So, Stephanie M.

Wills and Succession Assignment 10

Art. 1024.
Capacity to Succeed is the ability to inherit and retain property obtained mortis causa. (It is also termed passive
testamentary capacity.).
The provisions relating to incapacity by will are equally applicable to intestate succession (Art. 1024) except
—
(a) Art. 1027 (nos. 1-5);
(b) and Art. 1028.
(Said articles and provisions can only apply to testamentary succession.)
The general rule is that “persons not incapacitated by law may succeed by will or ab intestato.’’
Kinds of Incapacity to Succeed
(a) ABSOLUTE — can never inherit from anybody regardless of circumstances
(b) RELATIVE — cannot inherit only from certain persons or certain properties, but can inherit from
others or certain other properties
There are three kinds of relative incapacity:
1) because of possible undue influence. (Art. 1027).
2) because of public policy and morality. (Art. 1028 read together with Art. 739).
3) because of unworthiness. (Art. 1032).

Art. 1025.
There are two classes who are absolutely incapacitated to succeed:
(a) Individuals, associations, and corporations not permitted by law to inherit. (Art. 1027, no. 6).
(b) Those who lack juridical personality (such as abortive infants, or those who do not comply with the
requirements of Arts. 40 and 41 of the new Civil Code).
Requisite for Capacity to Inherit
(a) To be capacitated to inherit, it is essential to be either already living, or at least conceived at the
moment the succession opens. (In the case of the conceived child, Art. 41 must be complied with.)
(b) There is no exception to the rule enunciated in (a), even if the law says “except in case of
representation, when it is proper.’’
Reason: Even in case of representation, the representative must already be alive or at least conceived at the
time the succession opens. He himself must be capable of succeeding the decedent. (Art. 973).

Art. 1026.
(a) Some of the organizations referred to in this Article are juridical persons; others are not. In the case of
the latter, they are allowed to inherit, not because they have juridical existence, but because of this
Article — precisely.
(b) In the case of juridical persons, it is not enough that they have been conceived by certain individuals;
it is essential that they have complied with all the requirements for the existence of juridical persons.
(c) Private juridical persons cannot of course inherit in legal succession.

Art. 1027.
Paragraph 1
(a) Reason for the law — to safeguard the rights of the heirs who may be defrauded by the sinister and
undue influence which may be exercised by some priests or ministers over a dying man.
(b) The exercise of undue influence insofar as the disposition in their favor is concerned is
CONCLUSIVELY PRESUMED, that is, the disqualification exists without the necessity of proving
actual undue influence. Thus, the incapacity cannot be cured by proof that undue influence was not
indeed exercised.
(c) The disqualification DOES NOT EXTEND —
1) to the LEGITIME
2) to INTESTACY
 3) to dispositions which do not extend a TESTAMENTARY BENEFIT (like appointment as
executor; or payment of debts or obligation).
Paragraph 2
(a) The relatives here are those by consanguinity.
(b) Note that although 5th degree relatives inherit by intestacy, the disqualification in this paragraph
extends only to the fourth degree.
Paragraph 3
(a) The guardian referred to may be the guardian of the person or of the property since both can exercise
undue influence.
(b) Said guardians are disqualified to inherit unless:
1) The will was made AFTER the approval of the “final accounts.”
2) The guardian is a relative (ascendant, descendant, brother, sister, or spouse).
(c) Reason for disqualifying guardians — they are conclusively presumed to have exercised undue
influence.
Paragraph 4
(a) Though Par. 4 does not state so, it is understood that the exception referred to in Art. 823 applies,
namely, the witness is qualified to inherit if there are three other competent and disinterested (not
given anything) witnesses to the will.
(b) If the witnesses is not given any testamentary disposition, but instead burdened with a duty, such as
that of selling or encumbering, the burden can properly be made, provided that the witness accepts the
responsibility.
Paragraph 5
(a) To disqualify these people from inheriting as testamentary heirs, legatees, or devisees, it is essential
that:
1) the will or disposition in their favor was made during the last illness and after the “care” by
them had commenced
2) they “took care” of the testator — (this presupposes a continuing or regular caring, and not an
isolated service)
(b) The physician (etc.) is not disqualified to inherit by intestacy because:
1) the law uses the term “testator”;
2) intestacy takes place by operation of law.
Paragraph 6
(a) This refers to absolute, not relative incapacity.
(b) “Individuals” — like abortive infants.
(c) The prohibition must have been imposed by law.

Art. 1028.
The following donations shall be void:
(a) Those made between persons who were guilty of adultery or concubinage at the time of the donation;
(b) Those made between persons found guilty of the same criminal offense, in consideration thereof;
(c) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.
In the case referred to in (a), the action for declaration of nullity may be brought by the spouse of the donor or
donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.
(Art. 739, Civil Code).
(Reason for Art. 1028 — public morals)

Art. 1029.
For the Article to apply (50-50 disposition), the following requisites are essential:
(a) disposition is for PRAYERS and PIOUS WORKS
(b) disposition is in GENERAL TERMS
(c) disposition does NOT SPECIFY its application. (Therefore, if a particular heir, devisee, legatee, or
stranger is burdened with the duty, or if a definite place or date is fixed for the prayers, the Article
does not apply.)
Art. 1030.
The Article applies if the disposition is in favor of:
(a) the poor in general (par. 1).
(b) the poor of a definite locality (par. 3).

Art. 1031.
Dispositions in Favor of a Disqualified Person
(a) Purpose of the Article — to prohibit the testator from violating indirectly what he cannot violate
directly.
(b) How the interposition of a third party may be done:
1) if the disposition is disguised as an onerous contract.
2) if fictitious debts are ordered paid.
3) if an intermediary is interposed (for him later on to give to the incapacitated person).

Art. 1032.
The law says “attempted against their virtue.” It would seem that no criminal conviction is needed here.
Paragraph 2 requires a “conviction by final judgment.” Hence, an acquittal on any ground, even that of
“reasonable doubt,” does not result in incapacity.
For the accusation to be groundless, there must be a definite acquittal, and not one which is based merely on
“reasonable doubt.” Thus, if the acquittal is because of reasonable doubt, there was some ground for the
accusation, and therefore incapacity does not arise.
Par. 4 — Failure to Report Violent Death
Requirements:
1) The heir (legatee or devisee) must be of FULL AGE (at least 21).
2) He must have knowledge of the VIOLENT DEATH (one that is caused by crime) of the testator (or
decedent).
3) There is failure to report such death within a month UNLESS the authorities have already taken
action.
4) There is an OBLIGATION to make the accusation.

Art. 1033.
Rules for Condonation
(a) If at the time he made the will, testator ALREADY KNEW of the causes of unworthiness, the mere
fact of instituting the person concerned, or giving him a devise or legacy, is an IMPLIED
CONDONATION.
(b) If knowledge comes ONLY AFTER the execution of the will, CONDONATION must be in WRITING
(public or private).
The decedent’s intention should be given effect because after all, the act of unworthiness had been committed
against him.

Art. 1034.
How to Judge the Capacity of the Heir
(a) Reason for par. 1: The rights to the succession are transmitted from the moment of the death of the
decedent. (Art. 777). It logically follows that as a rule, capacity must be determined as of that time.
(b) In case of a suspensive conditional institution, the heir must be capacitated BOTH:
1) at the time of the testator’s death
2) at the time the condition is fulfilled

Art. 1035.
A living person may be represented. This is so in case of:
(a) incapacity (Art. 1035)
(b) disinheritance (Art. 923).
Art. 1035 says that the representatives get the unworthy heir’s legitime. This is because there is no
representation in this case with reference to the free portion. The free portion may be given:
(a) to the substitute, if any
(b) to the co-heirs, in case of intestacy, if accretion is NOT proper.
Upon the other hand, in case of complete intestacy, the right of representation covers the entire intestate share
of the unworthy heir.

Art. 1036.
By the judicial order of exclusion, the court declares which of the heirs are disqualified or incapacitated.
Alienations of “hereditary property” by the unworthy heir are of course VOID if made before the death of the
decedent, since properly speaking, there is no “hereditary property” as yet. This is true, regardless of the good
or bad faith of the third person.

Art. 1037.
This Article speaks of two rights:
(a) to collect necessary expenses (for preservation, regardless of good or bad faith)
(b) to collect credit (because while he is incapacitated to inherit, he still is a creditor)
Useful and luxurious expenses are deemed governed by the rules on possession, and, therefore, in this case, the
good or bad faith is important.

Art. 1038.
An incapacitated heir entered into the possession of a piece of land belonging to the estate of the decedent. If
the land should increase by alluvium, he should return not only the land but also the accessions thereon. If he
had built a house thereon, he is considered a possessor in bad faith, and can therefore lose said house. “He who
builds, plants or sows in bad faith on the land of another, loses what is built, planted, or sown, without right to
indemnity.’’ (Art. 449).

Art. 1039.
Because of this Article read together with Art. 16, four things are governed by the national law of the decedent
namely:
(a) order of succession
(b) amount of successional rights
(c) intrinsic validity of the provisions of the will
(d) capacity to succeed

Art. 1040.
Prescriptive Period for Declaration of Incapacity and for Recovery of the Inheritance
The action —
(a) for declaration of incapacity
(b) and for the recovery of the inheritance (devise or legacy) SHALL be brought WITHIN 5 YEARS
from the time the DISQUALIFIED heir took POSSESSION thereof.