SUCCESSION
by law, by contract and by will.
Succession is part of book 3. Why is there a law on succession? It is designed to
complement the first 2 books of the Civil Code? Why and how?
In the first book, we talk about persons. A person is composed of 2 parts:
Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations,
is inherent in every natural person and is lost only through death. Capacity to act,
which is the power to do acts with legal effect, is acquired and may be lost.
(1) Juridical personality - fitness to be the subject matter of legal relations.
Juridical personality which is inherent in every natural person is the subtotal of
all the qualifications necessary to enable an individual to be the subject matter of
legal relationships. That is the essence of being a person.
Juridical personality is determined by the fact of birth. Birth is defined by law as
the complete separation from the maternal womb. At this moment, juridical
personality is automatically conferred by law. That thing that comes out of the
womb of the mother becomes fit to be the subject of legal relations.
Art. 40. Birth determines personality; but the conceived child shall be considered
born for all purposes that are favorable to it, provided it be born later with the
conditions specified in the following article.
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if the fetus had an intra-
uterine life of less than seven months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from the maternal womb.
Juridical personality entitles a person to enter into transactions.
(2) Capacity to act - ability to perform an act that will produce legal effects.
In the second book of the Civil Code, we talk about property: the rights and
obligations arising from property ownership. When a person dies, there will be
not only property but also obligations left.
Art. 1156. An obligation is a juridical necessity to give, to do or not to do.
The concept of juridical necessity mandates that you fulfill your obligation. Upon
death, there may be obligations not yet fulfilled. That is a person who died not
only with assets but also with liabilities.
If a person dies and the only property he left is a bar of gold weighing a kilo
(P3,000,000), what will happen if we did not have a law on hereditary
succession? You can claim ownership to property only because you have juridical
personality. When you die, juridical personality is extinguished.
Art. 42. Civil personality is extinguished by death.
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The effect of death upon the rights and obligations of the deceased is determined
If the death of a person extinguishes all rights to ownership, and there is no law
that regulates the transmission of ownership, then the property will be left
without an owner. Res nullius (nobody’s property) becomes the property of the
person who takes possession of it. The people will fight for the possession of the
bar of gold without the owner because possession translates to ownership.
Because of that, it has become important for a legal system to make a provision
for a law that regulates the transmission of property and rights to a person’s heirs
when a person finally dies.
In the third book of the Civil Code, we talk about what happens when a person
dies. He is possessed with assets as well as with liabilities.
Art. 774. Succession is a mode of acquisition by virtue of which the property,
rights and obligations to the extent of the value of the inheritance, of a person are
transmitted through his death to another or others either by his will or by
operation of law.
Succession is a mode of acquisition - this means that succession is one of the
statutory basis in which one may lay a claim over a particular thing. You acquire
ownership. This recognizes the provision of Art. 712 where succession is a mode
of acquiring ownership.
There are 7 modes of acquisition: OLDTIPS
Art. 712. Ownership is acquired by occupation and by intellectual creation.
Ownership and other real rights over property are acquired and transmitted by
law, by donation, by estate and intestate succession, and in consequence of
certain contracts, by tradition.
They may also be acquired by means of prescription.
When you lay claim of ownership to a particular thing, you must be able to
identify the source of such ownership, which must be one of those modes
recognized by law in Art. 712.
Two types of modes of acquisition:
1. Original - there is no prior owner. The person claiming ownership is the
original owner of the thing such as in occupation or in intellectual creation.
Involves res nullius.
2. Derivative - there is a prior owner who transfers ownership of the property to
you.
Succession is a mode of acquisition which involves a transmission from the
decedent to the heir. Since succession is a mode of acquisition which involves the
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transmission from the decedent to the heir, succession is a derivative mode of
acquisition. It presupposes the prior ownership of the decedent which upon
death is passed on to the successor.
Subrogation is a form of novation: change of creditor. Succession is not a form of
subrogation because in succession, we are not only looking at credits; we are also
looking at obligations.
Art. 84. If the future spouses agree upon a regime other than the absolute
community of property, they cannot donate to each other in their marriage
settlements more than one-fifth of their present property. Any excess shall be
considered void.
Donations of future property shall be governed by the provisions on testamentary
succession and the formalities of wills. (Family Code)
Contractual succession – is a stipulation contained in an anti-nuptial contract or
prenuptial contract. There can be no donation between the husband and the wife
(1) to avoid the risk of the dominant spouse taking advantage of the weaker
spouse; and (2) in our system of law, the property regime that will govern the
relationship of the spouses is established at the moment of the celebration of the
marriage. Once established, it is an immutable system of property relations that
will only permit a conversion to absolute separation of property and only by
judicial decree. And if you did not have a prenuptial agreement, Absolute
Community Property will be the mandatory regime.
That is why Art. 84 states that if you want to donate to your future spouse,
include it in the prenuptial agreement. After you get married, you can no longer
donate to your spouse.
In Art. 84, there are two kinds of donation that can be given to spouse:
1. donation of present property – what you can donate here and now. The limit is
maximum of 1/5 of all present property (inter vivos).
2. donation of future property – can only take effect mortis causa. There is still a
limit: only to the extent that you are permitted to give by the will (if you have
compulsory heirs, you have to make sure that the legitime is preserved.)
How can succession be contractual if it is gratuitous. Contractual presupposes the
existence of a consideration. It cannot be succession is you paid something out of
it. The only reason it is called contractual succession is because the gift is
embodied not in a deed of donation, not in a will, but in a prenuptial contract. It
is succession inside a contract; that’s why it is called contractual succession.
Art. 122. The marriage settlements and any modification thereof shall be
governed by the Statute of Frauds, and executed before the celebration of the
marriage. They shall not prejudice third persons unless they are recorded in the
Registry of Property.
Art. 122 talks of the Civil Code counterpart of contractual succession of the
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Family Code. Marriage settlement is governed by the statute of frauds (Art.
1403). The statute of frauds require that the agreement must be evidenced by a
written instrument or by a written memorandum. If the anti-nuptial contract is
governed by the statute of frauds, Art. 122 states that whatever is agreed upon
should be written. If you want to give a donation under the anti-nuptial contract,
you can do that as long as you write it.
Art 84 presents a qualification. You can give a donation in the anti-nuptial
contract but the governing law is no longer that statute of frauds, but the law on
testamentary succession.
There are two types of wills: notarial (Art. 804, 805, 806) and holographic (Art.
810). If holographic, Art. 810 only requires that the will be written, dated and
signed entirely by the hand of the testator. If notarial, there are a lot of
requirements. Whether it is a notarial or a holographic will, Art. 818 prohibits the
execution of joint wills. If there are two testators, that instrument is void.
Theoretically, we are allowed to give donations in the pre-nuptial agreement. In
the old law, putting it in writing makes it valid because that is the sole
requirement of the statute of frauds. Today, if I have a donation mortis causa, I
have to comply with the form of a will. It could either be notarial or holographic.
If the document 2 signatures of parties, that document is a complete nullity. Can
you still make a contractual succession? No, because of Art. 84.
Estate of Hemady vs Luzon Surety Co., Inc.: What is the difference
between contingent obligation (opposite is actual liability) and conditional
obligation? Contingent liability is a liability that is not yet actual. It is potential.
There is only a possibility that there may be a liability.
In Hemady, we are talking about a contingent liability. He may or may not incur
a liability. How did the contingent liability arise? Hemady is a surety in
indemnity agreements. A surety is a person who guarantees the performance of
the obligation of a principal debtor but when he binds himself to the creditor for
the performance of that obligation, he binds himself jointly and solidarily with
the principal debtor. How does he differ from an ordinary guarantor? The
liability of a guarantee is subsidiary (there is a benefit of excussion) while the
liability of a surety is primary. The guarantor is only liable after the
establishment of the prior default of the guarantor.
A surety company, like Luzon Surety Co, Inc., is a corporation that is engaged in
the business of giving sureties. Nowadays, they are called bonding companies.
When Luzon Surety issues a surety bond, it is providing an instrument that will
guarantee the obligation of a debtor to a creditor. In the construction business,
like in the business of Hemady, what is involved is a performance bond.
Before building the house, the contractor will ask for an advance payment for
mobilization. The contractor will give you a bond to guarantee many things such
as: the advanced payment will be returned in case of breach of contract, the
contractor will give a performance bond, and other securities (if the contractor
defaults, you serve the bond to the bonding company and they will pay the cost of
the damage).
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Luzon Surety issued 20 surety bonds securing 20 obligations. If the obligations
are not performed, Luzon Surety will be held liable to the extent of the face value
of each of the bonds. Where there is a surety bond, there is an assured party
(secured party). To protect itself, the surety company will ask for a collateral
(chattel or estate mortgage) from the principal debtor. Hemady has a contingent
liability because if the principal debtor doesn’t perform, the creditor will call on
the bond, so the collateral is necessary. Hemady provided a counter indemnity
for the principal debtor. Hemady’s liability is subsidiary.
There was no default in the principal obligation. However, Hemady died. When
Hemady died, the Luzon Surety got worried because if the principal debtor
defaults and the bond is called, the Luzon Surety cannot demand payment from
the dead Hemady anymore.
In the settlement of the estate of a deceased person, the first thing that has to be
done before the distribution of the estate is the payment of the estate tax, the
creditors, and from the balance, you can distribute. Since there is no default yet,
there is no claim against the principal debtor, no claim against the surety
company, and of course, no actual claim against Hemady. If the estate of Hemady
is distributed and the principal debtor defaults and the surety bond is called, and
the principal debtor cannot reimburse, Hemady will not be there anymore to
answer for the counter indemnity.
Luzon Surety asked the intestate court to recognize Luzon Surety as having a
potential claim against Hemady. Luzon Surety was not demanding payment
because there is no claim on the bond yet. And even if there is a claim on the
bond, if the principal debtor paid, Hemady will still not be liable. For Hemady to
be liable, there must be a breach the principal debtor could not make good, there
is a call on the bond, the debtor cannot reimburse. There are several steps before
you reach Hemady. The contingent liability is here Hemady may owe Luzon
Surety.
Why is it important for Luzon Surety to ask the Court to recognize that it has a
potential (contingent) claim against the Estate of Hemady? In the settlement of
the estate of a deceased person under the Rules of Court, especially if this is
judicial, when the court has acquired jurisdiction over the subject matter and has
appointed an administrator, it should issue an order advising all persons who
have a claim against the deceased person to come forward and prove their claim
in the intestate court; otherwise, if they do not press a claim within 6 months
from the date of last publication, all claims are barred.
The administrator claimed that Hemady ceased to become a guarantor when he
died and therefore released from liability. According to the law, it required
integrity (integer = one – as in the person is whole) for one to be a guarantor. The
liability of the guarantor is not transmissible to the heirs because the liability of a
guarantor is dependent on his qualifications as such and one of the essential
qualifications of a guarantor is integrity. Integrity being personal, the obligation
that hinges upon the qualification of integrity is that part of the estate of the
deceased person and therefore not transmitted to his heirs.
Cleaner argument: The guarantor ceased to be a person because death
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extinguishes juridical personality and therefore whatever contract he entered into
no longer has effect because he has ceased to be the subject matter of a legal
relationship. But he was using the integrity argument because he cannot say that
the liability of a surety is extinguished by death since this is an obligation under a
commercial contract, a propriety liability, and cannot be extinguished by death.
SC: The qualification of integrity is necessary only at the beginning. Once
established, it becomes irrelevant thereafter. The qualification of integrity is
imposed by law not for the benefit of the guarantor but for the benefit of the
creditor. The creditor may waive this and may choose to requirement of integrity.
It is not correct to state that while death extinguishes personality, renders
integrity moot and academic, it does not result in the discharge of the contingent
liability of a guarantor or a surety.
Art. 1311. Contracts take effect only between the parties, their assigns and heirs,
except in case where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by provision of law. The heir is
not liable beyond the value of the property he received from the decedent. xxx
General rule on privity: When you enter into a contract, the obligations as
well as the rights under that contract is binding not only on the parties but also
on their successors-in-interest.
Exceptions: purely personal; stipulation to the contrary; when the law states it
is non-transmissible.
The liability of a surety is not personal, not prohibited by the stipulation of the
parties, and the transmission of the obligation is not prohibited by law.
Therefore, the contingent liability of Hemady, while he may have died, is not
extinguished by his death and these contingent liabilities are transferrable to his
heirs and therefore these contingent liabilities will form part of the PRO. The
bottom-line is, the O includes not only actual but also contingent liability.
National Housing Authority v Almeida: When Margarita was alive, she
bought a lot from NHA, which NHA awarded because she was previously a
squatter. She and her family occupied the land. She was not able to completely
pay NHA but when she was about to die, she made a “Sinumpaang Salaysay”
(affidavit) stating that she was giving the NHA land to Francisca because
Francisca paid for the NHA land with her separate property.
Francisca executed an affidavit of sole adjudication of compulsory heir. There are
many ways of settling an estate. If there is a will, you call it proceedings in
testamentary succession or probate. If there is no will, you may choose judicial
settlement through proceedings in intestacy. When the heirs are not in dispute
and they simply want a division of the estate, they can file an ordinary action for
partition; if all heirs are of legal age, no debts or obligations, they can resort to an
extrajudicial partition; or when there is a sole heir, the same can execute an
affidavit of self-adjudication. The last option is what Francisca did because her
sister, Beatrice is already dead. However, Beatrice has a child. Then it is not true
that Francisca is the sole heir of Margarita. The grandchild can inherit by right of
representation.
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When the affidavit was executed, Francisca paid the estate taxes and debts and a
title to the property was issued in her name. When the child found out, NHA
disregarded and issued another title in favor of Francisca because Margarita
already gave several lots to Beatrice. Also, Francisca has no heirs. Margarita lived
with Francisca. When NHA evaluated the facts, it was discovered that Francisca
was the one who lived in the property and not Beatrice. NHA held that Francisca
had a better right to the property. However, this decision was reversed.
Francisca made an offer to buy the property from NHA (this is the 2nd time
Francisca used the affidavit of Margarita; the 1st time was when she declared all
the properties hers). The grandchildren opposed. NHA ruled that Francisca had a
right to buy.
SC: The granting of the right to Francisca was not proper because (1) the contract
of Margarita was not extinguished by her death. Therefore, that contract still
survives. The NHA had no authority to create another contract involving the
same parcels of land (double sale under Art. 1544).
The implication of this ruling is the flip-side of that obligation which is not
extinguished is her right to the property, both of which now form part of her
estate. The contract is transmitted to her heirs by hereditary succession. The
exceptions in Art. 1311 are not applicable.
The main gospel of the case is to establish that contracts left behind by a
deceased person will form part of his/her estate and secondarily, we have here
jurisprudence to the effect that an affidavit that contains a provision indicating a
desire to transmit property mortis causa can be considered as a will. If this
affidavit were handwritten entirely by Margarita, it would have been a valid
holographic will.
Series of errors of Margarita’s lawyer and what he/she should have done instead:
First, if the intention is to give everything to Francisca, instead of executing an
affidavit, it could have been a deed of assignment so that the contract to sell can
be transferred to Francisca; after all, admittedly, it is Francisca who is amortizing
the lots. Second, the alternative is to execute a will where Margarita will say, “I
have given something to Beatrice. This is now the opportunity to give the rest of
the properties to Francisca.” Third, the purchase price under the contract to sell
has not been paid in full because in the second attempt of Francisca, she made an
offer to buy the same property from NHA (the property must have tremendously
increased in value inducing Francisca to disregard the prior installments she paid
and offer to pay again). If the property is fully paid, then the title should have
been issued to Margarita. The lawyer forgot that the contract of Margarita for the
same parcel of land has not been set aside.
What would have been a sensible alternative? When a piece of property is
purchased using the funds of a funder and title to the property is issued to the
buyer, the buyer is deemed to be a trustee in an implied trust for the benefit of
the person who owns the money.
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Art. 1450. If the price of a sale of property is loaned or paid by one person for the
benefit of another and the conveyance is made to the lender or payor to secure
the payment of the debt, a trust arises by operation of law in favor of the person
to whom the money is loaned or for whom its is paid. The latter may redeem the
property and compel a conveyance thereof to him.
In a trust, you have a trustor or the grantor of that trust; you have the trust
property or the corpus of the trust; and you have the trustee to whom the trustor
will deliver and convey legal title or ownership of the trust corpus. Trustee
becomes the owner, exercises ALL attributes of ownership except one thing: in a
trust, while a trustee is the owner, there is a person called the beneficiary who is
the sole person that can enjoy the fruits of this trust. This is the definition of a
real trust.
Art. 1450 tells you where an implied trust is created by law and it happens if a
person buys property using the money of another. Here, Margarita bought the
property admittedly using the funds of Francisca. Art. 1450 is squarely in point.
Margarita is a mere trustee of the property for the benefit of the trustor who is
likewise the beneficiary who funded the acquisition. Upon Margarita’s death, the
trust collapsed and therefore the trust property should be given to the trustor
who is likewise the beneficiary, in a transaction that will not elicit any estate tax.
Art. 775. In this Title, "decedent" is the general term applied to the person whose
property is transmitted through succession, whether or not he left a will. If he left
a will, he is also called the testator.
What is the object of this transmission? Properties, rights and obligations (PRO)
Art. 776. The inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death.
Proprietary rights are incorporeal property. Property is either corporeal or
incorporeal. Why did the law separate property and rights? (The property and
rights are the assets of a deceased person. Whereas the obligations are the
outstanding liabilities of a deceased person.)
Because there is big difference between properties (corporeal) and rights
(incorporeal). There is very little restriction on corporeal property that arises
after the death of a person. But when it comes to incorporeal rights, not all
incorporeal rights will survive the death of a person. What will survive are the
propriety rights. If it is proprietary, then it will form part of the estate. Otherwise,
it will not survive. For example: right to vote, right to support, marital rights.
There are still some proprietary rights that do not survive the death of a person
because the law so provides. Example: usufruct.
Debts you are not able to discharge in your lifetime are part of the inheritance
along with properties and rights.
In the Spanish Civil Code, the PRO (inheritance of a person) transfers to the heirs
without qualifications. Today, in Art. 774, the PRO will transfer to the heirs with
a limitation: in respect to obligations, only to the extent of the value of the
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inheritance. You will inherit the obligations only to the extent of the value of the
assets. Heirs will not pay using their own money to answer for the obligations of
the decedent. They will pay the debt from the PRO inherited.
Inheritance is assets plus liabilities.
A- 10; L- 0; Estate or inheritance is 10- all the heirs will get this, they will not
pay.
A- 10; L- 5; the payment of 5 will come from the 10 and the heirs will get 5.
A- 10; L- 15; the decedent dies insolvent because the asset fell short of the
liabilities. After using the estate to pay the 10, the heirs will not get anything but
will pay nothing.
Insolvency and bankruptcy are not the same. Bankruptcy applies only to
merchants. There is no bankruptcy law in the Philippines, so the correct term is
insolvency.
Nazareno vs Court of Appeals: Romeo’s involvement in this case is in 2
capacities: first, as an heir; second, as an administrator (person who stands in a
fiduciary capacity where he represents the heirs, the court and the creditors).
There is a conflict of interest. Romeo is ordered to return something. As
administrator, he is under a legal and fiduciary obligation to enforce that court
order because the estate stands to get back property that it had lost. If Romeo
were to protect the interest of the estate, he will have to take it out of his own
pocket.
The estate of a deceased person will have certain mechanisms to it that will allow
it to protect its own interest. Though Romeo represented at one time the estate of
Maximino, Sr., the latter has a separate and distinct personality from the former.
Hence, the judgment regarding the ownership of Maximino, Jr. over Lot 3-B
binds Romeo and Eliza only, and not the estate of Maximino, Sr., which also has
a right to recover properties which were wrongfully disposed. SC ruled that the
estate of a deceased person has a juridical personality of its own. This is a clear
case of judicial legislation.
Art. 44. The following are juridical persons:
(1) The State and its political subdivisions;
(2) Other corporations, institutions and entities for public interest or purpose,
created by law; their personality begins as soon as they have been constituted
according to law;
(3) Corporations, partnerships and associations for private interest or purpose to
which the law grants a juridical personality, separate and distinct from that of
each shareholder, partner or member.
The enumeration does not include the estate of a deceased person. Art. 776: The
inheritance or estate of a deceased person is P.R.O. Unfortunately, this case tells
us that PRO is a juridical person.
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Art. 777. The rights to the succession are transmitted from the moment of the
death of the decedent.
Transmission is triggered by death. Succession opens precisely from the moment
of death.
In law:
(1) Actual death - there is a corpus delicti
(2) Presumed death - ordinary presumption of death which arising after the lapse
of 10 years; extraordinary presumption of death arising after the lapse of 4 years
but the effect is retroactive from the date of disappearance. Whether actual or
presumed, the death can trigger the opening of succession.
Art. 13. When the laws speak of years, months, days or nights, it shall be
understood that years are of three hundred sixty-five days each; months, of thirty
days; days, of twenty-four hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be computed by the number of
days which they respectively have.
In computing a period, the first day shall be excluded, and the last day included.
Is Art. 777 consistent with Art. 13? No. Art. 13 does not define the moment of
death. The law does not recognize a fraction of a day. But this is necessary
because there can be no point in time when there is no owner.
A died. His heirs are those alive or at least conceived. The heirs are the surviving
spouse and the 6 children. One of the children is pregnant. Is the grandchild an
heir? No because he is not yet alive. The nearer relatives will exclude the more
distant one except if he includes in his will his unborn grandchild.
A died. One of the heirs is a baby. The settlement proceedings dragged on for 25
years. The heir is already 25 years old. Is he an heir? Yes, because at the time of
death, he was already conceived.
If A died today but the heir is not yet conceived (he was conceived the next
month). The litigation dragged on for 25 years. The child is not 25 years old. Can
he inherit? No, because he was not yet conceived at the time of death.
A has pigs. When he died, the pigs are part of his estate. But the heirs are still
fighting! In the meantime, one of the pigs got pregnant. She gave birth to 12 new
piglets. Who owns the piglets? The heirs, by law (as a mode of acquisition). At the
time of death of A, the pig was inherited, so the heirs owned her. The accessory
follows the principal under the law of accession. The heirs own the piglets. Did
they inherit? No. They acquired it by law.
Pacio vs Dillon: Parents-in-law gave a gift. to the daughter-in-law. The
donation propter nuptias was not properly documented. When the child of the
donor died, the donation was still given. The widow wanted to marry again.
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When she remarried, her in-laws removed her share which was supposedly
donated. She complained saying it is hers by acquisitive prescription or donation.
Since there was no valid donation for her to transfer the property to her, upon the
death of the supposed donor, that property remains an integral part of the estate
of the deceased. As of the time of death, there was no valid transmission of
ownership from donor to donee.
The belated claim of acquisitive prescription was not even entertained because
prescription cannot set in favor since she was not in possession of the property. It
was her father-in-law cultivating the property and all that she was receiving was a
share of the rent. It was also after 30 years when she started asserting her right.
The governing law when the donation was made (1901) was the Spanish Civil
Code wherein its Art. 633 states that, “In order that a donation of real property be
valid, it must be made by public instrument in which the property donated must
be specifically described and the amount of the encumbrances to be assumed by
the donee expressed...” A donation propter nuptias of real property written on a
private instrument is void even between the parties. It had no legal effect; she
never became the owner of the property. When the donor died, the property
became part of the estate of the deceased.
It follows that Flaviano Pacio continued to be the owner of the land as the
donation had no effect and there was no prescription. Upon his death, the land
became the joint property of his children by the first and second marriage,
subject to the right of his surviving spouse -- it became part of the P.R.O.
Angela Butte vs Manuel Uy & Sons: This sale took place 8 years after the
Jose Ramirez’ death. When this sale took place, Jose was no longer the owner of
the 1/6 share of the property, but his heirs. The will of Jose did not make a
physical distribution of the properties among the children, grandchildren, and
Butte; because what he gave in his will are aliquot shares. What was given to
Angela was 1/3 of the free portion. Since the estate was distributed under the will
in fractions, on each item of the properties of the estate, all the heirs are co-
owners and therefore, in this 1/6 share, Angela Butte would have a share as well
as all the other instituted heirs of Jose Ramirez.
Does the will of Jose Ramirez have any relevance when it eventually turned out
that he has more debts than assets? The estate of Jose Ramirez is actually
bankrupt. Then, his heirs will not receive any amount at all.
Why are talking about a right of redemption when at the end of the day, none of
the heirs will receive the property? Even if the estate is bankrupt, the inheritance
ultimately consists of PRO which are transmitted to the heirs. From the precise
moment of death, whatever the assets are will be responsible solely for the
payment of the debts. Each heir acquired a portion of Ramirez’ 1/6 although the
creditors will have a first crack to get this property before they lay their hands on
it.
The case tells you conclusively that the PRO are transmitted to the heirs from the
time of death and what better proof do you have than in an insolvent estate, the
right of redemption would seem to be an academic issue and yet the SC said there
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is a right to redeem. Why? Because of the transmission from the moment of
death which was envisioned in Art. 777. What was transmitted are PRO.
They acquired the right to redeem because they were never notified in writing of
the sale. If you are a co-owner and you did not notify your other co-owners that
you are selling your undivided interest, the Civil Code provides that the other co-
owners, may, within 30 days from receipt of written notice, exercise the right of
redemption. In short, if you did not leave the notice of sale, the 30-day-period of
redemption will never run (right of pre-emption).
Why is the right of pre-emption allowed? When Marie Garnier vda. de Ramirez
sold her 1/6 share to Manuel Uy, it was her duty to serve notices to the Ramirezes
because they had the right to pre-emption. Because the law does not encourage
co-ownership and anything that would reduce the scope of the co-ownership is
favored by law. The seller has the obligation to give written notice; otherwise, the
right of pre-emption will not expire. If it were the buyer who serves the notice, it
would not produce legal effect.
Who can exercise the right of redemption? Any of the heirs. Why didn’t the
executor of the will exercise the right of redemption? The right of redemption is
an incorporeal property. The heirs only became co-owners when Jose died. The
selling happened 8 years after the death of Jose Ramirez. Only the heirs had the
right of redemption. But, if the selling happened during the lifetime of Jose
Ramirez, the right of redemption would have belonged to him alone and because
he passed away, the right of redemption would have formed part of his estate and
therefore exercisable solely by his executor. However, only Angela exercised the
right of redemption because the others had no money.
De Borja vs De Borja: Why are the stepchildren and the stepmother, Tasiana,
fighting? Before Francisco married Tasiana, he should have first settled the estate
of his late wife, Josefa. There was a stream of court cases between Tasiana and
the stepchildren.
When Josefa died, her heirs are Francisco and their 3 children (4 heirs). If one of
the spouses should die, the Family Code says you have to dissolve either the
community of property or the conjugal partnership. The only time you do away
with the dissolution is when there is absolute separation of property. This is the
decision under the old law and the property system by default (without a
prenuptial agreement) is the partnership of gains. Unless there is a stipulation to
the contrary, upon the death of one of the spouses, the conjugal partnership is
liquidated (not dissolved, because the conjugal partnership is automatically
dissolved upon the death of one of the spouses).
How do we liquidate? Half belongs to Francisco and the other half belongs to
Josefa. The half of Josefa now pertains to her 4 heirs. In the liquidation of the
conjugal partnership, we need to have an actual partition because there is co-
ownership between Josefa and Francsico in respect of the first conjugal
partnership. When you divide that into 2 parts, you are dissolving a co-ownership
and awarding to each co-owner an ideal ½ share.
Even before there can be a partition or a distribution of this conjugal partnership,
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Francisco got married. Josefa’s will is still pending probate proceedings. But the
ideal half belongs to Francisco as his conjugal share and therefore, when
Francisco contracted the second marriage with Tasiana, he brought with him his
undivided half. What you bring into the marriage is separate property but the
fruit of that separate property is conjugal. So when he contracted the second
marriage, the fruits must belong to the new conjugal partnership. The new
conjugal partnership overlaps the first. The children of Josefa are mad at Tasiana
because Tasiana now has a claim to the conjugal partnership of Josefa and
Francisco.
Francisco died. The estate of Josefa is being settled in one court while the estate
of Francisco is being settled at another. But the properties of the estate of
Francisco will draw some properties from the estate of Josefa.
The children and Tasiana entered into a compromise. To settle the dispute, the
children paid Tasiana P800,000 (she signed). The compromise agreement was
brought to the probate courts for approval. It was also brought to the courts
where they have pending cases. However, Tasiana changed her mind. They
should have filed joint motion for the approval of the compromise agreement.
The court will render judgment based on the compromise agreement and said
judgment is immediately executory.
Tasiana is questioning the compromise agreement. According to her, it is
anomalous that the distribution of the estate will be different from what the
testator indicated. In succession, it is a fundamental rule that you comply with
the wishes of the testator because by the very fact of allowing a person to write a
will, the law says we allow you to control to a certain extent the disposition of
your estate. It is a statutory right and we are required to comply if the will is
valid. According to Tasiana, when Francisco executed the right to distribute his
estate by will, we are not allowed to make a distribution of his estate in any
manner that is different from his will.
SC rejected her contention because: death transfers ownership of the inheritance
to the heirs. Francisco wrote a will. Whatever he wrote, it already transferred to
the heirs from the moment he died. At the time the compromise agreement is
written, each of the heirs of Francisco had long been owners of what had been
allotted to them under the will. Succession transfers ownership. The attributes of
ownership are: the right to dispose, to use, to the fruits, to possess, to destroy,
and to recover. If you are the owner, you have the right to dispose.
What did the compromise agreement achieved? What is the essence of the
compromise agreement? The compromise agreement is in a form of a disposition
of property. Tasiana was the one who exercised said right in favor of the heirs of
Francisco, the consideration for which is P800,000. Thus, the compromise
agreement is valid. The tenor of the will was not changed because the
compromise agreement is in effect an act of Tasiana selling her testamentary
shares to the other heirs of Francisco in consideration of P800,000.
Go Ong vs CA: Julita Go Ong mortgaged a property which is stupid because she
sold the property for someone else's obligation. (accommodation mortgage -
mortgage executed to accommodate a borrower). She mortgaged her property in
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consideration of a P300,000 commission.
Red borrowed P5,000,000 from the bank. The bank said you have to mortgage a
property worth at least P10,000,000. Vern mortgaged her property for Red’s
obligation. If Red defaults, Vern's property is that which will be foreclosed.
The borrower defaulted so Julita’s property is not up for foreclosure. Julita says
what she did was defective because she didn't secure a judicial approval. Can you
introduce by way of a defense a fault that is attributable to you?
SC ruled: the transaction is valid only in part. It is valid only with respect to
Juliana's part of the conjugal property only because mortgaging the share of her
husband requires judicial approval since the estate of her husband is still under
settlement proceedings.
Didn't the heirs become the owner of the other half from the time of the death of
the deceased? Yes. But why can she not mortgage what already pertains to her?
In the liquidation process, you have to go through the formalities of paying taxes,
debts, determine who the heirs are and then make a distribution of compulsory
heirs. We don't know yet how much pertains to her (unliquidated). Since we
cannot determine how much of the other half belongs to her, it is not possible to
constitute a mortgage because by executing a mortgage, you will be creating a
lien on a specific property.
Santos vs Lumbao: Rita sold a property twice (100 sqm and 7 sqm). But she
doesn’t own the land. It belongs to her mother, Maria, who already died.
Who are the owners of this property? the children of Maria. As co-owner does she
have a right to sell the property? A co-owner is an owner and enjoys the
attributes of ownership subject to certain limitations. What limitation was noted
by the SC with respect to the 100 sqm sold by Rita? The sale was not in metes and
bounds. Why was that an important statement? Because if it is in metes and
bounds, she could not have sold with defined property because she is only a co-
owner. If she want to sell a specific property, partition of the property is required.
Upon purchasing 107 sqm, the spouses Lumbao took possession of the property.
They constructed a house and fenced it and lived there. This is wrong because
they only bought an ideal share. It was not possible for them to take actual
physical possession. However, nobody objected to the fencing and building of the
house. The siblings and children of Rita live in that property too so they cannot
deny knowledge of the acts of the spouses Lumbao.
While Rita was alive, the spouses Lumbao demanded the execution of deed of
sale to gain title. Rita did not execute a definitive title because she had no right at
that time. They could not partition because they do not have money. She only
sold the fraction of what belongs to her. Even after repeated demands, she failed
to execute the title. When Rita died, the heirs partitioned the property of Rita
extrajudicially. Afterwards, they mortgaged the property.
When spouses Lumbao found out, they filed a case for the nullification of the
mortgage against the heirs of Rita (not the buyers). But they are not privy to that
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contract.
Art. 1311. Contracts take effect only between the parties, their assigns and heirs,
except in case where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by provision of law. The heir is
not liable beyond the value of the property he received from the decedent. xxx
SC ruled: the sale was valid because Rita sold her undivided interest in the
property. But it is wrong that a specific part of the property was occupied; this is
beyond what Rita sold. Yet, nobody questioned it. She can sell what belongs to
her. Rita was not the owner of the specific property occupied by the spouses
because there has not yet been a partition of the co-ownership. What will happen
if the area occupied by the spouses is awarded to a sibling of Rita? The sibling can
eject the spouses Lumbao.
SC should have recognized the reality that while Rita sought to sell an undivided
share of the property, the spouses Lumbao occupied a definitive portion and that
occupation of a definitive portion is beyond the contemplation of the sale
between Rita and the spouses Lumbao. Be that as it may, when the spouses
Lumbao occupied the definite area, not one of the co-owners complained.
Everybody is estopped from questioning the possession of spouses Lumbao. In
the decision, there should have been a caveat providing that the share pertaining
to Rita must include the portion she alienated to the spouses Lumbao.
Go Ong – you can sell your conjugal share; Santos – you can sell your undivided
share.
Heirs of Spouses Sandejas vs Lina Eliodoro: Eliodoro sold a land
belonging to the estate of Remedios Sandejas to Alex Lina. They had an
agreement: Eliodoro will sell as soon as the court approves the sale. Eliodoro died
before he could get the court approval. But the sale was eventually
approved. According to Art. 1311 (principle of privity of contracts), the
successors-in-interest of a person are privies to a contract entered into by the
decedent because upon the death of the decedent, the patrimonial rights of the
decedent are automatically transmitted to the heirs. Thus, Lina is compelling the
children of Eliodoro to execute a deed. The children of Eliodoro still refused to
execute the contract.
Is it a conditional sale or a contract to sell? If it were a contract to sell, the court
approval would not have been necessary because at the time of the amortization,
there was no sale. The buyer there must complete the payments because upon
completion of the payments in a contract to sell, the buyer acquires the right to
purchase the property and the seller incurs the obligation to sell it. But in a
contract to sell, the buyer is at liberty not to continue the amortization and the
seller cannot bring an action for specific performance (that’s why there’s Maceda
Law in contracts to sell).
If it were a conditional sale, the condition imposed is when he obtains court
approval. That would have been a suspensive condition. It was fulfilled because
the court approved. Now you have the principle of fulfillment of a suspensive
condition that attaches to a conditional sale. Under the law, the fulfillment of a
GING$!$$
suspensive condition retroacts to the constitution of the obligation. Therefore, if
you look at the document they signed (acknowledgement receipt), the obligation
of the children to sell the property retroacts to the date of the agreement.
SC: this is a conditional sale. Since the condition was fulfilled, the children, the
successors-in-interest, are required to comply.
How much of the property was authorized by the court to be sold? 3/5
Can you sell the land belonging to a deceased person? No, a deceased person
cannot own land. According to Art. 777, his properties have already been
transmitted to his heirs.
Eliodoro claims he only sold his share and his share is half of the property. So
why did it become 3/5? SC: Eliodoro’s interest in the property is 2 kinds: (1) ½
conjugal share, (2) 1/10 his hereditary rights.
Go Ong – her mortgage was valid as to her share, void beyond her share;
Sandejas – he sold the land. SC allowed it not only to the extent of his conjugal
share but also his hereditary share.
What is the difference between Go Ong and Sandejas that justifies a difference in
the conclusion? Succession opens precisely from the moment of death. ???
Salvador vs Santa Maria: Two proceedings including the same properties.
There is an earlier case where the owners of the property filed an action for
reconveyance to recover property that was conveyed under a simulated sale. This
owner executed a will and in his will, he also disposed these properties to his
designated heirs. He won the case but before it achieved the stage of finality, he
died. When either the plaintiff or defendant dies, and the claim is one that
survives, there will be substitution of parties. It is the obligation of the counsel of
record to notify the court of the death of the party.
When the owner died before the finality of the decision in the conveyance case,
there was substitution of parties. There were several heirs (his relatives who
would have inherited from him if he died without a will- intestate heirs) who
were designated as successors-in-interest of the plaintiff. Subsequent to that, the
will was discovered. The filing of the case for probate of the will was after the
substitution of the parties in the reconveyance case. When they looked at the
contents of the will, not all the heirs designated by the testator in the will were
not the same people who substituted in the reconveyance case.
The reconveyance court delivered the property to the estate of the deceased
person. It was not within his jurisdiction to determine who the heirs of this
deceased person are. The plaintiffs, the substituted parties, filed a motion for
reconsideration. The court agreed to order the defendant to reconvey to the
plaintiffs individually.
Probate ordered the selling of property to pay for debts. They sold one of the
properties to pay the debt. The judge in reconveyance case asked for the money
to be distributed to the plaintiffs.
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Ownership passed to the heirs upon death. The ownership should have passed to
the testamentary heirs. It is the probate court who has jurisdiction to determine
who the testamentary heirs are. The reconveyance court had no jurisdiction to
make a disposition of the property even if there was a substitution of the
properties. The substitutes should have been the executor or administrator,
pending the approval of the will in probate, since the deceased left a will.
Lee vs RTC of QC: The illegitimate family brought an action to settle the estate
of the deceased. The insurance shares appear to be the only assets of value. The
legitimate family secretly had an extrajudicial partition. You cannot have an
extrajudicial partition since the illegitimate family already went to court to have a
judicial partition. The estate of Dr. Ortanez is now under the jurisdiction of the
intestate court. In the extrajudicial partition divided the insurance shares. The
eldest child from the illegitimate family, not knowing the extrajudicial partition,
asked to be appointed as administrator of the insurance shares but the same were
already sold.
If they were sincerely of the desire to deprive the illegitimate family from
participating in the shares, then there should have been a deed of absolute sale
because all you’ll need to do is to find a buyer in good faith and for value. The
buyer will be protected from any and all claims of the illegitimate family.
However, this is not what happened. The legitimate family sold the shares with a
right to redeem (1 year). They were wagering. If the illegitimate family does not
make a move, they will buy the shares back. If the illegitimate family makes a
move, they will allow the redemption period to lapse. In this case, they allowed
the period to lapse. There was no cross-claim against the sellers by the buyer
because maybe there was a counter-deal between them.
SC: You can sell your undivided interest because they’re yours. But you cannot
sell specific property because when the testator dies, although there is a
transmission of PRO to the heirs, but this transmission will simply make the
heirs co-owners of the inheritance until such time as they agree on the partition
of the co-ownership.
The wife sold specific number of shares. The son sold specific number of shares.
SC: you may do that because you inherited. But until there is a partition of the
estate of Dr. Ortanez, the best that you can sell is your undivided right to the
inheritance and that right cannot extend to specific properties.
Puno vs Puno Enterprises: He wants to inspect the books but he was not
allowed. The right to succession opens precisely at the moment of death. Upon
the death of a person, his PRO are automatically and immediately transferred to
his heirs. Assuming he is an illegitimate son, at the moment of the death of the
deceased, he became a part owner of the estate of the deceased, subject to proof
of his filiation. Then, why was he denied access to the books when the
transmission was automatic?
It’s one thing to say that I acquired by succession. But the exercise of the rights of
ownership of those shares are no longer covered by the Civil Code; they are
covered by the Corporation Code. Not because you inherited something means
GING$!$$
your ownership has been perfected. You may recognize your title as an heir but
that does not mean that the corporation will recognize you as a stockholder.
Stock and transfer book is a ledger recording all the issuances and cancellation of
shares to know how many shares are issued, are outstanding, and are held in
treasury. The corporate secretary is responsible for this.
Supposing you inherited shares of stock. The will is admitted to probate. A
partition has been agreed upon and you will receive the shares. Can you now go
to the corporation and say that you are now the owner of the shares? No. From
the perspective of succession everything is completed: estate taxes are paid,
creditors are paid, you have been confirmed as an heir, the will has been
admitted to probate, project of partition has already been signed, there already
has been distribution. But what you inherited is a share certificate still in the
name of the testator.
You have to transfer it in your name. Get a certified copy of the: will, project of
partition, final order of court approving the project of partition, payment of the
estate tax. What remains to be done is the transfer of ownership. Go to the BIR
because as regards shares of stocks which are not listed in the exchange and as
regards title to land, the BIR must issue a certificate authorizing registration
before the corporate secretary or the register of deeds record the transfer of
ownership (CAR- Certificate Authorizing Registration; issued by the BIR when
you are able to substantiate that the taxes relevant to the transmission of
ownership of shares or an immovable have been paid). Go to the corporate
secretary so you can transfer the shares of stock from the decedent to you.
Comply with Sec. 63 of the Corporation Code to become a stockholder of record
(name appears in the stock and transfer book). Then, pay Documentary Stamp
Tax (DST).
You may have inherited shares of stock at the time of death but you do not
become a stockholder of record until you comply with Sec. 63 and unless you are
a stockholder of record, you cannot exercise the rights pertaining to a
stockholder.
Reyes vs RTC: Rodrigo is a stockholder of record because he owned shares of
that company. Why was he denied the right to inspect? He used the shares of his
dead mother instead of his own shares. He is not yet a stockholder of record with
respect to his dead mother’s shares. Why did he use his mother's shares instead
of his own? It had something to do with the kind of information he wanted. If this
was information pertaining to the corporation, he could have used his own
shares. But if he was asking information pertaining to the shares belonging to his
mother, he cannot use his shares to access that information.
Reyes case states: “In the present case, each of Anastasia’s heirs holds only an
undivided interest in the shares. This interest at this point is still inchoate and
subject to the outcome of a settlement proceedings." The second sentence is
wrong. The day Anastasia died, the children inherited and rights of ownership
vested in them in accordance with Art. 777. The right is not inchoate.
Justification of the statement: the right to the specific distributive shares will not
be determined until the debts are paid. In short, heirs are only entitled to what
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remains after payment of the debts. Whether there would be residue remains to
be seen. However, the inheritance of a person is not limited to assets and rights.
It includes obligations. So when a person died, his heirs acquire not only the
assets but also the liabilities and for which reason, the heirs are required under
the law to pay the debts.
In Angela Butte vs Manuel Uy & Sons, the estate was bankrupt. Butte was one of
the heirs who are to receive 1/3 of the disposal which made her a co-owner of the
entire property. This was the basis for the court to say that she can redeem the
property from Manuel Uy & Sons. Did the court recognize that she owned that
1/3 interest in the free portion? Yes. If you’re going to say her right is inchoate
and subject to the settlement and payment of the debts, then something is wrong
with Butte vs Uy & Sons. In the Butte case, Angela obviously wants to hold the
property. Can she still get the property even if the estate is insolvent? Yes. When
the estate has debts, the law does not require that the payment must come from
the estate. Angela may issue her own check to pay the creditors because she
wants the property.
Justice Jurado: “No succession shall be declared unless and until a liquidation of
the assets and debts left by the decedent should have been made and all the
creditors are fully paid.” Wrong again! You do not declare succession. Succession
occurs automatically by operation of law and it happens when a person dies.
Art. 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed.
How will the transmission take place? The transmission of property from the
decedent to the heirs may be by will or by operation of law.
Determine if you are capacitated to inherit from the decedent. Make this
determination only at the time of death. Any incapacity that may befall on you
that might otherwise disqualify you from inheriting is incapacity that must be
established to exist at the time of death when succession opens.
Art. 1032. The following are incapable of succeeding by reason of unworthiness:
(1) Parents who have abandoned their children or induced their daughters to lead
a corrupt or immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;
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(4) Any heir of full age who, having knowledge of the violent death of the testator,
should fail to report it to an officer of the law within a month, unless the
authorities have already taken action; this prohibition shall not apply to cases
wherein, according to law, there is no obligation to make an accusation;
(5) Any person convicted of adultery or concubinage with the spouse of the
testator;
(6) Any person who by fraud, violence, intimidation, or undue influence should
cause the testator to make a will or to change one already made;
(7) Any person who by the same means prevents another from making a will, or
from revoking one already made, or who supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a supposed will of the decedent.
Don Ramon, the parent, is old already. If it is proven that Ramona is responsible
for the death of her brother, under Art. 1032, she cannot inherit from her father.
Determination is made at the time of death of Don Ramon. When Don Ramon
dies, succession opens. At the probate proceeding, his children killed each other.
Is the guilty party still capable of inheriting from Don Ramon? Yes, because when
the time the unworthy act is committed, the decedent already died. Capacity is
determined at the time of death and subsequent incapacity will not bar the heir
from inheriting.
Art. 779. Testamentary succession is that which results from the designation of
an heir, made in a will executed in the form prescribed by law.
Art. 780. Mixed succession is that effected partly by will and partly by operation
of law.
Art. 781. The inheritance of a person includes not only the property and the
transmissible rights and obligations existing at the time of his death, but also
those which have accrued thereto since the opening of the succession.
Accrual – recognize income when it is earned and recognize expense when it is
incurred, as compared to cash basis where the recognition is upon payment and
upon receipt.
You inherited from a decedent. Will was admitted to probate. Debts and taxes are
all paid. During distribution, you inherited a cat. But it takes time to divide the
estate. By the time the probate was approved, the cat became pregnant. What is
the estate of the deceased person with respect to the cat?
Say the cat is worth P10,000. At the time of death there is only one cat. After the
distribution of the estate, the cat has multiplied to 100 cats, P10,000 each,
totaling P1,000,000. If the original estate is a small property worth P50,000 and
the cat worth P10,000. The compulsory heirs divided the property (P50,000)
while the cat was given to a stranger. But if all the offspring of the cat will form
part of the estate, the P1,000,000 given to the stranger will be excessive since the
10$
compulsory heirs only received P50,000. The stranger will have to pay back so
the legitime of the heirs will not be impaired.
Another problem: When the executor paid the estate tax, he only paid estate tax
for P60,000. But now the estate is P1,050,000. The tax differential will be huge.
You can combine Art. 776 and Art. 781:
Art. 776 - inheritance is PRO - reference point of PRO is the time of death
Art. 781 - inheritance is PRO plus accruals - accruals has no reference point in
time, creating an inference that whatever is produced by the PRO over an
indefinite period of time will constitute an accrual that becomes part of the estate
which is ridiculous. This means that the tax will be amended regularly to account
for the accruals. No succession will be closed because there will be a continuous
accrual and there will be a continuous payment of estate tax.
If any of the assets produces fruits, whether natural, civil or industrial, for
purposes of 781, those fruits are accruals that should fall back to the estate.
Invoke Art. 440! Acquire the fruits not because they inherited it but because it is
the fruit of what they inherited.
Died on 2011. Accrual 2012. Heirs acquired 2011. The heirs acquired the accrual
not because they inherited it but because Art. 440 says ownership of principal
includes ownership of accessories. Accessory follows the principal. In Art. 712,
one of the modes of acquiring ownership is the law. The law on accession (Art.
440) is a mode of acquiring ownership. Thus, the fruits or the accruals gained in
2012 belonged to the heirs under the law of accretion in Art. 440 because the
acquisition of the estate in 2011 is the source of the accruals. The principal was
acquired by succession while the accruals were acquired by accession.
Art. 440. The ownership of property gives the right by accession to everything
which is produced thereby, or which is incorporated or attached thereto, either
naturally or artificially.
I have an estate with only one asset: Mona Lisa, insured for $300,000,000. This
work of art appreciates in value but it does not earn money. The executor of the
estate exhibits the painting in a room and anyone who wants to look at it has to
pay P1,000. He raised P10,000,000 in one month. The Mona Lisa is the estate.
The P10,000,000 is the income arising from the painting. The heir, X, owns
Mona Lisa by succession and the P10,000,000 by accession.
What Art. 781 meant is that before you keep the accrual, return it first in the
estate not because you will inherit it from the testator but because it must be
answerable for the obligations. It intends to protect the creditors.
Santos vs Blas: Simeon was married to Martha. When Martha died, Simeon
and their children inherited from Martha, a process that did not materialize
because Simeon did not cause the liquidation of their conjugal partnership nor
was he interested in giving the children their rightful inheritance. Simeon
married Maxima and dragged into the second marriage the assets pertaining to
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Martha (which should have been distributed to the heirs). Simeon asked Maxima
signed an agreement wherein Maxima will have to return half of the estate to the
children of Simeon. She committed half of her conjugal share. Maxima reneged
on the agreement and said that agreement is void because it constitutes a
contract involving a future inheritance.
Art. 1347. xxx No contract may be entered into upon future inheritance except in
cases expressly authorized by law. xxx
Why is a contract involving future inheritance void?
1. There is nothing to give because succession has not opened. However, a
contract may have for its object a future thing or something that does not
exist (hope, but not vain hope). Then it is not correct to say that you
cannot enter into a contract over something that does not exist.
2. For personal safety. If you sell your future inheritance, the buyer will want
to the testators to die. It is a personal hazard to the person whose
inheritance is sold.
3. There is no object. You can only talk of inheritance when a person has
died, when succession has opened. While the person is alive, there is no
inheritance to speak of. JBL Reyes: In the lifetime of a person, we cannot
talk of his inheritance because it does not exist.
SC: What Maxima sold was not the future inhertiance but her present property.
She sold her half of conjugal share which is already existing. In a conjugal
partnership or absolute community of property, the husband and the wife have
an interest in common to the totality of these assets in the concept of co-owners.
That interest as co-owners is an existing interest that can be segregated only
through partition. But the fact is the interest in this property exists now. When
Maxima agreed to the arrangement where 50% of her half of conjugal share will
go back to the children of Simeon, she was not even talking of future property,
she was talking of present property, rights to the property pertaining to her now.
Art. 782. An heir is a person called to the succession either by the provision of a
will or by operation of law.
Devisees and legatees are persons to whom gifts of real and personal property are
respectively given by virtue of a will.
Heir - 2 meanings:
1. Broad meaning - anybody who inherits is an heir. In the Spanish Code,
anybody who succeeds is an heir.
Legatee - any person to whom a testator has given a gift of personal property
(specific movable property). This only exists in testamentary succession.
Devisee - beneficiary in a will to receive a specific immovable property.
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2. Specific (or technical meaning) - somebody who receives not a specific
movable or immovable but an aliquot part of the estate (ex. half of the
estate, etc.). When you inherit as an heir, you cannot escape co-ownership
because together with the other heirs, all of you will inherit in fractional
parts. You will not get anything in particular. What you will get will be the
product of a project of partition. In cases where a testator institutes heirs
and leaves them aliquot shares, the bone of contention is the project of
partition. If you want to avoid a squabble among the heirs and want an
effective distribution of the estate, then come up with an inventory of all
your assets and to each heir assign a specific property. Then all the heirs
will either be a devisee or legatee.
2 ways of distributing:
1. institution of heirs – fractional. You will get specific fraction of the estate
but you do not know what properties they will consist
2. system of bequests - where you give the estate by way of legacies and
devises.
The interest of the legacy to the personal property or the devisee to the real
property is preferential because it was created by no less than the testator
himself.
The distinction between the heir on one hand, and the legatees and devisees on
another, become pronounced and distinct in 2 provisions of the code:
1. in the case of an invalid disinheritance
Invalid disinheritance – the testator attempted to disinherit a compulsory heir
but that disinheritance is invalid because of some technical reason. When you are
disinherited, the estate is distributed and there was nothing for you. If the
disinheritance is invalid, we have to make room so the legitime of the compulsory
heir will be paid. Reduce to the extent necessary to pay the legitime. But the
devise and legacy will not be touched as long as there is still estate left to the
heirs. The instituted heir to whom the testator did not give any preferential right
to any property is first to take a hit. The legatees and the devisees to whom the
testator created a preference will only take a hit if the estate for the heirs is not
enough.
2. in the case of preterition
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.
Art. 783. A will is an act whereby a person is permitted, with the formalities
GING$!$$
prescribed by law, to control to a certain degree the disposition of this estate, to
take effect after his death.
“To a certain degree” It’s not a complete license that the law gives the person to
write his will because the control over the disposition of his estate is limited only
to a certain degree. Under the system of compulsory succession, the freedom of a
person to dispose of his property by virtue of a will shall be necessarily subject to
the provisions of the law on legitimes.
Art. 886. Legitime is that part of the testator’s property which he cannot dispose
of because the law has reserved it for certain heirs who are, therefore, called
compulsory heirs. - It’s the entitlement to the legitime that the law seeks to
protect.
It is a correct statement to say that the control over the disposition of the estate is
limited. It cannot be an unrestricted, unqualified right to dispose of the property
because here in our country is a system of compulsory succession where a
substantial part of the estate of the testator is reserved for compulsory heirs; and
therefore, if there are compulsory heirs, a testator cannot just give away
everything the way he pleases, because a certain part of that he must give to his
compulsory heirs.
In the more progressive jurisdictions, there is no such thing as legitimes. A part
of our culture is that parents are expected to toil, work, and make slaves out of
themselves and the ultimate objective is to make certain provisions for their
children when they die. The reality is the control is not absolute.
Can one be deprived of a right to make/write the will? He generally cannot be
denied the right to make a will because the law gives him that right. But whether
or not the will is valid is another story. The right is conferred to every person by
law. It is therefore a statutory right as contradistinguished from human rights (or
rights that are given to an individual by nature).
The right of making a will thus allowing the testator to control his property
beyond his lifetime is a right provided by the legislature. Thus, Congress can
prescribe forms, set restrictions, and regulate the testamentary powers of the
testator. Congress can repeal that right in its exercise of its plenary legislative
powers.
Must a will, to be considered as such, dispose property? No. It is only essential
that its substance pertains to a nature of a property disposition. In our system of
law, a will is not considered a will because it looks like one. It is not called a will
because it has the form of a will. It is called a will because it complied with the
form and it contained property dispositions.
Examples:
Recognizing paternity/maternity of a child: It is equivalent to or in the nature of
a property disposition because while a stranger, that child has no right to inherit
from you; but recognizing the paternity/maternity of that child, you conferred
upon him the status equivalent to paternity and filiation that entitles him to
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participate in the distribution of your estate and consequently, the recognition
which confers upon the child successional rights and as a compulsory heir as
that, is equivalent to a property disposition because prior to the recognition, he’s
not entitled to anything from you. Post-recognition, he is entitled by law to
receive something from you. You may not have said it directly, but you have
conferred upon a stranger when you recognized his paternity/maternity, that
person becomes your compulsory heir and entitled to legitime.
Disinheritance: The testator exercises the privilege to disinherit and he complied
with the requirements of law. That means what is due to that man was taken
away from him. The property disposition is what you took away from him will
inure to the benefit of the rest of the compulsory heirs. What you took from him
increased the shares of others and there is therefore a property disposition.
What are the characteristics of a will:
1. Purely personal
A person cannot delegate the making of a will to third persons. It is a
purely/strictly personal act because the testator has to make the personal
determination of what will be written in that will. That mechanical act of writing
it generally is delegable to the lawyer except in the case of a holographic will. The
contents of that will, the substantive provisions, the disposition of the estate, the
identification of the heirs, the allocation of the wealth to the beneficiaries - all
those must be determined personally by the testator. When the law says, “the
making of a will,” it makes no reference to the mechanical act of drafting.
Why must it be purely personal? The giving of the testamentary gift is an act of
liberality. If it were an act that emanates from an obligation arising from a
contract, then it cannot be purely personal because anything that flows out of a
contractual relationship is a product of the meeting of the minds and anything
you dispose by reason of a contract is supported by an adequate valuable
consideration. Whereas in the disposition of a testator under a will, the
disposition is gratuitous in nature and therefore the exercise of the act of
liberality is a personal act of the person. Nobody can tell you to whom you should
be generous.
Why is the testator allowed control over the disposition of his estate? It is a
recognition of his ownership of the inheritance. He owns all of it and since he
cannot outlive the assets, he is given a free hand to dictate the dispositions
according to his wishes. If the exercise of testamentary discretion is allowed to be
delegated (i.e. by SPA), there is a risk of a vitiation of consent; it opens the doors
not only to undue influence but also to virtual compulsion from somebody who
exercises dominance over the testator.
2. Unilateral
In a will, the meeting of the minds is not required for its perfection. A will is a
unilateral declaration of the testator. It’s a unilateral declaration of what will be
done to his assets when he passes away. It is not contractual in nature. It actually
gives a connective. Nobody is required to make a response. When he dies, that is
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the only time the beneficiaries will be asked a question: do you accept or reject?
Succession opens only at the moment of death.
3. Formal
It is surrounded by solemnities prescribed by law. Differed from consensual
(perfected by the meeting of the minds), in a formal act, the form is an essential
element for validity; which is why a will is a formal act because there are two
types - notarial or holographic - and the form is prescribed by law. Non-
compliance with the form will render the will void. Compliance with form is
essential to validity. In real contracts, form is not important. What perfects the
act is delivery.
What are the formalities of a notarial will? Articles 804-808. The general rule is
if you do not comply with the form, the will will be considered a mere scrap of
paper.
4. Effective mortis causa
5. Ambulatory (revocable)
Since the dispositions will only take effect upon the death of the testator, he is
given the leeway to change his mind and revoke his will. No rights can be said to
have been impaired since succession only opens at the moment of death. Since no
rights are vested until death, the testator can revoke his will anytime during his
lifetime. The will remains revocable even as the testator has probated his will
during his lifetime (ante-mortem). A will probated ante-mortem is not a final,
binding, and effective document. What will breathe life into that will is the
testator’s death.
Art. 828 states that any restriction on the right to revoke is void. It is not true,
however, that there are no restrictions on a testator’s right to revoke your will.
There is one restriction: If you need to possess testamentary capacity to make it,
you need the same testamentary capacity to revoke it. So that if a testator
becomes permanently insane, he can no longer revoke that will.
6. Individual
Art. 818 prohibition of joint wills. For Filipino nationals, it is prohibited whether
it is executed in the Philippines or elsewhere. Spouses are the usual subjects to a
joint will because of the commonality of ownership in a lot of properties.
Why are joint wills prohibited in the Philippines? Because of the anxiety of the
framers of the law that when two or more persons are allowed to execute joint
wills, there is a danger that a more dominant testator will deprive the more
subservient testator from reasonable freedom of choice.
Is the danger real? Yes. Balanay v. Hon. Martinez. Wife executed a will where
she enumerated the conjugal properties and made reference to her exclusive
property. She acted as though she was a judge because she partitioned the
conjugal partnership into two. She said the southern half is hers. She distributed
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the entire conjugal estate including the share of the husband. Husband executed
an affidavit of conformity agreeing to the will of the wife. I thought the making of
a will is an individual and personal act?! And you cannot give what you cannot
have.
Duress is a common law concept which is the equivalent of undue influence in
Philippine law.
Art. 784. The making of a will is a strictly 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.
In our law, there are certain things a testator can do through the agency of a third
person and there are things which a testator must do personally.
What are the things that a testator CANNOT do through the instrumentality of a
third person? The general rule is found in Art. 784. There are 2 things which
cannot be delegated, namely:
(1) it [the making of a will] cannot be left in whole or in part to the discretion of a
third person; and
(2) it [the making of a will] cannot be accomplished through the instrumentality
of an agent or attorney.
Making of a will – the testamentary discretion/power. In the making of a will, it
cannot be delegated to the discretion of another person/s. Whether you will
exercise testamentary discretion or not does not need the permission of anyone.
Nor can you transfer to a third person through an SPA the authority to distribute
your estate. When you exercise that testamentary power, that exercise must be
performed by the testator himself.
Recap: Art. 784 (general statements); Art. 785 (specific statements); Art. 786
(exceptions)
Art. 786 pertains to specific causes and specific classes. The third person merely
implements the disposition as to who are to receive the estate of the testator. For
the delegated power to be ministerial in nature, the testator has to provide for
guidelines or criteria and has already earmarked specific property or sums of
money for such third person to merely distribute in accordance with the criteria
provided. See Art. 1030. Testamentary power has already been exercised.
Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees,
or the determination of the portions which they are to take, when referred to by
name, cannot be left to the discretion of a third person.
In Art. 785, this [general] rule became more precise. Who will inherit and what
they will receive must be decided by the testator himself.
I will give to A the house, if my wife agrees. This is void because the wife will
determine the efficacy, not the testator.
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I will give to A the house, and my wife will determine for how long they will own
the house. This is void because the wife will determine the duration, not the
testator.
Art. 786. The testator may entrust to a third person the distribution of specific
property or sums of money that he may leave in general to specified classes or
causes, and also the designation of the persons, institutions or establishments to
which such property or sums are to be given or applied.
Art. 786 speaks of exceptions. Testamentary disposition for specific classes (ex. to
all cross-eyed people in my barangay) or causes (ex. for the protection of the
environment).
Art. 1030. Testamentary provisions in favor of the poor in general, without
designation of particular persons or of any community, shall be deemed limited
to the poor living in the domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as poor and the
distribution of the property shall be made by the person appointed by the
testator for the purpose; in default of such person, by the executor, and should
there be no executor, by the justice of the peace, the mayor, and the municipal
treasurer, who shall decide by a majority of votes all questions that may arise.
In all these cases, the approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has disposed of his
property in favor of the poor of a definite locality.
The executor, for example, will distribute the sum accordingly. I thought the will
was strictly personal? When he chooses, doesn’t he exercise discretion? The
testamentary power has already been exercised by saying he is giving to the
definite class [poor, environmental concerns, etc.]. Only the implementation is
left to the third person.
Art. 787. The testator may not make a testamentary disposition in such manner
that another person has to determine whether or not it is to be operative.
Art. 788. If a testamentary disposition admits of different interpretations, in case
of doubt, that interpretation by which the disposition is to be operative shall be
preferred.
Art. 789. When there is an imperfect description, or when no person or property
exactly answers the description, mistakes and omissions must be corrected, if the
error appears from the context of the will or from extrinsic evidence, excluding
the oral declarations of the testator as to his intention; and when an uncertainty
arises upon the face of the will, as to the application of any of its provisions, the
testator's intention is to be ascertained from the words of the will, taking into
consideration the circumstances under which it was made, excluding such oral
declarations.
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The ambiguities in the will - because there is ambiguity in the description of
persons/property - or any form of ambiguity for that matter, remember the
cardinal rule in statutory construction: if the law is clear, you do not interpret.
But if there is ambiguity that requires interpretation, the second rule is fidelity to
legislative intent.
When we speak of interpretation of contracts where a contract is ambiguous, the
same principle applies. What do you seek to discover? The intention of the
parties. With that knowledge, intent is how you will interpret the vague
provisions of a contract. The same thing is true in a will.
If there are ambiguities, know the testamentary intent because it only through
such adherence that you are able to comply with what the testator has directed to
be done. Refer to parole evidence rule (Sec. 9, ROC). As a matter of procedure, if
there is a written agreement, the only proof is the written agreement itself. Any
ambiguity in the will must be resolved by examining the document itself in an
attempt to clarify the ambiguity based on the contents of the will.
There is an exception to the parole evidence rule: the document itself is
ambiguous. If you invoke the exception, you may be permitted to adduce
evidence that is extrinsic to the document. When you invoke it, the order of
presenting extrinsic evidence is as follows:
1. documentary evidence – weight is much higher than parole evidence
2. parole evidence – Exception: do not breach the dead man’s statute (do not
put your words into the mouth of a dead or insane person, because neither
of them can be given an opportunity to confirm or to controvert what you
ascribed to them.) Exception to exception: Evidence presented violating
the parole evidence may be accepted if not objected to.
Art. 790. The words of a will are to be taken in their ordinary and grammatical
sense, unless a clear intention to use them in another sense can be gathered, and
that other can be ascertained.
Technical words in a will are to be taken in their technical sense, unless the
context clearly indicates a contrary intention, or unless it satisfactorily appears
that he was unacquainted with such technical sense.
Art. 791. The words of a will are to receive an interpretation which will give to
every expression some effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a will, that is to be
preferred which will prevent intestacy.
Vda. de Villaflor vs. Juico: Grand uncle is different from grandfather. The
former is collateral; the latter is lineal.
Art. 869. A provision whereby the 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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Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first
heir instituted is entrusted with the obligation to preserve and to transmit to a
second heir the whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the heir
originally instituted, and provided further, that the fiduciary or first heir and the
second heir are living at the time of the death of the testator.
The widow is granted lifetime usufruct of the property under the resolutory
condition that she will not remarry. Grand niece is instituted the reversionary
heir in the event the widow breaches said condition. But even then, only the
usufructuary will pass to the grand niece. In this case, however, the grand niece is
claiming ownership of the naked title based on the will executed by the testator.
To breathe life to the will, this should have been the interpretation: First, what
was the legacy to Fausta? Lifetime usufruct over a specific thing. That lifetime
usufruct is not full ownership; but this can only be enjoyed upon a condition that
is resolutory. And if she breaches, there is a residual heir who will pick it up from
her. The will does not say that what will be given to the grand niece is ownership
because it only says, “failing which, it will pass on to the grand niece.” Only
usufruct was given and not naked title. Therefore, the latter should have passed
to the intestate heirs, subject to the lifetime usufruct of the grand niece. In fact,
the grand niece is only a substitute heir in case of breach of the resolutory
condition. The situation would have been different had the grand niece been
instituted as an heir/beneficiary of naked title - the entirety of the property will
be hers because the death of Fausta extinguishes the lifetime usufruct. There was
thus an error in the application of Art. 869.
Art. 792. The invalidity of one of several dispositions contained in a will does not
result in the invalidity of the other dispositions, unless it is to be presumed that
the testator would not have made such other dispositions if the first invalid
disposition had not been made.
Art. 793. Property acquired after the making of a will shall only pass thereby, as if
the testator had possessed it at the time of making the will, should it expressly
appear by the will that such was his intention.
In Art. 793, we’re talking about properties acquired subsequently. What are these
properties or how will you describe the properties referred to in this article? The
properties which were acquired in between the period of the execution of the will
and the opening of the succession of the person may still be distributed in
accordance with the will, should it expressly appear that such was the intention
of the testator.
It is the intention that must be expressed and not specific property. The intention
must be discernible. See Art. 781 which also talks of future properties.
Art. 781. The inheritance of a person includes not only the property and the
transmissible rights and obligations existing at the time of his death, but also
those which have accrued thereto since the opening of the succession.
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Art. 781 talks about properties acquired after the decedent’s death while Art. 793
talks about properties acquired during the lifetime of the testator but after he has
executed the will.
The difference in these after-acquired properties are: Art. 781 belongs to the
heirs by accession which is not a part of the estate of a deceased person. They are
acquired by the heirs by accession because these are fruits accruing after the
testator has died - that means, after they have become owners of the inheritance,
subject to the claims of creditors. In Art. 793, there are some properties
acquired by the testator himself which can pass on to the heirs and when they do,
the mode of acquisition is by succession.
How does one acquire properties by virtue of a will when the same are not yet
even in existence at the time the he wrote the will? By a testamentary provision
that says, “If at the time of my death, there should be any other property
belonging to me by any title or acquired by me through any means, these
properties shall be distributed as follows....” This can be done only when the
testator is not referring to specific properties; if the testator is writing a provision
knowing that there is a possibility and that such possibility is not remote, that
between the execution of the will and the time of his death, knowing that the
testator might acquire some other properties and he does not want those
properties to be distributed by intestacy.
Without specifying the properties that MAY BE acquired in the future, can you
write a disposition that will govern the transmission of these future properties
among your heirs? Yes, that is precisely the function of Art. 793.
Art. 793’s principal objective is allowing a testator to make a complete disposition
of his estate without anything remaining for distribution by intestacy.
Art. 794. Every devise or legacy shall cover all the interest which the testator
could device or bequeath in the property disposed of, unless it clearly appears
from the will that he intended to convey a less interest.
Whatever the extent of a testator’s ownership or rights to the property, that is the
totality that he is transferring to his heirs. The general presumption is you give a
thing in its entirety except if you want to give a lesser interest.
General rule: Quantitative qualification. You are giving up everything.
Exception: Unless you say you are giving something less.
Back to the Villaflor case: Supposing Nicholas gives usufruct to Dona Fausta and
naked title to Leonor. Is this going to be justified under Art. 794? No. But it is
allowed under Art. 869. In short, the splitting of title and usufruct into two is not
envisioned in Art. 794. What Art. 794 basically says is, if you own 100%, that is
what is presumed that you gave. If you’re giving less, you must specify it or else
everything will be given. Art. 794 is a quantitative qualification. You’re giving up
everything except if you say you are giving something less.
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Art. 795. The validity of a will as to its form depends upon the observance of the
law in force at the time it is made.
In the case of writing a will, the first question that the Civil Code tries to answer
is ‘what is the governing law?’ A will is a special document because when you
make a judgment on its validity, you will have to look at validity from 2 different
perspectives: intrinsic (substantive) and extrinsic (formal). In a will, there is as
much emphasis in the form as there is in substance. A will to be implemented
must both be formally and substantively valid.
What is the governing law? The will is a special document because when you
make a judgment on its validity, you will have to look at validity from 2 different
perspectives:
Formal or extrinsic validity – It is a formal act, meaning there are specific
formalities to be complied with. What will determine formal validity: Notarial
will (804-808) and holographic will (810)
1. time (law at the time of execution is applicable)
2. place (where did you write the will? lex loci celebrationis; bear in mind the
conflicts rules)
Substantive or intrinsic validity – the objective of the court is to scrutinize the
disposition, to determine whether it is legal or not.
1. time (upon death) – it is only at that time that succession opens so it is
only at that time you will determine what provision of substantive law
should be applied. Because of that, all issues of substantive validity
involve the element of risk (element of risk because there can be an
amendment of law)
2. place (Art. 16 - nationality principle) – national law will follow you
wherever you go
Why do we follow the law at the time of death for substantive validity? Because
before the testator’s death, there are no rights that are impaired. Succession
opens at the time of death.
Art. 796. All persons who are not expressly prohibited by law may make a will.
Who can make a will? Any person who are not expressly prohibited by law (Art.
796) further qualified by Arts. 797 and 798.
General rule: any person may make a will.
Exceptions:
1. those under eighteen years of age (Art. 797)
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2. unsound mind at the time of the execution (Art. 798 and 799)
Art. 797. Persons of either sex under eighteen years of age cannot make a will.
Art. 798. In order to make a will it is essential that the testator be of sound mind
at the time of its execution.
Art. 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know
the nature of the estate to be disposed of, the proper objects of his bounty, and
the character of the testamentary act.
Why is a sound mind an element of testamentary capacity? Because it is a
disposition of property and upon death, the stipulations become immutable
(point of no return). It is unlike other contracts that can be annulled after
noticing that there is a mistake. Once the will becomes effective, it cannot be
contested anymore by the testator. However, soundness of mind as a component
of testamentary capacity does not mean complete possession of mental and
physical faculties - for as long as he possesses testamentary capacity which is the
ability to know the nature of his estate, the character of the testamentary act, and
the proper objects of his bounty.
Test of soundness of mind:
1. nature of your estate - if you know what you own, then the only property
you will pass on are those you own.
2. proper objects of his bounty - the people to whom the testator shall
bequeath his properties effective upon his death
3. character of the testamentary act - he must be aware that by writing a will,
he is making a gratuitous disposition of his property effective upon his
death
a. gratuitous transfer
b. effectivity upon death
Must all 3 tests concur and are they absolute? No. They are merely guidelines. It
is not pass or fail. Those 3 things were never meant to be quantitative measures
of sanity because you can never have one. Not even medical practitioners can
agree on where you draw the line between sanity and insanity. The law does not
attempt to make such a definition.
You measure up the testator’s will based on the 3 tests: based on what you read,
is there sufficient evidence to show that he knows what he is doing (that it is a
will that he is making); is there a sufficient indication that more or less he knows
what he is talking about in terms of the properties he owns; and in general, was
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there a sensible disposition of his estate given that he knew the people who have
the legitimate expectation to receive something from him/her.
See Baltazar v. Laxa (the magulyan – forgetful).
For one to lose sanity, the test is that the person has demonstrated an utter
failure to make an intelligent disposition of his estate. Until you are able to reach
that conclusion, there is no basis to say that the testator is not of sound mind
when he wrote his will.
Soundness of mind is challenged on two (2) fronts:
1. advanced age
2. illness
If the person is comatose, of course there is no testamentary capacity. If he only
has halitosis, diabetes, etc, there may still be testamentary capacity.
The presumption of soundness of mind is prima facie; can be rebutted. And there
can be a presumption of insanity under certain conditions (Art. 800).
Art. 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.
The burden of proof that the testator was not of sound mind at the time of
making his dispositions is on the person who opposes the probate of the will; but
if the testator, one month, or less, before making his will was publicly known to
be insane, the person who maintains the validity of the will must prove that the
testator made it during a lucid interval.
Art. 801. Supervening incapacity does not invalidate an effective will, nor is the
will of an incapable validated by the supervening of capacity.
When do we look at the sanity of a testator? The critical date is the execution of
the will. If you were insane prior to that but it is proven that you’re sane at the
time of the making of the will, that is alright. Sensible and reasonable disposition
of estate to take effect upon death is what should be considered.
Art. 802. A married woman may make a will without the consent of her husband,
and without the authority of the court.
Art. 803. A married woman may dispose by will of all her separate property as
well as her share of the conjugal partnership or absolute community property.
In the old law, the married woman subjects herself to the authority of her
husband (except if there is a pre-nuptial agreement).
What kind of fraud is the will protected from with the use of formalities?
The will is just one of the many documents that can be written. In variably, the
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law does not specify this many formalities for other documents. Every document
is susceptible to fraud. Why is it that only in wills that the law imposes so many
requirements which it does not impose on any other document that could also be
the source of fraud? Other documents are probably onerous contracts. There are
only 2 document conveyances by gratuitous title: 1) will; or 2) donation. All
others will be supported by valuable consideration – there is an exchange of
value between the parties. The problem with wills is that 1) it is a gratuitous
transfer of property – will confer economic advantage to the person instituted in
the will. You get something of value without having to pay for it; and 2) even if
you were to execute a will and submit it to probate ante mortem, the probate will
only settle 2 things: testamentary capacity and formal validity. For that document
to be effective, there is one very important condition: the giver must die. The
estate cannot be distributed in his lifetime.
In short, you have a giving of things for free directed by a person who will not be
there to assure or satisfy himself that what he wanted will actually be executed.
By the making of a will the law tells us, it is a right given by law and that right is
to control the disposition of your estate. In the making of a will, the contents of
the will must be personally drawn or determined by the testator because he is the
owner and the giver of the property to be distributed. While the law protects the
testator, it also protects the beneficiaries. The protection you want to give the
testator is to enforce and implement exactly what he wants, subject to the
restrictions provided by law.
The formalities are intended to close the door to fraud. What kind of fraud are we
looking at when we examine or analyze the formalities of the will? Extrinsic
fraud. What are the kinds of fraud?
1. Dolo incidente – fraud in the performance of the obligation.
Art. 1171. Responsibility arising from fraud is demandable in all obligations. Any
waiver of an action for future fraud is void.
A sold to B an 18 carrat gold pen for P10,000. B paid P10,000. The pen was not
made of gold, it is made of brass. A is in breach of his obligation. The remedy is
specific performance or rescission. Fraud in the performance of obligation does
not affect the legality of the contract
2. Dolo causante – fraud in order to get the consent of the person
Art. 1338. There is fraud when, through insidious words or machinations of one
of the contracting parties, the other is induced to enter into a contract which,
without them, he would not have agreed to.
A showed B a pen saying it is 18 carats gold plate and will sell it to B for P5,000.
B agreed. The deception came at the time A was trying to get B’s consent to the
transaction by misrepresenting that the pen is goldplated. This is a vice of
consent and the transaction can be annulled.
In succession, the fraud referred to is dolo causante because the fraud here
cannot take place upon implementation of the will because at that point,
GING$!$$
everything has ended since the testator is already dead. The fraud starts at the
execution of the will. This is the time you will deceive the testator into
conditioning his mind to the wrong things with the objective of getting the
testator to write in the document what you want him to write. Were it not for the
insidious words and machinations, the testator would not have done that.
Art. 804. Every will must be in writing and executed in a language or dialect
known to the testator.
2 requirements:
1. written requirement – what fraud is avoided by this requirement? To
leave nothing to memory, the most treacherous part of the body. The
written form may not be the best form but it preserves the intentions of
the testator. When we lift the will from a person’s memory, there is a high
probability that what you will hear is not what the testator wanted.
Another reason may be so that something may be presented before the court to
prove compliance with the requirements.
What form of writing is required? Any (written on sand, whiteboard, etc),
because the law did not state what medium is required. For as long as it is in
writing, it is valid. But you take the risk that if the written instrument is
destroyed, you will not be able to obtain probate.
“in writing” – excludes all other forms
2. language requirement – only document which must be written in a
language known to the person writing it. We are looking at the prospects
of fraud
The law wants to make sure that if the testator reads the will, he will read and
understand its contents. If the lawyer or secretary drafts the will, the testator is
given a way to make sure that what was written was what he wanted. The
moment you rely on somebody else for the drafting of your will, the law simply
says, I do not want you to repose 100% trust and confidence in that person. There
must be an opportunity for the testator to cross check whether what he dictated is
exactly what appears on the instrument.
The fraud guarded against: the person who drafted might have changed what is
the testator wants written.
A document was written in Ilocano. Testator went to the governor of Ilocos
Norte. She speaks Ilocano. The testator asked her to translate and she did.
Testator found out the will is exactly as he intended it to be. Will that will be
sufficient? No, because the law says you must be able to independently verify the
contents of the will without having to rely on anybody’s help. The protection that
you have by virtue of the language requirement is only preserved if you don’t
need to rely on another person for any interpretation or translation.
This requirement is not needed in other contracts. The only provision that warns
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you is when a document is written not known to the contracting party or when an
agreement is signed by an illiterate person, you are advised to interpret the
contents thereof to him. Otherwise, this illiterate person or person who did not
understand the language can claim vitiation of consent under the doctrine of
mistake.
Art. 1332. When one of the parties is unable to read, or if the contract is in a
language not understood by him, and mistake or fraud is alleged, the person
enforcing the contract must show that the terms thereof have been fully
explained to the former.
Suroza vs Honrado: Was there proof or testimony that the testatrix was
illiterate? Yes, there was a claim she was. Was it proved? If it was the proof must
have been contained in the Transcript of Stenographic Notes (TSN) which was
forwarded to the SC. But here, the SC did not mention any proof during trial but
the testatrix was indeed illiterate. What we know is the opponents were saying
the testatrix did not know the English language. But does that make the testatrix
illiterate?
Is there an incompatibility between the statement that the 1) testatrix knew how
to speak English and 2) a statement in the attestation clause says the will has
been read to her in Filipino? Yes. If you ask me to draft your will in English and I
did and I showed it to you for approval before it is executed, is it wrong if I were
to read the will and discuss/explain it to you in Filipino? If I explain it to you in
Filipino, does it mean you don’t speak English? If I explain it to you in Filipino,
does it mean you are illiterate?
The testatrix is Filipina. The presumption that she knows the language applies
only to her native tongue.
What is the basis of the SC for saying the testatrix is illiterate? There was no
actual proof that she was illiterate but in the Rules of Court, proof of a fact does
not require concrete evidence because you can prove something through
circumstantial evidence. There were a lot of indications that she was illiterate:
translation to her; thumb mark (no explanation offered by she affixed her thumb
mark); if she knew she has a grand child, why did she pass everything to the child
of her maid?; her executor is her maid; etc.
This is an administrative case, and the judge is being charged with gross
ignorance of the law for admitting to probate a will which is clearly on its face did
not comply with the requirements of law. In an administrative case, the court
discussed the language requirement as a matter of validity. Is it appropriate for
SC in an administrative case to rule on the validity of the will?
In a criminal prosecution for the crime of parricide, can the court acquit the
accused on the ground that the marriage is void ab initio?
Lee vs Tambago: The notary public is being charged for violation of the
notarial law. The details of the residence certificate should have been included in
the notarial acknowledgment.
GING$!$$
No notary can be sanctioned administratively for having notarized a spurious
unless he knew that the document is spurious. It is not the function of the notary
to investigate whether the document is spurious or not.
Compare Lee and Suroza. Both administrative proceedings sought to impose
santions on members of the bar (judge and notary public). The violations
committed both involved wills. The difference is the judge admitted to probate a
will which according to the SC is essentially void. The notary did not affix the
details of the residence certificate of the testator and the witnesses and the
residence certificate is stale and as a consequence of that, the will is void.
Striking difference with respect to the wills: in Suroza, the probate proceedings
were over. The will has already been admitted to probate. Even if the SC says the
will is void, there was nothing else they can do because they did not appeal the
order of probate and reached a stage of finality. In Lee, the proceeding is still
pending in the probate court.
Is there a significance to that difference? Yes. Both are administrative cases,
proceedings against 2 lawyers, it has nothing to do with the validity of a will.
However, the administrative charge on these 2 lawyers premise upon the action
they took in the execution or admission to probate of the will. In both cases, the
SC discussed some formalities prescribed in the making of will (Suroza: language
requirement; and Lee: notarization). In both cases, they reached the conclusion
that the will which brought about the charges were both void.
The difference is: In Suroza: the judge cannot be found guilty without dealing
with the decision he rendered. If guilty, you must be able to prove that the
decision he rendered is wrong. It was absolutely indispensable for the SC to deal
upon the validity of the will to know if judge is guilty or not. In Lee: it is not
necessary to discuss the validity of the will because the violation of the notarial
law is already there. Thus, that judgment preempted the ruling of the probate
court. How is there a doctrine on the validity of a will in an administrative
proceeding, which should have been discussed in a probate proceeding.
Reyes vs Vda de Vidal: There is a presumption that you know the language in
the community where you live. There was no actual proof that the testatrix spoke
Spanish but you can look at circumstantial evidence: she was married to a
Spaniard, she has traveled to Spain several times, she has entertained guests in
her house where Spanish was spoken, there were letters in her handwriting that
were in Spanish. The conclusion is she must have understood Spanish.
805. Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testator’s name written by some other
person in his presence, and by his express direction, and attested and subscribed
by three or more credible witnesses in the presence of the testator and of one
another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, an aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
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The attestation shall state the number of pages used upon which the will is
written, and the fact that the testator signed the will and every page thereof, or
caused some other person to write his name, under his express direction, in the
presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause in in a language not known to the witnesses, it shall be
interpreted to them.
Each requirement is intended to close the door to a specific kind of fraud.
Subscribe (done by testator and To sign
witnesses)
Subscription by witness to identify each of the pages of a will by
affixing his signature to prevent page
substitution. There are 3 witnesses so
that if you want to substitute a page,
the first obstacle is to forge 3
witnesses.
Subscription by testator (at the left for identification of each and every
margin and bottom and at the end of page of the will. You cannot substitute
the will) the page without forging his 4th
signature.
At the end of the will where the last testamentary disposition
ends. The purpose is to avoid additions
to the will (fraud)
Signature by affixing your signature, you tell the
world that that is your will. When you
sign, you are putting there some name,
some nomenclature, something in
writing that identifies you as the
person giving consent to the will. The
testator should use his own name, not
an assumed name.
Subscribing signature on the left It doesn’t need to be on the left. If the
margin objective is to identify the page, the
position of the signature will not dilute
the protection that the signature would
give to the document. It will serve its
purpose anywhere you affix it.
All the pages shall be numbered To see the flow of thought. The
pagination is a protection against an
attempt to add or subtract new pages
to the will.
“each and every page of the will, except The testator is not required to sign on
the last” the last page because he already signed
at the end. It’s not saying that he
cannot, but he does not have to
GING$!$$
because on that page is the bottom
signature. If he signs on the left
margin, that signature becomes
superfluous.
Attest (done by witnesses) To confirm the circumstances under
which the will was signed
Attestation clause (signed at the the number of pages, that the person
bottom) signed in person or through an agent,
and that the signing of the testator and
the witnesses were done in the
presence of each other
In the presence of the testator and of For identifying each and every page of
one another the will to prevent substitution of
pages because if you try to substitute
one page, you need to forge 4
signatures. You can testify that the
signature was the person’s signature
because you saw him sign. No one will
forge because there’s 4 of them
watching.
Test of presence: you need not be there
but by casting your eyes to the right
direction, you will see them signing,
there being no obstruction in your line
of vision.
If the attestation clause in in a The witnesses are not required to know
language not known to the witnesses, it the language of the attestation clause
shall be interpreted to them. because it is the testator who chooses
the witnesses because he trusts them.
The interest of the testator is not really
compromised because (1) he is the one
who chose the witnesses; (2) he chose
them knowing that they didn’t know
the language of the will. It is more
important that the testator choose
witnesses he trusts than for him to
choose witnesses who understand the
language used in the will. This is a
leeway allowing the testator to choose
the people he trusts who may not know
the language of the attestation clause.
The will is attested and subscribed. Subscribe means to sign while attest means to
confirm as a fact by signing. Whether to subscribe or to attest, the witness only
has to sign. Every witness to a notarial will signs in 2 capacities: as a subscribing
witness and as an attesting witness. What is the difference between the role of the
witness as a subscribing witness and his role as an attesting witness?
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Who will subscribe to the will? The testator and the witnesses. But who will
attest? The witnesses.
Why should the testator subscribe side by side with the witnesses? For
identifying each and every page of the will to prevent substitution of pages
because if you try to substitute one page, you need to forge 4 signatures.
Taboada v Rosal: Attestation consists in witnessing the testator’s execution of
the will in order to see and take note mentally that those things are done which
the statute requires for the execution of a will and that the signature of the
testator exists as a fact. On the other hand, subscription is the signing of the
witnesses’ names upon the same paper for the purposes of identification of such
paper as the will which was executed by the testator.
Cagro vs Cagro: The attesting signatures of the witnesses are found at the
bottom of the attestation clause.
Why are you required to sign as an attesting witness? The same set of witnesses
sign 2 times. First as subscribing witnesses, then again as attesting witnesses.
When a witness signs as a subscribing witness, he is simply identifying each of
the pages of a will and he identifies each of the page by affixing his signature to
prevent page substitution. There are 3 witnesses so that if you want to substitute
a page, the first obstacle is to forge 3 witnesses.
Why does the testator signs at left margin as well as at the bottom. For
identification of each and every page of the will. You cannot substitute the page
without forging his 4th signature.
The attestation clause talks of 3 specific requirements: the number of pages, that
the person signed in person or through an agent, and that the signing of the
testator and the witnesses were done in the presence of each other.
Why do the witnesses attest? The witness must be in the position to say that the
testator signed the will and that it is the document signed by the testator. He can
prove this by saying he saw the testator sign and by signing all the pages
(therefore, what the testator signed is the will itself).
Testator signs and subscribes at the end of the will. What is the end of the will?
There are two ways of looking at the will according to Tolentino:
1. The end of the will is the last part.
2. The end of the will for the purpose of Art. 805 is where the last
testamentary disposition ends
Was it necessary for the law to say where the testator should sign? Normally we
sign at the end. So why did the law have to state where? “at the end thereof” – to
avoid additions to the will (fraud). So that if there are additional dispositions
below the signature, it will be evident that the addition was spurious and we can
simply disregard. If additions are allowed, the integrity and authenticity of the
entire document will be put in issue every time an addition is allowed.
GING$!$$
If the addition is a person not authorized by the testator, then you cannot
penalize the testator. But if the testator is the one who did it, the will is void.
If you forgot something, the remedy is to write a codicil or a supplement which is
another will. This is only required if you are inserting a testamentary disposition.
If all you said is PS honey I love you – this has no effect beacuse there is no
disposition of property.
Example 1: The testator made a 150-page will. After signing at the bottom, he
remembered that he wants to give his chimayP100,000. He wrote “PS. To
Chimay, P100,000” and signed it. What is the effect? If the will is to be
interpreted, the intent was there and the witnesses are there to attest the
circumstances.
Example 2: In a 150-page will, the testator has signed at the bottom. Then the
testator received summons claiming that they had a romantic relationship and
they have a child. The testator was very upset because with this suit, somebody
will try to inherit from him. In the will he added: “PS. the child is not mine.”
What is the effect? No effect.
Example 3: He was sued. In the will there was a PS which says that ‘the child is
mine.’ All in his handwriting and signed. What is the effect?
The moment you say that is your child, by recognizing the paternity of the
illegitimate child, that child becomes your compulsory heir and whether you like
it or not, he shares in the estate, he shares in the legitime. By conferring upon
him a status of a recognized illegitimate child, you indirectly give him a share in
your estate. It renders the 150-page will void.
A testator is ordinarily expected to sign his will. When a contract is presented to
you in written form, the expression of your consent to that contract comes in the
form of signing it. It means you agree/assent to that contract. But what do you
sign? You sign your name. It identifies you.
In the same way when you execute your will, we expect you to affix your signature
because by affixing it, you tell the whole world that that is your will. When you
sign, you are putting there some name, some nomenclature, something in writing
that identifies you as the person giving consent to the will. What name the
testator should use? His own name. Do not use an assumed name.
Balonan v Abellana, et al. and Garcia v Lacuesta
A is authorizing B to execute his will. In agency, you delegate to another person
what you can do. The only thing B can do is write A’s name. B’s name is not
important. That agency can only be constituted in one specific way: the testator
must expressly direct him and in performing the delegated duty, it must be done
in the testator’s presence and in the presence of the witness. This is an express
agency (as opposed to implied or agency by estoppel).
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The law allowed this delegation because the testator may be illiterate, paralyzed,
has no arms, or just plain lazy and wants to designate another person.
What are the other ways of signing?
• Chop – customary way of signing in China.
• Electronic signature? Sir doesn’t know
Subscribing signature on the left margin. It doesn’t need to be on the left. It can
be anywhere. If the objective is to identify the page, a signature on top, in the
middle, on the right margin will not dilute the protection that the signature
would give to the document. It will serve its purpose anywhere you affix it.
Why should all the pages be numbered? So you can see the flow of thought. The
pagination is a protection against an attempt to add or subtract new pages to the
will. The witnesses will sign each page on the left margin, so when they sign they
know how many times they signed that’s why they are stating it in the attestation
clause. If there is a discrepancy, the proponent will have to explain it. If he can’t
explain to the satisfaction of the court, the authenticity is compromised and it
should be denied probate.
When an issue arises which puts a doubt to the genuineness of the will, the court
should deny probate. Probate is a special proceeding. A special proceeding is not
an action which is adversarial in nature. The petitioner seeks to establish a right,
a fact or a status. If he is not able to prove it, the court is to dismiss the petition.
In a probate, you are seeking to establish the genuineness of a document and
there are parameters that are to be observed. Such quantum of evidence as
required by the formalities. If you are not able to satisfy the judge that the
document is genuine and validly executed, the probate judge will order the
distribution of the estate through intestacy.
In a fraudulent will, anyone can inherit. But if you distribute by intestacy because
you denied probate to his will, only his relatives will inherit. If there are no
relatives, the state will confiscate everything.
“each and every page of the will, except the last” – Why is the testator not
required to sign on the last page? Because he already signed at the end. It’s not
saying that he cannot, but he does not have to because on that page is the bottom
signature. If he signs on the left margin, that signature becomes superfluous.
“in the presence of each other”
Nera v Rimando: During the signing, one of the witnesses left the small room
separated to another room by a curtain. Can that witness say that the will was
sign in his presence and that he signed in the presence of everyone else? Yes. The
minimum requirement is that it is not that you actually saw, it is enough that by
casting your eyes to the right direction without any obstruction, you would have
seen them. The witness could have seen what was going on inside
GING$!$$
Test of presence: you need not be there but by casting your eyes to the right
direction, you will see them signing, there being no obstruction in your line of
vision. In this case, there is an obstruction: the curtain. Yet the court allowed the
will to probate. The court believed the testimony that the guy was in fact inside.
Why are the witnesses not required to know the language of the attestation
clause? It is the testator’s interest that is protected. It is the testator who chooses
the witnesses because he trusts them. This is intended to give the testator a
chance to choose the people who he wants to be his witness. The interest of the
testator is not really compromised because (1) he is the one who chose the
witnesses; (2) he chose them knowing that they didn’t know the language of the
will. It is more important that the testator choose witnesses he trusts than for
him to choose witnesses who understand the language used in the will. This is a
leeway allowing the testator to choose the people he trusts who may not know the
language of the attestation clause.
Testate Estate of the Late Alipio Abada v Abaja: The attestation clause
states there are 3 pages to the will. However, there were only 2 pages when they
counted it. There are 5 sheets of paper, the first 3 pages contained testamentary
dispositions (there was a period there). At the end of the last testamentary
disposition, the testator signed. The 3 witnesses will affix their subscribing
signatures on the left margin. The witnesses must sign below the attestation
clause which is on the 4th page. The testator need not sign. The attestation is a
certification by the witnesses. If the testator signs it, there is an objection because
the statement is self serving. After this is the acknowledgement, signed by the
notary. There are really just 3 pages because the attestation clause and the
notarial acknowledgement are not parts of the will. (They may say that
the will is 5 pages but they must also say “including the attestation clause and the
notarial acknowledgement”)
The attestation clause may be executed by the witnesses in a separate document.
Icasiano v Icasiano: There are 2 copies of the will. There is a missing signature
on page 3 of the original copy. If you understand what the duplicate really is, you
will realize that the court was correct in its decision.
How will you know if the duplicate is a faithful reproduction of the original? Put
the duplicate and the original on top of each other and look at it under a light. If
the typed words match exactly, the duplicate is faithful.
What was presented was a carbon copy which was deemed sufficient because it
was not a duplicate copy (the signature is carbon copied); it was a duplicate
original (the typing was a duplicate but the signatures are original) – faithful
production of the original.
Art. 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the
will, or file another with the Office of the Clerk of Court.
In other notarized documents, the witnesses need not appear before a notary
public (only the contracting parties). The witnesses saw the parties sign so if
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there is a case, the role of the witnesses is not to talk about the document which
they may not be competent to testify on (because they are not confirming that
they read the document). What the signature there indicated is the document was
signed in their presence. The witnesses to a contract are competent witnesses to
prove the genuineness of the signature of the parties. Thus, they don't need to go
to the notary public to acknowledge the contract.
Guerrero vs Bihis: An acknowledgement is the act of one who has executed a
deed in going before some competent officer and declaring it to be his act or
deed.
to acknowledge - no mistake, no violence, no intimidation, no undue influence,
no fraud (no vitiation of consent) in the execution of the document. When you
acknowledge you are in effect telling/affirming/avowing to the notary public that
you executed this instrument in your own free will. Evidently, the one
acknowledging must be a party to the instrument.
In contracts such as sales and leases, only the parties (not the witnesses) are
required to appear before the notary public.
testator – I made the will, I signed it, I executed it freely
Why are the witnesses to the will required to appear before the notary public?
They have to tell the judge that they are signing out of their own free will because
if not, their participation in the execution of the will will be vitiated.
For the validity of a contract of sale, the essential requirements are: consent,
object and consideration. In a will, it is not enough that you have a testator
executing in accordance with the formalities and going to the notary public. In a
contract of sale, it is not a requirement that there should be witnesses to the
signing of the parties. Even if you did not have witnesses, the document is valid.
In a will, if you did not have the witnesses, the same will not be valid.
In the case of a will, the presence of the witnesses is a requirement of law because
a will must have 3 attesting and subscribing witnesses performing the function of
identifying the will and the pages thereof and identifying the testator’s signature
and attesting to the execution of the will in the attestation clause.
The mandated active participation of the witnesses must be proven to be their
voluntary act; that they were not coerced. If they were, their participation in the
execution of the will is vitiated.
What do the witnesses say when they go to the notary public? When I signed,
both as a subscribing witness and as an attesting witness, I was not coerced,
defrauded, intimidated, influenced, nor was I acting on a mistake, and as a
matter of fact, I participated in the execution of this will both as an attesting
witness and as a subscribing witness out of my own free will. They don’t need to
go at the same time. They can go one after the other on different dates. What the
law requires is that they go to the same notary public.
Supposing a testator made a notarial will. He went to the notary without the
GING$!$$
witnesses. What happens? The will is void because the witnesses must also
acknowledge before the notary public. But they don't have to go at the same time.
If they can go at different times, is it okay for the testator to acknowledge before
the notary public on the day of the execution of the will, and then is it okay for
the witnesses to acknowledge before the notary public the day/week/month after.
When the testator has gone to the notary public, the will is already executed.
When the testator goes to the notary public, do you have a valid will? No. The day
after, the 1st witness goes to the notary public, do you have a valid will? No. After
a week, the 2nd witness goes to the notary public, do you have a valid will? No. A
month after, the 3rd witness goes to the notary public, do you have a valid will?
Yes. What is the status of the will during the interregnum? Void?
A will that was void at the inception, is validated by the subsequent appearance of
the witness before a notary public?
Guerrero vs Bihis: Every notary public has to obtain an appointment from the
RTC. You apply with the RTC with the office of the executive judge. Apply for a
notarial commission and the commission that will be given to you is coextensive
with the jurisdiction of the court. Coextensive jurisdiction means territorial
jurisdiction. Every notary public who obtains his commission in Manila can only
be a notary public in Manila. The moment you set foot outside of the territorial
limits of Manila, you are no longer a notary public. You can only require a
notarial commission primarily in your place of office and secondarily in your
residence. You cannot get a notarial commission in any other place.
Here is a case of a notary commission in Caloocan who admittedly notarized a
document in Quezon City. He could have brought all the parties to Caloocan and
asked them to sign there.
The notary is expected to know the law. Who committed a breach of law? Not the
testator but the notary. Who paid for his crime? the testator. The decision is
correct, because if you adhere to the law, that will be the result. I cannot notarize
something where I did not have the authority. These are jurisdictional matters.
What is jurisdiction? The authority to perform an act that will produce legal
effects. If he was not a notary public in QC, he cannot notarize the document.
Unfortunately, it is the testator who has to suffer the consequences.
Gabucan vs Manta: The Tax Code is clear: if you did not affix the documentary
stamp tax (DST), it will not be admissible in evidence in court, but not until you
affix the correct stamp. The DST does not validate a document. It is a tax that is
assessed on you for having executed a document and it has nothing to do with the
validity of an instrument.
Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will,
if able to do so; otherwise, he shall designate two persons to read it and
communicate to him, in some practicable manner, the contents thereof.
Art. 807 and 808 are special formalities because they apply only to people with
certain disabilities.
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Why does the law require the additional formalities to the deaf and the deaf-
mutes? PWDs are given special protection. The 5 senses enable us to appreciate
what’s going on around you. A deaf person will not be able to hear what people
around him are saying. Thus, he must read the will to satisfy himself that what is
written is what he wants. If illiterate, the deaf person will have to rely on the
person who drafted the will and those who will communicate its contents to him.
There is more risk because the law does not even require who the interpreter
should be.
Why must the testator assign 2 interpreters? So that the testator can counter-
check. If their interpretations are not same, something must be wrong.
Why are deaf and deaf-mutes classified together? The function of speech is
directly connected with the hearing. We are able to speak because we mimic what
we hear. If the ears have been closed from the time of birth, the person will never
be able to speak. A congenital deaf is automatically a congenital mute.
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one
of the subscribing witnesses, and again, by the notary public before whom the
will is acknowledged.
Read by one of the witnesses because it is presumed that the testator trusts the
witness. Read by notary public because the notary is a lawyer, an officer of the
court. He participates in the execution of the will as a person commissioned by
the court to perform notarial functions. Therefore, he is presumed to have
familiarity with the law and possessed with integrity.
Who are covered by the special formalities in Art. 808?
1.
Garcia vs Vasquez: Gliceria executed 2 wills. She executed the subsequent will
to make some changes in the first. There were a lot of typographical errors and
there were barely any margins to fit the will in one page (it was rushed). The
subsequent will only contained one page to limit the signature of the testator to
only one because it was hard for her to sign as a result of glaucoma. She could
count fingers within a distance of 5 feet (far sighted). When the will was written
in one page, she would not have been able to read its contents.
SC: She needs to comply with Art. 808. She cannot read the document because of
her eye defect. While she is not blind, she has no reading function. Therefore, she
was exposed to the same risks that a blind person is exposed to. The will should
have been read to her twice. The will cannot be admitted to probate because the
testator was totally dependent on external help to be able to understand the
contents of the will. They did not comply with the double-reading, therefore, the
will is void. Non compliance with double-reading in Art. 808 will make the will
void. The same is true with Art. 807. If the contents are not communicated to the
deaf or deaf-mute, the will is void.
Alvarado vs Gaviola, Jr.: The testator also has glaucoma. During the
execution, the people there are: the testator, notary, and lawyer who drafted the
will (who is a primary beneficiary) and 3 witnesses. The witnesses were given a
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copy of the will. While the will was being read to the testator out loud, the
witnesses followed by reading their own copy. This was done twice (with the will
and with the codicil).
SC allowed the will because it produced the same effect as strict compliance with
the rule.
The procedure achieved the objective of the law. If I were to go by that statement,
then anything that would produce the same effect should be allowed.
Example: We write the will so nothing is left to memory. If I appear on national
television and read my will before the Filipino people, there would be no
deniability. I would have the entire nation as my witness. Is that valid? No,
because Art. 804 says the will must be in writing.
There are 2 requirements under Art. 808: reading of the will twice (1) by the
notary; (2) by one of the witnesses. None of these were complied with. There
could have been no substantial compliance.
Substantial compliance - imperfect performance. But an imperfect performance
presupposes that there was an attempt to comply with the requirement but the
compliance is not perfect, there were lapses.
In this case, there was no compliance at all. Consider also that the testator here is
a PWD who needs special protection. This is judicial legislation. The will involves
the disinheritance of an adopted child. If they declined to accept this will, that
child will inherit. Be that as it may, it is no excuse for disregarding the law.
Art. 1234. If the obligation has been substantially performed in good faith, the
obligor may recover as though there had been a strict and complete fulfillment,
less damages suffered by the obligee.
Art. 1234 talks about substantial performance/compliance in payments. The
party claiming substantial compliance must show that he has attempted in good
faith to perform his contract but has through oversight, misunderstanding or any
excusable neglect, failed to completely perform in certain negligible respects, for
which the other party maybe adequately indemnified by an allowance and
deduction from the contract price or by an award of damages. But the party who
knowingly fails to perform his contract in any respect or omits to perform a
material part of it, cannot be permitted under the protection of this rule to
compel the other party to perform and the trend of the more recent decisions is
to hold that the person page of omitted or irregular performance maybe and of
itself sufficient to show that there has not been substantial compliance.
Elements of Substantial Compliance:
1. An attempt in good faith to perform without any willful or intentional
departure from the obligation;
2. the deviation from the obligation must be slight;
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3. the omission or defect must be technical and unimportant and must not
pervade the whole or be so material that the object that the parties
intended to accomplish in a particular manner is not attained; and
4. the non-performance of the material part of the contract will prevent the
performance from amounting to substantial performance.
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in
the language used therein shall not render the will invalid if it is proved that the
will was in fact executed and attested in substantial compliance with all the
requirements of Article 805.
This is the doctrine of liberal interpretation. This applies only to the attestation
clause, specifically, to the language and form. This is the mistake in Alvarado case
because it applied liberal interpretation on the formalities of the will.
Gil vs Murciano: In the Rodelas case, the attestation clause lacks the number
of pages but the court did not invalidate because the last paragraph of the will
states this has x number of pages. The notarial acknowledgement of the notary
public states this will consist of x number of pages. If you count the number of
pages, it tallies. The missing thing in the attestation clause is cured by
information in the will itself. Defects of the attestation clause, missing details,
that can be supplied from the 4 corners of the will is covered by the doctrine of
liberal interpretation but it does not allow you to go outside the will (no extrinsic
evidence if permitted).
Why is there liberal interpretation? The witnesses are only helping the testator.
The attestation clause is a statement of the witnesses. The testator should not be
faulted too much if the witnesses committed any mistake in their narration of the
circumstances of the execution of the will. If the witnesses forgot anything that
can be supplied by the will, Art. 809 can be invoked and the attestation clause
can be validated.
In Gil, the SC allowed the defective attestation clause because the body contained
the missing details. Also, the copy of the will was a reconstituted copy because
the original documents were burned. Reconstituted copy – the parties compared
notes (plaintiff and defendant) then they reconstructed the document. The error
could have been in the reconstitution because what the court could not
understand is such brilliant lawyers who prepared that document could commit
such a glaring error.
Caneda vs CA: Caneda and Gil are virtually the same but in the former case, the
will was not allowed. The difference is Caneda involved an original copy of the
will. It is not a reconstituted will and the attestation clause is plainly defective
because there was a phrase missing and that phrase is not found elsewhere in the
will. You cannot assume that there was merely an error in reconstitution because
the document that was submitted to the court is the original document.
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Art. 810. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed.
To state that it is subject to no other form is a falsehood. You can’t escape Art.
804.
Art. 804. Every will must be in writing and executed in a language or dialect
known to the testator.
"Every will." The reason for the language requirement is so that the testator
knows the contents of the will without having to rely on somebody else. The
personal understanding of the testator of the contents of that will is guaranteed
when he understands the language in which the will is written.
Also, not all persons can make a holographic will because there is an implicit
literacy requirement. Illiterates cannot because they don’t know how to write.
Therefore, Art. 810 is not the only requirement for the form of holographic wills.
If a person has no hands, he may write with his feet or mouth. The law only states
"by hand” because that is the traditional way of writing. The purpose of the
entirely written by the testator requirement is to prove the authenticity of the will
and to identify the will with its author. Then, if you can establish that certain
writing pertains to a particular person, it doesn't matter whether he wrote it with
his hand, foot or mouth.
Can you write a holographic will and instead of affixing your signature, you affix
your thumb marks? No, because the statement “signed by the hand of the
testator” eliminates the possibility of a thumb mark.
How come holographic wills are required to be dated but notarial wills are not?
Unlike a notarial will, a holographic will is presumably done in private. In the
case of a notarial will, it cannot be done in private because witnesses are required
and they should see each other sign the document. The execution of a notarial
will is witnessed by at least 3 persons and after that, you have the notary public
who will participate. That is the norm in the old Civil Code.
Our Congress realized that when a person writes a will, his basic objective in
controlling the disposition of the estate is to have his own way of distribution and
not to leave the distribution of his estate to the law. While intestacy seeks to
achieve the equality of the shares of the intestate heirs, testamentary succession
takes a different tone. You write a will not because you want to distribute your
estate equally among you heirs. You write a will because there are some favors/
preferences you want to give. Whatever preference or an advantage a testator
gives to a particular person has a corresponding negative consequence to the
other heirs. An increment you give to one is an increment you took form
somebody else.
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The Code Commission realized that when the testator writes his will, which is the
notarial will (attested will is the more accurate term because it didn’t need to be
notarized in the old Code) prior to the New Civil Code, the contents are hard to
conceal because witnesses are necessary. The problem is when the heirs find out
that some are favored and some are not, quarrels arise. Thus, holographic will
was allowed. Its primary objective is to seek the secrecy of its contents. Even the
making of the holographic will need not be announced. The only proof of
authenticity is the handwriting of the testator.
The date is required:
1. to identify if he has testamentary capacity (through age and soundness of
mind) when he made the will. Notarial will need not be dated because the
notary public will note the date himself in the notarial register. Also, the
witnesses can attest to the soundness of the testator's mind.
2. to know if the holographic will is valid. If the will was dated on or before
Aug. 29, 1950, then the will is invalid because the New Civil Code took
effect only on Aug. 30, 1950.
Is the complete date required?
General rule: No. What is important is that you are able to establish the material
facts on the basis of an incomplete date.
Why is it not important to know the exact date on which the will was written?
Roxas vs de Jesus, Jr.: “Feb./61” was held to be a substantial compliance.
Why was it not important to know the exact calendar date on which the will is
written? Because you can already obtain the required information with Feb./61.
February 1961 – holographic wills are already allowed, he was already of age, he
was of sound mind, no ambiguity. Putting a calendar date does not add anything
to what you already know. The law is not trying to impose something that is not
necessary.
Exception:
If an incomplete date will create uncertainties, then it will not be sufficient to
support a holographic will.
Labrador vs CA: Where do you put a date in a holographic will? The date must
be put at a reasonable place. In this case, the date is written in the body of the
will. May the date be placed at the back page? No, not a reasonable place. Maybe
the testator forgot to write the date and when he died, someone else placed the
date at the back of the will to make the difference in the ink or handwriting
unnoticeable.
When a doubt is created as to whether the will is authentic or not, the probate
judge must be deny the probate because this is a special proceeding and the right
was not established. Special proceedings seek to establish a fact, a right or a
status. If you’re not able to establish the fact, the right or the status, the petition
must be denied. The probate proceeding is a proceeding to establish the
GING$!$$
authenticity of the will so if there is a doubt as to the authenticity of the will, the
petition must be dismissed.
Art. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator. If
the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph,
and if the court deem it necessary, expert testimony may be resorted to.
Probate is a special proceeding. A special proceeding is not the same as an action.
An action is an adversarial proceeding in court between the plaintiff and the
defendant where the plaintiff seeks to obtain affirmative relief against the
defendant because the defendant violated the plaintiff’s right. In an action, there
is always a winner and a loser. In a special proceeding, there is no winner or loser
because the petitioner is either able to establish the fact, right or status or the
case is dismissed.
In the probate of a holographic will, its authenticity must be established. In a
probate, there are only 4 things to prove:
1. capacity of the testator
2. compliance with the formalities
3. that the will is in fact that of the testator (identify the will)
4. that the testator executed the will freely
In the case of a notarial will, probate is an elaborate process because there are a
lot of things to prove: all the matters set forth in Art. 805. In a holographic will,
there is only thing that needs to be proved: the handwriting of the testator.
Can a will be admitted to probate if there are some heirs who contest the
handwriting of the testator? Yes. If it is not contested, the judge will call 1 witness
to prove the authenticity. If contested, 3 witnesses will be required.
Codoy vs Calugay: 6 witnesses were presented to prove the handwriting. Yet,
the SC denied probate of the will. The witnesses were not able to prove that the
holographic will was in the hand of the testator.
What must a witness say in order to satisfy the requirement of Art. 811 if the will
is uncontested? Explicitly declare that the will and the signature are in the
handwriting of the testator. Why will he be able to say that? On what basis is he
saying that? Categorically say that the document and the signature are in the
hand writing of the testator. No ifs, no buts. Even if he is not a handwriting
expert, he can say this because he knows the handwriting of the testator. Then,
establish how he knows the handwriting of the testator.
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In Codoy, the testimonies were declined because all the witnesses are relying on
their familiarity with the handwriting of the testatrix. Familiarity is not enough.
They must know.
How many witnesses did Codoy need? He needed 3. Since the will is contested,
the law required that there should be 3 witnesses.
Azaola vs Singson: JBL Reyes: The 3-witness rule is not mandatory but merely
directory even if the law uses the word "shall." You will look for witnesses who
know the handwriting of the testator. If he is a person who doesn’t write a lot,
there will be very few people who knows his handwriting. Second, assuming there
is a person who knows the handwriting of the testator, he might not want to
testify. Third, even if he testified, you will not be sure if he will testify in favor of
you. Therefore, if not contested, the court should be satisfied with only 1 witness.
But to quantify the number to 3 is an inane requirement because in any
proceeding, it is not the quantity of the evidence you produce but the quality of
the evidence that will prove your facts.
But here, the law says the quality doesn’t matter but you have to produce 3
witnesses, which is essentially contrary to the rules of procedure. This is not how
we prove things as matters of fact. Therefore, JBL Reyes says no matter how
many witnesses you produce, if the court is not happy with the quality of
testimony, the court should not allow probate but the option of the court is to ask
for expert testimony. This proves that the 3-witness rule is not mandatory.
However, under the Codoy ruling, if you do not produce 3 witnesses, the will will
be denied probate.
Gan vs Yap: What if the holographic will, whose only proof of authenticity is the
writing itself, is lost? Testatrix was supposedly scared of the husband and wanted
to dispose of her estate without her husband knowing. She made a holographic
will that the husband is not supposed to know but the contents were broadcasted
to all the visitors. The will got lost. The uniform testimony of the witnesses is that
they went to the house of the testatrix and the testatrix asked them to read the
will. By that, there is basis now to say that they saw the will and it was written by
the testatrix because that was her representation to the visitor. By saying that the
testatrix volunteered the will to the visitors, the lawyer hoped to establish the
personal knowledge of the witnesses with respect to the handwriting of the
testatrix. He also wanted to establish the identification of the will itself.
Rodelas vs Aranza: Photostatic of a will was deemed admissible if the original
is lost. The decision was based on a footnote in Gan vs Yap.
Art. 812. In holographic wills, the dispositions of the testator written below his
signature must be dated and signed by him in order to make them valid as
testamentary dispositions.
A holographic will may be a continuing document. At some point in time you
wrote a will, you put the date, the disposition and you signed it. You forgot
something. You put a date, you put what you forgot, and then you signed. 2 years
later, you acquired another property. You included it in the will. You put the date,
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the disposition and you signed. All of these are okay because every disposition
with a date and a signature is construed as a legal holographic will evaluated
separately from the rest.
In notarial will, after you sign, anything you add below will invalidate the whole
will.
Art. 813. When a number of dispositions appearing in a holographic will are
signed without being dated, and the last disposition has a signature and a date,
such date validates the dispositions preceding it, whatever be the time of prior
dispositions.
If you forget the date in one of the dispositions in the middle, it is okay as long as
the last disposition is dated and signed. It validates all prior dispositions without
a date. If it is the signature you forgot (not the date), Art. 813 will not validate
that provision.
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full signature.
The insertions and the alterations pertain to the holographic will. If you want to
modify a notarial will, you have to execute a codicil.
The insertion or alteration must be authenticated with a customary signature
even though the law states full signature.
Kalaw vs Relova: In the holographic will, the original heir was Rosa. The name
of Rosa was cancelled and written on top was the name of Gregorio. It was not
signed. The alteration was invalid.
A will may be revoked by:
1. by implication of will
2. by execution of another will or a codicil
3. by an overt act of tearing, cancelling, obliterating or burning.
Cancellation of a particular testamentary disposition is a form of revocation of a
will. Although you would probably argue that the disposition was not cancelled. It
was only Rosa's name that was cancelled. Why was the whole will revoked? The
only disposition of the holographic will was given to Rosa. Cancelling Rosa's
name effectively cancels the entire disposition. The cancellation amounted to
revocation. Is it a valid form of revocation? Yes, because revocation does not
require the authentication of the testator. But this cancellation at the same time
was intended to substitute Gregorio in place of Rosa. The revocation is as to Rosa
and an alteration or substitution in the case of Gregorio. Gregorio's substitution
as the new heir is not valid because that constitutes a change in the testamentary
disposition and that requires an authentication by the testator.
At the end of the day, both of them inherited by virtue of intestacy.
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Art. 815. When a Filipino is in a foreign country, he is authorized to make a will
in any of the forms established by the law of the country in which he may be.
Such will may be probated in the Philippines.
Art. 816. The will of an alien who is abroad produces effect in the Philippines if
made with the formalities prescribed by the law of the place in which he resides,
or according to the formalities observed in his country, or in conformity with
those which this Code prescribes.
Vda. de Perez v. Tolete: Wills that have been probated abroad need not be
reprobated in the Philippines because the case talks about the procedure for the
enforcement of a foreign judgment.
What do you do to enforce a will that has been probated abroad?
1. prove the fact of probate
2. prove that the court that issued the probate order is a probate court
3. prove foreign law on the matter
You prove all of these 3 things and you prove that there was compliance with
foreign law on the matter then you can enforce the will in the Philippines.
Art. 817. A will made in the Philippines by a citizen or subject of another country,
which is executed in accordance with the law of the country of which he is a
citizen or subject, and which might be proved and allowed by the law of his own
country, shall have the same effect as if executed according to the laws of the
Philippines.
Art. 818. Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third person.
What is the basis for the [strong] policy statement in Art. 818? Joint wills present
an opportunity for one party, who is more dominant than the other, to exercise
undue influence over the other in the execution of a will resulting in a vitiation of
consent.
A will involves gratuitous disposition of property and no one can validly
determine the extent of one’s generosity except the testator. With this
prohibition, no dominant person can compel the other to make a will.
Joint wills are usually executed by spouses because of the commonality of
interest in the properties owned (community of property relations) and that the
same group of beneficiaries are the objects of their bounty.
Why can’t the will be admitted probate when there was no opposition? Because
probate is a special proceeding and as such, it only seeks to establish: a fact, a
right, or a status. There is a need for the petitioner to introduce evidence to
establish those things. Absence of opposition to a special proceeding is not
authorization to the judge to grant the petition.
GING$!$$
If you were sued in an ordinary action and you did not file your answer on time
or you did not file an answer at all, then a presumption arises that all the
essential allegations of the complaint are admitted and the court is authorized to
render judgment based on the un-objected complaint of the plaintiff.
This is the first error of the probate judge in this case - he admitted the will in
probate simply because nobody interposed an objection.
When the probate order became final because nobody appealed, what did the
judge do? The will was implemented. This is the second error of the judge
because in the first place, the document was a joint will which is expressly
prohibited under Art. 818.
The estate of the decedent (husband) was distributed but the widow’s share
remain untouched for the reason that she was still alive at the time the will was
probated as to the share of the deceased husband.
Why was there a need to reinstitute probate proceedings as to the estate of the
wife upon her death when the previous decision was already conclusive that it
was executed in accordance with law on the strength of the valid, binding, and
final order of the court admitting the will to probate? The court noted that the
procedural law at the time did not permit ante-mortem probate so every probate
proceeding can only be entertained after the death of the testator. The probate
order at the time the husband died was conclusive only as to his will. It did not
have any bearing on the will of the wife because she was still alive. This is why it
became necessary to resubmit the same document to another round of
proceedings this time, to look at the same document, but from a different
perspective - the document being, this time, the will of the wife. A joint will is
considered a separate will of each testator.
How did the probate court rule? The will was denied with finality.
How do you now reconcile that one and the same document is valid as to
husband and void as to the wife? The decision in the probate of the husband’s
will is final and executory. It cannot be corrected because it was not an error of
jurisdiction but rather, an error of judgment which was correctible by way of
appeal and nobody did. So you have a wrong judgment that has reached the state
of finality. This time, however, you have to submit it again because the court
acquired no jurisdiction over the same document with respect to the wife’s estate.
The judge this time knew his law and declared the will void because of the
prohibition of Art. 818.
Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a
foreign country shall not be valid in the Philippines, even though authorized by
the laws of the country where they may have been executed.
Art. 820. Any person of sound mind and of the age of eighteen years or more, and
not bind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in Article 805 of this Code.
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The will needs three or more credible witnesses according to Art. 805. Art. 820
further provides the qualifications and Art. 821, the disqualifications. The
combined effects of the qualifications and disqualifications actually gave rise to a
new adjective: competent.
Credibility is the sum total of a person’s character or traits and a person’s general
reputation as a member of the community which all lead and point to one fact:
that a person can be believed. However, credibility is not quantifiable. Thus,
credibility is always directed to the sound discretion of the person who is to
receive the evidence. In the case of wills, the ultimate judge of a person’s
credibility is the probate judge.
A credible witness is someone who takes the witness stand. He opens his lips, he
makes statements, he gives testimony to prove or disprove a certain fact. Unless a
witness opens his mouth to talk, you will not be able to determine his/her
credibility.
How is credibility determined? That is something that you leave to the
appreciation of the judge. The judge is supposed to determine whether the nature
of the testimony of the witness is believable or unbelievable. This can be
reinforced by cross-examination. You cannot legislate credibility.
What is the difference between a credible and a competent witness? A competent
witness is one who has the qualifications in Art. 820 and none of the
disqualifications in Art. 821. (page 124, Mison)
What are the qualifications of a witness?
(1) of sound mind;
The sound mind is a guarantee that he appreciates the things that went on during
the execution of the will - the understanding of what went on; and that is not a
function of age or credibility. That is a function of understanding; the cognitive
ability.
(2) 18 years or more;
This is to assure that the witness has sufficient discretion.
(3) not blind, deaf, or dumb; and
A blind person cannot sign the attestation clause. The attestation clause says that
the will was signed in the presence of the testator and of one another. The test of
presence - how can you truthfully execute the attestation clause if you were blind.
Why are the deaf and dumb also prohibited from becoming notarial witnesses?
Since witnesses are generally required to identify the will, certify that certain
formalities were complied with, attest to the execution of the will, and
communicate what they saw or heard during the execution of the will, all for the
purpose of preventing fraud.
GING$!$$
You want your witness to be in full possession of his faculties so that when he
testifies, he will not only be able to testify on what he saw, he can testify on what
he heard.
Note: When a person takes the witness stand and he suffers from certain
disabilities, the witness is testifying under a handicap.
(4) able to read and write; AND
A witness must possess a certain level of education, intelligence, and training so
that there is some level of assurance that the witness will be credible and reliable
and that his account of what went on is both accurate and true. Although not a
definite assurance, still literacy will help when it comes to understanding what
went on during the execution of the will.
(5) Art. 821.
Why are there more stringent requirements for notarial witnesses than there are
to testators? Because the witnesses are there ultimately to help the testator.
When the testator dies, he will need witnesses to testify what happened during
the execution of the will. When that day comes, who is important are the
witnesses; because the life of the will becomes dependent on the credibility of the
testimonies of the witnesses.
By imposing these requirements, you make it a lot easier for the witness to
provide a credible testimony.
Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
The purpose of this requirement is for convenience so that such witness can be
within the reach of compulsory processes of the court (i.e. appearance). A witness
is not the same as an accused wherein he will be subpoenaed so that you can
compel his attendance in court. It is the proponent’s responsibility to produce
witnesses.
Is this absolute? No. Because if probate is conducted abroad, the residency
requirement in the Philippines becomes irrelevant. Because if you require a
witness to be a resident of the Philippines and probate be undertaken in the U.S.,
then you contravene the best interest of the testator. Residency presupposes that
probate is conducted locally.
(2) Those who have been convicted of falsification of a document, perjury or false
testimony.
Falsification of a document - because the subject matter of a probate proceeding
is a will and a will is a document (genuineness and authenticity of the will)
Perjury and False Testimony - because it is done under oath
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Why did the law focus on the 3 offenses mentioned? Because these are the things
that are in danger of being committed when the witnesses take the witness stand.
In summary, there are four (4) qualifications and two (2) disqualifications. Add
to the disqualifications: You cannot be a witness if you are also the notary public
before whom the will was acknowledged.
Art. 822. If the witnesses attesting the execution of a will are competent at the
time of attesting, their becoming subsequently incompetent shall not prevent the
allowance of the will.
Art. 823. If a person attests the execution of a will, to whom or to whose spouse,
or parent, or child, a devise or legacy is given by such will, such devise or legacy
shall, so far only as concerns such person, or spouse, or parent, or child of such
person, or any one claiming under such person or spouse, or parent, or child, be
void, unless there are three other competent witnesses to such will. However,
such person so attesting shall be admitted as a witness as if such devise or legacy
had not been made or given.
The persons enumerated in the provision have a stranded interest in the will
because while the benefit exists, it is undetermined whether they will receive it or
not. It will be received if the will is valid or allowed probate; otherwise, the
stranded interest will be lost.
Why is the gift void? Such witness will consciously or unconsciously give a false
testimony to protect his interest. In short, he loses credibility. Whatever he says
on the witness stand is tainted (self-serving). It will be foolhardy for him to say
anything against due execution. If he does so, he risks the will being disallowed
and consequently, he loses the gift.
He can still remain as a witness, however, because, since the gift has been voided,
he no longer has an incentive to steer the course of his testimony that is favorable
to his personal cause.
Exception: The attesting witness who stands to benefit does not have to testify.
If there is a substitute witness as when there is a fourth witness.
Warning: Conflict with Art. 1027(4).
Art. 1027. The following are incapable of succeeding: xxx
(4) Any attesting witness to the execution of a will, the spouse, parents, or
children, or any one claiming under such witness, spouse, parents, or children.
While Art. 823 contains an exception, Art. 1027(4) does not have. If there are 5
witnesses - one of them being an heir to the will subject to probate proceedings
and he does not testify, he can still receive the gift. In Art. 1027(4), he is
absolutely prohibited to receive the gift without regard to any exceptions.
The exception in Art. 823 says the gift is void except if there are 3 other
GING$!$$
witnesses, so it’s the nullity of the gift that is lifted if there are 3 witnesses other
than the heir. In Art. 1027(4), the declaration of the heir’s incapacity is absolute
and without exceptions. Therefore, arguably, the gift is not void but Art. 1027(4)
says, he cannot inherit.
Art. 824. A mere charge on the estate of the testator for the payment of debts due
at the time of the testator's death does not prevent his creditors from being
competent witnesses to his will.
Art. 825. A codicil is supplement or addition to a will, made after the execution of
a will and annexed to be taken as a part thereof, by which disposition made in the
original will is explained, added to, or altered.
Art. 826. In order that a codicil may be effective, it shall be executed as in the
case of a will.
Art. 827. If a will, executed as required by this Code, incorporates into itself by
reference any document or paper, such document or paper shall not be
considered a part of the will unless the following requisites are present:
(1) The document or paper referred to in the will must be in existence at the time
of the execution of the will;
(2) The will must clearly describe and identify the same, stating among other
things the number of pages thereof;
(3) It must be identified by clear and satisfactory proof as the document or paper
referred to therein; and
(4) It must be signed by the testator and the witnesses on each and every page,
except in case of voluminous books of account or inventories.
It is a simple provision of law that allows us to put annexes to a will - for clarity,
for the avoidance of doubt, etc.
Incorporation by reference is done merely by mentioning in the will that a certain
document is referred thereto though not necessarily attached to the will itself.
(page 131, Mison)
You can incorporate external documents to your will, provided:
(1) the document exists at the time of the making of the will
(2) there is competent evidence that that is the document referred to in the will
(3) that you identify the will as that which is being incorporated
(4) the pages thereof must be signed by the witnesses and the testator
This is an inference that an incorporation by reference is only available in the
case of notarial wills because of the requisite signatures.
Art. 828. A will may be revoked by the testator at any time before his death. Any
waiver or restriction of this right is void.
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A will is essentially ambulatory and it is therefore revocable at any time before
the testator dies or before he loses his testamentary capacity. You cannot deprive
a testator of his right to revoke a will because that essentially is an absolute
license that he can change his mind at any time. Even when the will has already
been probated during his lifetime he can still revoke it and no curtailment of that
right will be valid.
Art. 829. A revocation done outside the Philippines, by a person who does not
have his domicile in this country, is valid when it is done according to the law of
the place where the will was made, or according to the law of the place in which
the testator had his domicile at the time; and if the revocation takes place in this
country, when it is in accordance with the provisions of this Code.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
This is a misnomer because there is no law that would implicitly revoke an entire
will but there are many laws that would implicitly revoke specific dispositions of
a will (3 in the Civil Code; 4 in the Family Code)
• Art. 936 - relates to legacies of remission or legacies of credit; there is
revocation by implication of law if the testator would bring an action to collect
the debt that is forgiven or to collect credit that was given
• Art. 957 - a testator writes a will and he gives legacies and devises; if in his
lifetime, he alienates the thing that was given as a legacy or a devise, or he alters
its form, or he loses it, then that legacy or devise is revoked by implication of the
law
• Art. 1032 - I gave a legacy or a devise but in my lifetime, you committed an act
of unworthiness as defined in this article, that legacy or devise is deemed revoked
by implication of law
• Family Code provisions: Arts. 43(5), 44, 50, and 63 - in all of these cases, we’re
talking of the dissolution of marriage where essentially the party at fault loses the
right to every testamentary disposition given to him/her by the innocent spouse;
it refers to marriages that are bigamous void, testamentary dispositions given by
the innocent to the guilty are also deemed revoked by implication of the law
(2) By some will, codicil, or other writing executed as provided in case of wills; or
Implied and express revocation
Example of implied revocation:
Will # 1: all to X
Will # 2: all to Y (change of mind)
Will # 2 does not expressly repeal will #1 but if you are survived with 2 such
documents, you cannot give effect to both of them; either you give everything to
X or you give everything to Y; splitting the inheritance between X and Y is not
what the testator wanted
GING$!$$
Which of the 2 documents will prevail? Under our law, the later will supersedes
the earlier will so if they’re both dated, will #2 will take precedence over will #1.
That is a case of implied revocation (reason: because will #2 did not explicitly
supersede will #1; the repeal of will #1 is an inference from the tenor of will #2;
since you cannot give effect to both of them simultaneously, the only logical
conclusion is for the later will to supersede the prior one; the implication is that
will #1 is revoked). We can safely say that the case of implied revocation is
premised upon 2 wills which are conflicting in their provisions and these
conflicting provisions cannot be reconciled, they cannot be given effect
simultaneously, and therefore the later expression of the will prevails over the
earlier expression. That is the basis of implied revocation.
Example of express revocation
The will says, “I repeal will #1 and I am giving everything to Y.” There is a
presence of a revocatory clause
Why are these important? Because of the processes of republication and revival
of wills - bringing back a dead will to life.
1. Republication - derived from the root word “publish.” To publish refers to
the making known. To publish your will simply means you executed a will
because that document will announce the testamentary mandate (what you
want to do with your estate effective upon your death). To republish a will
means to re-announce it. A will is published by writing it and signing it
When is the process of republication necessary? If the will that you had executed
earlier is void as to form meaning it did not comply with the formalities
prescribed by law.
How is this process done? Rewrite the will and sign it again.
When the will is valid as to form, can you still republish your will? Yes, the
process is simple.
Example:
will #1 - all to X
will #2 - all to Y
By repealing will #2, will #1 is automatically republished (republication by mere
reference; because the will is valid as to form)
In summary, you can republish by rewriting if the will is void as to form and you
can republish by reference if the will is valid as to form.
2. Revival - the process happens only in implied revocation because the
intention of the testator is not clear. Implied revocation is premised on
inconsistent provisions
Example:
Will #1 - designates X as the universal beneficiary to the exclusion of all others.
The testator changed his mind. He subsequently executes will #2 and designates
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Y as the universal beneficiary. While both documents appear contradictory, will
#2 did not expressly repeal will #1.
Revival is a statutory process that happens without human intervention. If the
testator burns will #2, will #1 is automatically revived. Why? Because the
inconsistency disappeared. If the testator writes will #3 and the only provision is,
“I revoke will #2,” will #1 is revived, again because the inconsistency disappears.
The revival is an automatic process that happens without human intervention
and the revival occurs because the inconsistent provision disappears; for which
reason it is always prudent to keep on file all the wills that you will make in your
lifetime.
Theory of Dependent Relative Revocation
Example:
Will #1: all to X
Will #2: all to Y
Which document will be submitted to probate? Will #2. But when you submit
will #2 in probate, there are only 2 possible outcomes: either admitted or denied.
If it is admitted to probate, then you implement will #2. What if it was denied?
Will #1 becomes material because the effect of revocation in will #2 happens only
if the same is admitted probate. Otherwise, it could not have repealed will #1 and
therefore, will #1 could still be a material document.
(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or obliterated by some other
person, without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court.
Requisites for the revocation of a will by means of an overt act:
1. Overt act prescribed by law
4 Overt acts: burning, tearing, canceling and obliterating. Exclusive? Yes. That is
exactly what the law says. You cannot apply ejusdem generis because there is no
commonality.
Cutting with scissors, but this may be considered as tearing. Other acts, such as
swallowing the will or flushing it, does not revoke the will. However, the will
cannot be retrieved anymore and therefore, cannot be submitted to probate.
2. Intent to revoke or animus revocandi
How do you demonstrate that there was animus revocandi when the testator
burned the will? Through prior and contemporaneous acts. Example: (1) A
executed a will he wanted to revoke. He burned it. Before burning it, he went to a
lawyer who drafted a second will for him. It indicates that you burned the
GING$!$$
original will because there is a new one. There is intention to revoke the will. (2)
A made a will giving everything to his son. He burned the will. It turns out, A
already sold all his properties. The intent to revoke is evident.
3. Testamentary capacity of the testator at the time of revocation
4. Completion of the subjective phase of the act
Is it necessary for the overt act to be completed? No. Partial completion is
accepted. What is important is the completion of the subjective phase of the act.
If the document was entirely burned, completion of the subjective phase is no
longer an issue.
A burned his will. While it was burning, he left the room. Only a part of the will
was burned because the fire went out. Was the subjective phase completed? Yes.
Is it the extent of the damage to the document that will determine whether the
object of the acts have been completed? No. You don’t have to burn the whole
document. If in the mind of the testator, it is his view that the will has been
substantially destroyed, the will is deemed revoked.
How do you prove it? Example: (1) The testator burned the will and only a part of
it was burned. Afterwards, he threw it on a timba. The testator took a broom and
swept the burned will and threw it in the trash can. This is an indication that the
subjective phase has been completed. (2) The testator saw that the will was not
completely burned and tore it into tiny pieces. In his mind, the will was not
burned properly so he tore it.
5. Completion of the subjective phase
Testate Estate of Adriana Maloto vs Court of Appeals: The will was
burned by her maid. Adriana died who has no children. The nephews and nieces
extrajudicially settled the estate equally. Atty. Sulpicio Palma, a former associate
of Adriana's counsel, the late Atty. Eliseo Hervas, discovered the unsigned draft
of the will of Adriana. This is not suspicious because Atty. Palma only discovered
the draft when he was sorting the things left when Atty. Hervas died.
Why was the burning of the will not effective as a revocation? It was not burned
in the presence of the testator. Adriana left after giving the maid the will. When
requesting a person to write the testator's name in the will, it must be done in the
presence and by the express direction of the testator. Thus, revoking it requires
the same. Also, she can't say for a fact what she burned. She was illiterate and
didn't know the contents of the document she burned.
Gago vs Mamuyac: When the will is missing, there is a presumption that if the
testator had sole access to it, he must have revoked it. Compare this with the
decision in Gan vs Yap were the SC held that if the will is missing, it probably can
be proved by secondary evidence. But the circumstances in Gago is so unique
because it is only the testator who had access to the will.
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Art. 831. Subsequent wills which do not revoke the previous ones in an express
manner, annul only such dispositions in the prior wills as are inconsistent with or
contrary to those contained in the latter wills.
Implied revocation.
Art. 832. A revocation made in a subsequent will shall take effect, even if the new
will should become inoperative by reason of the incapacity of the heirs, devisees
or legatees designated therein, or by their renunciation.
Ineffectivity of the revoking will. I wrote will 1, I revoked it with will 2, will 2 is
valid but will 2 cannot be given effect for one reason or another (ex. the heir
refused to accept). Will 1 is not revived because the revocation was valid.
Art. 833. A revocation of a will based on a false cause or an illegal cause is null
and void.
The cause for the revocation MUST be stated. Otherwise, if it was not stated why
the will is revoke, there was nothing to prove the falsity of. If there is no cause,
there can be no false cause that you can prove. In parole evidence rule, what is
not written, you cannot read into the will.
I executed will #1 with X as my universal beneficiary. X is a soldier. X was
assigned to serve in Jolo and he fought with the Abu Sayyaf. After an encounter,
the guy went missing.
4 years lapsed, he didn’t show up so he was presumed dead. Will #2 is executed
and instituted Y as the universal beneficiary; because I thought X has died and I
stated the cause of the revocation in will #2.
During the probate proceedings, X reappeared. What happens to Y? He gets
nothing because the revocation of X’s designation as universal heir is premised
on a false cause.
If the reappearance happened after the will is probated, X loses the right.
Art. 834. The recognition of an illegitimate child does not lose its legal effect,
even though the will wherein it was made should be revoked.
Art. 835. The testator cannot republish, without reproducing in a subsequent
will, the dispositions contained in a previous one which is void as to its form.
Art. 836. The execution of a codicil referring to a previous will has the effect of
republishing the will as modified by the codicil.
2 ways of republishing:
1. by rewriting the whole thing if the will is void as to form
2. republication by mere reference if the will is valid as to form
GING$!$$
A republished will speaks as of the day of its republication.
A made a will in 1990. In my will, I said all my movable property I give to X. If I
die, X will get all my movable property since 1990. Suppose the will was revoked.
I brought it back to life by republication, I wrote a second will saying “I am
republishing by reference my will of 1990” on 2013. If I die, X will get all my
personal property as of 2013.
Art. 837. If after making a will, the testator makes a second will expressly
revoking the first, the revocation of the second will does not revive the first will,
which can be revived only by another will or codicil.
Art. 838. No will shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent provisions of
the Rules of Court for the allowance of wills after the testator's a death shall
govern.
The Supreme Court shall formulate such 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 allowance of the will, either during the lifetime
of the testator or after his death, shall be conclusive as to its due execution.
Rodriguez vs Rodriguez: While still alive, the testator admitted his will to
probate. There was no issue as to the capacity or formality. After probate, he sold
the land to his mistress. He died. The mistress wanted his children to leave the
land. The children are claiming a right under the will. The mistress is claiming
the same right by virtue of a sale. The difference is, the children do not hold title
while the mistress is holding a title in her name.
SC: There is no basis for the claim of the children even if the will was probated.
Nepomuceno vs CA says you cannot donate or give a testamentary disposition to
the mistress. The lawyer’s remedy was wrong. He based his claim on the will. He
forgot the provision the Code that says if at any time the testator disposes the
property that he has willed, that disposition is revoked by implication of law. In
order to retrieve the property from the mistress, the lawyer should have filed an
action for declaration of nullity of sale based on the fact that it is absolutely
simulated. He was banking on the provision of the will and to be able to recover
the property, the lawyer seeks to attack collaterally the title of the mistress. But
the mistress has a title. The SC held that the title is conclusive evidence of
ownership and is not subject to collateral attack. However, it would have been
easier to prove that this was a simulated sale because the price was grossly
inadequate. He should have asked for the mistress’s income tax returns proving
she is earning money sufficient to pay for the property.
Heirs of Rosendo Lasam vs Umengan: Children of the first marriage vs
children of the second marriage. They are fighting over the same parcel of land
Isabel left behind. The claimant contends that it is his because he inherited it by
33$
will. The defendant claims they got the land because their father bought the land
and there was a series of sales and donations then it was finally donated it to
them.
This was the property of Isabel. How can there be a proper conveyance by sale or
donation if Isabel was alive?
At the time of all these conveyances, Isabel was still alive. She made a will
disposing of this land even though she already alienated it. If Isabel is still alive,
the conclusion is she consented to all those things. After consenting to the
contracts of sale of her children, she made a will even though she knew the land
has been sold and transferred already. The children from the second marriage are
at a disadvantage because they were relying on the will but it turns out that Isabel
has nothing to transmit anymore because of her consent to the transactions in
her lifetime.
SC: if the children from the second marriage are claiming based on the will, the
requirement is the will must first be submitted to probate and then admitted.
Otherwise, there is no claim under that will.
Galanosa vs Archangel: There was a final order by the probate court. There
was distribution of property. It should have ended already but the relatives, after
losing in probate, filed an action for reconveyance. After losing in the
reconveyance case, they filed an action to annul the will.
SC: A decree of probate, once it has reached finality, is incontrovertible and it
settles the issue of the validity of the will once.
Maninang vs CA: When you are still at the probate proceedings, you can only
raise the issues of capacity and formality. The Nuguid case is the antecedent of
Maninang. In Nuguid, there is a one sentence will where an old maid gave
everything she owned to her sister. Unfortunately, when the old maid passed
away and the sister probated the will, her parents objected on the ground of
preterition (ommission of a compulsory heir in the direct line and the
consequence is the institution of heir is annulled). If indeed there were
preterition, the institution of the sister would be annulled. But there was only one
provision in the will of Nuguid.
SC: The will is immaculate. There is no issue of capacity or non-compliance with
formality. But since this is probate, we can only talk of those issues. We cannot
talk of the issue of omission of compulsory heirs since that is a question of
substantive validity. SC held that even if the will is approved, nothing will happen
because at the end of the day, the only testamentary disposition has to be stricken
down and the ultimate result is intestacy. In an exceptional case where admitting
the will to probate is not going to do any good, we might resolve issues of
substantive validity even during probate.
In Maninang, the same issue was raised. An adopted child claims that she was
preterited. SC: we cannot entertain that issue now because we are still during at
probate proper.
GING$!$$
Why was it allowed in Nuguid and not allowed in Maninang? Justice Herrera: In
Maninang, the preterition of the parents is clear and doubtless. In Nuguid, the
preterition of the adopted child is not clear because (1) the testatrix denied the
fact of adoption. For this child to claim preterition, he must first prove the fact of
adoption; and (2) the law speaks of the preterition of a compulsory heir in the
direct line. The person claiming preterition is not a relative in the direct line
because a relative in the direct line is necessarily a relative by consanguinity. The
person here seeking the benefit of preterition is an adopted child. Therefore, an
issue arises: is the benefit of 854 extendible to an adopted child? Because of these
2 questions, Maninang cannot follow the case of Nuguid.
Pastor, Jr. vs CA: The Spanish spouses have 2 children. Their properties in the
Philippines are the topic. There is an illegitimate child, Quemada. He made a will
and devised a property for Quemada. Quemada filed for a probate proceeding.
In the trial court, the judge issued an order awarding the legacy to Quemada.
Also, the judge awarded the portions of shares registered to the legitimate child.
The judge issued a writ of execution to enforce the order even though the estate
tax has not been paid, the conjugal partnership has not been dissolved, the
creditors have not been paid, the compulsory heirs have not yet been determined,
the value of the legitime has not been determined, the will has not been admitted
to probate. The judge issued an order instructing the company to deliver the
shares, dividends and earnings to Quemada. The judge is corrupt!
Quasha Ancheta Pena and Nolasco Law Office vs LCN Construction
Corporation: They want an advance distribution of the estate. They could not
get it pending payment of taxes and debts. The estate is more than sufficient to
pay the debt. This case illustrates the process if you are asking for advance
distribution of the estate. The judge will require proof of sufficiency of assets of
the estate and a bond. In Pastor, Quemada did not ask for a bond.
Ozaeta vs Cuartero: Palanca lived with Justice Ozaeta during the Japanese
era. Ozaeta was accused of exerting undue and improper influence on Palanca to
write his will.
SC: If he was influenced during the Japanese era, after the war, he left Ozaeta’s
house and went back to his own house where he lived for several more years.
Obviously, the undue influence would have ceased and he has an opportunity to
revoke his will, which he never did.
Coso vs Fernandez Deza: List of cases involving undue and improper
pressure and influence.
Pascual vs De La Cruz: An objection to probate based on (1) undue influence
(Art. 1337) and (2) fraud (Art. 1338).
Art. 1337. There is undue influence when a person takes improper advantage of
his power over the will of another, depriving the latter of a reasonable freedom of
choice. The following circumstances shall be considered: the confidential, family,
spiritual and other relations between the parties, or the fact that the person
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alleged to have been unduly influenced was suffering from mental weakness, or
was ignorant or in financial distress.
Art. 1338. There is fraud when, through insidious words or machinations of one
of the contracting parties, the other is induced to enter into a contract which,
without them, he would not have agreed to.
undue influence – deprivation of the free agency of the will. Exertion of such
influence such that the person over whom that influence is exercised loses
reasonable freedom of choice
fraud – used of insidious words and machinations to obtain the consent of a
person without which the person would not have given consent
SC: If you object to the probate on the ground of fraud and undue influence,
there every indication that you do not have a real ground to object and that you
are simply inventing reasons to object. The concept of undue influence
contradicts the notion of fraud. When you influence a person, you cannot
simultaneously trick him. When you influence a person, you deprive the person
of the free agency of his will. The necessary inference is a person pressured gave
his consent but not freely. When you defraud a person, you cheat him into
believing certain things to be true. Therefore, when that person gave consent on
the basis of fraud, the person who is defrauded is acting freely. It is not possible
for a testator to have been influenced and at the same time defrauded.
In influencing, you deprive him of the free exercise of will; in defrauding, he acts
voluntarily but on the basis of false information.
Ortega vs Valmonte: A young lady married a much older man who is a US
citizen, has a pension, and a livelihood in the Philippines. The man made a will
and the girl is the sole heir. The relatives of the man claim undue influence. They
failed. Read what the SC said on how to prove undue influence.
Nepomuceno vs CA: You cannot give a testamentary benefit to the mistress. In
Rodriguez vs Rodriguez, he didn't give the property; he sold it, meaning there is a
valuable consideration.
Art. 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and improper pressure and influence, on the part
of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
GING$!$$
(6) If the testator acted by mistake or did not intend that the instrument he
signed should be his will at the time of affixing his signature thereto.
A special proceeding is a proceeding to establish a fact, a right or a status.
Probate is a special proceeding. In a probate proceeding, you are trying to prove:
(1) capacity – the testator whose will is under investigation has testamentary
capacity at the time he wrote it. This is with respect to the age and the soundness
of mind of the testator. An expert usually has to presented to testify as to the
soundness of mind.
Present a doctor to testify
(2) formality – the will submitted to probate complies with the formal requisites
prescribed by law. If notarial, the 3 witnesses and notary public must be
presented. The court may also require expert testimony. If holographic, only the
handwriting is the issue.
There are cases enumerating 4 things to prove, but ultimately, there are only 2
things to prove. Additional:
(3) identity of the will – when you go to the process of probate and you talk about
identifying the will as that of the testator, this may be proved by simply looking at
the will and the signature below of the testator. If the signature is genuine, that is
the will of the testator
(4) the testator executed it freely – when you prove compliance with the
formalities, you will have to establish that the document was notarized. It is the
notarization that certifies that this is the free act of the testator.
Therefore, there are really only 2 things to be proved: formality and capacity.
Anything outside of those 2 things are foreign to a probate proceeding. Therefore,
the probate court has no jurisdiction to hear those collateral matters. Example:
claim of ownership of a third person as to the one of the properties.
In a probate proceeding, there is a petitioner (one who wants to implement the
will). He will prove capacity and formality (must present document to see if
formalities were complied with). If the will is lost, the formality is hard to prove.
After proving capacity and formality, you expect the court to render judgment.
Based on the evidence presented by the proponent, the court can render only one
of two judgments: (1) an order to admit probate; or (2) an order to deny probate.
The order is final because you already established what is required. If you are
unhappy with the judgment, the remedy is appeal. After admitting the will to
probate, the second stage of the settlement proceedings commences: partition.
The partition will happen in the same proceeding.
In the partition, the issues are:
(1) substantive validity of the provisions - Are you objecting to anything? is there
an illegal testamentary disposition?
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After resolving the substantive validity...
(2) partition - issues of validity, disposition, ownership, etc. Probate court is a
court of limited jurisdiction and its authority to pass judgment on issues of
ownership is, at best, provisional.
Starting Art. 840, we are no longer talking about formal validity. We are now
talking about substantive validity.
Validity of the will is to be viewed in two aspects:
1. formal validity (for the purpose of probate)
2. substantive validity - after the court has accepted the formal validity of the
will by issuing the probate order, the court will not proceed to the process of
partition and an essential part of partition is the determination of the
substantive validity of the dispositions of the will.
Art. 840. Institution of heir is an act by virtue of which a testator designates in
his will the person or persons who are to succeed him in his property and
transmissible rights and obligations.
Art. 840 is an erroneous definition of the law. The definition of institution of
heirs includes devisees and legatees but devisees and legatees are not instituted.
By definition, an heir is instituted to an aliquot part of the estate whereas
devisees and legatees inherit a specific property forming part of the estate.
Consequently, Art. 840 is not a precise definition because it does not tell you
exactly what institution of heir is all about.
The more accurate definition is: institution of heirs is the designation of specific
persons who will receive aliquot part of the estate.
Substantive validity of the institution: there are 4 requirements for a valid
institution:
1. You must have a formally valid will – you cannot give effect to a
testamentary disposition unless the will is formally valid
2. Each disposition must be substantive valid – this means they do not conflict
with any provisions of substantive law (ex. testamentary disposition in favor
of a mistress is void).
3. The institution must be made personally by the testator because the making
of a will is essentially a personal act. More importantly, when the testator
makes the institution, he must make it freely which means his institution of
heir is not tainted by force or by intimidation or by undue influence or
pressure on the part of anyone. These vices of consent will result in the
nullity of the institution of heirs.
4. The instituted heir must be capable of identification. An institution is void if
GING$!$$
the heir cannot be identified or there is no way by which he could be
identified. There is midway between a valid institution because an heir can
be identified and void institution because the heir cannot be identified. It is
possible to have an institution where the heir cannot be identified in the
meantime but can be identified in some future time and that is still a valid
testamentary disposition. For example, A can write a will today and
institute as one of his voluntary heirs whoever finished number one in the
bar exams of the year 2018. I may not know who the bar topnotcher of the
year 2018 may be but there will come a time when we can identify that
person and that institution is valid because whoever that person is is
already living today. A is not therefore instituting an unborn child.
Art. 841. A will shall be valid even though it should not contain an institution of
an heir, or such institution should not comprise the entire estate, and even
though the person so instituted should not accept the inheritance or should be
incapacitated to succeed.
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.
841 contradicts Art. 840 because it says a will is valid even though it contains no
institution of heirs. On the other hand, Art. 840 says the institution determines
who the heirs are. In Art. 841, A can write a will without having to institute an
heir and still A’s will will be disposed properly: through devisees and legatees
(who are not instituted heirs). Therefore, A can effectively distribute his estate
under his will by naming specific persons who will receive specific properties as
in the case of Dizon-Rivera vs Dizon.
If I can distribute my estate without having to institute an heir, then Art. 840 is
wrong because it erroneously tells you that it is through institution that the
testator may determine who will succeed him in his property and his rights. This
is wrong because even without an institution, one can still designate devisees and
legatees who will succeed to my specific property.
Art. 842. One who has no compulsory heirs may dispose by will of all his estate or
any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.
The testator is generally at liberty to dispose of his estate. However, there is a
limit. The ability to dispose the property is restricted by our concept of
compulsory succession.
Art. 886. Legitime is that part of the testator's property which he cannot dispose
of because the law has reserved it for certain heirs who are, therefore, called
compulsory heirs.
The term compulsory does not imply that the heir must accept. The system of
compulsory succession implies that there are certain heirs that cannot be
excluded by the testator except through disinheritance. Art. 886 talks about a
36$
portion of the estate which the testator cannot dispose because the law reserved
it for compulsory heirs. If there is a compulsory heir, there is a corresponding (4) Acknowledged natural children, and natural children by legal fiction;
legitime. If there is no compulsory heir, there is no legitime.
(5) Other illegitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos.
1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall
Strict$Legitime$ inherit from them in the manner and to the extent established by this Code.

Free$Portion$ Who are the compulsory heirs (Art. 887)

Free$Disposal$ 1. descendants
2. ascendants
3. spouse

Within the context of compulsory succession, we exclude brothers/sisters,

nephews/nieces, uncles/aunts, cousins and other collateral relatives. They are
not compulsory heirs, and therefore, there is no legitime set aside for them.

Dizon-Rivera vs Dizon: We are given a better understanding of what the

Art. 886 talks about a portion of the estate which the law has reserved for legitime is because the statutory definition of the legitime in Art. 886 is defective.
compulsory heirs: the legitime. The legitime is generally only a portion of the What does Art. 886 tell you? Legitime is that part of the testator's estate which
estate but depending on the configuration of the compulsory heirs, the entire he cannot dispose because the law reserved it for compulsory heirs. Is it true
estate could be the legitime. that the legitime cannot be disposed? No.
Strict legitime (half) – for compulsory heirs: descendants, if no descendants, by The testatrix had 6 children. She also had grandchildren. In her will, instead of
default, the strict legitime is given to ascendants. giving the children fractional parts of the estate, she gave each of the 7 heirs
specific properties. After having given these properties, she virtually distributed
Free portion – not really free or subject to the complete control of the testator everything she owned.
because the out of the free portion, you pay the legitime of the surviving spouse,
and then the illegitimate children. She distributed as such: 1-6 are the children (the only compulsory heirs)
Free disposal – if you carve out the legitime of the spouse and the illegitimate 1. Marina given more than half of everything the testatrix owned in
children, whatever remains of the estate is the free disposal, the only thing that terms of value
the testator can will in his testament 2. Tomas received a specific property the value of which is slightly in
excess of his legitime
If there are no compulsory heirs, the whole estate is free disposal. 3. Child C
4. Child D C-F: the properties they received had values less than their
Art. 887. The following are compulsory heirs: 5. Child E legitime
6. Child F
(1) Legitimate children and descendants, with respect to their legitimate parents 7. Grandchildren
and ascendants;
1 + 2 + ... + 7 = the whole estate
(2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants; The 2 proposals submitted to the court:
(3) The widow or widower; Marina: Reimburse this way: she will pay in cash until all legitimes are satisfied.
GING$!$$ 37$
Marina invokes Art. 906.
Art. 906. Any compulsory heir to whom the testator has left by any title less than
the legitime belonging to him may demand that the same be fully satisfied.
Child C-F: According to Art. 886, the legitime cannot be disposed by the
testator because it is reserved by law for the compulsory heirs. Therefore, the
legitime has to be separated and divided equally among the children.
The legitime of legitimate children is half of the estate. They want the subtotal of
what was given to all of them be divided in half and that half has to distributed to
all of them (that half is the legitime). The remaining half will be the testamentary
disposition of the mother. Do not touch the legitime; you cannot dispose it. There
is a statutory reservation for that portion of the estate that is not within the
competence of the testator to dispose.
SC: Marina is correct. If you divide the estate by 2, technically, it is only Marina
who will be deprived of her share because half of what was given to her will
automatically be taken and distributed to all of them. Because each one will
suffer a 50% reduction, the remaining half from each of them is part of the free
portion. All of them will receive inheritance in excess of legitime. Whereas in
Marina’s case, Child C-F will only receive legitime.
If the basis is Art. 906, that an heir who receives less than legitime is only entitled
to completion, then something is wrong with Art. 886 because Art. 886 states
that the legitime is something the testator cannot dispose.
If the testator cannot dispose of the legitime, then there can be a compulsory heir
who will be shortchanged. But why is there Art. 906? It is clear that the testator
disposed of the legitime. When the SC said that Art. 906 only entitled the
aggrieved heirs to a completion of legitime, it only reconfirmed to us that the
testator can dispose legitime.
It is not true that the testator cannot dispose of his legitime. When you look at
the definition of the legitime as against Art. 906, and against the ruling in Dizon-
Rivera, t is apparent that the legitime is not beyond the control of the testator but
a guaranteed minimum participation of a compulsory heir.
Going back to Art. 842, if you have a compulsory heir, you can distribute your
estate as long as you do not contravene the provisions of the Code with respect to
the legitime of the compulsory heirs.
Testator has P100,000, and instituted 4 heirs, A B C D, in his will. I institute
these 4 people as my sole and universal heirs. If you do not mention the shares of
each, the presumption is they must share equally:
A – 25,000
B – 25,000
C – 25,000
D – 25,000
GING$!$$
Additional fact: A is a legitimate child, B C D are nephews of testator. The
legitime of a child is half of the estate.
If you go by Art. 886, where a legitime is set aside by law, then the computation
should be:
A – 50,000 (the law gave this to the compulsory heir, not the testator) + 12,500
B - 12, 500
C - 12,500
D- 12,500
How do we read the testamentary disposition that institutes 4 people as universal
heir? Having paid the legitime, each of them will get P12,500, including A. In
sum, A will get P62,500 and the nephews will receive P12,500 each.
If you go by Dizon-Rivera, how will the distribution be?
A - P50,000
B - P17,000
C - P17,000
D - P17,000
Since the distribution cannot be P25,000 each, the amount received by B, C and
D must be reduced so as not to impair the legitime of A.
The commentators swing between these two ways.
Art. 886 is wrong because if the testator really can’t touch the legitime, then there
should have been no Art. 996. Dizon-Rivera appears to be the correct solution.
Therefore, the legitime is merely a guaranteed minimum participation and it is
not correct to state that the testator cannot dispose it.
Art. 843. The testator shall designate the heir by his name and surname, and
when there are two persons having the same names, he shall indicate some
circumstance by which the instituted heir may be known.
Even though the testator may have omitted the name of the heir, should he
designate him in such manner that there can be no doubt as to who has been
instituted, the institution shall be valid.
When you institute an heir, you have to name him. No need to use his full name.
The problem is what if there are a lot of people having the same name.
Latent ambiguity - an ambiguity than only surfaces when there is an inquiry
deeper into this provision but the ambiguity does not appear on the face of the
will. The area of inquiry to address the ambiguity is first limited to the will. Only
if the will cannot give you the answers can you resort to extrinsic evidence
(exception: oral declarations of the testator).
Art. 844. An error in the name, surname, or circumstances of the heir shall not
vitiate the institution when it is possible, in any other manner, to know with
38$
certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of
circumstances in such a way that, even with the use of the other proof, the person
instituted cannot be identified, none of them shall be an heir.
Art. 845. Every disposition in favor of an unknown person shall be void, unless by
some event or circumstance his identity becomes certain. However, a disposition
in favor of a definite class or group of persons shall be valid.
If the identity of the heir cannot be ascertained, it is considered a disposition in
favor of an unknown heir. The result is that it is void. We cannot resort to
speculations. The share will pass to the intestate heirs by intestate succession.
Art. 846. Heirs instituted without designation of shares shall inherit in equal
parts.
How will the heirs share the inheritance? I instituted a number of people. I did
not say how they will share. It is presumed they will share equally (subject to the
legitime).
Art. 847. When the testator institutes some heirs individually and others
collectively as when he says, "I designate as my heirs A and B, and the children of
C," those collectively designated shall be considered as individually instituted,
unless it clearly appears that the intention of the testator was otherwise.
Heirs individually instituted concurring with heirs collectively instituted are
deemed individually instituted.
Supposing the testator makes the following institution: I institute as my heirs
Zuma and all law students of DLSU weighing over 190 pounds. This is a valid
disposition because we can identify all of them. There is a person individually
instituted, Zuma, and persons collectively instituted, i.e. let’s say there are 5
students weighing over 190 pounds. The inheritance will be equally divided by
the 6 heirs. If the testator states the contrary, such will happen. But he must
specifically say that.
Art. 848. If the testator should institute his brothers and sisters, and he has some
of full blood and others of half blood, the inheritance shall be distributed equally
unless a different intention appears.
When brothers and sisters of a testator inherits, the most often reason is because
the testator has no ascendants, descendants or spouse. Art. 848 (rule in
testamentary succession) has a counterpart: Art. 1006 (intestate succession).
Art. 1006. Should brother and sisters of the full blood survive together with
brothers and sisters of the half blood, the former shall be entitled to a share
double that of the latter.
In both cases, we are talking about siblings inheriting from a deceased sibling.
Brothers inherit equally whether they be of full blood or half blood. In intestacy,
GING$!$$
the full blood will always get double than the half blood because the law makes
this distribution (not the testator). The law on intestacy approximates how a
deceased person would have distributed his estate if he were able to write a will.
The rationale I in the natural course of things, a person loves his full blood
siblings more than his half blood siblings. If he did not make a will, the law
assumes he would give double to full blood siblings and half only to half blood
siblings.
Why is this not applicable in testamentary succession? The testator made a will
and instituted his siblings. If he did not mention anything about how the shares
should be divided, there is no basis to say he loves the full blood brothers more. If
he indeed loves them more, then he should have stated in the will that he is
giving said brothers greater portions.
Full blood - same parents; half blood - only one common parent. Even if you say
siblings are full blood, they can be full blood legitimate (married when both
siblings were born) or full blood illegitimate (not validly married or not married
at all when both siblings were born).
Art. 849. When the testator calls to the succession a person and his children they
are all deemed to have been instituted simultaneously and not successively.
The testator institutes A (individually instituted) and A's 5 children (collectively
instituted) to inherit the entire estate. A + children = number of heirs. Divide the
entire estate by 6. Persons individually instituted concurring with those
collectively instituted are deemed individually instituted. A person being
instituted together with his children are deemed instituted simultaneously and
not successively. The testator does not mean that the whole thing will first go to A
and after A's death will be divided among his children (this is a case of prohibited
successive institution).
Our Code does not allow successive institution. As a testator, you cannot control
the movement of your estate after you die. You can only control it once through
your will. You cannot first institute a person and, after he dies, subsequently
transfer it to someone else and so on and so forth. Because succession is a mode
of acquisition, your heirs shall have become the owners and you cease to be the
owner. Therefore, if you are no longer the owner of the property, you have no
right to control the movement of that property.
Otherwise, a testator may control how the property will move from one
generation to another until eternity.
Even having said that, the proscription against successive institution, there is still
a provision in the Code allowing successive institution. This is a substitution of
heirs called by the law as fideicommissary substitution – not a substitution in
truth and in fact and the only exception to the rule on successive institution.
Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first
heir instituted is entrusted with the obligation to preserve and to transmit to a
second heir the whole or part of the inheritance, shall be valid and shall take
effect, provided such substitution does not go beyond one degree from the heir
39$
originally instituted, and provided further, that the fiduciary or first heir and the
second heir are living at the time of the death of the testator.
This is called fideicommissary substitution because as a matter of general policy,
we cannot allow successive institution. It is not consisted with Art. 42 which
states that death extinguishes juridical capacity.
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the deceased is determined
by law, by contract and by will.
Art. 851 is inaccurate because it states that partial intestacy arises when there is
only one heir and he was only given an aliquot part and not the entire estate. The
second is when there are several heirs instituted and their combined shares will
not consume the entire estate so the remaining portion passes by intestacy. I can
institute only one heir and give only a fraction of the estate and not leave the
remainder for intestacy by disposing of the remainder of the estate by
legacies and devises. I can also institute several heirs and give them specific
properties forming part of the estate. There were some left because I acquired
those after writing the will but in my will there is a provision that says any other
property pertaining to me will still belong to these people. In effect, nothing will
remain by intestacy.

Art. 850. The statement of a false cause for the institution of an heir shall be Under certain conditions, it is possible for partial intestacy to happen. Example:
considered as not written, unless it appears from the will that the testator would
not have made such institution if he had known the falsity of such cause. The estate is P120

This is an institution that was made by the testator on the basis of a false cause A = 1/3 = P40
(“hindi totoong dahilan”). How will you know if there is a false cause? Only if the
B = 1/4 = 30
institution states its cause in the will. If the institution states its cause and the
cause is proved to be false, then that institution is void. C = 1/4 = 30
P100
Austria vs Reyes: The false cause is the testatrix instituted her adopted
children. However, the children were in fact not legally adopted. She called them
her adopted children because she was the one who raised them. The only reason The undistributed balance of P20 may pass through intestacy. How will that go?
she gave the “sapilitang mana” is because of the basis on the false belief that she By then you determine the intestate heirs of the testator and then distribute the
had to make a provision for her adopted children. P20 to the intestate heirs in accordance with the law on intestacy.

SC: If this were indeed what prompted the testatrix in instituting the
respondents, she did not make it known in her will. The decedent’s will does not
state in a specific or unequivocal manner the cause for such institution of heirs.
We cannot annul the same on the basis of guesswork or uncertain implications.
Even if we should assume that the decedent instituted respondents solely because
she believed that the law commanded her to do so, on the false assumption that
her adoption of these respondents was valid, still such institution must stand.
Her disposition of her free portion which largely favored respondent, and
respondent’s children shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her to give to them.
Compare this with the relatively small devise of land which the decedent had left
for her blood relatives. Were we to exclude the respondents from inheritance,
then the petitioners and other nephews and nieces would succeed to the bulk of
the estate by intestacy – a result which would subvert the clear wishes of the
decedent.
Art. 852. If it was the intention of the testator that the instituted heirs should
become sole heirs to the whole estate, or the whole free portion, as the case may
be, and each of them has been instituted to an aliquot part of the inheritance and
their aliquot parts together do not cover the whole inheritance, or the whole free
portion, each part shall be increased proportionally.
Art. 851-52 are related because they talk uniformly of institution of heirs which
may result in partial intestacy.
Here you can avoid intestacy. You can appoint A B and C as sole (only them will
receive the inheritance to the exclusion of the rest) and universal heirs (they will
inherit the totality of the estate). There is an under-distribution but it is the
intention of the testator to give everything to A B and C. The shares must be
adjusted upwards.
The estate is P120

Art. 851. If the testator has instituted only one heir, and the institution is limited A = 1/3 = P40 * (120/100) = P48 4/12
to an aliquot part of the inheritance, legal succession takes place with respect to B = 1/4 = 30 * (120/100) = P36 3/12
the remainder of the estate.
C = 1/4 = 30 * (120/100) = P36 3/13
The same rule applies if the testator has instituted several heirs, each being 4:3:3
100
limited to an aliquot part, and all the parts do not cover the whole inheritance.

GING$!$$ 40$
For every 4 parts you give to A, you must give 3 parts to B and 3 parts to C.
Art. 853. If each of the instituted heirs has been given an aliquot part of the
inheritance, and the parts together exceed the whole inheritance, or the whole
free portion, as the case may be, each part shall be reduced proportionally.
Here, there is excess. The shares must be adjusted downwards.
The estate is P360
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.
A testator writes his will and inadvertently omitted to give something to a
compulsory heir and that compulsory heir is in the direct line and survived the
testator. When there is preterition, the institution of heirs will be cancelled but
the legacies and the devises will not be touched to the extent that they are not
inofficiously.

A = 1/2 = P180 * (360/375) = P172.8 12/24 “Preterition is an omission” – to omit means to skip. It is an omission in the
participation in the inheritance. The preterited heir does not get anything.
B = 1/4 = 90 * (360/375) = P86.4 6/24 However, that concept of omission was explained in Reyes vs Baretto-Datu. Not
C = 1/6 = 60 * (360/375) = P57.6 4/24 every omission is preterition. Baretto-Datu tells us that you cannot claim
preterition simply because you did not see your name in the will of the testator.
D = 1/8 = 45 * (360/375) = P43.2 3/24 For preterition to be invoked, the compulsory heirs must allege and prove that
P375 12:6:4:3 omission is total.

Prove 3 things to show that omission is total:

For every 12 given to A, you give 6 to B, 4 to C, 3 to D.
1.
Art. 886. Legitime is that part of the testator's property which he cannot dispose
of because the law has reserved it for certain heirs who are, therefore, called
compulsory heirs.
When you read the will of the testator, it is clear that you will not receive
anything under that will. It is possible that your name was not mentioned
or although your name was mentioned, you were not given anything. The
proof is the will itself

Many violate this rule. The lawmakers introduced provisions that will make it
virtually impossible for you to go around the system of compulsory succession.
There are many provisions that will prevent you from touching the legitime or
giving the compulsory heirs less than the legitime:
1. Art. 854 – Preterition –presumably unintentional omission of a compulsory
heir in the direct line from participating in the inheritance of a testator. This
can only occur in testamentary succession.
2. Art. 906
Art. 906. Any compulsory heir to whom the testator has left by any title less than
the legitime belonging to him may demand that the same be fully satisfied. (815)
3. Art. 1061
Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs,
must bring into the mass of the estate any property or right which he may have
received from the decedent, during the lifetime of the latter, by way of donation,
or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition.
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.
GING$!$$
2. Prove that there is no way you can recover anything under the rules of
intestacy. This means when the testator wrote the will, he distributed
everything and left nothing for intestacy. It’s a complete distribution of
the estate. If he did not distribute everything in the estate, the remainder
will be left for intestate succession. If what the testator disposed in his will
comprise only a portion of his estate, and there are assets not given, an
heir who received nothing from the will cannot claim preterition because
he can recover his legitime form the property that was not disposed by
will.
3. Nothing was given to the omitted compulsory heir during the lifetime of
the testator that can be credited against the legitime (example: donation).
Everything given as a donation, under Art. 1061, is an advance on your
legitime. If you receive such, you cannot claim preterition because you
received something and the omission must be total. To determine whether
or not certain gifts are advances of legitime, you must be able to
distinguish between something that was given to you as a gift or
something given to you by way of support. Support includes food,
clothing, shelter, education, medical attention, and transportation. There
must clearly be a donation made to the child.
When you rule out anything to be received from the will, you're able to prove that
there is nothing you can receive by intestacy and there is no advance to the
legitime, you are able to prove that the omission is total.
Who is an omitted heir? A compulsory heir. Who are the compulsory heirs? Art.
41$
887. Essentially, they are the descendants, ascendants and spouse.
The compulsory heir must be in the direct line. Balanay vs Martinez: There is
no preterition of spouse.
The compulsory heir who was preterited must be living at the time of the
execution of the will or born after the death of the testator. For you to be
considered a preterited heir, when the testator died, you must be alive. This
includes the conceived child in Art. 40 who complies with the requirements of the
grant of presumptive personality under Art. 41. Art. 41 refers to the gestation
period and the number of hours that the fetus survived.
Art. 40. Birth determines personality; but the conceived child shall be considered
born for all purposes that are favorable to it, provided it be born later with the
conditions specified in the following article.
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if the fetus had an intra-
uterine life of less than seven months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from the maternal womb.
To be able to inherit/have personal relationship/acquire that capacity to succeed,
the person must have juridical personality. That personality is extinguished by
death.
Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations,
is inherent in every natural person and is lost only through death. Capacity to act,
which is the power to do acts with legal effect, is acquired and may be lost.
If you die before the testator, you cannot inherit from them. On the contrary, they
are the ones who will inherit from you.
“or born after the death of the testator” – posthumous children (mother was
pregnant with them when testator died). There can be preterition of the
posthumous child. Preterition of posthumous child is usually unintentional
because the father did not know that the mother is pregnant. How will you know
that the dead person is the father of the posthumous child? Follow the 300-day
rule. If a child is born within 300 days from the death of his supposed father,
there is a presumption that he is the child of the deceased. On the 301st day, the
presumption will not apply anymore.
Art. 255. Children born after one hundred and eighty days following the
celebration of the marriage, and before three hundred days following its
dissolution or the separation of the spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other than that of the
physical impossibility of the husband's having access to his wife within the first
one hundred and twenty days of three hundred which preceded the birth of the
child.
Art. 259. If the marriage is dissolved by the death of the husband, and the mother
GING$!$$
contracted another marriage within three hundred days following such death,
these rules shall govern:
(1) A child born before one hundred eighty days after the solemnization of the
subsequent marriage is disputably presumed to have been conceived during the
former marriage, provided it be born within three hundred days after the death of
the former husband:
(2) A child born after one hundred eighty days following the celebration of the
subsequent marriage is prima facie presumed to have been conceived during
such marriage, even though it be born within the three hundred days after the
death of the former husband.
Art. 261. There is no presumption of legitimacy or illegitimacy of a child born
after three hundred days following the dissolution of the marriage or the
separation of the spouses. Whoever alleges the legitimacy or the illegitimacy of
such child must prove his allegation.
What is the effect of preterition? Annulment of the institution. What is to annul?
to void. The institution of heirs is voided. Whatever is given to the heir is
unconditionally voided. But what is given to the devisees and legatees is
conditionally respected. The condition is the same will be diminished or
cancelled only if there is impairment of legitime. If the devise or legacy given is
within the free portion, you cannot touch it. Preterition will not void it. But if an
instituted heir receives a small part of the estate, the institution is annulled.
The devisees and legacies have preference over instituted heirs because the gift is
specific. When the gift is specific, the testator selected it and gave it specifically to
this person. The law presumes that the testator made the selection because in his
mind, he is giving a preference to this particular beneficiary in respect with this
particular property. Whereas, the instituted heir is not given anything specific.
What is given is a proportionate part of the estate regardless of what it will
consist in. What the testator meant for you is a specific value which is a
percentage of the estate. The testator did not mean to give you any specific
property.
In preterition, it is important to know what and how much the legitime is because
anything outside the legitime of the compulsory heir is free portion. So all
legacies should fit in the free portion. And if the consolidated legacies and devises
exceed then the same should be reduced because anything in excess of the free
portion that you give by way of legacies and devises will eat up portions of
legitime. This causes impairment.
What does preterition require?
1. the concept of total omission as explained in Reyes vs Barretto-Datu
2. the omitted heir must be a compulsory heir as determined in Art. 887
Art. 887. The following are compulsory heirs:
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(1) Legitimate children and descendants, with respect to their legitimate parents of law is that it is involuntary
and ascendants; The law presumes that there has been
merely an oversight or mistake on the
(2) In default of the foregoing, legitimate parents and ascendants, with respect to part of the testator
their legitimate children and descendants; Omitted heir gets not only his legitime
but also his share in the free portion
(3) The widow or widower; not disposed of by way of legacies and
devises
(4) Acknowledged natural children, and natural children by legal fiction;
There is some legal cause
In case of valid disinheritance, the
compulsory heir is totally excluded
from the inheritance; if disinheritance
is invalid, the compulsory heir is
merely restored to his legitime

(5) Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos.
1 and 2; neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.
3. the compulsory heir must be a relative in the direct line as determined in
Art. 964 and Art. 965 which talks about direct line relatives and collateral
line.
Art. 964. A series of degrees forms a line, which may be either direct or collateral.
A direct line is that constituted by the series of degrees among ascendants and
descendants.
A collateral line is that constituted by the series of degrees among persons who
are not ascendants and descendants, but who come from a common ancestor.
Art. 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend from him.
The latter binds a person with those from whom he descends.
4. the preterited heir must survive the testator because a dead person cannot
succeed.
If the omitted compulsory heir predeceases the testator, his preterition will not
result in the annulment of the institution but his descendants may exercise the
right of representation. The heirs can get the legitime of the deceased omitted
compulsory heir.
The estate is 180,000. The testator has 3 children A B C. In the will, A and B were
instituted universal heirs, subject to the payment of P30,000 legacy to X, a
friend. Distribute the estate.
A – 30,000
B – 30,000
C – 30,000
X – 30,000
The estate is 210,000. The testator has 3 children A B C. in the will, A and B were
instituted universal heirs, subject to the payment of P80,000 legacy to X and
P40,000 to Y.
A – 35,000
B – 35,000
C – 35,000
The institution of A and B is annulled because C is preterited. Their legitime is
105,000 and this must be divided by all three of them (35,000 each).
X – 80,000 reduce to 70,000
Y – 40,000 reduce to 35,000
80,000 + 40,000 = 120,000 but the free portion is only 105,000 since the other
half is legitime. The legitime cannot be impaired. These legacies cannot be
annulled, it must only be reduced by 15,000. The reduction proportion is 2:1.
Art. 856. A voluntary heir who dies before the testator transmits nothing to his
heirs.
A compulsory heir who dies before the testator, a person incapacitated to
succeed, and one who renounces the inheritance, shall transmit no right to his
own heirs except in cases expressly provided for in this Code.
Art. 856 is partly correct and partly misleading.

Preterition Disinheritance Voluntary heir – opposite of compulsory heir. This is anybody who is not entitled
Tacit deprivation of a compulsory heir Express deprivation of a compulsory to legitime. This can include any instituted heir who is not compulsory and
of his legitime by the testator heir of his legitime by the testator legatees and devisees who are strangers not entitled to legitime. The heirs of the
May be voluntary, but the presumption Always voluntary predeceased voluntary heir cannot take his place to claim the inheritance.

GING$!$$ 43$
Voluntary heirs in testamentary succession cannot be represented.
That is why they transmit nothing to their own heirs.
The compulsory heir (R.I.P.)
1. predeceased the testator; or
2. incapacitated to inherit from the testator; or
3. repudiated the inheritance.
There is a vacancy in the inheritance because the person who is supposed to
receive it can no longer receive it.
Testator " Compulsory heir " Heirs (will not get the inheritance if the
compulsory heir R.I.P.s unless there is a provision of law authorizing it)
General rule: Compulsory heir will transmit nothing because of R.I.P.
Exception: There is right of representation for incapacitated and predeceased
compulsory heirs. There is no right of representation is compulsory heir
repudiates.
The law gives us the power and right to control the disposition of our estate. The
control is not absolute. The fundamental limitation is: always respect the
legitime.
Rodriguez vs Rodriguez: Testacy is preferred over intestacy. Intestacy is
subsidiary to testamentary succession, Therefore, before you open any intestate
proceeding, you must first satisfy the court that the proceedings in testacy is all
but over.
When you start with testamentary succession, a testator is given the right to
control the disposition of his estate. And when he is able to write a formally valid
will, and he knows the specific rules on substantive validity and he violated none
of them, and he distributes the totality of his estate, then he will have nothing to
leave by intestacy.
If we were to assume that every person who executes a will knows how to write
one, can make a will that is admissible to probate, can make a will where the
dispositions are substantially valid and can dispose of the entirety of his estate,
you will never leave anything to intestacy. This is not necessarily true. I may
have decided I have been able to distribute everything I own and I may have
selected 5 people to be my heirs. But even that is no guarantee because there may
be vacancies in the distribution of the estate. R.I.P. All of these 3 create vacancies
independently of the will of the testator.
In addition to the R.I.P., it is also possible for the testator himself to create the
vacancy. The legitime is for compulsory heirs but the testator has power to create
a vacancy through disinheritance (DRIP).
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As there can be vacancies in 4 contingencies, our law provided for certain
mechanisms that will still attempt to prevent intestacy. Because of contingencies
beyond the testator's control, his will cannot be given effect. The law gives a
solution to prevent intestacy because in intestacy, the shares will be determined
by the law (the nearer relatives will exclude the more distant ones), not by the
testator:
1. the right of substitution;
Substitution – appointment of an heir who will enter into the inheritance in
default of the originally instituted heir. So that if A predeceased, B is
incapacitated, and C repudiated, all these contingencies can be addressed by
substitution if only the testator will say “if A predeceased, I appoint X substitute.
If B is incapacitated, I appoint Y. And for C, I appoint substitute Z.”
Art. 857. Substitution is the appointment of another heir so that he may enter
into the inheritance in default of the heir originally instituted.
Substitution has a limitation. If X is appointed for A without saying the cause,
this substitution includes R.I.P. If X is appointed substitute for A precisely if he
predeceases then there is no substitute if A becomes incapacitated or if he
should repudiate. If you fall outside the requirements of substitution,
substitution cannot take place.
2. right of representation;
In cases where substitution cannot take place, as in the case of legitimes (there
can be no substitution of legitime), the alternate remedy is the right of
representation. If the testator cannot appoint a substitute, the heirs of the vacant
portion may be given a right to be represented by their own heirs.
Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented,
and acquires the rights which the latter would have if he were living or if he could
have inherited.
A right of representation whereby the share of an heir who predeceased or is
incapacitated or is disinherited is transmitted to his own heirs so that his heirs
theoretically rises to the level or degree of the person who is being represented.
There is a limit: the right of representation can only be exercised by legitimate
descendants (because voluntary heir cannot be represented) and only as far as
the legitime is concerned.
3. right of accretion
If there are several co-heirs to a specific property, the R.I.P. of any one of them
gives the right to the co-heirs to acquire the vacant share through accretion.
Migration rule (ISRAI):
• If there was testacy, first and foremost, we will give effect to the
44$
 Institution of heirs. will claim. Whatever is the condition for the heir must also be the condition for
the substitute. Must the substitute be a priest to get the inheritance? Not
• If the institution of heirs cannot be given effect, we try Substitution as an necessarily. Certain conditions may not be applicable to the substitute (as when
intermediate remedy to the testator. the substitute is a woman).

• If substitution cannot take place because of its inherent limitations, then • Brief substitution – there are 2 substitutes for 1 heir
the law says we can try Representation.
Art. 860. Two or more persons may be substituted for one; and one person for
• If representation is not available, then we will try to use Accretion. two or more heirs.

Anything that the defaulting heir would have gotten, the substitutes will be
• If still accretion cannot distribute the estate by testacy, the you migrate to entitled to (presumably equal, unless the testator gives a ratio).
Intestacy.
• Compendius – there is 1 substitute for 2 heirs
Testamentary succession: 4 causes of vacancy D.R.I.P.; Intestate succession: 3
causes of vacancy R.I.P. (there can be no disinheritance in intestate succession). Art. 860. Two or more persons may be substituted for one; and one person for
two or more heirs.
Art. 857. Substitution is the appointment of another heir so that he may enter
into the inheritance in default of the heir originally instituted. The substitution will occur in trickles. For every heir that defaults, only that part
said heir is entitled to will pass to the substitute.
Art. 857 talks about a default. The possible defaults of the first heir are R.I.P. You
cannot include D because the D is a vacancy not created by the default of the heir • Reciprocal – A is substitute for B; B is substitute for A.
but created by the testator. Substitution is available as a general rule for R.I.P.
Art. 861. If heirs instituted in unequal shares should be reciprocally substituted,
If the testator does not specify any cause and leaves it as a simple substitution, the substitute shall acquire the share of the heir who dies, renounces, or is
the law says it covers RIP. If testator specifies the ground for the substitution, incapacitated, unless it clearly appears that the intention of the testator was
then it will be limited to that particular ground. otherwise. If there are more than one substitute, they shall have the same share
in the substitution as in the institution.
2 types of substitution:
A testator has an estate of 210. He has no compulsory heirs. He instituted his
1. Simple (or vulgar) friends: A 1/7 B 2/7 C 4/7. A is substitute for B and C. B and C are substitutes for
A. A repudiated.
The substitute will only get what the heir he will substitute is entitled to. He also
acquires the conditions imposed on the person substituted. A = 1/7 = P30 (repudiated)
B = 2/7 = 60 + 10 = 70
General rule: Any condition must be fulfilled.
C = 4/7 = 120 + 20 = 140
Exceptions:
B and C, the substitutes, were not given equal shares. C is the preferred heir. B
1.) Purely personal conditions. These are not transmissible. was given half of what was given to C. So when you do the substitution, you will
mirror this preference. Maintain the 2:1 ratio of C and B.
2.) Conditions that have become illegal.
B = 2/6 = 10
A will receive P1,000,000 if he marries B. If A defaults, his substitute C will get
P1,000,000. However, B and C are relatives. C = 4/6 = 20

3.) Impossible conditions. A predeceased. A B C are legitime children of the testator. X is a legitime child of
A. B and C are the substitutes of A. A substitute of B and C.
Supposing the heir is given a legacy of P1,000,000. However, in order to receive
P1,000,000, the heir has to become a priest. When the heir died, the substitute

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Without contingencies… C = 52.5 + 55 + 15 = 122.5

A = 2/7 = P60 Substitution will always apply to the free portion only. If the substitution refers
B = 2/7 = 60 only to the free portion, not to the legitime, the proportionate sharing will have to
C = 3/7 = 90 be based on how much free portion they each received.
P210 • Multiple – there are several heirs and several substitutes.

This is acceptable because the legitime of each is P35,000 (P105,000/3).

A died… Moral lessons:

Legitime Free Portion Substitution
A = 2/7 = P60 35 25 • No substitution, no burden, no charge on the legitime.
B = 2/7 = 60 35 25 10
• The conditions to the heir is the same conditions, generally speaking, to the
C = 3/7 = 90 35 55 15
substitutes
P210 = 105 + 105 25
• If there are compulsory heirs, assess first if the distribution the testator
There can be no substitution to the legitime. The legitime is subject to wants is consistent with the law. Is the minimum requirement for the
representation. Therefore, the legitime of A (35) will go to X by virtue of legitime met? If yes, apply it if there are no contingencies (that’s the first
representation. column).

Only the free portion of A (25) is open to substitution. B and C will divide it 2. Fideicommissary – "Shadow substitution"
according to the ratio 2:3.
A testator writes a will. No substitution except in testamentary succession. In a
B = 2/5 = 10 fideicommissary substitution, he simultaneously institutes 2 heirs (or designates
devisees or legatees). The intention is not to make them co-owners of the
C = 3/5 = 15 property but to create a shadow substitution between the two of them such that
when the 2 heirs are instituted, they inherit from the same testator and they
B = 10 + 60 = 70 inherit at the same time (which is at the time of death of testator) but the first
C = 15 + 90 = 105 heir is given the preference to have use, possession, benefit of the thing and
exercise of the attributes of ownership of the thing. The substitution will only
take place at the time designated by the testator in the will or, failing which, upon
If A repudiated, there will be no representation. X gets nothing. But the legitime death of the first heir.
is not subject to legitime. You will have to recomputed the legitime. The estate is
210, of which the legitime is 105. A repudiated so he never inherited. There are 2 I institute A and B simultaneously in a fideicommissary substitution
remaining heirs; B and C. 105 should be divided by 2 for B and C. Distribute (simultaneously – not one after the other because that is prohibited under the
legitime of A to B and C. Then, the free portion of A will be divided between B prohibition on perpetuities). When the testator dies, they will both inherit from
and C according to the ratio. the testator and will both acquire ownership of the property but they are not co-
owners. The testator may determine the duration of how long the first heir will
Legitime Free Portion Substitution enjoy the properties. If the testator does not determine the duration, the property
A = 2/7 = P60 35 " 0 25 will stay with the first heir throughout his lifetime. Upon the death of the first
heir, the second heir gets the property and his ownership is consolidated.
B = 2/7 = 60 35 + 17.5 = 52.5 25 10
C = 3/7 = 90 35 +17.5 = 52.5 55 15 • The first heir has the obligation to preserve the property and, at the time
specified, to transmit it to the second heir. Between the first heir and the
P210 = 105 + 105 25 second heir (according to the Ramirez case), they must be related to each
other between one degree by consanguinity.
B = 52.5 + 25 + 10 = 87.5 If they are not co-owners, they are both owners. How do you register the title in
GING$!$$ 46$
fideicommissary substitutes? They cannot be co-owners in the title because if
they are co-owners, their specific proportion must appear in the title. Here, what
will be written is “A and B” but they are not co-owners.
Why can’t they be co-owners? Because co-owners are owners in common and
they exercise the rights of ownership in common. That is not the case in
fideicommissary substitution because the first heir will exercise the rights of
ownership first.
Can the first heir sell the property? (Remember he has the duty to preserve and
to transmit) Yes, because he is an owner. But if he sells, he must transmit to the
transferee the duty to preserve and to transmit to the second heir. The title of the
first heir is title that is subject to a resolutory term.
Can the second heir sell the property? Yes, because he is an owner. Any sale by
the second heir is a sale that is subject to a suspensive term and the suspension is
for the entire duration of the possession of the first heir.
Who gets the benefit? Depends on the property. If the property appreciates in
value, the second heir benefits more. If the property depreciates over time, the
first heir benefits more.
If the subject matter of the fideicommissary substitution is a car that was given
first to the father who is 35 years old and then to his infant son. The father gets
more because the car would have depreciated by the time it would be transmitted
to the son.
If the subject matter of the fideicommissary substitution is a property in Forbes
Park, the son will benefit more because by the time the property is transmitted to
him, the value of the property would have appreciated.
• They must be both living at the time of the testator's death. For you to
inherit, you must be alive at the time of the testator's death. This includes a
conceived child. The conceived child is deemed born for all purposes
favorable to it. Receiving a gift by will is a favor to the child. Therefore, the
child is conferred presumptive personality in Art. 40 provided the child is
born in accordance with Art. 41 (7 months gestation rule and the 24 –hour
survival rule). One not yet conceived at the time of the death of the testator
cannot inherit from the testator. A person who has died or has predeceased
the testator cannot inherit from the testator.
• The substitution (including a fideicommissary substitution) can never
burden the legitime.
• This substitution cannot be made except in an express manner. There are
two ways you can make it in an express manner: 1.) call the substitution
“fideicommissary,” i.e. “I institute A as my first heir in a fideicommissary
substitution with B as the substitute”; and 2.) if you failed to say
“fideicommissary,” impose an affirmative and positive duty on the first heir
to preserve and to transmit the property to the second heir. These are the
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only ways. Otherwise, the substitution is void.
What if the first heir predeceased the testator? Then substitution will take place.
What if the substitute predeceased the testator? Then the institution is valid
because the substitution is subordinate to the institution.
Through the guise of calling it a substitution, the testator designated the first for
a period and designates a second to be a substitute. How can there be
substitution when the law says they simultaneously inherited from the testator?
This is a tax efficient way of transferring property. I can institute the first heir
with a fideicommissary substitution in favor of the second; the first being the
father, the second being the child. When I die, they pay estate tax on that
property disposition. But when the father dies, the transfer to the second heir is
tax free because this is a substitution. When you look at the estate tax return, you
will see that properties covered by fideicommissary substitutions and properties
transferrable by way of reserve troncal are excluded from the calculation of tax.
There are two transfers with only one payment of tax.
Art. 886. Legitime is that part of the testator's property which he cannot dispose
of because the law has reserved it for certain heirs who are, therefore, called
compulsory heirs.
The legitime is a portion of the estate which the testator cannot dispose because
it is supposedly reserved by law for the compulsory heirs.
Dizon-Rivera vs Dizon: Legitime is a portion a testator cannot dispose
because the law reserved it for compulsory heirs. Did the testatrix dispose of the
legitime? She did. She disposed of the entire estate, legitime included. The law is
wrong because the SC allowed the testator to dispose the legitime. It is not the
law who gave the legitime to the compulsory heirs; it was the testatrix. Because
the other heirs received less than their legitime, Marina offered to pay to cover
the deficiency and the SC concurred. The law is wrong. If you follow the law, a lot
of other laws will be affected.
• Art. 906. Any compulsory heir to whom the testator has left by any title
less than the legitime belonging to him may demand that the same be fully
satisfied.
A compulsory heir who received by any title an amount less than legitime is
entitled to completion. If the legitime as defined by 886 is something a testator
cannot dispose, Art. 906 is useless because there will be no case where the
compulsory heir will not receive the legitime.
• Art. 854 is the omission of a compulsory heir in the direct line that causes
the annulment of the institution except legacies and devises that are not
inofficious. How can there be preterition if the testator cannot dispose the
legitime?
47$
Estate is 120. The legitimate children are: A B C. If I were to divide the estate
according to the testator’s mandate: Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos.
1 and 2; neither do they exclude one another.
A = 1/2 = 60
In all cases of illegitimate children, their filiation must be duly proved.
B = 1/3 = 40
C = 1/6 = 20 The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.
The combination of the laws and Dizon-Rivera support this computation. The Who are the compulsory heirs? (consider amendments made by Family Code)
smallest share, given to C, is equal to the legitime (120/2=60; 60/3=20).
1. Legitimate Children/Descendants with respect to their Legitimate
Other commentators say this is how you will have to divide it: Parents/Ascendants

Legitime Free Portion Total Instead of descendants with respect to their ascendants, it should be legitimate
A 20 30 50 descendants with respect to their legitimate ascendants because of Art. 992.
B 20 20 40
Art. 992. An illegitimate child has no right to inherit ab intestato from the
C 20 10 30 legitimate children and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate child.
If this is the correct computation, then Art. 906 is meaningless because nobody
An illegitimate child cannot inherit from the legitimate relatives of his parents.
will get less than the legitime because you gave it as a first step. Second, nobody
Neither can the legitimate relatives inherit from him.
will be preterited because no one will be totally omitted. However, this may be
followed IF the testator says so. (i.e. “I give to you your legitime and the free
Where:
portion divide as follows…”)
GF is the grand father;
GM is the grand mother;
Legitime cannot be the portion the testator cannot be disposed because in Dizon-
H is the husband;
Rivera, the testatrix disposed it. Legitime is the minimum amount that is
W is the wife;
guaranteed to a compulsory heir. This is your guaranteed minimum share.
M is the mistress;
You cannot lose it, or get anything less than that. If you are going to be deprived
X is the illegitimate child of H and M;
of it, it can only be done through disinheritance. Then, Art. 906 makes sense
A and B are the legitimate children of H and W
because if what the testator gave you falls short of your statutory entitlement, you
can make a claim for completion. If you were totally omitted within the context of
Barretto-Datu then you can say you were preterited. This portion is a minimum
First to die is H. The compulsory heirs are: A, B, X and W.
entitlement by law and the testator has to give it to you because he is obliged to
do so. Otherwise, you are entitled to remedies under Art. 854 or 906.
Next to die is W. The compulsory heirs are: A and B. The parents-in-law cannot
inherit from W because there is no relationship.
Art. 887. The following are compulsory heirs:
Next to die is M. The compulsory heir is: X.
(1) Legitimate children and descendants, with respect to their legitimate parents
and ascendants;
Next to die is GF. The compulsory heirs are: A and B (by right of representation)
and GM. X cannot inherit because of Art. 992. He cannot inherit from the
(2) In default of the foregoing, legitimate parents and ascendants, with respect to
legitimate relatives of his mother and father. X’s father, H, is his illegitimate
their legitimate children and descendants;
father. He can inherit from H because he is included in Art. 887. But then, he
cannot inherit from GF because the illegitimate child cannot inherit from certain
(3) The widow or widower;
relatives of his father who are legitimate. H is the legitimate child of GF so GF is a
legitimate relative of H. Therefore, X cannot inherit from GF. Neither can he
(4) Acknowledged natural children, and natural children by legal fiction;
inherit from GM.
(5) Other illegitimate children referred to in Article 287.
A and B does not have descendants of their own. X still cannot inherit from his
GING$!$$ 48$
half siblings because A and B are legitimate relatives of H.
Diaz vs IAC: The grandmother raised her grandchildren, the illegitimate
children of her son. When the son died, he did not inherit anything from the
grandmother. He does not have estate of his own because he is a gigolo (hihihi).
The grandmother died intestate. The grandchildren cannot inherit from the
grandmother because the son is the legitimate child of the grandmother so there
is a barrier between the children and the grandmother. In the end, the estate of
the grandmother passed on to a nephew.
This is proof that Art. 887 is inaccurate. Can a legitimate child and descendant
inherit from a legitimate parent or ascendant? Not necessarily. A legitimate child
and a legitimate parents, yes. But the descendants must be legitimate for them to
be able to inherit from their legitimate ascendants because of Art. 992. Likewise,
if the grandfather is to inherit from the grandchild, it better be legitimate
ascendant with respect to a legitimate descendant.
2. In default of #1, Legitimate Parents/Ascendants with respect to Legitimate
Children/Descendants
Instead of ascendants with respect to their descendants, it should be legitimate
ascendants with respect to their legitimate descendants because of Art. 992.
Primary compulsory – you are a compulsory heir under any combination of heirs.
They are 1, 3 and 4.
Secondary compulsory – only a compulsory heir when some people do not
inherit. They are 2.
Justice Paras quoting Manresa: Succession is like a river. Succession will flow
downstream before it flows upstream and only then will it move to its banks and
then it spreads.
There is preference to the descending line before it goes to the ascending line and
only in intestacy will it flow to the collateral line. That’s why ascendants are only
secondary compulsory heirs.
The legitime of those in the ascending line – succession flowing in the
ascending line. Parents are the first level; grandparents are the second level and
so on and so forth. The legitime of parents is 1/2; 1/4 for mother and 1/4 for
father. If one of the parents is dead, everything will be consolidated with the
surviving parents. If there are no parents, the grandparents will inherit, 1/2 to
the maternal grandparents and 1/2 to the paternal grandparents. If, for example,
both maternal grandparents are dead, everything will be consolidated with the
paternal grandparents because in the ascending line, succession is reckoned not
per capita, but per stirpes (by line).
3. Surviving spouse
Surviving Spouse - must be validly married. You have to know what makes a
marriage valid. If there is a voidable marriage, without the annulment, they are
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still spouses. If the marriage is void or if there is a declaration of nullity, they’re
no longer spouses.
The legitime of the surviving spouse – ascertain first if the marriage is
valid, void or voidable. If it is void or there is a declaration of nullity, the person
is no longer considered a spouse. If the marriage is voidable but there has already
been an annulment, the person is also not considered a spouse. If there has been
legal separation, the person is still a spouse but only in respect of the innocent
spouse. The guilty is not entitled to succeed.
General rule: The surviving spouse gets a share equal to that of a legitimate
child
Exceptions:
1.) when there is only one legitimate child, the spouse gets ¼ of the estate.
2.) the surviving spouse or illegitimate children, when either concur with the
parents or ascendants, get 1/4 of the estate. If all concur, the share of the
surviving spouse is reduced to 1/8 of the estate.
3.) the surviving spouse gets 1/2 of the estate when there are no other heirs.
4.) when the marriage is in articulo mortis, the spouse gets 1/3
Speculator – a surviving spouse who contracted a marriage with the deceased
spouse in articulo mortis and the deceased spouse died within 3 months.
But the legitime will be 1/2 again if she is not a speculator because they have been
together for at least 5 years. The presumption of law is they want to legitimize
their relationship.
5.) the surviving spouse gets 1/3 of the estate when concurring with illegitimate
children, who also get the same share. (no legitimate children in this case)
6.) the surviving spouse gets ¼ when concurring with illegitimate parents, who
also get ¼ of the estate.
The share of the spouse can never exceed 1/4. That is the most she can get.
Especially when she in concurring with legitimate children because if there is
only one legitimate child, she gets 1/4; if there are 2 legitimate children, she still
gets 1/4; if there are 3 children, she gets 1/6. The spouse can’t get anything bigger
than the legitime of one legitimate child.
4. Illegitimate children and their descendants with respect to their illegitimate
parents – consolidate (4) and (5). Among illegitimate children there is no
discrimination; instead of having several classes of illegitimate children, we
now only have one. If everyone in the family is illegitimate, they can inherit
from each other.
Illegitimate parents can inherit from their illegitimate children. But that has a
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condition. For an illegitimate parent to inherit from his illegitimate child, if the The legitimate children gets half of the
2 Legitimate Children = 25 each
illegitimate child produces descendants of his own, whether legitimate, estate (100/2= 50; 50/2= 25)
illegitimate, or adopted, any of these three children will exclude the illegitimate
father or mother. An illegitimate parent can only recover from the illegitimate The surviving spouse gets a share
Spouse = 25
child if the illegitimate child has no descendants at all. equal to that of a legitimate child

In the ascending line, succession stops at the level of the illegitimate parents. The
illegitimate grandparents of an illegitimate grandchild are no longer considered
compulsory heirs of the illegitimate grandchild.
Illegitimate children get 1/2 of the share given to legitimate children.
The legitime of each illegitimate child is 12.5. If I have to pay 12.5 to each of the
four illegitimate children, I will need 50. But after payment of the wife, only 25 is
left. This is another discrimination towards illegitimate children. If the estate is
no longer sufficient after paying the spouse, the remainder will just be divided
among the illegitimate children (25/4).

Priority is given to descendants. The estate of the deceased person is divided into 4 Illegitimate Children = 6.25 each Their legitime is not guaranteed
two if there are compulsory heirs: strict legitime and free portion. If there are no
compulsory heirs, you may just give effect to the will. Parent, children, spouse, guaranteed minimum. Illegitimate children not
guaranteed.
The strict legitime is for legitimate children (includes adopted children because
they have the same rank as legitimate children). In the absence of legitimate Where T is the testator;
children, the strict legitime goes to legitimate parents. W1 is the first wife;
A, B and C are the children of T and W1
After paying the legitime children, or legitimate parents, as the case maybe, the D, E, F are the children of A.
share of the surviving spouse will be paid from the free portion. Afterwards, G, H are the children of B
pay the illegitimate children, also from the free portion. I, J, K are the children of C
W2 is the second wife.
Whatever is left is the free disposal. This is the only part you can dispose in The estate is 360.
your will. Your freedom to give preferences can only come from the free disposal.
W1 dies so T contracted a second marriage with
Guaranteed minimum for (1), subject to replacement of (2), a guaranteed W2. When T dies, the legitime of A, B, C is 60
minimum for (3) and a reservation for (4). The illegitimate children are not each (360/2= 180; 180/3= 60). The legitime of
guaranteed to get a part of the inheritance. W2 is 60.

Refer to the table of Paras.

Estate: 100

The legitimate children gets half of the B predeceased T. There is representation, B’s 60
2 Legitimate Children = 25 each
estate (100/2= 50; 50/2= 25) will go to G and H; they will receive 30 each
(60/2).
The surviving spouse gets a share
Spouse = 25
equal to that of a legitimate child

The illegitimate child gets ½ of the

1 Illegitimate Child = 12.5 share of each legitimate child C is incapacitated. C’s 60 will pass to his
(25/2=12.5) heirs, I, J and K; they will receive 20 each
(60/3).
Remainder of the estate after adding
Free disposal = 12.5
all legitimes

Estate: 100

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A repudiates. Since A never inherited, the Art. 1080. Should a person make partition of his estate by an act inter vivos, or by
legitime of 180 of the children will be will, such partition shall be respected, insofar as it does not prejudice the legitime
shared by B and C (180/2=90). Since B of the compulsory heirs.
predeceased, his legitime of 90 will pass to
G and H; they will receive 45 each. Since C A parent who, in the interest of his or her family, desires to keep any agricultural,
is incapacitated, his legitime of 90 will industrial, or manufacturing enterprise intact, may avail himself of the right
pass to I, J and K; they will receive 30 granted him in this article, by ordering that the legitime of the other children to
each. The legitime of W2 will be 90. whom the property is not assigned, be paid in cash.

If A, B and C repudiates, the compulsory
heirs are the wife and grandchildren
(Legitimate Descendants with respect to
Legitimate Ascendants). Grandchildren
inherited by their own right. The
grandchildren will receive 22.5 each
(180/8=22.5). W2 will also receive 22.5
because she will receive the same share
as the descendants (2 or more children
and spouse: children 1/2 and spouse,
same share as a legitimate child). The
law does not address this issue.
Moral lessons:
• Legitime minimum guaranteed amount, you cannot be deprived of that
except through disinheritance. If you don’t receive it, there is preterition.
If it is less than what you are entitled to, you can resort to completion.
• You cannot impose any burden on the legitime. No charge, encumbrance,
condition, substitution except in 4 cases:
o Art. 1083. There may be a prohibition to partition the legitime but only for
a period limited to 20 years
Art. 1083. Every co-heir has a right to demand the division of the estate unless
the testator should have expressly forbidden its partition, in which case the
period of indivision shall not exceed twenty years as provided in article 494. This
power of the testator to prohibit division applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates when any of
the causes for which partnership is dissolved takes place, or when the court finds
for compelling reasons that division should be ordered, upon petition of one of
the co-heirs.
o Art. 1080. If the testator makes a partition inter vivos of his estate and
ordered that the property shall be kept in tact and that the legitime be
paid in case, that is valid. This allows a person to preserve a business or an
estate whose value will be diminished if partitioned among the heirs.
o Art. 159 of the Family Code. If the legitime consists of the family home,
there can be no partition for as long as there is a minor beneficiary.
Art. 159. The family home shall continue despite the death of one or both spouses
or of the unmarried head of the family for a period of ten years or for as long as
there is a minor beneficiary, and the heirs cannot partition the same unless the
court finds compelling reasons therefor. This rule shall apply regardless of
whoever owns the property or constituted the family home.
o Art. 891. The reservable property is usually transmitted to the reservor as
legitime. Even if it is transmitted as legitime, there will always be a burden
of reserva.
Art. 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother
or sister, is obliged to reserve such property as he may have acquired by
operation of law for the benefit of relatives who are within the third degree and
who belong to the line from which said property came.
• There can be no waiver or compromise of future legitime because there is
nothing to waive. Succession has not opened.
• If the testator fails to give the exact amount, Art. 906 allows completion.
Art. 906. Any compulsory heir to whom the testator has left by any title less than
the legitime belonging to him may demand that the same be fully satisfied.
• If there are testamentary dispositions that impair the legitime, such as
legacies and devises, they are subject to reduction under Art. 907 which
says that a compulsory heir can demand the reduction or abatement of
testamentary disposition that impair the legitime. But Art. 907 can only be
invoked by a compulsory heir.
Art. 907. Testamentary dispositions that impair or diminish the legitime of the
compulsory heirs shall be reduced on petition of the same, insofar as they may be
inofficious or excessive.
It only refers to testamentary dispositions that impair legitime. Supposing the
transactions that impaired the legitime are prior donations, how do you rectify
that? There are 2 ways:

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1. You can recover the deficiency of the legitime, the impairment, because of
donations through a process called collation in Art. 1061.
Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs,
must bring into the mass of the estate any property or right which he may have
received from the decedent, during the lifetime of the latter, by way of donation,
or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition.
(2) Art. 891 on reserva. There were several reservas in the Spanish Code:
reserva viudal, reserva adoptiva, reserva troncal. All three were abolished
by the Code Commission but Congress decided to restore reserva troncal.
The basic principle/concept of reserva is the preservation of the wealth of a
family. The wealth of a family is sought to be protected by law from what is
considers to be an accidental transfer. Where the transfer of wealth is deliberate,
the law will not interfere. It is the accidental transfer that the law seeks to correct.

2. Under the rules on donations, particularly in Art. 771 and 772, certain
donations can be reduced or abated even during the lifetime of the donor.
Art. 771. Donations which in accordance with the provisions of Article 752, are
inofficious, bearing in mind the estimated net value of the donor's property at the
time of his death, shall be reduced with regard to the excess; but this reduction
shall not prevent the donations from taking effect during the life of the donor,
nor shall it bar the donee from appropriating the fruits.
For the reduction of donations the provisions of this Chapter and of Articles 911
and 912 of this Code shall govern.
Art. 772. Only those who at the time of the donor's death have a right to the
legitime and their heirs and successors in interest may ask for the reduction or
inofficious donations.
Those referred to in the preceding paragraph cannot renounce their right during
the lifetime of the donor, either by express declaration, or by consenting to the
donation.
The donees, devisees and legatees, who are not entitled to the legitime and the
creditors of the deceased can neither ask for the reduction nor avail themselves
thereof.
Example: What if a mother gave her son a piece of property which forms part of
the family heirloom on the mother side. The son dies without issue. The same
property was inherited by the father because the son died without issue. The
wealth that came from the maternal side accidentally transferred to the paternal
side because the child who inherited it from his mom died without issue forcing
succession to go into the ascending line.
This accidental transfer of wealth from the maternal side to the paternal side is
an unacceptable scenario for which reason Art. 891 says that when such
accidental transfer happens, the ascendant who got the property that came from
the other side of the family is under a legal obligation to preserve it and to give it
back to the descendants of the family from where it came from so the ancestral
wealth of the maternal side is preserved.
The present Constitution speaks of socialized ownership and talks about the
redistribution of wealth. There is good reason to say that art. 891 is violative of
the Constitution because what the Constitution seeks to redistribute or disperse,
art. 891 seeks to consolidate. It is the accidental transfer of wealth that art. 891
seeks to correct. It does not seek to correct an intentional transfer of property
from one side of the family to the other.

If it is the donor who will abate, Art. 771 and 772. If this is a reduction because
the donor/testator already died, use Art. 1061.

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

Reserva is included within the section on legitime because this is one of the
statutory limitations on the entitlement of the legitime and it affects the
distribution of the estate of a deceased person.

There are 2 provisions of law in our Code that still contains the vestiges of
feudalism:

(1) Art. 863 on fideicommissary substitution

The definition of reserva in art. 891 goes backwards. It does not start from the
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logical beginning; rather, it starts from the end and it goes back. The law says: an
ascendant who inherits from a descendant property which the descendant
acquired from another ascendant or brother or sister is obliged to reserve that
same property for the benefit of the reservees who are related to the descendant
within the third degree of consanguinity. These reservees must come from that
line.
To constitute a reserva, there must be 2 transmissions of property. The 1st
transmission comes from the origin to the descendant and according to the law,
this transmission must be by gratuitous title. The 2nd transmission from the
descendant to the ascendant is a transmission by operation of law.
A transfer by gratuitous title is a transfer without valuable consideration. Under
our law, there are only 2 ways to transfer property by gratuitous title: (1) by
donation inter vivos or (2) by donation mortis causa (hereditary succession).
There are no other transfers by gratuitous title. Therefore, this first leg of transfer
has to be either one of these.
The 2nd transmission is by operation of law and this is where the accidental
transfer happens. The movement of the property from the descendant to the
other ascendant did not arise because the descendant wanted it to be. It is a case
of an accidental transfer because this movement resulted from operation of law.
There are only 2 possible ways of transferring property by operation of law:
(1) transmission through intestacy, where a person dies without a will and
therefore the law takes over and distributes his estate under the rules of intestate
succession where the law determines 2 important things (the heirs entitled to the
property and how much these heirs will receive). Therefore, where there is a
transmission by intestacy, the accidental transfer of wealth takes the form of a
law that determines who gets the property and how they will divide it amongst
themselves;
(2) transfer the property as part of legitime in compulsory succession, in art.
886, the Code says that the legitime is something the testator cannot dispose
because this is reserved by law for the compulsory heirs. From there, we deduced
that it is not exactly “cannot dispose” but the minimum that the compulsory heirs
should receive. The law determines both the minimum and the compulsory heirs.
When a property passes from descendant to ascendant and that transmission is a
transmission by legitime, then the transmission occured by operation of law.
To understand why there is an accidental transfer, we must know the characters:
• Ascendant or the reservoir or reservista
It is the reservoir to whom art. 891 is addressed. When art. 891 says “an
ascendant who receives from a descendant”, the law addresses itself to the
reservoir. This ascendant reservoir acquired property from the descendant by
operation of law either because he received something from the descendant by
intestacy or he receives something from the descendant as part of his legitime.
Succession flows first into the descending line. When there are no persons in the
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descending line who will inherit that is the only time that succession will go up in
the ascending line. Here, the property went up to the ascendant because it has
nowhere to go in the descending line.
How would you characterize the title of the reservoir to the property he received
from the descendant? Art. 712 tells us that succession is a mode of acquisition
which means if you inherited something, you become the owner of that thing.
The question now is, is he the owner? This reservoir who inherited from the
preposterous property which the prepositus acquired from the origin, this
reservoir is required to preserve the property for the reservees who are relatives
within third degree by consanguinity and in the legitimate line of the prepositus
who come from the side of the origin.
The reservoir is an owner, if you go by art. 712, and yet the reservoir will not
acquire absolute ownership because by the concept of absolute ownership, there
can be no duty to reserve the property for some people at some future time. By
the concept of absolute ownership, the owner must enjoy without any restrictions
all the attributes of ownership. He should have the right to use, to possess, to
vindicate, to the fruits, to destroy, and to dispose.
If the reservoir indeed inherited the property, does he have the right to use? Yes.
To possess? Yes. To vindicate? Yes. To the fruits? Yes.
Does he have the right to destroy? No. If you have a duty to return the property to
the origin, it's not a return of the value but a return of the property itself, then the
logical conclusion is you cannot destroy it. This is a right denied of a reservoir
because the right to destroy is inconsistent with the duty to reserve the property
for certain designated persons.
While the first 4 attributes of ownership are clearly possessed by a reservoir, the
last to attributes could, at best, be disputable.
To dispose? If you were to look at it with a myopic vision, then you will say “if I
must reserve, I should not dispose.” But is there a way that you can grant this
right to the reservoir without contradicting his obligation to reserve? Yes.
In fideicommissary substitution, can the first heir sell the property? Yes. Can the
first heir donate the property? Yes. Can the first heir dispose it in any other
means? Yes. He should be able to do so if you him an owner. But for that
disposition to be consistent with the obligation to preserve and transmit to the
second heir, that disposition must be subject to a resolutory term. That is in the
case of a fideicommissary substitution. Such that, if the first heir was the father
and the second heir is the son, the father may sell the property but that same is
valid only in the hands of the buyer for as long as the father is alive. When the
father dies, that buyer must turn over that property to the second heir who is the
son. You cannot give more than what you have. When the father sells that
property, all that he can transfer to the buyer is the subtotal of all his rights to the
property. It cannot be any more than that.
The only time you can transfer to a person more than what you actually have is in
the case of a negotiable instrument where a holder in due course does not derive
53$
his title/right/classification as such from the transfer. A thief can transfer an
instrument through a holder in due course. But that is exceptional because that is
only through negotiable instruments law. In Civil law, you cannot give that which
you do not have.
Within the context of a fideicommissary substitution, we should allow the first
heir to transfer whatever rights he has to the property by an act of conveyance.
But the transfer cannot be any more than what he has.
The same principle is true in a reservable property. The reservoir is the owner of
the property that he inherited from the prepositus. He enjoys rights 1, 2, 3, 4
without issue. He does not enjoy the 5th right. But it is possible that he may have
the right to dispose for as long as all he transfers is his right or to that extent
only. The right of the reservoir is, for as long as he lives, the property is his but
after his death, take into consideration if there are reservees or none. If there are
reservees, the property will go back to them. If there are no reservees, the
resolutory condition is not fulfilled and therefore, the property stays with the
estate of the reservoir.
Is that analysis confirmed by jurisprudence? Yes. The applicable ruling is Sienes.
Sienes, et al. vs Esparcia: The property which Andrea received from the
prepositus, Andrea sold to the spouses Sienes. At the same time, Cipriana and
Paulina, the reservees, sold the same property to the spouses Esparcia. There are
2 transactions, 2 sales, over the same subject matter by 2 different vendors but do
not constitute double sale under Art. 1544. SC: Both vendors had a right to sell.
When Andrea sold the property, it was a sale that is subject to a resolutory
condition. Resolutory because that condition, if it is fulfilled, will terminate all
her rights. It is a condition, not a term, because whether she will die ahead of
Paulina or if Paulina will die ahead of her is uncertain. If Andrea lives long
enough to see Cipriana and Paulina die, her title to the property becomes
absolute and reserva will not happen. But if Cipriana and Paulina, or either of
them, should survive Andrea, the property will go back to them.
The ownership of the reservoir is subject to a resolutory condition while the
ownership of the reservees is subject to a suspensive condition.
Can the reservoir sell/donate/barter/trade/exchange (for something else) the
reservable property? Yes, subject to the resolutory condition the survival of the
reservees.
While Paulina had predeceased Andrea, Cipriana was still alive. Consequently,
the sale of Andrea to the spouses Sienes will have to come to an end because the
property now must revert to the reservee, and the only reservee then was
Cipriana. Therefore, if Cipriana eventually becomes the absolute owner of the
property, her sale to the spouses Esparcia is validated.
Provisions of law involved in Sienes that the court did not mention:
Can you sell property that does not belong to you? Yes. All that the law requires is
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on delivery date, the seller should have the right to delivery the property.
Was the sale of Cipriana valid? Yes because at a certain future time, when Andrea
died, her title to the property is consolidated. She acquired title to it, and
therefore, her sale to Esparcia is validated. It is equally clear that the sale of
Andrea to the spouses Sienes will have to come to an end because the right of
Andrea terminated on her death because of the survival of Cipriana.
Why is a reservoir not a usufructuary?
Art. 869. A provision whereby the 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.
There is only one way you can inherit as a usufructuary: that is when the testator
gives to you nothing more than a usufruct. In a usufruct, there must be another
person who will hold the legal title to the property (holder of legal title/naked
title). He does not have a right to the use and to the fruits.
Since in usufruct, the usufructuary has the right to the use and fruits only, the
reservoir cannot be considered a usufructuary because he exercises the right to
use, to possess, to vindicate, to the fruits, and to dispose.
The only time you can inherit usufruct is under Art. 869. You cannot inherit
usufruct by intestacy. Usufruct is extinguished by the death of the usufructuary
or the death of the grantor. You can never acquire it by hereditary succession.
The only way is through art. 869. A reservoir did not acquire it under art. 869 so
how can he be a usufruct.
He is an owner, but he is not an absolute owner because the title of the reservoir
is subject to resolutory condition: he has to survive longer than the reservees.
Gonzales vs CFI: If the reservoir does not survive longer than the reservees, the
resolutory condition is fulfilled: the right of the reservoir to the property comes to
an end, the property ceases to belong to the person, the reservable property is not
going to be part of his or her estate, and accordingly, that reservoir cannot will
that property. He cannot dispose of it in any manner. The reservoir cannot even
write a will to return the property to all descendants of the Legardas
(grandchildren bearing the name Legarda).
There are 7 children (one died; 3 girls and 3 boys, all are married). The
grandchildren from the daughters have different surnames but the grandchildren
from the sons (Jose, Benito, Mando) have the surname Legarda.
The reservable property came from Benito F. Legarda, Sr. She returned it to the
grandchildren of Benito having the surname Legarda. She did it by will. SC said
the property is not hers and she cannot touch it.
• Descendant or “prepositus”
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Who is the prepositus? Always a descendant of the reservoir. Is he a descendant
of the origin? Not necessarily, because the origin could be the brother or sister.
! Property from mother, transferred to child, and then transferred to father. Is
Nieva and Alcala vs Alcala de Deocampo: All the parties must be related in
the legitimate line.
An illegitimate child of the prepositus will not exclude the legitimate ascendants.
Will an adopted child of the prepositus preclude/bar the reserva? It will, the basis
is Acain vs Acain. The adopted child excludes all ascendants. When you have an
adopted child, there is no way for the property to go up by operation of law. The
only way for the property to go up to the ascendant is if the descendant or
prepositus writes a will and gives that to the ascendant. But if it was through a
will that it was given to the ascendant in the light of the adopted child, it cannot
be a transfer by operation of law because that transmission by will is not a
transmission by intestacy or of legitime because with the adopted child in the
picture, the parent ceases to be a compulsory heir. Therefore, when the parent
receives the reservable property by will from the prepositus who has an adopted
child, that transmission is a transmission of the free portion, not the legitime
because of the exclusionary rule.
Usual instances of reserva involve a child who dies in infancy after inheriting
from the father or a child who dies during minority. In the case of Gonzales,
Filomena died single. Her father predeceased her. She never thought it would be
necessary for her to write a will.
If you have received something by hereditary succession from an ascendant, and
you have other ascendants still alive, and you have no descendants, you better
write a will because succession will go up the ascending line.
The prepositus triggers the reserva and it happens if he leaves no legitimate or
adopted child. That is the only time that succession will go up. Since he is the
trigger, he is also the key to prevent reserva. To do so, he must have legitimate or
adopted a child. If he is impotent, he can adopt. If he is a priest (cannot have
legitimate children and cannot adopt), he can prevent reserva by donating,
selling, bartering, destroying, or changing its nature. He may do so because at
this level, there is no reserva yet.
The priest built a residential condominium upon the land he inherited from his
mother. Will there still be a reserva? No. According to the Condominium Law,
you have to set up the condo corporation before the condominium can be built
because the CCTs cannot be issued unless the mother title is transferred to the
condo corporation. There was a disposition so he is not the owner anymore. Even
if he owns all the units there, the ownership of the land has been transferred to a
separate juridical person called the condo corporation.
The prepositus is an absolute owner who enjoys all the attributes of ownership.
• Ascendant from another branch of the family
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To whom the accidental transfer of wealth was given.
there reserva here? It depends. Was the property separate property of the
mother? If what she donated belongs to the community property, there is no
transfer of wealth from one side to the other, and therefore, there is no reserva.
The property must be part of the wealth of the origin family (not community
property of the husband and wife. It must be separate property)
• Origin
The family from whom the property belonged to. The prepositus must be related
to the origin by blood, in the legitimate line. The reservees must be a relative of
the prepositus within the third degree by consanguinity.
The origin has no relation to the reserva. He is just the origin of the property and
it to his line that the property will be returned.
• Brother or sister
Where H is the husband;
W is the wife;
A and B are siblings and legitimate
children of H and W.
A gave a donation to B. B died without
issue. That property went up to the W by
operation of law. Is that property
reservable? Yes!
Justice Paras: No, because the property did not go outside of the family, so
there is no accidental transfer of wealth. A obviously donated his own property to
B (not the property of his mother or father). The owner now is B and when he
died, he didn’t have children so the property transferred to the mother. A and B
has the same mother so there is no transfer of wealth from one family to another.
Gonzales vs CFI: Filomena Rosales has 3 daughters and 3 sons. Filomena has a
child who has inherited from her husband Benito. When that child died, the
property was transferred to her. Since part of her wealth came from the Legarda
side, Filomena wrote a will seeking to bring back the Legarda assets back to the
Legardas. The 3 sons have 17 grandchildren, all surnamed Legarda. The
grandchildren from the 3 daughters are not so surnamed.
SC: Filomena had no right to will the assets because they are reservable property.
When she died, her children were alive and they were 2nd degree relatives of
Filomena. It’s not hers to give. How can this be considered reservable when the
property did not move from one family to another?
55$
It is clear from this case that it does not matter that the property will move from
one family to the other. If the two-transmission rule is satisfied, as in this case,
the property is reservable.
Justice Paras: If you want to be true to the concept of a reserva, there must be
a transfer of wealth from one family to another.
Where H is the first husband;
W is the wife;
A and B are the legitimate children of H
and W;
H2 is the second husband;
C is the illegitimate child of W and H2
Because H passed away, A inherited. W
married H2 and W gave birth to C. A
donated to his half brother, C. C died in
infancy. Property should go up to H2.
This is a case of a true reserva because wealth that came from the first family
moved to the second.
This is the reason Paras is saying that insofar as origins, being brothers and
sisters, to constitute a reserva, they must be brothers and sisters of the half blood
like this case.
SC: Whether there is movement of property or not, as long as you satisfy the
two-transfer requirement, there is reserva.
• Reservees
These are legitimate relatives of prepositus by blood within 3 degrees of
consanguinity. They must be relatives of the prepositus from the side of origin.
For the reservees to get the property upon the death of the reserva, the reservees
must be alive, or at least conceived. If there are no reservees, the property
becomes part of the estate of the reserva.
Sienes, et al. vs Esparcia: Andrea sold the property to Siennes. Cipriana and
Paulina sold the same property to Esparcia. SC: since Andrea died before
Cipriana, Siennes cannot be the owner anymore.
Cipriana sold the reservable property. But at that time of the sale, the owner is
Andrea. The right of Andrea is subject to a resolutory condition (her ownership
will end upon his death if Cipriana or Paulina is still alive). Conversely, the rights
of Cipriana is subject to the same contingency (she becomes owner only when
Andrea dies ahead). Ownership of Cipriana now is subject to a suspensive
condition.
Can Cipriana sell something which she may or may not acquire by hereditary
succession? The only way she will own it is through the fulfillment of the
resolutory condition. They will inherit it from the prepositus, not from the
GING$!$$
reservoir. They will acquire it by rules of intestacy. Will Art. 1347 apply?
Art. 1347. xxx No contract may be entered into upon future inheritance except in
cases expressly authorized by law. xxx
De Belen vda. de Cabalu vs Tabu: According to Justice Mendoza, a contract
involving future inheritance has 3 elements:
1) succession has not opened;
Succession has not opened yet as far as Cipriana is concerned, because Andrea is
still alive.
2) the object of the contract forms part of the inheritance
This was complied with, because what she sold to Esparcia is property now in
Andrea’s possession that may eventually come to her by hereditary succession.
3) the rights of the promissor to the property is couched upon a right to inherit
the same
This was complied with, because the only way Cipriana can have the sale
validated is for her to acquire the reservable property and the way to acquire it is
through the death of Andrea whereby the property will be transmitted to the
reservees under the rules of intestate succession.
When the reservoir dies, the reservable property that was then in the ownership
of the reservoir, that ownership will terminate and that property goes back to the
prepositus from where the reservees will inherit by intestacy.
When Cirpriana and Paulina sold the land to Esparcia, Andrea was still alive. The
property is the reservable property which may at some future time, go back to the
estate of the prepositus from whom both of them will inherit by intestacy. Given
the elements of art. 1347 in the case of de Belen vda. de cabalu, what Cipriana
and Paulina actually sold can be considered as part of future inheritance.
The very theoretical reason why contracts involving future inheritance is void is
because there will be no object of the contract because there is no succession to
speak of. But the practical reason, the more compelling reason, why these
contracts are void is because it creates an unnecessary risk on the life and safety
of both parties. There is every incentive for one party to kill the other.
Justice Mendoza did not say anything right in this decision.
Why was art. 1347 not invoked? There is no future inheritance because when
Cipriana sold the property, Andrea was still alive. The reservees will not inherit
from the reservoir but from the prepositus. When Cipriana sold, the reservable
property is not yet with the prepositus. The reservable property is with Andrea,
from whom they will not inherit because they will inherit from the prepositus.
Therefore, there is no future inheritance.
56$
When reservoir dies, the property goes back to the prepositus (who has died a
long time ago) from whom the reservees will inherit. The reservees will acquire
the property from the prepositus under the rules of intestate succession. Why
intestate succession? Because when the property went back to the prepositus, he
is already dead. This prepositus could not have written a will to dispose of the
reservable property.
In the distribution of reservable property, consider the qualified reservees. The
reservees are relative in the 3rd degree (include those in the 1st, 2nd and 3rd).
Who are the relatives of the prepositus?
within the first degree: parents.
Children are not included because if there are children, there will be no reserva.
within the second: grandparents, siblings.
Grandchildren cannot be included because since there are no children, there can
be no grandchildren
within the third: great grandparents, nephews and nieces, uncles and aunts (all
must be legitimate and all must come from the line of the origin)
"relatives within the third degree" – the distribution of the reservable property
developed 2 distinct theories:
1. Reserva integral
Divide the reservable properties by getting all of reservees and dividing among
them the property.
2. Delayed Intestacy
Badura vs Baldivino: the distribution of the reservable property follows the
theory of delayed intestacy.
When the reservoir dies, notionally, the property goes back to the prepositus
from where the reservees will inherit by rules of intestate succession.
Intestate succession is governed by 2 fundamental principles
(1) the rule of proximity; and
Relatives nearer in degree will exclude the more remote ones. Following the rule
of proximity, the parents will exclude the grandparents and the brothers and the
sisters. The grandparents will exclude the brothers and the sisters. The brothers
and the sisters will exclude uncles, aunts, nephews and nieces. So that not all of
them may participate in the distribution of the hereditary estate.
(2) The rule of equal division.
GING$!$$
Heirs of equal degree or rank will inherit in equal shares.
The case where the court clearly upheld the theory of delayed intestacy: de Papa
vs Camacho: Dalisay, the niece of the prepositus, claims the entire property and
yet there are uncles and aunts of the prepositus who claim ¾ of the property.
Uncles and aunts: in the distribution of the reservable property, they must all get
¼ each since they are all relatives within the 3rd degree (¾ for the uncles and ¼
for Dalisay).
Dalisay: The whole property should go to her.
SC: Dalisay is correct because the rules of intestate succession must be followed.
In the case of intestacy, we have an order of preference:
1st priority: legitimate children, legitimate descendants and adopted children
2nd priority: legitimate parents, legitimate ascendants
3rd priority: illegitimate children
4th priority: surviving spouse
5th priority: brothers and sisters; nephews and nieces (children of siblings)
6th priority: collaterals within the 5th degree
7th priority: the State
1st – 4th are compulsory heirs. How they will inherit will depend on the inclusions
and exclusions under the rules on legitime such that if there is (1), (2) is no
longer a compulsory heir. But (2) will not exclude (3) and vice versa. (4) is not
excluded by any one of them.
5th – 7th are not compulsory heirs. This is where the law is strictly applied. If there
are siblings and nephews and nieces, all other collaterals are excluded. Where do
aunts and uncles come in? If you count how many degrees remote they are, both
Dalisay and the uncles/aunts are 3rd degree from the prepositus. It would seem
that the uncles were right when they said that all four of them will divide the
property equally. But in the order of the intestate succession, Dalisay comes in 5th
because she is a niece while the uncles/aunts come in 6th.
What was followed was not a recognition of who are within the 3rd degree, but the
rules of intestate succession: the nearer will exclude the further. When this
property is now distributed to the reservees, it will follow the rules of the
intestate succession.
It is called “delayed intestacy” because the prepositus has died a long time ago.
The resolutory condition was fulfilled so the reservoir has to return the property,
57$
not to the reservees, but to the prepositus from whom the reservees will inherit Reserva Maxima: Conservative way of distributing. Your mindset is you will
by intestacy. stick to the law and the law says what you got must be reserved. The limitation is:
only the legitime can be reserved because of the will. P20,000 is definitely not
What is the reservable property? reservable but P100,000 is at least partially reservable.

If the mother donates paraphernal property to her son who dies intestate and The reservable portion P60,000 will come from the land. P40,000 will be left
without issue, that paraphernal property of the mother may pass to the father. from the land. P20,000 is the separate property
This is a simple and clear case of maternal wealth, by accident, passing to the
paternal side. Art. 891 will correct this by requiring, upon death of the reservoir, I am able to maximize the reservable character of the property.
the return of the property to the reservees who are relatives of the prepositus
within the 3rd degree. P60,000 Legitime from land
P60,000 Free portion:
Art. 891 creates an encumbrance on the reservable property. That encumbrance
will follow the property wherever it may be. They encumbrance must be P40,000 Left from land after deducting legitime
protected. P20,000 Separate property

Sumaya vs IAC: encumbrance of the reserva must be annotated in the title

because in this case, the reservable property was almost lost. The reservable
property was sold to a buyer. When he brought the property, the title was clean;
there is no annotation of the reserva. However, it was proved that the buyer had
actual knowledge of the reservable nature of the property.
SC: It is not necessary that the lien or encumbrance be annotated. If the buyer
knew the reservable nature of the property, that encumbrance will follow the
buyer.
Reservable property may not always be easy to identify.
Reserva Minima: Liberal way of distributing. P60,000 is legitime and
P60,000 is free portion. But these 2 parts of the same inheritance, which the
father received by will as universal heir of the son, will each have 2 components.
The legitime all cannot come from the P100,000 because there are 2 properties
involved (one potentially reservable, and the other not reservable). Under the
theory of reserva minima, you must allocate the properties to the different
components of succession.
P60,000 Legitime P50,000 of the land is reservable
P10,000 of the separate property

The value of the property donated by M to S was P60,000 Free Portion P50,000 of the land
worth P100,000 at the time of the donation. In P10,000 of the separate property
addition to this, S made P20,000 from his own
labor. The mother dies. Now, the child is worth Now, only P50,000 of the land is reservable because the land is no longer
P120,000. S writes a will giving all to F. When S reservable since it is free portion. Under the theory of reserva minima, you
died, his will was probated, and F gets P120,000. mitigated the extent of the reservable property from P60,000 down to P50,000.
How much is reservable property?
Of my estate, 60% goes to my father and 40% goes to my friend. Legitime is not
The first leg of transmission is by gratuitous title. The second leg of transmission violated because legitime is 50%. What is given to the friend, regardless of source
must be by operation of law. But there is a will that transmitted the property to is not reservable. So 40% is already out. But what is given to the father is
the father. Is the reservable nature of the land preserved or destroyed? potentially reservable because of the 60% that he will receive, 50% is legitime and
10% is free portion. Then you will have to make the appropriate allocation.
When F receives P120,000 by will, he receives it in 2 capacities: P60,000 is
legitime (by operation of law), and P60,000 is free portion (not by operation of Ratio of legitime and free portion is 5:1
law). Therefore, what he receives by legitime is reservable but what he receives
from free portion is not reservable. Will - 60% Father = P72,000 60 50 10
12 10 2
Of the properties he received, P100,000 is potentially reservable because it came
- 40% Friend = 48,000 40
from the maternal side. But the P20,000 is clearly not reservable because it did
not originate from the maternal side. 8
P120,000
There are 2 views on this:
The
GING$!$$ 58$
P72,000 has 2 components: 60 and 12 exceeds P6,000,000, you need a CPA to certify.

P48,000 has 2 components: 40 and 8 Example: The survivors are the following: 2 legitimate children, surviving spouse
and 1 illegitimate child. If you calculate the legitime based on P72,000,000…
The legitime of the father is 60. This still has to be prorated (5:1). The ratio
between the legitime and the free portion is 5:1. LC P36,000,000
SS 18,000,000
Art. 908. To determine the legitime, the value of the property left at the death of IL 9,000,000
the testator shall be considered, deducting all debts and charges, which shall not Total Legitime P63,000,000
include those imposed in the will.
Total Estate P72,000,000
To the net value of the hereditary estate, shall be added the value of all donations
(Total Legitime) (63,000,000)
by the testator that are subject to collation, at the time he made them.
Free Portion P9,000,000
After we have discussed legitime, we shall now try to calculate the estate of a
person from where you will extract the legitime. It is not enough to say that the Things will change if the testator had given donations in the past.
legitime is half of the estate. You must know what the estate is.
Donation – gratuitous conveyances/ transfers of assets without valuable
What the estate is according to Art. 908: The distributable estate of a person is consideration/ Gifts.
equivalent of the assets that he has to which you will have to deduct the debts and
the taxes and from this you get the net estate. To the net estate you will add the Does this mean that in the liquidation of the estate of a person, you have to dig
collationable donation and you get the theoretical estate. back from the very start and figure out all the gifts he made? No.

Assets (Fair Market Value) P100,000,000 FMV of Assets How do you determine what expenses will be considered as donations?
(Debts/Taxes) (10,000,000) Debts
Net Estate P90,000,000 • Generally, expenses that should form part of support should not be
Collated Donation (18,000,000) Estate Tax considered as a gift. So what would constitute support? Anything and
everything that pertains to food, clothing, shelter, education, medical
Theoretical Estate P72,000,000 Net Estate (Actual)
attention and transportation.
How do you calculate the total assets? Come up with a valuation. When you look
• Moderate gifts given in times of family celebration also cannot be
at the estate tax returns, you will see how it is done.
considered as donation.
How do you value the assets of the estate? You have to make 2 classifications:
A graduated finally after 10 years in law school. B, his father, gave him a modest
car as a gift. Will that be considered as a donation? Consider two things: (1) Was
1. immovable property – as far as real estate is concerned, the value that you
there an occasion to give a gift? Yes. (2) Is the gift moderate? This is the difficult
will prepare is the zonal valuation as determined by BIR.
part to consider because what is moderate is relative; it will depend upon the
sources of the donor. Bear in mind that transportation is part of support.
2. movable property – all other assets, evaluation, based in the BIR rules, is
based on book value (for non-listed shares). If you have listed shares, the
There are certain gifts that are clearly not part of the support and not moderate.
valuation will be the closing price at the stock exchange on the day of death.
A father transfers to his 2 legitimate children his portfolio of listed shares
For all other assets, valuation. The BIR is not very strict on valuation for all
(P20,000,000) which has been accumulating through the years. The donation is
other assets. But the BIR is strict on the valuation of real estate and shares
already 20% of the gross estate.
of stocks, whether listed or not. For all other properties, you'll have to have
an appraisal.
If you did not include this donation in the calculation of the estate, there are 2
persons aggravated: the surviving spouse and the illegitimate child.
At the end of the day, the valuation of the assets is technically what we call Fair
Market Value. The debts, according to the Hemady case, should include
Art. 906 says gifts that are collationable must be brought back so that:
contingent liability. The maximum estate tax is 20%. The Net Estate in the
example above is the actual cash on hand you have. Assets less liabilities (debts
Net Estate P72,000,000
and taxes) is the actual net estate. How do you know it’s actual? The estate
Collated Donation 20,000,000
GING$!$$ 59$
Theoretical Estate P92,000,000
You do not actually have P92,000,000 in your hands. You only have
P72,000,000. The collation here is a notional entry. It is merely to account for
the value of the donation. You are not getting back the shares. You are simply
bringing back the value into the estate notionally and solely for the purpose of
calculating legitime.
What value of collationable donation will you bring there? The value at the time
of the gift. The P20,000,000 that I brought back is the value of the shares at the
time they were donated.
Let us say these were Jollibee shares that were donated 20 years ago where the
price was P5 per share. If these were Jollibee shares donated at P5 per share and
the total is P20,000,000, this constitutes 4,000,000 Jollibee shares. If the
testator dies today, the Jollibee shares are already at P125. 4,000,000 shares at
P125 pesos is equal to P500,000,000. How much is collationable? Still
P20,000,000 because what we are trying to bring back to the estate is the actual
amount/value that slipped out of the patrimony of a person. How much did he
really give at the time he gave it? That P20,000,000 20 years ago is now is worth
P500,000,000. Even if the value increased at the time of death, the
accountability of heirs is only the value at the time it was given because the
objective of collation is only to bring back to the estate of the deceased person the
actual value that went out of his patrimony. This proves that collation does not
mean you will take back the gift. You only account for the value.
Therefore, if what was given was P20,000,000 and donation transferred
ownership of the shares to the 2 legitimate children, by virtue of their ownership
that vested 20 years ago, they benefit from the improvement of value and they
suffer from the impairment as well.
Now we have a theoretical estate of P92,000,000. You do not have 92m on the
table. What you have is P72,000,000. Half of 92 is 46M. I have to give
P46,000,000 to the 2 legitimate children and of which I must give P23,000,000
to the surviving spouse and therefore, P11,500,000 to the illegitimate children.
With collation Without collation
LC P46,000,000 P36,000,000
SS 23,000,000 18,000,000
IC 11,500,000 9,000,000
Total P80,500,000 P63,000,000
Actual money is P72,000,000. But the total with collation is P80,500,000. This
P80,500,000 is only theoretical because the estate does not have this amount on
hand. This is where collation will come in. I am supposed to give P46,000,000 to
LC. But dad already gave them P20,000,000 before. So this P20,000,000 is now
part of P46,000,000. They shall only be given P26,000,000.
LC P26,000,000
SS 23,000,000
GING$!$$
IL 11,500,000
Total Legitime P60,500,000
After you have collated a donation, you must charge that collated amount to
something. So that if there is a donation to a compulsory heir, that donation is
collated and charged as an advance of legitime. When a donation is made to a
stranger, that donation is charged to the free portion. If total distribution is
P60,500,000, this is a cash distribution and I have P72,000,000. My free portion
is P12,500,000. If I did not collate, I'll only have P9,000,000.
We collate in order to equalize the shares of the compulsory heirs. In this case,
the 2 LC were given donation but they will not get any advantage because at the
end of the day, said donation is considered as advance of legitime.
There can be no advance to the wife. Donations to the spouse are void. The only
exception is moderate gifts but moderate gifts are not considered as donations.
If there is donation and the donation is valid, figure out to whom it was given. If
it was given to a compulsory heir, charge it to the legitime. If it was given to a
voluntary heir, charge it to the free portion.
Supposing the P20,000 was donated to a stranger…
LC P46,000,000
SS 23,000,000
IC 11,500,000
Total P80,500,000
How much money do I have on the table? P72,00,000. The donation of
P20,000,000 to a stranger is inofficious because it encroached the legitime. I
need (P80,500,000 – 72,000,000) P8,500,000. The donee must pay back
P8,500,000. Donations which are inofficious may be reduced or abated. The
only time a prior donation inter vivos can be disturbed is if that donation resulted
in an impairment of legitime. You can go after the donee and collect P8,500,000.
This collection is an actionable claim. He has an obligation to return.
If the donee already died, the amount cannot be collected anymore. Is the duty to
return an excessive donation a liability that will be inherited by the heirs of the
donee?
Supposing the donee is insolvent, he cannot return the value anymore. If that
happens, from whom will you get the deficiency of P8,500,000? Everybody has
to suffer the loss. The loss must be prorated among all of them. Divide into 7
before deducting.
What if the debts amount to P110,000,000? Also, there is P20,000,000 donation
to A and B (legitimate children).
P100,000,000 FMV of Assets
(110,000,000) Debts
60$
P(10,000,000) No tax because insolvent Collation can be dispensed by the donor. If the donor says this donation is non-
0 collationable, it will not be charged to the compulsory heirs. Non-collationable
20,000,000 Collationable Donation donation is important only to compulsory heirs because if a donation to a
P20,000,000 Theoretical Estate compulsory heir is non-collationable, you do not deduct that from legitime. You
will charge that to the free portion.
Butte vs Manuel Uy: The estate of Jose Ramirez is insolvent because the
liabilities were greater than the asset. There is no tax because you have an The estate is P570,000; debts P40,000. There are 3 LC (A, B, C), SS and 3 IC (D,
insolvent estate. Theoretically, the heirs will not get anything. The liabilities are E, F). B received a donation of P70,000.
outstanding. What you seek to tapal to it is something that was conveyed by the
testator long ago. The only way you can make the donation liable for tax is if the Assets (Fair Market Value) P570,000
donation was the cause of the insolvency (if it was the gift that made him unable (Debts) (40,000)
to pay his debt; if it was the gift that caused the assets to fall short of the Net Estate P530,000
liabilities). If the donation was prior and in no way connected with the present Collated Donation 70,000
financial standing of the decedent, you can’t make the donation liable to pay tax. Theoretical Estate P600,000

Art. 1381. The following contracts are rescissible: xxx LC (A, B, C) (P100,000 each) P300,000
SS 100,000
(3) Those undertaken in fraud of creditors when the latter cannot in any other IC (D, E, F) (P50,000 each) 150,000
manner collect the claims due them; xxx Total Legitime P550,000

Rescissible contracts may be contracts made in fraud of creditors. The donation Is there an impairment of legitime? None.
here is a contract. Unless you can prove that this donation or contract was made
in fraud of creditors, this is not rescissible. Even if it is rescissible, the I need P550,000 but actual estate is P530,000 only. B will not get P100,000; he
prescriptive period for rescissible contracts is 4 years. If the donation has nothing will only get P30,000. Deduct the P70,000 donated to B from P300,000.
to do with the insolvency, you cannot touch it. But if you want to make the
donation liable for the deficit, you have to prove that it was a contract made in LC (A, B, C) (P100,000 each except B) P230,000
fraud of creditors. Assuming you did, you have a prescriptive period of 4 years. SS 100,000
Generally, you cannot bring the donation up to answer for the deficit. IC (D, E, F) (P50,000 each) 150,000
Total Legitime P480,000
The theoretical estate is virtually the donation: P20,000,000/2 = P10,000,000. I
give to each child P5,000,000.
Free portion is P50,000.
LC P10,000,000
If the problem says, “distribute the legitime,” you have to state this, if any
SS 5,000,000
because Legitime + Free Portion = Net Estate.
IC 2,500,000
Total P17,500,000
If the problem says, “distribute the estate,” there should be nothing left.
If the donee cannot be found anymore, or is insolvent, or died, the compulsory Art. 908 should be connected with Art. 911. Art. 911 talks about the order of
heirs get nothing. preference to the hereditary estate.
General rule: Donations are collationable Art. 911. After the legitime has been determined in accordance with the three
preceding articles, the reduction shall be made as follows:
Exception: Art. 1061. Every compulsory heir, who succeeds with other
compulsory heirs, must bring into the mass of the estate any property or right (1) Donations shall be respected as long as the legitime can be covered, reducing
which he may have received from the decedent, during the lifetime of the latter, or annulling, if necessary, the devises or legacies made in the will;
by way of donation, or any other gratuitous title, in order that it may be
computed in the determination of the legitime of each heir, and in the account of (2) The reduction of the devises or legacies shall be pro rata, without any
the partition. distinction whatever.

If the testator has directed that a certain devise or legacy be paid in preference to
GING$!$$ 61$
others, it shall not suffer any reduction until the latter have been applied in full to
the payment of the legitime.
(3) If the devise or legacy consists of a usufruct or life annuity, whose value may
be considered greater than that of the disposable portion, the compulsory heirs
may choose between complying with the testamentary provision and delivering to
the devisee or legatee the part of the inheritance of which the testator could freely
dispose.
In our case, we have a net estate of P530,000 and a donation of P70,000. Who do
you have to pay first in this situation? Art. 911 says pay legitime first (P230,000 +
100,000 + 150,000 = P480,000). The legitime to be paid is P480,000. What you
may want to do to avoid confusion is to write a running balance. If there is still an
amount left, then you honor the donations that were given in the past. Then, pay
the legacies and devises. Pay the preferred first before all other legacies and
donations. Then, the rest is free portion.
but the estate is not enough.
Art. 950. If the estate should not be sufficient to cover all the legacies or devises,
their payment shall be made in the following order:
(1) Remuneratory legacies or devises;
How do you know it is remuneratory? If the legacy was given to recompense a
person for prior meritorious service without constituting a debt.
(2) Legacies or devises declared by the testator to be preferential;
How do you know that they are preferred? It must be stated that it is a preferred
legacy.
(3) Legacies for support;

P600,000 How do you know it is for support? It must be stated, “I am giving you x amount
Pay legitime P480,000 of money for your support.”
70,000 550,000
Free Portion P50,000 (4) Legacies for education;

Supposing the payment of legitime reached P550,000 and then you have a How do you know it is for education? The legacy specifies that it is for education.
donation of P70,000. This means you have to pay P620,000 but you only have
P600,000. You already know there is a deficiency and the donation impaired the (5) Legacies or devises of a specific, determinate thing which forms a part of the
legitime. estate;

P600,000 How do you know it is specific property? The property is identified. Legacy or
Pay legitime P550,000 device can refer to generic property. I could say in my will “I am giving you a car
70,000 620,000 worth P200,000.” It could be any car worth P200,000. But if I say this particular
car, then this is a legacy of specific property.
In this case, you have to pay the legitime of P550,000 but you only have
P530,000. There is a deficit of P20,000 to make the P550,000. Donation is (6) All others pro rata.
affected.
As you reach this, all others are equal.
P600,000
Pay legitime P550,000 530,000 In credit transactions, this is also the order of preference of credits. Each of these
legacies will have a value. When you add up all the values…
(20,000)
P550,000
If net estate is greater than the subtotal, then Art. 950 is irrelevant because you
can pay everybody.
Art. 908 applies only when there are compulsory heirs. Otherwise, if there are no
compulsory heirs, the calculation of the estate will be: But if the subtotal is greater than the net estate, then you have to apply Art. 950
because you will have to follow the order of preference in the payment of these
Assets - debts - taxes = Net estate, divide the net estate legacies and devises.
No collation because collation is only meant to protect the legitime and without Remember Art. 950 is used only when there are no compulsory heirs.
compulsory heirs, there are no legitimes to be protected.
If there are compulsory heirs: pay legitimes, donations, preferred legacies and
Art. 911 says the order of preference and order of reduction. What if there are no devises, and then all others get paid pro rata if the estate is not enough.
compulsory heirs, there are legacies and devises, debts and taxes have been paid,

GING$!$$ 62$
Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of
his legitime, for causes expressly stated by law.
Why is there disinheritance? Because there compulsory succession, legitime,
compulsory heir. Without these, there would be no disinheritance because this is
the only process provided by law where the legitime of a compulsory heir can be
withdrawn or denied.
By disinheritance, there is a deprivation of legitime.
Requisites for a disinheritance to be valid: (the requisites vary from one
commentator to another)
1. For a cause expressly stated in the will
The only way you can disinherit, the only forum of disinheritance, is to put it in a
will, whether it is notarial or holographic. In the will, it is important that you
explicitly state the cause for the disinheritance.
Art. 916. Disinheritance can be effected only through a will wherein the legal
cause therefor shall be specified.
2. The will must be extrinsically valid
This means the will must be admitted to probate. You may have a valid reason to
disinherit a compulsory heir so you wrote a will but you forgot the formalities in
Arts. 804- 810, then the will cannot be admitted to probate and the contents of
that will cannot be given effect including the disinheritance.
3. Specify a ground that is explicitly provided by law and these grounds are
exclusive.
Disinheritance is in the form of penalty for certain infractions of the law or
violations committed by an heir. Since it is punitive, the grounds are exclusive.
4. The cause must be true AND certain (some commentators add this
requirement)
True: This implies that if a cause is true, that means it must be proved. You
cannot just allege it. In our procedural law, if an averment is made which is
contrary to the interest of another party and the other party does not rebut, there
is deemed admission. So if a compulsory heir is charged with an offense for
which there is disinheritance, and that person does not contest the truthfulness
of that ground, then he stands to be disinherited because he is deemed to have
admitted the truthfulness of the accusation.
Certain: that it is actual, not hypothetical or conditional. The ground must exist
in fact. If you want to write a will and you will include a provision, "I will
disinherit all my children if they try to kill me," that is void because the ground
does not exist, is not factual nor certain. You cannot write a disinheriting clause
saying that “I will disinherit my child if my wife approves” because then, you
GING$!$$
make it conditional. When you impose the penalty of disinheritance, there must
be a factual basis or ground explicitly provided by law.
5. The disinheritance must be total (Jurado adds this requirement)
Disinheritance is the total cutting off of a compulsory heir not only from the
legitime but from the entire estate such that the proposition of Justice Jurado is
that you cannot write a disinheriting clause and say, “for making an attempt on
my life you will only get half of your legitime.” All or nothing!
6. The disinherited heir must be clearly identified (some authorities would add
this)
If you do not identify the disinherited heir, and you may be claiming an offense to
have been committed against you, you may have been alluding to an offender but
you did not identify the offender.
7. The disinheriting clause must be in a will which is not only valid but also
subsisting (some authorities would add this)
If the will that contains the disinheriting clause is revoked in its entirety, the
disinheritance will not be valid. If you revoke a will, it follows that all the
components of that will are also revoked. If you want to completely change the
will without revoking the disinheriting clause, then you revoke everything except
the disinheriting clause.
Some principles commentators agree upon:
• Disinheritance can only happen in testamentary succession. There is no
such thing as disinheritance in intestacy.
• A disinherited heir has to be a compulsory heir. If not, he is not even
entitled to legitime. Therefore, if you don’t want to give anything to that
person, you don’t even have to say anything because he is not entitled to
anything as a matter of law.
• When you disinherit a compulsory heir, you’re cutting him off from the
legitime, which the portion of estate reserved for compulsory heirs, for a
cause that is provided by law, true, serious, you can prove and shows that
this disinherited heir does not deserve to be given anything.
• If the disinheritance is valid and the will is admitted to probate, he gets
nothing under the will, not even the legitime. Supposing the testator did
not distribute everything under the will, and there is something left that
will be distributed by intestacy, can this disinherited heir participate in
the intestate distribution? No, because he has committed a grievous
offense.
• Supposing there is an antecedent will to that containing the disinheriting
clause. A previous will was made where he may have been a beneficiary
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 and then a codicil is written where he disinherited that particular heir.
While nothing is said of the prior will, the disinherited heir cannot claim
anything under the prior will. Even if the prior will’s disposition were not
explicitly revoked by the testator.
• The ground must be true so it must be proved. Who has the burden of
proof? Whoever wishes to enforce the disinheritance.
Art. 917. The burden of proving the truth of the cause for disinheritance shall rest
upon the other heirs of the testator, if the disinherited heir should deny it.
Art. 918. Disinheritance without a specification of the cause, or for a cause the
truth of which, if contradicted, is not proved, or which is not one of those set
forth in this Code, shall annul the institution of heirs insofar as it may prejudice
the person disinherited; but the devises and legacies and other testamentary
dispositions shall be valid to such extent as will not impair the legitime.
Art. 918 talks about 3 forms of disinheritance which are void:
1. disinheritance without stating the cause
2. disinheritance where the cause is not proved
3. disinheritance for a cause not provided by law
Effect: annuls the institution only if there is prejudice to the legitime or to the
disinherited heir. It can go beyond the annulment of the institution. It can
include an annulment and abatement of legacies and devises but only if they are
inofficious.
• Consequences of Arts. 854 (preterition), 906 (completion of legitime) and
918 (attempt to disinherit but disinheritance is void)
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution
shall be effectual, without prejudice to the right of representation.
Art. 906. Any compulsory heir to whom the testator has left by any title less than
the legitime belonging to him may demand that the same be fully satisfied.
Art. 854: the moment you prove preterition, you annul the institution of heirs in
its entirety.
Art. 906: When somebody does not receive the complete legitime and he is
entitled to completion, you get first the completion from whatever is left in the
estate that was not distributed by will. If there is none, or if that is insufficient,
GING$!$$
you annul the institution, not in its entirety, but only to the extent necessary to
complete the legitime. If there is no institution to be annulled, that is the only
time you go after devises and legacies.
Art. 918: Legacies and devises (specific things, the preference) enjoy a greater
degree of protection because it is the last to take a hit. The first to take a hit is the
institution of heirs (nothing in particular but only a fraction).
In Art. 918, you look first at the properties not disposed of in the will. If there is
none, or if that is insufficient, you annul the institution, not in its entirety, but
only to the extent necessary to bring back the legitime of the compulsory heir. If
that is still not enough, that is the time you go after the legacies and devises.
What is the inference of Art. 918? An heir whose disinheritance is not valid
recovers legitime because it is a statutory entitlement.
Supposing Ernest was disinherited on the ground of living a disgraceful life. If
this cause is not proved or true, the disinheritance is void (Art. 918). What if the
will contains nothing but the disinheritance only? Nothing was distributed.
What if there is disinheritance, several institutions, legacies and devises, but
some properties were left that will be distributed by intestacy. Will the
disinherited heir participate in the distribution of the excess in addition to
legitime?
2 schools of thought:
Conservative view of the Civil Code: the intent of the testator to exclude the heir
from the estate is clear and indubitable. The remedy of Art. 918 is to recover the
legitime. But the fact remains that the testator does not want to give anything to
the disinherited heir. There is no basis to make this person participate in the
distribution of anything that remains after the payment of legitime.
Another school of thought: if the disinheritance is void, it cannot produce effect.
If the disinheritance is void, it takes nothing away from the disinherited heir.
You have an estate P225,000 and legitimate children A, B, C. A is disinherited
but the cause is not stated and therefore, it is void.
If A was disinherited and there is no other provision in the will, how will you
distribute P225,000? Art. 918, you have to give legitime. Legitime of the children
is P112,500. There will be P112,500 left after distribution of legitime. This is
unresolved.
Free Portion
Legitime (P112,500)
(P112,500) If it does not affect If he is only entitled to the
him recovery of his legitime
A P37,500 P37,500 ---
B P37,500 P37,500 P56,250
C P37,500 P37,500 P56,250
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Art. 919 discusses the grounds for disinheritance of descendants.
Art. 919. The following shall be sufficient causes for the disinheritance of children
and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;
This is ground for the disinheritance of a descendant. Attempt on the life of the
testator (father of the disinherited heir), his spouse (mother), ascendants
(grandparents) or descendants (siblings/nephews/nieces). The disinherited heir
must be found guilty of parricide.
This presupposes that there has been a criminal charge because the only way you
can be found guilty by final judgment is if you were charged criminally. If despite
the fact that you killed your sibling (parricide), but you were not charged, you
cannot be disinherited because it must be by final judgment.
If you were charged today because you committed a crime yesterday, you are not
going to get a conviction by final judgment tomorrow. It will take time. You will
be charged. When you are charged, you will go through the process. Even if you
were convicted by the RTC, that conviction is appealable. If it is appealed, you
don’t have a final judgment. CA affirms. You can still go up to the SC especially if
the penalty imposed is a capital offense (automatic review) and it will not reach
the stage of finality until after there is an entry of judgment. That is the time the
judgment becomes final.
There is a period of time to get the final judgment. It does not mean that you can
only be disinherited after final judgment. You can be disinherited the day you
committed the offense. It is sufficient for you to be disinherited that the final
judgment came much later.
In 1980, a child was accused of killing his mother. The father disinherited him
but there is no final judgment yet. You will wait for the finality of the conviction
so that the disinheritance could be implemented. In the meantime, the father
died. You cannot say that he is disinherited because there is no final conviction.
Neither can say that the disinheritance has no effect because the father has
already died and the succession has opened. What you should do is to hold the
legitime in abeyance. Distribute everything but keep something there through the
administrator or executor so that if the judgment is reversed, you pay legitime. If
affirmed, the amount set aside for him should be distributed to the other heirs.
You don’t need to have the final judgment at the time you executed the will.
The parricide contemplated here is intentional. It is possible to have killed
without an intention to kill (ex. homicide through reckless imprudence). Exclude
death resulting from reckless imprudence because there is no intention there.
Also bear in mind in our RPC, there are such things as justifying circumstances
(no crime and no criminal; even if there is an attempt on the life, there is no
ground to disinherit) and exempting circumstances (there may be a crime but
there is no criminal).
GING$!$$
3 levels of participation in the commission of a crime: principal, accomplice, or
accessory. Whether you are a principal, accomplice or accessory, it will not make
any difference. As regards the principal, it does not matter that he is a principal
by direct participation, by inducement, or by indispensible cooperation, you fall
within the ground for disinheritance.
If an attempt is already a ground, more so are frustrated and completed offenses.
In an attempted on the life of the spouse, the spouse must be married to the
testator (not just a mistress).
The ascendants of the testator are his parents (the grandparent of the
disinherited heir) and grandparents (great grandparents of the disinherited heir).
The descendants of the testator are those in the linear relationship by
consanguinity. This spreads out.
(2) When a child or descendant has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the accusation has been
found groundless;
You accuse the testator of a crime punishable by imprisonment of 6 years or
more (the crime should carry with it the penalty of prision correccional) and the
accusation is found groundless.
Groundless - no basis. Acquittal is based on innocence. This refers to fabricated
charges.
If there is an accusation criminal in nature and the testator was acquitted on the
basis of insufficiency of evidence and therefore reasonable doubt, there is no
ground to disinherit because the accusation is not baseless. If the testator is
acquitted on account of an exempting circumstance, then the accusation is not
baseless. The accusation is based on an exempting circumstance.
(3) When a child or descendant has been convicted of adultery or concubinage
with the spouse of the testator;
The child is convicted by final judgment of concubinage or adultery with the
spouse of the testator. This is the mother or stepmother of the disinherited heir.
There must be a judgment by final conviction. Again, at the time of the execution
of the will, it is enough that the crime has been committed even if the final
judgment may come later.
(4) When a child or descendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
The child used fraud, violence, undue influence, or intimidation to make the
testator write a will or to revoke one that he has already made.
When you force a testator to write a will against his will or to change one that he
65$
has already made, you committed an act which is a ground for disinheritance.
Therefore, there must be a subsequent will where you are disinherited. In the
subsequent will, the testator must revoke the prior will.
He was forced to write the prior will. If he was forced, everything written there
was also written under force. The testator disinherited the heir in a separate will.
It will be grotesque if he executes a second will only to disinherit and not to
revoke the prior will.
(5) A refusal without justifiable cause to support the parent or ascendant who
disinherits such child or descendant;
The child refuses to give support to the parent or ascendant without just cause.
Support is anything that is indispensable to survival. This includes food, clothing,
shelter, medical attention, education, and transportation. Not everybody is
entitled to support. Support is demandable only if it is required. If the parents do
not need support, or the child has no means to give support, there is no ground
for disinheritance. It is a question of necessity of the supported and the finances
of the supporter.
Even if there is an obligation to give support, there are cases where support may
be justly denied as when the child was abused or abandoned.
(6) Maltreatment of the testator by word or deed, by the child or descendant;
Seangio vs Reyes: maltreatment by word or by deed. Seangio is the first case
that gave us insight to what maltreatment is all about. The father disinherited the
eldest son in a will because the son said hurtful things to him (“ngayon nasa itaas
ka, bukas ano naman”), the son took the clients of the travel agency of the father,
and the son disgraced him by borrowing money from Chinabank and not paying
back. This constitutes maltreat by words.
(7) When a child or descendant leads a dishonorable or disgraceful life;
What kind of a disgrace is sufficient to cause a testator (ascendant) to disinherit a
child? The disgraceful or dishonorable life brings disrepute to the family that
causes embarrassment to the father that justifies the disinheritance of the child.
The way of life itself is dishonorable and disgraceful. To what extent must the
disrepute be? How many times do you do it for it to constitute a lifestyle? What
constitutes disgraceful and what constitutes dishonorable?
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
The child was convicted by final judgment with accessory penalty of civil
interdiction. What offenses will carry the accessory penalty of civil interdiction?
Civil interdiction is automatic in capital offenses (life imprisonment or death).
Art. 920 discusses the grounds for disinheritance of ascendants.
Art. 920. The following shall be sufficient causes for the disinheritance of parents
GING$!$$
or ascendants, whether legitimate or illegitimate:
(1) When the parents have abandoned their children or induced their daughters
to live a corrupt or immoral life, or attempted against their virtue;
Abandonment of a child – this does not require criminal abandonment. It is
sufficient that a parent completely reneges the performance of his parental
obligations. Example: does not give support, did not let the child go to school, did
not give medicine to the child.
A daughter can disinherit a parent for inducing the daughter to live a corrupt or
immoral life. The law specifically says “daughter.” The Code was enacted in 1930;
gay bars and macho dancers were not yet rampant those days. But there is no
reason why this ground should not apply to sons.
Attempt against virtue. The new rape law now applies to men.
(2) When the parent or ascendant has been convicted of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;
Attempt on the life of the child, his spouse, descendants or ascendants. Here is a
child seeking to disinherit the parent. The parent attempts to kill the child, or the
spouse of the child, or the descendants of the child.
When a parent disinherits a child, it spreads out more because the sibling of the
child is also a descendant. On the other hand, when a child disinherits a parent,
the only relatives counted are those in the lineal going down.
If the child makes an attempt on the brother, it is good to understand how many
people can disinherit him. He could lose parental authority if he has children.
(3) When the parent or ascendant has accused the testator of a crime for which
the law prescribes imprisonment for six years or more, if the accusation has been
found to be false;
This is false accusation.
(4) When the parent or ascendant has been convicted of adultery or concubinage
with the spouse of the testator;
Committing adultery or concubinage with the spouse of testator (daughter-in-law
or son-in-law).
(5) When the parent or ascendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
Forcing a testator to write a will or change one already made.
(6) The loss of parental authority for causes specified in this Code;
Can a child still use as a ground to disinherit a parent the loss of parental
66$
authority? FC does not contain any provision on loss of parental authority. It has:
termination, suspension and deprivation. None of which is synonymous to loss.
Under our present law, parental authority cannot be lost, then ground (6) in Art.
920 cannot be given effect because the antecedent law on which Art. 920(6) were
all repealed.
Before the advent of the NCC, this ground is clear. The Civil Code has a section
on loss of parental authority. There are grounds where a person can lose parental
authority and in all cases, the laws of parental authority must be by virtue of a
judicial decree.
Art. 330. The father and in a proper case the mother, shall lose authority over
their children:
(1) When by final judgment in a criminal case the penalty of deprivation of said
authority is imposed upon him or her;
(2) When by a final judgment in legal separation proceedings such loss of
authority is declared.
In the Civil Code (this is already repealed), Art. 303 says you lose parental
authority and therefore there is a ground to disinherit an ascendant if it is by
virtue of a final judgment in a criminal case where parental authority is decreed
lost. In the same article, a parent loses parental authority in the case of legal
separation where the offending spouse is deprived of such authority.
Art. 332. The courts may deprive the parents of their authority or suspend the
exercise of the same if they should treat their children with excessive harshness
or should give them corrupting orders, counsels, or examples, or should make
them beg or abandon them. In these cases, the courts may also deprive the
parents in whole or in part, of the usufruct over the child's property, or adopt
such measures as they may deem advisable in the interest of the child.
In Art. 332, parental authority can be lost if the parent treats the child with
excessive harshness or should give the child corrupt orders and counsel. All
requires judicial decree.
Those two provisions (Arts. 330 and 332) deals with loss of parental authority.
Both have been repealed by Family Code Arts. 228, 229, 230, 231, and 232.
Chapter 5. Suspension or Termination of Parental Authority
Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child.
Art. 920(6) of NCC talks of loss of parental authority. Art. 228 of FC says parental
GING$!$$
authority terminates upon the death of the parent, the death of the child or
emancipation of the child. Termination (comes to an end) of parental authority,
not loss. That seems to be irrelevant for the purpose of disinheritance because
these are natural phenomenon.
Art. 229. Unless subsequently revived by a final judgment, parental authority
also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in a case filed for the
purpose;
(4) Upon final judgment of a competent court divesting the party concerned of
parental authority; or
(5) Upon judicial declaration of absence or incapacity of the person exercising
parental authority.
In Art. 229, there are additional grounds mentioned for terminating parental
authority. First ground: adoption of a child. Can this be a ground for
disinheritance? No. Second: appointment of a general guardian over the child. If
the child becomes insane and you are not in a position to supervise him, there is
nothing wrong with putting him under judicial guardianship. This child wins in
the lotto, the parents are both illiterate. There is nothing wrong in placing the
child under guardianship so the guardian will manage the property of the ward.
It seems there is still no ground to disinherit the parent. Third: judicial
declaration of abandonment of a child. This is already covered by Art. 920(1).
This is a ground for disinheritance. Fourth: final judgment divesting parental
authority. There are many reasons why parental authority will be divested and
not all grounds are culpable. Fifth: judicial declaration of absence or incapacity of
parent. It is not the fault of the parent that he is missing in action or that there is
a presumption of his death.
Nevertheless, the ground for disinheritance speaks of loss of parental authority.
Art. 228 and 229 do not speak of loss but it speaks of termination. There is a
world of difference of terminating and losing parental authority. Thus,
termination of parental authority is not a ground for disinheritance.
Art. 230. Parental authority is suspended upon conviction of the parent or the
person exercising the same of a crime which carries with it the penalty of civil
interdiction. The authority is automatically reinstated upon service of the penalty
or upon pardon or amnesty of the offender.
In Art. 230, the FC introduces us to the concept of suspending parental authority.
First ground: the conviction of a parent of a crime that involves civil interdiction.
What would be the difference between losing parental authority and suspending
parental authority? Parental authority is suspended if you are imprisoned with
accessory penalty of civil interdiction because you are expected to stay there over
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a long period of time. The authority is automatically restored upon service of
sentence or upon pardon or amnesty. It is restored because you are released. If
you have a 15-year old child under parental authority and you were convicted for
a capital offense and you are to serve 20 years, how can the parental authority be
restored if before you are released, you would have been very old already? The
suspension of parental authority in Art. 230 is premised upon the physical
absence of the father or mother on account of incarceration. You cannot execise
because you are serving jail term. In short, the parental authority is suspended
because you were incarcerated, not because you did something wrong to the
child. If that is the premise, then Art. 230 cannot be invoked as a ground to
disinherit a parent.
Art. 231. The court in an action filed for the purpose in a related case may also
suspend parental authority if the parent or the person exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of lasciviousness.
The grounds enumerated above are deemed to include cases which have resulted
from culpable negligence of the parent or the person exercising parental
authority.
If the degree of seriousness so warrants, or the welfare of the child so demands,
the court shall deprive the guilty party of parental authority or adopt such other
measures as may be proper under the circumstances.
The suspension or deprivation may be revoked and the parental authority revived
in a case filed for the purpose or in the same proceeding if the court finds that the
cause therefor has ceased and will not be repeated.
Art. 231 talks of culpable suspension of parental authority. It cannot be said that
the parental authority was lost because it was only suspended. This suspension
may be lifted if the court is convinced that the parent has reformed. The grounds
for loss of parental authority in the Civil Code are similar to the grounds given
here. Those grounds are considered grounds to disinherit an ascendant if
parental authority is lost. In the new law, parental authority is not lost, it is
merely suspended.
If there is a decree suspending your parental authority because you treat the child
with excessive harshness (Art. 231), can the child disinherit the father? No,
because parental authority was not loss, it was merely suspended.
Art. 232. If the person exercising parental authority has subjected the child or
allowed him to be subjected to sexual abuse, such person shall be permanently
deprived by the court of such authority.
GING$!$$
In Art. 232, the deprivation of parental authority is permanent if the person
exercising the same should subject the child or allow the child to be subjected to
sexual abuse
The terms referred to in the FC: termination, suspension, deprivation.
Art. 920(6) talks of loss. Loss of parental authority is not the same as giving cause
for the loss of parental authority. The latter is not a ground to disinherit an
ascendant. So under the old law, if a father maltreats the child, the child cannot
claim disinheritance under paragraph (6) because there was no decree declaring
the father to have lost his parental authority. But there was a ground. Giving
ground for loss of parental authority is not sufficient to disinherit a father. The
actual loss is what constitutes a ground for disinheritance.
Art. 233. The person exercising substitute parental authority shall have the same
authority over the person of the child as the parents.
In no case shall the school administrator, teacher of individual engaged in child
care exercising special parental authority inflict corporal punishment upon the
child.
(7) The refusal to support the children or descendants without justifiable cause;
Refusal to give support.
(8) An attempt by one of the parents against the life of the other, unless there has
been a reconciliation between them.
You can disinherit your parent if your parent attempted on the life of the other
parent. If they reconciled, you cannot disinherit anymore.
Art. 921. The following shall be sufficient causes for disinheriting a spouse:
(1) When the spouse has been convicted of an attempt against the life of the
testator, his or her descendants, or ascendants;
(2) When the spouse has accused the testator of a crime for which the law
prescribes imprisonment of six years or more, and the accusation has been found
to be false;
(3) When the spouse by fraud, violence, intimidation, or undue influence cause
the testator to make a will or to change one already made;
(4) When the spouse has given cause for legal separation;
The mere “giving of cause” for legal separation is sufficient for the innocent
spouse to disinherit the offending spouse.
A child cannot disinherit a parent unless parental authority is in fact loss. But the
innocent spouse can disinherit the guilty spouse if the latter gave cause for legal
separation even if legal separation was not granted.
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This is based on legal separation on the Civil Code. 2 grounds for legal
separation: (1) attempt on life, and (2) adultery and concubinage. The mere fact
that you committed any of those is sufficient for the other spouse to disinherit
you.
Art. 55 of the FC are the grounds for legal separation giving cause for which is a
ground to disinherit. There are now 10 grounds for legal separation. When you
refer to disinheritance of a spouse, the mere giving of a cause for legal separation
is sufficient to justify disinheritance.
Art. 55. A petition for legal separation may be filed on any of the following
grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the
petitioner [spouse], a common child, or a child of the petitioner [spouse];
(2) Physical violence or moral pressure to compel the petitioner [spouse] to
change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner [spouse], a
common child, or a child of the petitioner [spouse], to engage in prostitution, or
connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six
years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether
in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner [spouse]; or
(10) Abandonment of petitioner [spouse] by respondent without justifiable cause
for more than one year.
For purposes of this Article, the term "child" shall include a child by nature or by
adoption.
Art. 921 refers to 5 grounds for disinheritance. One of them expands to 10.
Therefore, to disinherit a spouse, you have a menu of 14 grounds.
(5) When the spouse has given grounds for the loss of parental authority;
You go back to the prior article. In the disinheritance of a parent, it is not giving
cause for loss of parental authority. It says loss of parental authority. So if you
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lost parental authority, your child can disinherit you. But by mere giving of a
cause, your spouse can disinherit you. However, our Family Code does not talk
about loss of parental authority. It now talks of termination, suspension and
deprivation of parental authority.
(6) Unjustifiable refusal to support the children or the other spouse.
Art. 922. A subsequent reconciliation between the offender and the offended
person deprives the latter of the right to disinherit, and renders ineffectual any
disinheritance that may have been made.
If you disinherit, and then they reconciled, the disinheritance is voided. What is
to reconcile? The commentators have different views:
• The mere fact that they have become civil to each other does not
constitute reconciliation.
• They don't have to be intimate to say that they have reconciled.
The common understanding is: somewhere between being civil and being
intimate, you find a middle ground. For you to be able to prove reconciliation:
they restored their feelings. They don’t have to be intimate but it is more than
just being civil. The reconciliation that will obliterate the effects of disinheritance
goes beyond being civil to each other.
Art. 923. The children and descendants of the person disinherited shall take his
or her place and shall preserve the rights of compulsory heirs with respect to the
legitime; but the disinherited parent shall not have the usufruct or
administration of the property which constitutes the legitime.
A disinherited heir can be represented.
T disinherited S. S loses legitime. The legitime of S can be passed on to his
children by right of representation.
Legacies and devises (Arts. 924-959)
Art. 924. All things and rights which are within the commerce of man be
bequeathed or devised.
Art. 925. A testator may charge with legacies and devises not only his compulsory
heirs but also the legatees and devisees.
The latter shall be liable for the charge only to the extent of the value of the legacy
or the devise received by them. The compulsory heirs shall not be liable for the
charge beyond the amount of the free portion given them.
Art. 926. When the testator charges one of the heirs with a legacy or devise, he
alone shall be bound.
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Should he not charge anyone in particular, all shall be liable in the same case of eviction, if the thing is indeterminate and is indicated only by its kind.
proportion in which they may inherit.
Only refers to legacies that are indeterminate.
Who are liable for the payment of legacies and devises. The testator says “I am
giving P1,000,000 legacy to X.” who pays the legacy? The executor of the will Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in the
because the P1,000,000 will have to come from the estate of the deceased person. thing bequeathed, the legacy or devise shall be understood limited to such part or
interest, unless the testator expressly declares that he gives the thing in its
“I gave a parcel of land to A.” Who will deliver? The executor will deliver and the entirety.
delivery will come after the will is probated, all debts are paid, taxes are paid,
heirs have been identified and a project or partition is agreed to by everybody Art. 930. The legacy or devise of a thing belonging to another person is void, if
and the approved by the court. the testator erroneously believed that the thing pertained to him. But if the thing
bequeathed, though not belonging to the testator when he made the will,
There is also sublegacy or subdevise. Supposing T says, “I institute X to get 1/2, Y afterwards becomes his, by whatever title, the disposition shall take effect. (862a)
1/3 and Z 1/6.” They are instituted heirs. But then T says, “X, you get 1/2 but you
have to give a legacy of P10,000 to L.” Who pays this legacy? X. This is what is Art. 931. If the testator orders that a thing belonging to another be acquired in
called a sublegacy where the responsibility for the payment is given not as a order that it be given to a legatee or devisee, the heir upon whom the obligation is
charge to the estate but as a charge against the beneficiary. If what X gets is more imposed or the estate must acquire it and give the same to the legatee or devisee;
than P10,000, he has to give the legacy. But you cannot compel X to shell out an but if the owner of the thing refuses to alienate the same, or demands an
amount of money that is greater than his share. But when you charge a excessive price therefor, the heir or the estate shall only be obliged to give the just
compulsory heir with a sublegacy, just make sure you gave him something more value of the thing.
than legitime because legitime cannot be subject to a sublegacy.
A testator who does not own a thing can nonetheless give it as a legacy or devise.
The net estate of the testator after debts and taxes is P234,000. He instituted A, If he gave something by way of legacy or devise on the basis of an erroneous
B, C, his children/compulsory heirs, as the universal heirs. A – 1/6; B – 1/3; C – belief that he owns the thing, the legacy is void except if he subsequently owns it.
1/2. Collectively, they have to pay A a legacy of P60,000.
If he knew he did not own it and nonetheless instructed in his will that it be given
Heir Share Legitime Legacy Difference to a particular person, some people would refer to Art. 931 and say if he knew
A 1/6 = 39 -10 = 29 (legitime is impaired) that the thing did not belong to him but still he gave it away, it shows to us that
B 1/3 = 78 -20 = 58 the testator wants the executor to buy that thing for it to be given to the legatee.
C 1/2 = 117 -30 = 87
Contrary view: Tolentino and Paras: Both of them say that to invoke the
Since the legitime is impaired (legitime must be 39), this computation is wrong. instruction to acquire under Art. 931, the testator must categorically give an
instruction to purchase that property and therefore, Art. 931 does not and cannot
You can only charge the legacy to whatever they receive as voluntary heirs. The apply to a situation where the testator did not make a categorical instruction.
legacy cannot be a charge to the legtime.
Art. 932. The legacy or devise of a thing which at the time of the execution of the
Heir Share Legitime (minus legitime) Free Portion Legacy will already belonged to the legatee or devisee shall be ineffective, even though
A 1/6 = 39 Do not touch this anymore another person may have some interest therein.
B 1/3 = 78 -39 = 39 -20
C 1/2 = 117 -39 = 78 -40 If the testator expressly orders that the thing be freed from such interest or
117 1:2 encumbrance, the legacy or devise shall be valid to that extent.

39 * 60 = 20 78 * 60 = 40 The legacy is already owned by the legatee and therefore, has no effect.
117 117
Art. 933. If the thing bequeathed belonged to the legatee or devisee at the time of
Art. 927. If two or more heirs take possession of the estate, they shall be solidarily the execution of the will, the legacy or devise shall be without effect, even though
liable for the loss or destruction of a thing devised or bequeathed, even though it may have subsequently alienated by him.
only one of them should have been negligent.
If the legatee or devisee acquires it gratuitously after such time, he can claim
Art. 928. The heir who is bound to deliver the legacy or devise shall be liable in nothing by virtue of the legacy or devise; but if it has been acquired by onerous
title he can demand reimbursement from the heir or the estate.
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Art. 934. If the testator should bequeath or devise something pledged or
mortgaged to secure a recoverable debt before the execution of the will, the estate
is obliged to pay the debt, unless the contrary intention appears.
The same rule applies when the thing is pledged or mortgaged after the execution
of the will.
Any other charge, perpetual or temporary, with which the thing bequeathed is
burdened, passes with it to the legatee or devisee.
Pledges and mortgages prior to the execution of the will must be discharged by
the testator unless a contrary intention appears. Any other charge, perpetual or
temporary, with which the thing bequeathed is burdened, passes to the legatee or
devise.
Pledges and mortgages must be discharged by the testator so that the property
will be delivered to the devisee or legatee clear of the pledge or mortgage. But in
the second sentence, all other charges, whether perpetual or temporary, will not
have to be discharged and therefore those charges will go with the property as it
is received by the legatee or devisee.
What are those pledges and mortgages? A great majority of commentators say
that these pledges and mortgages that must be discharged by the testator are
pledges and mortgages constituted as security for the repayment of a man in
debt. It is made to secure a money debt of the testator. It makes sense because
how can you give the thing pledged or mortgaged to the beneficiary if you have
not paid the debt secured by the same. Art. 908 says you get the value of all the
assets, pay the debts, pay the taxes, and then you have your net estate. If part of
this is security for the debt, then you really have to pay the debt or else you will
not be able to give the devise or legacy.
Art. 908. To determine the legitime, the value of the property left at the death of
the testator shall be considered, deducting all debts and charges, which shall not
include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all donations
by the testator that are subject to collation, at the time he made them.
Can there be mortgages or pledges constituted without a debt? Yes. A mortgage
or pledge is an accessory contract. As an accessory, it must have an antecedent
principal obligation without which the pledge or mortgage cannot exist. What is
referred to in that provision is an antecedent debt. But the pledge or mortgage
does not have to secure a debt.
An example is if the obligation is to do. A contractor enters into a contract with A
and tells A he will build A’s house based on your plan. The house will cost
P40,000,000 to complete. When A entered into a contract with a contractor, the
contractor must give a performance bond stating that if the work is not finished
within the period stipulated or if he violates the terms of the agreement, there is a
performance bond in A’s favor that A can call and can recover the monetary
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damages resulting from that breach. The contractor goes to a bonding company
to ask for a P40,000,000 bond. If the contractor does not fulfill, the bonding
company is exposed up to P40,000,000. The bonding company will ask for a
collateral before the performance bond is issued. The collateral given by the
contractor is a real estate mortgage (mortgage on a parcel of land). The
contractor does not owe anything but this mortgage is the collateral for the
performance bond, which means if he does not fulfill his obligation under the
construction agreement, and the client presses a claim against the bond and the
bonding company is forced to pay, then the contractor as the accountable party
must reimburse the bonding company for everything it paid and if you cannot
reimburse, then the collateral will be foreclosed by the bonding company.
If the contractor wrote a will and the parcel of land is given as a devise to one of
his friends, the contractor is not required to discharge the mortgage because he
cannot do so. For as long as the bond is there, he cannot get it from the bonding
company unlike a money debt where the testator will be required to pay.
Assuming that this estate belongs to the contractor, he owes something secured
by a mortgage. The debt must be paid to automatically discharge the mortgage.
But he is a contractor. There is an outstanding performance bond that was issued
for example by Malayan in favor of his client for which he is building a house
worth P40,000,000. The contractor died. Does it mean the contract is
extinguished? No. It will be continued. The performance bond will still be there
until the project is completed and accepted by the owner. Until then, the
performance bond is there and for as long as the performance bond is
outstanding and not released by the owner, the real estate mortgage must stay. Is
there a debt? None. So what is the real estate mortgage securing? The obligation
to do. That is not covered by the provision which says mortgages and pledges
must be discharged.
That provision of law is completely unnecessary because with out without that
law, any collateral intended to secure a money debt must be paid or discharged
because you cannot distribute the estate without paying the debts.
This article deals with legacy of property that is encumbered. This article is
defective because it implies that:
General rule: to discharge lien, the estate must pay the debt.
Exception: when a contrary intention appears.
If the debt is not paid, the lien is not discharged, can you dispose any property in
the estate? No. According to Art. 908, there must be liquidation of all the debts
before there can be distribution.
Liens constituted to secure a recoverable debt must be discharged so that the
beneficiary can get clean title to the property unless the testator provides
otherwise. This provision has 2 defects:
(1) "unless the testator provides otherwise"
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Can the testator say that he will not pay for the debt? No because the obligation
to pay the debt is enshrined in the law. More importantly, no disposition can be
made unless all debts are paid. This is defective because this creates a false
impression that the testator can countermand the payment of the debt.
What the lawmakers probably meant is: the executor will make a payment to
discharge the debt unless the testator states that it is somebody else who will
make the payment. But to say that the payment can be dismissed or disregarded
is not correct. Somebody must pay. For this caveat to make sense, it means that
unless the testator directs that the legatee or devisee is obligated to make a
payment.
(2) "recoverable debt"
There is no such thing as a non-recoverable debt. If it is not recoverable, it is not
a debt. The synonym of debt is an obligation. An obligation is a juridical necessity
to give, to do or not to do. There is a legal necessity to perform an obligation or to
discharge a debt. If the debt is not recoverable by the creditor, perforce, it is not
an obligation or a debt. It is a contradiction in terms.
Would you consider a prescribed debt a recoverable debt? Yes. It is a payment
obligation. If the debtor knowingly pays a prescribed debt, the payment is valid.
Then, the debt was recovered.
Recoverable debt is a payment obligation.
Example: A was arrested because of child abuse. Since he cannot pay bail, he will
be put behind bars as a detention prisoner. B went to the bonding company to get
a bail bond. The bonding company is willing to issue a bail bond as long as B
provides a collateral. B brought a title of a land for collateral. A was released. If B
should make a will and in that will B gives to A a devise, is the executor of B
obligated to discharge the obligation so that B gets the property without
encumbrance?
Why are you not required to discharge the mortgage on the property that you
encumbered to get A the bail bond? Supposing the property was not given to A
but to C?
I constituted a mortgage to secure a bondsman to issue a bail bond of my friend.
There is no need to pay the bonding company.
This provision must pertain to a payment obligation because not every obligation
secured by a pledge or mortgage involves the payment of a sum of money.
If I mortgaged my property so that a bonding company will issue a performance
bond in favor of a contractor, I cannot get back the property I mortgaged until
the bond is discharged by the performance of the contractor.
Even if you wanted to pay, the mortgage cannot be discharged until the secured
obligation is performed. In this case, the obligation is not a monetary obligation
but an obligation to do or not to do.
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The recoverable debt we are talking of here is a payment obligation. How do you
prove it? Use the performance bond or bail bond as an example. Even if the
testator wants to discharge the lien, it is impossible to do.
The third paragraph: "Any other charge, perpetual or temporary, with which the
thing bequeathed is burdened, passes with it to the legatee or devisee."
Any other lien constituted by any other obligation will not be discharged and it
will pass to the property. This means that if I mortgage my property to secure a
performance bond and I bequeathed it to my best friend as a devise, he gets the
property as a devise burdened with that encumbrance. Nobody can discharge it
except the party being secured by performing his obligation.
If it was a bail bond, the obligation of the defendant is to show up in court. For as
long as he shows up until the last day, the bail bond will not be confiscated, even
if he is found guilty.
If it was a contractor's performance bond, the contractor simply has to complete
the task and if it is completed, the performance bond will be released. No
payment will cause the discharge of that encumbrance.
Art. 935. The legacy of a credit against a third person or of the remission or
release of a debt of the legatee shall be effective only as regards that part of the
credit or debt existing at the time of the death of the testator.
In the first case, the estate shall comply with the legacy by assigning to the
legatee all rights of action, it may have against the debtor. In the second case, by
giving the legatee an acquaintance, should he request one.
In both cases, the legacy shall comprise all interests on the credit or debt which
may be due the testator at the time of his death.
What is a legacy of a credit? Testator giving away a receivable.
What is a legacy of remission? This is one way of extinguishing an obligation.
"pagpapatawad ng utang" Remission is called debt forgiveness in the U.S. It is the
testator forgiving the debts of a debtor.
General rule in legacies of credit or remission: The rules that will govern the
legacy of remission and legacy of credit will depend whether the legacy of credit
or remission is generic or specific. There are differences in the rules pertaining to
specific and generic legacies.
Will the legacy of a credit or remission include such credits or debts that were
contracted after the making of the will? It depends if the legacy is generic or
specific.
I wrote a will today and said that I am giving my house to A. I don't have a house
today. 10 years from today I acquired a house. Is the house I acquired 10 years
forward is exactly what I meant to give A? No.
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I wrote a will today and said I will give to A my receivables. Today, no one owed
me anything. 10 years from now I have receivables. Will those receivables belong
to A? No. How could I have contemplated giving him a legacy of a property which
is not even mine at the time I wrote the will?
Specific legacy of credit: Testator gives to a legatee a definite and specific
receivable from a particular person at a particular amount due on a particular
date.
If the testator says I have 5 promissory notes owing to me and I am giving you
one of them, this is a specific legacy of a credit.
Specific legacy of remission: What the testator forgave is a specific debt of a
debtor whilst he may have several debts owing to the testator.
If a person has debts to the testator evidenced by 5 promissory notes (5 debts on
5 different occasions) and the testator says I am giving you a remission on the
first promissory note, this is specific legacy of remission. The 4 promissory notes
are still collectible.
If the legacy of credit or remission is specific, it must be a credit that had existed
at the time of the making of the will. If it was a specific legacy of remission, you
cannot abandon or forgive a debt that did not exist at the time you wrote the will.
If the legacy of credit or legacy of remission is generic: "I am giving to you all my
receivables." The testamentary intent is when the testator dies, everything that is
payable to him is yours. If the testator says I am giving you a generic legacy of
remission, it means all you owe the testator at the time of death is forgiven.
Art. 937. A generic legacy of release or remission of debts comprises those
existing at the time of the execution of the will, but not subsequent ones.
The difference in the rule is if the legacy is specific, be it of credit or a remission,
must exist at the time of the writing of the will. If it is generic, be it of credit or a
remission, it pertains to anything and everything that exists at the time
succession opens.
Art. 936. The legacy referred to in the preceding article shall lapse if the testator,
after having made it, should bring an action against the debtor for the payment of
his debt, even if such payment should not have been effected at the time of his
death.
The legacy to the debtor of the thing pledged by him is understood to discharge
only the right of pledge.
If the testator claims the debt, the legacy of credit lapses even if the payment
would have been made after the death of the testator.
If the testator files an action to recover the debt, the legacy of credit lapses even if
the payment would have been made after the death of the testator.
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Does the provision state "except if the testator provides otherwise?" If the
testator gave A a legacy of credit in the will amounting to P10,000,000, and the
testator sends demand letters to the debtors, will the legacy to A lapse? Yes.
The testator, because he wasn't paid, brought an action to recover a sum of
money against all the debtors. Why should that mean that the legacy to A has
lapsed? Because the act of giving a legacy of credit is inconsistent with the act of
the testator in bringing an action to recover from the debtors. If the testator
made a claim on those receivables, then the legacy is implicitly revoked.
What the testator gave is the receivable (not merely the right to claim). A
receivable is an asset, a property, essentially transferrable by onerous or
gratuitous title. A credit can be given by a person as a legacy to another. Why
would it be inconsistent for a testator to give a legacy of credit and at the same
time bring an action to recover it? If he sues on the receivable, there are two
possibilities: he collects or he does not collect. If he collects, the legacy is revoked
because the receivable was extinguished. The property disappears.
Art. 957. The legacy or devise shall be without effect:
(1) If the testator transforms the thing bequeathed in such a manner that it does
not retain either the form or the denomination it had; xxx
The effect of collecting the receivables on the balance sheet of the testator: the
accounts receivable will be debited and cash will be credited. The receivable was
converted to cash. Did it retain its original denomination? Yes. Was there a
conversion of the asset? Yes. The conversion of the asset that results in the
cancellation of the legacy is confirmed in Art. 957 (1).
Supposing the testator brought the action not because he wants to cancel the
legacy but because the 10-year prescriptive period is fast approaching? The
prescriptive period for a written note is 10 years from the time of demand (not
necessarily written). If he did not make a demand and the debtor simply refuses
to pay, the 10-year period will start from the date of the instrument. If the debtor
waits for his death, the note might expire or lapse or prescribe, then the legatee
will not get anything. The testator, for the purpose of preventing the claim to
prescribe, filed a collection case. Is the legacy of credit still revoked? No.
If you were the legatee, how can you prove that the intention of the testator was
not to revoke the legacy but to prevent prescription from setting in or barring the
claim?
If the testator writes a codicil saying he will give the legatee cash instead, it
confirms only that the legacy is revoked. If the testator writes a codicil saying
whatever I collect from the suit will belong to the legatee, then the legacy is
conditional. If he can’t collect anything, then the legatee gets nothing. But the
fact is the bringing of the suit will not necessarily mean a collection will be
received.
The remedy is to execute a codicil explaining why I brought the case. “I brought
this case but my intention is not to revoke it. My intention is merely to preserve
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the claim. Therefore, if I win here, the proceeds are his. If I die before I win, he is
substituted so he can prosecute this case.”
The testator brings a suit but loses the case and does not collect. What happens to
the legacy? Is it still revoked? What if his reason for losing the case is because he
was declared non-suited or because of forum shopping or because the court did
not have jurisdiction. There is nothing wrong with explaining the reason for
bringing the case in a codicil because the codicil is supposed to explain the will, to
add something to it or to modify it. So if I brought an action which could result in
the revocation of a legacy, I can write a codicil and say “notwithstanding, this
legacy is not revoked.”
Art. 938. A legacy or devise made to a creditor shall not be applied to his credit,
unless the testator so expressly declares.
In the latter case, the creditor shall have the right to collect the excess, if any, of
the credit or of the legacy or devise.
Can a testator, in his notarial will, designate one of his creditors as a witness?
According to art. 823, he is not disqualified as a witness but the legacy is avoided.
Art. 823. If a person attests the execution of a will, to whom or to whose spouse,
or parent, or child, a devise or legacy is given by such will, such devise or legacy
shall, so far only as concerns such person, or spouse, or parent, or child of such
person, or any one claiming under such person or spouse, or parent, or child, be
void, unless there are three other competent witnesses to such will. However,
such person so attesting shall be admitted as a witness as if such devise or legacy
had not been made or given.
The testator can appoint as one of the instrumental witnesses a creditor. If he
does so, may the testator include a provision in his will ordering the payment of
what is due to that creditor who is also a witness? Yes.
If the testator can order a payment of the debt to a creditor who is likewise a
witness, can the testator make a provision in his will saying, “X, a witness, is also
my creditor. I owe him P1,000,000. Thus, I hereby instruct that this property, a
specified condominium unit, be delivered to the creditor in payment of my debt.”
a. The creditor cannot be forced to accept because that will constitute dacion
en pago which requires the creditor’s consent. The legatee is not going to
be in mora accipiendi (delay on the part of the creditor) for having refused
payment.
b. The creditor may decline. If he declines, he declines the gift but he is not
relinquishing the debt.
c. The creditor may accept. He can accept the property only to the extent of
the value of his claim. But if the value of the property is in excess, the
creditor will not be permitted to accept the excess because the creditor is
also a witness to the will. The testator cannot say “I am giving you this
P1,200,000 property to pay for my P1,000,000 debt” because the
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beneficiary is a witness who is disqualified.
Art. 1027. The following are incapable of succeeding: xxx
(4) Any attesting witness to the execution of a will, the spouse, parents, or
children, or any one claiming under such witness, spouse, parents, or children;
xxx
Art. 939. If the testator orders the payment of what he believes he owes but does
not in fact owe, the disposition shall be considered as not written. If as regards a
specified debt more than the amount thereof is ordered paid, the excess is not
due, unless a contrary intention appears.
The foregoing provisions are without prejudice to the fulfillment of natural
obligations.
Art. 940. In alternative legacies or devises, the choice is presumed to be left to the
heir upon whom the obligation to give the legacy or devise may be imposed, or
the executor or administrator of the estate if no particular heir is so obliged.
If the heir, legatee or devisee, who may have been given the choice, dies before
making it, this right shall pass to the respective heirs.
Once made, the choice is irrevocable.
In the alternative legacies or devises, except as herein provided, the provisions of
this Code regulating obligations of the same kind shall be observed, save such
modifications as may appear from the intention expressed by the testator.
What rules govern alternative legacies? The rules in alternative obligations apply
pro tanto to alternative legacies.
Is it proper for a beneficiary to choose what he likes, or is the choice of what is to
be given to a beneficiary delegable by the testator to another person? Bear in
mind that the making of a will is a personal act and certain things cannot be
delegated by the testator to another person.
Can the testator say, “pick any property from my estate and it is yours subject to
the condition that the value does not impair legitime?” No. Among the things that
you cannot delegate to an agent are (1) to determine who the heir will be and (2)
what that heir will receive. That is why the making of a will is purely personal.
Do alternative legacies violate the principle that the making of a will is a personal
act? No because the testator has to specify the alternatives.
General rule: The person who has the obligation to pay the legacy makes the
choice. The payment of the legacy could be the liability of the estate, in which
case, the executor should choose. It could be the liability of an heir, then the heir
himself chooses. Even if the heir is a compulsory heir? Yes, subject to the
condition that this compulsory heir who is required to pay the legacy is not
obligated to pay more than what he will receive as a voluntary heir. This means it
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cannot encroach on the legitime. The person generally to make the choice is the
person burdened with the legacy.
Exception: Can the testator transfer the choice to a beneficiary? Yes. The rules
in alternative obligations apply pro tanto to alternative legacies.
If there can be alternative legacies, can there be a facultative legacy? Yes. In
alternative legacies, you enumerate (for example) 5 legacies but the beneficiary
does not get all 5. He can probably get 1, some, but not all. In facultative, one
thing is due but the debtor has the right to replace it with something else (1, 2, 3,
4). I charge you with a sub-legacy. Give A a Honda Civic. Yet, in the same will I
will say “but you have the right to substitute it with 1, 2, 3 or 4.” This would be a
facultative legacy. Is this possible? No because
The right to the legacy is acquired upon death of the testator subject to probate
but the right to the delivery of the legacy or devise is a different matter. In a will,
you expect succession to open at the moment of death of testator but you cannot
ask for the delivery of what is due you until there is an inventory of the assets,
debts and taxes are paid, probate is achieved, and the dispositions are found to be
substantially valid. This takes time. When do you get the right to receive your
share of the estate? Only when all formalities should have been paid and a project
of partition is approved by the court.
As a matter of fact, a legacy that is conditional, that is, subject to a suspensive
condition, is acquired or the right to that is acquired by the legatee as of the
moment of testator's death but because of the suspensive condition that legacy
does not become effective until the suspensive condition is fulfilled.
The same rules in obligations and contracts will apply to conditional legacies and
devises. It's one thing to acquire the right to it and it’s another to have the right to
demand its delivery.
In case of partly onerous and partly gratuitous gifts, you have to accept both; you
cannot choose only one.
Art. 941. A legacy of generic personal property shall be valid even if there be no
things of the same kind in the estate.
A devise of indeterminate real property shall be valid only if there be immovable
property of its kind in the estate.
The right of choice shall belong to the executor or administrator who shall
comply with the legacy by the delivery of a thing which is neither of inferior nor
of superior quality.
Art. 942. Whenever the testator expressly leaves the right of choice to the heir, or
to the legatee or devisee, the former may give or the latter may choose whichever
he may prefer.
Art. 943. If the heir, legatee or devisee cannot make the choice, in case it has been
granted him, his right shall pass to his heirs; but a choice once made shall be
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irrevocable.
Art. 944. A legacy for education lasts until the legatee is of age, or beyond the age
of majority in order that the legatee may finish some professional, vocational or
general course, provided he pursues his course diligently.
A legacy for support lasts during the lifetime of the legatee, if the testator has not
otherwise provided.
If the testator has not fixed the amount of such legacies, it shall be fixed in
accordance with the social standing and the circumstances of the legatee and the
value of the estate.
If the testator or during his lifetime used to give the legatee a certain sum of
money or other things by way of support, the same amount shall be deemed
bequeathed, unless it be markedly disproportionate to the value of the estate.
Legacy for education – the total amount spent for your education must be
contained within the free portion because the legacy for education cannot impair
legitime.
Legacy for support – there is something intrinsically void in the legacy for
support. It gives you the money stipend but it does not tell you when it will have
to come to an end other than the death of the recipient. Is the probate court
competent to set the limit?
To my son I give a legacy of P50,000 monthly stipend for life. If the child is 3
years old today, for how long will you provide him support? Is it important to
determine how much will be spent for P50,000 a month? Yes because there is an
absolute limit to what can be given by way of legacies and devises and the
absolute limit is the free portion. The estate is P5,000,000 and there are
compulsory heirs. What if in 2 years, the free portion was used up already? But
the legacy is for a lifetime.
Support – everything that is essential to survive plus medical attention,
education and transportation. Who determines the amount of support? (1) the
requirements of the receiver; and (2) the resources of the giver.
So that when the testator says P50,000 a month, he assumes that is something he
can pay throughout the life of this 3-year old boy. If his estate is only
P5,000,000, can the testator actually require the implementation of that legacy?
No. What will you do: reduce the amount so that whatever is left can stretch, or
pay the amount until it is used up?
The estate is worth P300,000,000,000 of which half, P150,000,000,000 is
legitime. How much should you set aside for the legacy? If this child lives to the
age of 83, he will only consume (P6,000,000*8) = P48,000,0000 but his
legitime is P150,000,000. Should I set aside all of this based on the life
expectancy of the child? Is that the intention? Supposing the child dies after 5
years but the amount was already given, can it still be recovered?
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Intestate Succession – succession that will take place not pursuant to the will of
the deceased but pursuant to the provisions of the law. That is why some authors
would call it "legal succession." It is the law that determines how the composition
of the intestate heirs will be and how much each intestate heirs will receive.
What does the law tell us when it speaks of the intestate shares of the heirs?
When we speak of testamentary succession you have a testator talking to you.
“This is how I want my estate distributed.” He identifies the name of the
beneficiary and he tells you what this person will get (either in terms of a portion
of the estate or in terms of a specific property that he will receive).
In intestacy, it is the law that speaks because the person who died had failed or
had refused to talk.
The underlying principle in the division of an estate in intestate succession: the
law tried to approximate how a person would have distributed his estate had he
written a will. The law is trying to simulate a real life situation where a person sits
down to write his will, but unfortunately, for one reason or another, he did not.
When you speak of legal or intestate succession, you are theoretically speaking of
an assumed will. We assume that this is how the testator will write a will. It is an
approximation, and therefore, it cannot be exact.
How did the law arrive with the approximation? The law framers put it this way:
who are the likely beneficiaries of the estate of the deceased person? Who do you
expect would benefit from the estate of a deceased person?
We can put the people in 2 categories: (1) people he loves - the likely
beneficiaries; and (2) people he does not care for. Succession is a transmission by
gratuitous title so there must be a reason why a person will give a gift to another.
Therefore, when you talk about the underlying philosophy behind intestate
succession, you are generally trying to look into/make an inquiry into who these
persons are, who are dear to the decedent, and for whom you would normally
expect that a person would leave something to when he finally goes.
If you look at the order of intestate succession, or the table of intestate shares, all
the intestate heirs, other than the State, are blood relatives. When we speak of
intestate succession, we are only talking of succession running among blood
relatives, except the State.
Art. 961. In default of testamentary heirs, the law vests the inheritance, in
accordance with the rules hereinafter set forth, in the legitimate and illegitimate
relatives of the deceased, in the surviving spouse, and in the State.
Why is intestate succession limited to relatives only? Because there is basis to
assume that the decedent loves them.
Having said that the law tries to approximate or to simulate what a person would
have done had he written a will, and having reached the conclusion that it is all
based on the affection that the person has over these particular persons, and
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having further reached the conclusion that they only include blood relatives, then
we come to the more important consideration: the 2 fundamental principles
underlying intestacy:
1. Rule of proximity – the degree of relationship between the decedent and
the heir. Relatives who are nearer in degree will exclude those who are
more remote in degree.
“Degree of relationship” – how close or remote a relative you are.
If a person were to die today and his survivors are: child and cousin, who is likely
to be favored by this person if he had written a will? The child. Because the
quantitative definition of the relationship is that the child is 1 degree remote from
the parent, whereas the cousin is 4 degrees remote.
2. Rule of equal division – relatives of equal rank will inherit in equal shares.
We do not create preferences in intestacy.
Art. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has
subsequently lost its validity;
• A person dies without a will
• He executed a will but the will is void
• He executed a will but it subsequently lost its validity (how? revocation)
All three are agreeable. If you did not write a will, you did not know how to write
one, or you knew how to write one but you changed your mind and revoked it,
then intestacy results.
The clear implication is there will be complete intestacy because there is no will,
it is void, or it is no longer valid or effective.
No will, void will or will lost its validity. Focusing on the void will and the will
that lost its validity, what is missing?
Is it possible for me to execute a will and die intestate? Yes. Is it possible that I
revoked a will and yet I could have died in full testacy? Yes, if my revocation is
defective.
Could I have written a will, which is fully in accordance with the formalities
prescribed by law, and yet it will be denied probate? Yes, reasons: lack of capacity
and vice of consent (mistake, fraud, undue or improper influence, violence and
intimidation). Both are not matters of form. When you look at the situation in
number (1), what is missing? A will that is otherwise valid but disallowed probate
for some other reasons.
(2) When the will does not institute an heir to, or dispose of all the property
belonging to the testator. In such case, legal succession shall take place only with
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respect to the property of which the testator has not disposed;
• When a will does not institute an heir, there will be intestacy. This is false!
In Dizon-Rivera vs Dizon, the estate was distributed by legacies and
devises. There was no institution in this case but that did not result to
intestacy.
I can write a will and not institute a single heir and yet my entire estate could be
disposed.
"When a will does not institute an heir" – an inaccurate statement. What it
probably meant is: when a will does not name any beneficiary, then the person
dies completely intestate.
Seangio vs Reyes: A Chinese testator executed a will and the only disposition is
to disinherit his eldest son. After the will is admitted to probate and after giving
effect to the disinheritance of the son, there is nothing else left to be done. The
entire estate will pass to his heirs by intestate succession.
So it is not true that the absence of instituted heirs will result in intestacy.
• When the will does not dispose of all the property belonging to the
testator, there will be intestacy.
This is an ambiguous statement. There are 2 ways to interpret: (1) he disposed
nothing; or (2) he disposed some but not all. Depending on how you will read it,
the statement may be true or it may be false. If you take it to mean that it is a will
that did not make any disposition of property, then you have a case of a complete
intestacy. If you take it to mean as an incomplete distribution of property, then
you have a clear case of partial intestacy.
Art. 960 creates 2 types of intestacy: partial or total.
(3) If the suspensive condition attached to the institution of heir does not happen
or is not fulfilled, or if the heir dies before the testator, or repudiates the
inheritance, there being no substitution, and no right of accretion takes place;
• Nonfulfillment of a suspensive condition attached to the institution of heirs
will create intestacy.
I institute X 1/2 provided he becomes a priest. This is a suspensive condition. The
testator dies. Will is probated. X cannot get the 1/2 until he becomes a priest. If
this is not fulfilled, then the suspensive condition attached to the institution
according to Art. 960 causes intestacy.
True or false? It depends on what intestacy you are talking about. This can result
to partial intestacy. but if this is the only provision, it causes full intestacy.
Why is this false also? Even if the condition is not fulfilled, intestacy can be
prevented by substitution. Furthermore, if there was no substitution, intestacy
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does not necessarily result if it should turn out that the condition is impossible.
Example, C is actually a girl. She cannot be a priest.
These are all motherhood/general statements recklessly stated without regard to
the other provisions of the law.
• If the heir dies before the testator, or repudiates the inheritance, there being
no substitution, and no right of accretion takes place
He who repudiates does not get anything. He who predeceases does not get
anything. The problem there is: will this necessarily result in intestacy? It could
be partial or total. The law did not make that distinction.
Can the substitution and accretion exception also apply to non-fulfillment of
suspensive condition? Yes. The law gives the same impression.
Take a look at the punctuation marks. Is the proviso a qualification to all three or
only to the last?
(4) When the heir instituted is incapable of succeeding, except in cases provided
in this Code.
This is again false. Only if there is one heir will you have complete intestacy. But
what if he were to inherit a miniscule part of the estate? Then there is only partial
intestacy. And yet Art. 960 does not make any distinction between total and
partial intestacy.
Will preterition cause intestacy? Yes. Total, as in the case of Nuguid, or partial if
there are legacies and devises conveyed in the will. Notice that Art. 960 does not
mention preterition. Preterition does not make the will void but it only annuls the
institution of heirs.
Art. 962. In every inheritance, the relative nearest in degree excludes the more
distant ones, saving the right of representation when it properly takes place.
Relatives in the same degree shall inherit in equal shares, subject to the
provisions of article 1006 with respect to relatives of the full and half blood, and
of Article 987, paragraph 2, concerning division between the paternal and
maternal lines.
Rule of Proximity: Nearer relatives will exclude more remote ones. You can
look at it from a lineal relationship or from a collateral one.
If you are talking of 3 generations with A as the decedent, B is 2
degree remote from A and C is 2 degrees remote from A but they
are relatives in the direct line. The 1st degree relative excludes the
2nd degree relative because the nearer excludes the further.
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If you did it this way, where A is the decedent, B
and C are brothers and D is the nephew, brothers
and sisters are relative within the 2nd degree but the
nephew is a relative within the 3rd degree. The 2nd
will exclude the 3rd. That is what the rule of
proximity means.
What principles must you bear in mind when you
apply the rule of proximity?
1. If we go by exclusions, never exclude a compulsory heir because a
compulsory heir inherits unless disinherited.
descending line, but never in the ascending.
In the collateral line, it takes place only in favor of the children of brothers or
sisters, whether they be of the full or half blood.
What limitations do we know? You cannot exclude a compulsory heir, you cannot
exclude the State, its application in the ascending line is rigid there being no right
of representation, its application in the descending line is flexible because right of
representation is possible, and there is preference of the descending over the
ascending line.
The only exception to the rule of proximity is the right of representation.

2. If a person dies without any relatives or all the relatives are disqualified
then the estate will go to the Republic of the Philippines because somebody
must inherit the estate. The State is an intestate heir only by default (only
when no one is qualified to inherit). So the State is not covered by the rule
on proximity.
3. The rule of proximity prefers the descending line over the ascending.
Rule of Equal Division: Heirs of the same rank or equal degree will inherit in
equal shares. Do not create preferences because in intestacy, the testator does not
speak to us to create a preference. It is the law that tries to simulate what a
person would have done if he had an opportunity to write his will.
The fundamental premise why legitimate children will inherit in equal shares is
because they are of equal rank with respect to the decedent.

The estate of B, he has an ascendant and a descendant. Both the

Estate of A. The descendants will exclude the
father and son are 1 degree remote. They are of equal rank; equal F G ascendants. B, C, and D are the intestate heirs.
in proximity and yet under our laws of succession, the inheritance # $
They are expected to receive 1/3 each. When we
will first go down and the only time it goes up is if there are no A
talk of total intestacy, there is no need to take into
descendants. So the rule of proximity is without prejudice to the $ % #
consideration legitime because the intestate shares
preference in the descending line over the ascending line. B C D
already incorporate the legitime so that when you
%
apply the fractions, you will never impair the
4. In the rule of proximity, if and when succession goes up, the rule is rigid. F
legitime. F is excluded by the rule of proximity;
therefore, he gets nothing.
Example, the estate of B will have to go up. X is the
mother and A is the father. When the estate goes up, $
½ will go to X and ½ will go to A. If X predeceases F G Since B, C and D repudiated the
B, his ½ will not go up to V and W, the # $ inheritance, the closest
grandparents. Rather, the ½ will consolidate to A. A – X – Y – Z 20 descendants are the
The parents are 1 degree remote from B but the $ % # grandchildren, relatives within
grandparents are 2 degrees remote. B C D the 2nd degree.
% % % $
Is that rule the same in the descending line? No, the rule of proximity is not rigid I H F 20
in the descending line.
What if A has legitimate siblings X, Y, Z, concurring with his grandchildren
5. The rule of proximity is tempered by the right of representation which is because brothers and sisters are also relatives within the 2nd degree. Now you
generally available in the descending line. The right of have a problem because heirs of the same rank should inherit in equal shares.
representation is not available in the ascending line
It would seem that the estate should be divided by 6. DON’T! Because of the
In the estate of B, because he has a child, his parent A is order of intestate succession where the descendants come in 1st rank; while the
excluded. Supposing C, the son of B, predeceased B. D is 2 brothers and sisters come in 5th.
degrees remote from B. But A is only 1 degree remote from B. D
will exercise right of representation and will exclude A. The same is true in the collateral line.

Art. 972. The right of representation takes place in the direct de Papa vs Camacho: The prepositus has a sibling and the sibling has a child,
GING$!$$ 78$
Dalisay. At the same time, Dalisay has uncles and aunts who are siblings of her
mother. The prepositus is related to Dalisay within the 3rd degree; and is related
to the uncles and aunts also within the 3rd degree. We are talking of the
distribution of the reservable property which is a distribution by intestate
succession.
SC: Dalisay takes precedence over uncles and aunts. While they are both relatives
within the 3rd degree by the prepositus, brothers and sisters rank 5th, uncles and
aunts rank 6th. We know that they may be of equal rank but still you have to
check the order of preference of a deceased person.
Exceptions to the Rule of Equal Division:
1. The rule of equal division will not apply in the ascending line because in
the ascending line, succession is reckoned per stirpes (per line); ½ will
got to the paternal line and ½ will go to the maternal line regardless of the
number of actual survivors. If 1 parent is gone, the whole thing goes to the
surviving parent. If both parents are gone, then we move one step higher
to the grandparents and now you will see there is a maternal line and a
paternal line. The ½ and ½ will be reckoned by line: ½ goes to the
maternal and ½ goes to the paternal. The shares may not be even if one of
the grandparents should have died.
Art. 974. Whenever there is succession by representation, the division of the
estate shall be made per stirpes, in such manner that the representative or
representatives shall not inherit more than what the person they represent would
inherit, if he were living or could inherit.
2. In the collateral line, according to Art. 1006, full blood brothers inherit
twice as much as half blood brothers even though they are related within
the same degree (2nd).
Art. 1006. Should brother and sisters of the full blood survive together with
brothers and sisters of the half blood, the former shall be entitled to a share
double that of the latter.
3. The rule of equal division will not apply if there is right of representation.
A Estate of A. A has 3 children: B, C and D. D
$%# predeceased A. B and C are relatives of A within
B C D the 1st degree. E and H are relatives within the 2nd
$ # degree. They are all in the descending line. If you
E H apply the rule of proximity, B and C should
exclude E and H. But because of the right of
representation, the exclusion of E and H is
prevented.
$ The former unites the head of the family with those who descend from him.
In Art. 970, by right of representation, E and H, by fiction of law, are elevated to
the place of the person who they will represent and they acquire all the rights and
all the obligations of the person they will represent. Therefore, by exercising the
right of representation, E and H, who are factually relatives within the 2nd degree
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of A, will inherit from A as though they are 1st degree relatives because of the
fictional elevation of E and H to the rank of D who is the person that they
represent.
Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented,
and acquires the rights which the latter would have if he were living or if he could
have inherited.
If we consider the right of representation as fictionally elevating E and H to the
rank of D, they should now be inheriting as 1st degree relatives. Therefore,
applying the rule of equal division, you should have the estate divided into 4
parts because E and F are now 1st degree relatives. But that will not happen.
Because in Art. 970, all that these representatives can get will not exceed what D
would have gotten if he were there.
For which reason, there are some commentators who will say that the right of
representation is virtually a right of subrogation because the representatives will
acquire nothing more and nothing less than what is due to the person they are
representing. Subrogation is a form of novation. Specifically, it is the change of
creditor. E and H are not subrogees. They do not have the right of subrogation
because they are not creditors of A. They are heirs. However, if you are using the
word subrogation not in its technical meaning, but in its ordinary meaning, to say
that this is merely an assumption of rights and obligations, then that would be
acceptable. But not when use subrogation as defined by our Code.
Art. 975. When children of one or more brothers or sisters of the deceased
survive, they shall inherit from the latter by representation, if they survive with
their uncles or aunts. But if they alone survive, they shall inherit in equal
portions.
Relationship:
Art. 963. Proximity of relationship is determined by the number of generations.
Each generation forms a degree.
Art. 964. A series of degrees forms a line, which may be either direct or collateral.
A direct line is that constituted by the series of degrees among ascendants and
descendants.
A collateral line is that constituted by the series of degrees among persons who
are not ascendants and descendants, but who come from a common ancestor.
Art. 965. The direct line is either descending or ascending.
The latter binds a person with those from whom he descends.
Art. 966. In the line, as many degrees are counted as there are generations or
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persons, excluding the progenitor.
In the direct line, ascent is made to the common ancestor. Thus, the child is one
degree removed from the parent, two from the grandfather, and three from the
great-grandparent.
In the collateral line, ascent is made to the common ancestor and then descent is
made to the person with whom the computation is to be made. Thus, a person is
two degrees removed from his brother, three from his uncle, who is the brother of
his father, four from his first cousin, and so forth.
Art. 967. Full blood relationship is that existing between persons who have the
same father and the same mother.
Half blood relationship is that existing between persons who have the same
father, but not the same mother, or the same mother, but not the same father.
Art. 968. If there are several relatives of the same degree, and one or some of
them are unwilling or incapacitated to succeed, his portion shall accrue to the
others of the same degree, save the right of representation when it should take
place.
Art. 969. If the inheritance should be repudiated by the nearest relative, should
there be one only, or by all the nearest relatives called by law to succeed, should
there be several, those of the following degree shall inherit in their own right and
cannot represent the person or persons repudiating the inheritance.
Art. 968 (accretion) and 969 (effects of repudiation). Why are they mixed up with
the section of relationship. These are stray provisions.
Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented,
and acquires the rights which the latter would have if he were living or if he could
have inherited.
The first striking statement in the definition is the description that
“representation is the right created by fiction of law.” The right of representation
is a statutory right. If it is a right that is created by fiction of law, what the
representative receives when the representative exercises the right of
representation is something which is categorized as "by operation of law."
Going back to reserva in Art. 891,
Art. 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother
or sister, is obliged to reserve such property as he may have acquired by
operation of law for the benefit of relatives who are within the third degree and
who belong to the line from which said property came.
In reserva, there are 4 parties. There is a gratuitous transmission by way of
donation inter vivos or by way of hereditary succession in any form. The second
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transmission is by operation of law which may be by legitime (transmitted as a
requirement of law to the compulsory heir) or by intestacy (in intestacy, it is the
law that confers successional rights to specific person).
There is now a 3rd transmission by operation of law: transmission by right of
representation. Should this be added in the as a third item in transmissions by
operation of law in reserva? No. It is not possible for the reservoir to acquire the
property by right of representation because the representation will never go in
the ascending line. Representation is downwards, and by way of exception in the
collateral line, but never in the ascending line.
What you received or when you are called to represent, you are called to inherit,
not by the deceased, but by law. You are not called to inherit by the person you
represent.
Art. 971. The representative is called to the succession by the law and not by the
person represented. The representative does not succeed the person represented
but the one whom the person represented would have succeeded.
A
$%#
B C D
$ #
E H
What happens in representation? There is the elevation of the relationship of E
and H to the place of D fictitiously as if they were relatives in the first degree.
That fictional elevation of rank is a necessary consequence of the rule of
proximity. Otherwise, they will be excluded by the rule the nearer excludes the
further.
From whom did they inherit? They inherit from A. They inherit from D with
respect to the estate of D. But with respect to the estate of A, they inherit directly
from A. When D died, his estate was settled. But with legitimate children, the
ascendant is excluded.
Let us say D died in 2000. A died in 2013. His estate should have passed to B, C
and D. But D died in 2000, his estate passed to E and H. On 2013, D cannot
inherit because he is dead already. If there is no right of representation, it will be
unfair because the estate of A will be divided into 2 parts because D cannot
inherit since he is already dead.
Right of representation tempers the effect of exclusionary rule under the rule of
proximity because without the right of representation, E and H will be completely
cut off from the estate of A and the cutting off is not because they were
undeserving but because of an accident in life over which they had no control.
Art. 973. In order that representation may take place, it is necessary that the
representative himself be capable of succeeding the decedent.
If E and H inherit from A, their capacity to succeed must be determined not from
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the perspective of D but from the perspective of A. A - 2013
%
Example: E killed his father D. 13 years later, A died. Obviously, D cannot inherit. B - 2010
By fiction of law, E and H will be elevated to take the share of D from A. How will %
the share be divided between E and H? All will go to H because E’s attempt on C - 2009
the life of the descendant of the testator is a ground for disqualification under %
Art. 1032 (in the same way that it is a ground to disinherit). D

Art. 1032. The following are incapable of succeeding by reason of unworthiness: We are talking of the estate of A. A died in 2013. B died in 2010. C died in 2009.
xxx (2) Any person who has been convicted of an attempt against the life of the This is a case of intestacy where the heir predeceased. D can get the full intestate
testator, his or her spouse, descendants, or ascendants; xxx share by right of representation.

E made an attempt on the life of D. D did not die. D can disinherit E. But instead Another heir of A is B. But B predeceased A. Who would have exercised the right
of disinheriting E, D forgave him. Therefore, when D died, E inherited from him. of representation here? C. But C predeceased B. So C never inherited from B and
When A died, E cannot represent D even though D has forgiven him because B never inherited from A. So how can C represent when he predeceased bot A and
when you make an attempt on the life of the decedent, his ascendant, descendant B. C cannot represent the right of representation.
or spouse, you become incapacitated under Art. 1032. Clearly, he may have
inherited from his father but he is disqualified to inherit from A. D is a compulsory heir of A. Can D inherit from his father, C? Yes. Can D inherit
from B? Yes. Can D inherit from A? Yes because he will be elevated.
When is there right of representation? It applies both to testacy and intestacy but
the rules are different. A - 2013
%
Testacy Intestacy B - 2009
%
Grounds: Disinherited, (no disinheritance) C - 2010 C died in 2010. When B died, C inherited from B.
Incapacitated Incapacitated % When C died, D inherited from C. Does D inherit
Predeceased Predeceased D by right of representation or in his own right?
$
Scope: Representation is limited to Representation will cover the
legitime. The excess is covered full intestate share A - 2010 When A died, B repudiated the
by substitution/ accretion/ % inheritance. C cannot represent B
intestacy B - 2011 B repudiated because B a person who
% repudiates can never be
Beneficiary: Exclusively descendants only* C - 2012 represented. In 2010, C inherits
% from A in his own right.
* no representation in ascending and collateral because in testamentary D
succession, the presence of descendants will generally exclude the ascendants.
$
But if the testator wants to give something to his ascendants, he may but they will
not inherit not as compulsory heirs but as voluntary heirs because if there are A - 2010 When A died, B repudiated. C also
descendants, the ascendants will not receive legitime. Therefore, if you gave % repudiated. Having repudiated his
something to your ascendants even if they are not compulsory heirs, they will not B - 2011 B repudiated inheritance, can D now exercise
have the right of representation because what you have them is not legitime. % his right of representation? No
C - 2012 C repudiated because the repudiator cannot be
* not all descendants can represent because of the barrier in Art. 992 which % represented. D will inherit in his
segregates the legitimate family from the illegitmate family. D own right.

Art. 992. An illegitimate child has no right to inherit ab intestato from the
$
This series of repudiation did not affect D. But it is possible that a repudiation
legitimate children and relatives of his father or mother; nor shall such children will affect D.
or relatives inherit in the same manner from the illegitimate child.

GING$!$$ 81$
 Net Estate P120,000
A Collationable Donation 30,000
$ # Theoretical Estate P150,000
X B
% % B, C, D will inherit but they have no accountability with respect to the donation
Y C because H is the donee. At the time A gave the donation to H, the compulsory
heir is D. Since H is not a compulsory heir at the time of the donation, H is
% %
considered a stranger. When you deal with a collation of a gift to a stranger, the
Z D donation will not be deducted from the legitime of D because it is not D who
received the donation but H.
Example: If B has a sibling, X. X has a son, Y and Y has a son, Z. A died in 2010.
If B repudiated his inheritance in 2010, he is out! Everything will go to X. B Test: did the donation affect the legitime? To determine if the donation is
cannot be represented because he repudiated so C cannot step up. Their whole inofficious: P150,000/2 = P75,000 legitime; and the other P75,000 is free
line is out. portion. The P75,000 free portion can absorb the P30,000 donation.
Art. 976. A person may represent him whose inheritance he has renounced. Free Portion P75,000
Collationable Donation (30,000)
Art. 977. Heirs who repudiate their share may not be represented. Difference P45,000
The representative will only get what the person he represents would have gotten.
Difference P45,000
But it is not just a question of acquiring all that D is entitled to get. As
Legitime 75,000
representatives acquire the rights of D, so also they acquire the obligations of D.
Total P120,000
The most common obligation that the representatives will inherit is the
obligation resulting from collation.
This does not impair the legitime. Since it is a donation to a stranger, no
A Net estate is P120,000. D received a compulsory heir is liable to account for it.
$%# donation of P30,000. D
B C D predeceased. Now E and H will How do you divide 120?
$ # represent D. This is pure intestacy.
E H How will the estate be distributed? B P40,000
C 40,000
$ D 40,000 " E P20,000
Net Estate P120,000
Collationable Donation 30,000 " H 20,000
Theoretical Estate P150,000
Are illegitimates entitled to represent? Yes. Subject to Art. 992.
The intestate share will be P150,000. B, C and D should theoretical get P50,000
B, C and D are legitimate. If H is illegitimate, he's out. If his father, D is also
each. But the actual estate is only P120,000. Since the donation is an advance
illegitimate, then A is an illegitimate father of D. Their entire line is illegitimate.
payment of legitime, the donation of P30,000 will be deducted from the share of
D. That is how it should be if D were alive. Therefore:
A – B – C – D Siblings A, B, C, D are illegitimate. This is the
% estate of A. If B predeceases A and if X is
Theoretical Deduct donation
X legitimate son of B, there is still
B P50,000 P50,000
C 50,000 50,000 representation because Art. 992 is not
If X is an illegitimate child addressed to X, X being a legitimate son.
D 50,000 (30,000) 20,000
of B, there is still $
P150,000 P120,000
representation because
according to the law, the rights to succession of an illegitimate child are
Since D predeceased A, E and H will represent him. They will get P10,000 each. transmissible to his or her descendants without qualification. Although there is
no such thing as an explicit provision of law granting the illegitimate the right of
Supposing A gave a donation to H worth P30,000. representation.

GING$!$$ 82$
 representation as a relative within the 1st degree.
Representation of an adopted child:
A 2013
F F $ #
% %
X B 2000
S – predeceased/incapacitated – Adopted Son
% %
% %
Adopted Legitimate Y C 1999
Grandson Grandson % %
Z D
First problem: For the estate of F, the heir would have been S. But S predeceased
F or is incapacitated to succeed F. Can the adopted grandson represent S? In the collateral line, there can be representation but you have to observe the 2:1
rule in Art. 1006 because representation in intestacy is a representation by
F has a legitimate son, S. If S decides to adopt, he may do so. Under the rules of operation of law and according to law, the full blood will get twice as much as the
adoption, the relationship of paternity and filiation that is created by fiction of half blood.
adoption is limited to the adopting parent and adopted child. This means that the
fictional relationship is only between the adopted and adopter. It extends no Estate of A. B is A’s full blood sibling while C and D are his half blood siblings.
further than that. Therefore, the adopted grandson is not the grandson of F. Net estate is P80,000.
Between them, there is no blood ties whatsoever and there is no tie created by the
fiction of adoption. He cannot represent. Full Blood Half Blood
A B C D
Second problem: For the estate of F, the adopted son either predeceased F or is P40,000 P20,000 P20,000
incapacitated to succeed F. Therefore, the adopted son cannot inherit from F. The
adopted son has a legitimate son (grandson of F). Can there be representation? If they have to be represented, by their children, the child of C gets P20,000, the
child of D gets P20,000 but the 2 children of B will get P20,000 each because
The adopted child in the middle has full successional rights similar to that of a what they get is what pertains to B.
legitimate child. But this relationship is limited between F and the adopted son.
So the child of the adopted son will not become the grandson of F because only F Example: Testamentary succession. Estate is 96. A gets ½; B gets ¼; C gets ¼. B
and the adopted son have a fictitious relationship. It cannot go beyond that. and C predeceased. All the grandchildren are legitimate.
Therefore, the legitimate grandson, who may be the biological son of the adopter,
cannot represent or inherit from the supposed grandfather. A - ½ = 48 + 16 (accretion)

Answer: No right of representation in both cases. Basis why the tie is only B - ¼ = 24 " 16 is legitime " X 8
between the adopter and adopted: you can create a relative by adoption but you " Y 8
cannot create one for your other relatives. " 8 is free portion

A - 2013 A died in 2013. His heir would have been B but B already C - ¼ = 24 " 16 is legitime " L 8
% died in 2000, and therefore cannot inherit from A. C died " M 8
B - 2000 in 1990 so he cannot represent B because at the time C " 8 is free portion
% died, B was still alive. Can D exercise the right of
C - 1990 representation? No. D cannot inherit by right of The extent of representation in testamentary succession is the legitime only. Get
% representation. the legitime (96/2 = 48; 48/3= 16). Deduct the legitime from their shares to get
D $ the free portion. Distribute the legitime to the representatives. The excess free
portion (8 + 8 = 16) will be added to the share of A as accretion.
When C died in 1990, D inherited from him. Could C have inherited from B or A?
Not anymore because he already died in 1990. Thus, D cannot represent C with SECTION 2. - Order of Intestate Succession
respect to A's estate. D will inherit but not in a representative capacity.
There is no provision of law that states the order of intestate succession but how
The danger for D is if A has intermediate relatives, D cannot get anything even in did our commentators come up with the order of intestate succession? There is
his own right. D is a relative within the 4th degree, while Y will inherit by an assessment of all the relevant provisions of the sharing of the estate in
GING$!$$ 83$
intestacy and on the basis of the collective provisions of the law, it became very
clear that this is the order of preference as far as the estate of the deceased is
concerned.
When you look at the order of succession, it’s always from the perspective of the
decedent. You will determine whether or not the person is legitimate or
illegitimate and then you will apply either the first order or the second order.
In many cases, the status of the decedent is not questioned because usually, the
status of an individual is a matter of public knowledge. Why is that? Generally,
you will have a record of birth in the Civil Register if you were registered. If your
birth was with the assistance of a physician/midwife/qualified health practitioner
and you live in a place where civilization has thrived, your birth should have been
registered in the local civil register.
Compare table of intestate shares and table of legitime. The intestate shares are
equal to, if not greater than, the legitime. The intestate shares will be calculated
in such a way that the intestate share can never be less than legitime.
SUBSECTION 1. - Descending Direct Line
Art. 978. Succession pertains, in the first place, to the descending direct line.
The order of intestate succession gives the first preference to the direct
descending line. In the direct descending line, the primary compulsory heirs
would be the legitimate children. The law says, “and their legitimate
descendants.” This is with respect to their right of representation. So that, if the
decedent has 3 children, they are the first in the order of priority. But it is
possible that if the children are incapacitated or predeceases the decedent, the
grandchildren (or the legitimate descendants of the children) will go up.
If the children repudiates, the grandchildren will inherit as the nearest relatives
in the descending line and they will inherit in their own right and not by right of
representation.
Art. 979. Legitimate children and their descendants succeed the parents and
other ascendants, without distinction as to sex or age, and even if they should
come from different marriages.
An adopted child succeeds to the property of the adopting parents in the same
manner as a legitimate child.
If a person is legitimate, there are 7 intestate heirs; if he is illegitimate, there are
6. Rule of exclusion will apply only as far as collateral relatives are concerned.
If there are lots of illegitimate children and the estate is not sufficient, they will
have to make do with what is left.
Within the context of legitimate children, you have to include the adopted
children because of the provision in the Family Code that says adopted children
shall be deemed to be legitimate child of the adopter. A difference from the
GING$!$$
provision of the Civil Code on adoption as well as the counterpart provision of
adoption in P.D. 603. In the prior law, the adopted was given the same rights and
obligations as a legitimate child. Today, the Family Code gave them a better right
in the sense that they are now deemed to be legitimate children of the adopter.
Art. 980. The children of the deceased shall always inherit from him in their own
right, dividing the inheritance in equal shares.
How do the legitimate children inherit? In equal shares. How do they divide the
legitime? In equal shares as well.
Art. 981. Should children of the deceased and descendants of other children who
are dead, survive, the former shall inherit in their own right, and the latter by
right of representation.
How do the grandchildren inherit? 2 ways: they may inherit by representation or
they may inherit in their own rights. When grandchildren inherit by
representation, they would get only what their father would have gotten if their
father inherited. If they inherit in their own right, you divide the estate equally
amongst them.
Art. 982. The grandchildren and other descendants shall inherit by right of
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.
Art. 983. If illegitimate children survive with legitimate children, the shares of
the former shall be in the proportions prescribed by Article 895.
Art. 983 has been repealed. This is a complicated provision of law which
categorized illegitimate children according to the degree of illegitimacy.
Art. 984. In case of the death of an adopted child, leaving no children or
descendants, his parents and relatives by consanguinity and not by adoption,
shall be his legal heirs.
Art. 984 is repealed by Art. 190 of the FC. This is succession to the estate of an
adopted child. The law before states that the intestate heirs of an adopted child
are his biological relatives. Art. 190
The biological relatives of the adopted child are still his heirs. The fact that the
child was put up for adoption is not a ground to disinherit biological parents
because giving up a child for adoption has never been illegal. It is not considered
as an act of abandonment or a relinquishment of parental obligations, provided
the adoption is through judicial processes. But a child given away without the
benefit of judicial adoption and if adoption comes in the form of falsifying the
record of birth, the biological parents are guilty of abandonment and the
adopting parents are guilty of falsification of public instrument, or perhaps
simulation of birth.
The 6 special rules of Art. 190, particularly 2, 3 and 4, you will see that what was
given to the adopter is the free portion. Such that, in other combinations, nothing
84$
is left so nothing will be given to the adopter.
Art. 190. Legal or intestate succession to the estate of the adopted shall be
governed by the following rules:
(1) Legitimate and illegitimate children and descendants and the surviving
spouse of the adopted shall inherit from the adopted, in accordance with the
ordinary rules of legal or intestate succession;
Legitimate children and illegitimate children + surviving spouse = follow rules of
intestacy
Why is the adopter not given anything? Because parents are excluded by the
children. Therefore, if the biological parents are excluded, that exclusion should
be carried to the adopting parents. In the table of legitime, legitimate children
and their legitimate descendants are first. Second, in default of the legitimate
children, that is the only time it will go up to the legitimate parents. So, the
moment the adopter has children, the adopter gets nothing. Succession by
intestacy to the estate of the adopted will follow the ordinary rules of intestate
succession.
(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of
the adopted concur with the adopter, they shall divide the entire estate, one-half
to be inherited by the parents or ascendants and the other half, by the adopters;
Legitimate parents/ascendants or illegitimate parents + adopter = ½, ½
Ascendants only (no spouse or children). If you only have parents, their legitime
is ½ of the estate. Here, they are given 1/2 and then the other ½ is free portion
which is given by the Family Code to the adopter.
(3) When the surviving spouse or the illegitimate children of the adopted concur
with the adopters, they shall divide the entire estate in equal shares, one-half to
be inherited by the spouse or the illegitimate children of the adopted and the
other half, by the adopters.
SS or illegitimate children + Adopter = ½, ½
½ or ½ + Free portion
(4) When the adopters concur with the illegitimate children and the surviving
spouse of the adopted, they shall divide the entire estate in equal shares, one-
third to be inherited by the illegitimate children, one-third by the surviving
spouse, and one-third by the adopters;
Illegitimate children + SS + Adopter = 1/3, 1/3, 1/3
1/3 + 1/3 + free portion
Evidently, from (2)-(4), after giving the legitime, the rest is given to the adopter.
GING$!$$
(5) When only the adopters survive, they shall inherit the entire estate; and
Adopter only = all
No biological parents, spouse, biological ascendants, legitimate, illegitimate or
adopted children, collaterals capacitated to succeed. Instead of the estate passing
by escheat to the Republic of the Philippines, everything is given to the adopter.
(6) When only collateral blood relatives of the adopted survive, then the ordinary
rules of legal or intestate succession shall apply.
Collateral relatives = follow rules of intestacy
Why follow the rules of intestacy? No biological parents, adopting parents,
legitimate or illegitimate children, no spouse. Who will inherit? Collateral
relatives, the nearest of whom would be brothers and sisters.
Art. 190 talks of succession. It should be placed in Book 3 of the Civil Code.
Under certain conditions, is the adopter a compulsory heir? No. Art. 190 did not
make the adopter a compulsory heir because only free portion is given to him.
Therefore, if an adopted child writes a will and gives everything to his friends,
there is no preterition of the adoptive parent because the adopter, clearly from
Art. 190, does not enjoy successional rights in testamentary succession; only in
intestacy.
Is it possible to have an intestate share although you are not a compulsory heir?
Yes, brothers/sisters/uncles/aunts/nephews/nieces. They are all collateral
relatives. Art. 190 gave the adoptive parent successional rights similar to a
collateral relative. And only to the extent that something is left to the estate after
payment of the legitime.
SUBSECTION 2. - Ascending Direct Line
Art. 985. In default of legitimate children and descendants of the deceased, his
parents and ascendants shall inherit from him, to the exclusion of collateral
relatives.
Art. 986. The father and mother, if living, shall inherit in equal shares.
Should one only of them survive, he or she shall succeed to the entire estate of the
child.
Art. 987. In default of the father and mother, the ascendants nearest in degree
shall inherit.
Should there be more than one of equal degree belonging to the same line they
shall divide the inheritance per capita; should they be of different lines but of
equal degree, one-half shall go to the paternal and the other half to the maternal
ascendants. In each line the division shall be made per capita.
85$

When are parents/ascendants intestate heirs? For parents or ascendants to
inherit, the status of the deceased is important.
D E F G Who are the compulsory heirs of A?
# $ # $ Parents and ascendants. Check the
B C status of A. Legitimate parents and
# $ ascendants are included as compulsory
A heirs. If A is illegitimate, only B and C
will inherit.
$ succeeded by his or her surviving spouse who shall be entitled to the entire
D E F G
# $ # $
B C
# $
A
% Illegitimate children are 3rd in line. They are relatives of the parents (direct
X descendant). If you are an illegitimate child, it means your mother and father are
The illegitimate child cannot exclude the legitimate parents. If X is illegitimate,
and A is legitimate, then the parents (B and C) are also legitimate. X cannot
exclude the legitimate parents (B and C) and legitimate grandparents (D E F G).
If A is illegitimate as well, his parents (B and C) are also illegitimate. When do the
illegitimate parents inherit? The illegitimate parents inherit only in the absence
of any descendant. Therefore, only X will inherit.
When succession is going up, the division is per line: half maternal, half paternal.
If one side dies, the inheritance is consolidated in the other side; no right of
representation going up. If both side dies, the grandparents will inherit; half
maternal, half paternal.
If succession goes up, bear in mind that there is a possibility of reserva.
SUBSECTION 3. - Illegitimate Children
Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate
children shall succeed to the entire estate of the deceased.
Art. 989. If, together with illegitimate children, there should survive descendants
of another illegitimate child who is dead, the former shall succeed in their own
right and the latter by right of representation.
Art. 990. The hereditary rights granted by the two preceding articles to
illegitimate children shall be transmitted upon their death to their descendants,
who shall inherit by right of representation from their deceased grandparent.
Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the
inheritance with them, taking one-half of the estate, whatever be the number of
the ascendants or of the illegitimate children.
GING$!$$
Art. 992. An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate child.
Art. 993. If an illegitimate child should die without issue, either legitimate or
illegitimate, his father or mother shall succeed to his entire estate; and if the
child's filiation is duly proved as to both parents, who are both living, they shall
inherit from him share and share alike.
Art. 994. In default of the father or mother, an illegitimate child shall be
estate.
If the widow or widower should survive with brothers and sisters, nephews and
nieces, she or he shall inherit one-half of the estate, and the latter the other half.
not validly married or married at all. Illegitimate children will always inherit.
However, their share is smaller than the share of legitimate. The ½ share of the
legitimate children in testate succession is carried to intestacy.
Under the old law, the illegitimate children are classified further. Also, the
illegitimate children must claim filiation. If his father does not recognize him at
birth, the child can bring an action to compel the father to recognize his filiation
and the prescriptive period for filing an action for compulsive recognition is the
lifetime of the father. In the Civil Code, an illegitimate child who is not
recognized by the father has no rights with regard to the father (no right to bear
the surname, no right to support, no right to inherit). Therefore, an unrecognized
illegitimate child is under the parental authority solely of the mother.
Family Code: why should it be the obligation of the child to prove his filiation?
The child would have no first hand knowledge and proof who his father is. The
FC changed the rule. Now, it is not necessary for the father to recognize the
illegitimate child. The child acquires all the rights of an illegitimate child if the
child possesses the status of an illegitimate child. How do you prove possession
of the status of an illegitimate child? In the same way that a legitimate child can
prove his possession of the status of a legitimate child (ex: (1) signature in the
birth certificate, (2) any authentic document that is notarized/a private
instrument in the handwriting of the father, (3) continuous possession of that
status/enjoying that status as when the father was openly his father during
baptism). Even if the father doesn’t recognize the illegitimate child, and even
after the death of the father, the illegitimate child can go to court and prove
continuous possession of the status of illegitimacy.
Partial intestacy: Estate is P140,000. The testator executes a will with only one
provision: to X, legacy of P30,000. The survivors are: X legatee, A illegitimate
Child and Y legitimate Father. Divide the estate.
This is a case of testamentary succession as far as the legacy is concerned and
86$
partial intestacy with respect to the rest of the estate.
Your obligation first is to figure out if the legacy can be given effect or set aside or
reduced to the extent that it is inofficious. How do I know if the legacy can be
given effect? The legacy must fit into the legitime.
Who are the compulsory heirs?
Illegitimate Child ¼
Legitimate Parent ½ SUBSECTION 4. - Surviving Spouse
Legitime ¾
Since the legitime is ¾, the free portion is ¼ or P35,000. Since the legacy is only
P30,000, it did not impair legitime. To liquidate the estate, the first thing you
must do is to pay the legacy because this is the part covered by testamentary
succession and testacy enjoys priority over intestacy.
What is left is P110,000 (P140,000 – 30,000). How should P110,000 be
distributed between the illegitimate child and the legitimate parent?
Intestate share of illegitimate child concurring with legitimate parent (½, ½)
A 55,000
Y 55,000
This is wrong because there is impairment of legitime! The legitime of the father
is ½ which is P70,000 while the legitime of the illegitimate child is only ¼ which
is P35,000. Giving the father only P55,000 would impair his legitime. The
legitime of the father is given and the rest is given to the illegitimate child.
A 40,000
Y 70,000
X 30,000
While talking of the successional rights of the illegitimate child, you have to
consider the barrier: the segregation of the illegitimate children from the
legitimate family. The barrier does not remove the blood relationship between
members of the legitimate family and the illegitimate child.
GRO -------- H ------------- W
# $ $#
X S D Art. 1001. Should brothers and sisters or their children survive with the widow or
Where H is the husband, W is the wife, S is the legitimate son, D is the legitimate
daughter. This is the legitimate family. GRO is the mistress of H and X is their
illegitimate child.
The law puts a boundary. In intestate succession, W, S and D cannot inherit from
GRO and X; neither can GRO and X inherit from W, S and D. To be fair, Art. 992
operates bilaterally. The legitimate family cannot inherit from X.
GING$!$$
The barrier applies not only to the linear relationship but also to collaterals.
When D dies, S will inherit but X will not by intestacy. For X to inherit from D, D
has to write a will. Otherwise, the illegitimate status of X will prevent him from
inheriting from a half sister. It should have been 2:1 (full blood: half blood) but
because of the illegitimacy, the illegitimate child is excluded by intestacy.
Illegitimate parents are excluded by legitimate descendants.
Art. 995. In the absence of legitimate descendants and ascendants, and
illegitimate children and their descendants, whether legitimate or illegitimate,
the surviving spouse shall inherit the entire estate, without prejudice to the rights
of brothers and sisters, nephews and nieces, should there be any, under article
1001.
Art. 996. If a widow or widower and legitimate children or descendants are left,
the surviving spouse has in the succession the same share as that of each of the
children.
Art. 997. When the widow or widower survives with legitimate parents or
ascendants, the surviving spouse shall be entitled to one-half of the estate, and
the legitimate parents or ascendants to the other half.
Art. 998. If a widow or widower survives with illegitimate children, such widow
or widower shall be entitled to one-half of the inheritance, and the illegitimate
children or their descendants, whether legitimate or illegitimate, to the other
half.
Art. 999. When the widow or widower survives with legitimate children or their
descendants and illegitimate children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the same share as that of
a legitimate child.
Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate
children are left, the ascendants shall be entitled to one-half of the inheritance,
and the other half shall be divided between the surviving spouse and the
illegitimate children so that such widow or widower shall have one-fourth of the
estate, and the illegitimate children the other fourth.
widower, the latter shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other half. (953, 837a)
Art. 1002. In case of a legal separation, if the surviving spouse gave cause for the
separation, he or she shall not have any of the rights granted in the preceding
articles
Spouse: (must be validly married)
87$
General rule: same share as a legitimate child.
What if the spouse cannot give birth but her husband has an illegitimate child?
Their share is 1/3, 1/3
What if there are no children but the ascendants are alive? ½, ½
What if she is the only survivor? 1/2, 1/3, 1/2
Among the heirs, it is only the spouse who can never be charged or obliged to
collate because there can be no valid donation between a husband and a wife.
Art. 1002 states “gave cause” –judgment or final judgment is not required
SUBSECTION 5. - Collateral Relatives
Art. 1003. If there are no descendants, ascendants, illegitimate children, or a
surviving spouse, the collateral relatives shall succeed to the entire estate of the
deceased in accordance with the following articles.
Art. 1004. Should the only survivors be brothers and sisters of the full blood, they
shall inherit in equal shares.
Art. 1005. Should brothers and sisters survive together with nephews and nieces,
who are the children of the descendant's brothers and sisters of the full blood, the
former shall inherit per capita, and the latter per stirpes.
Art. 1006. Should brother and sisters of the full blood survive together with
brothers and sisters of the half blood, the former shall be entitled to a share
double that of the latter.
Art. 1007. In case brothers and sisters of the half blood, some on the father's and
some on the mother's side, are the only survivors, all shall inherit in equal shares
without distinction as to the origin of the property.
Art. 1008. Children of brothers and sisters of the half blood shall succeed per
capita or per stirpes, in accordance with the rules laid down for the brothers and
sisters of the full blood.
Art. 1009. Should there be neither brothers nor sisters nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.
Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth
degree of relationship in the collateral line.
Art. 1006: full blood sibling gets twice as much as half blood sibling (2:1). The
ratio 2:1 is also applicable to nephews and nieces.
GING$!$$
Estate of X is 120,000. The 3 intestate heirs: B, C, and D. Why did the collateral
relatives inherit? There are no children, descendants, ascendants, or spouse.
Full blood Half blood
X B C D
60 30 30
B, the full blood sibling of X, gets twice as much as C and D, X’s half blood
siblings. Supposing D predeceased X, but he has a child. There is right of
representation. How much? Full intestate share because this is intestacy;
representation covers full intestate share.
Supposing C predeceased and he has 2 children, his children will get 15 each.
Supposing B predeceased, and he has a child, W. How much will W get? There
can only be representation of nephews and nieces if they concur with at least one
uncle or aunt. But since B, C and D predeceased X, the nephews will inherit in
their own right. The 2:1 ratio still applies to nephews. Therefore, 120/5 = 24. W
will get 48 and his 3 cousins will get 24 each, in their own right.
SUBSECTION 6. - The State
Art. 1011. In default of persons entitled to succeed in accordance with the
provisions of the preceding Sections, the State shall inherit the whole estate.
Art. 1012. In order that the State may take possession of the property mentioned
in the preceding article, the pertinent provisions of the Rules of Court must be
observed.
Art. 1013. After the payment of debts and charges, the personal property shall be
assigned to the municipality or city where the deceased last resided in the
Philippines, and the real estate to the municipalities or cities, respectively, in
which the same is situated.
If the deceased never resided in the Philippines, the whole estate shall be
assigned to the respective municipalities or cities where the same is located.
Such estate shall be for the benefit of public schools, and public charitable
institutions and centers, in such municipalities or cities. The court shall
distribute the estate as the respective needs of each beneficiary may warrant.
The court, at the instance of an interested party, or on its own motion, may order
the establishment of a permanent trust, so that only the income from the
property shall be used.
Art. 1014. If a person legally entitled to the estate of the deceased appears and
files a claim thereto with the court within five years from the date the property
was delivered to the State, such person shall be entitled to the possession of the
same, or if sold the municipality or city shall be accountable to him for such part
of the proceeds as may not have been lawfully spent.
When the State inherits, it doesn’t institute proceedings in intestacy. It is the
88$
Solicitor General who initiates the intestate proceedings. It is governed by the
proceedings called escheat.
CHAPTER 4- PROVISIONS COMMON TO TESTATE AND INTESTATE
SUCCESSIONS
SECTION 1. - Right of Accretion
Art. 1015. Accretion is a right by virtue of which, when two or more persons are
called to the same inheritance, devise or legacy, the part assigned to the one who
renounces or cannot receive his share, or who died before the testator, is added
or incorporated to that of his co-heirs, co-devisees, or co-legatees.
Art. 1016. In order that the right of accretion may take place in a testamentary
succession, it shall be necessary:
(1) That two or more persons be called to the same inheritance, or to the same
portion thereof, pro indiviso; and
(2) That one of the persons thus called die before the testator, or renounce the
inheritance, or be incapacitated to receive it
Art. 1017. The words "one-half for each" or "in equal shares" or any others which,
though designating an aliquot part, do not identify it by such description as shall
make each heir the exclusive owner of determinate property, shall not exclude
the right of accretion.
In case of money or fungible goods, if the share of each heir is not earmarked,
there shall be a right of accretion.
Art. 1018. In legal succession the share of the person who repudiates the
inheritance shall always accrue to his co-heirs.
Art. 1019. The heirs to whom the portion goes by the right of accretion take it in
the same proportion that they inherit.
Art. 1020. The heirs to whom the inheritance accrues shall succeed to all the
rights and obligations which the heir who renounced or could not receive it
would have had.
Art. 1021. Among the compulsory heirs the right of accretion shall take place only
when the free portion is left to two or more of them, or to any one of them and to
a stranger.
Should the part repudiated be the legitime, the other co-heirs shall succeed to it
in their own right, and not by the right of accretion.
Art. 1022. In testamentary succession, when the right of accretion does not take
place, the vacant portion of the instituted heirs, if no substitute has been
designated, shall pass to the legal heirs of the testator, who shall receive it with
the same charges and obligations.
GING$!$$
Art. 1023. Accretion shall also take place among devisees, legatees and
usufructuaries under the same conditions established for heirs.
In Book 2, accretion is one of the many forms of accession. Accession is a process
by which a person acquires ownership of anything and everything that is attached
to, incorporated with or produced by a property he owns. Alluvium is just a form
of accretion because in accretion you are talking of something that attaches to
your property and when what attaches is land that is adjoining a navigable river,
then you have alluvium.
Accretion in succession is something that is added to. When you apply the rules
of accretion in succession, you’re getting something from nowhere and you’re
adding it to somebody else’s share because the accessory will follow the principal.
In Art. 1015, accretion is a right. When 2 or more persons are called to the same
inheritance, device or legacy, the part that is assigned to one who predeceases,
who repudiates, or who is incapacitated, is added to the share of his co-heirs, co-
legatees, or co-devisees.
Grounds for accretion: repudiation, incapacity, predecease (R.I.P.). Another
reason for vacancy is disinheritance. But accretion will not apply to
disinheritance because the remedy that is given by the law is representation
although the remedy is limited.
What justifies accretion in R.I.P.? When a testator gives something to a group of
people, he meant that thing for them to the exclusion of all others, creating an
implied preference.
Requisites:
1. Unity of the object of the inheritance
One object of the inheritance. It could be a specific movable/immovable property
or it could be a fraction of the estate. What is important is there is only one thing
given in the will.
2. Plurality of the subjects
There must be several heirs. You cannot have accretion if there is only one heir
because there is nothing from whom he will get something to be added to his
share.
3. Vacancy in the inheritance
If there is no vacancy, you cannot accrue anything. The vacancy is created by
R.I.P.
4. Beneficiary of accretion must accept the inheritance
For accretion to take place, if there is a vacancy, there must be someone who
must be willing and capable to accept
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5. There should be no earmarking
Earmarking – you did not split up the property into parts and you gave a specific
part to a specific heir
Non-earmarking – the designation of 1/2, 1/3, 1/4, 30%, etc., is not equivalent to
earmarking because what the testator simply says is how you guys are going to
divide the property amongst yourselves
Test of non-earmarking: there is no earmarking if the co-heirs become co-
owners. But if they will not become co-owners of that unitary object, then there
must have been earmarking.
The testator decides to control the disposition of his estate. Our law says he can
do that but there are requirements. He must possess testamentary capacity and
must comply with the rules respecting the execution of a will. If he does that, he
can control the disposition of his estate which is exactly what the law wants to
encourage. When a person writes his will and exercises the right to control the
disposition of his property, he is not assured that what he wrote in the will can be
implemented.
I may have known the entirety of my estate and to whom I want to give it to, I
may have written a valid will that I know will past probate, but there are things
beyond my control as when the heir repudiates, is incapacitated, or predeceases
the testator. If there is a vacancy in the inheritance, a testator may have exercised
that right to control, but it cannot be implemented resulting in a vacancy in the
inheritance. The law allows certain measures: 2 are provisions of law that will
cure the vacancy, and 1 is a right given to the testator to prevent the vacancy.
How can the testator prevent the intestacy in the distribution of his estate?
Substitution. Grounds are R.I.P. However, there is a limitation. If the testator
appointed a substitute should any of the heirs predecease, and one of the heirs
decided to repudiate, substitution will not happen.
The law realizes that and therefore gives the testator 2 more chances to prevent
intestacy.
Vacancy that is cured by representation. The grounds are D.I.P. But among the
remedies provided by law, the most restrictive is representation. For
testamentary succession, representation is available only in the descending line.
It is never available in the ascending line and the collateral. Even if it is available
in D.I.P., it is limited to the representation to the legitime. There is also a
restriction in Art. 992 with respect to the illegitimates.
Representation is not a full-proof remedy. The last remedy to cure the vacancy is
accretion. Consider the 5 requirements. So you know that even accretion is not
full-proof. Along with these 5 requirements, there is an additional negative
requirement: legitime is not subject to accretion. This is the 6th negative
requirement: there can be no accretion with respect to legitime.
GING$!$$
Supposing a testator writes a will. In his will, he appoints or institutes 3 brothers
A (1/2), B (1/3) and C (1/6). Net estate is 60,000. A predeceased.
Institution Accretion Total
A 1/2 P30,000
B 1/3 20,000 P20,000 P40,000
C 1/6 10,000 10,000 20,000
P30,000 P30,000 P60,000
The ones instituted are the brothers, the voluntary heirs. Obviously, the testator
does not have compulsory heirs. Since there are only voluntary heirs, there is no
legitime to be considered. There will be a vacancy as to the P30,000 of A because
he predeceased the testator. The first remedy, substitution, cannot be applied
because nothing was provided. Can A be represented? No, because this is
testamentary succession which is limited to the descending line and to the extent
of the legitime and we are not talking of legitime here. Whatever is given to the
brothers is given out of the free disposal. In fact, in this case, the entire estate is
free disposal.
Therefore, we try accretion. Is there unity of object? Plurality of subject?
Vacancy? Acceptance? Non-earmarking? Yes to all. Does it involve legitime? No.
So we accrue. Who is to receive the P30,000 by accretion? B and C by 2:1.
If A, B, C are legitimate children.
Vacancy is P30,000. The heirs are legitimate children of the testator. Therefore,
when he institutes his heirs like this, the first thing to check is if legitime
impaired. In this case, there is no impairment. If all of them were alive, the
distribution would have been P30,000 to A, P20,000 to B, P10,000 to C.
How should the vacancy of P30,000 be distributed? There is no substitution, A
has no descendants for representation. Therefore, the only remedy is accretion
before you jump to intestacy. Is there unity of object? Plurality of subject?
Vacancy? Acceptance? Non-earmarking? Yes to all. BUT! Accretion cannot
include legitime.
You have to extract legitime. Since the estate is P60,000, the legitime of the
children is P10,000 each. Legitime is never accrued because when A predeceased,
technically, he never inherited from the testator. Therefore, when the testator
died and P30,000 of his estate is legitime, how many people will divide the
legitime? 2 (B and C). While he is theoretically entitled to legitime, because he
predeceased, the legitime must be added to the legitime of B and C as additional
legitime.
Now, you can accrue the free portion of A. Who benefits from the accretion? B
only. C received the legitime only. He received no free portion. In accretion, we
eliminate the legitime. We only accrue the free portion. In the distribution of the
accrual, legitime is removed.
90$
 Extract legitime Additional Accrual Total
legitime Defects of this answer:
A P30,000 P10,000 legitime
20,000 free portion 1. The legitime of the father is impaired. The legitime of ascendants in the
absence of legitimate descendants is half the estate. What was given to the
B 20,000 10,000 legitime +5,000 P20,000 P45,000 father in this case is only ¼, thereby impairing his legitime.
10,000 free portion
2. Assuming what he did was correct, the father and the 2 illegitimate children
C 10,000 10,000 legitime +5,000 0 15,000 would only get their legitime. Only the wife will get the free portion because
P60,000 the legitime of the wife should only be 1/8. If you will accrue, you will only
accrue to the one who received free portion. Therefore, the whole P120,000
Art. 1018. In legal succession the share of the person who repudiates the will be given to the surviving spouse.
inheritance shall always accrue to his co-heirs.
Estate of P210,000. Testator instituted 4 voluntary heirs A B C D. D repudiated.
Art. 1018 talks about intestacy and it says in intestacy, if there is a repudiator, his
share will always accrue to his co-heirs. An intestate heir repudiates. There will Institution Accrual Total
be a vacancy. There are only 2 remedies available in intestacy to cure the vacancy: A 1/2 P105,000 P15,000 P120,000
(there can be no substitution in intestacy) representation and accretion. The B 1/4 52,500 7,500 60,000
problem is, in the rules of representation, the last provision says a repudiator can C 1/8 26,250 3,750 30,000
never be represented. The only remedy available therefore is accretion. In D 1/8 26,250
intestacy, the share of the repudiator will be distributed by accretion.
4:2:1 = 7 so P26,250/7= 3,750
This is a useless provision of law because it simply says what is bound to happen
anyway. Jurado disagrees. According to him, it is not in all cases that the estate The vacancy is P26,250. No substitution, no representation. Give it by accretion.
left by intestacy may be accrued. This is his the example: These are all voluntary heirs. Everything that they receive is free portion.

M F What if A B C D are legitimate children? The legitime is P26,250. There is no

# $ impairment of legitime. Since D repudiated, the vacancy is P26,250. Since
W - T P26,250 is legitime, it will not be accrued. It should be divided by 3 (P8,750) and
$ # be distributed as additional legitime to the other heirs.
A D
Institution Additional legitime Total
Survivors: Legitimate parents, surviving spouse and 2 illegitimate children A and A 1/2 P105,000 P8,750 P113,750
B. The estate is P480,000. He is talking of intestacy because we are looking at B 1/4 52,500 8,750 61,250
Art. 1018. In intestate succession, the division would be: legitimate parents ½ C 1/8 26,250 8,750 35,000
(P120,000 each), spouse ¼ (P120,000), illegitimate children ¼ (P60,000 each). D 1/8 26,250
Now, he creates a problem. The mother predeceased. In this example, whether
the division is by testamentary or intestate succession, it will be the same because If A is the one who repudiated, the legitime must be separated first.
the entire estate is legitime. If this was a case of testamentary succession, the
share of P120,000 of the mother will go to the father. But then he says, if this was Summary of what accretion is in relation to substitution and representation: In
a case of intestacy: representation and substitution and accretion, the basic premise is the testator
executed a will and therefore he wants to control the disposition of his estate. No
According to Jurado: matter how clever he is in trying to distribute as much as he can to leave nothing
Intestacy Accretion (2:2:1:1) to intestacy, there are 3 things he cannot control: R.I.P.
F P120,000 P40,000
W 120,000 40,000 He instituted 4 people; he gave everything to these 4. But if one of them should
A 60,000 20,000 die ahead of the testator, that is something he cannot control so a vacancy is
B 60,000 20,000 created. If one of the heirs does not want to accept, he cannot be forced to. If an
heir tries to kill the testator, he cannot inherit anymore because law will
According to him, accretion will be in favor of all heirs who survived. disqualify him. A process of transition from testamentary succession to intestate
succession brought about largely by vacancies in the inheritance that are beyond
GING$!$$ 91$
the control of the testator. By Accretion Vacant 15,000 15,000
Total P45,000 P45,000
We start with testamentary succession. In testamentary succession, what the
testator writes in his will is the supreme law assuming the will is valid and there If there is earmarking, you cannot accrue.
is nothing wrong with the distribution because it did not impair legitime.
A B C Brother
Institution " Substitution " Representation " Accretion By Institution P30,000 P30,000 P30,000
R.I.P D.I.P By Intestacy P30,000

First scenario: The testator has an estate of P90,000. He has 3 friends (no
compulsory heirs). He has a brother whom he dislikes. In order to prevent the
brother from inheriting his estate, he has to write a will. Otherwise, the brother
will get everything by intestacy. He writes a will and says “A, B and C are my
friends. I give you my estate in equal shares.” If the will is valid, distribution
would have been P30,000 to each. Supposing A predeceased. His portion will be
vacant. Can there be substitution? No because the testator did not provide for
such. Can A be represented? No because representation in testamentary
succession is available only in the descending line and only to the extent of the
legitime. A is not a descendant of the testator. He is a voluntary heir and
therefore, there is no legitime. Even if A has his own descendant, his descendant
cannot inherit because this is a case of voluntary succession. Can there be
accretion? Yes, there is unity of object, plurality of subject, vacancy, acceptance,
non-earmarking, and it does not impair legitime. B and C gets 30 by institution
and 15 by accretion.
A B C P10,000
By Institution P30,000 P30,000 P30,000
By Accretion Vacant 15,000 15,000
Total P45,000 P45,000
Fourth scenario: A, B, C are no longer friends; they are brothers of the
testator. A has a legitimate child X. The estate is still P90,000. And there is still
segregation of banks. This is testamentary succession. How much of the
institution can be given effect? P30,000 to B and P30,000 C. There can be no
substitution, representation and accretion (there is earmarking). This is the
intestate estate of the testator where the amount available under intestacy is
P30,000 (vacancy created by A because he predeceased).
Intestate estate of T = P30,000
Who are the intestate heirs of T? A, B, C
If all of them were alive, they would have divided the estate equally. Of the
P30,000, each of them will get P10,000 by intestacy.
A B C
P10,000 P10,000
There will still be P10,000 left because he predeceased. X will get his share
because X is a legitimate child.

Second scenario: Using the same set of facts, the testator says: the P30,000 of Institution Intestacy (representation in intestate succession)
each heir from the estate of P90,000 will come from 3 different banks. P30,000 X P10,000
of A from MM Bank, P30,000 of B from RR Bank and P30,000 of C from XX B P30,000 10,000
Bank. Because of A’s death, there will be a vacancy. No substitution, no C 30,000 10,000
representation. Accretion is blocked because there is earmarking. The P30,000
pertaining to A will go to the brother of the testator. But what if X is an illegitimate child. His right to represent his father to inherit
P10,000 from T is affected by Art. 992. The intestate share of A cannot be
A B C Brother represented. X is disqualified. Where will P10,000 go? P5,000 and P5,000
By Institution P30,000 P30,000 P30,000 accretion by intestacy
By Intestacy P30,000
Institution Intestacy Accretion in intestacy
Third scenario: The testator appointed a substitute. A has S for substitute only X P10,000
for repudiation. C has E for substitute only for predecease. A predeceased. B P30,000 10,000 P5,000
Substitution generally covers R.I.P. but this time it was for repudiation. But the C 30,000 10,000 5,000
cause of vacancy is predeceased. Therefore, the substitution cannot be given
effect because A predeceased. There is no representation. Can we accrue? Yes, if Justice Puno:
there was no earmarking.
P R
A B C " "
By Institution P30,000 P30,000 P30,000 Preterition Reservable property

GING$!$$ 92$
If there is preterition, you go immediately to intestacy because you will annul
the institution of heirs. The only thing you can give effect here is the legacies and
devises. The R here is the reservable property which is distributed, according
to Badura vs Baldovino, under the rules of delayed intestacy. Therefore, any
reservable property forming part of the estate of a deceased person must
immediately be segregated and transferred in intestacy.
Justice Paras: ISRAI Rule
I S R A
" " " "
Institution Substitution Representation Accretion
The transition from testamentary succession to intestacy is a long process. When
the testator writes his will, there will be an institution and for the purpose of
this rule, institution will include legacies and devises.
If I can give effect to the will and able to distribute everything by institution but if
something becomes vacant because of R.I.P., the first remedy is substitution, if
available. Substitution, while it generally covers R.I.P., can be limited to a specific
cause. If it is limited, it will only cover that particular cause.
If substitution is not applicable, try if representation in testamentary
succession is available subject to the rules in testamentary succession. It is
available only to the descendants in the direct line and only as far as legitime is
concerned. Subject to the barrier in Art. 992.
The last remedy is accretion in testamentary succession, which has 5
positive requirements and 1 negative requirement (exclude legitime).
ISRA are still within the realm of testamentary succession. If the vacancy still
can’t be distributed, you now have to bring the vacancy up to intestate
succession.
Atty. Sebastian:
R A
" "
Representation in intestacy Accretion in intestacy
This representation in intestacy can be blocked by making the descendant an
illegitimate descendant, as in the example above. In this case, it will go up by
right of accretion in intestacy.
SECTION 2. - Capacity to Succeed by Will of by Intestacy
Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato.
The provisions relating to incapacity by will are equally applicable to intestate
succession.
GING$!$$
“Persons not incapacitated by law may succeed by will or ab intestate” – if you
are not disqualified, you can inherit by will or by intestacy. This is false because
the implication is if you do not suffer from any incapacity, you can inherit by will
or by intestacy. In Art. 992, one can inherit by testamentary succession but
cannot inherit by intestacy.
“The provisions relating to incapacity by will are equally applicable to intestate
succession” – again this is wrong. If you take a look at Arts. 1027 and 1028, which
enumerates a number of incapacities, they only apply to testamentary succession.
I They can never apply to intestacy.
Intestacy 2 Types of incapacities:
1. Absolute – if you define it as the incapacity to inherit under any
circumstance, I could only think of 1 concrete example: a person that does
not exist either because he is yet to be conceived or because he cannot be
identified.
This does not include an unborn child. In the case of an unborn child, there is a
possibility he can succeed pursuant to Arts. 40 and 41 of the Civil Code under the
doctrine of presumptive personality.
2. Relative – generally, what we speak of incapacities referred to in this
section of the Code are all relative incapacities.
Art. 1027 – incapacities arising from issues of public policy and morality
Art. 1028 – issues of incapacity relating to possible undue influence
Art. 1032 – incapacity arising from unworthiness
Art. 992 – form of incapacity by reason of illegitimacy
Incapacities are all based on law. It arises from the commission of certain acts,
possession of certain qualities, and sometimes even from relationships.
Art. 1025. In order to be capacitated to inherit, the heir, devisee or legatee must
be living at the moment the succession opens, except in case of representation,
when it is proper.
A child already conceived at the time of the death of the decedent is capable of
succeeding provided it be born later under the conditions prescribed in article 41.
Art. 1025 speaks of the unborn child. The unborn child may be benefited by Art.
40 provided the conditions of Art. 41 are fulfilled. You have the conceived child
who is deemed born for purposes favorable to it. Under Art. 41 of the Civil Code,
it talks about the intrauterine life of less than 7 months and the intrauterine life
of 7 months or more. And the survival of the infant after birth. Therefore, you
have to take into account the fact that under certain circumstance, a fetus in the
womb of the mother may inherit from the testator.
93$
Art. 1026. A testamentary disposition may be made to the State, provinces,
municipal corporations, private corporations, organizations, or associations for
religious, scientific, cultural, educational, or charitable purposes.
All other corporations or entities may succeed under a will, unless there is a
provision to the contrary in their charter or the laws of their creation, and always
subject to the same.
Art. 1026 was included only because we are talking of the capacity of an entity
which is neither a natural person nor a juridical person such that Art. 1026 may
include organizations, associations for religious, scientific, cultural, educational,
or charitable purposes. Generally, if you want to inherit, you must have juridical
personality which is inherent in every natural person and it is also conferred
upon juridical entities such as corporations and partnerships. There is no
question that these people can inherit and can acquire ownership.
However, if you were to organize a group without forming a corporation or
cooperative. Just a group, and you call yourselves "Samahang Tomatungbazooka"
can you qualify to inherit? Yes, you can invoke 1026. But then who acquires
ownership of the inheritance? The individual members of the unincorporated
organization.
Art. 1027. The following are incapable of succeeding:
The incapacities in Art. 1027 are based on an assumption that the persons
disqualified are persons who have an opportunity to have exerted undue
influence on the testator in the execution of the will. The law disqualifies them
solely by reason of having had opportunity to influence the testator. The
presumption is they did influence the testator. Under Art. 1027, that presumption
is conclusive because the mere fact that you fall under any of the 6 groups you are
already declared incapacitated. There is no way by which this incapacity can be
lifted unlike in unworthiness that condonation can lift it. Even if the testator were
to say "I know that he is disqualified. I am still nonetheless giving this to him,"
that is still not allowed. Art. 1027 is in the nature of a prohibition. These are the
people who cannot inherit and therefore, it is not within the competence of the
testator to lift that disqualification. People named in Art. 1027 are only
disqualified in testamentary succession because there can be no influence exerted
in intestacy.
Furthermore, you have to qualify the disqualification in Art. 1027. In Art. 1027,
they are only disqualified by law because there may have been undue influence. If
he is a compulsory heir, the disqualification will not apply to the legitime.
Otherwise, rules of compulsory succession will be violated. The legitime can only
be denied in the case of a valid disinheritance. You cannot be disqualified under
Art. 1027 with respect to the legitime.
(1) The priest who heard the confession of the testator during his last illness, or
the minister of the gospel who extended spiritual aid to him during the same
period;
a. Priest – only the priest who heard the confession of the testator during his
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last illness.
In history, the religious abused their powers to amass wealth. In our history,
much has been said about the friar lands which encompass practically all of the
province of Laguna. They abuse their spiritual authority over the people and the
abuse, more often than not, occurred inside the confessional box.
How is the confessional box abused? A person confesses under the belief that his
soul will go to hell if he doesn’t. The priest will tell the person to pray this and
that but to make things easier, he can just donate something to the church.
Among the abuses the friars committed is attending to a dying man’s spiritual
needs and then calling for a lawyer to write a will. When you attend the spiritual
needs of a dying man, and he firmly believes in what you say, there is no question
that the spiritual advisor will exert quite a bit of influence on a dying man – a
person who is conscious that his hours are numbered.
The confession must be in the last illness. It need not be the last confession but it
must be during the last illness. The situation here is: there is a sick man. He
confesses to the priest. After the confession, the sick man writes a will and in that
will, the priest is a beneficiary. If that happens, then the priest falls squarely
under paragraph 1. Another scenario, the priest heard the confession during the
last illness and the testator dies. But the testator wrote the will before the
confession. You cannot disqualify the priest because there was no way that he
could have influenced the testator to write a provision in his favor. The sequence
of events is important. There must be a sick man, he must go to confession, he
writes a will and gives a provision to the priest – that is the scenario.
b. Minister of the gospel – you cannot single out the priests. If you single out
the priests who heard the confession, the law can be challenged under the
equal protection clause. That would be a case of class legislation. What
about the other religious ministers? If you focus on the spiritual
relationship between the priest and the sick man, there should be no
difference between the relationship of a pastor and a sick man or an imam
and a sick man if you want to comply with our constitutional prohibition
against class legislation.
Except that in the case of the minister of the gospel, there is no need to confess to
him. It is enough that he gave spiritual comfort or spiritual aid for him to be
disqualified.
In the case of the minister of the gospel, for him to be disqualified: the sick man
was attended to by the minister of the gospel, he writes a will and then he dies.
Another issue that some commentators are raising: Some of the illnesses take a
long period before it takes the life of the patient (ex. cancer). Example: after
being diagnosed, if he doesn’t go into remission, he will remain sick. He lived for
a full year before he died. What would be the last illness? Cancer but it has a span
of 1 year.
Supposing on the day he was diagnosed with cancer, he went to confession. After
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a week, he wrote a will and in that will he made a provision for the priest who
heard the confession. He keeps the will and he lives for 11 more months until he
dies. He wrote the will at the beginning of the year after he went to confession, he
lived for 11 more months before he died. There was a disposition in favor of the
priest. Can you disqualify the priest? Many commentators say no. Even if we are
to assume conclusively that there was undue influence, he had 11 months to
revoke that will. If he did nothing in 11 months, the conclusion is he ratified the
benefit to the priest. Consequently, the will must be executed after the confession
and there must not be a reasonable period of time for the testator to change his
mind. This means he should die shortly thereafter. If he lives for extended period
of time, then he would have revoked the will. Except if you can prove that there
was no way he could have revoked it. But if he had custody, he could have
revoked it, it seems even if he was influenced into doing certain things, he had an
opportunity to think it over and not having done anything about it, he ratified
what he earlier wrote.
(2) The relatives of such priest or minister of the gospel within the fourth degree,
the church, order, chapter, community, organization, or institution to which such
priest or minister may belong;
The disqualification was extended to:
a. all relatives of such priest or minister of the gospel within the 4th degree
The qualification was extended to all his relatives within the 4th degree by
consanguinity. Blood relationship because you are talking of degrees by
consanguinity. No distinction between legitimate and illegitimate relatives.
b. the church, order, chapter, community, organization or institution to which
such priest or minister may belong.
Why was it extended? The code commission knows that the legacy or devise
might be diverted to the relatives or the church, order, chapter, community,
organization or institution.
What if the priest or minister has a spouse? There is no law prohibiting the priest
from contracting marriage. They are prohibited by canon law but canon law is
not part of our legal system.
Should the spouse be included in the disqualification? The purpose of the law is
to forbid the priest or minister to receive it either through his relatives, or in the
name of his congregation. The law does not want him (or his relatives and
congregation) to benefit from his use of the confessional box. If that is the
objective, then the wives should also be prohibited.
What if the priest does not marry the woman (just a girlfriend)? Should she be
disqualified again?
Art. 1027 is a special disqualification to receive property. When you extend the
effect of that disqualification to people who are not named in the law, is there a
potential that it could violate the due process clause?
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(3) A guardian with respect to testamentary dispositions given by a ward in his
favor before the final accounts of the guardianship have been approved, even if
the testator should die after the approval thereof; nevertheless, any provision
made by the ward in favor of the guardian when the latter is his ascendant,
descendant, brother, sister, or spouse, shall be valid;
The guardian is incapacitated to inherit from the ward unless his accounts are
finally approved.
This provision may still be applicable in certain cases.
Art. 38. Minority, insanity or imbecility, the state of being a deaf-mute,
prodigality and civil interdiction are mere restrictions on capacity to act, and do
not exempt the incapacitated person from certain obligations, as when the latter
arise from his acts or from property relations, such as easements.
What impairs the capacity to act? Minority, insanity, imbecility, state of being a
deaf-mute, prodigality or being a spendthrift. If you are judicially declared a
spendthrift, can you write a will? Yes. Are you under guardianship? Yes. So (3)
can still apply. If you are blind, can you be placed under guardianship? Yes. Can
you write a will? Yes. So it can apply.
In Civil Code, the age of majority is 21 but you can write a will at age 18. A minor
who has no capacity to act whatsoever, can only do one thing on his own: write
his will (and get driver's license). Therefore, even at 18, you will still be under
judicial guardianship. That is why he is prohibited from giving anything to his
guardian, except a guardian who is also a relative. If a person is under
guardianship, which could either be over the person, over the property, or over
both, you can appreciate the influence and the power of the guardian over the
person and over the property of the ward. The ward cannot do anything without
having to go through the guardian. The relative position of the priest to the
penitent, the doctor to the patient, is exactly the same position of a guardian with
respect to the ward. Each of them, in their own way, can exert tremendous
influence on the testator and for which reason we prevent them from receiving
any benefit under the will with one important distinction: we indict the medical
practitioners and the guardian but we don’t indict their relatives unlike the
priests.
The prohibition is not applicable if the testamentary disposition is given after the
final accounts have been rendered. When do you file the final accounts? In the
rules of court on special proceedings where guardianship is one of those. Take a
minor for example. A minor inherited a large inheritance. That minor will not be
able to manage his property. The guardianship rights of the natural parents over
the properties of the ward is limited. When the property of the child is immense,
the parents cannot exercise their rights as natural guardians. They will have to go
to court to have themselves appointed as a judicial guardian for the ward and his
properties. If you are appointed guardian for the minor, you will have to post a
bond for the faithful discharge of your fiduciary obligations. After you post your
bond, you take your oath of office before the Clerk of Court. And then your
appointment becomes binding. If you are the guardian, you make your regular
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reports to the court. There are certain things that you can do (acts of
management) but for acts of strict dominion, you have to go to court to ask for
permission or judicial approval. Once a year, you have to submit an account of
your transactions. In some cases, depending on the size of the estate under
management, the court can even require an audited financial statement. While
the law simply says on an annual basis you make a report, it does not preclude
the guardianship court to require the filing of accounts more often than that.
So what are the final accounts? The final accounting you will submit upon the
termination of the guardianship proceedings. Every account that you submit to
the court will be subjected to a motion for approval. Your motion will be set for
hearing. The court has to be satisfied that your account is true, fair, correct and
complete. If the accounts are objected to, you have to prove that the accounting
you made is correct. This is true for all accounts, whether final or intermediate.
But for the final account, if it is not proved, the guardian is discharged from all
accountabilities. His fidelity bond is returned to him. So when the law says "until
his final accounts are approved," it means he cannot receive anything from the
ward by way of a will except if at the time of the execution of the will,
guardianship has already been terminated.
Paras gives an entirely different perspective to this provision. The disqualification
is intended to prevent the concealment of mismanagement. The incapacity here
is an incapacity arising from undue influence. So how is concealment of
mismanagement connected? Something is wrong with his analysis. His
justification: the law prohibits giving benefits to a guardian during the
guardianship proceedings. But after the guardianship, the prohibition is lifted.
How is there concealment of mismanagement? Example: the guardian is
irresponsible. He appropriated funds for his own benefit. He can tell the ward to
make a provision in his favor “out of gratitude for his good governance, etc.” He
still has influence over the child. He is doing this to create a façade that he has
been doing his job well.
(4) Any attesting witness to the execution of a will, the spouse, parents, or
children, or any one claiming under such witness, spouse, parents, or children;
Art. 823 is very different from Art. 1027 (4). The latter speaks of the incapacity of
the witness to inherit. The former does not speak of the capacity of the witness. It
speaks of the nullity of the gift.
In Art. 823, the gift is void if it is given to a witness. But the gift will not be void if
there are 3 witnesses in addition to this witness. Our explanation there was the
gift is validated because the witness will not have to testify. The reason why the
gift is void is because there is every temptation for the witness to perjure himself
on the witness stand to ensure that the will is admitted to probate because it is
admitted, there is a gift waiting for him. If it is denied probate, he loses the gift.
So it is to his interest to uphold the validity of the document regardless. So that
he will not be tempted to perjure himself, he cannot benefit from his testimony. If
you don’t need to testify because there are other witnesses, don’t take the stand
and the gift will be valid.
Put the two provisions together. Art. 823 annuls the gift with an exception. It
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does not talk about the capacity of the witness to inherit. Art. 1027 talks about the
capacity of the witness. It does not talk about the gift. Is there an intrinsic
incompatibility between these two?
There is no incompatibility but the results are ridiculous. If the gift is valid in Art.
823 (because there are 5 witnesses and you can dispense one of them) but
whether or not this witness can accept it is not governed by Art. 823 but by Art.
1027. In Art. 1027, regardless of the validity of the gift, he is still disqualified.
If you were one of the 5 witnesses and as a witness you were given a gift, can you
receive it? The gift is valid under Art. 823 but the witness cannot receive it
because of the disqualification in Art. 1027.
Should this really be included in Art. 1027? Do you really believe that a witness to
a will has an opportunity to exert undue influence on the testator given that any
gift given to him is void under Art. 823?
(5) Any physician, surgeon, nurse, health officer or druggist who took care of the
testator during his last illness;
These are the health care providers. The physicians and surgeons are both
medical practitioners. The only difference is the physician cannot perform
surgical operations; only a surgeon can.
The theory being: if a person that provides spiritual aid to the testator can be
guilty of undue influence, in the same manner, a person that provides physical
aid to the testator can exert exactly the same influence. The prohibition on priests
and ministers are greater because in the case of health care providers, relatives
and associations to which they belong are not included in the prohibition.
Will this include nursing aid, midwife, caregivers? Midwives do not only assist in
the delivery of children. Many elderly people who need professional care go to the
midwives. The midwives do not charge as much as nurses but the level of
competence can be the same. Nursing aids are not licensed R.N.s but they have
the same training as nurses.
What if the doctor who cured the testator is his child? Children expected to take
care of their parents. If you were the doctor and you provided medical services to
your father in his last illness and your father writes a will giving you a little extra
for the services you have rendered to him, what will happen? You don’t lose you
legitime but for doing what is appropriate and what is expected, you will be
penalized because the presumption of undue influence is conclusive.
They should have exempted the relatives who are medical practitioners just like
in the case of guardians (does not include parents, ascendants descendants,
spouse in the prohibition).
(6) Individuals, associations and corporations not permitted by law to inherit.
Art. 1028. The prohibitions mentioned in article 739, concerning donations inter
vivos shall apply to testamentary provisions.
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Art. 1028. – incapacity arising from immorality.
Art. 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at
the time of the donation;
Every time you have sex with a married woman who is not your wife, you commit
adultery. Every time it happens, it is one count. Concubinage is a continuing
offense. “At the time of donation” if the prohibition is because of concubinage,
that is understandable because it is a continuing offense. But if you read it
literally and you apply it to Art. 1028, you have to be executing a will in the act of
adultery.
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
A testamentary disposition between co-conspirators in the commission of an
offense where the disposition is made in consideration of the criminal conspiracy.
In the murder of Ramjen Bautista, there is conspiracy between the gunman and
the mastermind. Supposing as part of compensation to the gunman, the
mastermind undertook that in his will he will give something to the gunman in
consideration for having killed Ramjen for him. That disposition is void under
Art. 1028 in reference to Art. 739.
In (1) and (2), it says found guilty. Commentators say “found guilty” does not
refer to criminal conviction. The guilty can be established by preponderance of
evidence.
A testamentary disposition of a legacy is given to Red by a woman. The legitimate
children of this woman are objecting to this legacy in his favor. They say it is void
under Art. 1028 in reference to Art. 739 (1). Who has the burden of evidence? The
oppositors, those who are challenging the validity of the legacy to him must prove
that the legacy was given in consideration of their commission of adultery. This
will happen in the same probate proceeding.
A testamentary disposition given by one co-conspirator to another conspirator
can be challenged by anybody who has an interest in the will or in the estate. And
the challenge can be proved in the same probate proceedings and it is sufficient
that there is preponderance of evidence to establish the guilt.
(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
(3) does not speak of guilt. But (3) today is a criminal offense. It is a violation of
the Anti Graft and Corrupt Practices Act for which the penalty is heavier than the
penalty for the crimes of adultery or concubinage. Yet, found guilty is not part of
(3). Why is this so? This law predates the Anti-Graft and Corrupt Practices Act.!
In the case referred to in No. 1, the action for declaration of nullity may be
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brought by the spouse of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action.
Art. 1029. Should the testator dispose of the whole or part of his property for
prayers and pious works for the benefit of his soul, in general terms and without
specifying its application, the executor, with the court's approval shall deliver
one-half thereof or its proceeds to the church or denomination to which the
testator may belong, to be used for such prayers and pious works, and the other
half to the State, for the purposes mentioned in Article 1013.
In both Arts. 1029 and 1030, no particular person is identified by the testator to
receive the gift. The capacity of a beneficiary must be determined at the time of
the death of the testator. How can you determine the capacity if the disposition
does not identify the person who is to receive the gift? Sir thinks it is only for this
reason that they put these 2 provisions here.
Art. 1029, according to Paras, says is the institution of the testator's soul. This
has connection with priests. With respect to the will of a person who was
influenced by a priest to write a will and to give something to the church, Art.
1029 is just a variation. Here, you are not giving to the church but you are setting
aside a fund that will be used for the payment of masses and prayers for the
repose of your soul. That is one way of disguising a gift to the church. Therefore,
it is included here. This is not prohibited but half will go to the church, and the
other half to the State. What is given to the State is reserved for specific purposes
(for public schools and public charitable institutions).
Art. 1030. Testamentary provisions in favor of the poor in general, without
designation of particular persons or of any community, shall be deemed limited
to the poor living in the domicile of the testator at the time of his death, unless it
should clearly appear that his intention was otherwise.
The designation of the persons who are to be considered as poor and the
distribution of the property shall be made by the person appointed by the testator
for the purpose; in default of such person, by the executor, and should there be
no executor, by the justice of the peace, the mayor, and the municipal treasurer,
who shall decide by a majority of votes all questions that may arise. In all these
cases, the approval of the Court of First Instance shall be necessary.
The preceding paragraph shall apply when the testator has disposed of his
property in favor of the poor of a definite locality.
Disposition in favor of the poor is a classic case of class institution. You do not
institute individuals but you institute a class. Anybody who belongs to that class
is deemed instituted. We have a provision for the institution of the poor. The law
correctly limited the institution to the poor people where the testator is domiciled
because if you say poor in general, then theoretically anyone in the world can
come to you and make a claim. The use of domicile may have been accidental
because there is a big difference between place of residence and domicile.
Who will exercise the choice? Generally, the testator appoints his representative
who will make the choice. If not, the function will go to his executor. But
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sometimes, the testator forgets to appoint an executor or even if he did, the
executor died ahead of him or the executor refused to accept the trust or the court
did not approve the executor because he has a criminal record. In all of these
cases, the court will appoint a special administrator. All the commentators say
this is a function of the executor and it cannot pass to a special administrator. In
default of the executor, who will make the decision? The justice of the peace, the
mayor, and the municipal treasurer.
Art. 1031. A testamentary provision in favor of a disqualified person, even though
made under the guise of an onerous contract, or made through an intermediary,
shall be void.
If you ant to circumvent the prohibition on capacity and the testator tries to
simulate a transaction, the simulated transaction is void and the disposition will
not be given effect.
2 ways of circumventing:
1. Simulate a transaction to make it appear as if it was a contractual transfer of
property. The most convenient way of doing it is through a simulated sale.
An absolutely simulated sale is void.
2. Through the use of intermediaries. If I am prohibited from making a
testamentary disposition in favor of A, I can give it to somebody else with
secret instruction to pass it on to A. If that is caught, the transfer to A will be
questioned.
Art. 1032. The following are incapable of succeeding by reason of unworthiness:
Capacity by unworthiness have already been discussed except (4) and (5).
(1) Parents who have abandoned their children or induced their daughters to lead
a corrupt or immoral life, or attempted against their virtue;
(2) Any person who has been convicted of an attempt against the life of the
testator, his or her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;
(4) Any heir of full age who, having knowledge of the violent death of the testator,
should fail to report it to an officer of the law within a month, unless the
authorities have already taken action; this prohibition shall not apply to cases
wherein, according to law, there is no obligation to make an accusation;
Testator suffered a violent death and you did not report it within 30 days. To be
able to fall under this, you must be under obligation to report the violent death. If
there is no obligation to report it, you cannot breach it. There is no law that
requires any person to report the violent death of another. Consequently, nobody
can be disqualified under (4).
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(5) Any person convicted of adultery or concubinage with the spouse of the
testator;
Who is disqualified? The offended party. It is the paramour or the mistress who
is disqualified here. The cheating spouse is not included because this is one of the
grounds for disinheritance. If a spouse is found guilty of this under the old law,
there is ground for legal separation. The party guilty of giving a cause of legal
separation is disqualified to inherit. Today, this is also true. If you do this, there
is a ground for legal separation. And if you are found guilty for a ground for legal
separation, one of the effects is disqualification.
(6) Any person who by fraud, violence, intimidation, or undue influence should
cause the testator to make a will or to change one already made;
(7) Any person who by the same means prevents another from making a will, or
from revoking one already made, or who supplants, conceals, or alters the latter's
will;
(8) Any person who falsifies or forges a supposed will of the decedent.
Art. 1033. The cause of unworthiness shall be without effect if the testator had
knowledge thereof at the time he made the will, or if, having known of them
subsequently, he should condone them in writing.
Art. 1032 can be condoned. Condonation does not apply to Arts. 1027 to 1028.
Condonation that is required here must be written. But while the law requires
that it be written, condonation can be expressed or implied.
Express condonation – any written document where the testator says, “I am
forgiving this offender.” The effects of incapacity or unworthiness is lifted.
Implied condonation – example: A was caught committing marital infidelity. He
is disqualified from inheriting from his wife. Even after this, the wife writes a will
and gives something to A. That is implied condonation because if you already
know that there is a ground for unworthiness, and you nonetheless executed a
will giving something, it cannot be interpreted in any other way than forgiving
the person.
But if I write my will today and the unworthiness occurs a week from today, the
unworthiness is not lifted because there was no offense at the time I wrote the
will. The offense was subsequent.
The implied condonation arises when, after the offense was committed, the
testator, as the offended party, executes a will and makes a provision for the
unworthy person.
Art. 1034. In order to judge the capacity of the heir, devisee or legatee, his
qualification at the time of the death of the decedent shall be the criterion.
In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait
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until final judgment is rendered, and in the case falling under No. 4, the
expiration of the month allowed for the report.
If the institution, devise or legacy should be conditional, the time of the
compliance with the condition shall also be considered.
Art. 1035. If the person excluded from the inheritance by reason of incapacity
should be a child or descendant of the decedent and should have children or
descendants, the latter shall acquire his right to the legitime.
The person so excluded shall not enjoy the usufruct and administration of the
property thus inherited by his children.
Art. 1035 is erroneous. In essence, Art. 1035 is saying that an incapacitated
person, if he has a child or descendant, may be represented. The child or children
or descendant shall acquire his legitime. This is false.
Incapacity under unworthiness (Art. 1032) can be invoked in both testamentary
and intestate succession. If the incapacity is invoked in testamentary succession,
the incapacitated heir can be represented by his descendants only if the
incapacitated person is a child. The extent of the representation is legitime
because this is testamentary succession.
Under the same set of facts, if there was no will, an incapacitated child will be
represented by his own children but this time to the full intestate share. So that
the statement in Art. 1035 limiting the right of representation to the legitime is a
falsehood. It is only true in testamentary succession but it is not true in intestacy.
Art. 1036. Alienations of hereditary property, and acts of administration
performed by the excluded heir, before the judicial order of exclusion, are valid as
to the third persons who acted in good faith; but the co-heirs shall have a right to
recover damages from the disqualified heir.
Art. 1037. The unworthy heir who is excluded from the succession has a right to
demand indemnity or any expenses incurred in the preservation of the hereditary
property, and to enforce such credits as he may have against the estate.
Art. 1038. Any person incapable of succession, who, disregarding the prohibition
stated in the preceding articles, entered into the possession of the hereditary
property, shall be obliged to return it together it its accessions.
He shall be liable for all the fruits and rents he may have received, or could have
received through the exercise of due diligence.
Art. 1039. Capacity to succeed is governed by the law of the nation of the
decedent.
Art. 1040. The action for a declaration of incapacity and for the recovery of the
inheritance, devise or legacy shall be brought within five years from the time the
disqualified person took possession thereof. It may be brought by any one who
may have an interest in the succession.
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SECTION 3. - Acceptance and Repudiation of the Inheritance
Art. 1041. The acceptance or repudiation of the inheritance is an act which is
purely voluntary and free.
Art. 1042. The effects of the acceptance or repudiation shall always retroact to the
moment of the death of the decedent.
Art. 1043. No person may accept or repudiate an inheritance unless he is certain
of the death of the person from whom he is to inherit, and of his right to the
inheritance.
Art. 1044. Any person having the free disposal of his property may accept or
repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by their
parents or guardians. Parents or guardians may repudiate the inheritance left to
their wards only by judicial authorization.
The right to accept an inheritance left to the poor shall belong to the persons
designated by the testator to determine the beneficiaries and distribute the
property, or in their default, to those mentioned in Article 1030.
Art. 1045. The lawful representatives of corporations, associations, institutions
and entities qualified to acquire property may accept any inheritance left to the
latter, but in order to repudiate it, the approval of the court shall be necessary.
Art. 1046. Public official establishments can neither accept nor repudiate an
inheritance without the approval of the government.
Art. 1047. A married woman of age may repudiate an inheritance without the
consent of her husband.
Art. 1048. Deaf-mutes who can read and write may accept or repudiate the
inheritance personally or through an agent. Should they not be able to read and
write, the inheritance shall be accepted by their guardians. These guardians may
repudiate the same with judicial approval.
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private document.
A tacit acceptance is one resulting from acts by which the intention to accept is
necessarily implied, or which one would have no right to do except in the capacity
of an heir.
Acts of mere preservation or provisional administration do not imply an
acceptance of the inheritance if, through such acts, the title or capacity of an heir
has not been assumed.
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Art. 1050. An inheritance is deemed accepted:
(1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs,
or to any of them;
(2) If the heir renounces the same, even though gratuitously, for the benefit of
one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if
this renunciation should be gratuitous, and the co-heirs in whose favor it is made
are those upon whom the portion renounced should devolve by virtue of
accretion, the inheritance shall not be deemed as accepted.
Art. 1051. The repudiation of an inheritance shall be made in a public or
authentic instrument, or by petition presented to the court having jurisdiction
over the testamentary or intestate proceedings.
Art. 1052. If the heir repudiates the inheritance to the prejudice of his own
creditors, the latter may petition the court to authorize them to accept it in the
name of the heir.
The acceptance shall benefit the creditors only to an extent sufficient to cover the
amount of their credits. The excess, should there be any, shall in no case pertain
to the renouncer, but shall be adjudicated to the persons to whom, in accordance
with the rules established in this Code, it may belong.
Art. 1053. If the heir should die without having accepted or repudiated the
inheritance his right shall be transmitted to his heirs.
Art. 1054. Should there be several heirs called to the inheritance, some of them
may accept and the others may repudiate it.
Art. 1055. If a person, who is called to the same inheritance as an heir by will and
ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he
is understood to have repudiated it in both capacities.
Should he repudiate it as an intestate heir, without knowledge of his being a
testamentary heir, he may still accept it in the latter capacity.
Art. 1056. The acceptance or repudiation of an inheritance, once made, is
irrevocable, and cannot be impugned, except when it was made through any of
the causes that vitiate consent, or when an unknown will appears.
Art. 1057. Within thirty days after the court has issued an order for the
distribution of the estate in accordance with the Rules of Court, the heirs,
devisees and legatees shall signify to the court having jurisdiction whether they
accept or repudiate the inheritance.
If they do not do so within that time, they are deemed to have accepted the
inheritance.
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There are 3 periods in succession that one must take into account:
1. Period of opening of succession
At this point, your capacity to inherit is determined and all other things.
2. Period of availability
After the opening of succession, ideally, you have to prepare for the liquidation of
the estate of the deceased person. The liquidation process will vary depending on
whether he dies testate or intestate. If testate, you go to probate proceedings; if
intestacy, you either do it through extrajudicial settlement or through
proceedings in intestacy.
One common denominator of the settlement of a deceased person is: we have to
pay the debts and estate tax, identify the assets that will be distributed, identify
the heirs and we have to come up with a project of partition.
This is the time when everything has been settled and the estate is ready for
distribution. The period of availability occurs when a project of partition has
already been agreed upon. That is from the time you start paying the debts up to
the time everything is ready to be distributed. Once you hit the period of
availability of inheritance, then the period of acceptance sets in.
3. Period of acceptance
This is a relatively short period because under the law, you are expected to accept
the inheritance within 30 days from availability. If you did not accept, you are
presumed anyway to have accepted.
Theoretically, upon knowing of the debt of the person to whom you will inherit,
succession opens. You can already indicate your intention to accept because there
is already inheritance capable of being accepted.
But sometimes it is prudent that you wait until the period of availability before
you accept the inheritance because when you accept something on the day of the
death of the testator, you still don’t know what you will be accepting (there is no
project of partition yet at this point). If you accept it already, knowing that
acceptance is irrevocable except for vices of consent, would you have an
opportunity to change your mind if at the end of the day you did not like the way
the project of partition was drafted.
You can accept by oral statement in court if you have oral proceedings.
Acceptance can be presumed when you sign the deed of extrajudicial partition.
Repudiation requires a sworn certificate or a manifestation filed in court. When
you repudiate, it is always a formal repudiation. It must be documented because
repudiation is contrary to human experience.
While nobody cannot be forced to accept an economic benefit from another, you
can only repudiate for yourself. You cannot repudiate for another person, even
100$
for your own minor child. If you want to repudiate for some other person, you
need judicial approval which means you have to be appointed guardian of your
children. This repudiation of inheritance is the same as a disposition of property.
Unless you have judicial authorization, you cannot dispose of a property of your
child.
For practical purposes, when you repudiate an inheritance, you have to be very
careful how you document it. It’s common among members of the family that
some of the heirs will repudiate the inheritance. Example: It is better for the
surviving spouse to repudiate her successional right and take only her share in
the community property. If the surviving spouse is elderly and she/he dies
subsequently, the property is subjected to another round of estate tax, subject to
vanishing deduction.
You cannot waive something you have accepted. You are deemed to have
accepted, but since you waived, that will be considered a donation. You pay
donor’s tax and estate tax.
When you prepare your deed of partition, generally, a deed of partition in an
extrajudicial settlement of the estate is a settlement that is agreed upon by the
heirs. This is consensual. The BIR has set a new rule. Contrary to what we
learned from the Civil Code that you could agree on how to partition the estate if
this it is true and extrajudicial settlement, if you did not divide the estate equally,
he who received less is deemed to have made a donation to those who received
more. So you pay an estate tax and a donor’s tax.
(1) Those which are entered into by guardians whenever the wards whom they
represent suffer lesion by more than one-fourth of the value of the things which
are the object thereof;
(2) Those agreed upon in representation of absentees, if the latter suffer the
lesion stated in the preceding number;
(3) Those undertaken in fraud of creditors when the latter cannot in any other
manner collect the claims due them;
(4) Those which refer to things under litigation if they have been entered into by
the defendant without the knowledge and approval of the litigants or of
competent judicial authority;
(5) All other contracts specially declared by law to be subject to rescission.
The acceptance and repudiation are irrevocable and final. You cannot change
your mind except if you can prove vice of consent.
SECTION 4. - Executors and Administrators
Art. 1058. All matters relating to the appointment, powers and duties of
executors and administrators and concerning the administration of estates of
deceased persons shall be governed by the Rules of Court.

When you decline an inheritance, it's your choice as long as you don’t have
creditors. But if you decline an inheritance and that repudiation will result in
your creditor being unable to collect from you, your creditors can petition the
court to accept the inheritance on your behalf in an accion subrogatoria. This is
to avoid repudiation for the inheritance to pass to the descendants (if the debtor
is an only child) or to his siblings and then making an arrangement to give the
inheritance to you afterwards.
If your repudiation will not make it possible for your creditors to collect, your
creditors can step in but with conditions. When they go to the probate court or to
the intestate court, they have to prove:
Art. 1059. If the assets of the estate of a decedent which can be applied to the
payment of debts are not sufficient for that purpose, the provisions of Articles
2239 to 2251 on Preference of Credits shall be observed, provided that the
expenses referred to in Article 2244, No. 8, shall be those involved in the
administration of the decedent's estate.
Art. 1060. A corporation or association authorized to conduct the business of a
trust company in the Philippines may be appointed as an executor,
administrator, guardian of an estate, or trustee, in like manner as an individual;
but it shall not be appointed guardian of the person of a ward.

(1) that there is a legitimate claim against you;

(2) that there has been a default (to you prove default, you have to prove that
there was a demand and demand was not heeded);

(3) prove that you have had a court judgment which has become final and
executory which the writ of execution was returned unsatisfied because that is
the only way you could prove the insolvency of the person. The insolvency of the
person is an indispensible element for the exercise of accion subrogatoria. Or
else, there will be an interference in the contractual relations or property
relations of other people.

Art. 1381. The following contracts are rescissible:

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