QuickTime and aTIFF (Uncompressed) decompressorare needed to see
this picture.ATENEO CENTRAL BAR OPERATIONS 2007Civil LawSUMMER
REVIEWERAdviser: Dean Cynthia del Castillo Head: Joy Ponsaran,
Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim;Subject Head:
Polaris Rivas;SUCCESSIONCHAPTER 1: GENERAL PROVISIONSELEMENTS OF
SUCCESSION1. Decedent2. Successorsa. Heirs those who are called to
the whole orto an aliquot portion of the inheritance eitherby will
or by operation on lawb. Devisees or Legatees persons to whomgifts
of real or personal property arerespectively given by virtue of a
will.3. Death of the Person However, a person maybe presumed dead
for the purpose of opening hissuccession (see rules on presumptive
death). Inthis case, succession is only of provisionalcharacter
because there is always the chancethat the absentee may be alive.4.
Inheritance is the subject matter of Successionit includes:
Property and transmissible rights andobligations Existing at the
time of his death AND those which have accrued theretosince the
opening of succession.RIGHTS EXTINGUISHED BY DEATH1. Support2.
Usufruct3. Those arising from personal consideration4. Personal
easements5. Partnership rights6. Agency7. Life AnnuitySuccession
InheritanceRefers to the legalmode by whichinheritance
istransmitted to thepersons entitled to it.Refers to
theuniversality or entiretyof the property, rightsand obligations
of aperson who died.KINDS OF SUCCESSION1. Testamentary that which
results from thedesignation of an heir, made in a will executed
inthe form prescribed by law2. Legal or Intestate that which takes
place bySUCCESION - Is a mode of acquisition by operation of law in
the absence of a valid willvirtue of which the property, rights
andobligations to the extent of the value of theinheritance, of a
person are transmittedthrough his death to another or others
eitherby his will or by operation of law (Art. 774)3. Mixed that
which is effected partly by will andpartly by operation of lawKINDS
OF HEIRS1. Compulsory those who succeed by force oflaw to some
portion of the inheritance, in anamount predetermined by law, of
which theycannot be deprived by the testator, except by avalid
disinheritance2. Voluntary or Testamentary those who areinstituted
by the testator in his will, to succeed tothe portion of the
inheritance of which the testatorcan freely dispose3. Legal or
Intestate those who succeed to theestate of the decedent who dies
without a validwill, or to the portion of such estate not
disposedof by willCHAPTER 2: GENERAL PROVISIONS ON WILLSELEMENTS OF
A WILL1. It is an act;2. whereby a person is permitted;3. with the
formalities prescribed by law;4. to control to a certain degree;5.
the disposition of his estate;6. to take effect after his
death.KINDS OF WILLS:1. Notarial an ordinary or attested will2.
Holographic a handwritten willCOMMON REQUISITES BETWEEN THE
TWOWILLS:1. must be in writing and2. in a language or dialect known
to the testatorCHARACTERISTICS OF A WILL:1. Unilateral2. Strictly
Personal acta. Acts which may not be left to the discretion ofthird
persons (Articles 785 AND 787):i. Duration or efficacy of the
designation ofheirs, devisees or legatees;QuickTime and aTIFF
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Determination of the portions which theyare to take, when referred
to by name;andiii. Determination of whether or not thetestamentary
disposition is to beoperativeb. Acts which may be entrusted to
third persons(Article 787);i. Distribution of specific property or
sumsof money that he may leave in general tospecified classes or
causes; andii. Designation of the persons, institutions
orestablishments to which such property orsums are to be given or
applied.3. Free and voluntary act4. Formal and solemn act5. Act
mortis causa6. Ambulatory and revocable during the
testatorslifetime7. Individual actINTERPRETATION OF WILLS1. Animus
Testandi - The testators intent (animustestandi), as well as giving
effect to such intent isprimordial. EXCEPT: when the intention of
thetestator is contrary to law, morals or public policy.2. In case
of doubt, the interpretation by which thedisposition is to be
operative or will sustain anduphold the will in all its parts shall
be adopted,provided that it can be done consistently with
theestablished rules of law.3. Ambiguities in Wills Intrinsic or
extrinsicevidence may be used to ascertain the testatorialintent of
the testator. EXCEPT: the oraldeclarations of the testator as to
his intentionsmust be excluded because such testimony wouldbe
hearsay.4. After Acquired Property - Property acquiredduring the
period between the execution of thewill and the death of the
testator is NOT includedamong the property disposed of. EXCEPT:
Whena contrary intention expressly appears on the will.NOTE: This
rule applies only to legacies anddevisees and not to institution of
heirsTESTAMENTARY CAPACITY1. All persons who are not expressly
prohibited bylaw2. 18 years old and above3. Of sound mind, at the
time of its execution; Atestator is considered of sound mind if he
knowsat the time of making of the will the following:a. Nature of
the estate to be disposed ofb. Proper objects of his bountyc.
Character of the testamentary act Supervening capacity or
incapacity does notaffect the will because the validity of a will
isdetermined at the time of the execution of thewill.LEGAL
PRESUMPTION IN FAVOR OFSOUNDNESS OF MIND GENERAL RULE: The law
presumes that thetestator is of sound mind EXCEPT:a. When the
testator, one month or less, beforemaking his will was publicly
known to beinsane; orb. Was under guardianship at the time of
themaking of his will. (Torres and Lopez deBueno vs. Lopez, 48
Phil. 772)CHAPTER 3: FORMS OF WILL1. NOTARIAL WILL a valid notarial
will:a. Must be in writing and in a language ordialect known to the
testatorb. Subscribed at the end by the testator himselfor by the
testators name written by someother person in his presence, and by
hisexpress directionc. Attested & subscribed by three or
morecredible witnesses in the presence of thetestator and of one
another Mandatory Part: The signing on everypage in the witnesses
presence NOTE: Test of presence is not whetherthey actually saw
each other sign, butwhether they might have seen each othersign had
they chosen to do soconsidering their mental and physicalcondition
and position with relation toeach other at the moment of
inscriptionof each signature. Directory Part: The place of
thesignature, i.e. the left margin; thesignature can be affixed
anywhere on thepage.QuickTime and aTIFF (Uncompressed)
decompressorare needed to see this picture.Civil Law Summer
ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 85 of 297d. Each and
every page, except the last, must besigned by the testator or by
the person requestedby him to write his name, and by the
instrumentalwitnesses of the will, on the left margin.Signatures on
the left margin on each and everypage NOT REQUIRED:i. In the last
page, when the will consists of twoor more pages;ii. When the will
consists of only one page;iii. When the will consists of two pages,
the firstconsists of all the testamentary dispositionand is signed
at the bottom by the testatorand the witnesses and the second
containsonly the attestation clause duly signed at thebottom by the
witnesses.e. Each and every page of the will must benumbered
correlatively in letters placed on theupper part of each page.
Mandatory Part: Pagination by means of aconventional system.
Directory Part: The pagination in letters onthe upper part of each
pagef. It must contain an attestation clause, stating
thefollowing:a. The number of pages used upon which thewill is
writtenb. The fact that the testator signed the will andevery page,
or caused some other person towrite his name, under his express
direction,in the presence of the instrumental witnessesc. All the
instrumental witnesses witnessed andsigned the will and all its
pages in thepresence of the testator and of one anotherg. It must
be acknowledged before a notary publicby the testator and the
witnessesATTESTATION v. SUBSCRIPTION The attestation clause need
not be written ina language or dialect known to the testatornor to
the witnesses since it does not formpart of the testamentary
disposition The attestation clause need only be signedby the
witnesses and not by the testator as itis a declaration made by the
witnesses.ADDITIONAL REQUISITES FOR VALIDITYa. If the Testator be
Deaf or Deaf-Mute:i. Testator must personally read the will, ifable
to do so;ii. Otherwise, he shall designate twopersons to read it
and communicate tohim, in some practicable manner, itscontents (Art
807)b. If the Testator be Blind: The will shall be readto the
testator twice -i. Once by one of the
subscribingwitnessesATTESTATION SUBSCRIPTION1. act of the senses 1.
act of the hand2. mental act 2. mechanical act3. Purpose is to
renderavailable proof during theprobate that such will hadbeen
executed inaccordance with theformalities prescribed bylaw3.
Purpose is foridentification4. Found after theattestation clause at
theend or last page of the will4. Found at the left sidemargin of
every page ofthe willIcasiano vs. Icasiano, II SCRA 422
theinadvertent failure of one witness to affix hissignature to one
page of the original will due tothe simultaneous lifting of two
pages in thecourse of signing is not per se sufficient tojustify
denial of probate when the duplicate willshowsCruz v. Villasor, 54
SCRA 31- the notarypublic cannot be counted as one of the
attestingwitnessesSubscription - The manual act of
instrumentalwitnesses in affixing their signature to
theinstrument.Attestation An act of witnessing execution ofwill by
testator in order to see and take notementally those things are
done which thestatute requires for the execution of a will andthat
the signature of the testator exists as afact.QuickTime and aTIFF
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Summer ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 86 of 297ii.
Once by the notary public before whomthe will is acknowledged (Art
808) NOTE: Articles 807 and 808 aremandatory, failure to comply
with eitherwould result in nullity and denial ofprobate.2.
HOLOGRAPHIC WILL a holographic will isvalid if it is:a. In writing
and in a language or dialect knownto the testatorb. Entirely
written, dated, and signed by thehand of the testator himselfc.
Dispositions of the testator written below hissignature must be
dated and signed by himin order to validate the
testamentarydispositions. (Art 812) EXCEPT: In case of
dispositionsappearing in a holographic will which aresigned without
being dated, where the lastdisposition has a signature and a
date,such date validates the dispositionspreceding it, whatever be
the time of priordispositions A holographic will is subject to no
otherform, and may be made in or out of thePhilippines, and need
not be witnessed.(Art 810)PROBATE OF HOLOGRAPHIC WILLa. There must
be at least one witness. EXCEPTION: If the will is contested,
atleast three of such witnesses shall berequired (merely
directory). In the absenceof such competent witness and if the
courtdeems it necessary, expert testimony may beresorted to.b. who
knows the handwriting and signature ofthe testatorc. must
explicitly declare that the will and thesignature are in the
handwriting of thetestator. (Art 811) NOTE: This article applies
only to postmortem probates and not to ante mortemprobates since in
such cases the testatorhimself files the petition and will identify
thedocument himself.INSERTION, CANCELLATION, ERASURE ORALTERATION
IN A HOLOGRAPHIC WILLa. If made after the execution of the will,
butwithout the consent of the testator, suchinsertion is considered
as not writtenbecause the validity of the will cannot bedefeated by
the malice or caprice of a thirdpersonb. If the insertion after the
execution of the willwas with the consent of the testator, the
willremains valid but the insertion is void.c. If the insertion
after the execution is validatedby the testator by his signature
thereon, thenthe insertion becomes part of the will, and theentire
will becomes void, because of failureto comply with the requirement
that it mustbe wholly written by the testatord. If the insertion
made by a third person ismade contemporaneous to the execution
ofthe will, then the will is void because it is notwritten entirely
by the testatorWHO MAY BE A WITNESS TO A WILL Anyperson may be a
witness provided he is:a. Of sound mindb. Of the age of 18 years or
morec. Not blind, deaf or dumbd. Able to read and writee. Domiciled
in the Philippinesf. Have not been convicted of falsification of
adocument, perjury or false testimonyCHAPTER 4: LAWS GOVERNING
VALIDITY OF AWILL1. FORMAL VALIDITYa. If the testator is a Filipino
and the will isexecuted in the Philippines then its formalvalidity
is governed by the CC of thePhilippinesb. If the testator is a
Filipino and the will isexecuted in a foreign country, then its
formalvalidity is governed either:Gan v, Yap, 104 Phil 509 in the
probate of aholographic will, the document itself must beproduced;
a lost holographic will cannot beprobated. Exception: When copy of
the will isproducedQuickTime and aTIFF (Uncompressed)
decompressorare needed to see this picture.Civil Law Summer
ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 87 of 297i. By the
law of the place where the willwas madeii. By the CC of the
Philippinesc. If the testator is a foreigner and the will
isexecuted in the Philippines, then its formalvalidity is governed
either:i. By the CC of the Philippinesii. By the law of his own
countryd. If the testator is a foreigner and the will isexecuted in
a foreign country, then its formalvalidity is governed either:i. By
the law of the place where the willwas madeii. By the law of his
own countryiii. By the law of the country where heresidesiv. By the
CC of the Philippines2. SUBSTANTIVE VALIDITYASPECTS OF THE WILL
GOVERNED BYNATIONAL LAW OF THE DECEDENT:a. Order of successionb.
Capacity to succeedc. Amount of successional rightsd. Intrinsic
validity (Art 16)Intrinsic validityVALIDITY OF JOINT WILLS Two or
more persons cannot make a will jointly,or in the same instrument,
either for theirreciprocal benefit or for the benefit of a
thirdperson. (669) NOTE: Joint wills executed by Filipinos in
aforeign country shall not be valid in thePhilippines, even though
authorized by the lawsof the country where they may have
beenexecuted.CHAPTER 5: AMENDMENTMENT, REVOCATIONAND REPUBLICATION
OF WILLSAMENDMENT OF WILLS1. Notarial only through a codicil2.
Holographic in three waysa. Dispositions may be added below
thesignature, PROVIDED that said dispositionsare also dated and
signed, and everything iswritten by the hand of the testator
himselfb. Certain dispositions or additional matter maybe
suppressed or inserted PROVIDED thatsaid cancellation is signed by
the testatorand written by the hand of the testatorhimselfc.
Through a codicil which may either benotarial or
holographicELEMENTS OF A CODICIL1. It is a supplementary or
addition to a will2. made after the execution of the will3. and
annexed to be taken as a part thereof4. by which any disposition in
the original will maybe explained, added to or alteredREQUISITES
FOR INCORPORATION BYREFERENCE1. the document or paper referred to
in the will mustbe in existence at the time of the execution of
thewill2. the will must clearly describe and identify thesame,
stating among other things the number ofpages thereof3. it must be
identified by clear and satisfactoryproof as the document or paper
referred totherein4. it must be signed by the testator and
thewitnesses on each and every page, except incase of voluminous
books of account orinventoriesREVOCATION OF WILLS1. By operation of
law instances of revocation byoperation of law:a. decree of legal
separationb. preteritionc. legacy or credit against third person
orremission of debt was provided in will andsubsequently, testator
brings action againstdebtord. substantial transformation of
specific thingbequeathede. when heir, devisee or legatee commits
any ofthe acts of unworthiness2. By the execution of a will,
codicil or other writingexecuted as provided in case of willsa.
EXPRESS When there is a revocatoryclause expressly revoking the
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ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 88 of 297b. IMPLIED
When the provisions thereof arepartially or entirely inconsistent
with those ofthe previous wills3. By burning, tearing, canceling,
or obliterating thewill with the intention of revoking it, by
thetestator himself, or by some other person in hispresence, and by
his express direction.REQUISITES:a. Testamentary capacity at the
time ofperforming the act of destruction;b. Intent to revoke
(animus revocandi);c. Actual physical act of destruction;d.
Completion of the subjective phase; ANDe. Performed by the testator
himself or by someother person in his presence and
expressdirectionLAWS WHICH GOVERN REVOCATION1. If the revocation
takes place in the Philippineswhether the testator is domiciled in
thePhilippines or not,a. Laws of the Philippines2. If the
revocation takes place outside thePhilippines, by a testator who is
domiciled in thePhilippines,a. Laws of the Philippines3. Revocation
done outside the Philippines by atestator who is not domiciled in
this country,a. Laws of the place where the will was made;orb. Laws
of the place in which the testator hadhis domicile at the time of
the revocation.REVOCATION BASED ON A FALSE OR ILLEGALCAUSE
Revocation based on a false or illegal cause isnull and void.
REQUISITES:a. The cause must be concrete, factual and notpurely
subjectiveb. It must be falsec. The testator must not know of its
falsityd. It must appear from the will that the testatoris revoking
because of the cause which isfalse.Art. 834. The recognition of an
illegitimate childdoes not lose its legal effect, even though
thewill wherein it was made should be revoked.Art. 837. If after
making a will, the testatormakes a second will expressly revoking
the first,the revocation of the second will does not revivethe
first will, which can be revived only byanother will or
codicil.FACTS DEMONSTRATING ART 837 In 1985, X executed Will 1 In
1987, X executed Will 2, expressly revokingWill 1 In 1990, X
executed Will 3, revoking Will 1CONCLUSION ON THE FACTS The
Revocation of Will 2 by Will 3 does not reviveWill 1 This
demonstrates the theory of instantrevocation because the revocatory
effect of thesecond will is immediate upon the first will NOTE:
This article only applies where therevocation of the first will by
the second will isexpress.REPUBLICATION AND REVIVAL OF WILLS If the
testator wishes to republish a will that isvoid as to form, the
only way to republish it is toexecute a subsequent will and
reproduce it The testator need only execute a subsequent willor
codicil referring to the previous will if thetestator wishes to
republish a will that is either:a. Void for reason other than a
formal defectb. Previously revokedREPUBLICATION REVIVALTakes place
by an act ofthe testatorTakes place byoperation of lawCorrects
extrinsic andextrinsic defectsRestores a revoked willArt. 832 A
revocation made in a subsequentwill shall take effect, even if the
new will shouldbecome inoperative by reason of the incapacityof the
heirs, devisees or legatees designatedtherein, or by their
renunciation.EXCEPTION: Molo v. Molo, (90 Phil 37),When the
testator provides in the subsequentwill that the revocation of the
prior one isdependent on the capacity or acceptance ofthe heirs,
devisees, or legatees instituted in thesubsequent will (dependant
relativerevocation)QuickTime and aTIFF (Uncompressed)
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ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 89 of 297CHAPTER 6:
ALLOWANCE AND DISALLOWANCEOF WILLS1. PROBATE OF A WILLa. A special
proceeding required for the purpose ofestablishing the validity of
the will.b. Probate of a will is mandatoryc. The probate court can
only inquire into theextrinsic validity of testamentary
provisions,which include the following:i. That the testator was of
sound and disposingmindii. That his consent was not vitiatediii.
That the will was signed by the requirednumber of witnessiv. That
the will is genuineKINDS OF PROBATE1. Post-Mortem after the
testators death2. Ante-Mortem during his lifetimeFINAL DECREE OF
PROBATE Once a decree of probate becomes final inaccordance with
the rules of procedure itbecomes Res Judicata It is conclusive as
to the due execution of the will(extrinsic validity only)2.
DISALLOWANCE OF WILL - grounds fordisallowance of a will:a. If the
formalities required by law have notbeen complied with;b. If the
testator was insane, or otherwisementally incapable of making a
will, at thetime of its execution;c. If it was executed through
force or underduress, or the influence of fear, or threats;d. If it
was procured by undue and improperpressure and influence, on the
part of thebeneficiary or of some other person;e. If the signature
of the testator was procuredby fraud;f. If the testator acted by
mistake or did notintend that the instrument should be his willat
the time of affixing his signaturethereto.(Art 839)REVOCATION
DISALLOWANCEVoluntary act of thetestatorGiven by judicial
decreeWith or without cause Always for a legal causeMay be partial
or total Always total EXCEPTwhen the ground of fraudor influence
for exampleaffects only certainportions of the willCHAPTER 7:
INSTITUTION OF HEIRSINSTITUTION OF HEIR1. It is an act by virtue of
which a testatordesignates in his will2. the person or persons who
are to succeed him inEXCEPTION: Nuguid v. Nuguid, 17 SCRA his
property and transmissible449, the probate court may pass upon
theintrinsic validity of the will when its probatemight become an
idle ceremony if on the willsface it appears to be intrinsically
void.3. rights and obligationsREQUISITES FOR A VALID INSTITUTION OF
HEIR1. Designation in will of person/s to succeeda. Directory -
designation of name andsurnameb. Mandatory identity of the heir
must beestablished, otherwise void disposition,unless his identity
becomes certain.NOTE: If there is ambiguity in thedesignation, the
designation must beresolved by discerning the testators intent.
Ifthe ambiguity cannot be resolved, intestacyto that portion
results.2. Will specifically assigns to such person aninchoate
share in the estate.3. The person so named has capacity to
succeed4. The will is formally valid5. No vice of consent is
present6. No preterition results from the effect of such willTHREE
PRINCIPLES IN THE INSTITUTION OFHEIRS1. Equality heirs who are
instituted without adesignation of shares inherit in equal parts2.
Individuality heirs collectively instituted aredeemed individually
named unless a contraryintent is proven3. Simultaneity when several
heirs are instituted,they are instituted simultaneously and
notsuccessivelyRULES ON A PERSONS RIGHT TO DISPOSE OFHIS
ESTATEQuickTime and apressed) decompressorCivil Law Summer
ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 90 of 297TIFF
(Uncomare needed to see this picture.1. If one has no compulsory
heirs:a. He can give his estate to any personqualified to inherit
under himb. However, he must respect restrictionsimposed by special
laws2. If one has compulsory heirs:a. He can give only the
disposable portion tostrangersb. Legitimes of compulsory heirs must
berespectedREQUISITES FOR THE ANNULMENT OFINSTITUTION OF HEIRS:1.
Cause of institution of the heirs must be stated inwill2. Cause
must be shown to be false3. It appears from the face of the will
that thetestator would not have made the institution hadhe known
the falsity of the cause.RULES ON INSTITUTION OF ALIQUOT SHARELESS
THAN OR IN EXCESS OF THE WHOLEESTATE:1. Intestacy Results ifa. the
heir institutes an aliquot portion of theestateb. to only one heir
If the heir institutes severalheirs to an aliquot part of the2.
Each heirs share shall be proportionally increased:a. There are
more than one instituted heirb. The testator intended the heirs to
inherit thewhole estatec. The aliquot parts of each share do not
coverthe whole inheritance3. Each heirs share shall be
proportionallydecreased:a. There are more than one instituted
heirb. The testator intended the heirs to inherit thewhole estatec.
The aliquot parts of each share exceed thewhole
inheritancePRETERITION1. There must be an omission of one, some or
all ofthe heir/s in the will2. The omission must be that of a
COMPULSORYHEIR3. Compulsory heir omitted must be of the
DIRECTLINE4. The omitted compulsory heir must be LIVING atthe time
of testators death or must at least havebeen CONCEIVED before the
testators death5. The omission must be complete and totalin
character. : There is no omission ifa. A devise or legacy has been
given to the heirb. A donation inter vivos has been previouslygiven
to the heirc. Anything is left from the inheritance which theheir
may get by way of intestacyEFFECTS OF PRETERITION:1. The
institution of heir is annulled2. Devises and legacies shall remain
valid as longas they are not inofficious3. If the omitted
compulsory heir should die beforethe testator, the institution
shall be effectual,without prejudice to the right of
representationDISTINGUISH PRETERITION FROMDISINHERITANCEPRETERITION
DISINHERITANCEDeprivation of acompulsory heir of hislegitime is
tacitDeprivation of thecompulsory of his legitimeis expressMay be
voluntary butthe law presumes that itis involuntaryAlways
voluntaryLaw presumes thatthere has been merelyan oversight or
mistakeon the part of thetestatorDone with a legal causeOmitted
heir gets notonly his legitime but alsohis share in the freeportion
not disposed ofby way of legacies ordevisesIf disinheritance
isunlawful, compulsory heiris merely restored to hislegitimeCHAPTER
8: SUBSTITUTION OF HEIRSCLASSES OF SUBSTITUTION:1. Vulgar or Simple
the testator may designateone or more persons to substitute the
heir orheirs instituted in case such heir or heirs should:a. die
before him (PREDECEASE)b. should not wish, (RENOUNCE) orc. should
be incapacitated to accept theinheritance (INCAPACITATED)2. Brief
or Compendious two or more personsmay be substituted for one; and
one person fortwo or more heirs3. Reciprocal if heirs instituted in
unequal sharesshould be reciprocally substituted, the
substituteshall acquire the share of the heir who dies,renounces,
or incapacitated, unless it clearlyappears that the intention of
the testator wasotherwise. If there are more than one
substitute,QuickTime and aTIFF (Uncompressed) decompressorare
needed to see this picture.Civil Law Summer ReviewerATENEO CENTRAL
BAR OPERATIONS 2007Page 91 of 297they shall have the same share in
the substitutionas in the institution4. Fideicommissary
Substitution - if the testatorinstitutes an heir with an obligation
to deliver toanother the property so inherited. The heirinstituted
to such condition is called the first heiror fiduciary heir, the
one to receive the property isthe fideicommissary or second
heirREQUISITES FOR A FIDEICOMMISSARYSUBSTITUTION:1. A fiduciary or
first heir instituted entrusted withthe obligation to preserve and
to transmit to afideicommissary substitute or second heir thewhole
or part of the inheritance2. Such substitution must not go beyond
onedegree from the heir originally instituted3. The fiduciary or
first heir and the second heir areliving at the time of the death
of the testator4. The fideicommissary substitution must beexpressly
made5. The fideicommissary substitution is imposed onthe free
portion of the estate and never on thelegitime NOTE: Pending the
transmission of the property,the fiduciary is entitled to all the
rights of ausufructuary although the fideicommissary isentitled to
all the rights of a naked owner.CHAPTER 9: CONDITIONAL
TESTAMENTARYDISPOSITIONS AND DISPOSITIONS WITH ATERMTESTAMENTARY
DISPOSITIONS1. Condition future or uncertain event, or a pastevent
unknown to the parties, upon which theperformance of an obligation
depends2. Term the day or time when an obligation eitherbecomes
demandable or terminates3. Modal Institution the statement of
theinstitution; application of the property left by thetestator or
the charge imposed on him4. Disposicion Captatoria condition that
the heirshall make some provision in his will of thetestator or of
any other person (prohibitedbecause it will make the making of the
will acontractual act)5. Causal Condition condition us casual if
itdepends upon chance and/or upon the will of athird person6. Mixed
Condition - It is mixed if it depends bothpartly upon the will of
the heir himself and uponchance and/or the will of a third person7.
Potestative Condition one the fulfillment ofwhich depends purely on
heir8. Suspensive term one that merely suspendsthe demandability of
a right. It is sure to happen9. Caucion Muciana bond or security
that shouldbe given in favor of those who would get theproperty if
the condition not be complied withINTERPRETATION When in doubt
whether there is a condition ormerely a mode, consider the same as
mode When in doubt as to whether there is a mode ormerely a
suggestion, consider same only as asuggestion The condition
suspends but does not obligate,the mode obligates but does not
suspends (for hewho inherits with a mode is already an heir; onewho
inherits conditionally is not yet an heir.)RULES ON POTESTATIVE,
CASUAL AND MIXEDCONDITIONS1. POTESTATIVEPositive Potestative
Condition: General Rule must be fulfilled as soon as theheir learns
of the testators death EXCEPTIONa. the condition was already
complied with atthe time the heir learns of the testators deathb.
the condition is of such nature that it cannotbe fulfilled
againNegative Potestative Condition: Heir must give security to
guarantee the return ofthe value of property, fruits, and
interests, incases of contravention2. CASUAL OR MIXEDPositive
GENERAL RULE may be fulfilled at any othertime (before testators
death), unless testatorprovides otherwise. If ALREADY FULFILLED at
the time ofexecution of the willa. If testator unaware of fact of
fulfillmentdeemedfulfilledb. If testator aware thereof i. If it can
no longer be fulfilled again deemed fulfilledii. If it can be
fulfilled again must befulfilled againConstructive Compliancea. if
casual not applicableQuickTime and aTIFF (Uncompressed)
decompressorare needed to see this picture.Civil Law Summer
ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 92 of 297b. if mixed
i. If dependent partly on chance notapplicableii. If dependent
partly on will of third party 1. if 3rd party interested
applicable2. if 3rd party not interested notapplicableEFFECTS OF
SUSPENSIVE CONDITION OR TERM The estate shall be placed under
administrationuntil1. condition is fulfilled2. until it becomes
certain condition will never befulfilled3. until arrival of the
termCONDITIONS PROHIBITING MARRIAGE1. If a first marriage is
prohibited conditionconsidered always as not imposed2. If a
subsequent marriage is prohibited asimposed by the deceased spouse
or by his/herascendants or descendants - valid3. if a subsequent
marriage is prohibited andimposed by anyone else- considered not
writtenCHAPTER 10: LEGITIMES The portion of the decedents estate
reserved bylaw is called the legitime. The heirs for whom the law
reserves such portionare called compulsory heirs.CLASSES OF
COMPULSORY HEIRS1. Primary those who have precedence over
andexclude other compulsory heirs Legitimate children and
descendants(legitimate), with respect to their legitimateparents
and ascendants2. Secondary those who succeed only in theabsence of
the primary heirs Legitimate parents and ascendants(legitimate),
with respect to their legitimatechildren and descendants3.
Concurring those who succeed together withthe primary or the
secondary compulsory heirs Widow or widower (legitimate) the
survivingspouse referred to is the spouse of thedecedent. NOTE:a.
Mere estrangement is not a ground forthe disqualification of the
survivingspouse as heirb. Effect of decree of legal separation:i.
On the offending spouse disqualifiedii. On the innocent spouse no
effectc. Death of either spouse during thependency of a petition
for legalseparation dismissal of the case Illegitimate children and
descendants(legitimate or illegitimate)Testator is a
LegitimatePersonTestator is anIllegitimate PersonLegitimate
children anddescendantLegitimate children anddescendantsIn default
of theforegoing, legitimateparents and ascendantsIllegitimate
parents andascendantsSurviving spouse In default of theforegoing,
illegitimateparents onlyIllegitimate children
anddescendantSurviving spouseGENERAL RULES IN ASCERTAINING
LEGITIMES1. Direct descending linea. Rule of preference between
linesb. Rule of proximityc. Right of representation ad infinitum in
case ofpredecease, incapacity or disinheritance2. Direct ascending
linea. Rule of division by lineb. Rule of equal division3.
Non-impairment of legitime - Any compulsoryheir who was given title
less than his legitimemay demand that the same be completed
(Art906)EXCEPTIONS:a. If the predecessor gave the compulsory heira
donation inter vivos and provided that itwas not charged against
the legitime (Art1062)b. Testamentary dispositions made by
thepredecessor to the compulsory heir, unlessthe testator provides
that it should beconsidered part of the legitime.SHARES OF
COMPULSORY HEIRS1. Legitimate Children or Descendants -Share of
legitimate childrenand descendants of the net estateFree portion of
the net estateQuickTime and aTIFF (Uncompressare needed to sCivil
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297ed) decompressoree this picture.2. Legitimate Parents and
AscendantsShare of legitimate parentsand ascendants of the net
estateFree portion of the estate of the net estate3. One legitimate
child or descendant; Survivingspouse;Share of a legitimate child of
the net estateShare of the surviving spouse of the net estateFree
disposable portion of the estate4. Illegitimate children,
legitimate children;Share of children anddescendants of the net
estateShare of each illegitimatechildren of the legitime of
eachlegitimate children orascendantFree portion Whatever remains5.
Two or more legitimate children or descendant;surviving spouseShare
of legitimate children of the net estateShare of the
survivingspousePortion equal to the legitimeof each of the
legitimatechildren or descendantFree disposable portion Whatever
remains6. Legitimate parents or ascendants; SurvivingspouseShare of
legitimate parents orascendants of the net estateShare of the
surviving spouse of the free portionFree disposable portion of the
estate7. Illegitimate children, surviving spouseShare of
illegitimate children 1/3 of the net estateShare of surviving
spouse 1/3 of the net estateFree portion 1/3 of the net estate8.
Legitimate parents or ascendants; IllegitimatechildrenShare of
legitimate parentsand ascendants of the net estateIllegitimate
children of the net estateFree portion of the estate9. Surviving
spouse; Legitimate children anddescendant; Illegitimate
childrenShare of legitimate childrenand descendants of the net
estateSurviving spouse Equal to the portion of thelegitime of each
legitimatechildIllegitimate children of the share of eachlegitimate
childFree portion Whatever remains10. Surviving spouse; Legitimate
parents orascendants; Illegitimate childrenShare of legitimate
parentsand ascendants of the net estateSurviving spouse 1/8 of the
estateIllegitimate children of the estateFree portion 1/8 of the
estate11. Surviving spouse only; Exception: Marriage inarticulo
mortisSurviving spouse only of the net estateFree portion of the
estateSurviving spouse only(marriage in articulo mortis)1/3 of the
net estateFree portion 2/3 of the estate12. Illegitimate children
only.Share of illegitimate children of the net estateFree portion
of the estate13. Illegitimate parents only; With illegitimate
andlegitimate children or descendant; With survivingspouse.Share of
illegitimate parentsonly of the net estateFree portion of the
estateShare of illegitimate parents of the net estateShare of the
survivingspouse of the estateFree portion of the estateSTEPS IN
DETERMINING THE LEGITIME OFCOMPULSORY HEIRS:1. Determination of the
gross value of the estate atthe time of the death of the
testator;2. Determination of all debts and charges which
arechargeable against the estate;3. Determination of the net value
of the estate bydeducting all the debts and charged from thegross
value of the estate;4. Collation or addition of the value of all
donationsinter vivos to the net value of the estate;5.
Determination of the amount of the legitime fromthe total thus
found;QuickTime and aTIFF (Uncompressed) decompressorare needed to
see this picture.Civil Law Summer ReviewerATENEO CENTRAL BAR
OPERATIONS 2007Page 94 of 2976. Imputation of all the value of all
donations intervivos made to compulsory heirs against
theirlegitimes and of the value of all donations intervivos made to
strangers against the disposablefree portion and restoration to the
hereditaryestate if the donation is inofficious.7. If legitime is
impaired, the following reductionsshall be made:a. First, reduce
pro-rata non-preferred legaciesand devises, and the
testamentarydispositions.b. Second, reduce pro rata the
preferredlegacies and devisesc. Third, reduce the donations inter
vivosaccording to the inverse order of their dates8. Distribution
of the residue of the estate inaccordance with the will of the
testator.CHAPTER 11: RESERVA TRONCAL It constitutes as an exception
to both the systemof legitime and the order of intestate
succession.PURPOSE OF RESERVA TRONCAL:1. To reserve certain
properties in favor of certainpersons;2. To prevent person outside
a family fromacquiring, by some chance or accident, propertywhich
otherwise would have remained with thesaid family;3. To maintain a
separation between paternal andmaternal lines.REQUISITES OF RESERVA
TRONCAL1. The property should have been acquired byoperation of law
by an ascendant(RESERVISTA) from his descendant(PROPOSITUS) upon
the death of the latter.NOTE: by operation of law is limited
tosuccession, either by legitime or intestacy2. The property should
have been previouslyacquired by gratuitous title by the
propositusfrom another ascendant or from a brother orsister
(ORIGINATOR).NOTE: gratuitous encompasses transmissions bydonation
and succession.3. The propositus should have died without
anylegitimate issue in the direct descending line whocould inherit
from him.NOTE: Nieva v. Alcala, 41 Phil 495, allrelationships must
be legitimatePERSONAL ELEMENTS1. ORIGINATOR the ascendant, brother
or sisterfrom whom the propositus had acquired theproperty by
gratuitous title2. PROPOSITUS The descendant who died andfrom whose
death the reservistas in turn hadacquired the property by operation
of law. The socalled ARBITER OF THE FATE OF THERESERVA
TRONCAL.Note: Prepositus can terminate the reserva by:Reserva
Troncal - The reservation by virtue ofwhich an ascendant who
inherits from hisdescendant any property which the latter may
haveacquired by gratuitous title from another ascendantor a brother
or sister, is obliged to reserve theproperty form the benefit of
relative within the 3rddegree and who belong from the same line
fromwhich the property came from.a. Substituting or alienating the
propertyb. By bequeathing or devising it either to thepotential
reservista or to other third personc. By partitioning it and
assigning the propertyto parties other than the reservista3.
RESERVISTA The ascendant, not belonging tothe line from which the
property came that is theonly compulsory heir and is obliged to
reservethe property.4. RESERVATARIOS The relative of thepropositus
within the 3rg degree and who belongto the line from which the
property came and forwhose benefit reservation is constituted.
Theymust be related by blood not only to thepropositus but also to
the originator. NOTE: The Civil Code did not provide for therules
on how the reservatarios wouldsucceed to the reservista. However,
thefollowing rules on intestacy have beenconsistently applied:a.
Rule of preference between the linesb. Rule of proximityc. Right of
representation provided that therepresentative is a relative within
the 3rddegree, and that he belongs to the line fromwhich the
reservable property camed. full blood/double share rule in Article
1006NOTE: Gonzales v. CFI, 104 Phil 479, thereservista had no power
to appoint, by will, whichreservatarios were to get the reserved
propertyQuickTime and aTIFF (Uncompressed) decompressorare needed
to see this picture.Civil Law Summer ReviewerATENEO CENTRAL BAR
OPERATIONS 2007Page 95 of 297RIGHT OF THE RESERVATARIOS OVER
THERESERVABLE PROPERTY1. Death of Propositus qualified
reservatariomerely acquire an inchoate right. The reservistasown
the property subject to the resolutorycondition2. Death of
Reservista surviving reservatariosacquire a perfect right.RIGHT OF
THE RESERVISTA OVER THERESERVABLE PROPERTY1. The right of the
reservista over the reservedproperty is one of ownership2. The
ownership is subject to a resolutory condition3. the right of
ownership is alienable4. The right of ownership is
registrableReserva Maxima Rerserva MinimaMuch of the
potentiallyreservable property aspossible must be demedincluded in
the part thatpasses by operation oflawEvery single property inthe
Prepositus estatemust be deemed topass, partly by will andpartly by
operation oflaw, in the sameproportion that the partgiven by will
bears to thepart not so givenMaximizes the scope ofreservaMinima
finds wideracceptance hereEXTINGUISHMENT OF RESERVA TRONCAL1. The
death of the Reservista2. The death of the all the Reservatorios3.
Renunciation by all Reservatorios, provided noneis born
subsequently4. Total Fortuitous loss of the reserved property5.
Confusion or merger of rights6. Prescription or adverse
possessionCHAPTER 12: DISINHERITANCECAUSES OF VACANCY IN
SUCCESSION1. Disinheritance - The testator creates it himself2.
Repudiation - The heir does something3. Incapacity/Predecease -
Something happens tothe heirHOW VACANCIES ARE FILLED1.
Substitution2. Representation3. AccretionDISINHERITANCE1. Heir is
being deprived of his legitime.2. Only in cases of testate
succession.3. Counterpart in intestate is unworthiness.4. Will
containing disinheritance must be probated.5. Effect: Heir loses
legitime.6. However, the disinherited heir can berepresented in the
legitime.a. Only in the descending line, never in theascendingb. In
collateral line, only with respect tonephews and nieces.7. In the
free portion, SAI8. Even if validly disinherited, heir can still be
validlyrestored in the legitime by RECONCILIATION.9. Reconciliation
when in speaking terms again,no particular form10. In unworthiness,
there must a pardon in writing toremove incapacity to inherit.
However, it does nothave to be in a will.11. If grounds for
disinheritance and unworthinessare common, reconciliation does not
erase thefact that the heir is unworthy.12. As long as there is
reconciliation, it should beconsidered to have revoked the
inheritance aswell as the unworthiness.13. Ineffective
disinheritance v. PreteritionREQUIREMENTS FOR VALID
DISINHERITANCE1. Effected only through a valid will;2. For a cause
expressly stated by law;3. Cause must be expressly state in the
will itself;4. Cause must be certain and true;5. Unconditional;6.
Total; AND7. The heir disinherited must be designated in sucha
manner that there can be no doubt as to hisidentity.GROUNDS FOR
DISINHERITANCEGrounds for Disinheritance Common To AllCompulsory
Heirs1. Attempt on the life of testator, spouse,ascendant,
descendanta. Conviction necessaryb. In case of spouse, giving cause
for legalseparation, no conviction neededc. Include both attempted
and frustrated.QuickTime and aTIFF (Uncompressed) decompressorare
needed to see this picture.Civil Law Summer ReviewerATENEO CENTRAL
BAR OPERATIONS 2007Page 96 of 297d. Attempt on life of relatives,
may beconsummated.2. Accusation of a crime with penalty of sixyears
or more.a. Penalty imposable, not actually imposed.b. Made by the
heir in a proceeding as acomplainant or witness in a criminal
case.c. Found to be groundless, false.d. Groundless court should
make a positivefinding that the testator has not committedthe
crime. It is then false.e. Chismis not the one referred here, it
isoutside criminal proceeding.3. Induce testator to make/change the
will.a. Will purely personalb. Vices of consent.c. It does not
punish the result but theinterference in the making/changing of
thewill.d. Will + disinheritance (will making)e. Will + amended
will + disinheritance (willchanging)4. Support unjustifiably not
given.a. Must prove obligation to give supportb. Spouses: mutual
obligation to give supportc. Reason must be unjustifiableGrounds
for Disinheritance Common betweenAscendants and Descendants
Adultery and Concubinage with the spouse ofthe testator1. It must
be the heir who committed such liaison2. With the legal spouse of
the testator3. Not necessarily incestuous4. Applicable to both
legitimate and illegitimatedescendantGrounds for Disinheritance
Common Ascendantand Spouse (in addition to A, B) Loss of parental
authority1. Causes: Arts. 230, 231, 232 of the Family Code2.
Ascendant of testator3. Spouse has given cause for loss of
parentalauthority.4. No actual deprivation, but it must exist. It
meansthat the act is committed which may be a causefor loss of
parental authority over their commonchildren, EXCEPT for those
enumerated in A.5. There are no common grounds between spouseand
descendants.Grounds for Disinheritance Only againstDescendant1.
Maltreatment of testatora. By word slander, offensive
language,insult, libel. May be spoken or written.b. By deed no need
for violence,something which caused the testator tobe humiliated.
Laying hands if not underattempt on life.2. Leading a disgraceful
life (or dishonest)i.e., daughter living with a married
man,estafadora, prostitutes, drug dealers, drugaddict.3. Commission
of crime which carries with it thepenalty of civil interdictiona.
Descendant convicted of crime with civilinterdiction. Necessarily
imposable, notactually imposed.b. Reclusion temporal, reclusion
perpetua.Ground for Disinheritance Only againstAscendants
(Parents)1. Abandonment by parentsa. Willfully left the children to
fend forthemselvesb. Abdication of parental duties.c. Only refers
to abandoned child.d. Induced daughters to lead a disgraceful life
also applicable to sons.2. Attempt on the life of one parent
againstanother parent.a. Parent v. parentb. Even if parents are not
married, it is still aground.c. No need for conviction. As long as
the heircan prove that there is an attempt.d. They do not need to
be spouses. However,the testator must be a common child.Grounds for
Disinheritance Only against spouse refers to legal spouses only,
legally married toeach other1. Giving cause for legal separationa.
No need for previous convictionb. Prove infidelity if cause is
contestedc. No need to prove grounds unless contestedby the heir.d.
Legal separation instituted but notterminated, OKe. If there is
already a decree:i. Ground is conclusiveii. But, there is a need to
disinheritQuickTime and aTIFF (Uncompressed) decompressorare needed
to see this picture.Civil Law Summer ReviewerATENEO CENTRAL BAR
OPERATIONS 2007Page 97 of 297iii. Effects: Guilty spouse is not
entitled toinherit.f. See 10 causes under the Family Code.2.
Support refusal to give support to the childrena. Offended the
testatorb. Common children of the testator and thespousec. Spouse
refuses to give support to the childd. Parents share in support of
their commonchildren. Refusal of the other spouse causesdamage to
the other. (testator)IMPERFECT DISINHERITANCEEFFECTS OF IMPERFECT
DISINHERITANCE1. If the testator had made disposition of the
entireestate; annulment of the testamentary dispositiononly in so
far as they prejudice the legitime of theperson disinherited; does
not affect thedispositions of the testator with respect to thefree
portion2. If the testator did not dispose of the free
portion;compulsory heir given all that he is entitled toreceive as
if the disinheritance has not beenmade, without prejudice to lawful
dispositionsmade by the testator in favor of others3. Devisees,
legacies and other testamentarydispositions shall be valid to such
extent as willnot impair the
legitimeIMPERFECTDISINHERITANCEPRETERITIONPerson disinherited may
beany compulsory heirThe person omitted mustbe a compulsory heir in
thedirect lineAlways express Always impliedAlways intentional May
be intentional orunintentionalEffect: partial annulment
ofinstitution of heirsEffect: total annulment ofinstitution of
heirsREVOCATION OF DISINHERITANCE1. Reconciliation2. Subsequent
institution of the disinherited heir3. Nullity of the will which
contains thedisinheritance NOTE: Where the ground for
disinheritance isalso a ground for unworthiness to succeed, whatis
the effect of a subsequent reconciliation uponthe heirs capacity to
succeed?1. If disinheritance has been made: Rule onreconciliation
applies, the disinheritancebecomes ineffective2. If disinheritance
has not been made: The rule onreconciliation does not apply, the
heir continuesto be incapacitated to succeed unless the
testatorpardoned him under Art. 1033.CHAPTER 13: LEGACIES AND
DEVICESPERSONS CHARGED WITH LEGACIES ANDDEVICES:Imperfect
Disinheritance - Disinheritance whichdoes not have one or more of
the essentialrequisites for its validity.1. Compulsory heir;2.
Voluntary heir;3. Legatee or devisee;4. Estate. If the will is
silent as to who shall pay or deliverthe legacy/devise, there is a
presumption thatsuch legacy or devise constitutes a chargeagainst
the decedents estate Since legacies and devises are to be taken
fromthe disposable free portion of the estate, theprovisions on
institution of heirs are generallyapplicable to themORDER OF
PAYMENT IN CASE ESTATE ISINSUFFICIENT TO COVER ALL LEGACIES
ANDDEVICES1. Remuneratory legacies or devises2. Legacies or devises
declared by the testator tobe preferential3. Legacies for Support4.
Legacies for Education5. Legacies or devises of a specific,
determinatething which forms a part of the6. estate7. All others,
pro-rataWHEN LEGACY/DEVISE CAN BE REVOKED BYOPERATION OF LAW1. If
the testator transform the thing bequeathed ordevised in such a
manner that it does not retainits form and denomination2. If the
testator, by any title or for any cause,alienates the thing
bequeathed or devised or anypart thereof3. If the thing bequeathed
or devised is totally lostduring the lifetime of the testator, or
after hisdeath without the heirs faultQuickTime and aTIFF
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Summer ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 98 of 2974.
If the legacy is a credit against a third person orthe remission of
a debt, and the testator,subsequent to the making of the will
brings anaction against such debtor for paymentVALIDITY AND EFFECT
OF LEGACY/DEVISEPlease Refer to Succession Table 1GROUNDS FOR
REVOCATION OF LEGACIES ORDEVISES1. Testator transforms the thing
bequeathed in sucha manner it does not retain either the form or
thedenomination it had.2. The testator by any title or for any
causealienates the thing bequeathed, or any partthereof, it being
understood that in the latter casethe legacy or devise shall be
without only withrespect to the part alienatedEXCEPT: when the
thing should again belong tothe testator after alienation.3. The
thing bequeathed is totally lost during thelifetime of the
testator, or after his death withoutthe heirs fault;4. Other
Causes: nullity of the will; noncompliancewith suspensive
conditions affecting thebequests; sale of the thing to pay the
debts of thedeceased during the settlement of his estate.CHAPTER
14: GENERAL PROVISIONS ON LEGALOR INTESTATE SUCCESSIONCAUSES OF
INTESTATE SUCCESSION INGENERAL1. In the absence of applicable valid
willa. Annulment of institution of heirs.b. When will loses its
validity.c. Testator did not make any will.d. Will not probated.e.
Revocation.f. Preterition2. In the absence of qualified heirsa.
Ineffective disinheritance (a portion)b. Repudiation (one or all)c.
Incapacityd. Disinheritancee. Institution subject to conditionsi.
Suspensive condition did not happenii. Resolutory condition
happens.iii. Expiration of term or period of institutionBASIC
PRINCIPLES IN INTESTATE SUCCESSION1. Intestate heirs always related
by blood.Except:a. Spouse - not related by blood, stranger in
thefamilyb. Adoptive relation adopter/adopted, fictionby law
created by adoption, purely personalc. State in the event no heir
can inherit.2. The nearer excludes the farther (rule ofproximity)
the relative nearest in degreeexclude the farther one.3. Direct
line is always preferred over collateral4. Ascending line is always
preferred over collateral5. Descending line is always preferred
overascending and collateral lines.6. Rule of equal division the
relatives who arein the same degree shall inherit in equal
sharessame classException:a. Descending line difference in class in
thecases of legitimate or illegitimate filiation.i. In case of
paternal/maternal linesii. Collateral half or full bloodb.
Ascending line the shares are dividedequally between maternal and
paternal lines,which could result to unequal shares whenthere is
only one grandparent in the maternalline while both grandparents
survived in thepaternal side.NOTE: In all cases where there has
been aninstitution of heirs, follow the I.S.R.A.I. order ofJustice
Paras. If the Institution fails, Substitutionoccurs. If there is no
substitute, right ofRepresentation applies in the direct descending
lineto the legitime of the vacancy is caused bypredecease,
incapacity or disinheritance. The right ofAccretion applies to the
free portion when therequisites in Article 1016 are present. If
there is nosubstitute, and the right of representation or
accretiondoes not apply, the rule of Intestate succession shalltake
over.REPRESENTATION - Instances whenRepresentation Occurs:1.
Predecease2. Incapacity of Unworthiness3. Disinheritance NOTE: In
case of repudiation, accretion takesplace.Sayson v. CA, 205 SCRA
324, although arenouncer cannot be represented, he canrepresent the
person whose inheritance he hasrenounced.QuickTime and aTIFF
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Summer ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 99 of 297IN
WHAT KINDS OF SUCCESSIONREPRESENTATION OPERATES1. Legitimes The
children and descendants of the persondisinherited shall take his
or her place and shallpreserve the rights of compulsory heir
withrespect to the legitime (Art 923) And only when the heir to be
represented:a. Predecease, becomes incapacitated, or
wasdisinherited by the testator.b. Is a compulsory heir.c. No right
of representation if the heir to berepresented is a voluntary
heir.2. Intestate succession Representation occurs in all intestate
estate. Alllegal heirs may be represented when proper. (Itis not
proper only when the heir to berepresented repudiated his share in
theinheritance)IN WHAT LINES DOES REPRESENTATIONOBTAIN1. Legitime -
in the direct descending line only.Representation does not exist in
the ascendingline. Hence, the father cannot represent the sonin the
inheritance from the grandfather.2. Intestacy:a. In the direct
descending line.b. In the collateral line, it takes place only
infavor of the children of brother or sisters(nieces and nephews of
the decedent, notgrand-nieces or grand-nephews). NOTE: Ifall the
brothers and sisters are disqualified,the nephews and nieces shall
inherit percapita.REPRESENTATION OF ILLEGITIMATE ORADOPTED
CHILDREN1. If the child to be represented is legitimate
onlylegitimate children and descendants canrepresent him.2. If the
child to be represented is illegitimate bothlegitimate and
illegitimate children/descendantscan represent him.2. An adopted
child can neither represent nor berepresentedQUALIFICATIONS TO
REPRESENT1. The representative himself must have capacity tosucceed
the decedent2. The representative need not be qualified tosucceed
the person represented.HOW REPRESENTATION OPERATES Division shall
be made PER STIRPES.THE SUCCESSIONAL BARRIER An illegitimate child
has no right to inherit abintestato from the legitimate children
andrelatives of his father or mother; nor shall suchchildren or
relatives inherit in the same mannerfrom the illegitimate child.
(Art 992) The Barrier rule only applies if there is alegitimate and
illegitimate relation. Example: A isthe legitimate son of B. C is
the illegitimate son ofA. C cannot inherit from B if A predeceases,
orbecomes incapacitated or be disinherited by B.CHAPTER 15: ORDER
OF INTESTATESUCCESSIONINTESTATE HEIRS1. Legitimate
Children/Descendants2. Illegitimate Children/Descendants3.
Legitimate Parents/ Ascendants4. Illegitimate Parents5. Surviving
Spouse5. Brothers, Sisters, Nephews, Nieces6. Other Collaterals to
the 5th degree7. StateRULES OF EXCLUSION AND CONCURRENCEPlease
Refer to Succession Table 2Factual Situation DivisionIf all the
children aredisqualifiedAll grandchildren stillinherit per
stirpesIf all the brothers /sistersare disqualifiedNephews and
niecesinherit per capitaTeotica v. Del Val, 13 SCRA 406,
therationale why an adopted child can neitherrepresent or be
represented is because thelegal relationship created by the
adoption isstrictly between the adopter and the adoptedQuickTIFF
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ReviewerATENEO CENTRAL BAR OPERATIONS 2007Page 100 of 297are needed
to see this picture.WHEN DECEDENT HAS NO HEIRS1. Assignment and
Disposition of Assetsa. if decedent is a resident of the
Philippines atany timei. Personal property to the municipality
oflast residenceii. Real property where situatedb. If decedent was
never a resident of thePhilippinesi. Personal and real property
whererespectfully situated2. How Property is to be Useda. For the
benefit of public educational andcharitable institutions in the
respectivemunicipalities/citiesb. Alternatively, at the instance of
an interestedparty, or motu proprio, the court may orderthe
permanent trust for the benefit of theinstitutions concernedCHAPTER
16: PROVISIONS COMMON TOINTESTATE AND INTESTATE SUCCESSIONRIGHT TO
ACCRETION1. In Testamentary Successiona. Predeceaseb. Incapacityc.
Repudiationd. Non-fulfillment of suspensive conditionimposed upon
instituted heire. Ineffective testamentary disposition2. In
Intestate Successiona. Predecease of a legal heir (only
whenrepresentation does not apply)b. Incapacity of legal heir (only
whenrepresentation does not apply)c. Repudiation by a legal
heirELEMENTS OF ACCRETION IN TESTAMENTARYSUCCESSION1. Two or more
persons are called to the sameinheritance, or to the same portion
thereof, proindiviso (aliquot share)a. In cases of legacy or
devise, as long as thereis no specific designation of the
specificshare of each legacy or devise.b. Not necessarily equal.c.
Once a certain specific part of the freeportion has already been
specificallyearmarked, there is no accretion and there isno express
provision on accretion.d. But, it is okay to earmark parts of the
freeportion as long as no specific property hasbeen designated.
NOTE: The heir to whom the portion goes bythe right of accretion
takes it in the sameproportion that they inherit2. Renunciation,
predecease or incapacity of one(or more but less than all) of the
instituted heirs.FUNDAMENTAL PRINCIPLES IN ACCRETION1. Accretion in
testate succession only takes place inthe free portion. No
accretion in the legitimebecause when the compulsory heir
repudiates hislegitime, the other co-compulsory heir inherits
therepudiated share in their own right and notthrough accretion. If
the cause of the vacancy isPID, representation will occur.2.
Accretion also takes place in cases of deviseesand legatees and
usufructuaries under the sameconditions established for heirs.3.
Accretion is subordinate to substitution, becausesubstitutes are
instituted by the testator; hence,express will prevails over
presumed will. NOTE: if there is neither accretion norsubstitution
in testamentary succession, the partleft vacant will lapse into
testacy4. The one that the heir gets from accretion can berenounced
separate from the inheritanceattributed to the heir who will
renounced theaccrued inheritance.CAPACITY TO SUCCEEDThe following
are capable of succeeding:1. Natural Personsa. General Rule must be
living whensuccession opens. NOTE: It is enough thatthe heir,
devisee or legatee be alreadyconceived in accordance with Arts 40
and 41,to be considered living.b. If institution subject to a
suspensivecondition successor must be living bothwhen decedent dies
and when thecondition happensc. If institution subject to a
suspensive term must be alive only at the moment ofdecedents death,
successor need not bealive when the term alives.2. Juridical
Personsa. Organizations or associations whichpossess juridical
personalityQuickTime and aTIFF (Uncompressed) decompressorare
needed to see this picture.Civil Law Summer ReviewerATENEO CENTRAL
BAR OPERATIONS 2007Page 101 of 297WHO ARE INCAPABLE OF SUCCEEDING1.
Those Prohibited under Art 1027a. Priest who heard the confession
of thetestator during his last illness, or the ministerof the
gospel who extended spiritual aid tohim during the same periodb.
Relatives of such priest or minister of thegospel within the 4th
degree, the church,order, chapter, community, organization,
orinstitution to which such priest or ministermay belongc. Guardian
with respect to testamentarydispositions given by a ward in his
favorbefore the final accounts of the guardianshiphave been
approved, even if the testatorshould die after the approval
thereof;EXCEPT if the guardian is his ascendant,descendant,
brother, sister, or spoused. Attesting witness to execution of
will, theirspouses, parents, children or any oneclaiming under such
witness, spouse,parents or childrene. Physician, surgeon, nurse,
health officer ordruggist who took care of the testator duringhis
last illnessf. Individuals, associations, and corporationsnot
permitted by law to inherit2. Those prohibited under Art 739 from
giving andreceiving donation from each other.a. Those made between
persons who wereguilty of adultery or concubinage at the timeof the
donation;b. Those made between persons found guilty ofthe same
criminal offense, in considerationthereof;c. Those made to a public
officer or his wife,descedants and ascendants, by reason of
hisoffice.3. The following are incapable of succeeding byreason of
unworthiness:a. Parents who have abandoned their childrenor induced
their daughters to lead a corruptor immoral life, or attempted
against theirvirtue;b. Any person who has been convicted of
anattempt against the life of the testator, his orher spouse,
descendants, or ascendants;c. Any person who has accused the
testator ofa crime for which the law prescribesimprisonment for six
years or more, if theaccusation has been found groundless;d. Any
heir of full age who, having knowledge ofthe violent death of the
testator, should fail toreport it to an officer of the law within
amonth, unless the authorities have alreadytaken action; this
prohibition shall not applyto cases wherein, according to law,
there isno obligation to make an accusation;e. Any person convicted
of adultery orconcubinage with the spouse of the testator;f. Any
person who by fraud, violence,intimidation, or undue influence
should causethe testator to make a will or to change onealready
made;g. Any person who by the same meansprevents another from
making a will, or fromrevoking one already made, or whosupplants,
conceals, or alters the latter's will;h. Any person who falsifies
or forges asupposed will of the decedent. (756, 673,674a) NOTE: The
cause of unworthiness shall bewithout effect if the testator had
knowledgethereof at the time he made the will, or if,having known
of them subsequently, heshould condone them in writing.
(757a)ADDITIONAL NOTES1. The capacity to succeed is governed by the
lawof the nation of the decedent.2. Persons not incapacitated by
law may succeedby will or ab intestato.3. If the heir excluded from
the inheritance byreason of incapacity is a compulsory heir, and
ifsuch compulsory heir has children ordescendant, the latter shall
acquire theincapacitated heirs right to the legitime
(byrepresentation.).4. A testamentary provision in favor of a
disqualifiedperson, even though made under the guise of anonerous
contract, or made through anintermediary, shall be void.
(755)ACCEPTANCE OF INHERITANCE Two kinds:1. Expressa. Public
Documentb. Private Writing2. Tacit Acceptancea. When heir sells,
donates, or assigns his right.b. When heir renounces it for the
benefit of oneor more heirs.c. When renunciation is in favor of all
heirsindiscriminately for considerationd. Other acts of tacit
acceptance:i. Heir demands partition of the inheritanceQuickTime
and aTIFF (Uncompressed) decompressorare needed to see this
picture.Civil Law Summer ReviewerATENEO CENTRAL BAR OPERATIONS
2007Page 102 of 297ii. Heir alienates some objects of
theinheritanceiii. Under Article 1057, failure to signifyacceptance
or repudiation within 30 daysafter an order of distribution by
theprobate court.CHARACTERISTICS OF REPUDIATION1. Free and
Voluntary Act2. Irrevocable once made and cannot be impugned,except
in cases vitiating consent.3. RetroactiveREQUISITES FOR A VALID
REPUDIATION1. Heir repudiating must be certain of two thingsbefore
repudiating:a. Death of the person from whom he is toinherit;b.
Right to the inheritance.2. Who may repudiate? Any person having
thefree disposal of his property.3. How is repudiation made? The
repudiation ofthe inheritance shall be made in a public orauthentic
instrument, or by a petitionpresented to the court having
jurisdiction over thetestamentary or intestate proceedings.a. If
the heir repudiates the inheritance to theprejudice of his own
creditors, the latter maypetition the court to authorize them to
acceptit in the name of the heir.b. If an heir is both a testate
and legal heir,repudiation of the inheritance as a testateheir, he
is understood to have repudiated inboth capacities. However, should
herepudiate as a legal heir, without knowledgeof being a testate
heir, he may still accept theinheritance as a legal heir. NOTES: If
renounced in favor of other heirs,does it mean acceptance? It
depends:a. If specific heir whether or not renouncingheir receives
anything, considered asacceptance on the part of the heir. There
aretwo transfers.b. If gratuitous i. In favor of all his co heirs
indiscriminately- there is repudiation because heirdeemed to have
not accepted. Hence,accretion takes place.ii. In favor of all
co-heirs but in proportiondifferent from those they would receiveby
accretion: considered as tacitacceptance.iii. If gratuitous in
favor of one or some ofhis co-heirs deemed conveyance infavor of
the co-heirs specified, hencethere is acceptance.c. If onerously:
There is no repudiation Transfer considered to be withconsideration
There are also tax implications becausethere are two
transfers.COLLATIONCollation is the act by virtue of which,
thepersons who concur in the inheritance bringback to the common
hereditary mass theproperty which they have received from him,so
that a division may be effected according tolaw and the will of the
testator.To collate is to bring back or to return to thehereditary
mass, in fact or by fiction, propertywhich came from the estate of
the decedent,during his lifetime, but which the law considersas an
advance from the inheritance.PROPERTIES OR RIGHTS RECEIVED
BYCOMPULSORY HEIR NOT SUBJECT TOCOLLATION1. Property left by will2.
Property which may have been donated by anascendant of the
compulsory heir3. Property donated to the spouse of thecompulsory
heir4. Expenses for support, education, medicalattendance even in
extraordinary illness,apprenticeship, ordinary equipment or
customarygifts5. Expenses incurred by parents in giving
theirchildren a professional, vocational, or othercareer6. Wedding
gifts consisting of jewelry, clothing andoutfit, given by parents
or ascendants, so long asthey do not exceed 1/10 of the disposable
portionOPERATIONS RELATED TO COLLATION1. Collation adding to the
mass of the hereditaryestate the value of the donation or
gratuitousdisposition2. Imputing or Charging crediting the
donationas an advance on the legitime (if the donee is aQuickTime
and aTIFF (Uncompressed) decompressorare needed to see this
picture.Civil Law Summer ReviewerATENEO CENTRAL BAR OPERATIONS
2007Page 103 of 297compulsory heir) or on the free portion (if
thedonee is a stranger)3. Reduction determining to what extent
thedonation will remain and to what extent it isexcessive or
inofficious4. Restitution return or payment of the excess tothe
mass of hereditary estate.PERSONS OBLIGATED TO COLLATE GENERAL
RULE: compulsory heirs EXCEPT:a. When the testator should have so
expresslyprovided; andb. When the compulsory heir should
haverepudiated his inheritanceCHAPTER 17 : PARTITION AND
DISTRIBUTIONOF ESTATEWHO MAY PARTITION1. Decedent himself during
his lifetime by an actinter vivos or by will;2. Heir themselves;3.
Competent court; 3rd person designated by thedecedentWHO CAN DEMAND
PARTITION1. Compulsory heir;2. Voluntary heir3. Legatee or
devisee;4. Any person who has acquired interest in theestateWHEN
PARTITION CANNOT BE DEMANDED(PAPU)1. When expressly Prohibited by
the testator himselffor a period not exceeding 20 years;2. When the
co-heirs Agreed that the estate shallnot be divided for a period
not exceeding 10years, renewable for another 10 years;3. When
Prohibited by law;4. When to partition the estate would render
itUnserviceable for the use for which it is intended. NOTE:
Partition Inter Vivos it is one thatmerely allocates specific items
or pieces ofproperty on the basis of the pro-indiviso sharesfixed
by law or given under the will to heirs orsuccessors.EFFECTS OF
INCLUSION OF INTRUDER INPARTITION1. Between a true heir and several
mistaken heirs Partition is VOID2. Between several true heirs and a
mistaken heir transmission to mistaken heir is VOID3. Through error
or mistake; share of true heir isallotted to mistaken heir
partition shall not berescinded unless there is bad faith or fraud
on thepart of the other persons interested, but the lattershall be
proportionately obliged to pay the trueheir of his share NOTE:
Partition with respect to the mistakenheir is VOID.IMPORTANT
PERIODS TO REMEMBERPlease Refer to Succession Table 4
