES ON LEGITIMES 1. Direct Descending Line

a. Rule of preference between lines - Those in the direct descending line shall exclude those in the direct ascending and collateral lines, and those in the direct ascending line shall, in turn, exclude those in the collateral line. b. Rule of proximity the relative nearest in degree excludes the farther one c. Right of representation ad infinitum in case of predecease, incapacity or disinheritance. For decedents who are legitimate children, only the legitimate descendants can represent. For decedents who are illegitimate children, both the legitimate and illegitimate descendants can represent. d. If all the legitimate children repudiate their legitime, the next generation of legitimate descendants succeed in their own right. 2. Direct Ascending Line a. Rule of division by lines b. Rule of equal division the relatives who are in the same degree shall inherit in equal shares 3. Non-impairment of legitime SUMMARY OF LEGITIMES OF COMPULSORY HEIRS
SURVIVING REL. LC alone 1 LC, SS LC, SS LC, ILC 1 LC, SS, ILC 2 or more LC, SS, ILC LP alone LP, ILC LP, SS LP, SS, ILC ILC alone LC & DESCENDANTS (divided by # of children) (divided by # of children) (divided by # of children) SS ILC LP & ASCENDANTS ILP

Same as the share of 1 LC (preferred) Same as the share of 1 LC

of the share of 1 LC of the share of 1 LC of the share of 1 LC (divided by # of children)

1/8

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ILC, SS SS alone ILP alone ILP, SS Adopter ILC, SS

1/3 or 1/3 if marriage in articulo mortis 1/3

1/3 (divided by # of children)

1/3

1/3 (adopter)

STEPS IN DETERMINING THE LEGITIME OF COMPULSORY HEIRS 1. Determine the gross value of the estate at the time of the death of the testator. 2. Determine all debts and charges which are chargeable against the estate. 3. Determine the net value of the estate by deducting all debts and charges from the gross value of the estate. 4. Collate or add the value of all donations inter vivos to the net value of the estate. 5. Determine the amount of the legitime from the total thus found. 6. Impute the value of all donations inter vivos made to compulsory heirs against their legitime and of the value of all donations inter vivos made to strangers against the disposable free portion and restore it to the estate if the donation is inofficious. 7. Distribute the residue of the estate in accordance with the will of the testator.

REMEDY OF COMPULSORY HEIR IN CASE OF IMPAIRMENT OF LEGITIME 1. If the impairment is total, then there may be preterition if the compulsory heir omitted is either an ascendant or descendant. Art. 854, CC would come in to play, i.e., there will be an annulment of the institution of heirs and a reduction of devises and legacies. 2. If the impairment is partial, then the compulsory heir is entitled to completion of legitime under Art. 906, CC. 3. If the impairment is through donation, the remedy is collation.

CONCEPT OF RESERVA TRONCAL (Art. 891, CC) The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous tile from another ascendant, or a brother or sister, - is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives within the third degree and who belong to the line from which said property came.

REQUISITES FOR RESERVA TRONCAL Chua vs. CFI, 78 SCRA 406 and Gonzales vs. CFI, 104 SCRA 161 1. that the property was acquired by a descendant (prepositus) from an ascendant or from a brother or sister (source) by gratuitous title 2. that the prepositus died without an issue 3. that the property is inherited by another ascendant (reservista) by operation of law 4. that there are relatives within the 3rd degree (reservatarios) belonging to the line from which said property came

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(Source) A

B F

(Reservatario)

G (Reservista)

H (Prepositus)
J. DISINHERITANCE DEFINITION OF DISINHERITANCE (Art. 915, CC) - It is the act by which the testator - for just cause - deprives a compulsory heir of his right to the legitime. REQUISITES FOR A VALID DISINHERITANCE 1. Heir disinherited must be designated by name or in such a manner as to leave no room for doubt as to who is intended to be disinherited. 2. It must be for a cause designated by law. 3. It must be made in a valid will. 4. It must be made expressly, stating the cause in the will itself. 5. The cause must be certain and true, and must be proved by the interested heir if the person disinherited should deny it. 6. It must be unconditional. 7. It must be total. SUMMARY OF CAUSES OF DISINHERITANCE Art. Art. Art. Art. 919- children/ descendants 920- parents/ ascendants 921- spouse 1032- unworthiness 919 * * * * * * * 920 * * * * * 921 1032 * * * * * * * *

GROUNDS FOR DISINHERITANCE Guilty/convicted of attempt against life of testator/spouse/ascendant/descendant Accused testator/decedent of crime punishable by imprisonment of 6 years or more, found groundless, false Causes testator/decedent to make will or change one by fraud, violence, intimidation, or undue influence Unjustified refusal to support testator Convicted of adultery or concubinage with spouse of testator/decedent Maltreatment of testator by word and deed Leading a dishonorable or disgraceful life
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Conviction of crime which carries penalty of civil interdiction Abandonment of children or inducing children to live corrupt and immoral life or attempted against virtue Loss of parental authority Attempt by one parent against life of the other UNLESS there is reconciliation between parents Spouses given cause for legal separation Failure to report violent death of decedent within one month, unless authorities have already taken action Force, violence, intimidation or undue influence to prevent another from making a will or revoking one already made or who supplants or alters the latters will Falsifies or forges a supposed will of the decedent REVOCATION OF DISINHERITANCE 1. Reconciliation 2. Subsequent institution of the disinherited heir 3. Nullity of the will which contains the disinheritance

* * * * * * * * * *

*Note: The moment the testator uses one of the acts of unworthiness as a cause for disinheritance, he thereby submits it to the rules on disinheritance. Thus, reconciliation renders the disinheritance ineffective. K. LEGACIES AND DEVISES PERSONS CHARGED WITH LEGACIES AND DEVISES 1. 2. 3. 4. Compulsory heir Voluntary heir Legatee or devisee Estate VALIDITY AND EFFECT OF LEGACY OR DEVISE STATUS OF PROPERTY GIVEN BY LEGACY/DEVISE 1. Belonging to the testator at the time of the execution of the will until his death 2. Belonging to the testator at the time of the execution of the will but alienated in favor of a 3rd person 3. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee or devisee gratuitously 4. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee/devisee onerously 5. Not belonging to the testator at the time the will is executed but he has ordered that the thing be acquired in order that it be given to the legatee/devisee. 6. Not belonging to the testator at the time the will is executed and the testator erroneously believed that the thing pertained to him. 7. Not belonging to the testator at the time the will is
16

EFFECT ON THE LEGACY/DEVISE Effective Revoked No revocation. There is a clear intention to comply with the legacy/devise. Legatee/devisee can demand reimbursement from the heirs or the estate. Effective

Void Effective

executed but afterwards it becomes his by whatever title. 8. Already belonged to the legatee/devisee at the time of the execution of the will even though another person may have interest therein 9. Already belonged to the legatee/devisee at the time of the execution of the will even though it may have been subsequently alienated by him. 10. Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property gratuitously after the execution of the will. 11. Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property by onerous title.

Ineffective Ineffective Legatee/devisee can claim nothing by virtue of the legacy/devise Legatee/devisee can demand reimbursement from the heir or estate.

ORDER OF PAYMENT IN CASE THE ESTATE IS INSUFFICIENT TO COVER ALL LEGACIES AND DEVISES ART. 911, CC VS. ART. 950, CC ART. 950 Order of Preference (RPSESO) 1. 1. Remuneratory legacy/devise 2. 2. Preferential legacy/devise 3. 3. Legacy for Support 4. 4. Legacy for Education 5. Legacy/devise of Specific, determinate thing which forms a part of the estate 6. All Others pro rata Application: Application: 1. When the reduction is necessary to 1. When there are no compulsory heirs and preserve the legitime of compulsory heirs the entire estate is distributed by the from impairment whether there are testator as legacies or devises; or donations inter vivos or not; or 2. When there are compulsory heirs but their legitime has already been provided 2. When, although, the legitime has been for by the testator and there are no preserved by the testator himself there donations inter vivos. are donations inter vivos. *Art. 911 governs when there is a conflict *Art. 950 governs when the question of between compulsory heirs and the reduction is exclusively among legatees devisees and legatees. and devisees themselves. *Note: In case of reduction, the inverse order of payment should be followed. GROUNDS FOR REVOCATION OF LEGACIES AND DEVISES (Art. 957, CC) 1. Testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had. 2. Testator by any title or for any cause alienates the thing bequeathed, or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part alienated. Except: When the thing should again belong to the testator after alienation by virtue of the exercise of the right of repurchase. 3. Thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heirs fault.
17

ART. 911 Order of Preference (LIPO) Legitime of compulsory heirs Donations Inter vivos Preferential legacies or devises All Other legacies or devises pro rata

4. Other causes: nullity of the will; noncompliance with suspensive conditions affecting the bequests; sale of the thing to pay the debts of the deceased during the settlement of his estate. *Note: List is not exclusive.

III. Legal or Intestate Succession

CAUSES OF VACANCY IN SUCCESSION 1. Disinheritance the testator creates it himself 2. Repudiation the heir does something 3. Incapacity or Predecease something happens to the heir HOW VACANCIES ARE FILLED 1. 2. 3. 4. Substitution (Art. 857, CC) Representation (Art. 970, CC) Accretion (Art. 1015, CC) Intestate Succession

CAUSES FOR LEGAL OR INTESTATE SUCCESSION (Art. 960, CC) 1. 2. 3. 4. 5. If a person dies without a will If a person dies with a void will If a person dies with a will which has subsequently lost its validity When the will does not institute an heir When the will does not dispose of all the property belonging to the testator. Legal succession shall take place only with respect to the property which the testator has not disposed. 6. If the suspensive condition attached to the institution of the heir does not happen or is not fulfilled 7. If the heir dies before the testator 8. If the heir repudiates the inheritance, there being no substitution, and no right of accretion takes place 9. When the heir instituted is incapable of succeeding, except in cases provided in the Civil Code UNDERLYING PRINCIPLES IN LEGAL OR INTESTATE

FUNDAMENTAL SUCCESSION

1. Rule of Preference Between Lines Those in the direct descending line shall exclude those in the direct ascending and collateral lines, and those in the direct ascending line shall, in turn, exclude those in the collateral line. 2. Rule of Proximity the relative nearest in degree excludes the farther one. (Art. 962, CC) 3. Rule of Equal Division the relatives who are in the same degree shall inherit in equal shares. (Articles 987 and 1006, CC) Exceptions: a. Division in the ascending line (between paternal and maternal grandparents) b. Division among brothers and sisters, some of whom are of the full and others of half-blood c. Division in cases where the right of representation takes place
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4. Rule of Barrier between the legitimate family and the illegitimate family the illegitimate family cannot inherit by intestate succession from the legitimate family and vice-versa. (Art. 992, CC) 5. Rule of Double Share for full blood collaterals when full and half-blood brothers or sisters, nephews or nieces, survive, the full blood shall take a portion in the inheritance double that of the half-blood. (Articles 895 and 983, CC) RELATIONSHIP (Articles 963 969, CC) 1. 2. 3. 4. 5. 6. 7. 8. 9. Number of generations determines proximity. Each generation forms a degree. A series of degrees forms a line. A line may either be direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants (ascending and descending). A collateral line is that constituted by the series of degrees among persons who are not ascendants or descendants, but who come from a common ancestor. Full blood same father and mother. Half-blood only one of either parent is the same. In adoption, the legal filiation is personal and exists only between the adopter and the adopted. The adopted is deemed a legitimate child of the adopter, but still remains as an intestate heir of his natural parents and other blood relatives.

DEFINITION OF THE RIGHT OF REPRESENTATION (Art. 970, CC) - It is a right created by fiction of law - by virtue of which the representative is raised to the place and degree of the person represented - and acquires the rights which the latter would have if he were living or if he would have inherited. *Notes: - In the direct line, representation takes place ad infinitum in the direct descending line, never in the ascending. - In the collateral line, representation takes place only in favor of the children of the brothers or sisters (i.e., nephews and nieces) whether of the full or half-blood and only if they concur with at least one uncle or aunt.

RIGHT OF REPRESENTATION IN TESTAMENTARY SUCCESSION 1. When a compulsory heir in the direct descending line had predeceased the testator and was survived by his children or descendants. 2. When a compulsory heir in the direct descending line is excluded from the inheritance due to incapacity or unworthiness and he has children or descendants. 3. When a compulsory heir in the direct descending line is disinherited and he has children or descendants; representation covers only the legitime. 4. A legatee or devisee who died afther the death of the testator may be represented by his heirs.

RIGHT OF REPRESENTATION IN INTESTATE SUCCESSION 1. When a legal heir in the direct descending line had predeceased the decedent and was survived by his children or descendants.
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2. When a legal heir in the direct descending line is excluded from the inheritance due to incapacity or unworthiness and he has children or descendants. 3. When brothers or sisters had predeceased the decedent and they had children or descendants. 4. When illegitimate children represent their deceased illegitimate parents in the estate of their grandparents. 5. When nephews and nieces inherit together with their uncles and aunts in representation of their deceased parents who are brothers or sisters of said uncles and aunts.

ORDER OF LEGAL OR INTESTATE SUCCESSION

DECEDENT IS A LEGITIMATE CHILD DECEDENT IS AN ILLEGITIMATE CHILD DECEDENT IS AN ADOPTED CHILD

1 LC and Legitimate

descendants 2 LP and Legitimate ascendants

3 ILC and Illegitimate 4 SS 5 Legitimate siblings, Nephews, 6 Legitimate collateral relatives

descendants Nieces

LC and Legitimate descendants ILC and Illegitimate descendants ILP

within the 5th degree 7 State

SS Illegitimate siblings, Nephews, Nieces State

LC and Legitimate descendants ILC and Illegitimate descendants LP or ILP and Legitimate ascendants, Adoptive parents SS Siblings, Nephews, Nieces State

CONCURRENCE IN LEGAL OR INTESTATE SUCCESSION Intestate Heir LC and Legitimate descendants ILC and Descendants LP and Legitimate ascendants ILP SS Siblings, Nephews Nieces Other collaterals within 5th degree State EXCLUDES Ascendants, Collaterals and State ILP, Collaterals and State Collaterals and State Collaterals and State Collaterals other than siblings, nephews and nieces All other collaterals And State Collateral more remote in degree and State No one EXCLUDED BY No one No one LC LC and ILC No one LC, ILC, LP, ILP LC, ILC, LP, ILP and SS Everyone CONCURS WITH SS and ILC SS LC and LP ILC and SS SS LC, ILC, LP, ILP Siblings Nephews Nieces SS Collaterals in the same degree No one

A MORE DETAILED SUMMARY OF INTESTATE SHARES 1 LEGITIMATE CHILDREN AND LEGITIMATE DESCENDANTS ALONE Intestate Heir SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE LC 1 TOTAL 1
20

Intestate Heir LC SS TOTAL

2 ONE LEGITIMATE CHILD AND SURVIVING SPOUSE SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE 1 3 LEGITIMATE CHILDREN AND SURVIVING SPOUSE SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE Remaining portion of estate Whole estate divided after paying legitimes equally between total # of children plus the SS Same as share of 1 Legitimes to be divided # of children plus the LC equally between total # of SS (see above) children plus the SS Varies on no. of children Varies on no. of children 1

Intestate Heir LC

SS

TOTAL

4 LEGITIMATE CHILDREN AND ILLEGITIMATE CHILDREN Intestate Heir SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE LC Remaining portion of estate Whole estate divided after paying legitimes by the ratio of 2:1 for each LC as compared to the ILC ILC share of 1 LC Legitimes to be divided by 1 for each ILC provided the ratio of 2 for each LC, 1 that legitimes wouldnt for each ILC be impaired TOTAL Varies on # of Varies on # of children 1 children 5 ONE LEGITIMATE CHILD, ILLEGITIMATE CHILD, AND SURVIVING SPOUSE Intestate Heir SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE LC Remaining portion of estate Whole estate divided by after paying legitimes to be the ratio of 2 for each divided by the ratio of 2:1 LC for each LC and each ILC, respectively ILC share of 1 LC or 1 for each ILC (see above) 1 for each ILC SS Same share as a LC Legitimes wouldnt be impaired TOTAL Varies depending Varies depending on # of 1 on # of ILC ILC 6 LEGITIMATE CHILDREN, ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE Intestate Heir SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE LC Remaining portion of Whole estate divided by
21

ILC SS TOTAL

share of each LC Same share as one LC Varies depending on # of ILC

estate, if any after paying legitimes to be divided by the ratio of 2 for each LC 1 for each ILC (see above) Same share as a LC, provided legitimes are not impaired Varies depending on # of ILC

the ratio of 2:1 for each LC and ILC respectively 1 for each ILC (see above) Same share as a LC, provided legitimes are not impaired 1

Intestate Heir LP TOTAL

7 LEGITIMATE PARENTS ALONE SHARE AS LEGITIME SHARE AS FREE DISPOSAL

T OTAL INTESTATE SHARE 1 1

Intestate Heir LP ILC TOTAL

8 LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE 1 9 LEGITIMATE PARENTS AND SURVIVING SPOUSE SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE 1

Intestate Heir LP SS TOTAL

10 LEGITIMATE PARENTS, SURVIVING SPOUSE AND ILLEGITIMATE CHILDREN Intestate Heir SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE LP SS 1/8 1/8 ILC TOTAL 7/8 1/8 1 11 ILLEGITIMATE CHILDREN ALONE Intestate Heir ILC alone TOTAL SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE 1 1

Intestate Heir ILC SS TOTAL

12 ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE 1/3 1/6 1/3 1/6 2/3 1/3 1
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Intestate Heir SS TOTAL

SHARE AS LEGITIME or 1/3 or 1/3

13 SURVIVING SPOUSE SHARE AS FREE DISPOSAL or 1/3 or 1/3

T OTAL INTESTATE SHARE 1 1

Intestate Heir ILP TOTAL

14 ILLEGITIMATE PARENTS ALONE SHARE AS LEGITIME SHARE AS FREE DISPOSAL

T OTAL INTESTATE SHARE 1 1

Intestate Heir ILP SS TOTAL

15 ILLEGITIMATE PARENTS AND SURVIVING SPOUSE SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE 1 16 SIBLINGS, NEPHEWS AND NIECES ALONE (SPECIAL KIND OF COLLATERAL RELATIVES)

Intestate Heir Siblings, nephews, nieces TOTAL

SHARE AS LEGITIME

SHARE AS FREE DISPOSAL

TOTAL INTESTATE SHARE 1 1

17 SURVIVING SPOUSE, SIBLINGS, NEPHEWS AND NIECES Intestate Heir SHARE AS LEGITIME SHARE AS FREE DISPOSAL T OTAL INTESTATE SHARE SS Siblings, nephews, nieces TOTAL 1 ORDER OF CONCURRENCE IN THE CASE OF AN ADOPTED CHILD (Art. 190, FC) SURVIVORS SHARE LC, ILC, SS As in the case of ordinary intestate succession LP or ascendants or ILP Adopter LP or ascendants or ILP or Adopter SS LP or ascendants Adopter ILC or descendants LP or ascendants Adopter 1/3 SS 1/3 ILC or descendants 1/3 Adopter alone Entire estate Collateral blood relatives As in the case of ordinary intestate succession

IV. Provisions Common to Testate and Intestate Succession Exclude: Executors and administrators (Arts. 1058-1060, Civil Code), which will be covered under Remedial Law
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A. ACCRETION

DEFINITION OF ACCRETION (Art. 1015, CC) - It is a right by virtue of which - when two or more persons are called to the same inheritance, devise or legacy - the part assigned to one who renounces or cannot receive his share or who died before the testator - is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. EFFECT OF PREDECEASE, INCAPACITY, DISINHERITANCE OR REPUDIATION IN TESTAMENTARY AND INTESTATE SUCCESSION TESTAMENTARY SUCCESSION INTESTATE CAUSE OF VACANCY SUCCESSION LEGITIME FREE PORTION Predecease Representat'n Accretion Representat'n Intestate Succession Intestate Succession Intestate Succession Incapacity Representat'n Accretion Representat'n Intestate Succession Intestate Succession Intestate Succession Disinheritance Representat'n Intestate Succession Repudiation Intestate Succession Accretion Accretion B. CAPACITY TO SUCCEED REQUISITES FOR CAPACITY TO SUCCEED BY WILL OR BY INTESTACY (Art. 1024 1025, CC) 1. The heir, legatee or devisee must be living or in existence at the moment the succession opens; and 2. He must not be incapacitated or disqualified by law to succeed. WHO ARE INCAPABLE OF SUCCEEDING 1. BASED ON UNDUE INFLUENCE OR INTEREST (Art. 1027, CC) - PIGRAP a. Priest who heard the last confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; b. Individuals, associations and corporations not permitted by law to inherit; c. Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; except if the guardian is his ascendant, descendant, brother, sister, or spouse; d. Relatives of the priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; e. Attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; f. Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness. 2. BASED ON MORALITY OR PUBLIC POLICY (Art. 739, CC)
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a. Those made in favor of a person with whom the testator was guilty of adultery or concubinage at the time of the making of the will. b. Those made in consideration of a crime of which both the testator and the beneficiary have been found guilty. c. Those made in favor of a public officer or his spouse, descendants and ascendants, by reason of his public office. 3. BASED ON ACTS OF UNWORTHINESS (Art. 1032, CC) See table under disinheritance PARDON OF ACTS OF UNWORTHINESS EXPRESS IMPLIED Made by the execution of a document or any Effected when the testator makes a will instituting the unworthy heir with knowledge writing in which the decedent condones the cause of incapacity of the cause of incapacity Cannot be revoked Revoked when the testator revokes the will or the institution C. ACCEPTANCE AND REPUDIATION OF INHERITANCE CHARACTERISTICS VIR (Articles 1041 1042, 1056, CC) 1. Voluntary and free 2. Irrevocable except if there is vitiation of consent or an unknown will appears 3. Retroactive REQUISITES (Art. 1043, CC) 1. certainty of death of the decedent 2. certainty of the right to the inheritance ACCEPTANCE VS. REPUDIATION 1. Acceptance involves the confirmation of transmission of successional rights, while repudiation renders such transmission ineffective. 2. Repudiation is equivalent to an act of disposition and alienation. 3. The publicity required for repudiation is necessary for the protection of other heirs and also of creditors. FORMS OF ACCEPTANCE (Articles 1049 1050, CC) 1. Express Acceptance one made in a public or private document. 2. Tacit Acceptance one resulting from acts by which the intention to accept is necessarily implied or from acts which one would have no right to do except in the capacity of an heir. Examples would be when the heir sells, donates or assigns his right, when the heir demands partition of the inheritance, when the heir alienates some objects of the inheritance, etc. FORMS OF REPUDIATION (Art. 1051, CC) 1. in a public instrument acknowledged before a notary public; or 2. in an authentic document equivalent of an indubitable writing or a writing whose authenticity is admitted or proved; or
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3. by petition presented to the court having jurisdiction over the testamentary or intestate proceeding HEIRS IN TWO CAPACITIES (Art. 1055, CC) - If a person is called to the same inheritance as an heir by will and by law and he repudiates the inheritance in his capacity as a testamentary heir, he will be considered to have also repudiated the inheritance as a legal heir. - If he repudiates it as a legal heir, without his being a testamentary heir, he may still accept it in the latter capacity. D. COLLATION (Articles 1061 1077, CC) CONCEPT OF COLLATION - To collate is to bring back or to return to the hereditary mass - in fact or by fiction - property which came from the estate of the decedent, during his lifetime by donation or other gratuitous title - but which the law considers as an advance from the inheritance. - It is the act by virtue of which, the compulsory heir who concurs with other compulsory heirs in the inheritance bring back to the common hereditary mass - the property which they may have received from the testator - so that a division may be effected according to law and the will of the testator. OPERATIONS RELATED TO COLLATION 1. Collation adding to the mass of the hereditary estate the value of the donation or gratuitous disposition. 2. Imputing or Charging crediting the donation as an advance on the legitime (if the donee is a compulsory heir) or on the free portion (if the donee is a stranger). 3. Reduction determining to what extent the donation will remain and to what extent it is excessive or inofficious. 4. Restitution return or payment of the excess to the mass of hereditary estate. PERSONS OBLIGED TO COLLATE 1. General Rule: compulsory heirs Exceptions: a. when the testator should have so expressly provided b. when the compulsory heir should have repudiated his inheritance 2. Grandchildren who survive with their uncles, aunts, or first cousins and inherit by right of representation *Note: Grandchildren may inherit from their grandparent in their own right, i.e., as heirs next in degree, and not by right of representation if their parent repudiates the inheritance of the grandparent, as no living person can be represented except
26

in cases of disinheritance and incapacity in which case grandchildren are not obliged to bring to collation what their parent has received gratuitously from their grandparent. WHAT TO COLLATE 1. Any property or right received by gratuitous title during the testators lifetime. 2. All that they may have received from the decedent during his lifetime. 3. All that their parents would have brought to collation if alive. PROPERTIES NOT SUBJECT TO COLLATION 1. Absolutely no collation a. Expenses for support, education (only elementary and secondary), medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts. (Art. 1067, CC) 2. Generally not imputable to legitime a. Expenses incurred by parents in giving their children professional, vocational or other career unless the parents so provide, or unless they impair the legitime. b. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit except when they exceed 1/10 of the sum disposable by will. E. PARTITION AND DISTRIBUITON OF ESTATE (Articles 1078 1105, CC) CONCEPT OF PARTITION (Art. 1079, CC) - It is the separation, division and assignment - of a thing held in common among those to whom it may belong. - The thing itself or its value may be divided. WHO MAY EFFECT PARTITION 1. decedent, during his lifetime by an act inter vivos or by will 2. heirs 3. competent court 4. third person designated by the decedent WHO CAN DEMAND PARTITION 1. compulsory heir 2. voluntary heir 3. legatee or devisee 4. any person who has acquired interest in the estate WHEN PARTITION CANNOT BE DEMANDED PAPU 1. when expressly Prohibited by the testator for a period not exceeding 20 years 2. when the co-heirs Agreed that the estate shall not be divided for a period not exceeding 10 years, renewable for another 10 years 3. when Prohibited by law 4. when to partition the estate would render it Unserviceable for the use for which it is intended PROHIBITION TO PARTITION
27

1. The prohibition to partition for a period not exceeding 20 years can be imposed on the legitime. 2. If the prohibition to the partition is for more than 20 years, the excess is void. 3. Even if a prohibition is imposed, the heirs by mutual agreement can still make the partition. PARTITION INTER VIVOS (Art. 1080, CC) - It is one that merely allocates specific items or pieces of property on the basis of the pro-indiviso shares fixed by law or given under the will to heirs or successors. EFFECTS OF INCLUSION OF INTRUDER IN PARTITION 1. Between a true heir and several mistaken heirs partition is void. 2. Between several true heirs and a mistaken heir transmission to mistaken heir is void 3. Through error or mistake, share of true heir is allotted to mistaken heir partition shall not be rescinded unless there is bad faith or fraud on the part of the other persons interested, but the latter shall be proportionately obliged to pay the true heir of his share. The partition with respect to the mistaken heir is void. A VOID WILL MAY BE A VALID PARTITION 1. If the will was in fact a partition 2. If the beneficiaries of the void will were legal heirs IMPORTANT PERIODS TO REMEMBER 1 month or less before making a will Testator, if publicly known to be insane, burden of proof is on the one claiming validity of the will 20 years Maximum period testator can prohibit alienation of dispositions 5 years from delivery to the State To claim property escheated to the State 1 month To report knowledge of violent death of decedent lest he be considered unworthy 5 years from the time disqualified Action for declaration of incapacity & for recovery person took possession of the inheritance, devise or legacy 30 days from issuance of order of Must signify acceptance/repudiation otherwise, distribution deemed accepted 1 month from written notice of sale Right to repurchase hereditary rights sold to a stranger by a co-heir 10 years To enforce warranty of title/quality of property adjudicated to co-heir from the time right of action accrues 5 years from partition To enforce warranty of solvency of debtor of the estate at the time partition is made 4 years from partition Action for rescission of partition on account of lesion SAMPLE BAR QUESTIONS 1. Alfonso, a bachelor without any descendant or ascendant, wrote a last will and testament in which he devised, all the properties of which I may be possessed at the time of my death to his favorite brother Manuel. At the time he wrote the will, he owned only one parcel of land. But by the time he died, he owned 20 parcels of land. His other brothers and sisters insist that his will should pass only the parcel of land he owned at the time it
28

was written, and did not cover his properties acquired, which should be by intestate succession. Manuel claims otherwise. Who is correct? Explain. Answer: Manuel is correct because under Art. 793, NCC, property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. Since Alfonsos intention to devise all properties he owned at the time of his death expressly appears on the will, then all the 20 parcels of land are included in the devise. 2. Cristina, the illegitimate daughter of Jose and Maria, died intestate, without any descendant or ascendant. Her valuable estate is being claimed by Ana, the legitimate daughter of Jose, and Eduardo, the legitimate son of Maria. Is either, both, or neither of them entitled to inherit? Explain. Answer: Neither Ana nor Eduardo is entitled to inherit ab intestate from Cristina. Both are legitimate relatives of Cristinas illegitimate parents and therefore they fall under the prohibition prescribed un Art. 992, NCC (Manuel vs. Ferrer, 242 SCA 477; Diaz vs. CA, 182 SCRA 427). 3. (a) Luis was survived by 2 legitimate children, 2 illegitimate children, his parents, and 2 brothers. He left an estate of P1 million. Who are the compulsory heirs of Luis, how much is the legitime of each, and how much is the free portion of his estate, if any? (b) Suppose Luis, in the preceding question, died intestate. Who are his intestate heirs, and how much is the share of each in his estate? Suggested Answer: (a) The compulsory heirs are the 2 legitimate children and the 2 illegitimate children. The parents are excluded by the legitimate children, while the brothers are not compulsory heirs at all. Their respective legitimes are: 1. The legitime of the 2 legitimate children is of the estate (P500,000) to be divided between them equally, or P250,000 each. 2. The legitime of each illegitimate child is the legitime of each legitimate child or P125,000. Since the total legitimes of the compulsory heirs is P750,000, the balance of P250,000 is the free portion. (b) The intestate heirs are the 2 legitimate children and the 2 illegitimate children. In intestacy, the estate of the decedent is divided among the legitimate and illegitimate children such that the share of each illegitimate child is the share of each legitimate child. Their shares are: 1. For each legitimate child: P333,333.33 2. For each illegitimate child: P166,666.66

29