Professional Documents
Culture Documents
INTRODUCTION
*from UP Balane Notes
Etymology
Succession is derived from 2 Latin words:
Sub - meaning under (e.g., an underling, a subordinate, if a plane travels at a subsonic speed
or fly below opposite-- subsonic) and
Cedere, meaning to give, to pass.
Succession, therefore, is a passing under. It gives the idea of the nature of succession as
originated from Roman Law.
Why do the Romans call it a passing under? Because of the fiction in Roman Law that a
personality occupies a space, that is, a legal personality is permanent. A permanent fixture but
the occupant will go away. And it is the successor who will occupy the space you left vacant.
There is always what you call personalitas "sound through" like a play, where you wear a mask,
and the one behind the curtain is sounding through. That is, somebody is really talking behind
you. This, by analogy is, succession.
o Persona means "you," the character.
o Personalita or personality which is always there, and there is or there will always be an
occupant, who comes and goes; it may change the character, the person passes under.
o What is behind all this? Personality never dies. We are but dust and shadows based
on the reality of death.
Why do we have to devise this fiction? Why the law on succession? The Law on succession has
various underpinnings in Roman Law --
o First, the vague idea of after life, like the ideas of Horace -- state of good in the Elipian
fields;
o Second, that the law develops based on conditions of society. One of the most basic
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desire of man is the desire for immortality.
o How, When, To Whom, In What proportion are they transmitted -- Succession.
Definition of Succession
Succession in a juridical sense is the substitution of one person for another in
a determinable relationship or a subrogation of one person by another in a
juridical situation. (Manresa.)
Succession is the substitution of a person to the determinable legal
relationship of another. (Castan.)
**Castan's definition is better According to Atty. Balane
Ownership and other real rights over property are acquired and transmitted by law,
donation, by testate and intestate succession, and in consequence of certain contracts,
by tradition.
Article 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.
If a contract should contain some stipulation in favor of a third person, he may demand
its fulfillment provided he communicated his acceptance to the obligor before its
revocation. A mere incidental benefit or interest of a person is not sufficient. The
contracting parties must have clearly and deliberately conferred a favor upon a third
person.
o Succession provides the vehicle for satisfying your yearning and longing for
immortality. It satisfies or consoles yourself that something in you lives
forever and this is your personality. Others usually leave something like
paintings, book of poems, statue so that they will be remembered forever, e.g.,
Horace by Shakespeare.
o Concept of pater familias. Diligence of pater familias. Pater familias
means head of the family, the basic unit of Roman society. It is he who
managed and exercised authority over his children, absolute control over his
wife. In Roman law, a man's wife is his child. It is he who is the guardian of
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the family gods. It is a position that must be occupied every time. It is
unthinkable to be otherwise. Once he dies, it is absolutely necessary not only
in religion that he is to be replaced immediately. This is indispensable.
How can you explain that? Is there some link between the law on succession
and property? There is. Castan said that the law on succession is both law
on persons and property. However, in a pure testamentary succession, the
law on persons do not come to play. Say, a will giving UP a property. This is
more on the law of property. This is the ecclectic theory of Castan.
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The law which governs them is succession. And that is all on succession,
everything is footnotes.
Mortis Causa - Succession cannot take place while the owner is alive. The heir/
successor has a mere expectancy right to the property of the decedent, during
the lifetime of the latter.
Interest of the family may override the will of the decedent because of
compulsory heirs. There is a legitime reserved for the family. A will cannot
impair the legitime.
The estate passes or devolves to the family unless the decedent expressly
orders otherwise in a will. Family covers spouse, ascendants, descendants,
and collateral relatives.
The family cannot be entirely deprived of the estate because of the system of
legitime.
Within the family, heirs of equal degree/ proximity inherit in equal shares.
Presumption of equality. This is only the general rule. There are exceptions.
The State has a share in the inheritance through taxes.
The heirs are not liable for the debts of the estate beyond their share in the
inheritance. Estate is liable for the debts left by the decedent. Debts are to be
deducted before the heirs can get their shares. Procedure: Collect all assets,
deduct debts, then partition the shares. Up to what extent? Up to all its assets.
If the estate is zero balance, the heirs get nothing.
o Under the modern civil law, if the decedent left more debts than
assets, it will not change or affect your status anyway, but not with the
decedent's creditors-- they have to beware-- caveat creditor.
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be post-mortem or ante mortem.
The application of the prohibition outlined in Art. 739 to succession. This is
by virtue of Art. 1038.
Increase of the free portion-- corollary to the abolition of the mejora
Limitation of the fideicommisary substitution to one degree (before, two
degrees)
Intestate succession is narrowed from sixth degree to fifth degree.
Abolition of the institution under pupilar and ejemplar (substitution.)
Allowance of lifetime probate
As to time of execution
Article 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.
For foreigners same rule assumption is: that the will is being probated here
As to place of execution
Article 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
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When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
Article 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.
Article 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.
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For Filipinos
Law of citizenship
Law of domicile
Law of residence
Law of place of execution, or
Philippine law
As to time
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Article 1039. Capacity to succeed is governed by the law of the nation of
the decedent.
D. SUBJECTS OF SUCCESSION
Article 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 a testator.
Devisees and legatees are persons to whom gifts of real and personal
property are respectively given by virtue of a will.
According to Balane, the codal definitions are neither clear nor very helpful. The
definitions in the Spanish Code, if taken in conjunction with Castans explanations
are more helpful
Heir one who succeeds to the whole or an aliquot part of the inheritance
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[Balane]
The enumeration is exclusive and may be classified as follows:
Primary compulsory heirs They are so called because they are preferred
over, and exclude, the secondary
o legitimate children The law does not specify how the legitimate
children should share in the legitime. There is universal agreement,
however, that they will share equally, regardless of age, sex, or
marriage of origin
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as compulsory heirs together with primary or secondary heirs; except only that
illegitimate children/descendants exclude illegitimate parents
o illegitimate children
The Family Code has abolished the distinction between
natural and spurious children and gives all of them equal
legitimary portions; all are illegitimate children
However, pursuant to Article 777, if death occurred before the
effectivity of the Family Code on 3 August 1988, the old
distinctions will apply and the spurious child gets only 4/5 the
share of the natural (Article 895).
Relationship
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Article 963. Proximity of relationship is determined by the number of
generations. Each generation forms a degree.
Article 964. A series of degrees forms a line, which may be either direct
or collateral.
Importance of distinction:
Computation of degrees
Direct line There is no legal limit to the number of degrees for entitlement
to intestate succession. The practical limit, of course, is human mortality.
The former unites the head of the family with those who descend from
him.
Article 966. In the line, as many degrees are counted as there are
generations or 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.
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In the collateral line, ascent is made to the common ancestor and the
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.
Importance of distinction
There is a ratio of 2:1 for full blood and half-blood relationship respectively
With respect to other collateral relatives, the full-blood and half-blood
relationship is not material.
Article 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.
Accretion in intestacy
There is accretion in intestacy among heirs of the same degree in case of
predecease, incapacity, or renunciation of any one of them.
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shall inherit in their own right and cannot represent the person or
persons repudiating the inheritance.
The ascending line next Should no one be left in the descending line, the
heirs in the ascending acquire the right of succession, again in order of degrees
of proximity;
The collateral line last Only if all descendants and ascendants renounce
will the collateral relatives acquire the right to succeed.
Capacity to Succeed
a. Determination
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be the criterion.
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Article 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.
Natural Persons
The requirement that the successor should be alive when the decedent
dies is absolute.
Juridical Persons
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For institutions subject to suspensive condition or terms, the rules in Article
1025 also apply.
Article 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 without specifying its application, the executor, with the
courts approval shall deliver one-half thereof of 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.
Requisites
o Disposition for prayers and pious works for the benefit of the testators
soul
o No specification of the application of the disposition
The preceding paragraph shall apply when the testator has disposed
of his property in favor of the poor of a definite locality.
The named beneficiaries here are the poor, either of a definite locality or of no
designated locality.
If there is no designated locality, the poor of the testators domicile will be the
beneficiaries, unless excluded by the testator in his will.
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C. Who Are Incapable of Succeeding?
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;
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care of the testator during his last illness;
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
The will must have been executed during the testators last illness.
The spiritual ministration must have been extended during the last illness.
The will must have been executed during or after the spiritual ministration.
The disqualification does not only apply to Christian priests, pastors,
ministers, and so forth, but also to all individuals belonging to other religions,
sects, or cults, whose office or function is to extend peculiar spiritual
ministrations of their creed.
For this disqualification to apply, the will must have been executed by the ward
during the effectivity of the guardianship.
The terms of the prohibition seem to be limited to guardians over the property,
however, in view of the purpose of the prohibition, this should apply as well to
guardians over the person. [Balane]
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Exception: A guardian who happens to be an ascendant, descendant,
brother, sister or spouse of the ward-testator is excluded from the prohibition.
The person must have taken care of the testator during the latters final illness.
Taken care means medical attendance with some regularity or continuity,
because it is in such circumstances that the possibility of duress or influence
exists.
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Rationale: What cannot be done by direction cannot be done by indirection
Simulation must be proved for this article to apply.
The intestate heirs whom the property would go have the right to claim the
nullity.
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 6 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;
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the testator;
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 latters will;
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 6 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
[Balane] One of the requisite of this ground for disqualification makes this
paragraph non-operative. There is no legal obligation to make an accusation
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under the present law.
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 latters will
Effect of unworthiness
Unworthiness gives rise to total disqualification. The unworthy heir is
incapacitated to succeed from the offended party by any form of succession.
Unworthiness and disinheritance have identical effects.
Unworthiness is disinheritance imposed by law.
Unworthiness deprives the unworthy heir even of the legitime
Restoration to capacity
The unworthiness is set aside and the unworthy heir is restored to capacity.
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2 ways
o A written condonation
o The execution by the offended party of a will with knowledge of the
cause of unworthiness
The descendants succeed not only by representation, but by their own right in
proper cases.
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d. Effect of alienation of the excluded heir
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substitute parental authority. (See Article 216, Family Code)
Article 1037. The unworthy heir who is excluded from the succession
has a right to demand indemnity for any expenses incurred in the
preservation of the hereditary property, and to enforce such credits as
he may have against the estate.
The right of reimbursement to the excluded heir is irrespective of his bad faith
because the expenses referred to are necessary expenses, which have to be
reimbursed even to a possessor in bad faith. (Article 443 and 546 (1))
Prescriptive period for claim 5 years from the delivery of the property
to the State
Who may make claim - Any person entitled by succession to the estate
He shall be liable for all of the fruits and rents he may have received,
or could have received through the exercise of due diligence.
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Period for action to recover Article 1040
g. Prescription
Article 1040. The action for a declaration of incapacity and for the
recovery of the inheritance, devise or legacy shall be brought within
5 years from the time the disqualified person took possession
thereof. It may be brought by anyone who may have an interest in
the succession.
Object of Succession
Article 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
Article 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.
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If a contract should contain some stipulation in favor of a third
person, he may demand its fulfillment provided he communicated his
acceptance to the obligor before its revocation. A mere incidental
benefit or interest of a person is not sufficient. The contracting parties
must have clearly and deliberately conferred a favor upon a third
person.
Article 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights
which are not intransmissible may also be the object of contracts.
All services which are not contrary to law, morals, good customs,
public order, or public policy may likewise be the object of a contract.
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The action to demand restoration, reparation, and indemnification
likewise descends to the heirs of the person injured.
Opening of Succession
Article 777. All the rights to the succession are transmitted from the
moment of the death of the decedent.
The vesting of the right occurs immediately upon the decedents death without a
moments interruption.
Article 2253. The Civil Code of 1889 and other previous laws govern
rights originating, under said laws, from acts done or events which took
place under their regime, even though this Code may regulate them in
a different manner, or may not recognize them. But if a right should be
declared for the first time in this Code, it shall be effective at once, even
though the act or event which gives rise thereto may have been done or
may have occurred under the prior legislation, provided said new right
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does not prejudice or impair any vested or acquired right, of the same
origin.
Article 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights
which are not intransmissible may also be the object of contracts.
All services which are not contrary to law, morals, good customs,
public order, or public policy may likewise be the object of a contract.
Article 130. The future spouses may give each other in their marriage
settlements as much as one-fifth of their present property, and with
respect to their future property, only in the event of death, to the extent
laid down by the provisions of this Code referring to testamentary
succession.
If the future spouses agree upon a regime other than the absolute
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community of property, they cannot donate to each other in their
marriage settlements more than 1/5 of their present property. Any
excess shall be considered void.
(3) When the marriage takes place without the consent of the parents
or guardian, as required by law;
(4) When the marriage is annulled, and the donee acted in bad faith;
(5) Upon legal separation, the donee being the guilty spouse;
2. When the marriage takes place without the consent of the parents or
guardian, as required by law;
3. When the marriage is annulled, and the donee acted in bad faith;
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Article 390. After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening
his succession till after an absence of ten years. If he disappeared after
the age of seventy-five years, an absence of five years shall be sufficient
in order that his succession may be opened.
Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(2) A person in the armed forces who has taken part in war, and has
been missing for four years;
That except for purposes of succession, when two persons perish in the
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same calamity, such as wreck, battle, or conflagration, and it is not
shown who died first, and there are no particular circumstances from
which it can be inferred, the survivorship is determined from the
probabilities resulting from the strength and the age of the sexes,
according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to
have survived;
2. If both were above the age sixty, the younger is deemed to have
survived;
3. If one is under fifteen and the other above sixty, the former is
deemed to have survived;
4. If both be over fifteen and under sixty, and the sex be different, the
male is deemed to have survived, if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those
ages, the latter is deemed to have survived.
Retroactivity
Of acceptance
Of renunciation
Of conditional institutions
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Article 1044. Any person having the free disposal of his property may
accept or repudiate an inheritance.
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.
Article 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.
A deaf-mute who can read and write has contractual capacity, and can accept
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or renounce on his own behalf.
An illiterate deaf-mute is incompetent and the rules on acceptance and
renunciation through a representative apply.
Kinds of acceptance:
Express
o Public document
o Private writing
Implied
2. If the heir renounces the same, even though gratuitously, for the
benefit of one or more of his co-heirs.
Tacit acceptance is inferred from acts of ownership performed by the heir over
the property.
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having jurisdiction over the testamentary or intestate proceedings.
Forms of renunciation
Public or authentic document
Petition filed in the settlement proceedings
The right of the heir who dies before accepting or renouncing is already vested
and is transmitted to the heirs heirs.
If there are several heirs, their right corresponds to the aliquot share to which
they are entitled.
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in both capacities.
The testamentary disposition is the express will of the testator; the intestacy I
only implied will.
One who renounces the express will is deemed to have renounced the implied
will, but not the other way around.
Article 1057. Within 30 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.
Kinds of Succession
1. Testamentary;
2. Legal or intestate; or
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3. Mixed.
Testamentary succession
1. If a person dies without a will, or with a void will, or one which has
subsequently lost its validity;
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 respect to the property of which the testator has
not disposed;
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Intestate succession takes place by operation of law in the absence of a valid
will.
Mixed succession
Article 780. Mixed succession is that effected partly by will and partly
by operation of law.
Contractual succession
Article 130. The future spouses may give each other in their marriage
settlements as much as one-fifth of their present property, and with
respect to their future property, only in the event of death, to the
extent laid down by the provisions of this Code referring to
testamentary succession.
Article 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights
which are not intransmissible may also be the object of contracts.
All services which are not contrary to law, morals, good customs,
public order, or public policy may likewise be the object of a contract.
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Article 84, Family Code
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 1/5 of their present property. Any
excess shall be considered void.
Compulsory succession
TESTAMENTARY SUCCESSION
Wills
Definition
Act
Permitted Will-making is purely statutory
Formalities prescribed by law - The requirement of form prescribed
respectively for attested and holographic wills
Control to a certain degree The testators power of testamentary
disposition is limited by the rules on legitimes
After his death Testamentary succession is mortis causa
Characteristics
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Article 783. A will is an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death.
Article 839 (3) and (4). The will shall be disallowed in any of the
following cases:
Article 828. A will may be revoked by the testator at any time before
his death. Any waiver or restriction of this right is void.
Article 796. All persons who are not expressly prohibited by law may
make a will.
Article 797. Persons of either sex under 18 years of age cannot make a
will.
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The law is interested in the legal consequences of the testators mental capacity
or incapacity, not in the medical aspects of mental disease.
As long as the testator, at the time he made the will, was capable of perceiving
3 things has mental capacity, whatever else he may be medically.
o The nature of the estate to be disposed of
o The proper objects of his bounty
o The character of the testamentary act
Article 777. The rights to the succession are transmitted from the
moment of the death of the decedent.
Article 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.
Reasons:
Limitation on the modes of revocation
Diminution of testamentary secrecy
Danger of undue influence
Danger of one testator killing the other
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The determination of the portions they are to receive
Article 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 of
money are to be given or applied.
Interpretation of Wills
Testacy is preferred to intestacy because the former is the express will of the
decedent whereas the latter is only implied will.
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Two kinds of ambiguity
Latent not obvious on the face of the will
Patent obvious on the face of the will
Article 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.
Article 793. Property acquired after the making of the will shall only
pass thereby, as if the testator has possessed it at the time of the
making of the will, should it expressly appear by the will that such was
his intention.
Article 794. Every devise or legacy shall convey all the interest which
the testator could devise or bequeath in the property disposed of,
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unless it clearly appears from the will that he intended to convey a less
interest.
In a legacy or devise the testator gives exactly the interest he has in the thing.
Article 796. All persons who are not expressly prohibited by law may
make a will.
Article 797. Persons of either sex under 18 years of age cannot make a
will.
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Article 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.
Article 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.
Article 802. A married woman may make a will without the consent
of her husband, and without authority of the court.
Article 803. A married woman may dispose by will all her separate
property as well as her share of the conjugal partnership or absolute
community property.
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Supervening Incapacity
SOLEMNITIES OF WILLS
Kinds of Wills
Notarial Wills
General Requirement
Specific requirements
The testator or the person requested by him to write his name and the
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instrumental witnesses of the will, shall also sign, as 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.
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.
Subscribed by the testator or his agent at the end thereof in the presence of the
witnesses
o If signed by agent, it must be
In the presence of the testator AND
By the testators express direction
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o Actual seeing is not required, but the ability to see each other by
merely casting their eyes in the proper direction.
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The testator or his agent must sign every page except the last, on the left
margin in the presence of the witnesses
The witnesses must sign every page, except the last on the left margin in the
presence of the testator and of one another
All pages must be numbered correlatively in letters on the upper part of each
page.
o That the testator or his agent signed the will and every page thereof,
in the present of the witnesses*
If signed by an agent, that if was under the express direction
of the testator
o That the witnesses witnessed and signed the will and every page
thereof in the presence of the testator and one another*
*These are not mentioned in Article 805 but are required to be stated in the
attestation clause. Therefore, these requirements should be complied with.
That the requirement that an agent signed in the presence of the testator is not
required to be stated in the attestation clause but as per Article 805 (1) and (2), it
is mandatory.
Witnesses to a Will
Article 82o. Any person of sound mind and of the age of 18 years or
more, and not blind, 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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1. Any person not domiciled in the Philippines;
Article 824. A mere charge on the estate of the testator for the
payment of debts due at the time of the testators death does not
prevent his creditors from being competent witnesses to his will.
Supervening Incompetency
*The execution of the will is the only relevant temporal criterion in the
determination of the competence of the witnesses.
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This is a disqualification of a witness to succeed to a legacy or devise when
there are only 3 witnesses.
Article 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.
Substantial Compliance
Holographic Wills
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General Requirement
Specific Requirements
3 Requirements
Dated by the testator should include the day, month and year of
execution
Signed by the testator implies signing at the logical end of the will
(Article 812)
If, in the case of several additional dispositions the additional ones before the last
are dated but not signed, only the last will be valid, provided the last is signed and
dated.
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INCORPORATION OF DOCUMENT BY REFERENCE
2. The will must clearly describe and identify the same, stating among
other things the number of pages thereof;
Only attested wills can incorporate documents by reference since only attested
wills are witnessed.
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CODICILS
Definition
An attested will may have a holographic codicil; a holographic will may have
an attested codicil.
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Article 830. No will shall be revoked except in the following cases:
1. By operation of law; or
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Solemnities
Definition of Revocation
A will is ambulatory, which means that a competent testator may change or revoke
it at any time before his death. [legal dictionary]
Article 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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Article 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.
Follow the law of the place where the will was made
Modes of Revocation
1. By implication of law; or
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By operation of law revocation may be total or partial
o Preterition
o Legal separation
o Unworthiness to succeed
o Transformation, alienation, or loss of the object devised or
bequeathed
o Judicial demand of a credit given as a legacy
Effect of Revocation
Article 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
later wills.
The present rule is that the execution of a subsequent will does not
ipso facto revoke a prior one.
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Article 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.
The efficacy of the revocatory clause does not depend on the testamentary
dispositions of the revoking will, unless the testator so provides.
o It must be false
o It must appear from the will that the testator is revoking because of
the cause which is false.
Article 834. The recognition of an illegitimate child does not lose its
legal effect, even though the will wherein it was made should be
revoked.
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o Even if the will is revoked, the recognition remains effective.
If the testator wishes to republish a will that is void as to form, the only way is
to execute a subsequent will and reproduce the dispositions of the
original will.
o Mere reference to the prior will in the subsequent will is not enough.
If the testator wishes to republish a will that is void for a reason other than a
formal defect or is previously revoked, the only thing necessary is to execute
a subsequent will or codicil referring to the previous will.
Article 837. If after making a will, the testator makes a second will
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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.
The terms of this article apply only where the revocation of the first will by the
second will is express.
o If the revocation id implied, this article will not apply.
ALLOWANCE OF WILLS
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 testators death shall govern.
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Concept of Probate
Necessity of Probate
Modes of Probate
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Effect of allowance of wills
DISALLOWANCE OF WILLS
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A will is either valid or void.
If any of these grounds for disallowance is proved, the will be set aside as void.
The issue of formal validity or nullity is precisely what the probate proceedings
will determine.
A probate decree once final, forecloses any subsequent challenge on any of the
matters enumerated in this article.
Article 1335. There is violence when in order to wrest consent, serious or irresistible force is
employed.
There is intimidation when one of the contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and condition of the person shall be borne
in mind.
A threat to enforce one's claim through competent authority, if the claim is just or legal, does not
vitiate consent. (1267a)
Article 1336. Violence or intimidation shall annul the obligation, although it may have been
employed by a third person who did not take part in the contract. (1268)
Article 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 alleged to have been unduly influenced was suffering from
mental weakness, or was ignorant or in financial distress. (n)
Article 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. (1269)
LEGITIME
Concept
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4. Acknowledged natural children, and natural children by legal fiction;
[Balane]
The enumeration is exclusive and may be classified as follows:
Primary compulsory heirs They are so called because they are preferred
over, and exclude, the secondary
o legitimate children The law does not specify how the legitimate
children should share in the legitime. There is universal agreement,
however, that they will share equally, regardless of age, sex, or
marriage of origin
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exclude the more remote.
o illegitimate children
The Family Code has abolished the distinction between
natural and spurious children and gives all of them equal
legitimary portions; all are illegitimate children
However, pursuant to Article 777, if death occurred before the
effectivity of the Family Code on 3 August 1988, the old
distinctions will apply and the spurious child gets only 4/5 the
share of the natural (Article 895).
Article 902. The rights of illegitimate children set forth in the preceding
articles are transmitted upon their death to their descendants whether
legitimate or illegitimate.
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Concurrence of compulsory heirs and their corresponding legitimes
The latter may freely dispose of the remaining half, subject to the rights
of illegitimate children and of the surviving spouse as hereinafter
provided.
The legitimate children share the in equal parts, regardless of age, sex or
marriage origin.
Adopted children succeed the adopter in the same manner as legitimate
children by blood.
Descendants other than children
o General rule: the nearer exclude the more remote
Qualification - representation
o Grandchildren cannot inherit since the children will bar them unless all
the children renounce.
o There is no limit to the number of degrees in the descending line
that may be called to succeed, whether in their own right or by
representation.
Article 890. The legitime reserved for the legitimate parents shall be
divided between them equally; if one of the parents should have died,
the whole shall pass to the survivor.
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3 Basic Rules Governing Succession in the Ascending Line
o Division by line
Applies when there are more than 1 ascendant in the nearest
degree. The legitime shall then be divided in equal parts
between the paternal line and the maternal line.
In both cases, the legitime of the surviving spouse shall be taken from
the portion that can be freely disposed of by the testator.
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Death pendente lite the proceedings are terminated and the
surviving spouse inherits from the deceased spouse
This fourth shall be taken from the free portion of the estate.
Death before the effectivity of the Family Code old distinctions will apply
o Spurious child 4/5 of the natural child
The legitime of the illegitimate children shall be taken from the portion
of the estate at the free disposal of the testator, provided that in no case
shall the total legitime of such illegitimate children exceed that free
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portion, and that the legitime of the surviving spouse must first be fully
satisfied.
*pro tanto amended by Articles 163, 165 and 176 of the Family Code
Reduction of shares in case the total legitimes will exceed the entire
estate
o Legitimes of legitimate children should never be reduced.
o Legitime of the surviving spouse should never be reduced.
o Legitimes of illegitimate children will be reduced pro rata and without
preference among them.
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Article 898. If the widow or widower survives with legitimate children
or descendants, and with illegitimate children other than
acknowledged natural, or natural children by legal fiction, the share of
the surviving spouse shall be the same as that provided in the preceding
article.
*Articles 897 and 898 are reiterations of rules in Articles 892 and 895.
Article 900. If the only survivor is the widow or the widower, she or he
shall be entitled to one-half of the hereditary estate of the deceased
spouse, and the testator may freely dispose of the other half.
If the marriage between the surviving spouse and the testator was
solemnized articulo mortis, and the testator died within 3 months from
the time of marriage, the legitime of the surviving spouse as the sole
heir shall be one-third of the hereditary estate, except when they have
been living as husband and wife for more than 5 years. In the latter case,
the legitime of the surviving spouse shall be that specified in the
preceding paragraph.
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o The spouse who died was the party in articulo mortis at the time of the
marriage
Article 901. When the testator dies leaving illegitimate children and no
other compulsory heirs, such illegitimate children shall have a right to
one-half of the hereditary estate of the deceased.
Article 903. The legitime of the parents who have an illegitimate child,
when such child leaves neither legitimate descendants, nor a surviving
spouse, nor illegitimate children, is one-half of the hereditary estate of
such illegitimate child. If only legitimate or illegitimate children are
left, the parents are not entitled to any legitime whatsoever. If only the
widow or widower survives with parents of the illegitimate child, the
legitime of the parents is one-fourth of the hereditary estate of the child,
and that of the surviving spouse also one-fourth of the estate.
Article 904. The testator cannot deprive his compulsory heirs of their
legitime, except in cases expressly specified by law.
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The testator is devoid of power to impose burdens on the legitime.
Reason: Before the predecessors death, the heirs right is simply inchoate.
Duty to collate Any property which the compulsory heir may have gratuitously
received from his predecessor by virtue of renunciation or compromise will be
considered an advance on his legitime and must be duly credited.
Article 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.
Principle Anything that a compulsory heir receives by gratuitous title from the
predecessor is considered an advance on the legitime and is deducted therefrom.
Exceptions
Article 1062 If the predecessor gave the compulsory heir a donation
inter vivos and provided that it was not to be charged against the legitime.
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Article 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.
To allow the testator to make testamentary dispositions that impair the legitime
would in effect allow him to deprive the compulsory heirs of part of their legitimes.
not allowed by Article 904.
Article 1347. All things which are not outside the commerce of men,
including future things, may be the object of a contract. All rights which
are not intransmissible may also be the object of contracts.
All services which are not contrary to law, morals, good customs, public
order, or public policy may likewise be the object of a contract.
Determination or computation
Article 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.
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assets.
Only those obligations with monetary value which are not extinguished by
death are considered here.
o Those which are purely personal are not taken into account.
The difference between the gross assets and the unpaid
obligations will be the available assets.
Should they exceed the portion that can be freely disposed of, they shall
be reduced in the manner prescribed by this Code.
Articles 909-910
The rule applies to all compulsory heirs.
Exception: The rule of imputation to the legitime will not apply if the donor
provided otherwise, in which case the donation will be imputed to the
disposable portion of the estate.
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Donations inter vivos to strangers are necessarily imputed to the disposable
portion.
Article 911. After the legitime has been determined in accordance with
the 3 preceding articles, the reduction shall be made as follows:
2. The reduction of the devises or legacies shall be pro rata, without any
distinction whatever.
If the legitime is impaired, the gratuitous dispositions of the testator, either inter
vivos or mortis causa, have to be set aside or reduced as may be required to cover
the legitimes.
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Method of Reduction
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part that passes as legitime.
The devisee who is entitled to a legitime may retain the entire property,
provided its value does not exceed that of the disposable portion and of
the share pertaining to him as legitime.
Rules:
If the extent of reduction is less than of the value of the thing should be
given to the devisee
In either case, there should be pecuniary reimbursement to the party who did
not get his physical portion of the thing devised.
If no heir or devisee elects to acquire it, it shall be sold at a public auction and
the net proceeds accordingly divided between the parties concerned.
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acquisition.
COLLATION
Collation as return This takes place when a donation inter vivos is found to
be inofficious and so much of its value as is inofficious is returned to the decedents
estate to satisfy the legitimes.
This article refers to computation of all donations inter vivos made by the
decedent, for the purpose of determining the value of the net estate.
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Purpose to determine the amount of the net estate so as to ensure that the
legitimes are not impaired.
Value to be computed Only the value of the property at the time the donation
was made
Article 1062. Collation shall not take place among compulsory heirs if
the donor should have so expressly provided, or if the donee should
repudiate the inheritance, unless the donation should be reduced as
inofficious.
Donations inter vivos made by the decedent to a compulsory heir are, as a general
rule, imputed to or charged against the heirs legitime.
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Donations inter vivos to compulsory heirs
o Apply Articles 909-910
o Exceptions
If the donor provides otherwise; OR
If the donee renounces the inheritance, because in this case
the donee gives up his status as a compulsory heir and
therefore cannot be considered as one
o In case either exception applies, the donation will have to be imputed
to the free portion.
GENERAL RULE: They should not be imputed to the legitime, but to the free
portion. Hence, the compulsory heir receives the testamentary disposition in
addition to his legitime.
They shall also bring to collation all that they may have received from
the decedent during his lifetime, unless the testator has provided
otherwise, in which case his wishes must be respected, if the legitime
of the co-heirs is not prejudiced
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Article 1065. Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which may have been
donated by the latter to their children.
A person should not collate what his parent gave to his child. The parent is
not the recipient of the conveyance.
If the donation is made to the spouses jointly, belongs to the donors child
and should be treated in accordance with Article 1062 and the other half is the
property of the donors son- or daughter-in-law and should be treated as a
donation to a stranger.
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Support in this article is more restricted It does not include expenses for the
recepients professional, vocational, or other career, because those items are
governed by Article 1068.
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This article refers to collation as imputation
General Rule: The expenses incurred by parents for the childs professional,
vocational, or other career are an exception to the rule laid down in Article
1062. Hence, the expenses, if not inofficious, although donations, should not
be charged against the recipients legitime, but against the free portion, unless
the parents provide otherwise.
Should the parents provide otherwise, the child is entitled to deduct from the
said amount the sum corresponding to what his parents would have spent on
him had he stayed at home and loafed.
The items mentioned in this article constitute donations by the parent to the child,
and therefore, should be treated like other donations to compulsory heirs.
This article applies only to wedding gifts given by parents or ascendants to children
or descendants.
The value of such wedding gifts cannot go beyond 1/10 of the free portion of
the donors estate.
Any excess will be considered inofficious and should be returned in the same
manner and at the same time as other inofficious donations.
Article 1071. The same things donated are not to be brought to collation
and partition, but only their value at the time of the donation, even
though their just value may not then have been assessed.
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This article refers to collation as imputation and computation.
1. Only the value of the thing donated at the time the donation was made should be
considered in the computation of the donors estate.
2. Only the things value at the time of the donation was made should be imputed
whether to the legitime or to the free portion.
Any appreciation or depreciation of the thing after that time should be for the
donees account, since the donation transfers ownership to him.
Joint donations - A joint donation made by the parents will be treated, upon
the dissolution of the property regime, as pertaining in equal shares to the estate
of each.
This article requires not only equivalence in amount, but, as far as possible, also in
the kind of property received.
If the property donated was movable, the co-heirs shall only have a
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right to select an equivalent of other personal property of the
inheritance at its just price.
Article 1075. The fruits and interest of the property subject to collation
shall not pertain to the estate except from the day on which the
succession is opened.
For purposes of ascertaining their amount, the fruits and interest of the
property of the estate of the same kind and quality as that subject to
collation shall be made the standard of assessment.
If the donation is only partially inofficious, the right to the fruits and interests
shall be prorated between the compulsory heir and the donee, in proportion to
their respective interests over the property.
Article 1076. The co-heirs are bound to reimburse to the donee the
necessary expenses which he has incurred for the preservation of the
property donated to him, though they may not have augmented its
value.
The donee who collates in kind an immovable which has been given to
him, must be reimbursed by his co-heirs for the improvements which
have increased the value of the property, and which exist at the time the
partition is effected.
As to works made on the estate for the mere pleasure of the done, no
reimbursement is due him for them; he has, however, the right to
remove them, if he can do so without injuring the estate.
The rule laid down by this article govern necessary, useful and ornamental
expenses incurred by the donee who is now obliged to return.
Total return
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Necessary expenses Reimbursement must be to the full extent of the expenses
incurred.
Useful expenses Reimbursement must be to the full extent provided that the
improvement is still in existence.
Partial Return
Article 1077. Should any question arise among the co-heirs upon the
obligation to bring to collation or s to the things which are subject to
collation, the distribution of the estate shall not be interrupted for this
reason, provided adequate security is given.
The division and distribution of the estate can be made partially, should there be
controversy as to the inclusion of certain items either in the computation of the
estates value or the imputation of heirs shares. The distribution can proceed on
the items that are not controverted.
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Article 914. The testator may devise and bequeath the free portion as
he may deem fit.
*restatement of Article 842.
PRETERITION
If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation.
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Preterition omission
Article 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.
The underlying principle in this article is that anything that the compulsory heir
receives by gratuitous title from the predecessor is considered an advance on the
legitime and is deducted therefrom.
Article 855 is properly applied in cases where a compulsory heir is not preterited
but left something less that his legitime.
If the disinheritance lacks one or other of the requisites, the heir in question
gets his legitime.
As to whether the heir will also get any part of the intestate portion or not
depends on whether the testator gave away the free portion through
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testamentary dispositions.
Effect of Preterition
Preterition abrogates the institution of heir but respects legacies and devises
insofar as these do not impair the legitimes.
If the will contains only institutions of heirs and there is preterition, total
intestacy will result.
If there are legacies and devises and there is preterition, the legacies or
devises will stand, to the extent of the free porition, but the
institution of heirs will be swept away.
RESERVA TRONCAL
Article 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 3rd degree and who belong to the line from
which the said property came.
Illustration:
Purpose: Reserva truncal is a special rule designed primarily to assure the return
of the reservable property to the third degree relatives belonging to the line from
which the property originally came, and to avoid its being dissipated by the
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relatives of the inheriting ascendant.
Requisites
That there are relatives within the 3rd degree belonging to the line from which
the property came
2. By operation of law, from the transferee in the 1st transfer to another ascendant
2nd transfer creates the reserva
Basic Rules
No inquiry is to be made beyond the Origin. does not matter who the owner
of the property was before it was acquired by the Origin
All the relationships among the parties must be legitimate. Art. 891 applies
to legitimate relatives only.
Parties
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He can substitute or alienate the property.
He can bequeath or devise it either to the potential
reservistas or to 3rd persons
He can partition it in such a way as to assign it to parties
other than the potential reservistas
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The Property Reserved
The reserved property is not part of the reservistas estate upon his death.
o Upon the reservistas death, the reserved property passes to the
reservatorios by strict operation of law
RESERVA MINIMA
Every single property in the prepositus estate must be deemed to pass, partly by
will and partly by operation of law, in the same proportion that the part given by
will beats to the part not so given.
o The payment of the value of such reserved movables as may have been
alienated by the reservista onerously or gratuitously
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Renunciation by all the reservatorios, provided that no other reservatorio is
born subsequently
RESERVA ADOPTIVA
4. Make the adopted person a legal heir of the adopter; Provided, that
if the adopter is survived by legitimate parents or ascendants and by
an adopted person, the latter shall not have more successional rights
than an acknowledged natural child; Provided, further, that any
property received gratuitously by the adopted from the adopter shall
revert to the adopter should the former predecease the latter without
legitimate issue unless the adopted has, during his lifetime, alienated
such property; Provided, finally, that in the last case, should the
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adopted leave no property other than that received from the adopter,
and he is survived by illegitimate issue or a spouse, such illegitimate
issue collectively or the spouse shall receive of such property; if the
adopted is survived by illegitimate issue and a spouse, then the
former collectively shall receive and the latter also , the rest in
any case reverting to the adopter, observing in the case of the
illegitimate issue the proportion provided for in Article 895 of the
Civil Code.
The adopter shall not be a legal heir of the adopted person, whose
parents by nature shall inherit from him, except that if the latter are
both dead, the adopting parent or parents take the place of the
natural parents in the line of succession, whether testate or intestate.
DISINHERITANCE
As per Article 904, the testator cannot deprive the compulsory heirs of the legitime.
The only exception is disinheritance.
It must be unconditional.
It must be total.
Effect of disinheritance
The effect of disinheritance is not just deprivation of the legitime, but total
exclusion of the disinherited heir from the inheritance.
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The disinherited heir forfeits
o His legitime
Article 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.
If the disinheritance lacks one or other of the requisites, the heir in question
gets his legitme.
As to whether or not he will also get any part of the intestate portion depends
on whether the testator gave away the free portion through testamentary
dispositions.
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6. Maltreatment of the testator by word or deed, by the child or
descendant;
The crime of which the testator is accused must carry a penalty of at least 6
years imprisonment.
The demand must have been unjustifiably refused. Because refusal may be
justified.
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Maltreatment of the testator by word or deed, by the child or
descendant
There is a wide range of misdeeds but it is required that the act of verbal or
physical assault be of a serious nature.
3. When the parent or ascendant has accused the testator of a crime for
which the law prescribes imprisonment for 6 years or more, if the
accusation has been found to be false;
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6. The loss of parental authority for causes specified in this Code;
8. An attempt aby one of the parents against the life of the other, unless
there has been a reconciliation between them.
Only those causes which involve culpability on the part of the parents will
provide grounds for disinheritance.
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An attempt aby one of the parents against the life of the other, unless
there has been a reconciliation between them
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 for 6 years or more, and the accusation
has been found to be false;
5. When the spouse has given grounds for the loss of parental authority;
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A decree of legal separation is not required.
When the spouse has given grounds for the loss of parental authority
In Article 920, actual loss of parental authority is required but here in Article
921, giving grounds to it is sufficient.
Effect of reconciliation
If the disinheriting will did not dispose of the disposable portion, the
disinherited heir is entitled to his proportionate share, if any, of the disposable
portion.
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Representation in disinheritance The right of representation is granted
only to descendants of disinherited descendants.
INSTITUTION OF HEIRS
The rules on institution of heir apply as well to institution of devises and legatees.
In General
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to be operative.
This article prohibits the delegation to a 3 rd person the power to decide whether a
disposition should take effect or not.
Article 841. A will shall be valid even though it should not contain an
institution of an heir, or such institution should comprise the entire
estate, and even though the person so instituted should not accept the
inheritance or should be incapacitated to succeed.
Freedom of disposition
Article 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.
Even if the will does not contain any testamentary disposition, it will be
formally valid provided it complies with all the formal requisites.
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The amount of the legitimes depends on the kinds and number of compulsory
heirs. The amount of the disposable portion is also variable.
If the testator disposes by will less than he is allowed to, there will be mixed
succession.
Article 843. The testator shall designate the heir by his name and
surname, and when there are 2 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.
If among the persons having the same names and surnames, there is a
similarity of circumstances in such a way that, even with the use of other
proof, the person instituted cannot be identified, none of them shall be
an heir.
The heir, legatee, or devisee must be identified in the will with sufficient clarity
to leave no doubt as to the testators intention.
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when an uncertainty arises upon the face of the will, as to the application of any
of its provisions, the testators 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.
This does not refer to one with whom the testator is not personally acquainted.
The testator may institute somebody who is a perfect stranger to him, provided
the identity is clear.
Article 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 of money are to be given or
applied.
Equality of heirs
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This article applies only in testamentary succession only among testamentary
heir as such (devisees or legatees) and not to an heir who is both a compulsory
and a testamentary heir.
Article 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.
This article follows the general rule of equality. If the testator intends an unequal
apportionment, he should so specify.
Individuality of institution
Article 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
individually instituted, unless it clearly appears that the intention of
the testator was otherwise.
This article follows the basic rule of equality and establishes the presumption
that heirs collectively referred to are designated per capita along with those
separately designated.
Simultaneity of institution
Article 849. When the testator calls to the succession a person and his
children, they are all deemed to have been instituted simultaneously
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and not successively.
This article follows the general rule of equality. If the testator intends an unequal
apportionment, he should so specify.
Article 850. The statement of a false cause for the institution of an heir
shall be 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.
General Rule: The falsity of the stated cause for the testamentary institution does
not affect the validity or efficacy of the institution.
Exception: The falsity of the stated cause for institution will set aside the
institution if certain factors are present.
Article 851. If the testator has instituted only one heir, and the
institution is limited to an aliquot part of the inheritance, legal
succession takes place with respect to the remainder of the estate.
The same rule applies, if the testator has instituted several heirs each
being limited to an aliquot part, and all the parts do not cover the whole
inheritance.
Legal succession does not take place with respect to the remainder of the estate but
to the remainder of the disposable portion. There may be compulsory
heirs whose legitimes will therefore cover part of the estate; the legitimes do not
pass by legal or intestate succession.
Article 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
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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.
Article 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.
IN BOTH ARTICLES
There are more than 1 instituted heir
The testator intended them to get the whole estate or the whole disposable
portion
The testator has designated a definite portion for each heir.
Article 852 The total of all the portions is less than the whole estate (or the
whole disposable portion) a proportionate increase is necessary
Article 853 The total exceeds the whole estate (or the whole disposable portion)
a proportionate reduction must be made.
Predecease of heirs
Article 856. A voluntary heir who dies before the testator transmits
nothing to his heirs.
RULE:
An heir whether compulsory, voluntary or legal transmits nothing to his heirs
in case of predecease, incapacity, renunciation or disinheritance. However, in
case of predecease or incapacity of compulsory or legal heirs, as well as
disinheritance of compulsory heirs, the rules on representation shall apply.
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Kinds of institution
Simple or Pure
Article 777. The rights to the succession are transmitted from the
moment of the death of the decedent.
Conditional
Kinds
Inoperative conditions
The legitime passes by strict operation of law, independently of the testators will.
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both gratuitous and spring from the grantors liberality. The imposition of a
condition does not displace liberality as the basis of the grant.
Disposition Captatoria
Article 875. Any disposition made upon the condition that the heir shall
make some provision in his will in favor of the testator or of any other
person is void.
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It is not merely the condition that is declared void but the testamentary
disposition itself which contains the condition.
It gives the testator the power to dispose mortis causa not only his property
but also of his heirs.
Compliance
This rule shall not apply when the condition, already complied with,
cannot be fulfilled again.
Casual condition one that depends on the will of a 3rd person or on chance
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RULES
Potestative
General Rule: must be fulfilled as soon as the heir learns of the testators death
Exception:
If the condition was already complied with at the time the heir learns of
the testators death
Casual or Mixed
General Rule: may be fulfilled at any time (before or after the testators death),
unless the testator provides otherwise.
Qualifications
o If testator is aware
If can no longer be fulfilled again deemed fulfilled
Effects
General Rule: The time of the decedents death that is when successional
rights vest
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The time of happening of the condition
Heir must give security to guarantee the return of the value of property, fruits, and
interests, in case of contravention caucion muciana
The same shall be done if the heir does not give the security required in
the preceding article.
Between the time of the testators death and the time of the fulfillment of the
suspensive condition or of the certainty of its non-occurrence, property is to be
placed under administration.
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Article 884. Conditions imposed by the testator upon the heirs shall be
governed by the rules established for conditional obligations in all
matters not provided for by this Section.
Kinds
Article 885. The designation of the day or time when the effects of the
institution of an heir shall commence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the
arrival of the period or its expiration. But in the first case he shall not enter into
possession of the property until after having given sufficient security, with the
intervention of the instituted heir.
If term is suspensive Before the arrival of the term, the property should be
delivered to the intestate heirs. A caucion muciana has to be posted by them.
If them is resolutory Before the arrival of the term, the property should be
delivered to the instituted heir. No caucion muciana is required.
Effect
Article 878. A disposition with a suspensive term does not prevent the
instituted heir from acquiring his rights and transmitting them to his
heirs even before the arrival of the term.
In dispositions with a term, the heirs right vests upon the testators death,
conformably to Article 777.
Should the heir die before the arrival of the term, he merely transmits his rights
to his own heirs who can demand the property when the term arrives.
Article 885. The designation of the day or time when the effects of the institution
of an heir shall commence or cease shall be valid.
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In both cases, the legal heir shall be considered as called to the
succession until the arrival of the period or its expiration. But in the
first case he shall not enter into possession of the property until after
having given sufficient security, with the intervention of the instituted
heir.
The same shall be done if the heir does not give the security required in
the preceding article.
Between the time of the testators death and the time of the fulfillment of the
suspensive condition or of the certainty of its non-occurrence, property is to be
placed under administration.
Modal Institution
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for
compliance with the wishes of the testator and for the return of
anything he or they may receive, together with its fruits and interests,
if he or they should disregard this obligation.
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Mode an obligation imposed upon the heir, without suspending as a condition
does the effectivity of the institution.
The intention of the testator should always be the guiding norm in determining the
sufficiency of the analogous performance.
SUBSTITUTION OF HEIRS
Concept of Substitution
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Kinds of Substitution
1. Simple or common;
2. Brief or compendious;
3. Reciprocal; or
4. Fideicomissary.
How testator may provide for simple substitution with all 3 causes
o By specifying all 3 causes
o By merely providing for a simple substitution
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the 3 causes
Article 860. Two or more persons may be substituted for one, and one
person for two or more heirs.
RECIPROCAL Substitution
FIDEICOMISSARY Substitution
*Fideicomisaria
Elements of fideicomisaria
o A 1st heir who takes the property upon the testators death
fiduciary
Enters upon the inheritance upon the opening of the
succession
o A 2nd heir who takes the property subsequently from the fiduciary
fideicommisary
Does not receive the property until the fiduciarys right
expires
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Though he does not receive the property upon the testators
death, his right thereto vests at that time and merely becomes
subject to a period, and that right passes to his own heirs
should he die before the right of the fiduciary expires.
o both heirs must be living and qualified to succeed at the time of the
testators death/
the 2nd heir need not survive the 1st heir
if the 2nd heir dies before the 1st heir, the 2nd heirs own heirs
merely take his place
The legitime passes by strict operation of law, therefore the testator has no power
over it.
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General rule The fiduciary should deliver the property intact and
undiminished to the fideicommissary heir upon the arrival of the period
Article 866. The second heir shall acquire a right to the succession
from the time of the testators death, even though he should die before
the fiduciary. The right of the second heir shall pass to his heirs.
If the 2nd heir dies before the 1st heir, the 2nd heirs own heirs merely take his
place.
3. Those which impose upon the heir the charge of paying to various
persons successively, beyond the limit prescribed in Article 863, a
certain income or pension;
1. Lack of this element does not nullify the institution. It is just that the
institution is not a fideicommissary, but could be something else.
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2. If there is fideicomisaria, the limit is the 1st heirs lifetime. If there is no
fideicomisaria, the limit is 20 years.
3. There can only be 2 beneficiaries of the pension, 1 after the other, and the 2 nd
must be 1 degree from the 1st; no prohibition on simultaneous beneficiaries.
4. The ostensible heir here is in reality only a dummy. The person intended to be
benefited is the one to whom the secret instructions refer. This is a form of
circumvention of prohibition or disqualification.
Article 870. The dispositions of the testator declaring all or part of the
estate inalienable for more than 20 years are void.
If the testator imposes a longer period than 20 years, the prohibition is valid
only for 20 years.
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LEGACIES AND DEVISES
Article 924. All things and rights which are within the commerce of
man may be bequeathed or devised.
Essential Difference:
An heir receives an aliquot or fractional part of the inheritance
A legatee or devisee receives specific or generic personalty or realty,
respectively.
Article 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 to the charge beyond the amount of the free portion
given them.
Article 926. When the testator charges one of the heirs with a legacy
or devise, he alone shall be bound.
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General Rule the estate
Article 927. If 2 or more heirs take possession of the estate, they shall
be solidarily liable for the loss or destruction of a thing devised or
bequeathed, even though only one of them should have been
negligent.
The liability will also attach to the executor or administrator in proper cases.
Article 928. The heir who is bound to deliver the legacy or devise shall
be liable in case of eviction, if the thing is indeterminate and is
indicated only by its kind.
Who is liable?
Article 929. If the testator, heir, or legatee owns only a part of, or an
interest in the thing bequeathed, the legacy or devise shall be
understood limited to such part of interest, unless the testator
expressly declares that he gives the thing in its entirety.
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Article 932. The legacy or devise of a thing which at the time of the
execution of the will already belonged to the legatee or devisee shall
be ineffective, even though another person may have some interest
therein.
If the testator expressly orders that the thing be freed from such
interest or encumbrance, the legacy or devise shall be valid to that
extent.
The same rule applies when the thing is pledged or mortgaged after
the execution of the will.
Article 935. The legacy of credit against a 3rd person or 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 same 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 legate an acquittance, should he request
one.
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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.
Article 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.
General rule conveys only the interest or part owned by the testator
If the testator ordered the acquisition of the thing - the order should
be complied with
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If the testator erroneously believed that the thing belonged to him
the legacy/devise is void
If the testator knew that the thing did not belong to him but did not
order its acquisition the Code is silent on this; should be considered
valid
If the thing was owned by the testator at the time of the making of
the will and acquired thereafter from him by the legatee/devisee
legacy/devise should be deemed revoked
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Legacy of credit or remission
Applies only to amount still unpaid at the time of the testators death
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.
Legacy/devise to a creditor
General rule will be treated like any other legacy/devise and therefore will
not to be imputed to the debt
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Article 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.
Right of Choice
General Rule:
o The estate, through the executor or administrator -- in a direct
legacy/devise
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Article 942. Whenever the testator expressly leaves the right choice to
the heir, or to the legatee or devisee, the former may give or the latter
may choose whichever he may prefer.
Article 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 irrevocable.
Generic Legacies/Devises
Rules on Validity
Generic Legacy- valid even if no such movables exist in the testators estate
upon his death. The estate will simply have to acquire what is given by
legacy.
Generic Devise - valid only if there exists such an immovable in the
testators estate at the time of his death
Right of Choice
Exception: If the testator gives the right of choice to the legatee/devisee, or to the
heirs on whom the obligation to give the benefit is imposed
Article 944. A legacy for education lasts until the legatee is of age, or
beyond the age of majority in order that that 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 during his lifetime used to give the legatee a certain
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some 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.
Amount
Primarily that which is fixed by the testator
Amount
Primarily that fixed by the testator
Secondarily that which the testator during his lifetime used to give the
legatee by way of support, unless markedly disproportionate to the value of the
disposable portion
Demandability upon the testators death, and the succeeding ones at the
beginning of the period without duty to reimburse should the legatee die before the
lapse of the period.
*This should be harmonized with the rules on the settlement of estates The debts
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should first be paid before any testamentary grants can be complied with, unless
the legatee files a bond)
Should the legacy be proven not inofficious, the date of the effectivity shall retroact
to the decedents death.
Article 947. The legatee or devisee acquires a right to pure and simple
legacies or devises from the death of the testator, and transmits it to
his heirs.
From the moment of the testators death, the thing bequeathed shall
be at the risk of the legatee or devisee, who shall, therefore, bear its
loss or deterioration, and shall be benefited by its increase or
improvement, without prejudice to the responsibility of the executor
or administrator.
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if the testator has expressly so ordered.
Fruits of Legacies/Devises
Demandability
Pure and determinate upon the testators death
With a suspensive term upon the arrival of the term, but the right to
it vests upon the testators death
Fruits
Pure and determinate upon the testators death
Article 950. If the estate should not be sufficient to cover all the
legacies or devises, their payment shall be made in the following
order:
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4. Legacies for education;
*This article lays down the order of preference among legacies and devises in case
the estate is not sufficient for all of them.
Article 911 will apply if reductions have to be made because the legitime has
been impaired legacies/devises have exceeded the disposable portion
Article 950 will apply if the reason for the reduction is not the impairment of
legitimes no legitimes because there are no compulsory heirs or the
legitimes have already been satisfied through donation inter vivos
Article 951. The thing bequeathed shall be delivered with all its
accessions and accessories and in the condition in which it may be
upon the death of the testator.
The obligation to deliver the accessions and accessories exists even if the
testator does not explicitly provide for it.
The thing must be delivered in the condition in which it is at the time of the
testators death.
Article 952. The heir, charged with a legacy or devise, or the executor
or administrator of the estate, must deliver the very thing bequeathed
if he is able to do so and cannot discharge this obligation by paying its
value.
Legacies of money must be paid in cash, even though the heir or the
estate may not have any.
The expenses necessary for the delivery of the thing bequeathed shall
be for the account of the heir or the estate, but without prejudice to
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the legitime.
Article 953. The legatee or devisee cannot take possession of the thing
bequeathed upon his own authority, but shall request its delivery and
possession of the heir charged with the legacy or devise, or of the
executor or administrator of the estate should he be authorized by the
court to deliver it.
*Although the efficacy of a legacy or devise vests upon the testators death, actual
delivery does not take place at that time.
The beneficiaries of the will can only take possession after the debts have been
paid, legitimes have been determined and the testamentary disposition (+legacies
and devises) have been computed (unless they impair the legitimes).
Article 954. The legatee or devisee cannot accept a part of the legacy
or devise and repudiate the other, if the latter be onerous.
Any compulsory heir who is at the same time a legatee or devisee may
waive the inheritance and accept the legacy or devise, or renounce the
latter and accept the former, or waive or accept both.
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If the legatee/devisee dies before accepting or renouncing, his heirs shall exercise
such right as to their pro-indiviso share, and in the same manner as in the rules
above.
If will provides otherwise, all the rules stated above apply in the absence
of a stipulation in the will providing otherwise testators wishes are
supreme.
Primarily substitution
Secondarily accretion
Tertiarily - intestacy
2. If the testator by any title or for any cause alienates the thing
bequeathed or any part thereof, it being understood that in the latter
case the legacy or devise shall be without effect only with respect to the
part thus alienated. If after the alienation the thing should again
belong to the testator, even if t be by reason of nullity of the contract,
the legacy or devise shall not thereafter be valid, unless the
reacquisition shall have been effected by virtue of the exercise of the
right of repurchase;
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3. If the thing bequeathed is totally lost during the lifetime of the
testator, or after his death without the heirs fault. Nevertheless, the
person obliged to pay the legacy or devise shall be liable for eviction if
the thing bequeathed should not have been determinate as to its kind,
in accordance with the provisions of Article 928.
Transformation conversion
Total loss only if it takes place before the testators death
o Exceptions:
If the reversion is caused by the annulment of the alienation
and the case for annulment was vitiation of consent on the
grantors part, either by reason of incapacity or of duress.
General Provisions
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Article 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;
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 respect to the property of which the testator has
not disposed;
If a person dies without a will, or with a void will, or one which has
subsequently lost its validity A will that has subsequently lost its validity is
one that has been revoked without a later one taking its place.
When the will does not institute an heir to, or dispose of all the property
belonging to the testator. Legal succession shall take place only with
respect to the property of which the testator has not disposed.
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.
There is no will.
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Happening of resolutory condition
Preterition
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Intestacy operates on the same principle as succession to the legitime.
1. Preference of lines
The descending excludes the ascending and the collateral
The ascending excludes the collateral
2. Proximity of degree
The nearer exclude the more remote, without prejudice to representation
o representation
RIGHT OF REPRESENTATION
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Article 973. In order that representation may take place, it is
necessary that the representative himself be capable of succeeding the
decendent.
Article 977. Heirs who repudiate their share may not be represented.
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o In the direct descending line
o In one instance in the collateral line - nephews and nieces
representing the brothers and sisters of the deceased
The person represented need not be qualified to succeed the decedent. The
reason why representation is taking place is that the person represented is
not qualified because of predecease, or intestacy, or disinheritance
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Article 992. An illegitimate child has no right to inherit ab intestate
from legitimate children and relatives of his father or mother; nor
shall such children or relatives inherit in the same manner from the
illegitimate child.
Article 1006. Should brothers 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.
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succeed per capita or per stirpes, in accordance with the rules laid
down for brothers and sisters of the full blood.
Illegitimate Children
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from the legitimate children and relatives of his father or mother; not
shall such children or relatives inherit in the same manner from the
illegitimate child.
Article 903. The legitime of the parents who have an illegitimate child,
when such child leaves neither legitimate descendants nor a surviving
spouse, not illegitimate children, is of the hereditary estate of such
illegitimate child. If only legitimate or illegitimate children are left,
the parents are not entitled to any legitime whatsoever. If only the
widow or widower survives with parents of the illegitimate child, the
legitime of the parents is of the hereditary estate of the child, and
that of the surviving spouse also of the estate.
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, shall go to the paternal and the
other half to the maternal ascendants. In each line the division shall
be made per capita.
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whatever be the number of the ascendants or of the illegitimate
children.
SURVIVING SPOUSE
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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.
*This rule holds even if there is only 1 legitimate child, in which case the child and
the surviving spouse will divide the estate equally.
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Article 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.
One of the effects of legal separation is the disqualification of the guilty spouse
from succession to the estate of the innocent spouse.
Article 986. The father and mother, if living shall inherit in equal
shares.
Should only one of them survive, he or she shall succeed to the entire
estate of the child.
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, shall go to the paternal and the
other half to the maternal ascendants. In each line the division shall
be made per capita.
Illegitimate parents
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COLLATERAL LINE
Article 1004. Should the only survivors be brothers and sisters of the
full blood, they shall inherit in equal parts.
Article 1006. Should brothers 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.
*Since all the siblings are of the half-blood, the division is obviously equal.
Article 1009. Should there be neither brothers nor sisters nor children
of brothers or sisters, the other collateral relatives shall succeed to the
estate.
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Nephews/nieces exclude uncles/aunts, though all are 3 rd degree relatives.
Article 1010. The right to inherit ab intestate shall not extend beyond
the 5th degree of relationship in the collateral line.
THE STATE
Article 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.
Article 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
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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.
Prescriptive period for claim 5 years from the delivery of the property to the
State
Who may make the claim Any person entitled by succession to the estate
*This includes any heir by any kind of succession legitime, testamentary or
intestate
Right of Accretion
Article 1016. In order that the right of accretion may take place in a
testamentary succession, it shall be necessary:
2. that one of the persons thus called die before the testator, or
renounce the inheritance, or be incapacitated to receive it.
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Occasions for the operation of accretion
Renunciation
Predecease
Incapacity
*These are the same occasions for simple substitution
Elements of Accretion
2 or more persons are called to the inheritance, or to the same portion thereof,
pro indiviso
Accretion does not import equality. Accretion will occur even if sharings are
unequal, as long as the result of the institution is co-ownership.
Article 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 legal succession
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The co-heirs in whose favor accretion occurs must be co-heirs in the same
category as the excluded heir.
Compulsory succession
Article 1021. Among the compulsory heirs the right of accretion shall
take place only when the free portion is left to 2 or more of them, or to
any 1 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.
Testamentary succession
If there is no substitution and no accretion, the part left vacant will lapse into
intestacy and will be disposed of accordingly.
Article 1023. Accretion shall also take place among devisees, legatees
and usufructuaries under the same conditions established for heirs.
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PARTITION AND DISTRIBUTION OF THE ESTATE
Article 1078. Where there are 2 or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs,
subject to the payment of debts of the deceased.
The immediate effect of the decedents death is the vesting of the successional
rights of the successors. the net estate
Partition ends the co-ownership among the co-heirs as to the thing partitioned.
Kinds of partition
Actual physical division of the thing among the co-heirs
A parent who, in the interest of his or her family, desires to keep any
agricultural, industrial, or manufacturing enterprise intact, may avail
himself of the right granted him in this article, by ordering that the
legitime of the other children to whom the property is not assigned, be
paid in cash.
Partition by causante
Revocable as long as the causante is alive; causante can change or modify it, or
even rescind it during his lifetime
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How causante may make the partition
By will
Article 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 20
years as provided in article 494. This power of the testator to prohibit
division applies to the legitime.
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Partition is generally a matter of right.
Exceptions:
When forbidden by the testator for a period not exceeding 20 years
When the co-heirs agree on indivision for a period not exceeding 10 years
Article 1084. Voluntary heirs upon whom some condition has been
imposed cannot demand a partition until the condition has been
fulfilled; but the other co-heirs may demand it by giving sufficient
security for the rights which the former may have in case the condition
should be complied with, and until it is known that the condition has
not been fulfilled or can never be complied with, the partition shall be
understood to be provisional.
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Article 1086. Should a thing be indivisible, or would be much impaired
by its being divided, it may be adjudicated to one of the heirs, provided
he shall pay the others the excess in cash.
Nevertheless, if any of the heirs should demand that the thing be sold
at public auction and that strangers be allowed to bid, this must be
done.
Sale of the thing and division of the proceeds among the heirs another
form of constructive partition
Article 1087. In the partition the co-heirs shall reimburse one another
for the income and fruits which each one of them may have received
from any property of the estate, for any useful and necessary expenses
made upon such property, and for any damage thereto through malice
or neglect.
Article 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the period of 1 month from
the time they were notified in writing of the sale by the vendor.
An heir may dispose of his aliquot share after his successional right is vested
(decedents death). onerously or gratuitously
Right of redemption in case of sale In the event that any co-heir sells his
aliquot portion to a stranger before partition time, any co-heir is entitled to redeem
the portion sold.
*Without the written notice, the period does not commence to run.
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When more than 1 co-owner wish to redeem they may do so but in
proportion to each ones hereditary interest over the mass
This is important in case of registered land because the old title has to be
surrendered so that a new title in the name of the heir may be issued.
Article 1090. When the title comprises 2 or more pieces of land which
have been assigned to 2 or more co-heirs, or when it covers 1 piece of
land which has been divided between 2 or more co-heirs, the title shall
be delivered to the 1 having the largest interest, and authentic copies
of the title shall be furnished to the other co-heirs at the expense of the
estate. If the interest of each co-heir should be the same, the oldest
shall have the title.
The co-heirs have the right to have the title divided into individual titles, a separate
one for each of the owners to correspond to the separate portions held by them
respectively.
EFFECTS OF PARTITION
Article 1091. A partition legally made confers upon each heir the
exclusive ownership of the property adjudicated.
*termination of co-ownership
Article 1092. After the partition has been made, the co-heirs shall be
reciprocally bound to warrant the title to, and the quality of, each
property adjudicated.
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deducting the part corresponding to the one who should be
indemnified
Those who pay for the insolvent heir shall have a right of action
against him for reimbursement, should his financial condition
improve.
The warranty of the solvency of the debtor can only be enforced during
the 5 years following the partition.
Co-heirs do not warrant bad debts, if so known to, and accepted by the
distributee. But if such debts are not assigned to a co-heir, and should
be collected, in whole or in part, the amount collected shall be
distributed proportionately among the heirs.
Bad debt assigned to a co-heir A co-heir who accepts a known bad debt as
his share is either a fool or a masochist.
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Article 1096. The obligation of warranty among co-heirs shall cease in
the following cases:
1. When the testator himself has made the partition, unless it appears,
or it may be reasonably presumed, that his intention was otherwise,
but the legitime shall always remain unimpaired;
Add:
4. fault of the co-heir
5. waiver
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Article 1098. A partition, judicial or extrajudicial may also be
rescinded on account of lesion, when any one of the co-heirs received
things whose value is less, by at least , that the share to which he is
entitled, considering the value of the things at the time they were
adjudicated.
Lesion is economic injury, where the party receives less that he is entitled to
receive; exceedingly difficult to determine and evaluate and is viewed with
increasing disfavor by modern civil law.
A partition made by the testator himself is not subject to rescission even in case of
lesion (1/4 or 25%).
Exceptions:
Impairment of the legitime
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contracts
Article 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a new
partition.
If a new partition is made, it shall affect neither those who have not
been prejudiced nor those who have not received more than their just
share.
Obligors options It is the co-heir who is sued for rescission who has the option
To have a re-partition, or
To indemnify the co-heir the amount of the lesion suffered
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estate.
If the compulsory heir is one in the direct line and is totally omitted from the
inheritance, Article 854 applies.
Remedy: to recover the property from him and have it redistributed among the
proper recipients.
*This should be read together with Rule 78 of the Rules of Court issuance of
letters testamentary and of administration.
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RULE 85 Accountability and Compensation of Executors and
Administrators
(a) Is a minor;
(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason of conviction
of an offense involving moral turpitude.
Section 2. Executor of executor not to administer estate. The executor of an executor shall not, as
such, administer the estate of the first testator.
Section 3. Married women may serve. A married woman may serve as executrix or administratrix,
and the marriage of a single woman shall not affect her authority so to serve under a previous
appointment.
Section 4. Letters testamentary issued when will allowed. When a will has been proved and
allowed, the court shall issue letters testamentary thereon to the person named as executor therein,
if he is competent, accepts the trust, and gives bond as required by these rules.
Section 5. Where some coexecutors disqualified others may act. When all of the executors named
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in a will can not act because of incompetency, refusal to accept the trust, or failure to give bond, on
the part of one or more of them, letters testamentary may issue to such of them as are competent,
accept and give bond, and they may perform the duties and discharge the trust required by the will.
Section 6. When and to whom letters of administration granted. If no executor is named in the will,
or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies
intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of kin,
requests to have appointed, if competent and willing to serve;
(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin,
neglects for thirty (30) days after the death of the person to apply for administration or to
request that administration be granted to some other person, it may be granted to one or
more of the principal creditors, if may be granted to one or more of the principal creditors, if
competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.
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