Succession (#3)

Flores, Michaela Therese A. July 21, 2018

Succession: Judge Dolores Español

SUBSECTION 8 - ALLOWANCE & DISALLOWANCE OF WILLS

Art. 838 - Probate is Mandatory

There are 2 kinds of probate:
(a) ante-mortem at the instance of the testator;
(b) postmortem at the instance of any interested party

Art. 839 - The will shall be disallowed in any of the following cases:
1. Formalities.-- Art. 805 et seq.
2. Insanity.-- Art. 799
3. Force.-- violence-- Art. 1335 par. 1
Duress-- intimidation-- Art. 1335 par. 2
4. Undue and Improper pressure and influence.-- Art. 1337
5. Fraud.-- Art. 1338
6. Mistake.-- Art. 1331

SECTION 2 - INSTITUTION OF HEIR

Art. 840 - The rules on institution of heir also apply to devisees and legatees
Art. 841 - The will is valid, even if there is no institution of an heir, but it is useless unless it
acknowledges an illegitimate child or disinherits a compulsory heir.
Art. 842 - Effect of Lack of Institution
A will otherwise defective is valid even if:
a.) there is no institution of heir
b.) The instituted heir is given only a portion of the estate
c.) The heir instituted is repudiated or be incapacitated to inherit
Art. 843-845 - Forms of institutions
a.) The testator shall designate the heir by his name & surname
b.) The designation may be made in any other form
c.) Dispositions in favor of an unknown person shall be void
d.) A disposition in favor of a definite class or group of persons shall be void
Art. 846 - Presumptions of Equality
When heirs were instituted without designation of shares they are deemed to inherit equal parts.
Art. 847- Presumptions of Individuality
When the testator institutes some heirs individually and others collectively, those collectively
designated shall be considered as individually instituted, unless it clearly appears that the
intention of the testator was otherwise.

Art. 848 - Institution of Brothers & Sisters

Full blood sisters and other half blood, the inheritance shall be distributed equally.

Art. 849
When the testator calls to the succession a person and his children, they are all deemed to have
been instituted simultaneously and not successively.

Art. 850 - Institution Based on False Alarm

GR: The statement of a false cause for the institution of an heir shall be considered as not written
XPN: If it appears from the face of the will that the testator would not have made the institution
had he known the falsity of the cause

Art. 851
If an aliquot or part of the estate has been given to only one heir, then the remainder of the estate

Art. 852
Increasing the aliquot part of each instituted heirs equally, if the intention of the testator is to
make them sole heirs of the whole estate or whole free portion.

Art. 853
If the total of each aliquot part given to the heirs exceeds the whole inheritance, each part shall
be decreased equally.

Art. 854
Omission in the testator’s will of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator.

Art. 855
Omission of a child or descendant must first be taken from the part of the estate not part of a will

Art. 856
The following transmits nothing to his heirs;
a.) A voluntary heir who dies before the testator
b.) A compulsory heir who dies before the testator
 c.) person incapacitated to succeed
d.) one who renounces the inheritance (repudiation)
XPN: for b, c & d they can still transmit regardless, in cases expressly provided for in this Code

Art. 857-870 - Substitution of Heirs

Art. 857 Substitution defined

Substitution is the appointment of another heir so that he may enter into the inheritance in default
of the heir originally instituted.

Art. 858 Kinds

(1) Simple or common - whereby one or more persons to substitute the heir or heirs instituted in
case such heir or heirs should die before him, or should not wish, or should be incapacitated to
accept the inheritance. (​Art. 859)
(2) Brief or compendious - there are two or more persons designated by the testator to substitute
for only one heir. (​Art. 860)
(3) Reciprocal - If heirs instituted in unequal shares should be reciprocally substituted, the
substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it
clearly appears that the intention of the testator was otherwise. (​Art. 861​)
(4) Fideicommissary - Second heir; to whom the property is transmitted by the first heir (​Art.
862​)

Art. 863-869 Requisites & Limitations of Fideicommissary

Requisites
● An obligation clearly imposed upon such first heir to preserve the property
and to transmit it to the second heir.
● Without the obligation clearly imposing upon the first heir the preservation
of the property and its transmission to the second heir,there is no
fideicommissary substitution
Limitations:
● Substitution must not go beyond one degree from the heir originally instituted
● “Degree” means degree of relationship
● Fiduciary and fideicommissary must be living at the time of the death of the
testator.
● Substitution must not burden the legitime of compulsory heirs.

Art. 870
Dispositions made by testator declaring all or part of the estate inalienable for more than ​20
years shall be void.