Professional Documents
Culture Documents
53
MEMORY AID
IN
CIVIL LAW
SUCCESSION
SUCCESSION
A mode of acquisition by virtue
of which the property, rights and
obligations to the extent of the
value of the inheritance, of a
person are transmitted through
his death to another or others
either by his will or by operation
of law. (Art. 774)
Kinds:
1. Testamentary or Testacy (by
will);
2. Legal or intestacy (by operation
of law based on the decedents
presumed will);
3. Mixed (Partly Testamentary and
Legal); and
4. Partition inter vivos (to a certain
degree).
Elements:
1. DECEDENT (subjective element)
2. SUCCESSORS
(subjective
element)
a. Heirs - those who are called to
the whole or to an aliquot
portion of the inheritance either
by will or by operation of law
1) Voluntary those instituted
by the testator in his will, to
succeed to the inheritance
or the portion thereof of
which the testator can freely
dispose.
2) Compulsory or Forced those
who succeed by force of law
to some portion of the
inheritance, in an amount
predetermined
by
law,
known as the legitime.
3) Legal or Intestate those
who succeed to the estate of
the decedent who dies
without a valid will, or to
the portion of such estate
not disposed of by will.
b. Devisees or legatees - persons to
whom gifts of real or personal
INHERITANCE
Refers
to
the
universality
or
entirety of the
property,
rights
and obligations of a
person who died
Inheritance includes:
1. PROPERTY,
RIGHTS
AND
OBLIGATIONS NOT EXTINGUISHED BY
DEATH
General rules on rights and
obligations extinguished by his
death
a) Rights which are purely personal
are by their nature and purpose
intransmissible for they are
MEMORY AID
b)
c)
I. TESTAMENTARY SUCCESSION
A. CONCEPT
WILL - an act whereby a person is
permitted,
with
the
formalities
prescribed by law, to control to a certain
degree the disposition of his estate to
take effect after his death (Art. 783)
NOTE: Thus, a document that does not
purport to dispose of ones estate either
by the institution of heirs or designation
of devisees/legatees or, indirectly, by
effecting a disinheritance, is not to be
governed by the law on testamentary
succession but by some other applicable
laws.
Kinds of Wills:
1. Notarial or ordinary
2. Holographic
Characteristics of a Will:
1. UNILATERAL
2. STRICTLY PERSONAL ACT - The
disposition of property is solely
dependent upon the testator.
NOTE: The following acts MAY NOT be
left to the discretion of a third person:
(Article 785, 787 Civil Code)
duration or efficacy of the designation of
heirs, devisees or legatees;
CIVIL LAW COMMITTEE
IN
CIVIL LAW
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
be
done
consistently
established rules of law.
with
the
IN
CIVIL LAW
Requisites:
1. At least 18 years of age
2. Of sound mind, i.e., the ability to
know:
a. the nature of the estate to be
disposed of;
b. the proper objects of his bounty;
and
c. the
character
of
the
testamentary act.
NOTE: The law presumes that the
testator is of sound mind, UNLESS:
a. he, one month or less, before making
his will, was publicly known to be
insane; or
b. was under guardianship at the time of
making his will. (Torres and Lopez de
Bueno vs. Lopez 48 Phil 772)
In both cases, the burden of proving
sanity is cast upon proponents of the
will.
Effect of Certain Infirmities:
1. mere senility or infirmity of old
age does not necessarily imply that a
person lacks testamentary capacity;
2. physical infirmity or disease is
not inconsistent with testamentary
capacity;
3. persons suffering from idiocy
(those congenitally deficient in
intellect), imbecility (those who are
mentally deficient as a result of
disease), and senile dementia
(peculiar decay of the mental
faculties
whereby
the
person
afflicted is reduced to second
childhood) do not possess the
necessary mental capacity to make a
will;
4. an insane delusion which will
render one incapable of making a
will may be defined as a belief in
things which do not exist, and which
no rational mind would believe to
exist;
5. if the insane delusion touches to
subject
matter
of
the
will,
testamentary disposition is void.
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
6. a deaf-mute and blind person
can make a will (i.e. Art. 807-808). A
blind man with a sound and disposing
mind can make a holographic will.
7. an intoxicated person or person
under the influence of drugs may
make a will as there is no complete
loss of understanding.
Exception: where the testator has
used intoxicating liquor or drugs
excessively to such an extent as to
impair his mind, so that at the time
the will is executed, he does not
know the extent and value of his
property, or the names of persons
who are the natural objects of his
bounty,
the
instrument
thus
executed will be denied probate for
lack of testamentary capacity.
D. FORMALITIES OF WILLS
(EXTRINSIC VALIDITY)
COMMON FORMALITIES
1. Every will must be in writing; and
2. Executed in a language or dialect
known to the testator.
SPECIAL FORMALITIES
I. NOTARIAL OR ORDINARY WILL
a. SUBSCRIPTION made 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;
Subscription refers to the
manual act of testator and also
of his instrumental witnesses of
affixing their signature to the
instrument.
b. ATTESTATION AND SUBSCRIPTION (evidenced by an attestation
clause) by 3 or more credible
witnesses in the presence of the
testator and of one another;
Attestation consists in the act of
witnesses of witnessing the
execution of the will in order to
see and take note mentally that
such will has been executed in
accordance with requirements
prescribed by law.
ATTESTATION
SUBSCRIPTION
1. an act of the
senses
2. mental act
3. purpose is to
render available
proof during
probate of will
IN
CIVIL LAW
1. an act of the
hand
2. mechanical act
3. purpose is
identification
Written
correlatively in letters placed on the
upper part of each page;
NOTE: This is not necessary when all of
the dispositive parts of a will are written
on one sheet only.
e. ACKNOWLEDGMENT Done before a
notary public by the testator and the
instrumental witnesses.
NOTE: The notary public before whom
the will was acknowledged cannot be
considered as the third instrumental
MEMORY AID
witness since he cannot acknowledge
before himself his having signed the will.
If the third witness were the notary
public himself, he would have to avow,
assent, or admit his having signed the
will in front of himself. To allow such
would have the effect of having only two
attesting witnesses to the will which
would be in contravention of Arts. 805
and 806. (Cruz vs. Villasor 54 SCRA 31)
CIVIL LAW
2.
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;
MANNER OF SIGNING:
The use of any signature, marks
or design intended by the testator to
authenticate
renders
the
will
sufficiently signed by the testator.
A signature by mark will be
sufficient even if at the time of
placing it, the testator knew how to
write and is able to do so.
It is sufficiently signed by writing
his initials, or his first name, or he
may use even an assumed name.
A complete signature is not
essential to the validity of a will,
provided the part of the name
written
was
affixed
to
the
instrument with intent to execute it
as a will.
ATTESTATION CLAUSE
- memorandum or record of facts
wherein the witnesses certify that the
will has been executed before them, and
that it has been executed in accordance
with the formalities prescribed by law.
Absence of this clause will render
the will a nullity.
IN
3.
that
the
witnesses
witnessed and signed the will
and all the pages thereof in the
presence of the testator and of
one another.
TEST OF PRESENCE: Not whether
they actually saw each other sign,
but whether they might have seen
each other sign had they chosen to
do so considering their mental and
physical condition and position with
relation to each other at the
moment of inscription of each
signature. (Jaboneta vs. Gustilo)
MEMORY AID
of the will itself, the defect is
substantial in character, as a
consequence of which the will is
invalidated.
IN
CIVIL LAW
Doublereading requirement:
a. first, by one of the subscribing
witnesses, AND
b. second, by the notary public
before whom the will is
acknowledged. (Article 808)
MEMORY AID
aside when the spirit behind the law
was served though the letter was
not. (Alvarado vs. Gaviola 226 SCRA
347)
WITNESS TO NOTARIAL WILLS
(ARTS. 820 & 821)
Requirements:
1. of sound mind;
2. able to read and write;
3. not blind, deaf or dumb;
4. at least 18 years of age;
5. domiciled in the Philippines;
6. has not been convicted of
falsification of a document, perjury,
or false testimony
NOTE: A witness need not know the
contents of the will, and need not be
shown to have had a good standing in
the community where he lives. Also, the
acknowledging notary public cannot be
one of the 3 minimum numbers of
witnesses.
Interested witness
A witness to a will who is
incapacitated from succeeding from
the testator by reason of a
devise/legacy or other testamentary
disposition therein in his favor, or in
favor of his spouse, parent, or child.
However, his competence as a
witness subsists.
2. HOLOGRAPHIC WILL (Article 810)
a.
entirely written by
the hand of the testator;
b.
entirely dated by the
hand of the testator; and
c.
entirely signed by
the hand of the testator.
NOTE:
The law exacts literal
compliance with these requirements.
HENCE, THE DOCTRINE OF LIBERAL
INTERPRETATION CANNOT BE APPLIED.
IN
CIVIL LAW
MEMORY AID
the execution of the will, then the
will is void because it is not written
entirely by the testator.
Probate of Holographic Will
1. If UNCONTESTED, requires that at
least 1 witness who knows the
handwriting and signature of the
testator explicitly declare that the
will and signature are in the
handwriting of the testator; if no
witness, expert testimony may be
resorted to.
2. If CONTESTED, requires at least 3 of
such credible witnesses, if none
expert witness.
NOTE: Where the testator himself
petitions for the probate of his
holographic will and no contest is file,
the fact that he affirms that the
holographic will and the signature are in
his own handwriting, shall be sufficient
evidence thereof. If the holographic will
is contested, the burden of disproving
the genuineness and due execution
thereof shall be on the contestant.
A photostatic or xerox copy of a lost
or destroyed holographic will may be
admitted because the authenticity of
the handwriting of the deceased can
be determined by the probate court,
as comparison can be made with the
standard writings of the testator.
(Rodelas vs. Aranza, 119 SCRA 16)
GOVERNING LAW ON FORMALITIES
1. As to time:
The validity of a will as to its form
depends upon the observance of the
law in force at the time it is made.
Its intrinsic validity, however, is
judged at the time of the
decedents death by the law of his
nationality.
2. As to place:
a. Filipino testator executing a will in
the Philippines: Philippine law
b. Filipino testator executing a will
outside of the Philippines: either
1) The law of the country in which
it is executed; or
CIVIL LAW COMMITTEE
IN
CIVIL LAW
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
IN
CIVIL LAW
F. REVOCATION OF WILLS
TESTAMENTARY DISPOSITIONS
AND
REVOCATION
An act of the mind, terminating the
potential capacity of the will to
operate at the death of the testator,
manifested by some outward or
visible act or sign, symbolic thereof.
Such right to revoke a will cannot be
waived or restricted.
LAWS WHICH GOVERN REVOCATION
(ART 829)
1. If the revocation takes place in the
Philippines, whether the testator is
domiciled in the Philippines or in
some other country, it is valid when
it is in accordance with the laws of
the Philippines
2. If the revocation takes place outside
the Philippines, by a testator who is
domiciled in the Philippines, it is
valid when it is in accordance with
the laws of the Philippines
3. Revocation done outside the
Philippines, by a testator who does
not have his domicile in this
country, is valid when it is done
according to the:
a. laws of the place where the
will was made, or
b. laws of the place in which the
testator had his domicile at the
time of revocation;
MODES OF REVOCATION (ART 830)
1. By implication of law:
a. legal
separation
revokes
testamentary provisions in favor
of the offending spouse;
b. preterition
revokes
the
institution of heir;
c. judicial action for recovery of
debt revokes a legacy of
credit/remission of debt;
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
d. transformation, alienation, or
loss of bequeathed property
revokes a legacy of such
property;
e. act of unworthiness by an heir,
devisee/legatee
revokes
testamentary provisions in his
favor;
f. if
both
spouses
of
the
subsequent marriage acted in
bad faith, said marriage shall be
void ab initio and testamentary
dispositions made by one in
favor of the other are revoked
by operation of law (Art. 44,
Family Code); and
g. void ab initio or annulled
marriages revoke testamentary
dispositions made by one spouse
in favor of the other (Art. 50,
Family Code).
2. By some will, codicil, or other
writing, executed as provided in
case of wills, which may either be:
a. Express when there is a
revocatory
clause
expressly
revoking the previous will or a
part thereof
b. Implied when the provisions
thereof are partially or entirely
inconsistent with those of the
previous will
NOTE: While express revocation may be
effected by a subsequent will, or a
codicil, or a nontestamentary writing
executed as provided in case of wills,
implied revocation may be effected only
by either a subsequent will, or a codicil.
3. By burning, tearing, cancelling, or
obliterating the will.
Requisites:
a. testamentary capacity at the
time of performing the act of
destruction;
b. intent
to
revoke
(animus
revocandi);
c. actual
physical
act
of
destruction;
d. completion of the subjective
phase; and
e. performed by the testator
himself or by some other person
in his presence and express
direction
CIVIL LAW COMMITTEE
IN
CIVIL LAW
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
substituted, the revocation will be
conditional and dependent upon the
efficacy of the new disposition; and
if for any reason, the new will
intended to be made as a substitute
is inoperative, the revocation fails
and the original will remains in full
force (Vda. De Molo vs. Molo 90 Phil
37).
Revocation by mistake
A revocation of a will based on a
false cause or an illegal cause is null
and void. Thus, where a testator by
a codicil or later will, expressly
grounding such revocation on the
assumption of fact which turns out
to be false, as where it is stated that
the legatees/devisees named therein
are dead, when in fact, they are
living, the revocation does not take
effect.
G. REPUBLICATION AND REVIVAL OF
WILLS
REPUBLICATION
The act of the testator whereby he
reproduces in a subsequent will
(express) the dispositions contained
in a previous will which is void as to
its form, or he executes a codicil
(constructive) to his will.
Its purpose is to cure the will of its
formal defects.
NOTES:
To republish a will void as to its
form, all the dispositions must be
reproduced or copied in the new or
subsequent will;
To republish a will valid as to its
form but already revoked the
execution of a codicil which makes
reference to the revoked will is
sufficient.
Effects of Republication by virtue of a
Codicil:
1. Codicil revives the previous will
2. The old will is republished as of the
date of the codicil makes it speak,
as it were, from the new and later
date.
CIVIL LAW COMMITTEE
IN
CIVIL LAW
REVIVAL
1. Takes place by
an act of the
testator
1. Takes place by
operation of law.
2. Corrects extrinsic
and
intrinsic
defects.
2.
Restores
revoked will
REVIVAL
The restoration to validity of a will
previously revoked by operation of
law (implied revocation).
PRINCIPLE OF INSTANTER
The express revocation of the first
will renders it void because the
revocatory clause of the second will,
not being testamentary in character,
operates to revoke the previous will
instantly upon the execution of the
will containing it.
NOTE: In implied revocation, the first
will is not instantly revoked by the
second will because the inconsistent
testamentary dispositions of the latter
do not take effect immediately but only
after the death of the testator.
H. ALLOWANCE AND DISALLOWANCE OF
WILLS
PROBATE
A special proceeding mandatorily
required for the purpose of
establishing the validity of a will.
The statute of limitations is not
applicable to probate of wills.
Questions determinable by the probate
court: (ICE)
1. identity of the will;
2. testamentary capacity of the
testator at the time of the execution
of the will; and
3. due execution of the will.
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
GENERAL
RULE:
In
probate
proceeding, the courts area of inquiry is
limited to an examination of, and
resolution on the extrinsic validity if the
will, the due execution thereof, the
testatrixs testamentary capacity and
the compliance with the requisites or
solemnities prescribed by law.
The
probate court cannot inquire into the
intrinsic
validity
of
testamentary
provisions.
EXCEPTION: Practical considerations,
e.g. when the will is intrinsically void on
its face.
IN
CIVIL LAW
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
DISALLOWANCE
1. voluntary act of
the testator.
1. given by judicial
decree.
2. with or without
cause.
2. must always be
for a legal cause.
3. may be partial or
total.
3. always total
except: when the
ground of fraud or
influence
for
example
affects
only
certain
portions of the
will.
I. INSTITUTION OF HEIRS
(ARTS. 840-856)
INSTITUTION
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)
The proper test in order to
determine the validity of an
institution of heir is the possibility of
finally ascertaining the identity of
the instituted heir by intrinsic or
extrinsic evidence.
PRESUMPTIONS
1. Presumption of Equality Heirs
instituted without designation of
shares shall inherit in equal parts.
This is limited only to the case
where all of the heirs are of the
same class or juridical condition, and
where there are compulsory heirs
among the heirs instituted, it should
be applied only to the disposable
free portion.
IN
CIVIL LAW
3.
MEMORY AID
(Nuguid vs. Nuguid, et al. 17 SCRA
449)
PRETERITION (ART. 854)
Omission in the testators will of
one, some, or all of the compulsory
heirs in the direct line, whether
living at the time of the execution of
the will or born after the death of
the testator.
Requisites:
1. The heir omitted must be a
compulsory heir in the direct line;
2. The omission must be complete and
total in character; and
3. The compulsory heir omitted must
survive the testator.
There is no total omission
when:
a. A devise/legacy has been given
to the heir by the testator
b. A donation inter vivos has been
previously given to the heir by
the testator; or
c. Anything is left from the
inheritance which the heir may
get by way of intestacy.
NOTE:
In the above cases, the
remedy of the heir is completion of
legitime under Art. 906, in case the
value of the property received is less
than the value of the legitime.
Effects of Preterition:
1. It annuls the institution of heir;
2. The devises and legacies are valid
insofar as they are not inofficious;
and
3. If the omitted compulsory heir
should die before the testator, the
institution
shall
be
effectual,
without prejudice to the right of
representation.
NOTE:
In case of omission without
preterition, the rule in Art. 855 should
be followed. The suggested alternate
phrasing of Dr. Tolentino to the said
article is: The share of the compulsory
heir omitted in a will must be first
taken from the part of the estate not
disposed of by the will, if any; if that is
IN
CIVIL LAW
DISINHERITANCE
1. deprivation of a
compulsory heir of
his legitime is tacit
1. deprivation of a
compulsory heir of
his
legitime
is
express.
2. may be voluntary
but
the
law
presumes that it is
involuntary
2.
voluntary.
3. law presumes
that there has been
merely an oversight
or mistake on the
part of the testator.
3. done with
legal cause.
4. if disinheritance
is
not
lawful,
compulsory heir is
merely restored to
his legitime.
always
MEMORY AID
(rule is absolute with respect to a
voluntary heir)
--what
is
transmitted
to
the
representatives of compulsory heir is his
right to the legitime and not to the free
portion
EFFECT OF INCAPACITY
--A voluntary heir who is incapacitated
to succeed from testator shall transmit
no right to his own heirs.
--compulsory heir may be represented,
but only with respect to his legitime
EFFECT OF REPUDIATION
--whether voluntary or compulsory, the
heir who repudiates his inheritance
cannot transmit any right to his own
heirs.
J. SUBSTITUTION OF HEIRS
(ARTS 857-870)
SUBSTITUTION
The act by which the testator
designates the person or persons to
take the place of the heir or heirs
first instituted (Tolentino). It may be
considered as a subsidiary and
conditional institution.
Kinds:
1. Simple or Common (that which
takes place when the testator
designates one or more persons to
substitute the heirs/s instituted in
case such heir/s should die before
him, or should not wish, or should be
incapacitated
to
accept
the
inheritance)
2. Brief or Compendious: brief (there
are two or more persons designated
by the testator to substitute for only
one heir), compendious (one heir is
designated to take the place of two
or more heirs)
Instances
when
substitution takes place:
a.
instituted
heir
predeceases the testator;
b.
incapacity
of
the
instituted heir to succeed from
the testator; and
c.
IN
repudiation
inheritance.
CIVIL LAW
of
the
Effect of substitution:
General rule: once the substitution
has taken place, the substitute shall
not only take over the share that
would have passed to the instituted
heir, but he shall be subject to the
same
charges
and
conditions
imposed upon such instituted heir.
Exceptions:
(1) When the testator has expressly
to the contrary;
(2) When the charges or conditions
are personally applicable only to the
heir instituted.
3. Fideicommissary
Requisites:
a. First heir (fiduciary) called to
the succession.
b. An obligation clearly imposed
upon such first heir to preserve the
property and to transmit it to the
second heir.
c. Second heir (fideicommissary)
to whom the property is transmitted
by the first heir.
Without the obligation clearly
imposing upon the first heir the
preservation of the property and its
transmission to the second heir,
there
is
no
fideicommissary
substitution (Rabadilla vs. CA 334
SCRA 522)
NOTE: Pending transmission of property,
the fiduciary is entitled to all the rights
of a usufructuary, although the
fideicommissary is entitled to all the
rights of a naked owner.
Limitations:
a. Substitution must not go beyond
one degree from the heir originally
instituted.
b. Degree means degree of
relationship.
c. Fiduciary and fideicommissary
must be living at the time of the
death of the testator.
d. Substitution must not burden the
legitime of compulsory heirs.
MEMORY AID
e. Substitution must be made
expressly.
A
fideicommissary
substitution is void if the first heir is
not related in the 1st degree to the
second heir (Ramirez vs. Vda. De
Ramirez 111 SCRA 704)
K.
CONDITIONAL,
MODAL
TESTAMENTARY DISPOSITIONS, AND
TESTAMENTARY DISPOSITIONS WITH A
TERM (ART 871-885)
An absolute condition
not to contract marriage when
validly imposed is resolutory in
character.
Consequently, if the
testator institutes his wife as heir
subject to the condition that she will
IN
CIVIL LAW
MEMORY AID
death, unless the
provided otherwise.
testator
has
IN
CIVIL LAW
If the testator is
an ILLEGITIMATE
person
1.
1.
Legitimate
children
and
descendants
(LCD)
Legitimate
children
and
descendants
(LCD)
MEMORY AID
2.
In default of
the foregoing,
legitimate
parents
and
ascendants
(LPA)
2.
Illegitimate
children and
descendants
(ICD)
3.
Surviving
spouse (SS)
3.
In default of
the foregoing,
illegitimate
parents
only
(IP)
4.
Illegitimate
children
and
descendants
(ICD)
4.
Surviving
spouse (SS)
NOTES:
See Sections 17 & 18 of R.A. 8552.
By force of the Family Code,
adopted children are deemed
legitimate children of the adopters.
By force of the Family Code, IC
without distinction and so long as
their filiation is duly established or
proved in accordance with law, are
each entitled to 1/2 of the legitime
of a LC, thus abrogating the 5:4 ratio
between natural and
nonnatural IC.
RULES:
1. Direct descending line
a. Rule of preference between lines
b. Rule of proximity
c. Right of representation ad
infinitum in case of predecease,
incapacity, or disinheritance (LC:
LD only; IC: both LD and ID)
d. If all the LC repudiate their
legitime, the next generation of
LD succeed in their own right
2. Direct ascending line
a. Rule of division by lines
b. Rule of equal division
3. Non-impairment of legitime
TABLE OF LEGITIMES
SURVIVOR
LEGITIME
NOTES
IN
CIVIL LAW
LC
Divide by the
#
of
LC,
whether they
survive alone
or
with
concurring
CH.
1 LC
SS
2 or more
LC
SS
equal to 1
LC
LC
IC
of 1 LC
LC
SS
IC
of 1 LC
All
the
concurring CH
get from the
half
free
portion, the
share of the
SS
having
preference
over that of
the IC, whose
share
may
suffer
reduction pro
rata because
there is no
preference
among
themselves.
LPA
Whether they
survive alone
or
with
concurring
CH.
LPA
IC
IC succeed in
the
in
equal shares.
LPA
SS
LPA
SS
IC
1/8
IC
SS
IC
1/3
1/3
Divide equally
among the IC.
MEMORY AID
SS
1/3
if
marriage is in
articulo
mortis
and
deceased
spouse
dies
within 3 mos.
after
the
marriage.
IP
IP
Any child
-excludedIt depends
Children
inherit in the
amounts
established in
the foregoing
rules.
IP
SS
Only
the
parents are of
IC
are
included.
Grandparents
and
other
ascendants
are excluded.
7.
IN
CIVIL LAW
COLLATION
1. Fictitious mathematical process of
adding the value of the thing
donated to the net value of the
hereditary estate (Art. 908 and Arts.
1061-1077).
2. Act of charging or imputing such
value against the legitime of the
compulsory heir to whom the thing
was donated (Arts. 1061-1077).
3. Actual act of restoring to the
hereditary estate that part of the
donation which is inofficious in order
not to impair the legitime of
compulsory heirs.
RESERVA TRONCAL (ART 891)
The reservation by virtue of which
an 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 for
the benefit of relatives who are
within the 3rd degree and who belong
to the line from which such property
came.
It constitutes as an exception to
both the system of legitime and the
order of intestate succession.
Purposes:
1. To reserve certain property in favor
of certain persons;
2. To prevent persons outside a family
from acquiring, by some chance or
accident, property which otherwise
would have remained with the said
family;
3. To maintain a separation between
paternal and maternal lines.
NOTE: Considering the rationale for
reserva troncal which is to ultimately
revert ownership of property that
originally belongs to a line of relatives
but which by force of law passes to a
different line, the reserva would have no
reason to arise where the ascendants
MEMORY AID
who acquire the property themselves
belong to the line of relatives from
which the property was, in turn,
acquired by the descendant.
Requisites:
1. The property should have been
acquired by operation of law by an
ascendant (reservista) from his
descendant (propositus) upon the
death of the latter.
2. The property should have been
previously acquired by gratuitous
title by the descendant (propositus)
from another ascendant or from a
brother or sister (originator).
3. The descendant (propositus) should
have died without any legitimate
issue in the direct descending line
who could inherit from him.
Personal elements:
1. Originator the ascendant, or
brother or sister from whom the
propositus had acquired the property
by gratuitous title (e.g. donation,
remission, testate or intestate
succession);
2. Propositus the descendant who died
and from whose death the reservista
in turn had acquired the property by
operation of law (e.g. by way of
legitime or intestate succession). The
so-called arbiter of the fate of the
reserva troncal.
3. Reservista the ascendant, not
belonging to the line from which the
property came (Justice Vitug) that is
the only compulsory heir and is
obliged to reserve the property.
NOTE: Dr. Tolentino is of the view that
even if the reservista and the originator
belong to the same line, there is still an
obligation to reserve.
4. Reservatarios the relatives of the
propositus within the 3rd degree and
who belong to the line from which
the property came and for whose
benefit
the
reservation
is
constituted. They must be related by
blood not only to the propositus but
also to the originator.
IN
CIVIL LAW
Property
subject to reservation: must be the
same property which the reservista
had acquired by operation of law
from propositus upon the death of
the latter and which the latter, in
turn had acquired by gratuitous title
during his lifetime from another
ascendant, brother/sister.
Obligations of Reservista:
(1) To make an inventory of all
reservable property;
(2) To appraise value of all
reservable movable property;
(3) To annotate in Registry of
property
the
reservable
character of all reservable
immovable property;
(4) To secure by mortgage (a)
restitution of movables not
alienated, (b) payment of
damages caused by his fault or
MEMORY AID
negligence, (c) return of price
received for movables alienated
and (d) payment of value of
immovable alienated.
IN
CIVIL LAW
MEMORY AID
A disinheritance which does not have
one or more of the essential
requisites for its validity.
Effects:
1. If testator had made disposition of
the entire estate: annulment of the
testamentary dispositions only in so
far as they prejudice the legitime of
the person disinherited; does not
affect the dispositions of the
testator with respect to the free
portion.
2. If testator did not dispose of the free
portion: compulsory heir is given all
that he is entitled to receive as if
the disinheritance has not been
made, without prejudice to lawful
dispositions made by the testator in
favor of others.
3. Devises,
legacies
and
other
testamentary dispositions shall be
valid to such extent as will not
impair the legitime.
IMPERFECT
DISINHERITANCE
PRETERITION
1.
The
person
disinherited may be
any compulsory heir
1.
The
person
omitted must be a
compulsory heir in
the direct line
2. Always express
2. Always implied
3.Always intentional
3.
May
intentional
unintentional
4. Effect: Partial
annulment
of
institution of heirs
4. Effect: Total
annulment
of
institution of heirs
be
or
IN
CIVIL LAW
2. Parents/Ascendants:
a. When
the
parents
have
abandoned their children or
induced their daughters to live a
corrupt or immoral life, or
attempted against their virtue;
b. When the parent/ascendant has
been convicted of adultery or
concubinage with the spouse of
the testator;
c. Loss of parental authority for
causes specified in the Code; and
d. Attempt by one of the parents
against the life of the other,
unless
there
has
been
reconciliation between them.
3. Spouse:
a. When the spouse has given cause
for legal separation; When the
spouse has given grounds for the
loss of parental authority.
Revocation of Disinheritance:
1. Reconciliation;
2. Subsequent
institution
of
disinherited heir; and
the
MEMORY AID
3. Nullity of the will which contains the
disinheritance.
NOTE: Once disinheritance has been
revoked or rendered ineffectual, it
cannot be renewed except for causes
subsequent to the revocation or based
on new grounds.
RECONCILIATION
It is the resumption of genuine
cordial relationship between the
testator and the disinherited heir,
approximating that which prevailed
before the testator learned of the
cause for disinheritance, reciprocally
manifested
by
their
actions
subsequent
to
the
act
of
disinheritance.
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. (Art. 922)
NOTES:
Mere civility which may characterize
their relationship, a conduct that is
naturally expected of every decent
person, is not enough.
In order to be effective, the testator
must pardon the disinherited heir.
Such pardon must specifically refer
to the heir and to the acts causing
the disinheritance. The heir must
accept the pardon.
No particular form is required. It
may be made expressly or tacitly.
NOTE:
Where
the
cause
for
disinheritance is likewise a ground for
unworthiness to succeed, what is the
effect of a subsequent reconciliation
upon the heirs capacity to succeed?
1. If disinheritance has been made:
Rule on reconciliation applies. The
disinheritance becomes ineffective.
IN
CIVIL LAW
STATUS OF
PROPERTY GIVEN BY
LEGACY/DEVISE
1. Belonging to the
testator at the time of
the execution of the
will until his death
2. Belonging to the
testator at the time of
the execution of the
will but alienated in
favor of a 3rd person
3. Belonging to the
testator at the time of
the execution of the
will but alienated in
favor
of
the
legatee/devisee
gratuitously
EFFECT ON THE
LEGACY/DEVISE
Effective
Revoked
No
revocation.
There is a clear
intention
to
comply
with
legacy or devise.
MEMORY AID
4. Belonging to the
testator at the time of
the execution of the
will but alienated in
favor of the legatee or
devisee onerously
5. Not belonging to the
testator at the time
the will is executed but
he has ordered that the
thing be acquired in
order that it be given
to the legatee/devisee
6. Not belonging to the
testator at the time
the will is executed
and
the
testator
erroneously
believed
that
the
thing
pertained to him
7. Not belonging to the
testator at the time
the will is executed but
afterwards becomes his
by whatever title
8. Already belonged to
the legatee/devisee at
the
time
of
the
execution of the will
even though another
person
may
have
interest therein
9. Already belonged to
the legatee or devisee
at the time of
the
execution of the will
even though it may
have
been
subsequently alienated
by him
10.Testator
had
knowledge that the
thing
bequeathed
belonged to a third
person
and
the
legatee/devisee
acquired the property
gratuitously after the
execution of the will
Legatee/devisee
can
demand
reimbursement
from the heir or
estate
Effective
11.Testator
had
knowledge that the
thing
bequeathed
belonged to a third
person
and
the
legatee/devisee
acquired the property
by onerous title
Void
1.
2.
Effective
3.
4.
Ineffective
Ineffective
Legatee/devisee
can claim nothing
by virtue of the
legacy/devise
IN
CIVIL LAW
Legatee/devisee
can
demand
reimbursement
from the heir or
estate
ART. 911
ART. 950
Order of
preference:
(LIPO)
Order of preference:
(RPSESO)
Legitime of
compulsory
heirs
Donations inter
vivos
Preferential
legacies or
devices
All other
legacies or
devices pro
rata
1. Remuneratory L/D
2.
Preferential
L/D
3.
4.
L for support
L
for
education
5.
L/D of a
specific,
determinate thing
which forms a part
of the estate
All others pro rata
Application:
Application:
(1)
When
the
reduction
is
necessary
to
preserve
the
legitime
of
compulsory heirs
from impairment
whether there are
donations
inter
vivos or not; or
(2)
When,
although,
the
legitime has been
preserved by the
testator
himself
there
are
donations
inter
vivos.
NOTES:
MEMORY AID
In case of reduction in the above
cases, the inverse order of payment
should be followed.
II.
LEGAL
SUCCESSION
OR
INTESTATE
IN
CIVIL LAW
MEMORY AID
IN
CIVIL LAW
1. Testamentary Succession
a) When a compulsory heir in the
b)
MEMORY AID
unworthiness
and
he
has
children or descendants.
c) When a compulsory heir in the
direct
descending
line
is
disinherited and he has children
or descendants; representation
covers only the legitime.
d) A legatee/devisee who died
after the death of the testator
may be represented by his heirs.
2. Intestate Succession
a)
When a legal heir in the
direct descending line had
predeceased the decedent and
was survived by his children or
descendants.
b)
When a legal heir in the
direct
descending
line
is
excluded from the inheritance
due
to
incapacity
or
unworthiness
and
he
has
children or descendants.
c)
When brothers or sisters
had predeceased the decedent
and they had children or
descendants.
d)
When illegitimate children
represent
their
illegitimate
parents who already died in the
estate of their grandparents.
e) When nephews and nieces
inherit together with their
uncles
and
aunts
in
representation of their deceased
parents who are the brothers or
sisters of said uncles and aunts.
D. INTESTATE OR LEGAL HEIRS
Those who are called by law to the
succession either in the absence of a
will or of qualified heirs, and who
are deemed called based on the
presumed will of the decedent.
REGULAR ORDER OF SUCCESSION
(Decedent is a legitimate person):
1. Legitimate children or descendants
(LCD)
2. Legitimate parents or ascendants
(LPA)
3. Illegitimate children or descendants
(ICD)
4. Surviving spouse (SS)
CIVIL LAW COMMITTEE
IN
CIVIL LAW
OF CONCURRENCE
LCD, ICD, and SS
LPA, ICD, and SS
ICD and SS
SS and IP
BS/NN and SS
C5 (alone)
State (alone)
INTESTATE SHARE
Entire estate
1/2
1/2
(Diongson vs. Cinco, 74
SCRA 118)
Consider SS as 1 LC,
then divide estate by
total number.
1/2
1/2
1/2
1/4
1/4
1/2
1/2
(The law is silent. Apply
concurrence theory.)
1/2
1/2
First, satisfy legitimes.
Estate
would
be
insufficient. Reduction
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
2 or more LC
SS
IC
2. LPA/IP
AP
SS
3. LPA
AP
ICD
4. LPA
AP
SS
ICD
1/3
1/3
1/3
IN
CIVIL LAW
III.
MIXED
SUCCESSION
PARTIAL INTESTACY
OR
Succession
that
is
effected partly by will and partly by
operation of law.
RULES:
1. The law of legitimes must be
brought into operation in partial
intestacy, because the testamentary
dispositions can affect only the
disposable free portion but never the
legitimes.
2. If
among
the
concurring
intestate heirs there are compulsory
heirs, whose legal or intestate
portions exceed their respective
legitimes, then the amount of the
testamentary disposition must be
deducted from the disposable free
portion, to be borne by all the
intestate heirs in the proportions
that they are entitled to receive
from such disposable free portion as
intestate heirs.
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
3. If the intestate share of a
compulsory heir is equal to his
legitime, then the amount of the
testamentary disposition must be
deducted only from the intestate
shares of the others, in the
proportions stated above.
4. If the testamentary dispositions
consume the entire disposable free
portion, then the intestate heirs who
are compulsory heirs will get only
their legitime, and those who are
not compulsory heirs will get
nothing.
IV.
PROVISIONS
COMMON
TO
TESTAMENTARY
AND
INTESTATE
SUCCESSIONS
A. RIGHT OF ACCRETION (A)
(ARTS 1015 1023)
A right by virtue of
which, when two or more persons
are called to the same inheritance,
devise or legacy, the part assigned
to one who renounce or cannot
receive his share, or who died before
testator, is added or incorporated to
that of his co-heirs, co-devisees, or
co-legatees.
IN
CIVIL LAW
TESTAMENTARY
SUCCESSION
Legitime
Free
Portion
1. RR
1. A
2. IS
2. IS
RR
A
2. IS
IS
1. RR
_
2. IS
IS
A
INTESTATE
SUCCESSION
(IS)
1. RR
2. IS
RR
IS
_
A
Summary:
(A)
In
testamentary succession:
(1) Legitime:
(a) In case of predecease of an
heir,
there
is
representation if there are
children or descendants; if
none, the others inherit in
their own right.
(b) In case of incapacity,
results are the same as in
predecease.
(c) In case of disinheritance,
results are the same as in
predecease.
(d) In case of repudiation by an
heir, the others inherit in
their own right.
(2) Disposable free portion:
Accretion takes place when
requisites are present; but if
such requisites are not present,
the others inherit in their own
right.
(B) In intestate succession:
(1) In case of predecease, there is
representation if there are children
or descendants; if none, the others
inherit in their own right.
(2) In case of incapacity, results are the
same as in predecease.
(3) In case of repudiation, there is
always accretion.
B. CAPACITY TO SUCCEED BY WILL OR
BY INTESTACY (ARTS. 1024 1040)
Requisites:
MEMORY AID
1. The heir, legatee/devisee must be
living or in existence at the moment
the succession opens; and
2. He must not be incapacitated or
disqualified by law to succeed.
THE FOLLOWING ARE INCAPABLE OF
SUCCEEDING:
A. Based on Undue Influence or
Interest: (PIGRAP)
1. 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;
2. Individuals, associations and
corporations not permitted by law to
inherit;
3. 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;
4. Relatives of such priest or
minister of the gospel within the 4th
degree, the church, order, chapter,
community,
organization
or
institution to which such priest or
minister may belong;
5. Attesting
witness
to
the
execution of a will, the spouse,
parents or children, or any one
claiming under such witness, spouse,
parents or children; and
6. Physician, surgeon, nurse, health
officer or druggist who took care of
the testator during his last illness.
B. Based on Morality or Public Policy
(ART 739)
1. Those made in favor of a person with
whom the testator was guilty of
adultery or concubinage at the time
of the making of the will.
2. Those made in consideration of a
crime of which both the testator and
the beneficiary have been found
guilty.
IN
CIVIL LAW
1. effected when
testator makes a
MEMORY AID
document or any
writing in which the
decedent condones
the
cause
of
incapacity
2.
cannot
be
revoked
IN
CIVIL LAW
MEMORY AID
title, in order that it may be
computed in the determination of
the legitime of each heir, and in the
account of partition. (Art. 1061)
An act of returning or restoring to
the common mass of the estate,
either actually or fictitiously, any
property which a person may have
received from the decedent during
the latters lifetime, but which is
understood for legal purposes as an
advance from inheritance.
OPERATIONS RELATED TO COLLATION
1. Collation adding to the mass of the
hereditary estate the value of the
donation or gratuitous disposition
2. Imputing or Charging crediting the
donation as an advance on the
legitime (if the donee is a
compulsory heir) or on the free
portion (if the donee is a stranger)
3. Reduction determining to what
extent the donation will remain and
to what extent it is excessive or
inofficious.
4. Restitution return or payment of
the excess to the mass of hereditary
estate.
Persons obliged to collate
1. GENERAL RULE: compulsory heirs
EXCEPTIONS:
a. When the testator should have
so expressly provided; and
b. When the compulsory heir should
have repudiated his inheritance
2. Grandchildren who survive with their
uncles, aunts, or 1st cousins, and
inherit by right of representation.
NOTE: Grandchildren may inherit from
grandparent in their own right (i.e. heirs
next in degree) and not by right of
representation if their parent repudiates
the inheritance of the grandparent, as
no living person can be represented
except in cases of disinheritance and
incapacity. In such case grandchildren
are not obliged to bring to collation
what their parent has received
gratuitously from their grandparent)
IN
CIVIL LAW
What to collate:
1. Any property or right received by
gratuitous title during the testators
lifetime
2. All that they may have received from
the decedent during his lifetime
3. All that their parents would have
brought to collation if alive
Properties not subject to collation (2nd
concept):
1. Absolutely
no
collation
(all
concepts):
a. Expenses for support, education
(elementary
and
secondary
only), medical attendance, even
in
extraordinary
illness,
apprenticeship,
ordinary
equipment, or customary gifts
(Art. 1067).
2. Generally not imputable to legitime:
a. Expenses incurred by parents in
giving
their
children
professional, vocational or other
career unless the parents so
provide, or unless they impair
the legitime.
b. Wedding gifts by parents and
ascendants
consisting
of
jewelry, clothing, and outfit
except when they exceed 1/10
of the sum disposable by will.
E. PARTITION AND DISTRIBUTION OF
ESTATE (ARTS. 1078 1105)
It is the separation, division and
assignment of a thing held in
common among those to whom it
may belong. It includes every act
which is intended to put an end to
indivision among co-heirs, and
legatees or devisees, although it
should purport to be a sale,
exchange, compromise, or any other
transaction. It is not subject to any
form.
Who may effect partition:
1. decedent himself during his lifetime
by an act inter vivos or by will;
2. heirs themselves;
3. competent court;
4. 3rd person designated by the
decedent.
MEMORY AID
Who can demand partition:
1. compulsory heir;
2. voluntary heir;
3. legatee or devisee;
4. any person who has acquired
interest in the estate.
IN
CIVIL LAW
& CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP: Alnaiza Hassiman, Dorothy Gayon
& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.
Rhodora
Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease),
John Stephen
Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony
Purganan(LTD),
Ma. Ricasion Tugadi (Conflicts of Law)
MEMORY AID
IN
CIVIL LAW