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General
a. property
Provisions b. rights not extinguished by death
c. obligations not extinguished by
Article 774 death (to the extent of the value of
the inheritance)
Succession is a mode of acquisition by
virtue of which the property, rights and What is the difference between heirs
obligations to the extent of the value of and devisees/legatees, as to the extent
the inheritance, of a person are of the inheritance?
transmitted through his death to another
or others either by his will or by An heir inherits an aliquot part of the
operation of law. indeterminate portion of the estate, while, the
inheritance of a devisee/legatee must be
What is Succession? specified by the testator.
3. heirs must survive the decedent What are the cases when there is no
(no predecease); be willing (no transmission of right?
repudiation); be capacitated to
inherit 1. repudiation made by the heir
2. heirs predeceased the decedent/testator
*These are also the requisites for succession 3. incapacity of the heir to succeed
mortis causa.
Upon the death of the testator, is it
necessary to deliver the properties to
the heir in order to acquire ownership?
No. The principle under this Article applies to What are the rule used to determine the
both actual death and presumptive death. precise time of death of a decedent in
This is clear from the provisions of Article 390 presumptive death?
and 391.
Ordinary presumptive death:
What are the rules on presumptive
death as to the opening of succession? 1. rules of evidence
2. in the absence of evidence, expiration
1. ten (10) years absence, it being of period provided for by law
unknown, whether or not the
absentee still lives
1. actual death
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Extra-ordinary presumptive death: dead on January 1, 2002. Is the claim
valid?
1. rules of evidence
2. in the absence of evidence, at or No. There is no succession because there was
about time of disappearance no death. Death must be permanent because
a person can only die once.
What is the effect in case a person
presumed to be dead returns? Article 778
Article 780
Article 781
Article 782
Who is an heir?
Who is a devisee?
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What are distinctions between heirs, Suppose the only properties left by the
devisees and legatees? decedent are his three (3) cars. The
decedent gave you 1/3 of his estate, which
As to the title: is, one car. As a beneficiary, are you
considered as an heir?
1. Devisees or legatees are always
called to succeed to individual Yes. Because an aliquot part (1/3 thereof) of the
items of the property. estate was given to me, not a specific part
thereof.
2. Heirs are always called to
succeed to an indeterminate or
aliquot portion of the
decedent's hereditary estate.
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The answer would have been different if the But devises and legacies shall be valid,
decedent had given me a specific car. In this insofar as they are not inofficious.
case, I would have been a legatee, having
succeeded a personal property, by a In case of properties acquired by the
particular title. testator after the execution of the will,
such properties are not as a rule, included
X made a will designating A as heir of among the property disposed of, unless, it
his entire estate. However, since X was should expressly appear in the will itself that
a gambler, the only property left to him such was the testator's intention. This rule
when he died was a Honda civic car. Is A applies only to legacies and devises and not to
an heir or a legatee? the institution of heirs.
Why unilateral?
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Because it does not need the approval of
any other person.
Why a formal and solemn act? money, it should be wiser to employ one
whenever the whole estate is involved (57
Because it must comply with the formalities Am.Jur., Sec 21).
prescribed by law.
Moreover, if an attorney drafts a will and is
Why an act mortis causa? present at the time of its execution, there is a
strong presumption that the will was regularly
Because it takes effect only after the death of made.
the testator.
Is a lawyer prohibited from assisting a
Why ambulatory? person making a will?
Because the testator can revoke it at any time If the lawyer does only a mechanical act of
before his death. writing the will, then, he is not prohibited.
Otherwise, the will would be invalid.
Article 784
Article 785
X made his last will and testament and In making a will it is advisable to employ an
authorize you to execute it. Is it valid? attorney, for if we employ an attorney in so
many cases involving little
No. The making of a will is strictly a personal
act. It cannot be left in whole or in part to the
discretion of a third person or accomplished
through the instrumentality of an agent or
attorney.
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*While Article 785, enumerates in absolute such a manner that another person has to
terms, the different things which the testator determine whether or not it is to be operative.
cannot do, Article 786 enumerates by way of
exception the different things which the In the preceding, is the entire will invalid?
testator may do.
No. The only provisions whose effectivity depend
rd rd
Thus, the testator is allowed to entrust to a 3 upon the determination of the 3 peson (X's
person: wife) will be invalidated.
Article 787
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What are the aspects of a will governed If a testamentary disposition admits of
by the law of the decedent? different interpretations, in case of doubt,
that interpretation by which the disposition is
1. order of succession to be operative shall be preferred. The reason
2. and amount of succession is that, testate succession, provided the will is
3. intrinsic validity of testamentary valid, is preferred to intestacy. If no doubt
provisions exist and the disposition is clearly illegal, the
4. capacity to succeed (Article 1039) same should not be given effect.
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What is latent or intrinsic The oral declarations of the testator as to his
ambiguities? intentions must be excluded.
That which does not appear on the face of the Example: X, owns a two (2) parcels of land in
will and is discovered only the extrinsic a certain province, has devised one of them to
evidence. his cousin, Marc. During the testate
proceedings, a question arouse as to the
Example: I institute my brother-in-law. identity of the land devised because of the
imperfect description of the property in the
When it is discovered, that there are 2 will.
brothers-in-law. This ambiguity is not found in
the will itself. The doubt arises only because
of the things outside the will.
1. intrinsic evidence
2. extrinsic evidence
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How can the identity of the property 1. intrinsic evidence
devised be determined? 2. extrinsic evidence
Under Article 789, Marc may avail The oral declarations of the testator as to his
himself of either intrinsic or extrinsic intentions must be excluded.
evidence or of both, in order to
ascertain the testatorial intention. Why is oral declaration of the testator in
determining the ambiguities in the will
Can Marc testify or present witnesses, not allowed?
who will testify to the effect that during
his lifetime, the testator, X, verbally 1. it is merely a hearsay, and
declared or revealed the identity of the therefore, inadmissible as
property he intended to devise? evidence
No. Such testimony would be hearsay, and 2. the testator is already dead by the
therefore, inadmissible as evidence. time the ambiguities of the will are
questioned, and therefore, he can
Suppose that the will states "I give to no longer refute the testimonies of
my first cousin Anne Ekaterina Navarro lying witnesses
my house and lot in Quezon City". But
three (3) first cousins are named Anne Testator will give his house and lot to two
Ekaterina Navarro. What kind of defect (2) of his five
is this? What is the remedy? (S) brothers. What king of ambiguity
is this? Is the disposition valid?
Latent. Same as patent.
Patent/Extrinsic. It is evident from the face
What is the remedy if there is a of the will itself.
patent/extrinsic ambiguity in the
provision of the will? It depends. Yes, if the identity of the two (2)
brothers referred to in the will can be
The same as lantent/intrinsic ambiguity. ascertained by extrinsic or intrinsic evidence.
Ascertain the testatorial intention by No, if the identity cannot be determined. In
using either or both: this case, the law on intestate succession
shall apply.
Principal Rule in Interpretation of Wills expression some effect, rather than one
which will render any of the expressions
1. determine the testatorial intention inoperative; and of two modes of
2. consider the provisions altogether interpreting a will, that is to be preferred
3. avoid provisions which shall which will prevent intestacy.
render the will ineffective
4. testacy is always preferred What is the effect if the will of the
testator is not followed? Or if the will
Article 790 is void?
No. It will not result in the invalidity of the Property acquired after the making of a
other dispositions, which are otherwise valid, will shall only pass thereby, as if the
unless, it is to be presumed that the testator testator had possessed it at the time of
would not have made such dispositions, if the making the will, should it expressly
first invalid disposition had not been made. appear by the will that such was his
intention.
*Even if one disposition or provision is
invalid, it does not necessarily follow that all After Acquired Properties
the others are also invalid. The
Under Article 793, property acquired during
the interval between the execution of the will
and the death of the testator, are not as a
rule, included among the properties disposed
of, unless, it should expressly appear in the
will itself, that such is the intention of the
testator.
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It does not apply to heirs, because the heirs acquired even after the execution of the will.
inherit everything at the time of the The time of death is the determining point of
testator's death. The extent of the the properties, which the heirs will inherit, not
inheritance includes those properties the making of the will.
The provision applies only to the legatees and
devisees because the intention of the will is a refers to the forms and solemnities
complete act. needed
maybe seen from the viewpoint of
*Do not confuse Article 793 with Article 781. time and place
Taje note of the difference between "after
acquired" property {those acquired between 2. intrinsic validity
the making of the will and the testator's
death) and the property "accruing since the refers to the legality of the
opening of the succession" {or the property provisions in an instrument,
added after the death of the decendent, contract or will
referred to under Article 781). may be seen from the viewpoint
of time and place
Article
794
Article
795
1. extrinsic validity
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The formal validity of the will is to be judged
not by the law in force at the time of (a) the In the preceding problem, does the
testator's death, or (b) the supposed will is exception (with respect to retroactive
presented in the court for probate, or application of the Law) violate the
(c) when the petition is decided by court, but constitutional prohibition regarding
at the time the instrument was made. the deprivation of property without
due process of law?
Reason: The testator's wishes regarding the
disposition of his estate among his heirs, No. It does not violate the constitutional
devisees and legatees are given solemn prohibition regarding the deprivation of
expression at the time the will is executed, property, because:
and thus becomes a complete act (Enriquez
vs Abadia, 50 OG 4185; In re: Will of Riosa, 1. the statute is enacted before the
39 Phil 23). Furthermore, a testator cannot death of the testator, and as a
be expected to know the future, hence, it is consequence
enough that he follows the law in force at the
time he makes the will. 2. no rights are yet vested in the
persons called to the inheritance
What is the effect of a new law either as heirs, devisees or legatees
changing the formalities of a will?
Furthermore, the will is still revocable. Thus, if
1. after the death of the testator, the the testator has made a will and a new law is
rules have no effect because the passed affecting the will, the testator may still
heirs already have a vested right changed the will to conform to the new law.
2. before the death of the testator, What then is the rule under Article 79S?
the rules have no effect
A will perfectly valid at the time of its
Exception: if a new law expressly execution cannot be invalidated by a law
provides for a retroactive application enacted after the death of the testator;
neither can a will totally void at the time of its
Exception to the exception: execution be validated by such subsequent
when the heirs already have a legislation.
vested right
Suppose X executed his last will and Suppose at the time of the execution of
testament in September 13, 1999. The the will, the law required three (3)
law at the time it was executed, requires witnesses. The will was executed by X,
three (3) witnesses. But the time X complying with such requirement.
executed his last will and testament, Thereafter, a subsequent law reduced the
only two (2) were present. A month required number of witnesses, until the
thereafter, a new law was passed time X dies. Is the will valid?
requiring only one (1) witness. Should
X's will be given effect? Yes. Although, the will did not comply with the
formalities prescribed by law, enacted after the
No. Because the validity of the will as to its execution of the will, yet, it can still be
form depends upon the observance of the law admitted to probate because it had complied
in force at the time it is made. The formal with all of the formalities in force at the time of
validity of the will is to be judged, not only by its execution.
the law in force at the time of the supposed
will is presented in court for probate, or when Is the rule enunciated in Article 79S
the petition is decided by court, but also at absolute?
the time the instrument was executed.
Although the will operates only after the death No. The validity of a will as to its form depends
of the testator, in reality, his wishes regarding upon the observance of the law in force at the
the disposition of his estate among his heirs, time it is made.
devisees and legacies, are given solemn Except, if a subsequent law allows or required
expression at the time the will was executed. retroactivity. A latter law may allow for express
It is also during that same time, that will retroactivity as implied from the language used
becomes a completed act. therein.
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Suppose X died before effectivity of a Matthew Hanley. However, it also provides that
new law, but probate of the will was all the real estate shall be placed under the
initiated after the effectivity of the law. management of the executors for a period of
Will the new law be given retroactive ten {10) years. After the
effect? expiration of which, the properties shall be
given to Matthew Hanley.
No. The new law must be given retroactive
effect, as this will violate the vested rights of Plaintiff contends that the inheritance tax
the heirs. should be based upon the value of the estate
at the expiration of the ten- year period,
Why? which according to the testator's will, the
property could be and is to be delivered to the
Because the rights are transmitted at the time instituted heir, and not upon the value
of the death of the decedent. thereof, at the time of the death of the
testator.
Lorenzo vs Posadas (64 Phil 3S3)
HELD: Whatever may be the time when
FACTS: Thomas Hanley died, leaving a will actual transmission of the inheritance takes
and some personal and real properties. The place, succession takes place in any event
will, which was duly admitted to probate, at the moment of death of the decedent.
provides among other things, that all the
properties of the testator shall pass to his Death is the generating source from the power
nephew, of the State to impose inheritance taxes takes
it being. Hence, if upon the death of the
decedent, succession takes place and the
right of the State to tax vest instantly, the tax
should be measured by the value of the estate
as it stood at the time of the decedent's death,
regardless of any subsequent contingence
affecting value or any subsequent increase or
decrease in value.
Article 796 to Article Persons of either sex under eighteen
800 Testamentary years of age cannot make a will.
Capacity and Intent
What are the minimum requirements for
Testamentary Capacity - refers to the persons in making a will?
ability, as well as, the power to make a will.
1. must be 18 years old
Article 796 2. must be of sound mind
3. must not be expressly prohibited by
All persons who are not expressly law
prohibited by law may make a will.
When does a person become eighteen
Who may execute a will? (18)?
All persons who are not expressly prohibited by A person is said to have reached the age of
law to make a will. eighteen (18) only at the commencement of
the day which is popularly known as his
Is the right to make a will a natural birthday.
right?
*eighteen (18) years of age
No. Because not all persons are qualified to
make a will. The law provides some minimum age required
requirements before a person can execute a as long as it is made before the
will. decedent reaches the age of
eighteen {18) the will is void
It is purely a creature of statute, and as such, good faith is immaterial
is subject matter of legislative control. the law does not fix a maximum
age
Article 797
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X made a will when he is only seventeen does not affect the will because its invalidity is
(17). He died without changing the will. determined at the time of the execution of the
Is the will valid? will.
No. X has no testamentary capacity at the time In the preceding problem, what if X
of the execution of the will. Supervening believed in good faith that he is already
capacity or incapacity eighteen (18) years of age, is the will
valid?
Yes.
Pointers:
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5. The fact that the testator is under act, does not invalidate his will, on the
the immediate influence of ground of lack of testamentary
intoxicating liquor or drugs at the capacity, provided he meets the three
time he performs the testamentary (3) requirements.
6. An insane delusion, which will render proper objects of his bounty, and the
one incapable of making a will, may character of the testamentary act.
be defined as a belief in things,
which do not exist, and which, no *Soundness of mind is the ability of the
rational mind would believe to exist. testator mentally to understand in a general
way, the nature and extent of his property, his
7. A belief in spiritualism is not itself a relation to those who naturally have a claim,
sufficient evidence of testamentary to benefit from his property left by him
incapacity. However, a will executed {proper bounty), and a general
by one under such extraordinary understanding of the practical effect of the
belief in spiritualism, that he follows will as executed {must be aware that his act
blindly and implicitly, the supposed is revocable and must be aware of the effects
direction of the spirits in constructing of his act of making a will).
the will, is not admissible to probate.
Article 798
Article 799
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Suppose X suffered a stroke and part of
his brain was damaged. Can he still be It refers to the character and the testator's
considered to be of sound mind for ownership of what he is giving. Knows the
purposes of executing a will? properties but not necessarily all the details of
the properties.
It depends.
X decided to make a will. He knows he
If the brain damage sustained by X is so has properties in Manila, but he does not
severe, that it deprives him, at the time of know the exact address. Is the
making the will, to know the nature of the disposition valid?
estate to be disposed of, the proper object of
his bounty, and the character of his Yes. Because the law merely requires that the
testamentary act, then, X cannot be testator knows, in a general way the nature
considered to be of sound mind. and the extent of his properties. In this case,
X is of sound mind when he executed the
But is the brain damage sustained by X is not will.
so severe, that at the time of making the will
he is able to know the nature of the estate to X made a will in 1990. He knew he has
be disposed of, the proper object of his money in the bank and house in Manila
bounty and the character of his testamentary but he forgot the specific detail
act, then X can still be considered to be of concerning his properties. Is the will
sound mind. valid?
What are the requisites in order that a Yes. Because X knows the extent of his
testator be considered to be of sound properties in a general way. He is of sound
mind? mind.
The testator must be able, at time of the What does the "proper objects of his
making of the will, to know: bounty" mean?
1. the nature of the estate to be disposed It refers to the testator's relation to those who
of would naturally have a claim or to those who
2. the proper objects of his bounty would benefit from the property left by the
3. the character of his testamentary act testator. In short, it refers to the persons who
for some reason expect to inherit something
What does "nature of estate" mean? from the testator.
Example: testator's children Can a drug addict make a valid will?
Is it necessary that the testator should As a general rule, yes. A drug addict can make
know the beneficiaries of the will? a will as long as he is in his lucid mind and he
complies with the requisites provided for under
nd
As a general rule, yes. Because the law Article 799, 2 paragraph. The exception lies
requires the testator to be aware of the when the effect of drugs are so strong
proper objects of his bounty, except in Article as to render him of unsound mind.
786 which provides that the testator may
designate only a specific class or cause in his Article 800
will, and that the third person shall be
responsible in allocating the specific portion to The law presumes that every person is of
its members. sound mind, in the absence of proof to
the contrary.
What does testator is "able to know the
character of the testamentary act" The burden of proof that the testator was
mean? not of sound mind at the time of making
his dispositions is on the person who
It means that the testator knows that it is opposes the probate of the will; but if the
really a will, that it is a disposition mortis testator, one month, or less, before
causa, that it is essentially revocable. In short, making his will was publicly known to be
the testator must have a general insane, the person who maintains the
understanding of the practical effect of the will validity of the will must prove that the
as executed. testator made it during a lucid interval.
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Under Article 800, the law presumes that 2. if the testator made the will after he
every person is of sound mind, in the had been judicially declared to be
absence of proof to the contrary. What insane, and before such judicial order
are the instances when this presumption has been set aside (Torres vs Lopez,
is inverted? Or what are the instances 48 Phil 772)
when the testator is presumed to be
mentally unsound? 3. if the testator makes a will at the time
he is still under guardianship
There are at least three (3) instances:
What is the reason for the inversion of
1. when the testator, one (1) month or the rule when a person who made the
less, before making his will was will is under guardianship?
publicly known to be insane
A prima facie presumption of mental
*Instead of presumption of mental incapacity, when a person is under
capacity, there is a presumption of guardianship.
mental incapacity. The burden of
proof is shifted to the proponents of If during the probate of the will, there is
the will. a question as to the soundness of mind
of the testator. Oppositors to the will
presented the attending physician.
Whose testimony shall be given weight,
the attending physician or the doctor
who renders the medical speculation?
Attending physician.
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1. idiocy 3. senile dementia
2. imbecility
do not posses the necessary mental capacity validity is determined at the time of the
to make a will since these are absolute and execution of the will.
permanent forms of mental disease or
insanity. Suppose X made a will in 197S when he
was twenty-five (2S) years old. In 1997,
Idiocy refers to those who are mentally he became insane. He died in 1999. Is the
deficient in intellect. will valid?
Imbecility refers to those who are mentally Yes. Subsequent incapacity of the testator does
deficient as a result of a disease. not invalidate a valid will.
Article 801
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How many times can a person make a It has been justly said, that the will of an aged
will? (old) person, should be regarded with
tenderness, provided, that he passes the three
There is no limit as to how many times a (3) tests of possessing a sound mind.
person can make a will, as long as, he has
the capacity to do it. Once a person is Article 802
eighteen (18) years old the law presumes
capacity. So even if the testator is already A married woman may make a will
one hundred without the consent of her husband,
(100) years old the will is still valid, and without the authority of the court.
unless otherwise proven.
Article 803
Does the law prescribe a limit in point
of age by which a person can dispose of A married woman may dispose by will of
his property by will? all her separate property as well as her
share of the conjugal partnership or
No. As long as the testator passes the test of absolute community property.
sound mind, provided under Article 799.
That is, that the testator, at the of the Why is there no provision about married
making of the will, is able to know: men on laws of testamentary capacity
and intent?
1. nature of the estate to be disposed of
2. the proper objects of his bounty Because there is no doubt as to the rights of
3. the character of the testamentary act men in succession. Unlike women due to
the Old Civil Code.
What is the reason why a person
below eighteen (18) years of age is Can a married woman execute her last
incapacitated to make a will? will and testament without the
consent of her husband and without
The law presumes mental incapacity. authority from the court?
Why is a person too old still allowed to Yes. A married woman may execute a will
make a will? without the consent of her husband and
without authority from the court. (Article
802)
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What are the properties which a married
woman may dispose of by will?
Article 805
Article 806
1. ordinary/notarial
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1. to close the door against bad faith and fraud communicated only to him without changing
2. to avoid substitution of wills and any intent therein if he is blind, deaf-mute or
testaments deaf.
3. to guarantee their truth and authenticity
Example: If the testator is an illiterate and
What are the formalities of an he speaks tagalong only, the will must be
in tagalong.
ordinary/notarial will? Article 804 to
Does the aforementioned rule apply also
Article 809 to the witnesses?
What are the formalities of a holographic No. The witnesses need not know the
will? language of the will or attestation clause. This
is the reason why the law requires it to be
Article 810 to Article 814. interpreted to them and not merely
communicated.
Can there be an oral will?
X speaks and understands Tagalog only.
No. Article 804 expressly provides, "every He does not understand a single English
will must be in writing". word. His lawyer, Atty. Sobrang Yabang
wanted to impress X. So, he wrot X's will
X, knowing that he was about to die, in English. However, Atty. Sobrang
dictated in front of a video camera his Yabang translated
last will and testament. Is the will and explained the will "word for word" to
valid? X. Is the will valid?
No. The will is invalid. Article 804 expressly No. Because the law requires that the will shall
provides that every will must be in writing. be written in the language known to the
testator.
What does "language must be known"
mean, as provided for under Article *This rule applies even if the person is
804? blind, deaf, deaf- mute.
It means that the language of the will must In the preceding problem, why is it
ne personally known to the testator whether required to be written in a language
he is illiterate or not. That it will be known to the testator?
Can a will be written in several
Because a will is a personal act concerning a languages?
disposition of one's properties.
Yes. As long as the languages used are known to
What about if the translator is the best the testator.
translator that the world can offer?
When X executed his will, it contained ten
The will is till invalid. No matter how good (10) dispositions. Each of the ten (10)
the translator can be, something may be dispositions was written in different
lost in the process of translation. dialects and languages. X used French,
Spanish, Latin, English, Tagalog, Bikol,
Is it necessary for the validity of the will Cebuano, Waray, Ilonggo and Hiligaynon,
that it is stated, that the will was so that these languages and dialect
executed in a language or dialect known correspond to the aforementioned ten (10)
to the testator? dispositions in the will. Is the will valid?
Yes. As long as it is known to the testator. In the preceding problem, what if X only
knows English?
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Yes. As long as it is entirely written, dated
The will is totally invalid. and signed by the hand of the testator.
Hence, it can be written on any material.
Can the testator make a valid will
using any kind of material? How about if the will is written on a wall?
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*1. Subscription is the manual act of the
testator and also the instrumental witnesses 2.The purpose of the signature as applied to
of affixing their signatures to the the testator are:
instrument.
a. to identify the testator
b. authenticate the document *Generally speaking, the use of any signature
intended by the testator to authenticate the
3.The test of sufficient signature is "if the instrument renders the will sufficiently signed
testator intended it as his signature". by the testator.
Hence, a complete signature is not essential to
4.The testator may use as his signature the the validity of a will, provided that, the part of
following: the name written was affixed to the instrument
with intent to execute it as a will.
a. first name
b. assumed name Can the witnesses sign the will and
c. name different from the one attestation clause with a footmark or a
used to designate him as a thumb mark?
testator in the will
d. name misspelled or abbreviated
e. rubber stampIengraved mark
f. thumb mark
g. cross against his name
Yes.
Yes.
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Yes. As long as the witnesses intended it his signature, he may properly use the
to be his signature. same in signing his will.
Suppose it is not customary used by him? The testator sign at the beginning of the
will. Is the will valid?
Even the law does not provide that he sign
with what he customarily uses as his No. Article 805 provides "every will, other than
signature. a holographic will, must be subscribed at the
end thereof by the testator or by the testator's
Can the testator sign with his thumb name written by some other person in his
mark even if he knows how to write? presence, and by his express direction xxx".
Suppose X signed his will in the middle, is
Yes. the will valid?
Can the testator sign with his foot mark No. Because of the express requirement under
even if he knows how to write? Article 805, which requires the subscription at
the end.
Yes.
*End refers to the logical end of the will,
Can the testator sign with any mark not the will's physical end.
even if he knows how to write?
Logical end is the portion after the last
Yes. testamentary provision.
*Any mark or combination of marks placed X died with a will. When the will was
on a will by the testator as his signature is a presented for probate, it was readily
sufficient compliance with a statute requiring apparent that it was signed in each and
a will to be subscribed by the testator. every page and in the left margin, but
not the end. Should the will be allowed?
It the testator has been in the habit of
using a rubber or engraved dye, in making No. The law requires that the will be subscribed
at the end of the will.
Is it a fatal defect?
1.an act of the senses 1.an act of the hand
Yes.
2.a mental act 2.a mechanical act
Why require that the signature must be
at the end of the will? 3.the purpose is to 3.the purpose is
render available proof identification/ to
The purpose of the requirement is not only to during the probate of identify that it is
show that the testamentary purpose therein the will, not only of really the will of the
expressed is completed, but also to prevent the authenticity of the testator
any opportunity for fraud or interpolations will, but also its due
between the written matter and the execution
signature.
Suppose X executed a notarial will, the
*Another essential requirement for the validity attestation clause of which is in Spanish,
if an ordinary will is the attestation clause. X knows English but not Spanish? Is it a
Absence of this clause will render the will a valid will?
nullity. Therefore it is mandatory.
Yes.
Attestation Subscription Can there be a valid will without an
attestation clause?
None.
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The attestation clause is a declaration made before them and that it has been executed in
by the witnesses, not by the testator. accordance with the formalities prescribed by
What is the purpose in requiring the law.
witnesses to attest and subscribe to the
will? Is the attestation clause part of the will?
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in the attestation clause? Article We witnesses, do hereby certify: (a) that the
will of Mr A consists of five (5) pages
805, paragraph 3. including (b) the page that Mr A executed his
signature and every page thereof in our
Give an example of an attestation clause. presence, (c) that we witnessed the execution
of the will
and signed each and every page thereof, in (b) The will is void without any exceptions even if
the presence of Mr A and each other. the will contains the signature of the witnesses.
(Signatures must follow.) The omission cannot be determined by the
examination of the will itself. Extrinsic evidence
Suppose that the phrase "each and every is inadmissible.
page thereof" was not included. Should
the will be allowed? (c) The will is void. Exception: the doctrine
of liberal interpretation shall be applied, if
Yes. Compliance with the requirement "each there are indeed signature present.
and every page thereof" be signed, may be
proved by the marginal signatures in each and Suppose the attestation clause does not
every page of the will. state the number of pages used, is the will
valid?
Suppose that it is the phrase "in our
presence" which was deleted. Should the General rule: No
will be allowed?
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Exception: Applying the doctrine of liberal
interpretation/ construction, the failure to Five (S) paged will. All pages are not
state in the attestation clause of the number numbered. Is the will valid?
of pages used, is not fatal. Hence, the will
may still be valid, provided, that it can be No. The law provides that all the pages of the
established or deduced from an examination will should be numbered correlatively in
of the will itself, that all the statutory letters.
requirements have been complied with.
Suppose that even if it is not numbered,
*The doctrine of liberal interpretation cannot the total number of pages is stated in
be applied if the omission consists of the the attestation clause?
failure to state that the witnesses and the
testator signed in the presence of one It still remains invalid. The requirement of
another. Reason: this omission cannot be numbering each and every page of the will is
remedied by an examination of the will mandatory.
itself.
Five (S) paged will. Only page 1 (one) is
Can a testator ask a third person to not numbered. Is it a valid will?
sign for him even if he is physically
able to do so? Yes. Because the authenticity of the first page
is easy to determine. It can easily be
Yes. ascertained from the face of the will itself,
that indeed it is the first page. From the face
If the third person is not capacitated, of the will, it is readily ascertainable that the
would the will be allowed? page, which contains the header "Last Will
and Testament" is the first page.
Yes. The will remains to be valid. What is
material is the capacity of the testator, not Suppose that page three (3) was not
that of the third person. numbered, but all the pages were
numbered. Is the will valid?
Why should the third person sign in the
presence of the testator? No. In this case, it would be hard to
determine the authenticity of the said
Because it is the testator himself who is page.
signing. The third person is merely an
extension of the physical self of the testator.
Suppose X executed a five (S) paged will, of a will are written on one {1) sheet only.
but it was numbered not on the upper Neither is it necessary that the pages of the
part, instead, it was numbered on the will be numbered correlatively in letters such
lower part of the page. Is the will valid? as "one, two or three". According to the weight
of authority, substantial compliance with the
Yes. In this case, there is sufficient compliance requirement is sufficient.
with the requirement. The place where the
numbering was made is not fatal to the Can we number the pages in other
validity of the will. manner?
One, Two, Three, Four and so on and so forth. Five (S) paged will. Page five (S) contains
The number must be spelled out. only the attestation clause. Only the
attesting witnesses signed below the
In the preceding problem, what is the attestation. The testator did not sign on
purpose of the requirement? left margin of page five (S). Is the will
valid?
To forestall any attempt to suppress or
substitute any of the pages of the will. This Yes. Attestation is the act of the witnesses alone.
requirement is mandatory. The law does not require that the testator
should sign on the left margin thereof.
*The requirement in the preceding problem is
not necessary when all the dispositive parts
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Five (S) paged will, third page does not Suppose that a four (4) - page will was
contain the signature of the testator on contained in two
the left margin. Is the will valid? (2) sheets. Page two (2), which was at
the back, was not signed. Should the
The will is invalid. Exception: Icasiano vs will be allowed?
Icasiano
No. The law requires that the will must be
Suppose that in a four (4) - paged will signed in each and every page thereof. The
the testator sign at the end and also on law expressly refer to page and not to the
the left margin of each and every page. sheet or leaf or folio.
In page one (1) to three (3), the three (3)
witnesses signed the left margins and *A sheet has two {2) pages, the front and the
the end of the will, but did reverse. If both pages of the sheet or lead are
not sign page four (4). Should the used, it is necessary that both front and
will be allowed? reverse sides should bear the signatures of
the testator and each of the witnesses. In
No. Attestation clause was left unsigned by the other words, every page used in the will
witnesses. should be signed on the left margin.
No. Because the will was not signed in the In the preceding problem, suppose X did
presence of each other. not even allow A, B and C to read the
*The aforementioned problem is different attestation clause. X simply asked them
from the case of Jaboneta vs Gustillo. In this to sign. Is the will valid?
case, the witnesses were in fact leaving the
room but they saw their fellow witnesses No. The instrumental witnesses should read
signing the will. They knew that the paper the attestation clause because it is their act.
X signed the will on January 1. The next under the express direction and presence of the
day, the instrumental witnesses came to testator.
sign the will. Is the will valid?
*Even a fifteen {15) years old person may sign
No. There is no unity of act. in the presence of the testator.
Third person signing in favor of the X executed a will. The will was subscribed
testator - persons signing must be: by writing at the end thereof the name of
X. But X's name was written by Y. Is the
1. under the express direction of the will valid?
testator
2. under the testator's presence Yes. As long as, the name of X was written by Y
in the presence of X and under his express
In this case, it refers not only to the physical direction and is attested and subscribed by
presence of the testator, but the testator three (3) or more credible witnesses in the
must also be conscious and aware of what is presence of the testator and of one another
happening. and such fact was mentioned in the attestation
clause.
Is it necessary that the person signing in
favor of the testator must have a Suppose in the preceding problem, Y
testamentary capacity? omitted the name of X and instead place
his own name. Is the will valid?
No. Because the person's act is merely an
extension of the testator's act. What is No. Because this would no longer be the
material is the capacity of the testator, testator's (X) act. The law requires that the
provided however, that the signing must be name of the testator must be written.
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If one (1) of the three (3) witnesses X authorized his lawyer, Atty. Y, to sign
signed the will in behalf of the testator, his will. However, when Atty. Y was
is the will valid? signing the will, X was sleeping beside
him. Is the will valid?
No. The will is not valid because there is a
conflict between his duty to the testator and No. Because the testator must be conscious
his duty as an attesting witness. This rule that the lawyer was signing the will for him.
applies to the notary public who functions as In this case, although the testator was
an attesting witness or a third person signing present when his lawyer was signing the will,
in behalf of the testator. he was not aware of it. The test of presence
was not satisfied.
Yes. Article 805 provides, " xxx and attested *As a general rule, witnesses in the execution
and subscribed by three (3) or more credible of a will should also acknowledge the will
witnesses xxx". The excess shall only be before a notary public. This is because
considered as a mere surplus but it will not witnesses are also principal participants in the
affect the validity of the will. execution of the will.
No. To allow the notary public to act as Yes. The law does not require simultaneous
one (1) of the three (3) attesting acknowledgment neither does the law require
witnesses would have the effect of that the acknowledgment be made by the
having only two (2) attesting witnesses testator and the witnesses in the presence of
to the will. one another, provided that all of the parties
acknowledge in front of the notary public and
In the preceding problem, are there provided further, that all the parties has the
exceptions? What are they? testamentary capacity at the time of
acknowledgment.
Yes.
*The two {2) immediately preceding problems
1. If there are more than three (3) are the same. The questions were rephrased
witnesses. to as elicit either a negative or positive
answer. But the reasons are the same.
Suppose the testator died before the
will may be acknowledged. Can the will Yes.
be allowed?
In the preceding problem, would there be
No. The will lacks one of the formalities an additional requirement?
required by law - testamentary capacity of
the testator, since, he is already dead. Yes. The same with a blind testator, double
reading requirement.
Article 807
If the testator is illiterate or blind, is it
If the testator be deaf, or a deaf-mute, he permissible that the language of the will
must personally read the will, if able to is not known to him but merely
do so; otherwise, he shall designate two interpreted to him?
persons to read it and communicate to
him, in some practicable manner, the No.
contents thereof.
Even if the interpreter is the best
Article 808 interpreter that the world can offer?
If the testator is blind, the will shall be Yes. Because no matter how good the
read to him twice; once, by one of the interpreter is, somehow, something may be
subscribing witnesses, and again, by the lost in the process of translation.
notary public before whom the will is
acknowledged. How many times should a will read to a
blind person?
Can an illiterate person make a notarial
will?
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Twice. Exception: if he understands the moments as to prevent fraud. This is the
contents thereof on the first reading purpose of the communication.
(Alvarado vs Gaviola).
X, a blind person, had the will read by his
This aforementioned rule applies if a person three (3) witnesses at separate
is illiterate because under the law, he is in moments. The next day, he went to the
the same condition as a blind person. He notary public, stating that there is no
does not know what the symbol on the will need for the latter to read the will for
stands for. him. Is the waiver of this rule valid?
Is it necessary that the reading of the No. The testator cannot waive the rule
will to the blind be simultaneous? provided by law because the right to make a
will is merely a statutory right regulated by
No. This will just confuse the blind person. The law. It is a privilege to be complied with.
communication of the contents must be at
separate *Substantial Compliance Rule may apply, but
it shall apply only if the circumstances fall
under the case of Alvarado vs Gaviola:
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Moreover, the notary public and the three {3)
instrumental witnesses, likewise, read the will
and the codicil, albeit silently. With four {4)
persons following the reading word for word
with their own copies, it can be safely
concluded that the testator was reasonably
assured that what read to him were the terms
actually appearing on the typewritten
documents.
Article 809
A person may execute a holographic will In the probate of a holographic will, it shall
which must be entirely written, dated, be necessary that at least one witness
and signed by the hand of the testator who knows the handwriting and signature
himself. It is subject to no other form, of the testator explicitly declare that the
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will and the signature are in the How would you compare the advantages
handwriting of the testator. and disadvantages between a
If the will is contested, at least three of holographic will and a notarial will?
such witnesses shall be required.
The answer us found just after this problem.
In the absence of any competent
witness referred to in the preceding What are the advantages of a holographic
paragraph, and if the court deem it will?
necessary, expert testimony may be
resorted to. I. 1. easier to make
2.easier to revise
Article 812 3.easier to keep a secret
What are the formalities of a holographic Personally, I will make a holographic will.
will?
1. easier to make
1. the will must entirely written by the 2. easier to revise
hand of the testator himself 3. easier to keep a secret
4. no witnesses are required
2. the will must be entirely dated by 5. no marginal signatures on the
the hand of the testator himself pages are required
6. no acknowledgment is required
3. the will must be entirely signed by
the hand of the testator himself *You can answer a notarial will and state your
own reason. You may cite the disadvantsges of
4. the will must be executed in a a holographic will.
language or dialect known to the
testator May an illiterate person executed a
holographic will?
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No. Because it is not the product of his
independent thinking.
What if the testator uses his foot to No. The will is not valid. The law expressly
write? Is the will valid? provides that it must be entirely written by the
hand of the testator himself.
It is valid. As long as the testator has found an
effective substitute for his hands, so that he *The word entirely modifies not only the word
can still write, there is no reason why he written but also the words dated and signed.
cannot execute a holographic will. The purpose of the law is obvious. In addition to
insuring and safeguarding the
What about a blind person, can he
execute a holographic will?
Yes.
Yes.
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authenticity of the holographic will, it will
also serve to deter or prevent any possible *Jurado says otherwise.
insertion or interpolation by others or any
possible forgery. Should a holographic will be witnessed?
Where should the testator sign the No. It need not be witnessed. The presence of
holographic will? witnesses, however, will not render the will
invalid. Witnesses shall be merely considered
The law does not specifically require the as surplus.
place, where the signature be placed.
However, it is logical to place it at the end What is the rule on the date of a
thereof. holographic will?
*Tolentino: We believe that under the law General Rule: the month, day and year must
the signature must be at the end of the will. be stated, to avoid conflict between other
This can be inferred from Article 812 by the holographic wills.
reference to dispositions written below his
signature. This phrase implies that the Exception: The Supreme Court did not
signature is at the end of the will and any follow this rule in Roxas vs De Jesus. There
dispositions below it must further be signed was no exact date of the day in the will.
and dated.
*The ruling in Roxas vs De Jesus has been
Can the testator sign with his thumb criticized
mark? because it gives rise to problems if there are
two {2) wills. If it happens:
Yes. In the law of succession, signature
denotes a sign, token or emblem and what 1. it cannot be determined which of the
that shall be depends upon the custom of two wills, should govern
the time and place, and on the habit or whim
of the individual. 2. there is no means to determine if the
testator has the testamentary
The material thing is that, the testator capacity at the time of the execution
made the mark to authenticate the writing of the will
as his will and whatever he puts on it for
that purpose, will suffice. Where must the date be placed?
The law does not provide for the place where was incapacitated during the execution of the
the date must be placed. Hence, the date first will and capacitated during the execution
may be placed at the end or at the beginning of the second will.
of the will, or in the body thereof, although its
normal location should be after his signature. Must the date be in month, day and year?
date, is it valid? No. The law Roxas vs de Jesus, 134 SCRA 24S
requires that it must be dated. If a FACTS: Generally, the date must be in month,
day and year. But in this case, the SC allowed
notarial will has no date, is it the date
{FebruaryI61).
valid?
Navarro's Opinion: Conflicts may arise if such
Yes. date is allowed because what if two {2) wills
are made and dated
Why is a date necessary in a holographic {FebruaryI16), which should prevail.
will, but not in a notarial will?
Suppose that the testator used the page of
In a notarial will, it would still be dated in its his diary/planner, which already has a
notarial acknowledgment while in a date? Is the will valid?
holographic will, the date is necessary
because the testator may make more than
one will and it might happen that the testator
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No. Because the law provides that it must Suppose the testator wrote "the day
be entirely dated by the hand of the when my boyfriend and I broke up", is
testator himself. the will valid?
*The doctrine of liberal interpretation and No. In this case, the exact date cannot be
substantial compliance as applied to ordinary determined. Confusion will follow as to which
or notarial wills cannot be applied to boyfriend, and in case of multiple break-ups,
holographic wills. in what instance.
Yes. Because although Easter Sunday is a No. Because an illiterate is a no read, no write
changeable date, the exact date can still be person. This rule applies even if he orders
determined. another person to execute the will or write the
will while copying.
*Tolentino says:
No.
The law regards the document itself as a 1.dated but not signed - several subsequent
material proof of authenticity and as its own disposition under the signature of the testator
safeguard, since, it could at any time, be in a holographic will which are not signed but
demonstrated to be or not to be, in the hand of dated are void. The fact that the last
the testator himself. disposition was signed and dated does not cure
the
Suppose that a photocopy was
presented, should the will be allowed?
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defect because the presence of the date
renders the will void on separate dates and In a holographic will, only the first
not in its entirety. disposition was dated, but the second
disposition was both dated and signed by
Each disposition precludes the other the testator. What is the effect?
because it is the fact that they were not
executed simultaneously. In this case, the The first disposition is void.
last disposition is valid.
*Article 813 does not apply because Article
2.signed but not dated. Article 813 applies 813 refers to preceding dispositions which are
only for dispositions that are signed but not signed but not dated. Suppose a prior
dated because the presumption is that they disposition was unsigned and undated,
were executed entirely and not on separate and the next disposition was signed and
dates. dated by the testator, what is the effect.
3. if made after the execution of the *Dean Navarro's opinion: To certain extent, the
will and validated by the testator aforementioned creates absurdity, considering
by his signature thereon, it the fact that the authentication execution of
becomes part of the will, and the will is certainly more important than the
therefore, the entire will becomes void, authentication of a mere insertion, cancellation,
because of the failure to comply with erasure or alteration.
the requirement that it must be
entirely written by the hand of the
testator
Why is there a need for authentication?
4. if made contemporaneously/
simultaneously with the execution Because with respect to insertions on
of the will, then the will is void holographic will, fraud can easily be committed.
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The insertions become part of the will and
X executed a holographic will. thereon, the entire will becomes void.
Thereafter, Y surreptitiously made an Because of the failure to comply with the
insertion thereon. What is the effect? requirements that it must be entirely written
by the hand of the testators.
The insertion made by Y will not considered
written. The will remains valid. While X was midway writing his will, Y
arrived. Seeing X getting tired of writing
After X has executed the will, Y the will, Y volunteered to write it, with
approached X and asked him if he can dictations from X. What is the effect?
make some insertions on the will. Y said
"Okey, be my guest!". What is the The whole will is void because it is not entirely
effect? written by the hand of the testator.
The will remains valid, but the insertions are Suppose the will was altered without the
void. Although X has consented to the full signature, is the whole will void?
insertion.
No. Only the alteration is void. However, if
In the preceding problem, what if X has what was altered was the dated or the
affixed his signature to the insertions? signature, the alteration without the full
What is the effect? signature makes the whole will void.
{A) January 3,
Maria Jose.
{B)
{C)
January 3,
Maria.
Yes.
Holographic will
January 3,
1995 Clara
I give everything to Maria. {Thereafter, the
name Maria was altered and the name Clara
was written, but the testator did not affixed
his full signature.)
A will made in the Philippines by a *As a general rule, the formal validity of a will
citizen or subject of another country, shall be governed by the law of the country in
which is executed in accordance with which it is executed. This rule is expressed in
the law of the country of which he is a the first paragraph of Article 17 which
citizen or subject, and which might be provides that "the forms and solemnities of
proved and allowed by the law of his contracts, wills and other public instruments
own country, shall have the same effect shall be governed by the laws of the country
as if executed according to the laws of in which they are executed". This rule
the Philippines. however, is reiterated or supplemented by
the provisions of Article 815 to 819 as
Article 818 discussed hereunder.
Illustration:
Is the above illustrated will valid? In the preceding problem, what about if
the will ofWill
Last the and
wifeTestament
is written at
of the back
Mr. X
Yes. The wills of the husband and the wife are page, while that of the husband is on the
easily identifiable from each other. They made front page, is it valid?
Provisions and dispositions, etc
separate wills and not a joint one. ...........................
Yes. There are two (2) separate wills.
.....
* The illustration above shows two {2) wills
...........................
which are both complete in themselves. What are the reasons why joint will are
.....
prohibited?
There are really two {2) separate ... ........................
instruments, which are independent of each .....
1. To allow as much as possible,
other. secrecy. A will being a purely
personal act. (Sgd) Mr.X (husband)
Reciprocal wills between husband and wife
are valid as long as they are not made jointly. 2. To prevent undue influence by the
This is true even if the same witnesses are Last Willaggressive
more and Testament
testatorof
onMrs.
the Y
used. other.
Provisions and dispositions, etc
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2. The will should not be allowed by
3. In case of death of the testators at reason of public policy.
different times, probate would be
harder. *By public policy, it means, if joint wills are
prohibited in the Philippines, then any joint
4. To protect the right of the testator to will executed here must not be allowed
revoke his will at any time. probate even if it is executed by foreigners.
5. In case of husband and wife, one Under Article 819, joint wills executed by
may be tempted to hasten the Filipinos in a foreign country shall not be valid
life of the other. in the Philippines, even though authorized by
the laws of the country where they may have
*Reciprocal wills between husband and wife, been executed. This rule is an exception to
as long as not made jointly, are valid {Araneta the rule stated in Article 815 which provides
vs Rodriguez). This is true even if the same "when a Filipino is in a foreign country, he is
witnesses are used. authorized to make a will in a forms
established by the law of the country in which
H and w are Argentinian citizens. Joint he may be. Such will, may be probated in the
wills are allowed and valid in their Philippines. The rule under Article 819 is in
country. They executed a joint will in conformity with provisions of the third
Argentina. Is the will valid here in the paragraph of Article 17 which states:
Philippines? "Prohibitive laws concerning persons, their
acts or property and those which have for
Yes. The prohibition on joint wills does not their object public order, public policy and
apply to foreigners. good custom shall not be rendered ineffective
by laws or judgments promulgated or by the
In the preceding problem, what if they determinations or conventions agreed upon in
executed the will here in the foreign country".
Philippines? Should the will be allowed
probate in the Philippines? H is married to W. H is Filipino while W is
a foreigner. Suppose that while W's
There are two (2) views: country which permits joint wills, the
couple executed a joint will. What is the
1. It should be allowed because status of the will?
prohibition on joint wills does not apply
to foreigners. The will as it pertains to H is void but valid as
it pertains to W.
1. order of succession
2. amount of successional rights
3. capacity to succeed
4. intrinsic validity
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regardless of the country wherein said
property may be found. Miciano vs Brimo, S0 Phil 867
Article 1039 : Capacity to succeed is FACTS: The deceased was a Turkish subject,
governed by the law of the nation of the but disposed that his property should be
decedent. distributed according to
Philippine laws. He named legatees, including such will, such devise or legacy shall, so
oppositors Brimo, on condition that they far only as concerns such person, or
should respect the testator;s will, as to the spouse, or parent, or child of such person,
manner that his property will be distributed. or any one claiming under such person or
spouse, or parent, or child, be void, unless
HELD: If this condition as it is expressed where there are three other competent
legal and valid, any legatee who fails to witnesses to such will. However, such
comply with it, as herein oppositor has done, person so attesting shall be admitted as a
who by his attitude in this proceeding has not witness as if such devise or legacy had
respected the will of the testator, as expressed, not been made or given.
is prevented from receiving his legacy. The
fact however is that, the said condition is void, Article
being contrary to law because it ignores the 824
testator's national law.
A mere charge on the estate of the
Article 820 to testator for the payment of debts due at
Article 824 the time of the testator's death does not
Witnesses to prevent his creditors from being
Wills competent witnesses to his will.
Article
821
Article
822
Article
823
1. any person not domiciled in the Is it necessary that the witnesses must
Philippines know the contents of the will?
2. those who have been convicted of
falsification of a document, perjury or No. The law does not require it. All that the law
false testimony requires is that, they must attests and
3. any person who is not of sound mind subscribe the will in the presence of the
4. any person less than eighteen (18) testator and of one another. To attest and
years old subscribe do not mean that they must read
5. any person who is blind, deaf or dumb the will or comprehend the contents thereof.
6. any person who cannot read and write Hence, even if the will is written in a dialect or
language unknown to them, the requirements
of the law are still complied with.
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What are the reasons why a person not Suppose that at the time of the execution
domiciled in the Philippines and a of the will, there were (3) witnesses, one
convict are disqualified as witnesses of of whom is already accused of perjury.
the will? Subsequently, he was convicted two (2)
years after the execution of the will. Can
A person not domiciled in the Philippines will the will be allowed?
practically be useless during the probate
proceeding. While a person convicted of
falsification of a document, perjury and false
testimony is unworthy of credence. The latter
are not considered as credible witnesses.
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Yes. The conviction happened two (2) years
after the execution of the will. Capacity is Suppose in the preceding problem, A was
determined at the time the will is executed. convicted in the RTC for falsification of
documents. But his case was still
Suppose that at the time of the execution pending execution. May he still qualify as
of the will, one a witness?
(1) of the witnesses was already
convicted, but was subsequently Yes. Conviction must be by final judgment in
acquitted on appeal. Can the will be order that a person may be disqualified from
valid? being a witness to the will. Hence, considering
that A's case or conviction is still pending
Yes. As there was no final conviction yet. execution, there is yet, no final judgment to
speak of.
*Conviction must be by final judgment in
order to be disqualified as witness. Suppose after becoming a witness to
the will, A was subsequently convicted
Only three {3) crimes have been mentioned: by final judgment, what is the effect?
falsification of a document, perjury and false
testimony. Conviction of any other crime is The will is still valid. The subsequent
not a disqualification. incompetence of A to become a witness to
the will did not affect the validity of the will.
When X executed his will, one (1) of
the three (3) witnesses was A who was Suppose in the preceding problem, B was
only seventeen (17) years old. Two (2) actually convicted by final judgment of a
years after, X's will was presented for crime of falsification of documents, but
probate. Should the will be allowed? this fact was unknown to X at the time of
the execution of the will, is the will valid?
No. Because one of the witnesses was only
seventeen (17) years old at the time of the Yes. The will is still valid, provided that C
execution of the will. The supervening exercised all efforts to ascertain the
capacity of A, when he became eighteen competence of B.
(18) years old, will not cure the defect or
validate the will. *Transcriber's Warning: If strict compliance is
required, the will should have been void.
Why is the notary public before whom testimony to be credible, that is worthy of belief
the will was acknowledged disqualified and entitled to credence. It is not mandatory
to be a witness of the said will. that evidence be first established on record
that the witnesses have a good standing in the
It would be absurd for him as a witness to community, or that, they are honest and
acknowledge something before himself as a upright or reputed to be trustworthy and
notary public. The notary public cannot have reliable for a person is presumed to be such
a split personality. unless, the contrary is established. (Gonzales
vs CA, 900 SCRA 183)
What do "credible witness" mean?
Suppose X made a notarial will with A, B
In Gonzales vs CA, credible witness refers to and C as witnesses. In the will, A was
competent witness that posses and have all given a piece of land as a devisee. Is the
the qualifications and none of the will valid?
qualifications provided by law. The courts
have duty to determine the credibility of the Yes. Because there are three (3) credible
witnesses and they cannot do this unless the witnesses, A being one of the.
witnesses are competent.
However, while A is capacitated as a witness, he
Is there a difference between is incapacitated to receive the devise because it
competency and credibility of does not comply with the requirement that it
witnesses? should have three (3) witnesses. In the given
case, only B and C stood as witnesses with
The rule is that the instrumental witnesses in respect to the devise. Hence, the provisions
order to be competent must be shown to regarding said devise should be disregarded, the
have all the qualifications and none of the rest of
disqualifications provided by law and for the
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the will (other provisions and dispositions) are In the preceding problem, may the
valid. witnesses be able to get the device?
Yes. Pointers:
a. the witness
b. the spouse of the witness
c. the parent of the witness
d. the child of the witness
e. anyone claiming the right of
the said witness, spouse,
parent or child (e.g. the
creditor of the witness, if said
creditor has not been paid his
credit)
Articles 825 to Article Article 827
827 Codicils and
Incorporation by Reference If a will, executed as required by this
Code, incorporates into itself by
Article 82S reference any document or paper, such
document or paper shall not be
A codicil is supplement or addition to a considered a part of the will unless the
will, made after the execution of a will following requisites are present:
and annexed to be taken as a part
thereof, by which disposition made in the
(1) The document or paper
original will is explained, added to, or
referred to in the will must be in
altered.
existence at the time of the
Article 826 execution of the will;
In order that a codicil may be effective, (2) The will must clearly describe
it shall be executed as in the case of a and identify the same, stating
will. among other things the
number of pages thereof;
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to the will, but this is no longer necessary;
(3) It must be identified by when they are separate documents, the codicil
clear and satisfactory proof as referring to and ratifying the will may be said
the document or paper to incorporate the will by reference, or to
referred to therein; and republish the will. In order to operate as
republication of the will, it is sufficient that the
(4) It must be signed by the codicil refers to the will in such way as to
testator and the witnesses on leave no doubt as to the identity of that
each and every page, except in instrument. A reference to the will in the
case of voluminous books of codicil constitutes a sufficient identification of
account or inventories. the will.
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*If a codicil is not executed with the
formalities of will, said codicil is void. A valid will can never be revoked, expressly or
impliedly by an invalid codicil.
How do you identify a codicil? As a rule: NO, Article 824 (4), provides "it must
be signed by the testator and the witnesses on
A codicil refers to the original will. If there is each and every page, except in case of
entirely no reference at all, it is considered to voluminous books of account or inventories"
be a new will. From this provision it can be deduced that as a
rule, incorporation by reference may be applied
May a codicil be made before the only on notarial wills.
execution of the will?
Article 827.
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Exception: extrinsic paper takes effect as part of the will
and is admitted as probate of such.
1. If a holographic will happens to
have at least three (3) credible Can a document which is incorporated by
witnesses; and a reference to a will, refer to papers,
2. (Having no witnesses) it refers to a which may be made only in the future?
document entirely written, dated and
signed by the hand of the testator, No. The incorporation will be invalid, but the
there can also be a proper will remains valid. The will must refer to
incorporation by reference. papers which have been made already. It is
not enough to state that it is already in
As regards proof as to the identity of existence.
the document as incorporated, can
evidence aliunde be admitted? Suppose that in 198S, X typed a
document which he intended to be used
Yes. Parole or extrinsic evidence (evidence in the future as his last will and
aliunde). Can be admitted. It is even testament. In 199S, X made a will and
necessary on this situation. incorporated the 198S document. Is
there a valid incorporation?
*Stated generally, the doctrine is that a will
duly executed and witnessed according to No. The 1985 document was a testamentary
statutory requirements, may incorporate provision. So it must be made into a will.
into itself by an appropriate reference a Article 827 refers only to references such as
written paper or document which is in inventory.
existence at the time of the execution of
the will, irrespective of whether such The purpose of incorporation by reference is
document is one executed by the testator or merely for convenience. It cannot be done to
a third person, whether it is in and of itself incorporate testamentary provisions.
a valid instrument, provided that the
document referred to is identified by clear *Article 827 refers to non-testamentary
and satisfactory proof. So incorporated, the dispositions. So, if they are testamentary, one
must use a codicil or a will, not an
incorporation of reference.
Can a will be a document, which is place in this country, when it is in
incorporated in another will? accordance with the provisions of this
Code.
No. The law allows incorporation only if what is Article 830
incorporated in a will, is not in itself a will
(another will so to speak). No will shall be revoked except in the
following cases:
Article 828 to
Article 834
Revocation of (1) By implication of law; or
Wills
(2) By some will, codicil, or
Article 828 other writing executed as
provided in case of wills; or
A will may be revoked by the testator at
any time before his death. Any waiver or (3) By burning, tearing, cancelling, or
restriction of this right is void. obliterating the will with the intention of
revoking it, by the testator himself,
Article 829 or by some other person in his presence,
and by his express direction. If burned,
A revocation done outside the torn, cancelled, or obliterated by some
Philippines, by a person who does not other person, without the express
have his domicile in this country, is valid direction of the testator, the will may still
when it is done according to the law of be established, and the estate distributed
the place where the will was made, or in accordance therewith, if its contents,
according to the law of the place in and due execution, and the fact of its
which the testator had his domicile at unauthorized destruction, cancellation, or
the time; and if the revocation takes
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obliteration are established according to Article 833
the Rules of Court.
A revocation of a will based on a false
Article 831 cause or an illegal cause is null and void
Yes.
1. By implication of law.
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2. By some will, codicil, or other intention of revoking it, by the
writing executed as provided in testator himself, or by some other
case of wills. person in his presence, and by his
express direction.
3. By burning, tearing, cancelling, or
obliterating the will with the
When is there a revocation by acted in bad faith, said marriage shall
implication of law? be void ad initio and all donations by
reason of marriage and testamentary
The revocation is to be implied from certain dispositions made by one in favor of the
changes in the family or domestic relations of other are revoked by operation of law.
the testator, or his property, or one involving 7. Article 50 of the Family Code. In cases
the beneficiaries of the will, from which the of marriages which are declared void
law infers or presumes that he intended a ab initio or annulled by final
change, either total or partial, in the judgment.
disposition of the property.
*In legal separation, a spouse may still inherit
What are the instances of revocation by from the other spouse, unless, found guilty of
implication of law? the legal grounds of legal separation, heIshe is
disqualified from.
1. When there is a decree of legal
separation.
* The intention to revoke must concur with an X made a will in 1998. Thereafter, he
overt act, manifesting the intention. Neither placed the will inside the drawer. In 2001,
destruction without intention nor intention the house of X was razed by fire. The
without destruction would revoke the will. drawer where the will was placed was
also consumed by fire. Obviously, the will
Suppose X made five (S) copies of his perished with it. Is the will revoked?
will and he gave four (4) of them to his
friends for safe keeping. In 198S, he No. Despite the actual and physical destruction
revoked his will by burning it. Is it of the will, there was no valid revocation.
necessary that for the validity of the Because, there was no intent to revoke the will.
revocation, that X retrieve all the Intention and destruction must go hand in hand.
copies of the will? * If the will is contained in an envelope and the
latter was burned without the contents
No. included, the will is not revoked.
X made a will in 1998. In 2001, with an X executed a will and placed it inside an
intent to revoke the will, X threw the envelope. With the will inside the
envelope, he threw the same into a fire.
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However, the only thing burned was the Yes. There was a valid revocation. A very slight
envelope, while the will was kept intact. burn on the paper on which the will was
Later, X died and the will was written will suffice.
discovered. Is the will revoked?
X wanted to revoke his will so he threw
No. To constitute a revocation by burning, the same into the stove, where it would
there must be at least a burned part of the be burned later, if a fire would be lighted
paper on which the will is written, otherwise, on the stove. However, A the son of X,
there is no revocation removed the will from the stove before
the stove was lighted. Is there a
A very slight burn on the paper on which the revocation?
will was written will suffice. In this case, since
the will was intact and was recovered, there No. While there was an intent to revoke, there
is no revocation. never was an overt act of burning.
None.
Yes.
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In the first instance, the will is still valid the intention to tear the will for the fourth
because the subjective phase of the overt time so as to revoke it.
act was not yet completed. It is evident in
the first instance that the testator still has In the second instance, there was already a
completion of the subjective phase of the
overt act.
Dean Navarro: The question must be asked
is: Was the act subjectively complete? If yes, Suppose X dug a place in his yard and
then even if there is a subsequent desistance, buried the will there, is there a valid
there arises a valid revocation. revocation?
Yes.
Notes:
Notes:
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not in fact a will, be erroneously executed in accordance with the formalities
characterized a will, in order to be effective prescribed by law.
as a revoking instrument. Thus, a will may
be revoked by express words of revocation In view of the disallowance, the widow filed a
contained in a deed of trust or in a letter, second petition for the probate of another will
signed by the testator and executed in executed by the deceased on August 17,
accordance with the formalities prescribed 1918. This will was admitted to probate in
by law for the making of the wills. The exact spite of the opposition of the oppositors-
wording of a revocatory writing is not so appellants. The widow is the instituted heiress
important, if the intent to revoke the will is in both wills.
clear from the language used, and the
formalities of execution are observed. The oppositprs contend among others, that the
will of 1918 cannot be given effect because
Only a valid will can revoke a valid will. there is a presumption that the testator, after
executing the will in 1939, and with full
What is the doctrine of independent knowledge of the revocatory clause contained
revocation? in the said will, deliberately destroyed and
revoked the original will of 1918.
Under this doctrine, the established rule is
that, if the testator revokes a will with a HELD: Granting for the sake of argument that
present intention of making a new one the earlier will was voluntarily destroyed by
immediately and as a substitute, and the new the testator after the execution of the will,
will is not made or if made, fails of effect for which revoked the first, could there be any
any reason, it will be presumed that the doubt that said earlier will was destroyed by
testator preferred the old will instead of the testator, in the honest belief, that is was
intestacy, and the old one will be admitted for no longer necessary because he had
probate in the absence of evidence expressly revoked said will in 1939? In other
overcoming the presumption, provided its words, can we not say that the destruction of
contents can be ascertained. the earlier will was but the necessary
consequence of the testator's belief, that the
Vda de Molo vs Molo, 90 Phil 37 revocatory clause contained in the
subsequent will was valid and the latter would
FACTS: After the death of Mariano Molo, his be given effect?
widow filed a second petition for the probate
of a copy of another will executed by the If such is the case, then it is our opinion that
deceased on June 20, 1939. This will was the earlier will can still be admitted to
denied probate on the ground that it was not probate, under the doctrine.
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*False cause or illegal cause must be stated in
the subsequent will that the revocation was In this case, X did not state in the later will that
due to such cause. The purpose is for the revocation was due to his false belief that A
contesting the will. was already dead.
*Under Article 834, the revocation of the will Furthermore, even if the will has been revoked,
where an illegitimate child is acknowledge the instrument still constitute an authentic
by the testator as his natural child, will not instrument within the meaning of Article 278
affect the validity of the recognition or of the Civil Code, which states that
acknowledgment. This rule is logical, "recognition of natural child shall be made in a
considering the fact, that even if the will is record of birth, or in a will, or in a statement
revoked, the instrument still constitutes an before a court of record, or in an authentic
authentic instrument within the meaning of writing.
Article 278 of the Civil Code, which states
that recognition of natural children shall be Article 835 to Article 837
made in the record of birth or in a will or in a Republication and
statement before a court of record or in Revival of Wills
authentic writing.
Article 83S
X executed a will in 198S. In the said
will, he also acknowledged A as his The testator cannot republish, without
illegitimate child. In 199S, X revoked reproducing in a subsequent will, the
his 198S will. What is the effect on dispositions contained in a previous one
the recognition of A as an which is void as to its form.
illegitimate child in 198S will,
considering that the same was Article 836
revoked?
The execution of a codicil referring to a
The recognition of an illegitimate child does previous will has the effect of
not lose its legal effect even though the will republishing the will as modified by the
where it was made should be revoked. codicil.
Article 837 2.It is a constructive republication if the
testator for some reason or another executes a
If after making a will, the testator codicil to his will. (Article 836)
makes a second will expressly revoking
the first, the revocation of the second 3.Revival is the restoration to validity of a
will does not revive the first will, which previously revoked will by operation of law.
can be revived only by another will or
codicil. Republication Revival
Takes place by an act Takes place by
What is republication as applied to wills? of the testator. operation of law.
Corrects extrinsic Restores a revoked will.
It is an act of the testator whereby he and intrinsic
reproduces in a subsequent will the defects.
dispositions contained in a previous will, Suppose that X had made a notarial will
which is void as to its form or executed a in 198S. He made it when he was sixteen
codicil to his will. (16) years old. X executed a codicil in
199S modifying the will of 198S. Would
Notes: With respect to republication: the codicil act as a republication of the
198S will?
1.It is express republication, if the testator
reproduces in a subsequent will, the Yes. Because a referral was made modifying the
dispositions contained in a previous will, 1995 will. Hence, the intrinsic defect has been
which is void as to its form. (Article 835) cured. Article 836 applies.
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Yes. Because there was proof that the codicil No. There is no proof that the whole will was
intends to cure the intrinsic defect, for he reproduced correcting the void provisions.
referred to the 1985 will using the codicil. The latter was merely as codicils.
*Under Article 836, intrinsic defects of the will The 1985 will as void as to its form because it
are cured by mere referral to the codicil. has only two
(2) witnesses and therefore Article 235
Suppose that X made a notarial will in should apply. The testator must reproduce in
198S, but only two a subsequent will the dispositions contained
(3) witnesses were present. In 199S, he in the 1985 will. He cannot merely use a
modified by will by codicil. If he dies, codicil.
should the will be allowed?
Suppose that when X made his will in
198S he was twenty
(20) years old. The will did not contain
an attestation clause. In 199S, he
makes a codicil. Is there a valid
republication?
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but in 2000 he had republished the will, and *Observe that under Article 793, had the
by that time (2000), X had original will been valid, and no republication
already five (5) cars. How many cars will F was made, F could get two {2) cars, even if
get? F will get all the cars. by the time of X's death, the latter already
had
five {5) cars, unless, there was an express therefore Article 83S applies); or the will
contrary provision in the will. is void as to its form (and therefore Article
836 applies)?
When X made a notarial will in 1999,
there were only two Paras: Article 835 refers to such things or
(2) witnesses (it is clear that the will is defects covered by Article 805 like defects in
valid or invalid). In 2001, she modified the number of witnesses, lack of or fatal
the 1999 will by a codicil. She died in defects in the attestation, lack of
2002. Can the will be allowed? acknowledgement, etc. Therefore, if these
defects are present, Article 835 applies.
No. Because there was no proof that the whole
will was reproduced, correcting the void On the other hand, it is submitted that Article
provision of the 1999 will. The latter 836 will apply if the will was invalid due to:
instrument was merely a codicil. Article 835
applies, not Article 836. Republication a. fraud or force
(implied) by mere reference to a previous will,
as contemplated by Article 836, is not
sufficient because the will was void as to its
form. Therefore, republication by reproduction
or re- execution (Article 835) of the
dispositions contained in the previous will
must be made.
b. The old will is republished as of the Where the second will expressly revokes the
date of the codicil, and makes it first will; the first will is not revived by the
speak, as it were, from the new and revocation of the second will, unless, such
later date. revival is provided in another will or codicil.
c. A will republished by a codicil is Basis: This is based on the theory that the
governed by a statute enacted revoking clause in the second will is not
subsequent to the execution of the testamentary in character, but operates to
will, but which was operative when revoke the first will instant upon the execution
the codicil was executed. of the second will containing the revocatory
clause.
Hence, the revocation of the second will does death, this recovery intent is, for legal purposes,
not revive the first will, which has already as though it had never been and the first will,
become a nullity. being cancelled, takes effect.
2.Implied Revocation
Give examples of revival?
Where there is merely an inconsistency
between the two 1. While omission of a compulsory heir in
(2) wills, but there is no revoking clause; it has the institution of heirs annuls the
been held in common law, that upon the institution, still if he omitted heir dies
destruction of the second will, the first was ahead of the testator, the institution is
automatically revived, regardless of the revived, without prejudiced to the right
intention of the testator, provided, the first will of representation.
has been preserved undestroyed and
uncancelled. 2. If after the making of the will, the
testator makes a will impliedly revoking
Basis: It is based on the ground that while the the first, the revocation of the second
inconsistent provisions of the second will, will revives the first will
clearly manifest an intention on the part of {Implication from Article 837).
the testator to revoke the prior will, yet this
intent, purely testamentary in character, can X made three (3) wills. Will No 2 expressly
have no effect until the death of the testator, revoked Will No 1. Will No 3 revoked Will
and, if the instrument containing it is No 2. Is will No 1 revived?
destroyed before the testator's
No. By express provision of Article 837. The rule
is based on the principle that the revocatory
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clause of the second will takes effect *Apparently, the reason is the fact that an
immediately or at the instant the revoking will implied revocation is ambulatory {these
is made. provisions do not revoke the other provisions
instantly. They take effect only after death),
This is the principle of instanter. Thus, we say, the inconsistency being truly and actually
the clause revoked the first will that contains apparent only mortis causa, when the
said clause, In other words, the theory is that properties are distributed.
death does not have to come before giving
effect to a revocatory clause. Stated Does implied revocation take effect
otherwise, while a will is a disposition mortis during the lifetime of the testator?
causa, an express revocation takes effect
inter vivos. No. Because the revoking clause are
testamentary in character. They merely
X made a will in 1990 and in 199S with provide inconsistency between the two wills,
inconsistent provisions, and therefore, but they do not expressly revoke the prior will.
the 199S will impliedly revoked the 1990
will. In 2000, X made a will revoking the Suppose that X made a will in 198S and
199S will. Is the 1990 will revived? in 1990, with inconsistent provisions. In
199S, X made a will revoking the 1990
Yes. The 1990 will is revived. This is clear from will. What is the effect of the revocation?
Article 837. Since the Article uses the word
"expressly", it follows, that in case of an The 1985 will is revived. The principle of
implied revocation by the second will, an instanter does not apply because the 1990 will
automatic revival of the first occurs. only impliedly revoked the 1985 will.
Article 838
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wills after the testator's a death shall The Supreme Court shall formulate such
govern. additional Rules of Court as may be
necessary for the allowance of wills on
petition of the testator.
Subject to the right of appeal, the to follow his will to the letter. Should the
allowance of the will, either during the will still be probated?
lifetime of the testator or after his
death, shall be conclusive as to its due Yes. No judicial approval can be given to an
execution. extrajudicial partition based on a will, unless,
the will is first probated,
What is the concept of probate of wills?
*Under our legal system, the probate of a will is
It is a special proceeding for establishing the mandatory.
validity of a will.
Is probate proceedings mandatory?
*Probate may also be identifies as a special
proceeding for the purpose of proving that the Yes.
instrument offered to probate is:
Is there a period to file a petition for The applicability of the statute of limitations
probate? to probate proceedings must be rejected on
the ground, that such proceedings are not
Twenty (20) days under the Rules of Court. established in the interest of the surviving
heirs, but, primarily for the protection of the
Notes: testator's expressed wished. That is, it seeks
to uphold the intent of the testator and his
1.Rule 75 Section 02. If the will has been right of ownership.
placed in custody of another person, the
latter must, within twenty
What is the effect of allowance of the execution and validity, and is also conclusive
will? that the testator was of sound mind and
disposing mind at the time when he executed
A judgment or decree, which admits the will to the will and was not acting under duress,
probate, is conclusive upon the validity of the menance, fraud or undue influence, and that
will. It is not subject to collateral attack, but the will is genuine and not a forgery.
stands as final, it is not modified, set aside, or
revoked by a direct proceedings or reversed The will in question having been probated by a
on appeal to a higher court. competent court, the law will not admit any
proof to overthrow the legal presumption, that
Mercado vs Santos, 66 Phil 21S it is genuine and not a forgery.
Criminal action will not lie against a forger of a
FACTS: The petitioner filed a petition for the will, which has been duly authorized to
probate of the will of his deceased wife. The probate.
will was duly probated.
Sixteen {16) months after the probate of the
will, the petitioner was prosecuted for When may the allowance of a will be set
falsification or forgery of the will, which was aside?
probated.
Since a proceeding for the probate of a will is
ISSUE: May a crime of forgery lie against a essentially one in rem, a judgment allowing a
person based on will which has been duly will shall be conclusive as to its due execution.
probated?
Consequently, no question as to the validity of
HELD: No. the probate of the will is the will could thereafter be raised, except:
considered as conclusive as to its due 1. By means of an appeal.
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2. within six {6) months after
2. By means of a petition for relief from such order or judgment was
the judgment by reason of fraud, entered
accident, mistake or excusable
negligence. Is the probate of the will by final
judgment prior to that of the codicil
3. By means of a petition to set aside the thereof, a bar to the probate of the
judgment by reason of lack of codicil?
jurisdiction or lack or procedural
process. This question was resolved in the negative by
the Supreme Court in the case of Macam vs
4. By means of an action to annul Gatmaitan.
judgment by reason of extrinsic or
collateral fraud. Is it necessary that the will and the
codicil be probated simultaneously?
*Any petition must be done in the
reglementary period: No. The codicil may be concealed by an
interested party and it may not be
1. within sixty {60) days after the discovered until after the will has already
petitioner learns the judgment or been allowed.
order to be set aside
They may be presented and probated one
after the other, since the purpose of the
probate proceedings is merely to determine
whether or not the will and the codicil meet all
the statutory requirements for their validity,
leaving the validity of their provisions for
further consideration.
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As a general rule, the probate court cannot Nugid vs Nugid, 17 SCRA 449
inquire into the intrinsic validity of the will.
When practical considerations demand that
Exception: if it is to prevent multiplicity of the intrinsic validity of the will be passed
suits. upon, before it is probate, the Court should
meet that issue.
In the case at bar, if the case were to be 1. It is easier for the courts to determine
remanded for probate of the will, nothing will the
be gained. On the contrary, this litigation mental condition of a testator during his
would be protracted. And for aught that lifetime, than after his death.
appears in the record, in the event of probate
or if the 2. Fraud, intimidation and undue
court rejects the will, probability exists that influence are minimized.
the case will come up once before us on the
same issue of the intrinsic validity or nullity 3. If a will does not comply with the
of the will. Result: waste of time, effort, requirements provided by law, it may
expense, plus added anxiety. be corrected at once.
Do you think the Court would have ruled In a will, a husband appointed his wife as
otherwise, if besides the institution of guardian of his children's properties. In
an heir, there were also legatees and the probate order, may the court pass
devisees? upon the validity of the appointment?
Ante Mortem.
Why?
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No. For this does not concern the extrinsic
validity of the will. A holographic will was destroyed without
authority. Can these be probated under
X made a will instituting A as a Article 839?
universal heir. But he a B, one
thousand (1,000). He gave one (1) General rule: No.
hectare lot to C. But, he did not give
anything to his son S. Can the court Exceptions:
inquire into the intrinsic validity of
testamentary provisions of X's will? 1. If there is a photocopy/Xerox of the will.
No. The court cannot inquire into the 2. Testimony of the testator.
intrinsic validity of the testamentary
provisions. Mere moderate entreaties on What if the will is notarial will? Can it be
the part of the testator, or the fact that the probated under Article 839, if it was
heirs are omitted does not result into an destroyed or lost?
undue influence that the will justify an
inquiry into the intrinsic validity of the will. Yes. Because there are solemnities designed
to prove the will, whenever it is lost or
Revocation Disallowance destroyed, such as, witnesses, notary public
Voluntary act of Given by judicial order. and parole evidence.
the testator.
With or without cause Must always be for a What are the requisites before a will can
legal cause. be allowed if it was destroyed or lost?
Maybe partial or total. As a rule: always total
1. contents must be proven
(except, when the
ground of fraud or
2. due execution must be proven
undue influence for
example, affects only
certain portions of the 3. unauthorized destruction must be proven
Article 839 (6) If the testator acted by
mistake or did not intend that the
The will shall be disallowed in any of the instrument he signed should be
following cases: his will at the time of affixing his
signature thereto.
(1) If the formalities
required by law have What are the grounds for disallowance of a
not been complied will?
with;
Article 839.
(2) If the testator was insane, or
*The grounds given in Article 839 are exclusive.
otherwise mentally incapable of
Thus, no other grounds can serve as to disallow
making a will, at the time
a will.
of its execution;
If at the time of the execution of the will,
(3) If it was executed through the signature was procured by fraud and
force or under duress, or the such fraud came not from the heir, but
influence of fear, or threats; from a third person, should the will be
allowed?
(4) If it was procured by undue
and improper pressure and No. The law does not make a distinction as to
influence, on the part of the the who the author of the fraud is.
beneficiary or of some other
person; Undue Influence?
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*In Pascual vs CA, the court held that undue 4. the burden is on the person
influence must: asserting the existence of
undue influence
1. destroy the free agency of the testator
5. not merely a moderate
2. it must be substantial based on solicitations to the testator
evidence
Intimidation?
3. it must not be a mere conjecture
There is intimidation when the testator is
compelled by a reasonable and well-grounded
fear of an imminent and grave evil upon his
person or property, upon the person or
property of his spouse, descendants or
ascendants to execute the will.
Fraud?
Violence?
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ISSUE: Is there an undue influence? HELD: No. As a matter of fact, the quarrel
gives the reason for their being excluded from
the inheritance.
Can a fraud and undue influence co- the absence of any element of undue influence.
exist? Moreover, to invalidate a will, it must have
affected the testator in the very act of making
As a general rule, they cannot co-exist his will and at the time the will was executed.
because they are repugnant to each other.
Fraud in the sense of deceit is a ground of
contest separate and distinct from undue
influence.
Notes:
What are the requisites for a valid 4. A conceived child may be instituted,
institution? if the conditions in Articles 40 and
41 are present (Article 1025).
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Article 841 while the remainder shall pass to the legal
heirs in accordance with the law of intestate
A will shall be valid even though it succession.
should not contain an institution of an
heir, or such institution should not A will, unless otherwise defective is valid even if:
comprise the entire estate, and even
though the person so instituted should a. There is no institution of heirs.
not accept the inheritance or should
be incapacitated to succeed. b. The instituted heir is given only a
portion of the estate. {Reason: mixed
succession is allowed. See Escuin vs
In such cases the testamentary Escuin, 11 Phil 839).
dispositions made in accordance
with law shall be complied with and c. The heir instituted should
the remainder of the estate shall repudiate or be incapacited to
pass to the legal heirs. inherit.
What is the effect if the will does not Would it be advantageous if there is an
contain an institution of heir? institution of an heir?
The rule under Article 841 is that, the will Yes. It lessens and prevents the effects of
is still valid although it may not contain intestacy by giving to those persons who are
an institution of heir. close to the testator, but cannot inherit
legally.
*Refer this to the immediately preceding
problem. *The concept of an heir as the continuation of
the personality of the testator has
The same is true in case of a partial disappeared. An heir is now in the same
institution or in case of a vacancy in the position as the legatee or devisee, in the
inheritance due to repudiation or incapacity. succession. As such, the institution of heirs
The effect in all of these cases is that the should be understood as applicable to the
testamentary dispositions, which are made in designation of legatees and devisees.
accordance with the law, shall be complied,
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Article 842 Article 844
Article
843
If among persons having the same Yes. If intrinsic and extrinsic evidence can
names and surnames, there is a prove which artists the testator were referring
similarity of circumstances in such a to.
way that, even with the use of the
other proof, the person instituted No. If intrinsic and extrinsic evidence cannot
cannot be identified, none of them shall prove which artists the testator were
be an heir. referring to. In this case, no one will inherit
and intestate succession shall apply.
*Article 843 is not mandatory. The
designation may be made in any form, so as What is the effect if there is doubt as to
long as, there will be no doubt as to the the institution of the heir?
identity of the heir or heirs instituted.
Nobody will inherit and intestate succession shall
Is the first name and the last name apply.
needed in the institution of the heir?
X executed a will, stating: "to my friend,
Generally, yes. However, the first name or Ronald, who is taking up law in SBC". It
the last name may be omitted as long as turned out that there are two (2) Ronalds
they are determinable by other taking up law studies in SBC and both
circumstances. friends of
X. Who will inherit?
Suppose X stated in his will: "I hereby The one which the intrinsic or extrinsic evidence
institute as heir to the free portion of will refer.
my estate the incumbent rector of SBC
at the time of my death." Is the In the preceding problem, what about
institution valid? if there is uncertainty as to the real
heir?
Yes. Because the heir can be determined with
certainty. Nobody will inherit.
In the preceding problem, why not give 2. If there has been an error with
each other Yi of the inheritance? respect to the name, surname or
circumstances of the instituted heir.
This is not possible because only one was
intended by the testator to inherit. To divide 3. If the name, surname and
the inheritance would be to frustrate to the circumstances of the instituted heir
testator's intention. Moreover, we would be are the same as those of other
giving something to a person which the persons.
testator intended to give nothing.
4. If an unknown or uncertain person
*The provisions of Article 843 and 844 should has been instituted.
be applied in relation to provision of Article
789. From these provisions, it is clear that Article 84S
the proper test in order to determine the
validity of an institution of her is the Every disposition in favor of an unknown
possibility of finally ascertaining the identity person shall be void, unless by some
of the instituted heir, either by extrinsic or event or circumstance his identity
intrinsic evidence. This test is specially becomes certain. However, a disposition in
applicable on the following cases: favor of a definite class or group of
persons shall be valid.
1. If the name and surname of the
instituted heir has been omitted by What is a person incieria (unknown
the testator. person)?
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A person incieria (unknown person) is one who But three (3) months before the death of
is not determined or individualized and X, SBC was totally destroyed by an
therefore, cannot be identified. earthquake. Is the provision still valid?
*Under Article 845 a disposition in favor of No. Because the unknown person can no
such person shall be void unless by some longer be determined.
event or circumstance his identity becomes
certain. *It is clear that before the disposition can be
considered valid, it is indispensable that the
X stated in his will, "I will give P100.00 to identity of the beneficiary can be ascertained,
the person who will graduate either by a past, present or future event or
valedictorian of SBC Law, after my circumstance. It must, however, be noted that
death." Is the provision valid? this
requisite is predicated on the fact that the
Yes. Because it refers to an unknown person beneficiary must be in existence at the time
who can be determined by an event or of the testator's death.
circumstance. In this case, the person is Otherwise, even if it would be possible to
already existing but not yet determined. determine his identity by some event or
circumstance, the disposition would still be
ineffective on the ground of absolute
incapacity.
Article 846
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Suppose that it is stated in X's will, "I B = P30,000.00
give A and B and C my entire estate as D = P30,000.00
my heirs". The net value of such estate E = P30,000.00
is P120,000.00. How much is each
entitled? P120,000.00
A = P40,000.00
B = P40,000.00
C = P40,000.00
P120.000.00
A = P60,000.00 as compulsory
heir
P20,000.00 as voluntary
heir B = P20,000.00 as voluntary
heir C = P20,000.00 as voluntary
heir
P120,000.00
Article
847
A = P30,000.00
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Article 848 A and his five (5) children as his heirs with
respect to the disposable free portion of the
If the testator should institute his inheritance, it is clear that such disposable
brothers and sisters, and he has free portion shall be divided equally among A
some of full blood and others of half and the five (5) children.
blood, the inheritance shall be Take note that the disposition refers to the
distributed equally unless a different disposable free portion.
intention appears.
Testator said in his will "I hereby give my
Article 849 entire estate to C and his children D and
E". Net estate is P120,000.00.
When the testator calls to the How much is each entitled?
succession a person and his children
they are all deemed to have been C = P40,000.00
instituted simultaneously and not D = P40,000.00
successively. E = P40,000.00
Notes: P120,000.00
1.Article 847 deals on individual and *Rule: If the shares of some heirs are
collective institutions. The rule is in the designated, while those of others are not
absence of a more specific designation, the those parts designated shall be given to
law presumes that those who are their owners and the balance shall be
collectively designated shall be considered divided equally among those whose shares
as individually instituted in accordance with are not designed.
the presumed will of the testator.
Testator said in his will, "I hereby
2.Under Article 849, whenever the testator institute A,B,C and D as my heirs. I
institutes as his heir a certain person and hereby order that Yi of my estate would
his children, such institution must be be given to A and U of my estate to B.
interpreted to mean, that they are called to The net value of the estate is
succession simultaneously and not P120,000.00". How much is each
successively. Thus, of the testator institutes entitled?
A = (1/2 of P60,000.
B P120,000.00)
=(1/4 of 00
P30,000.
C P120,000.00)
= 00
P15,000.
D = 00
P15,000.
00
*Rule: If the shares of those whose portions things from only a portion of the estate, the
are designated should consume the entire institution must be considered as without the
estate, those whose shares are not designated designation of shares and the heirs will divide
will inherit nothing. the estate equally, but the value of the specific
things assigned to each must be included in
Testator said in his will "I hereby the amount that should pertain to each.
institute A,B,C and D as my heir. A would
receive Yi of my estate, B U and C U." Article 848 provides "if the testator should
The net value of the estate is institute his brothers and sisters and he has
P120,000.00. How much each is entitled some full blood and others of half blood, the
to? inheritance shall be distributed equally unless a
different intention appears."
A =(1/2 of P120,000.00)
P60,000.00 B =(1/4 of Incase of intestate succession, however, should
P120,000.00) brothers and sisters of the full blood survive
P30,000.00 C =(1/4 of together with brothers and sisters of the half
P120.000.00) blood, the former shall be entitled to a share
P30,000.00 double than that of the latter {Article 1006).
D gets nothing
Article 8S0
*Rule: Where there is no designation of
shares but the testator has provided that The statement of a false cause for the
specific things be given to each heir and such institution of an heir shall be considered
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as not written, unless it appears from testator knows that Ms F is not a surgeon but
the will that the testator would not have an embalmer. In short, the testator knows the
made such institution if he had known falsity of the cause when he instituted Ms F as
the falsity of such cause. an heir, yet he instituted Ms F as an heir
(Article 850). Sabi nga nila, in this case, just
Article 850 provides, "the statement of a false ignore the false cause.
cause for
the institution of an heir shall be considered as Testator said, "I hereby institute Dr A to
not written, unless it appears from the will Yi of my entire free portion because he
that the testator would not have made such save my life by operating on me." It
institution if he had known the falsity of such turned out that it was not Dr A who
cause". operated on him. Is this valid?
Consequently, if the validity of an institution of
heir is attacked on the ground that it is based No. Because it is the fact of saving the
on a false cause, it is clear that the test which testator's life that the testator instituted Dr A
must be applied in order to resolve the as an heir. There was a false cause that
question, is to determine from the will itself appeared in the face of the will itself.
whether or not the testator would not have
made the institution he had known the falsity Testator said, "I give Yi of my estate to
of such cause. Dr A". He thought it was Dr A who saved
his life but he did not state this in the
Testator said, "I institute my best friend, will. Is this valid?
Ms F, as heir of the Yi free portion of my
estate because she is a brilliant Yes. Because there was no proof of false cause.
surgeon". It turned out that she was not The reason for the institution was not
really a surgeon but an embalmer. Is the mentioned in the will.
provision valid?
*Before the institution of heirs may be
Yes. From the fact of the case, it is stated that annulled under Article 850, the following
Ms F is the testator's best friend. So, it can be requisites must concur:
presumed that the
1. the cause for the institution of the
heir must be stated in the will
Article 8S1
Article 8S2
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an aliquot part of the inheritance and
If it was the intention of the testator their aliquot parts together do not cover
that the instituted heirs should become the whole inheritance, or the whole free
sole heirs to the whole estate, or the portion, each part shall be increased
whole free portion, as the case may be, proportionally.
and each of them has been instituted to
Testator stated in his will, "I institute A A = P80,000.00
and B as my heir. A to Yi of my estate
and B U of my estate". What is the effect
of such disposition?
First step:
i. A(1/2 of P120,000.00) =
P60,000.00
B(1/4 of P120,000.00) =
P30,000.00
Second step:
A = P120,000.00 x P60,000.00
P90,000.00
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X institutes A to 1/3, B to U and C U *The remaining free portion of P20,000.00
with the intention that all of them shall shall be distributed proportionally to the
become sole heirs of the whole estate. shares of each heirs.
The net value of the estate is
P120,000.00. How will you distribute? Second step:
C = P36,000.00
A = P80,000.0
B = 0
P40,000.0
0
P120,000
Article 8S3 B(1/2 of P120,000.00) = P60,000.00
C(1/4 of P120,000.00) = P30,000.00
If each of the instituted heirs has been
given an aliquot part of the Aggregate share of all heirs P150,00.00
inheritance, and the parts together
exceed the whole inheritance, or the ii.net estate =
whole free portion, as the case may P120,000.00
be, each part shall be reduced (minus)
proportionally. Aggregate share of all heirs P150,000.00
What is inofficious?
What is preterition?
Requisites:
No. A spouse although considered a This means that preterition must always be
compulsory heir, is not compulsory heir in determined in relation to the persons, who are
the direct line (ascendant/decendant). compulsory heirs at the time of the death of
the testator and not in relation to those who
What about a parent of testator is he a never became such.
member of the direct line?
Transcriber's Opinion: Jurado and Tolentino's
Yes. An Ascendant. view may be reconciled.
Suppose that an heir of the direct line There will be no preterition if the omitted
dies ahead of the testator, is there compulsory heir, is not survived by his
preterition? compulsory heirs in the direct line.
Jurado: There is no preterition. The But, there will be preterition in the right of
institution shall be effectual, but it is representation if the omitted compulsory heir
without prejudice to the right of is survived by his compulsory heirs in the
representation when it properly takes direct line.
place.
Suppose that the testator in his last will
Tolentino: If the compulsory heir who has said, "I have two
been preterited dies before the testator, it is (2) children, A and B. I give A Yi of my
the same as if there had been no preterition. estate." There is nothing in the will
which expressly preterited B. Is there
However, the right of representation should preterition?
not be lost sight of. Thus, if the preterited
heir has legitimate children and No. Since, there is still Yi of the estate that is
descendants entitled to represent him and left and such remaining portion can be
they have also been left out in the will, the applied to B's legitime/share.
institution of heirs shall be annulled just the
same, even if the preterited heir died before The omission must be complete and total in
the testator. (Aptly stated, there is character, so that, the omitted receives
preterition in the right of representation nothing from the testator.
In the preceding problem, how will the No. Since, there is still the remaining 9/10 of the
estate be distributed? T's estate for the share of his other compulsory
heirs.
B can ask for the completion of his legitime
(Article 906). Suppose that T in 198S said in his will, "I
give my entire estate to my sons A and B".
Suppose that A was designated as the T died in 199S, four (4) months later, T's
sole heir. B was not mentioned. During wife gave birth to C. Is there a preterition?
the lifetime of the testator he donated
to B a land worth P10,000.00. Is there Yes. Compulsory heir in the direct line may be
preterition? living at the time of the execution of the will or
born after the death of the testator.
No. Because B has received something from
the testator (the land worth P10,000.00). X has three (3) legitimate children, A, B and
C. When he executed his will, X instituted
Moreover, a donation inter vivos as heirs to his entire estate, A and B and his
actually given to a compulsory heir is friend, F. He also gave a legacy of
considered as an advance on his P30,000.00. The value of the net estate is
inheritance. P120,000.00
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b. What is the effect of d. How will you distribute the estate?
preterition on the
institution of heirs?
LegitimeVoluntary ShareAmoun
The institution of F will be annulled.
A: P20,000.00 + P10,000.00 = P30,0
c. What about the legacy given to B: P20,000.00 + P10,000.00 C: P20,000.00 + P10,000.00
= P30,0
G
G? = P30,0
= P30,0
The legacy given to G is effective because it F: instituted is annulled
can be contained within the free portion.
P60,000.00 P60,000.00 P120
In this case, the free portion (1/2 of
P120,000.00) P60,000.00. Hence, the legacy
given to G in the amount of P30,000.00 can
be contained therein. (P60,000.00 - Explanation: As per computation, due to
P30,000 = P30,000.00 free portion). the preterition of C, F's institution is
annulled. Hence, a will get his legitime of
P20,000.00 plus his voluntary share of
P10,000.00; B and C will get the same
amount as A. G will get his legacy of
P30,000.00
Article 8SS
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X said Institutio
in his will, "IReducti
give to S my To
legitime son, his legitime and I give the entire free portion to
be Received
my friend,
n F". F hason/a legitimate son B. F died a day before X. Can be get Yi of the estate?
Increas
A P30,000.00 -P1,428.57 P20,000.00
(- (legitime) No. A voluntary heir does not transmit any
P10,000.00) + right, if he predecease the testator.
P8,571.43 (DFP) inheritance, shall transmit no right to his
= P28,571.43
B P12,000.00 +P8,000.00 P20,000.00 own heirs except in cases expressly
C None +P20,000.0 P20,000.00 provided for in this Code.
0 (legitimate)
*Proportional
F P60,000.00 decrease onP51,428.57
-P8,571.43 A's share is only
P10,000.00 because of his legitime.
P10,000.00 (Amount to
be
Reduced)
Formula:
Voluntary Share x Amount to be
Reduced Aggregate Amount of
Voluntary Share
A= P10,000.00 x P10,000.00
P70,000.00
A= P1,428.57
F= P60,000.00 x
P10,000.00
P70,00.00
F= P8,571.43
Article 8S6
Article 862
Article 863
Article 864
Article 86S
Article 866
Article 868
Article 869
Article 870
c. should be incapacitated to
1. prevents the effect of the preterition accept the inheritance
2. prevents the falling of property into Brief or Compendious
the wrong hands
Brief - when the testator designates two
3. awards those who are good to the (2) or more persons to substitute for only
testator, but are not compulsory one (1) heir.
heirs.
Compendious - when there is only one
What are the kinds of substitution?
(1) person designated by the testator to
substitute for two (2) or more persons.
Substitution of heirs may be:
Reciprocal - when two (2) or more persons
1. simple or common (vulgar)
are not only instituted as heirs, but there are
also designated mutually as substitutes for
2. brief or compendious
each other.
3. reciprocal
Fideicomissary - that which takes place,
when the fiduciary or first heir instituted is
4. fideicomissary (Article 858)
entrusted with the obligation to preserve
Simple or common - that which takes and to transmit to a second heir, the whole
place when the testator designates one or or part of the inheritance, provided that such
more persons to substitute the heir or heirs substitution:
instituted, in case such heir should:
a. Does not go beyond one (1) degree
from the heir originally instituted?
b. The fiduciary or first heir, and the 3. repudiation
second heir
are living at the time of the death of Thus, any of the three instances may be a
the testator. cause for substitution.
X said in his will, "I hereby institute my *With respect to reciprocal substitutions, the
friend A as heir and B as substitute in following rules as to the shares of the
case A predecease me". A did not die, substitute is given by Jurado:
but was incapacitated. Can B inherit?
1. If there are only two {2) instituted heirs
No. Since it was expressly stated that the and they are designated mutually as
substitution shall take place only in case a substitutes for each other, the
predeceases X. substitute shall acquire the entire share
of the heir who dies, renounces or is
In this case, A did not predecease X. He was incapacitated, even if the shares of
instead incapacitated. both are unequal. Thus, if A is instituted
to 2I3 of the entire inheritance and B is
X said in his will, "I hereby institute A as instituted to 1I3, and A dies before the
heir and B as substitute". A repudiated. testator, or is incapacitated to inherit, B
Can B inherit? will acquire the 2I3 portion which is
rendered vacant as a substitute and the
Yes. Where the simple substitution is without remaining 1I3 as an instituted heir.
any statement of the cases to which it refers,
it shall comprise the three: 2. If there are three {3) or more instituted
heirs and they are designated mutually
1. the death of the heir as substitute for each other, the
substitutes shall have the same share
2. incapacity in the substitution as in the institution.
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X said in his will, "I institute A to Yi of P450,000.00
my estate, B to U and C to U. I hereby
designate all of them as reciprocal B = P50,000.00
substitutes of each other". B
predeceased X. The value of the net What are the effects of substitution?
estate is P600,000.00. Distribute.
The effects once the substitution has taken
Instituted Amount + Share from Substitution = place are the following:
Amount Received
1. The substitute shall take over the
A=P300,000.00 + P100,000.000 = share that would have passed to
P400,000.00 B=P150,000.00 the instituted heir.
+P50,000.00
2. The substitute shall be subject to
=P200,000.00 the same charges or conditions
imposed upon such instituted
P400,000.00 +P150,000.00 heir.
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What are the rights of the fiduciary? usufruactuary, until the moment of delivery to
the fideicomissary.
He acquires upon the death of the
fideicomitente all of the rights of a
Pending the transmission or delivery, he Suppose that a condition was imposed
possesses the beneficial ownership of the that fideicomissary can dispose of the
property although the naked ownership is property only after twenty one (21)
vested in the fideicomissary. years. Is the condition valid?
Can a fiduciary alienate the property? No it is void. Article 870 provides, "the
dispositions of the testator declaring all or part
No. He has no power of alienation but he may of the estate inalienable for more than twenty
alienate his right of usufructuary over the (20) years are void.
property.
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In the preceding problem, why is there In the preceding problem, why the
such an imposition? prohibition?
1. To give more impetus to the
socialization of the ownership of To prevent the entail of property or its
property. withdrawal from circulation.
X F ten (10)
years
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The obligation to pay is valid only from F
to B. When it comes to C, D and A, it is X said, "I give my property in Manila to
no longer obliged to pay, considering my friend A, but F will have the usufruct
that C is already two (2) degrees away for ten (10) years, F's son B for two
from F, while D is three (3) degrees (2) years and B's son C for two (2) years.
away.
Illustration:
Article 869
X A F ten (10) years
Yes. B can now alienate the property. While it B two (2) years
is true that only twelve (12) years have
passed since the death of X (the prohibition
to alienate is twenty (20) years), B can
now alienate the property, otherwise the "one C three (3) years
degree" limitation (Article 867 (2) in relation
to Article 863) will be violated. Is the aforementioned valid?
In this case, B is already two (2) degrees away The usufruct is valid only from F to B. When it
from the heir (F) originally instituted. comes to C, the usufruct is no longer valid
considering that C is already two (2) degrees
*Article 867 {2) in relation to Article 863, away from F.
"Provisions which contain a perpetual
prohibition to alienate and even a temporary Therefore, after B's death, the ownership of
one, beyond the limit fixed in Article 863". No the property will now be consolidated to A. C
author has fully explained as to what does the will no longer enjoy the usufruct.
phrase, "and even a temporary one, beyond
the limit fixed in Article 863" or if it they have *Article 869, "A provision whereby the testator
ever explained it, the accuracy of their leaves to a person the whole or part of the
explanation is doubtful. Nevertheless, Dean inheritance and to another the usufruct, shall
Navarrosaid, the phrase refer to "one degree be valid. If he gives the usufruct to various
limitation". persons simultaneously, the provisions of
Article 863 shall apply."
Article 867 (3)
Hence, in the preceding problem, the "one
X said, I give the free portion of my degree" limitation shall also be applied.
estate to my friend A, but he shall pay
the ten percent (10%) of its fruits to F for
five (S) years, to F's son B for five (S)
years, to B's son C for five (S) years and
to C's son D for another five (S) years.
PCI Bank vs Escolin The will, therefore, establishes a simple or
common substitution, the necessary result of
The provision in question is a simple case of which is that, upon the death of the testatrix,
simultaneous institution of heirs, whereby the Consolacion became the owner of an undivided
institution of Hodges is subject to a partial half of the property. She can therefore, demand
resolutory condition, the operative partition.
contingency of which is coincidental with that
of the suspensive condition of the institution of Can there be several transfers?
his brothers and sisters-in-law, which manner
of institution is not prohibited by law. Yes. It is possible to establish fideicomissary
substitution in favor of an unlimited number of
Crisologo vs Singson persons, provided that, all of them are one
generation from the first heir and are living at
The testamentary clause under consideration the time of the death of the testator.
does not call the institution of fideicomissary
substitution nor does it contain a clear Hence, the testator may institute X and provide
statement that Consolacion enjoys only a that the property shall be preserved and upon
usufructuary right, the naked ownership being X's death shall be transmitted to P (father of X);
vested in the brother of the testatrix. and after two (2) years, to M (mother of X); after
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five (5) years, to A (son of X); and after Illustration:
another five (5) years, to B (daughter of X).
X A (fiduciary)
Take note that all of them is one degree
removed from X, the first heir.
(fideicomissary) B C
*There are as many substitute in
fideicomissary substitution, as long as they
are one degree apart in relationship {e.g. D E
father to son, father to daughter and vice-
versa, or mother to son, mother to daughter D and E. B as fideicomissary substitute, or a
or vice- versa). second heir, acquired a right to the subject
property upon the death of X in 1985. When B
X instituted his friend A as a fiduciary died in 1988, his right over the subject
and B as fideicomissary. F has two (2) property passed to his children D and E.
children, B and C. B on the other hand, Therefore, D and E are now entitled to the
has two (2) children, D and E. X died in subject property, to the exclusion of all others.
198S, B died in 1988, while A died in
1999. D and E as against C are now Article 866 provides, "The second heir shall
claiming that they have a sole right to acquire a right to the succession from the
the property subject of the time of the testator's death, even though he
fideicomissary substitution. Who will should die before the fiduciary. The right of
inherit? the second heir shall pass to his heirs."
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Furthermore, the same may now be
considered as simple substitution
T said in his will, "I give my property, a No. Because the prohibition is twenty (20) years
farm in Bulacan, to my friend A and its from death. They only possessed the property
usufructuary to B for five (S) yeas. After for fifteen (15) years.
which, C, B's son will have the usufruct
for five (S) years and on to D for The prohibition is valid. Under Article 870, the
another five (S) years. Who holds the prohibition must not exceed twenty (20) years.
naked ownership of the property?
The prohibition against permanent or
A holds the naked ownership of the property. temporary alienation under Article 867 (2)
(one degree limitation) applies only to
Under Article 869, "A provision whereby the fideicomissary substitution.
testator
leaves to a person the whole or part of the
inheritance, and to another the usufruct, shall
be valid. If he gives the usufruct to various
persons, not simultaneously, but successively,
the provisions of Article 863 shall apply."
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In the aforementioned case, the applicable 1989) B
provision is Article 870, which provides, that
the prohibition, must not exceed twenty (20)
years. The substitution in this case is not C
fideicomissary.
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Furthermore, the same may now be
considered as a simple substitution.
1. It is subject to Vicente's
death or refusal; and
Article 872
Any disposition made upon the condition
that the heir shall make some provision in
The testator cannot impose any charge, his will in favor of the testator or of any
condition, or substitution whatsoever other person shall be void.
upon the legitimes prescribed in this
Code. Should he do so, the same shall be
Article 876
considered as not imposed.
Article 874
B is H's ascendant.
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The reason for the precept is that Besides, to permit it would impair the heir's
testamentary succession is an act of freedom of testamentary disposition with
liberality, not a contractual agreement. respect to his own property as well as to
allow the testator to dispose of the property
of another after the latter's death.
What is a Modal Substitution or indications, suggestions, etc., which do not have
Institucion Sub Modo? a coercive or obligatory force.
It is one where the testator states: In case of doubt, the statement of the testator
should be considered as a mode, which
1. the object of the institution; or imposes an obligation, but merely a
2. the purpose of the application of the suggestion which the heir or legatee may
property left by the testator upon follow or not.
the heir; or
3. the charge imposed by the testator In the preceding problem, can X demand
upon the heir. for the property immediately after T's
death?
T said in his will, "I hereby institute X
to one half (Yi) of my estate, but I Yes. Provided that he gives a security.
order him to use twenty five percent
(2S%) of it for the purpose of building a
clinic for the poor. Is it a Modal
Institution?
Yes.
Yes.
It is a modal institution.
It is subject to a mode.
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What is the purpose of the security? will itself, that such was the intention of the
testator.
So that the heir/devisee/legatee may comply
with the wished of the testator and for the In case of doubt, the institution should be
return of anything he may receive, together considered as modal and not conditional.
with its fruits and interests, if he should be
disregard the obligation. Kind of Condition:
*Those persons, for whose benefit the 1. Potestative Condition - one which
obligation has been imposed upon the heir, depends exclusively upon the will of
may demand its compliance. the heir, devisee or legatee and
must be performed by him
What is the difference between a mode personally.
and a condition?
2. Casual - one that does not depend
A mode obligates but it does not suspend. upon the will of the heir, devisee or
A condition suspends but it does not legatee, but upon chance and/or upon
obligate. the will of a third person.
In general, mode is obligatory, except when 3. Mixed - when it depends jointly upon
it is imposed for the purpose of the heir or the will of the heir, devisee or legatee
legatee himself. and upon chance/ or the will of a third
person.
The condition is fulfilled in order to acquire a
perfect right as heir or legatee while a Suppose that T imposes a condition
mode is complied with because of being potestative in his will, when must it be
already an heir or legatee. fulfilled?
*Following the principle that the After T's death, except, when it has already
testamentary dispositions are generally acts been fulfilled and is of such a nature that it
of liberality, an obligation imposed upon the cannot be fulfilled again.
heir or legatee should not be considered a
condition, unless, it clearly appears from the *The aforementioned rule is applicable
only when the potestative condition is of a
positive not of a negative character.
If the condition is casual or mixed, when disposition that the heir, devisee or legatee
shall it be fulfilled? should obey until such death.
Yes.
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a.The condition is deemed fulfilled, if such
third party has an interest in the fulfillment b.Otherwise, the condition cannot be
or non fulfillment of the condition. considered as fulfilled, and the institution
is annulled.
Article 886 to The legitime of legitimate children and
Article 914 descendants consists of one-half of the
Legitime hereditary estate of the father and of the
mother.
Article 886
The latter may freely dispose of the
Legitime is that part of the testator's remaining half, subject to the rights of
property which he cannot dispose of illegitimate children and of the
because the law has reserved it for surviving spouse as hereinafter
certain heirs who are, therefore, called provided. (808a)
compulsory heirs.
Article 889
Articke 887
(4) Acknowledged
natural children, and
natural children by legal
fiction;
Article 888
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The children or descendants may
freely dispose of the other half, Article 892
subject to the rights of illegitimate
children and of the surviving spouse
If only one legitimate child or
as hereinafter provided.
descendant of the deceased survives,
the widow or widower shall be entitled
Article 890 to one-fourth of the hereditary estate. In
case of a legal separation, the surviving
The legitime reserved for the legitimate spouse may inherit if it was the
parents shall be divided between deceased who had given cause for the
them equally; if one of the parents same.
should have died, the whole shall pass
to the survivor. If there are two or more legitimate
children or descendants, the surviving
If the testator leaves neither father nor spouse shall be entitled to a portion
mother, but is survived by ascendants equal to the legitime of each of the
of equal degree of the paternal and legitimate children or descendants.
maternal lines, the legitime shall be
divided equally between both lines. If In both cases, the legitime of the
the ascendants should be of different surviving spouse shall be taken from
degrees, it shall pertain entirely to the the portion that can be freely disposed
ones nearest in degree of either line. of by the testator.
The ascendant who inherits from his If the testator leaves no legitimate
descendant any property which the descendants, but leaves legitimate
latter may have acquired by gratuitous ascendants, the surviving spouse shall
title from another ascendant, or a have a right to one-fourth of the
brother or sister, is obliged to reserve hereditary estate.
such property as he may have acquired
by operation of law for the benefit of
This fourth shall be taken from the free
relatives who are within the third
portion of the estate.
degree and who belong to the line from
which said property came.
Article 894 Article 899
Article 901
Article 902
Article 903
Article 90S
Article 906
Article 907
Article 908
Article 912
Article 911
If the heirs or devisees do not choose to 1.Fixed - if the aliquot part of the testator's
avail themselves of the right granted by estate, to which a certain class of compulsory
the preceding article, any heir or devisee heirs are entitled, is always the same, whether
who did not have such right may exercise they survive alone or with other compulsory
it; should the latter not make use of it, heirs.
the property shall be sold at public
auction at the instance of any one of the 2.Variable - if the aliquot part changes,
interested parties. depending upon whether they survive alone
with other classes of compulsory heirs.
Article 914
Define compulsory heirs?
The testator may devise and bequeath
Compulsory heirs are those heirs, for whom
the free portion as he may deem fit.
the law has reserved that part of the
testator's estate known as the legitime. As
What is a legitime?
such, the testator cannot disregard them.
Legitime is the part of the testator's property,
What are the kinds of compulsory heirs?
which he cannot dispose of, because the law
has reserved it for certain heirs who are,
1.Primary - those who have precedence over
therefore, called compulsory heirs.
and exclude other compulsory heirs.
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3. the widow or widower
2.Secondary - those who succeed only in 4. illegitimate children
the absence of the primary heirs (legitimate
parents and ascendants). Who are the compulsory heirs in the direct
line?
3.Concurring - those who succeed together
with the primary or the secondary 1. legitimate children and descendants
compulsory heirs (illegitimate children and 2. illegitimate children
surviving spouse). 3. in default of the foregoing, parents
by nature, and
Who are the compulsory heirs if the 4. the widow or widower
testator is a legitimate person?
Are there any compulsory heirs in the
Under Article 887, his compulsory heirs are direct line?
the following:
No.
1. legitimate children and descendants
2. in default of the foregoing, Is a brother a compulsory heir?
legitimate parents and ascendants
No. A brother is neither an ascendant nor
descendant in the direct line. A brother
belongs to the collateral line.
A grandfather?
No.
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What is the basis of the 1.Surviving Alone
aforementioned rule?
One half (1/2) of the estate, unless, the
The basis is that, adoption merely creates a marriage between the surviving spouse and the
relationship similar to that of legitimate testator was solemnized in articulo mortis and
paternity and filiation, between the adopter the testator died within three (3) months from
and the adopted child. It does not create any the time of such marriage, in which case, the
relationship, between the adopted child and legitime of the surviving spouse is one third
the legitimate relatives of the adopter. (1/3) of the
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estate, except, when they have been living
as husband and wife for more than five (5) One eight (1/8) of the estate.
years, in which case, the legitime of the
surviving spouse is again one half (1/2) of Husband died, survived only by his wife.
the estate. Legitime?
2.Surviving with Legitimate Descendants Wife - one half (1/2) of the estate
Free Portion - one half (1/2) of the estate
One fourth (1/4) of the estate, if there is only
one (1) child. The same of that of each child, In the preceding problem, what if the
if there are two (2) or more children. marriage between husband and wife was
solemnized in articulo mortis, and the
3.Surviving with Ascendants testator died within three (3) months
from the time of such marriage, what is
One fourth (1/4) of the estate. the legitime of the wife?
4.Surviving with Illegitimate Children Wife - one third (1/3) of the estate
Free Portion - two thirds (2/3) of the estate
One third (1/3) of the estate.
Why is it in the preceding problem, the
5.Surviving with Legitimate Descendants wife only gets one third (1/3) as
and Illegitimate Children legitime?
One fourth (1/4) of the estate, if there is only In order to prevent the possibility that the
one (1) legitimate child. The same as that of marriage was contracted for financial gain.
each legitimate child, if there are two (2) or
more legitimate children. The law considers such marriage as scandalous
and for the sole purpose of inheriting form the
6.Surviving with Legitimate Ascendants sick spouse.
and Illegitimate Children
What if the spouses lived for five (S)
years, before the marriage in articulo What about if W married H on January 01,
mortis, what is the legitime of the 2000 because H was dying of cancer. On
surviving spouse? January 02, 2000, H died of cardiac
arrests? What is the legitime of W?
Wife - one half (1/2) of the estate
Free Portion - one half (1/4) of the estate
One half (1/2). The dying spouse must die of estat 1LC - one half (1/2) of one half
cancer because it is the one under
consideration. In this case, H died of cardiac e (1/2) of the 1LC - one half (1/2)
arrest, hence, the one third (1/3) rule will not
apply. estat of one half (1/2) of the
n. IP and SS
IP - one fourth
(1/4) SS - one
fourth (1/4)
o. IC and SS
IC - one third
(1/3) SS - one
third (1/3)
IP/A - excluded
IC - one half of the estate
i. AC and LP
j. AC and LC
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q.Illegitimate grandparents and SS LMGM -
P15,000.00
Illegitimate grandparents are not entitled to
any legitime because inheritance is only up s. LPGF, LPGM and LMGF
to the illegitimate parents. Illegitimate
grandparents are not considered as LPGF -
compulsory heirs. P15,000.00
LPGM -
SS gets one half (1/2) of the estate, P15,000.00
except if articulo mortis rule applied. LMGF -
P30,000.00
r. Net Estate is P120,000.00. Survivors
are LPGF, LPGM, LMGF and LMGM? *If the testator leaves neither father nor
mother, but is survived by ascendants of
LPGF - equal degree of the paternal and maternal
P15,000.00 lines, the legitime shall be divided equally
LPGM - between both lines. If the ascendants should
P15,000.00 be different degrees, it shall pertain entirely to
LMGF - the one's nearest in degree to either lines.
P15,00000
How shall the legitime (1/2 of the estate)
reserved for the legitimate parents be Yes. One way. In succession, it is usually two-
divided? way.
The whole (1/2) of the estate shall pass to Time of death 5 years
surviving spouse.
A 1. LC/D
2. LP/A
3. ILC/D
B 4. SS
5. B/S
What are the requisites of Reserva In the illustration, if not for Article 891,
Troncal? When is there a Reserva who will inherit upon G's death?
Troncal?
By ordinary succession, C and D will inherit the
1. The property should have been property. If this happens, the parcel of land,
acquired by operation of law by which belongs to the family of A will forever
an ascendant from his be lost to the family of C and D.
descendant upon the death of
the latter. Origin - (A) - source of the property
Propositus - (I) - to whom the land was
given
Reservista - (G) obliged to reserve
Reservatio - beneficiaries No.
A, B, E, C, D and H. Why?
Are all aforementioned qualified to be The purpose of the law is to return the property,
reservatios? which by accident will go to another family. In
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this case, if B qualifies as a reservation, and 2. Rule of preference
assuming that A died ahead of B,
then it is possible that the property will go to Ascending/descending line is
B's new family. preferred over collateral relatives
A, therefore, is entitled to the land
As aforestated, A and E qualify as
reservations. Who between them is What about if the property donated by A
entitled to the land? to I, was in fact previously donated by D
to A? Will there be a Reserva Troncal?
Observing the rules of succession:
Yes. It is immaterial where A got the property.
1. The rule of proximity Besides, our inquiry ends with A.
nd
A - second (2 ) degree In the preceding problem, who is entitled
rd
from I E - third (3 ) to the land?
degree from I
Still A.
Is I a mere usufructuary?
Is G a mere trustee?
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Otherwise, A's buyer has a better right over the
It depends on who is going to survive the land.
Illustrati
on: V
Figure
Ascendant Ascendant
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A donate a land to I, worth PSM. During
I's lifetime, he acquired properties P10M/2 - P5M
from other sources worth PSM also.
When I died, G inherited all the Reserva Maxima - so much as the
properties of I. Assuming that Reversa reservable property of the entire land
Troncal exist: contained in the legitimate is subject to
reserve tronca. Hence, under this rule, the
a. How will you determine the entire land donated by A to I is subject to
property subject to the Reserva reserve.
Troncal?
Reserva Minina - all of the property of I
P5M - Land property donated passed to G partly by will and partly by
by A to I P5M - Properties of I operation of law.
from other sources.
One half (1/2) of land passed by will.
P10M - G's inheritance One half (1/2) of land passed by operation of law.
Since, I died without a will, we do not apply One half (1/2) of other properties passed
Reserva Maxima and Reserva Minima. The by will. One half (1/2) of other properties
whole land worth P5M is a reservable passed by will.
property. It is covered by reserva troncal
because the entire estate passed by Hence, under the rule of reserva minima,
operation of law to G. only one half (1/2) of the land, donated by
A to I is a reservable property.
b. What about if I died with a will?
*Reserva Maxima and Reserva Minima do not
P5M - Land property donated apply if the testator died without a will.
by A to I P5M - Properties of I
from other sources.
Illustration: In the preceding problem, what if it was E
who donated the land to J? Will there be
D E F RT?
G,H,I,K and L
M N OP Q R T U
Will they divide the property equally?
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K = 2/7
L = 2/7 If the nephews and nieces do not survive
G = their uncles or aunts, there is no right of
1/7 representation. They inherit in their own
H = right.
1/7
I = What about if all of the brothers and
1/7 sisters of J (G, H, I, K and L) died?
No. S and W are not entitled to inherit because c. the return of the price which he has
they are already grand nephews. They are received for movable property
th
relatives of J in the fourth (4 ) degree. alienated, or the payment of its
value at the time of its alienation, if
*The right to represent Reversa Troncal applies such alienation was made by
rd
only to those within the third {3 ) degree gratuitous title;
from the Propositus. If the Reservatios are
half-blooded siblings, the degree shall d. the payment of the value of
be determined using the common parent, as a immovable property validly
reference point. alienated.
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4. waiver or renounciation by the reservista holds the property
reservatios; adversely against them in the concept
of an absolute owner.
5. prescription of the right of the
reservatios,w hen the ascendant-
X was survived by (a) his widow, (b) 2
legitimate children, a and B, (c) 2 The legitimes are:
grandchildren, D and E, children of X's
legitimate child, C. The net value of X's W - P20,000.00 - legitime
estate is P60,000.00. Ascertain their A - P10,000.00 - legitime
respective legitimes. C- P10,000.00 -
legitime Free portion
The legitimes are: -P20,000.00
P60,000.00
A - P15,000.00 - legitime
F - P15,000.00 - legitime
M- P15,000.00 -
legitime Free portion
-P15,000.00
P60,000.00
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that free portion, and that the legitime of the F -
surviving spouse must first be fully satisfied."
Or more specifically,
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copied and modified from ALLIANCE FOR
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A - P15,000.00 (1/2 of Yi of Yi of the estate) Free portion - P30,000.00
the estate) B - P15,000.00 (1/2 of (1/2 of the estate)
P60,000.00
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If an illegitimate child dies before the
testator, can his right to the legitime *Illegitimate parents are classified as
which had been reserved for him by law compulsory heirs of the illegitimate children,
be transmitted to his own descendants? but only in default of children or descendants,
whether legitimate or illegitimate.
Yes. It will be transmitted upon their death to
their descendants, whether legitimate or
illegitimate (Article 902).
They are:
But in this cases, the charge is imposed by 1.The rights of the heirs with respect to
law and not by the testator. their legitime are merely inchoate or
If the testator deprives a compulsory heir of prospective, because such
his legitime in violation of the principle
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ALTERNATIVE ACTION
rights are perfected at the moment of What is the remedy of a compulsory heir
death of the testator (Article 777). who has been given a lesser legitime than
Hence, before the death of the testator, that which belongs to him?
there can be nothing to renounce or to
compromise. He may demand that the same be fully satisfied
(Article 906).
2.No contract may be entered into with
respect to future inheritance, except in *See Jurado for complete discussion of the
the cases expressly provided by law effect of an incomplete legitime as
(Article 1347). distinguished from preterition; and also the
discussion of inofficious testamentary
*The only exceptional cases, where a contract disposition.
may be entered with respect to future
inheritance, would be those contemplated in
Articles 130 and 1080 of the Civil Code.
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When are testamentary dispositions succession, the testator's freedom of
considered as inofficious? disposition is limited by the fact that he cannot
make any gratuitous disposition of his
They are considered as inofficious if they are property whether by an act inter vivos or by
in excess of the disposable free portion of an act mortis causa, which would impair the
the hereditary estate. Thus, resulting in the legitime of his compulsory heirs.
impairment of the legitime of the
compulsory heirs. This principle in Article 904 is
complemented by Article 752, which
What is the effect of inofficious declares that no person can give by way of
testamentary dispositions? donation more than he can dispose by will.
They shall be reduced with regard to the *Article 771 refers to donations inter vivos,
excess, on petition of the compulsory heirs while, Article 907 refers to donations mortis
who are prejudiced. causa.
*Take note that the rule on reduction applies Article 908 to Article 910
to inofficious donation inter vivos. Under Determination of the Legitimes of
Article 771 donations inter vivos, which are Compulsory Heirs
inofficious bearing in mind the estimated net
value of the donor's estate at the time of his What is collation?
death shall be reduced with regard to the
excess. A fictitious mathematical process of adding the
value of the thing donated to the net value of
The procedure for reductions stated in the hereditary estate
Articles 771 and 907 shall be regulated by (Article 908 paragraph 2) for the purpose of
Articles 911-912 of the Code. computing the legitime of the compulsory
heirs.
What is the reason why an inofficious
testamentary disposition and It is an act of charging or imputing the value of
inofficious donation inter vivos shall be the donations against the legitime of the
reduced? compulsory heir to whom the thing was
donated (Article 1061), for the purposes of
The reason is the very concept of legitime equalizing the shares of the compulsory heirs
itself. Under our system of compulsory as much as possible.
It refers to the actual act of restoring the
hereditary estate, that part of the donation Why?
which is inofficious, in order not to impair the
legitime of the compulsory heirs. The value to be collated or added is the value of
the thing donated at the time when the
What is included in the gross estate? donation is made.
All property left at the time of the death of the This is because when a donation is made,
testator. ownership is transferred over the same, once
the donation is accepted. The increase in value
May sentimental value be considered in should therefore, be given to the donee.
the determination of the gross value of
the estate? In the same way, in case of loss, whether by
force majeure or through negligence or wanton
No. Only the actual value. destruction, the donee must first suffer in
accordance with the rule of res perit domino.
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6. Imputation of the value of all strangers against the disposable free
donation inter vivos made to portion, and the restoration to the
compulsory heirs against their hereditary estate if the donation is
legitime and of the value of all inofficious.
donation inter vivos made to
7. Distribution of the residue of the
estate in accordance with the will iv) Imputation
of the testator.
P50,000.00 - FP
X is survived by two (2) legitimate (-) P25,000.00 - W's
children, A and B, and his wife W. In his legitime P20,000.00 - DIV
will, he made the following dispositions:
a house and lot worth P10,000.00 to G P5,000.00 (amount left for
and a car worth P40,000.00 to H. During distribution to legatees and
his lifetime he made a donation of a devisees)
parcel of land worth P20,000.00 in favor
of his friend, In his lifetime, X made a donation inter vivos, in
E. At the time of his death, said land is favor of F. Hence, the same shall be imputed
worth P200,000.00. His estate is worth against the FP. The legitime of W shall also be
P120,000.00 with debts amounting to imputed against the free portion.
P40,000.00. Distribute.
P120,000.00 - GE
(-) P40,000.00 -
Debts
P80,000.00
P80,000.00
(+) P20,000.00 - DIV
Legitime is Yi of P100,000 or
P50,000.00 A -
P25,000.00
B - P25,000.00
FP - P50,000.00
Yes. In this case, the remaining P5,000.00 will A = (P20,000.00) Advance Legitime
go to G. (+) P10,000.00 To complete his
i) NE
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00.00 - C = P15,000.00 Legitime
P20 GE P7,500.00 Voluntary
0,0 Heir
(-) P100,000.00 - Debts P22,500.00
A = P30,000.00 (P20,000.00 + i) NE
P10,000.00) B = P30,000.00
FP = P60,000.00 P100,000.00 - GE
(-) P200,000.00 - Debts
The legitime of A and B is (1/2 of P120,000.00)
P60,000.00 or P30,000.00 each. Take note, Zero
that A was already given an advance of his
legitime in the form of a parcel of land worth ii) Collate Donations
P10,000.00. Hence, what shall be given to him
only is the amount of P10,000.00 to complete P40,000.00 - DIV
his legitime. (+) P60,000.00 - DIV
A = P25,000.
B = 00
P25,000.
00
iv) Imputation/Restoration P50,000.00
i) NE
P400,000.00 - GE
(-) P40,000.00 -
Debts
P360,000.00 - NE
ii) Collation
P360,000.00 - NE
(+) P20,000.00 - DIV
P70,000.00 - DIV
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rd
Upon its alienation to a third (3 ) person, the iii) Determination of Legitime
latter acquires it free from any conditions or
susceptibility to revocation as inofficious. The legitime is one half (1/2) of P450,000.00 or
Hence, the donee should be made to respond P225,000.00. Hence the legitime of A, B and C
for the value of the excess or inofficious part is P225,000.00 or P75,000.00 each. But, since
of the donation. A has already received P20,000.00 (DIV of
parcel of land), he will only be given
P55,000.00 to complete his legitime.
Hence,
Formula:
G= P70,000.00 x P80,000.00
P160,000.00
G= P35,000.00
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In this case, the devisee, shall pay the
compulsory heirs, the amount of the
reduction.
In the preceding problem, who will What about the car? Who among H and
get the house and lot devised to G? the compulsory heirs will get it?
G or the compulsory heir?
Although there is no provision under the law
Following strictly the provision of the law with respect to personal property, following
(Article 912), the compulsory heirs should the reasoning in the preceding problem, C
get the house and lot and they should should be entitled to the car.
pay G the amount of P35,000.00
*In case, the devise cannot be reduced
However, one author (Tolentino) said, "in conveniently, and the amount of reduction is
case the devise cannot be reduced equal, the property shall be given to the
conveniently and the amount of reduction devisee {Tolentino).
is equal, the property shall be given to the
devisee.
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TABLE OF LEGITIMES UNDER THE NEW CIVIL CODE
(4)
(5)
(1) (2) (3) ACKNOWLEDG
ACKNOWLE
SURVIVORS LEGITIMAT LEGITI SURVIVI ED NATURAL
DGE
E ME NG AND/OR
ILLEGAL
DESCENDA ASCENDANTS SPOUSE NATURAL
CHILDREN
Any Class Alone NTS CHILDREN
Unless, the testator and the surviving spouse By
were married in articulo mortis
A 1/2 and the testator died within three (3) months from the time of such marriage, in
which case the legitime of the spouse as sole heir is one-third (1/3)
All Classes - but
B 1/2 Excluded 1/4 1/2 of that of a 2/5 of that of a
only one (1)
LD LD
legitimate
All Classes - but several
C 1/2 Excluded Equal to that of a
legitimate
LD
(a) descendants
Legitimate
1/4
D Ascendants - 1/2* 1/8
(5:
(b) Surviving 4)
(a) SpouseLegitimate 1/4
E - 1/2** -
Ascendants (5:
(a) Legitimate 4)
1/4
F - 1/2*** -
Ascendants (5:
(a) Surviving 4)
1/3
G - - 1/3
Spouse (5:
(b) Illegitimate 4)
* If the portion available for distribution is not sufficient, it shall be distributed among the acknowledged natural children or natural children
by legal fiction and the spurious children in the proportion of 5:4.
** If the testator is an illegitimate person, his natural parents are excluded by presence of illegitimate children
*** If natural parents concur with the surviving spouse, the legitime of the former is 1/4, while the latter is also 1/4.
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TABLE OF LEGITIMES UNDER THE FAMILy CODE
* If the portion available for distribution is not sufficient, it shall be distributed among the illegitimate children equally
** If the testator is an illegitimate person, his natural parents are excluded by presence of illegitimate children
*** If natural parents concur with the surviving spouse, the legitime of the former is 1/4, while the latter is also 1/4.
-SUCCESS
ION-
(Dean
Navarro)
Article 916
Article 917
Article 918
Article 919
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by: kotch agcaoili agudo.
-SUCCESS
ION-
(Dean
Navarro)
Article 922
Article 923
What is disinheritance?
1. maltreatment by deed
2. maltreatment by word
But what about if the student who recited was NO. The law speaks only of an attempt against
a male? Would you have the same answer? the life of the testator, his or her spouse,
According to him, the answer would be descendants or ascendants. A brother is not
different, if a male student was asked the included in the aforementioned enumeration.
same question, because, if you are a male and A brother is merely a collateral blood relative.
you had sex with your family driver {man to
man), that could be considered dishonorable What if the conviction carries with it the
life. penalty of civil interdiction?
If you were disinherited by your father Then there will be a valid disinheritance, under
because you married a man which your No 8 of Article 919.
father greatly disliked, is there a valid
disinheritance? X has two sons named A and B. A
attempted to kill his brother B. Charges
None. It is not one of the causes provided by were filed against A. Can X disinherit A?
law for valid disinheritance.
Yes. Because X is a descendant of B.
If you were disinherited by your father
because you become a mormon and he In the preceding problem, suppose the
is a devout catholic, is there a valid RTC convicted A but the CA reversed the
disinheritance? decision. Can X still disinherit A?
None. It is not one of the causes provided by No. Because the prosecution is dismissed even
law for valid disinheritance. if it is provisional in nature.
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by: kotch agcaoili
-SUCCESS
ION-
(Dean
Navarro)
T disinherited his son, S because he looks X was charged with murder. One of the
more like his neighbor than him. Is this witnesses who testified against him
valid? during the trial was his son S. X was
convicted. Can X disinherit S?
No. Because it is not one of the ground
expressly provided for by law for disinheriting No. Because the charge was not groundless.
a child.
Suppose X was acquitted, can he
Can you be validly disinherited if you disinherit his son S?
attempted to kill your father but the
family did not file charges? The answer needs to be qualified:
Suppose X has two (2) children, a son No. Because the term daughter refers only to
and a daughter. X induced his daughter female descendants. But this cat may be a
to become a prostitute, but the ground for loss of parental authority. Once
daughter flatly refused. May X be parental authority is lost, disinheritance shall
validly disinherited by his daughter? apply.
Yes. On the ground that the parent induced Suppose it was the grandfather who
his daughter to live a corrupt or immoral induced his granddaughter?
life. Even if the inducement was
unsuccessful. Mere attempt to induce is a Yes.
sufficient ground.
Suppose that it was the grand son?
If it was a brother who induced his sister
to be prostitute, may the sister No.
disinherit his brother?
*Although the law mentions only daughters, it
No. After all, there would be no need to must be construed to mean all female
disinherit the brother because he is not a descendants.
compulsory heir of his sister.
Can there be a valid disinheritance?
In the preceding problem, suppose that
it was the son who was induced by the No.
-SUCCESS
ION-
(Dean
Navarro)
3. attempt of the respondent to corrupt Reconciliation between the offender and the
or induce the petitioner or a common offended person deprives the latter of the
child or a child of the petitioner to right to disinherit and renders ineffectual any
engage in prostitution or connivance disinheritance that may have been made.
in such corruption or inducement
When is there reconciliation?
4. final judgment sentencing the
respondent to imprisonment for When there is resumption of friendly relations.
more than six {6) years, even if
pardoned Is reconciliation the same as pardon?
Yes.
It depends.
Article 92S
Article 926
Article 927
Article
Article
934
932
The same rule applies when the thing is A legacy or devise made to a creditor shall
pledged or mortgaged after the not be applied to his credit, unless the
execution of the will. testator so expressly declares.
Any other charge, perpetual or In the latter case, the creditor shall have
temporary, with which the thing the right to collect the excess, if any, of
bequeathed is burdened, passes with it the credit or of the legacy or devise.
to the legatee or devisee.
Article 939
Article 93S
If the testator orders the payment of what
The legacy of a credit against a third he believes he owes but does not in fact
person or of the remission or release owe, the disposition shall be considered
of a debt of the legatee shall be as not written. If as regards a specified
effective only as regards that part of debt
the credit or debt existing at the time
of the death of the testator.
Article 936
Article 937
Article 938
more than the amount thereof is
ordered paid, the excess is not due, Article 941
unless a contrary intention appears.
A legacy of generic personal property
The foregoing provisions are without shall be valid even if there be no things
prejudice to the fulfillment of natural of the same kind in the estate.
obligations.
A devise of indeterminate real property
Article 940 shall be valid only if there be immovable
property of its kind in the estate.
In alternative legacies or devises, the
choice is presumed to be left to the The right of choice shall belong to the
heir upon whom the obligation to give executor or administrator who shall
the legacy or devise may be imposed, comply with the legacy by the delivery
or the executor or administrator of the of a thing which is neither of inferior
estate if no particular heir is so nor of superior quality.
obliged.
Article 942
If the heir, legatee or devisee, who may
have been given the choice, dies before
Whenever the testator expressly leaves
making it, this right shall pass to the
the right of choice to the heir, or to the
respective heirs.
legatee or devisee, the former
may give or the latter may choose
Once made, the choice is irrevocable. whichever he may prefer.
Article 944
If the legacy or device is of a specific and
A legacy for education lasts until the determinate thing pertaining to the
legatee is of age, or beyond the age of testator, the legatee or devisee acquires
majority in order that the legatee may the ownership thereof upon the death of
finish some professional, vocational or the testator, as well as any growing
general course, provided he pursues his fruits, or unborn offspring of animals, or
course diligently. uncollected income; but not the income
which was due and unpaid before the
A legacy for support lasts during the latter's death.
lifetime of the legatee, if the
testator has not otherwise provided.
Article 94S
Article 946
Article 947
Article 948
From the moment of the testator's (4) Legacies for
death, the thing bequeathed shall be education;
at the risk of the legatee or devisee,
who shall, therefore, bear its loss or (S) Legacies or devises of a specific,
deterioration, and shall be benefited by determinate thing which forms
its increase or improvement, without a part of the estate;
prejudice to the responsibility of the
executor or administrator.
(6) All others pro
Article 949
rata. Article
If the estate should not be sufficient The heir, charged with a legacy or devise,
to cover all the legacies or devises, or the executor or administrator of the
their payment shall be made in the estate, must deliver the very thing
following order: bequeathed if he is able to do so and
cannot discharge this obligation by
(1) Remuneratory paying its value.
legacies or devises;
Legacies of money must be paid in cash,
(2) Legacies or even though the heir or the estate may
devises declared by not have any.
the testator to be
preferential; The expenses necessary for the
delivery of the thing bequeathed shall
(3) Legacies for support; be for the account of the heir or the
estate, but without prejudice to the
legitime.
-SUCCESS
ION-
(Dean
Navarro)
Article 9S9
The legatee or devisee of two legacies or except in cases of substitution and of the
devises, one of which is onerous, cannot right of accretion.
renounce the onerous one and accept the
other. If both are onerous or gratuitous, Article 9S7
he shall be free to accept or renounce
both, or to renounce either. But if the
The legacy or devise shall be without
testator intended that the two legacies
effect:
or devises should be inseparable from
each other, the legatee or devisee must
either accept or renounce both. (1) If the testator transforms the thing
bequeathed in such a manner that it
does not retain either the form or
Any compulsory heir who is at the same
the denomination it had;
time a legatee or devisee may waive the
inheritance and accept the legacy or
devise, or renounce the latter and accept (2)If the testator by any title or for any
the former, or waive or accept both. cause alienates the thing bequeathed
or any part thereof, it being
understood that in the latter case the
Article 9S6
legacy or devise
X said in his will, "I hereby give my Yes. The rule in this case is that, when the
house and lot located at 123 Manila to owner of the thing refuses to alienate the same
Mr Santos". The house and lot is or demands an excessive price thereof, the heir
actually owned by Mr Ramos. However, X or the estate shall only be obliged to give the
thought that he owns the house and lot. just value of the property.
Is the disposition valid?
*A legatee who is bound to give a sub legacy Yes. In this case, it is understood to cover the
only to the extent of the legacy given to him. whole house and lot.
A compulsory heir is bound to give a legacy, In the preceding problem, suppose prior
only insofar as his legitime is not impaired. to X's death, the co-ownership was
terminated. The property was assigned
X said in his will, "Although I own only to Mr Ramos, with X being reimbursed in
one half (1/2) of the house and lot in money for his share (1/2 of the property).
123 Manila, the other half being owned Subsequently, X died. Will Ms Santos
by Mr Ramos, I give it to Ms Santos". Is receive anything?
this valid?
Yes. In this case, Ms Santos will get Yi of the
Yes. But it is understood to cover only one house and lot, the part which pertains to Mr
half (1/2) of the property. Ramos.
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-SUCCESS
ION-
(Dean
Navarro)
(See Paras)
Yes.
What is the duration for support? The right over the legacy or devise is vested
at the moment of the testator's death.
A legacy for support lasts during the lifetime
of the legatee, if the testator has not What about if the legacy or devise is
otherwise provided. subject to a condition?
If it is a legacy for support, how is the From the moment of the death also, provided,
amount determined? that the condition is fulfilled.
If the testator has not fixed the amount of What about if it is subject to a term?
such legacies, it shall be fixed in accordance
with the social standing and the If the gift is subject to a suspensive term, the
circumstances of the legatee and the value right also vests from the moment of the
of the estate. testator's death, although, it does not
become effective, until after the arrival of the
If the testator during his lifetime used to give suspensive term.
the legatee a certain sum of money or other
things by way of support, the same amount If the gift is with a resolutory term, the right
shall be deemed bequeathed, unless it be also vests form the moment of the testator's
marked disproportionate to the value of the death but will end when the resolutory term
estate. arrives.
What is the duration for education? When does the legatee or devise acquire
ownership over the thing?
A legacy for education lasts until the legatee
is of age or beyond the age of majority, in If its is pure and simple and it is owned by the
order that the legatee may finish some testator at the time of his death, then the
professional vocational or general course, ownership of the thing is acquired at the
provided, he pursues his course diligently. moment of the death of the testator.
-SUCCESS
ION-
(Dean
Navarro)
If the thing is owned by a third person, If both be onerous, can he accept one and
ownership over the thing is acquired upon the renounce the other?
acquisition by the estate, of such property,
from the third person. Yes. He shall be free to accept or renounce both
or to renounce either.
X said in his will, "I hereby give Y a car".
Suppose there is no car in the estate, is
the disposition valid?
None.
No.
Apply Article 950 only when the reduction 2.when although the legitime has
concerns the legacies and devises. been preserved by the testator
himself by leaving the compulsory
When the legitime is impaired or when there heirs sufficient property to cover
are their legitime, there are donations
donations inter vivos chargeable to the free inter vivos concurring with the
disposal, apply Article 911. legacies and devises within the free
portion
*Article 950 applies in all cases where the
conflict is exclusively among the legatees Article 950. If the estate should not be
and the devisees themselves. This is sufficient to cover all the legacies or devises,
possible in either two {2) cases: their payment shall be made in the following
order:
1.when there are no compulsory
heirs and the entire estate is 1.remuneratory legacies or devises
distributed by the testator as 2.legacies or devises declared by
legacies or devises the testator to be preferential
3.legacies for support
2.when there are compulsory heirs, 4.legacies for education
but their legitime has already 5.legacies or devises of a specific
been provided for by the testator determinate things which forms a
and there are no donation inter part if the estate
vivos 6.all others pro- rata
-SUCCESS
ION-
(Dean
Navarro)
1. revocation by transformation - if
the testator transforms the thing
bequeathed in such a manner that it
does not retain both the form and the
denomination it had.
Yes. Because there is a change on form and Yes. Nullity of contract refers to acts that are
denomination. considered as voluntary alienation. Nullity of
contracts does not
X stated in his will, "I give my friend F, include fraud. In this case, the devise is valid
five (S) hectares of land for services because there is no consent. Hence, there was
rendered in the past". Thereafter, X sold no alienation. Therefore, the devise remains
two (2) hectares of the portion devised valid.
to F. What is the effect?
*Do not confuse the immediately preceding
The devise shall take effect on the remaining problem with the rule, that the only exception
three (3) hectares. In this case, there is only a in order to have a revival of the devise, in
partial revocation. (Article 957{2]) cases of alienation is, "when the testator has
reacquired the thing alienated by virtue of the
What if in the preceding problem, X exercise of his right of repurchase". In this
has reacquired the two (2) hectare case, there is really an intention to alienate.
land. Will the devise be revived? Or
will Martin be entitled again to the On the other hand, in the problem presented
original devise, which is five (S) in the immediately preceding problem, there
hectares of land? was no intention to alienate because of the
presence of fraud or the consent is vitiated.
No. Except only of the reacquisition was Thus, the problem presented is not really an
made by X by virtue of the exercise of the exception, but the devise remains valid.
right of repurchase (Article 957{2]). This is
only the exception. This must not be {Bakit valid pa rin kung hindi pala exception?
confused with Article 930. Eh kasi nga wala naman talagang intention na
ibenta ng testator yung devise. Talagang
X gave his house and lot located in 123 naloko lang siya. Kaya hindi naapektuhan yung
Espanya, Manila to Mr Santos, three (3) devise at walang implied revocation by
years after the execution of the will, X operation of law.)
sold it to Mr Ramos. A year later, X filed
-SUCCESS
ION-
(Dean
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What if the preceding problem, X In the preceding problem, who can inherit
donated the house and lot to Mr Ramos. from X?
Thereafter, X recovered the donation
from Mr Ramos. Is the devise still valid? Grandfather (GF), A and B.
Illustration:
GF
F (+)
A B C(+) x
WD
th
2.Relatives must be within the fifth (5 )
degree. Relatives affinity are excluded. 5.No preference between the lines.
Hence, W cannot inherit for more then her
legitime. 6.If a testator gives some of his properties and
uses the words, "to all who are entitled
3.Rule of proximity - the nearest thereto", Article 959 cannot be applied
degree excludes the father. because the clause evidently refers to
intestate heirs and not to the testator's
4.There is no right of representation. relative.
-SUCCESS
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(Dean
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Article 961
Article 962
Article
Article 972
979
The right of representation takes sisters, whether they be of the full or half
place in the direct descending line, blood. (92S)
but never in the ascending.
Article 973
In the collateral line, it takes place only
in favor of the children of brothers or
In order that representation may take
place, it is necessary that the Legitimate children and their
representative himself be capable of descendants succeed the parents and
succeeding the decedent. (n) other ascendants, without distinction as
to sex or age, and even if they should
come from different marriages.
Article 980
Should children of the deceased and In default of the father and mother, the
descendants of other children who are ascendants nearest in degree shall
dead, survive, the former shall inherit inherit.
in their own right, and the latter by
right of representation. (934a) Should there be more than one of equal
degree belonging to the same line they
Article 982 shall divide the inheritance per capita;
should they be of different lines but of
The grandchildren and other equal degree, one-half shall go to the
descendants shall inherit by right of paternal and the other
representation, and if any one of them
should have died, leaving several heirs,
the portion pertaining to him shall be
divided among the latter in equal
portions. (933)
Article 983
Article 984
Article 985 to
Article 987
Ascending Direct
Line
Article 98S
Article 986
If the widow or widower should survive When the widow or widower survives
with brothers and sisters, nephews and with legitimate children or their
nieces, she or he shall inherit one- half of descendants and illegitimate children or
the estate, and the latter the other half. their descendants, whether legitimate or
(94Sa) illegitimate, such widow or widower shall
be entitled to the same share as that of a
Article 995 to legitimate child. (n)
Article 1002
Surviving Spouse
Article 99S
Article 996
Article 997
Article 998
Article 1004
Article 1001
Article 1011 to
Article 1014 The
State
Article 1011
Article 1012
Article 1013
(b) Illegitimate Children One half (1/2) Same share even if decedent is
an illegitimate person (Article
7. (a) Legitimate Parents One half (1/2) 997, New Civil Code).
(b) Surviving Spouse One half (1/2) Article 176, Family Code
8. (a) Legitimate Parents One fourth Article 176, Family Code
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They are:
grandsons C and D. Can A exclude C and They inherit in their own right and not by right of
D in the succession by virtue of the rule representation.
of proximity?
Is there a right or representation in
No. C and D cannot be excluded by A. In the grandchildren?
succession, of the rule of proximity.
By virtue of the right of Yes. There is no limit as to the degree in the
representation, they are raised to the degree direct descending line.
of their deceased father.
No.
Yes.
From whom does the representative 1. when the person represented dies
inherit? From the decedent or from the before the decedent
person represented?
2. when the person represented is
The representative inherits from the decedent incapable of succeeding the
and not from the person represented. In other decedent
words, the represented does not succeed the
person represented but the one from whom What is the rule in representation?
the person represented would have
succeeded. As a rule, the right of representation takes
place only in the direct descending line, but
Example: A grandson is called to succession never in the ascending (Article 972
by law because of blood relationship. A paragraph 1).
grandson does not succeed his father (the
person represented) who predeceased his
grandparent. The grandson succeeds his
grandparent, whom his father would have
succeeded. (Rosales vs Rosales, GR No.
400789, 27 February 1987).
When does the right of representation in 1. The right can be exercised only by the
the direct line takes place? nephews and nieces of the decedent.
This is clear from the provisions of
It takes place in the following cases: Article 972 and Article 975.
Consequently, it cannot be exercised
1. when the children concur with by grandnephews and grandnieces.
grandchildren, the latter being
the children of other children who 2. The right can be exercised by the
died before the decedent, or who nephews or nieces of the decedent if
are incapable of succeeding the they will concur with at least one (1)
decedent brother or sister of the decedent. This
limitation is expressly provided for in
2. when all the children are dead or Article 975. Otherwise, if they are the
are incapable of succeeding the only survivors, they shall inherit in
decedent, and the grandchildren their right and not by the right of
concur with the great- representation. (Pavia vs Hurrald, 5
grandchildren, the latter being the Phil 176, Sarita vs Candia 23 Phil 443)
children of other grandchildren,
who died before the decedent or 3. The right of representation in the
are incapable of succeeding the collateral line is possible only in
decedent intestate succession in other words, it
cannot possibly take place in
3. when all children are dead or are testamentary succession.
incapable of succeeding the
descendant, leaving children or In succession by representation, how
descendants of the same degree. shall the estate be divided?
than what the person they represent could pF has two (2) children, one (1) is
inherit, if he were living or could inherit. legitimate names X, the other is
(Article 974) illegitimate named Y. X has two (2)
children, one legitimate named A and the
*As a consequence of representation, the other illegitimate named B.
representative is subrogated to all the rights
to which the person represented would have Illustration:
been entitled by operation of law, if he were
living or if he could inherit. F
Take note however, that, in testamentary
succession the representatives acquire all of x y
the rights which the person represented
had, with respect to his legitime.
A B
In legal or intestate succession, the
representative acquires all of the rights which In the illustration, if A dies, can B inherit?
the person represented had with respect to his
entire legal portion. No. The barrier applies.
In both cases, according to Article 974, the If B dies, can A inherit?
division of the estate shall be made per
stirpes. In such a manner, that the No. The barrier also applies.
representativeIs shall not inherit more than
what the person they represent would inherit. If by will, may neither of them inherit?
What is the reason for the No. Brothers and sisters, nieces and nephews of
aforementioned principle? the illegitimate decedent may inherit.
(dela Merced vs dela Merced)
The intervening antagonism and
incompatibility between the members of the F has four (4) legitimate children named
legitimate and illegitimate family. A, B, C and D. B has an illegitimate child
named X.
The members of the legitimate family always
look down at the illegitimate children as the Illustration:
product of sin, a palpable evidence of a
blemish upon the honor of the family. The F (+1985)
illegitimate children, in turn, always look up
with envy at the privileged position of the
members of the legitimate family.
A BC D
x
-SUCCESS
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(Dean
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1. legitimate children or
descendants
2. legitimate parents or ascendants
3. illegitimate children or
descendants
4. surviving spouse
5. brothers and sisters, nephews
and nieces
6. other collateral relatives within the
th
5 degree
7. the state
1. legitimate children or
descendants
2. illegitimate children of
descendants
3. illegitimate parents
Is a father/daughter-in-law an intestate underlying philosophy of socialization of
heir of a deceased parent-in-law? ownership of property.
It is in accordance with national economy Legitime of an illegitimate child is one half (1/2)
and social welfare, more in keeping with the of the legitime of a legitimate child. Thus, each
of the illegitimate child gets P7,500.00 or a
total of (P15,000.00)
-SUCCESS
ION-
(Dean
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Hence, F = 1
G = 2
Each legitimate children's legitime - H = 2
P60,000.00 Wife's legitime -
P15,000.00 Each illegitimate children's Therefore,
legitime - P15,000.00
Illustration:
A B
CD E F G H
I J K L M NO P Q
R S
capita or per stirpes? O,P and Q = 2/12 each
Per stirpes, but still adhering to the full and K and Q died, will R and S inherit?
half blood rule. Hence, No. R and S cannot inherit. There is no right of
representation as to the grandnephews and
E = 1/7 grandnieces.
I and J = 1/7
L, M and N = 1/7 Hence,
G = 2/7
Q = 2/7 O and P = 2/9
I,J,L,M and N = each
1/9
Thereafter, E and G died also. What each
happens? The aforementioned are all dead, may R
and S now inherit?
I,J,K,L,M,N,O,P and Q shall inherit in their
own right. The distribution shall be per Yes. (double share rule will not apply)
capita but the full and half blood rule will
still be applied. *Rules in testate succession: Double share rule
Hence,
1. applies only to brothers and sisters,
I,J,K,L,M and N = 1/12 each nephews and nieces
-SUCCESS
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R and S shall divide the estate of X equally In partial intestacy, the heir whose share in
regardless of the source of property and bigger than his legitime, must be reduced in
whether of the full or half blood. order to satisfy the legacy.
The rule on double share does not apply to *The legtitime must never be impaired.
them. It applies only to nephews and nieces.
Hence,
Illustration:
Testate Share
F
F and M (1/2)
A (adopter) P60,000.00 W (1/8)
P15,000.00 A and B
(1/4) P30,000.00
B
Intestate Share
F and M (1/2)
(adopted
P60,000.00 W (1/4)
P30,000.00 A and B
(1/4) P30,000.00
) C
Hence, as shown above, W's legitime is only
In the preceding illustration, suppose B P15,000.00. But, her intestate share is
predeceased A. Can C inherit from A by P30,000.00. Thus, following the rule, we will
right of representation? deduct the legacy to P from W's share.
F M
x W
A B In the preceding illustration, If G died will
C inherit?
Net Estate:
P120,000.00 Yes.
What about F?
The State.
Set II
What about E?
P90,000.00
Article 1015 to
Article 1023 Right
of Accretion
Article 101S
In order that the right of accretion In legal succession the share of the
may take place in a testamentary person who repudiates the inheritance
succession, it shall be necessary: shall always accrue to his co- heirs.
(981)
(1) That two or more persons be called
to the same inheritance, or to the Article 1019
same portion thereof, pro indiviso;
and The heirs to whom the portion goes by
the right of accretion take it in the same
(2) That one of the persons thus called proportion that they inherit. (n)
die before the testator, or renounce the
inheritance, or be incapacitated Article 1020
to receive it.
The heirs to whom the inheritance
(928a) accrues shall succeed to all the rights
and obligations which the heir who
Article 1017 renounced or could not receive it would
have had. (984)
The words "one-half for each" or "in
equal shares" or any Article 1021
others which, though designating an
aliquot part, do not identify it by such
description as shall make each heir the Among the compulsory heirs the right of
exclusive owner of determinate accretion shall take place only when the
property, shall not exclude the right of free portion is left to two or more of
accretion. them, or to any one of them and to a
stranger.
In case of money or fungible goods, if
the share of each heir is not Should the part repudiated be the
earmarked, there shall be a right of legitime, the other co- heirs shall
accretion. (983a) succeed to it in their own right, and not
by the right of accretion. (98S)
-SUCCESS
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Article 1023
Article 1024
Article 102S
Article 1026
(1) The priest who heard the (S) Any physician, surgeon, nurse,
confession of the testator during his health officer or druggist who took
last illness, or the minister of the care of the testator during his last
gospel who extended spiritual aid to illness;
him during the same period;
(6) Individuals, associations and
(2) The relatives of such priest or corporations not permitted by law to
minister of the gospel within the inherit. (74S, 7S2, 7S3, 7S4a)
fourth degree, the church, order,
chapter, community, organization, or Article 1028
institution to which such
priest or minister may belong;
The prohibitions mentioned in article
(3) A guardian with respect to 739, concerning donations inter vivos
testamentary dispositions given by a shall apply to testamentary provisions.
ward in his favor before the final (n)
accounts of
the guardianship have been approved, Article 1029
even if the testator should die after the
approval thereof; nevertheless, any Should the testator dispose of the whole
provision made by the ward in favor of or part of his property for prayers and
the guardian when the latter is his pious works for the benefit of his soul, in
ascendant, descendant, brother, sister, general terms and without specifying its
or spouse, shall be valid; application, the executor, with the court's
approval shall deliver one-half thereof or
(4) Any attesting witness to the its proceeds to the church or
execution of a will, the spouse, denomination to which the testator may
parents, or children, or any one belong, to be used for such prayers and
claiming under pious works, and the other half to the
State, for the purposes mentioned in
Article 1013. (747a)
-SUCCESS
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Article 1031
Article 1032
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(S) Any person convicted of adultery or
concubinage with the spouse In cases falling under Nos. 2, 3, or S of
of the testator; Article 1032, it shall be necessary to
wait until final judgment is rendered,
(6) Any person who by fraud, violence, and in the case falling under No. 4, the
intimidation, or undue influence should expiration of the month allowed for the
cause the testator to make a will report.
or to change one
already made; If the institution, devise or legacy
should be conditional, the time of the
(7) Any person who by the same means compliance with the condition shall also
prevents another from making a will, or be considered. (7S8a)
from revoking one already made,
or who supplants, conceals, or alters Article 103S
the latter's will;
If the person excluded from the
(8) Any person who falsifies or inheritance by reason of incapacity
forges a supposed will of the should be a child or descendant of the
decedent. (7S6, 673, 674a) decedent and should have children or
descendants, the latter shall acquire his
Article 1033 right to the legitime.
The cause of unworthiness shall be The person so excluded shall not enjoy
without effect if the testator had the usufruct and administration of the
knowledge thereof at the time he made property thus inherited by his children.
the will, or if, having known of them (761a)
subsequently, he should condone them
in writing. (7S7a) Article 1036
Article 1034
Alienations of hereditary property, and
acts of administration performed by
In order to judge the capacity of the the excluded heir, before the judicial
heir, devisee or legatee, his order of exclusion, are valid as to the
qualification at the time of the death of third persons who acted in good faith;
the decedent shall be the criterion. but the co-heirs shall
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Article 1038
Article 1039
Article 1040
Summary
A. In testamentary succession:
descendants; if none, the others
inherit in their own right. What is accretion?
b. In case of incapacity of an heir, the It is a right by virtue of which, when two (2) or
results are the same as in more persons are called to the same
predecease. inheritance, devise or legacy, the part
assigned to the one renounces or cannot
c. In case of disinheritance of an heir, receive his share or who died before the
the results are the same as in testator, is added or incorporated to that of
predecease. his co-heirs, co-devisees or co- legatees.
3. In case of repudiation, there is always Yes. Provided that the share of each heir is not
accretion. earmarked.
-SUCCESS
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(Dean
Navarro)
When can you say that they are There will be no accretion in case there is a
earmarked? vacancy. The share rendered vacant goes to
the mass estate of the decedent and the same
If they are particularly designated or physically will be distributed to the heirs of the decedent
segregated from all others of the same class. in accordance with the rules of intestate
succession.
If X says in his will, "I give my house and
lot located at 123 Espanya Street, X has three (3) legitimate children, A, B
Manila to my friends A, B and C". A and C. A has four
predeceased X. Will there be an (4) legitimate children, D,E,F, and G. B has
accretion? two (2) legitimate children, H and I. C has
two (2) legitimate children, J and K. X
Yes. died intestate leaving a net estate of
P120,000.00. A predecease, B is
Why? incapacitated to inherit while C
repudiated. How will you distribute the
Because all the requisites for accretion in estate?
testamentary succession to arise are
present.
The law provides that if the inheritance should P5,000.00 Legal heir of X with
be repudiated by the nearest relative, should respect to the
there be only one or by all the nearest legitime which was
relatives called by law to succeed should repudiated by D
there be several of them, those of the
following degree shall inherit in their own P50,000.00 Total Amount Received
right.
B- P15,000.00 Legitime
Hence, D, E, F, G, H,I, J and K being the ones P15,000.00 Voluntary
next in degree shall now inherit in their own share
right. The estate will therefore be distributed P7,500.00 ROA from C's voluntary
as follows: share P7,500.00 ROA from D's
voluntary share
D = P15,000.00 P5,000.00 Legal heir of X with
E = P15,000.00 respect
to the legitime which
F = P15,000.00 was
repudiated by D
G = P15,000.00
H = P15,000.00 P50,000.0 Total Amount
I = P15,000.00 0 Received
J = P15,000.00 E - P7,500.00 Representative of C
K = P15,000.00 P2,500.00 Legal heir of X with
respect
to the legitime
P120,000.00 repudiated
D by
A = P30,000.00
B = P30,000.00
C = P30,000.00
D = P30,000.00
-SUCCESS
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(Dean
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But since C predeceased and D repudiated, the But since F repudiated, his share will now
distribution is as follows: accrue to his co- heirs. Hence, the estate will
be distributed as follows:
Intestate share +As Rep of C + ROA =
Amount Legal heir + ROA from F = Amount
Received Received Intestate
A P30,000.00 + +P15,000.00 Share
=P45,000.00
B P30,000.00 + M-P30,00.00 +(2/6xP30T)10T =
+P15,000.00 =P45,000.00 E P40,000.00 M-P30,00.00
+P15,000.00 + +(2/6xP30T)10T = P40,000.00 M-
=P15,000.00 P15,00.00 +(1/6xP30T)10T =
F +P15,000.00 + P20,000.00 M-P15,00.00
=P15,000.00 +(1/6xP30T)10T = P20,000.00
In the case of "other than natural As long as the confession was made during the
persons" it is necessary that there will last illness, the priests who heard the
be juridical personality for them to be confession will be incapacitated to inherit from
capacitated to inherit? the testator.
No. Dr A can still get his legitime. The Article 1027 does not prevent an heir who is
disqualification applies only to the free incapacitated thereunder from inheriting as
portion. an intestate heir. Therefore, A, B and C will
still inherit the free portion because they are
Why does the disqualification effects the first in order of the intestate succession.
only the free portion and not the
legitime? Hence, A, B and C will divide the free portion
-P60,000.00 among themselves.
Because the legitime is expressly reserved by
law to the compulsory heirs. The testator Therefore, the share of each will be as follows:
cannot even impair or dispose the legitime.
A - P20,000.00
*Dean Navarro: In connection with Article A's compulsory
1027{4), read in connection with Article 823. heir P20,000.00 A's intestate
heir
Article 823 provides for an exception, "unless B - P20,000.00
there are three {3) other competent A's compulsory
witnesses to such will". heir P20,000.00 A's intestate
heir
During Mr X last illness, he confessed to C - P20,000.00
his son Father A. The doctor who took A's compulsory
care of him was his other son, Dr B. Mr X heir P20,000.00 A's intestate
had three (3) children, A, B and C. In his heir
will he instituted his three (3) children
as heirs. The net estate is P120,000.00. P120,000.00
he died survived by A, B, C and D (the
fist cousin of X). Distribute the estate. Dean Navarro's Lecture:
Illustrati x D
on: GF
A B C
F
U
The ns over the may be, as long as the disposition is made in
law person or your favor before the initial accounts of
does guardians over guardianship have been approved, the
not the property of incapacity under Article 1027 applies.
disting the ward.
uish Hence, no 2.Article 1028
betwee matter what
n kind of Correlate this with Article 739 concerning
guardia guardian you donation inter vivos.
The entire estate of P120,000.00 will go to A, Read the case of Nepomuceno vs Court of
B and C. Appeals.
1. The legitimes of A, B and C are not 3.Article 1029
affected. Hence, they are entitled
to their legitime - P60,000.00 or Apply only the 1/2:1/2 rule (1/2 to the church or
P20,000.00 for each of them. denomination and 1/2 to the government), if the
testator:
2. The issue now is who will be entitled
to the free portion - P60,000.00 a. simply left the property for prayers
and pious works in general terms
b. without specification of its application
-SUCCESS
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How is unworthiness
removed? By pardon,
Can an express pardon which has father X. Thereafter, X disinherited S
already been made be withdrawn? because of the conviction. Before the
death of X, there was a tearful
No. The moment the testator has expressly reconciliation between father and son.
condoned the act of unworthiness, the act of Can S inherit from his father X?
unworthiness is eradicated or erased.
Yes. Because when X disinherited S, X submitted
What about an implied condonation or himself to the rules on disinheritance.
pardon?
One of the rules on disinheritance is
By its very nature, an implied reconciliation shall deprived the offended party
pardon/condonation may be withdrawn of the right to disinherit and it renders
because the testator has the absolute right to ineffectively any disinheritance previously
revoke his will, he can revoked his will at any made.
time for no reason at all.
In the preceding problem, what if X did
The moment he revokes his will, wherein the not disinherit S and there was a
implied condonation is contained, then there reconciliation between them. Will S
ceases to be any implied condonation inherit?
because the will containing it has ceased to
exist. No. Because S is unworthy to inherit from X.
Suppose that the act is a cause for X, in this case, has not submitted himself to the
unworthiness and also a cause for rules on disinheritance, precisely because X did
disinheritance, what rules should be not disinherit S. Therefpre, the rules of
applied? unworthiness apply.
If the testator submitted himself to the rules of One of the rules of unworthiness is
disinheritance by disinheriting the heir, then unworthiness can only be removed by pardon,
the rules on disinheritance apply. express or implied.
If he did not disinherit the heir, the rules on When do you terminate the capacity of the
unworthiness apply. heir?
Why?
Article 1042
Article 1043
Article 1044
Article 104S
Article 10S1
The acceptance or repudiation of an
The repudiation of an inheritance shall inheritance, once made, is irrevocable,
be made in a public or authentic and cannot be impugned, except when it
instrument, or by petition presented to was made through any of the causes that
the court having jurisdiction over the vitiate consent, or when an unknown will
testamentary or intestate proceedings. appears. (997)
(1008)
Article 10S7
Article 10S2
Article 10S3
Article 10S4
Article 10SS
Article 10S6
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of Court, the heirs, devisees and A corporation or association authorized
legatees shall signify to the court to conduct the business of a trust
having jurisdiction whether they accept company in the Philippines may be
or repudiate the inheritance. appointed as an executor, administrator,
guardian of an estate, or trustee, in like
If they do not do so within that time, manner as an individual; but it shall not
they are deemed to have accepted the be appointed guardian of the person of a
inheritance. (n) ward. (n)
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Article 106S
Article 1066
Article 1067
Article 1068
Wedding gifts by parents and collation in his or her inheritance.
ascendants consisting of jewelry, (1046a)
clothing, and outfit, shall not be
reduced as inofficious except insofar Article 1073
as they may exceed one-tenth of the
sum which is disposable by will. (1044)
The donee's share of the estate shall be
reduced by an amount equal to that
Article 1071 already received by him; and his co- heirs
shall receive an equivalent, as much as
The same things donated are not to be possible, in property of the same nature,
brought to collation and partition, but class and quality. (1047)
only their value at the time of the
donation, even though their just value Article 1074
may not then have been assessed.
Should the provisions of the preceding
Their subsequent increase or article be impracticable, if the property
deterioration and even their total loss donated was immovable, the co-heirs
or destruction, be it accidental or shall be entitled to receive its
culpable, shall be for the benefit or equivalent in cash or securities, at the
account and risk of the donee. (104Sa) rate of quotation; and should there be
neither cash or marketable securities in
Article 1072 the estate, so much of the other
property as may be necessary shall be
In the collation of a donation made by sold at public auction.
both parents, one- half shall be brought
to the inheritance of the father, and the If the property donated was movable, the
other half, to that of the mother. That co-heirs shall only have a right to select
given by one alone shall be brought to an equivalent of other personal property
of the inheritance at its just price. (1048)
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(Dean
Navarro)
The fruits and interest of the property Where there are two or more heirs, the
subject to collation shall not pertain to whole estate of the decedent is, before its
the estate except from the day on which partition, owned in common by such heirs,
the succession is opened. subject to the payment of debts of the
deceased. (n)
For the purpose of ascertaining their
amount, the fruits and interest of the Article
property of the estate of the same 1079
kind and quality as that subject to
collation shall be made the standard of Partition, in general, is the separation,
assessment. (1049) division and assignment of a thing held
in common among those to whom it may
Article belong. The thing itself may be divided,
1076 or its value. (n)
Article
1077
Article
1078
Should a person make partition of his notifying the co-heirs, the creditors, and
estate by an act inter vivos, or by will, the legatees or devisees. (10S7a)
such partition shall be respected,
insofar as it does not prejudice the Article 1082
legitime of the compulsory heirs.
Every act which is intended to put an end
A parent who, in the interest of his or to indivision among co-heirs and
her family, desires to keep any legatees or devisees is deemed to be a
agricultural, industrial, or partition, although it should purport to
manufacturing enterprise intact, may be a sale, and exchange, a compromise,
avail himself of the right granted him in or any other transaction. (n)
this article, by ordering that the
legitime of the other children to whom
Article 1083
the property is not assigned, be paid in
cash. (10S6a)
Every co-heir has a right to demand the
division of the estate unless the testator
Article 1081
should have expressly forbidden its
partition, in which case the period of
A person may, by an act inter vivos or indivision shall not exceed twenty years
mortis causa, intrust the mere power as provided in article 494. This power of
to make the partition after his death the testator to prohibit division applies
to any person who is not one of the to the legitime.
co-heirs.
Even though forbidden by the testator,
The provisions of this and of the the co-ownership terminates when any
preceding article shall be observed even of the causes for which partnership is
should there be among the co-heirs a dissolved takes place, or when the court
minor or a person subject to finds for compelling reasons that
guardianship; but the mandatary, in division should be ordered, upon petition
such case, shall make an inventory of of one of the co-heirs. (10S1a)
the property of the estate, after
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(Dean
Navarro)
Voluntary heirs upon whom some price of the sale, provided they do so
condition has been imposed cannot within the period of one month from the
demand a partition until the condition time they
has been fulfilled; but the other co-heirs were notified in writing of the sale by the
may demand it by giving sufficient
security for the rights which the former vendor. (1067a) Article 1089
may have in case the condition should
be complied with, and until it is known
The titles of acquisition or ownership of
that the condition has not been fulfilled
each property shall be delivered to the
or can never be complied with, the
co-heir to whom said property has been
partition shall be understood to be
adjudicated. (106Sa)
provisional. (10S4a)
Article 108S
Article 1086
Article 1087
Article 1088
Co-heirs do not warrant bad debts, if so lesion, except when the legitime of the
known to, and accepted by, the compulsory heirs is thereby prejudiced,
distributee. But if such debts are not or when it appears or may reasonably be
assigned to a co-heir, and should be presumed, that the intention of the
collected, in whole or in part, the amount testator was otherwise. (107S)
collected shall be distributed
proportionately among the heirs. (1072a) Article 1100
Article 1097
Article 1098
Article 1099
Exceptions:
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(Dean
Navarro)
Acceptance and repudiation will always *Acceptance is easier to do, rather than
retroact to the moment of death of the repudiation. One can even be deemed to have
decedent. accepted without doing anything.
Article 1047
4.Article 1066 - Donations made to son-in- The aforementioned are not subject to
law or daughter-in-law are charged to the collation. It is not even added to the value of
free portion, because they are considered the estate.
strangers.
Illustration of Collation:
5.Article 1064 and Article 1065
a. expenses for support
If the grandchildren will be inheriting by right b. education (elementary and high school)
of representation, the donations given to the c. medical attendance, even in
grandchildren are to be brought to collation extraordinary illness
and charged against what they may have d. apprenticeship
received by right of representation. e. ordinary equipment
f. customary gifts
However, if such grandchild/children will not
be inheriting by right of representation
because their parents are still alive, the rule
is, the donations will be charged against the
free portion.
6.Article 1069
A D W P500,000.00 Donations:
B C
P30,000.00 = Election
Expenses of B P10,000.00 =
E Ring given to E
P20,000.00 = Bracelet given to W
X has four (4) children, A, B, C and D. D P40,000.00 = Wedding gift to D
is married to W. B has a son named E. X P10,000.00 = College education
died with a net worth of PS00,000.00. of C
During X's lifetime, he made the
following disposition: He spent P610,000.00 = Total Hereditary
P300,000.00 for the medical expenses Estate
of A. He spent P30,000.00 for the
election expenses of B, when he ran for The medical expenses of A is not added, as
a public office. He gave his grandson, E, mentioned in Article 1067.
a ring worth P10,000.00. He gave his
daughter-in-law, W, a bracelet worth B) Hence, the total hereditary estate is
P20,000.00. When P610,000.00. From this amount, we ascertain
D got married, X gave D jewelries worth the legitime and the free portion. The legitime
P40,000.00, as a wedding gift. He also of A,B,C, and D is P305,00.00 or P76,250.00
spent P10,000.00 for the college each. The free portion is P305.000.
education of his own son C.
Second Step: Collation in the sense of
First Step: Collation in the sense of Charging or Imputation
Addition
In this case, determine where to deduct the
items. Whether it should be deducted from the
legitime or from the free portion.
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(Dean
Navarro)
Ring given to E
P30,500.00 College
Education of C P10,000.00
P70,500.00
P234,500.00 Explanation: