Critical Part of Wills & Succession

Institution of Heir

1. X wants to make a Will. So, he seeks your advice regarding the requisites for a valid institution of
heir. What will your advice be? (Art. 840)

The requisites for a valid institution of heir are the following:

a. The will must be EXTRINSICALLY VALID. Hence:

- the testator must be capacitated
- the formalities must be observed
- the will must have been duly probated
- the will must have been the personal act of the testator.
- there must be no vitiated consent

b. The institution must be valid INTRINSICALLY.

- The legitime must not be impaired
- the heir must be certain or ascertainable
- there should be no preterition.
c. The institution must be EFFECTIVE (no predecease, no repudiation by the heir, no incapacity of the heir).

2. X seeks your advice regarding the validity of the Will he made. According to him, the Will he
made:
- Does not contain an institution of an heir
- Does not comprise the entire estate
- the person so instituted does not accept the inheritance or should be incapacitated to
succeed.

The Will is valid. However, in such cases, the testamentary dispositions made in accordance with law shall be complied with and
the remainder of the estate shall pass to the legal heirs. (Art. 841)

Ex. T died, giving nothing in his will to his brother B, and instituting his friend F. If F refuses to accept, or is disqualified to
inherit, B as sole legal heir gets the estate without prejudice to the remaining effective provisions of the will.

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3. Is a testator allowed to give ALL his estate to his niece?

Yes. Provided that he has no compulsory heirs.

4. As a judge before a probate proceeding, you are faced with a will having only one instituted
heir. However, among persons having the same names and surnames, there is a similarity of
circumstances in such a way that, even with the use of other proof, the person instituted cannot
be identified. What will you do? (844)
 As a judge, I will rule that none of them shall be an heir.

5. Is a disposition in favor of an unknown person void?

Yes. Art 845

6. X has no compulsory heirs. He instituted A and B as his heirs but without designation of shares.
How much will they inherit? Art 846

They will inherit in equal parts.

Reason for the law: The law merely expresses what it presumes to have
been the testators intention, for had he desired otherwise, he
should have been more specific.

Is the institution of compulsory heir to the will valid?

Yes. But it is superfluous since by law, he is entitled to it.

A, B, C, and D are instituted, but A is given specifically a share of 1/10 only. What should be done
with the remaining 9/10?

The remainder will be divided equally among

the remaining three (B, C, and D).

7. What is the presumption of the law in an institution of a collective heir? Art. 847

Those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention
of the testator was otherwise.

Ex. I institute as my heirs A, B, and the three children of C to my estate of P100,000. How
much will each of the three children get?

ANS.: P20,000 each. Reason: Although collectively designated, they shall be considered individually instituted (estate
to be divided into 5), unless it clearly appears that the testators
intention was otherwise.

Ex. If the testator had stated I institute A, B, and my three children, to an estate of P300,000,
how much would each child get?

ANS.: We apply here the rule of first giving the children their legitimes and dividing the balance into 5. Hence,
P150,000 as legitime goes to the children (each getting P50,000), while the remaining P150,000 will be divided among
the 5 heirs
instituted.

8. In case of institution of brothers and sisters, and he has some of full blood and others of half
blood, how do you designate the inheritance?

It shall be distributed equally.

9. What if the testator has instituted only one heir, and the institution is limited only to an aliquot
part of the inheritance, what will happen to the remainder?

- legal succession takes place with respect to the remainder

of the estate. The remaining will go to the legal heirs by way of intestate succession.

10. X, having the intent to give his entire estate to A,B, and C, designated each one of them to get
of his estate. Where will the remaining of the estate go? Art 852

Ans. As a rule, when the aliquot parts together do not cover the whole inheritance, or the whole free portion, each
part shall be increased proportionately. The 1/4 still undistributed should clearly be divided proportionately in this
particular case, equally among A, B, and C, since this is the evident intention of the testator.

What if the aliquot parts together exceeds the inheritance or free portion? Art. 853

Ans. As a rule, in case of excess, the share of each must be reduced proportionately.

11. If a compulsory heir is given a very small amount of share, is there a preterition?

Ans. None. If a compulsory heir is given a share in the inheritance no matter how small, there is
no preterition, for here, under another article (Art. 906), he is entitled only to the completion of his legitime.

What if a compulsory heir is not given anything in the will, but he has already received a
donation from the testator, is there a preterition?

Ans. There is no preterition because after all, a donation to a compulsory heir is considered an advance of the
inheritance or legitime.

Note: Thus, the omission of the testators father, when the testator institutes his own children is
NOT preterition; but the omission of one or both parents when there are no legitimate children
or descendants constitutes PRETERITION, for in this case, the parents would be compulsory
heirs.

How would then the estate be distributed?

Ans. It would be distributed thru intestate succession since the preterition of the parent (which is the nearest heir,
having no children) annuls the institution of heir. Hence, intestate succession takes place.

Ex. T has three sons A, B, and C. T made a will instituting A, B, and a friend F. C was omitted. If
the estate is P90,000, how should same be distributed?

ANS. Since the institution is annulled, it is as if there was no institution, hence, intestate succession takes place. A, B,
and C will each get P30,000. F, the friend, gets nothing.
 NOTE: In the problem, it is clear that F was not being made a legatee merely, he was indeed
instituted as heir. It would be error to consider all bequests in favor of strangers as legacies or
devises.

Note: Hence, construed strictly and literally, there is no preterition of a surviving spouse, for
though a compulsory heir, she is not in the direct line.

NOTE: If a testator institutes in his holographic will a sister or brother as the only heir, and fails
to institute his parents, who are still alive, this is a clear case of PRETERITION, and the instituted
heir should get NOTHING because said institution is void, on account of the preterition.

**Lets talk about the share of LEGACIES and DEVISES **

12. Shall the share of the legacies and devises be invalidated in case the institution of heir is
annulled due to preterition? Art 854

Ans. No. It shall remain valid insofar as they are not inofficious. (In other words, they are not voided, but merely
reducible if the legitime has been impaired).

>>>>>examples<<<<<

T has two sons, A and B. In Ts will, he gave F, a friend, P10,000 as a legacy out of an estate of
P100,000. A and B were omitted. How should the estate on Ts death be distributed?

ANS.: Since the estate is worth P100,000, the free portion is P50,000. Therefore, the legacy of
P10,000 is not inofficious, and should remain effective. The remaining P90,000 will be divided equally between the
two children. Hence, the estate will be distributed as follows:
A = P45,000
B = P45,000
F = P10,000
P100,000

T has two legitimate sons A and B. In Ts will, he gave a friend F a legacy of P10,000; instituted A
as heir; and deliberately omitted B. If the estate is P100,000, how should the estate be
distributed on Ts death?

ANS.: In view of the preterition, the institution of A is not valid, but the legacy is effective, for
the legitime has not been impaired. Therefore, the remaining P90,000 will be divided intestate.

HENCE:
A = P45,000
B = P45,000
F = P10,000
P100,000
 In problem No. 2, if the legacy had been P60,000, and the other facts are the same, how would
the estate be distributed?

ANS.: The estate being P100,000, the free portion is only P50,000, hence, the legacy of P60,000
should be reduced by P10,000, leaving the distribution as follows:
A = P25,000
B = P25,000
F = P50,000
P100,000

13. What if a voluntary heir die before the testator, would his heirs receive anything insofar as the
inchoate rights of his predecessor is concern? Art 856

Ans. Nothing. He would not receive anything. As a rule, voluntary heir who dies before the testator, transmit
nothing to their own heirs.

Where would the estate go? The estate should therefore go to the intestate heirs.

Ex. A and B are legitimate children of T. C is a legitimate child of A. The estate is P100,000. A
and B were instituted heirs.

(a) If A dies before T, how much, if any, will C and B get?

ANS.: A was a compulsory heir to the legitime of P25,000. Therefore, C will get only P25,000 (the legitime of A) in
representation of A. The remaining P75,000 will all go to B.

(b) If A is incapacitated, same answer as (a)

(c) If A renounces the inheritance, C gets nothing since a person who renounces an inheritance cannot be
represented. Therefore, everything goes to B.

**SUBSTITUTION OF HEIRS**

14. What is a simple or common substitution? Art 859

Ans. It talks of express substitution in case of:

1) predecease
2) renunciation or repudiation
3) incapacity

Ex. Example: A instituted B as heir, and stated in his will that in case B dies ahead of him (A), another person C will
substitute B.
 Note: the designation must always be express.

Ex. The testatrix instituted an heiress and ordered that the children of the heiress would
substitute the heiress should said heiress die after the testatrix. Is this a case of simple
substitution?

ANS. No, this is not a case of simple substitution. In simple substitution of this nature, the heir or heiress dies before,
and not after the testator or testatrix.

Ex. T made a will instituting X as heir, and Y as substitute. In 1998, Y died, leaving Z, his child. In
2003, T died but X is incapacitated to inherit. Is Z going to inherit from T?

ANS. No, because Y may be considered a voluntary heir, and since he predeceased the testator,
he transmits nothing to his own heirs. In the absence of any other provision in the will, legal
succession will take place.

Ex. T made a will instituting X as heir, and Y, as substitute. T died on Jan. 5, 2004. X renounced
the inheritance on Jan. 7, 2004. Y died on Jan. 8, 2004. Can Z, the child of Y get anything from Ts
estate?

ANS. Yes, because this is not a case of predecease on the part of Y, who after all survived the testator, and
immediately inherited from T, subject to the condition of Xs non-inheritance. Since the condition was fulfilled there is
no doubt that Y inherited. True, Y is now dead, but his son Z can share in Ts estate, not as an heir of T, but merely to
get the share already inherited by his father Y.

15. What is fideicommissary substitution (indirect substitution)? Art 863

Ans. Is that by virtue of which a testator institutes a first heir, and charges him to preserve and transmit the whole or
part of the inheritance later on to a second heir.

Ex. T institutes A as first heir. The will states that A should preserve and transmit later on the
estate to B, who is As son. (It is clear here that upon Ts death, A will inherit. Later on, A will
have to deliver the property to B who has also inherited as second heir. In other words, in the
fideicommissary substitution, both heirs inherit).

Requisites and Limitations of the Fideicommissary Substitution

(a) There must be a FIRST HEIR called primarily or preferentially to the enjoyment of the
property.
(b) There must be an obligation clearly imposed upon him to preserve and transmit to a third
person the whole or part of the inheritance (part only if the substitution refers merely to that
part).
(c) A SECOND HEIR.
(d) The 1st and the 2nd heirs must be only one degree apart.
 Ex. T instituted A as first heir, and B (As brother), as second heir in what he desired to be
fideicommissary substitution. When T died, A got the property. Later, A died. Who will get the
said property, As heir or B?

ANS.: As heir, because the fideicommissary substitution was not valid, B being a relative of the
2nd degree of A. It does not matter that there was only one transfer here.

Ex. T instituted A as first heir; B (As son) as 2nd heir; and C (Bs mother) as 3rd heir in a
fideicommissary substitution. Is this valid?

ANS. It is valid insofar as A will get and then B. But on Bs death, C does not get the property as
a result of the fideicommissary substitution because C is not one degree apart from A.
(However, there is a chance C can get the property, not as a result of Ts will, but as a result of Bs will or Bs intestate
succession, for she is after all an heir of B.)

Ex. T institutes A as 1st heir, B as second heir. A dies in 2012; T dies in 2013. Will B inherit in
2013?
ANS. It is apparent that the fideicommissary substitution cannot be given effect, for the 1st heir
was already dead at the time the testator died. If, therefore, A does not inherit, and if the
substitution of B is not valid, it would seem that the logical answer is that B does not inherit.
Indeed, the fideicommissary substitution cannot be given effect for it was void. However, liberal
construction of the law can permit us, I believe, to consider this not as a fideicommissary
substitution but as a SIMPLE one.

In such a case, B can inherit. This interpretation can indeed give effect to the testators desire to
eventually give the property to the substitute. And certainly by providing for a substitute, the
testator has made it clear that as between intestacy and substitution, the latter would be
preferred.

Note: first heir = Fiduciary. Second Heir = Fideicommisary

16. Who will succeed if the fideicommissary dies before the fiduciary? Art 866

Ans. The right of the second heir shall pass to his heirs. Why? Because the second heir inherits, not from the first heir,
but from the testator.

17. Is the disposition of the testator declaring all or part of the estate inalienable for more than
twenty years valid? Art 870

Ans. No. it is a void stipulation.