San Beda Reviewer Succession - Civil Law

8/10/2019 San Beda Reviewer Succession - Civil Law

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San Beda College of Law53

MEMORYAIDINCIVILLAW

SUCCESSION

SUCCESSION

A mode of acquisition by virtueof which the property, rights andobligations to the extent of thevalue of the inheritance, of aperson are transmitted throughhis death to another or otherseither by his will or by operationof law.(Art. 774)

Kinds:. !estamentary or !estacy (bywill)"

#. $egal or intestacy (by operationof law based on the decedent%spresumed will)"

3. &ixed ('artly !estamentary and$egal)" and4. 'artition inter vivos (to a certaindegree).

Elements:. *+! (subective element)#. -**--/0- (subectiveelement)a. 1eirs 2 those who are called to

the whole or to an aliquotportion of the inheritance eitherby will or by operation of law

1) 3oluntary those institutedby the testator in his will, tosucceed to the inheritanceor the portion thereof ofwhich the testator can freelydispose.

2) *ompulsory or 5orced thosewho succeed by force of lawto some portion of the

inheritance, in an amountpredetermined by law,6nown as the legitime.

3) $egal or ntestate thosewho succeed to the estate ofthe decedent who dieswithout a valid will, or tothe portion of such estatenot disposed of by will.

b. evisees or legatees 2 persons towhom gifts of real or personal

property are respectively givenby virtue of a will

NOTE: !he distinctions betweenheirs and devisees8legatees aresignificant in these cases9

. 'reterition (pretermission)#. mperfect disinheritance:. After2acquired properties4. Acceptance or non2

repudiation of thesuccessional rights.

:. A!1 /5 !1 *+! (casualelement)

&oment when rights to succeed aretransmitted (Art 777)

1owever, a person may be

;presumed< deadfor the purpose ofopening his succession(see rules onpresumptive death). n this case,succession is only of provisionalcharacter because there is alwaysthe chance that the absentee maystill be alive.4. nheritance (obective element)"

NOTE:=hatever may be the time whenactual transmission ta6es place,succession ta6es place in any event atthe moment of the decedent%s death.(Lorenzo vs. Posadas 64 Phil 353)

SUCCESSION INHERITANCE0efers to the legalmode by whichinheritance istransmitted to thepersons entitled

to it

0efers to theuniversality orentirety of theproperty, rightsand obligations of a

person who died

Inheritance includes:

1. '0/'0!>, 0?1!- A+/@$?A!/+- NO !"#N$%#&'! @>A!1General rules on rights andobligations extinguished b hisdeath

a) 0ights which arepurel personalare by their nature and purposeintrans*issi+le for they are

CIVILLAWCOMMITTEECHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaia Ha!!iman, Doro"#y $ayon

S%BJECT HEADS: C#ri!"oer Rey 'ara!i(an )Per!on! and *amily Rela"ion!+, Aleandro Ca!a-ar)Pro&er"y+, 'a.R#odora*errer)ill! and Succe!!ion+, Ian Dominic Pua)O-li(a"ion! and Con"rac"!+, S#a Elia# Dumama)Sale! and /ea!e+,Jo#n S"een0uiam-ao)PAT+, C#ri!"oer Ca-i(ao)Credi" Tran!ac"ion!+, /i(aya Ali&ao)Tor"! and Dama(e!+, An"#onyPur(anan)/TD+,'a. Rica!ion Tu(adi )Con1lic"! o1 /a2+


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e,tinguished + death (e.g.those relating to civilpersonality, family rights,discharge of office).

b) 0ights which are patri*onial orrelating to property aregenerally part of inheritance asthey are not e,tinguished +death.

c) -ights of o+ligations are bynature trans*issi+le and mayconstitute part of inheritanceboth with respect to the rightsof the creditor and as regards tothe obligations of the debtor.

2.A$$ =1*1 1A3//-%!!10!/

-+* !1 /'++? /5 -**--/+(rticle 012 /ivil /ode)

I! TESTA"ENTAR# SUCCESSION

A! CONCE$T

%I&& ' an act whereby a person ispermitted, with the formalitiesprescribed by law, to control to a certaindegree the disposition of his estate tota6e effect after his death (Art. 7:)

NOTE: !hus, a document that does notpurport to dispose of one%s estate eitherby the institution of heirs or designationof devisees8legatees or, indirectly, byeffecting a disinheritance, is not to begoverned by the law on testamentarysuccession but by some other applicablelaws.

Kinds o( %ills:. +otarial or ordinary#. 1olographic

Characteristics o( a %ill:. +$A!0A$#. -!0*!$> '0-/+A$ A*! 2 !he

disposition of property is solelydependent upon the testator.

NOTE: !he following acts &A> +/! beleft to the discretion of a third person9(rticle 015 010 /ivil /ode)duration or efficacy of the designation of

heirs, devisees or legatees"

determination of the portions which theyare to ta6e, when referred to byname" and

determination of whether or not the

testamentary disposition is to beoperative.

NOTE: 1owever, the following acts &A>be entrusted to a third person9 (rticle016 /ivil /ode)

a. distribution of specific propertyor sums of money that he may leavein general to specified classes orcauses" and

b. designation of the persons,institutions or establishments towhich such property or sums are to

be given or applied.:. 50 A+ 3/$+!A0> A*! Any viceaffecting the testamentary freedom cancause the disallowance of the will.4. 5/0&A$ A+ -/$&+ A*! !heformalities are essential for the validityof the will.B. A*! &/0!- *A-AC. A&@$A!/0> A+ 03/*A@$

0+? !1 !-!A!/0%- $5!&7. +3A$ A*! !wo or morepersons cannot ma6e a singleointwill,either for their reciprocal benefit or for

another person. 1owever, separate orindividually executed wills, althoughcontaining reciprocal provisions (*utualwills), are not prohibited, subect to therule on disposicion captatoria.-'/-!/+ /5 '0/'0!>

)! INTER$RETATION O* %I&&S (A0!-.727D#)!he testator%s intent (ani*us testandi),as well as giving effect to such intent, isprimordial. t is sometimes said that thesupreme law in succession is the intentof the testator. All rules of constructionare designed to ascertain and give effectto that intention. t is only when theintention of the testator is contrary tolaw, morals, or public policy that itcannot be given effect.

n case of doubt, that interpretation bywhich the disposition is to be operativeshall be preferred. !hat construction isto be adopted which will sustain anduphold the will in all its parts, if it can

CIVILLAWCOMMITTEECHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON : Vida Bocar, Joyce Vidad EDP : Alnaia Ha!!iman, Doro"#y $ayon S%BJECT HEADS: C#ri!"oer Rey 'ara!i(an )Per!on! and *amily Rela"ion!+, Aleandro Ca!a-ar)Pro&er"y+, 'a.R#odora*errer)ill! and Succe!!ion+, Ian Dominic Pua)O-li(a"ion! and Con"rac"!+, S#a Elia# Dumama)Sale! and /ea!e+,Jo#n S"een0uiam-ao)PAT+, C#ri!"oer Ca-i(ao)Credi" Tran!ac"ion!+, /i(aya Ali&ao)Tor"! and Dama(e!+, An"#onyPur(anan)/TD+,'a. Rica!ion Tu(adi )Con1lic"! o1 /a2+


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be done consistently with theestablished rules of law.

Kinds o( A+biguities: (Article 7C). $A!+! /0 +!0+-* A&@?!- that which does not appear on the faceof the will and is discovered only byextrinsic evidence.#. 'A!+! /0 E!0+-* A&@?!- that which appears on the face of thewill itself

NOTES:

!here is no distinction betweenpatent and latent ambiguities, in sofar as the admissibility of parol or

extrinsic evidence to aidtestamentary disposition isconcerned.

xtrinsic evidence to explain

ambiguities in a will cannot includeoral declarations of the testator asto his intention.

!he validity of a will as to its formdepends upon the observance of lawin force at the time it is made. (Art.7DB).

f a law different from the law in

force at the time of the execution ofthe will goes into effect before orafter the death of the testator, sucha law shall not affect the validity ofthe will, provided that such will wasduly executed n accordance withthe formalities prescribed by law inforce at the time it was made.

A*TER'AC,UIRE- $RO$ERT# .Art! /012Gen! Rule: 'roperty acquired during theperiod between the execution of the willand the death of the testator is +/!included among the property disposedof.Exce3tion: =hen a contrary intentionexpressly appears in the will

NOTE: !his rule applies only to legaciesand devises and not to institution ofheirs.

C! TESTA"ENTAR# CA$ACIT#4 refers to the ability as well as thepower to ma6e a will.

2 must be present at the time of theexecution of the will.

Re5uisites:

1. At least years of age2. /f sound mind, i.e., the ability to

6now9a. the nature of the estate to be

disposed of"b. theproper o+ectsof his bounty"

andc. the character of the

testa*entar act.

NOTE: !he law presu*es that the

testator is of sound mind, +$--9a. he, one month or less, before ma6inghis will, was publicly 6nown to beinsane" orb. was under guardianship at the time ofma6ing his will. (orres and Lopez deueno vs. Lopez 41 Phil 00)

n both cases, the burden of provingsanity is cast upon proponents of thewill.

Effect of Certain Infirmities:. mere senility or infirmity of oldage does not necessarily imply that aperson lac6s testamentary capacity"#. physical infirmity or disease isnot inconsistent with testamentarycapacity":. persons suffering from idiocy(those congenitally deficient inintellect), imbecility (those who arementally deficient as a result ofdisease), and senile dementia(peculiar decay of the mentalfaculties whereby the person

afflicted is reduced to secondchildhood) do not possess thenecessary mental capacity to ma6e awill"4. an insane delusion which willrender one incapable of ma6ing awill may be defined as a belief inthings which do not exist, and whichno rational mind would believe toexist"B. if the insane delusion touches tosubect matter of the will,testamentary disposition is void.



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C. a deaf2mute and blind personcan ma6e a will (i.e. Art. F72F). Ablind man with a sound and disposingmind can ma6e a holographic will.

7. an intoxicated person or personunder the influence of drugs mayma6e a will as there is no completeloss of understanding.

!,ception: where the testator hasused intoxicating liquor or drugsexcessively to such an extent as toimpair his mind, so that at the timethe will is executed, he does not6now the extent and value of hisproperty, or the names of personswho are the natural obects of hisbounty, the instrument thus

executed will be denied probate forlac6 of testamentary capacity.

-! *OR"A&ITIES O* %I&&S.E6TRINSIC 7A&I-IT#2

CO""ON *OR"A&ITIES

1. very will must be in writing" and#. xecuted in a language or dialect

6nown to the testator.

S$ECIA& *OR"A&ITIESI! NOTARIAL OR ORDINARY WILLa. -@-*0'!/+ made at the end

thereof by the testator himself or bythe testatorGs name written by someother person in his presence and byhis express direction"

&u+scription refers to the*anual act of testator and alsoof his instru*ental 7itnesses ofaffi,ing their signature to theinstru*ent.

b. A!!-!A!/+ A+ -@-*0'!/+ 2(evidenced + an 8attestation

clause9) by : or more crediblewitnesses in the presence of thetestator and of one another"

Attestation consists in the act ofwitnesses of witnessing theexecution of the will in order tosee and ta6e note mentally thatsuch will has been executed inaccordance with requirementsprescribed by law.

ATTESTATION SU)SCRI$TION

. an act of thesenses

. an act of thehand

#. mental act #. mechanical act

:. purpose is torender availableproof duringprobate of will

:. purpose isidentification

c. &A0?+A$ -?+A!0- affixed bythe testator or the person requestedby him to write his name and theinstrumental witnesses of the will oneach and every page thereof, exceptthe last, on the left margin"

Exce3tions to the rule that all o( the3ages o( the 8ill shall ha9e to besigned on the le(t +argin b thetestator and 8itnesses::

() in the last page, when the willconsists of two or more pages"(#) when the will consists of only onepage"(:) when the will consists of twopages, the first of which contains allthe testamentary dispositions and issigned at the bottom by the testatorand the witnesses and the secondcontains only the attestation clauseduly signed at the bottom by the

witnesses.

!he inadvertent failure of one

witness to affix his signature to onepage of a testament, due to thesimultaneous lifting of two pages inthe course of signing, is not per sesufficient to ustify denial of probate(#casiano vs. #casiano ## &/- 4).

d. 'A? +&@0+?- =rittencorrelatively in letters placed on theupper part of each page"

NOTE: !his is not necessary when all ofthe dispositive parts of a will are writtenon one sheet only.

e. A*H+/=$?&+! one before anotary public by the testator and theinstrumental witnesses.

NOTE: !he notary public before whomthe will was ac6nowledged cannot beconsidered as the third instrumental



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witness since he cannot ac6nowledgebefore himself his having signed the will.f the third witness were the notarypublic himself, he would have to avow,

assent, or admit his having signed thewill in front of himself. !o allow suchwould have the effect of having only twoattesting witnesses to the will whichwould be in contravention of Arts. FBand FC. (/ruz vs. illasor 54 &/- 32)"ANNER O* SIGNING:

!he use of any signature, mar6sor design intended by the testator toauthenticate renders the willsufficiently signed by the testator.

A signature by mar6 will be

sufficient even if at the time ofplacing it, the testator 6new how towrite and is able to do so.

t is sufficiently signed by writinghis initials, or his first name, or hemay use even an assumed name.

A complete signature is notessential to the validity of a will,provided the part of the namewritten was affixed to theinstrument with intent to execute itas a will.

ATTESTATION C&AUSE2 memorandum or record of factswherein the witnesses certify that thewill has been executed before them, andthat it has been executed in accordancewith the formalities prescribed by law.

Absence of this clause will renderthe will a nullity.

t must state the following ESSENTIALFACTS:

1. the number of pages

used upon which the will iswritten"

1/=30, even if number of pages isomitted in the A* @! if there is anac6nowledgment clause which states thenumber of pages or the will itselfmentioned such number of pages, it maystill be considered valid applying the$iberal nterpretation of the law.(a+uada vs. -osal)

2. the fact that thetestator signed the will andevery page thereof, or causedsome other person to write his

name, under his expressdirection, in the presence of theinstrumental witnesses"

=hen the testator expressly

caused another to sign the former%sname, this fact must be recited inthe attestation clause. /therwise,the will is fatally defective. ($arciavs. Lacuesta ;< Phil 41;)

3. that the witnesseswitnessed and signed the will

and all the pages thereof in thepresence of the testator and ofone another.

TEST O* $RESENCE: +ot whetherthey actually saw each other sign,but whether they might have seeneach other sign had they chosen todo so considering their mental andphysical condition and position withrelation to each other at themoment of inscription of eachsignature. (=a+oneta vs. $ustilo)

n the case of an ordinary or attestedwill, its attestation clause need not+e 7ritten in a language or dialect>no7n to the testator since it doesnot form part of the testamentarydisposition.

!he language used in the attestationclause li6ewise need not even +e>no7n to the attesting 7itnesses.Art. FB merely requires that, insuch a case, the attestation clause

shall be interpreted to saidwitnesses. (/aneda vs. / &/-012)

E((ects o( de(ects or i+3er(ections inthe Attestation Clause:

f the defect of the attestation

clause goes into the very essence ofthe clause itself or consists in theomission of one, some, or all of theessential facts, and such omissioncannot be cured by an examination



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of the will itself, the defect issubstantial in character, as aconsequence of which the will isinvalidated.

1owever, n the absence of badfaith, forgery, fraud, or undue andimproper pressure and influence,defects and imperfections in theform of attestation or in thelanguage used therein shall notrender the will invalid if it is provedthat the will was in fact executedand attested in substantialcompliance with Art. FB (for*alre?uire*ents). !his is 6nown as the-OCTRINE O* &I)ERA&

INTER$RETATION (Art. FD)

$ur3oses o( re5uiring 8itness to attestand to subscribe to a 8ill:

. identification of the instrument#. protection of the testator fromfraud and deception:. the ascertainment of thetestamentary capacity of thetestator.

NOTE: Certain points to consider(olentino)

1. &ere 6nowledge by testator thatanother is signing, and acquiescing init, there being no expressdirection, is +/! sufficient.#. +ot required that the name ofthe person who writes the testator%sname should also appear on the will"enough that testator%s name iswritten.:. f the required numbers ofattesting witness are competent, the

fact that an additional witness, whowas incompetent also attested tothe will, cannot impair the validity.4. mmaterial in what order theacts are performed provided thesignature or ac6nowledgment by thetestator and the attestation of thewitnesses be accomplished in oneoccasion, and as part of onetransaction.

5. !he law refers to paeand notto sheet or leaf or folio, so every

page used in the will should besigned on the left margin.C. An attestation clause need besigned /+$> by the witnesses and

not by the testator as it is adeclaration made by the witnesses.

7. date of !ill:

a. ordinar 7ill9 not an essentialpart"

b. holographic 7ill9 an essentialpart.

8. 5ailure or error to state theplace of exec"tion will notinvalidate the will.D. -igning of a will by the testatorand witnesses and ac6nowledgment

before a notary public, need not bea single act.

10. Testamentar# capacit# mustalso exist at the time ofac6nowledgment.

A--ITIONA& RE,UIRE"ENTS *ORS$ECIA& CASES$% Deaf or deaf&m"te testator:

a) personal reading of the will, ifable to do so" /0

b) if not possible, designation of #persons to read the will andcommunicate to him, in some

practicable manner, thecontents thereof. (Article F7)

'% (lind testator:

ouble2reading requirement9

a. first, by one of the subscribingwitnesses, A+

b. second, by the notary publicbefore whom the will isac6nowledged. (rticle 1


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aside when the spirit behind the lawwas served though the letter wasnot. (lvarado vs. $aviola 6 &/-340)

%ITNESS TO NOTARIA& %I&&S(A0!-. #F I #)Re5uire+ents:

1. of sound mind"2. able to read and write"3. not blind, deaf or dumb"4. at least years of age"5. domiciled in the 'hilippines"6. has not been convicted of

falsification of a document, perury,or false testimony

NOTE: A witness need not 6now thecontents of the will, and need not beshown to have had a good standing inthe community where he lives. Also, theac6nowledging notary public cannot beone of the : minimum numbers ofwitnesses.Interested 8itness

A witness to a will who isincapacitated from succeeding fromthe testator by reason of adevise8legacy or other testamentary

disposition therein in his favor, or infavor of his spouse, parent, or child.'o7ever his co*petence as a7itness su+sists.

! )OLO*RA+)IC WILL.Article ;


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the e,ecutionof the will, then the8ill is 9oidbecause it is not writtenentirely by the testator.

$robate o( Hologra3hic %ill1. f %N/ON!&! requires that at

least witness who 6nows thehandwriting and signature of thetestator explicitly declare that thewill and signature are in thehandwriting of the testator" if nowitness, expert testimony may beresorted to.

2. f/ON!&! requires at least : ofsuch credible witnesses, if noneexpert witness.

NOTE: =here the testator himselfpetitions for the probate of hisholographic will and no contest is file,the fact that he affirms that theholographic will and the signature are inhis own handwriting, shall be sufficientevidence thereof. f the holographic willis contested, the burden of disprovingthe genuineness and due executionthereof shall be on the contestant.

A photostatic or xerox copy of a lost

or destroyed holographic will may beadmitted because the authenticity ofthe handwriting of the deceased canbe determined by the probate court,as comparison can be made with thestandard writings of the testator.(-odelas vs. ranza 22; &/- 26)

GO7ERNING &A% ON *OR"A&ITIES$% As to time:

!he validity of a will as to its for*

depends upon the observance of thela8 in (orce at the ti+e it is +ade.

ts intrinsic validit, however, isudged at the ti+e o( thedecedent>s death b the la8 o( hisnationalit.

2. As to place:a. 5ilipino testator executing a will in

the 'hilippines9 'hilippine lawb. 5ilipino testator executing a will

outside of the 'hilippines9 either

1) !he law of the country in whichit is executed" or

#) !he law of the 'hilippines.c. Alien testator executing a will in the

'hilippines9 either

1) !he law of the 'hilippines" or

#) !he law of the country of whichhe is a citiJen or subect.

d. Alien testator executing a willoutside of the 'hilippines9 either

1) !he law of the place where it isexecuted" or

2) !he law of the place in which heresides" or

3) !he law of his country" or4) !he law of the 'hilippines.

As3ects o( the 8ill go9erned b

National &a8 o( the -ecedent (ArticleF:D and Article C *ivil *ode)a. /rder of successionb. Amount of successional rightsc. ntrinsic validityd. *apacity to succeed

Koint will a single testamentaryinstrument which contains the wills oftwo or more persons, ointly executed bythem, either for their reciprocal benefitor for the benefit of a third person22will of # or more persons is made in the

same instrument and is ointly signed bythem

&utual wills wills executed pursuant toan agreement between two or morepersons to dispose of their property in aparticular manner, each in considerationof the other22separate wills of # persons, which arereciprocal in their provisions.

0eciprocal wills2 wills in which thetestators name each other as

beneficiaries under similar testamentaryplans

NOTE: A will that is both oint andmutual is one executed ointly by two ormore persons, the provisions of whichare reciprocal and which shows on itsface that the devises are made inconsideration of the other. -uch isprohibited.

Reasons:



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. will is purely personal and unilateralact

#. contrary to the revocable characterof a will

:. may expose the testator to undueinfluence, and may even induce oneof the testators to 6ill the other.

NOTE: Koint wills executed by 5ilipinosin a foreign country shall not be valid inthe 'hilippines, even though authoriJedby the foreign country in which they mayhave been executed (rticle 12; /ivil/ode).

!his prohibition is applicableonly in oint wills executed by @ilipinosin a foreign country" it does +/! A''$>

to oint wills executed by aliens.

E! CO-ICI& AN- INCOR$ORATION )#RE*ERENCE

CO-ICI&

A supplement or addition to a will,made after the execution of a willand annexed to be ta6en as a partthereof, by which any dispositionmade in the original will isexplained, added to, or altered.

(Article #B)NOTE: !o be effective, it must beexecuted as in the case of a will. tsexecution has the effect of republishingthe will as modified.

INCOR$ORATION )# RE*ERENCE(A0! #7)

*ontemplates only lists ofproperties, boo6s of accounts, andinventories.

'rovisions which are in the nature of

testamentary dispositions must becontained in the will itself.

Re5uisites (or a 9alid incor3oration bre(erence: (A0! #7). !he document or paper referred to

in the will must be in existence atthe time of the execution of thewill"

#. !he will must clearly describe andidentify the same, stating amongother things the number of pagesthereof"

:. t must be identified by clear andsatisfactory proof as the documentor paper referred to therein"

4. t must be signed by the testator and

the witnesses on each and everypage, except in case of voluminousboo6s of account or inventories.

*! RE7OCATION O* %I&&S AN-TESTA"ENTAR# -IS$OSITIONS

RE7OCATION

An act of the mind, terminating thepotential capacity of the will tooperate at the death of the testator,manifested by some outward orvisible act or sign, symbolic thereof.-uch right to revo6e a will cannotbewaived or restricted.

&A%S %HICH GO7ERN RE7OCATION(A0! #D)

1. f the revocation ta6es place in the

'hilippines, whether the testator isdo*iciled in the Philippines or inso*e other countr, it is valid whenit is in accordance with the la8s o(the $hili33ines

2. f the revocation ta6es place outside

the 'hilippines, by a testator 7ho isdo*iciled in the Philippines, it isvalid when it is in accordance withthe la8s o( the $hili33ines

3. 0evocation done outside the'hilippines, by a testator 7ho doesnot have his do*icile in thiscountr, is valid when it is doneaccording to the9

a. la8s o( the 3lace 8here the8ill 8as +ade, or

b. la8s o( the 3lace in 8hich thetestator had his do+icile at theti+e o( re9ocation"

"O-ES O* RE7OCATION (A0! :F)1. @y implication of law9

a. legal separation revo6estestamentary provisions in favorof the offending spouse"

b. preterition revo6es theinstitution of heir"

c. udicial action for recovery ofdebt revo6es a legacy ofcredit8remission of debt"



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d. transformation, alienation, orloss of bequeathed propertyrevo6es a legacy of suchproperty"

e. act of unworthiness by an heir,devisee8legatee revo6estestamentary provisions in hisfavor"

f. if both spouses of thesubsequent marriage acted inbad faith, said marriage shall bevoid ab initio and testamentarydispositions made by one infavor of the other are revo6edby operation of law (Art. 44,5amily *ode)" and

g. void ab initio or annulled

marriages revo6e testamentarydispositions made by one spousein favor of the other (Art. BF,5amily *ode).

#. @y some will, codicil, or otherwriting, executed as provided incase of wills, which may either be9a. xpress when there is a

revocatory clause expresslyrevo6ing the previous will or apart thereof

b. mplied when the provisionsthereof are partially or entirely

inconsistent with those of theprevious will

NOTE: =hile express revocation may beeffected by a subsequent will, or acodicil, or a nontestamentary writingexecuted as provided in case of wills,implied revocation may be effected onlyby either a subsequent will, or a codicil.

:. @y burning, tearing, cancelling, orobliterating the will.Re5uisites:a. testamentary capacity at the

time of performing the act ofdestruction"

b. intent to revo6e (animusrevocandi)"

c. actual physical act ofdestruction"

d. completion of the subectivephase" and

e. performed by the testatorhimself or by some other personin his presence and expressdirection

(!1 $-! - E*$-3.)

NOTE: !he act of revocation is apersonal act of the testator. 1e cannot

delegate to an agent the authority to dothe act for him. Another person,however, may be selected by him as aninstrument and directed to do therevocatory acts in his presence. Adestruction not accomplished in thetestator%s presence is an ineffectiverevocation of the will.

-OCTRINE O* $RESU"E- RE7OCATION

=henever it is established that thetestator had in his possession or hadready access to the will, but upon

his death it cannot be found orlocated, the presumption arises thatit must have been revo6ed by him byan overt act.

=here it is shown that the will wasin custody of the testator after itsexecution, and subsequently, it wasfound among the testator%s effectsafter his death in such a state ofmutilation, cancellation orobliteration as represents asufficient act of revocation, it willbe presumed in the absence ofevidence to the contrary, that suchact was performed by the testatorwith the intention of revo6ing thewill.

-OCTRINE O* -E$EN-ENT RE&ATI7ERE7OCATION (A0! :#)

A revocation subect to a conditiondoes not revo6e a will unless anduntil the condition occurs. !hus,where a testator ;revo6es< a willwith the proven intention that he

would execute another will, hisfailure to validly ma6e a latter willwould permit the allowance of theearlier will.

=here the act of destruction isconnected with the ma6ing ofanother will so as fairly to raise theinference that the testator meantthe revocation of the old to dependupon the efficacy of the newdisposition intended to be



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MEMORYAIDINCIVILLAW

substituted, the revocation will beconditional and dependent upon theefficacy of the new disposition" andif for any reason, the new will

intended to be made as a substituteis inoperative, the revocation failsand the original will remains in fullforce (3da. e &olo vs. &olo DF 'hil:7).

Re9ocation b +ista?e

A revocation of a will based on afalse cause or an illegal cause is nulland void. !hus, where a testator bya codicil or later will, expresslygrounding such revocation on theassumption of fact which turns out

to be false, as where it is stated thatthe legatees8devisees named thereinare dead, when in fact, they areliving, the revocation does not ta6eeffect.

G! RE$U)&ICATION AN- RE7I7A& O*%I&&S

RE$U)&ICATION

!he act of the testator whereby he

reproduces in a su+se?uent 7ill

(express) the dispositions containedin a previous will which is void as toits form, or he executes a codicil(constructive) to his will.

ts purpose is to cure the will of itsformal defects.

NOTES:

!o republish a will void as to itsfor* all the dispositions must bereproduced or copied in the new orsubsequent will"

!o republish a will valid as to itsfor* +ut alread revo>ed theexecution of a codicilwhich ma6esreference to the revo6ed will issufficient.

E((ects o( Re3ublication b 9irtue o( aCodicil:. *odicil revives the previous will#. !he old will is republished as of the

date of the codicilL ma6es it spea6,as it were, from the new and laterdate.

:. A will republished by a codicil isgoverned by a statute enacted to theexecution of the will, but which wasoperative when the codicil was

executed.

RE$U)&ICATION RE7I7A&

. !a6es place byan act of thetestator

. !a6es place byoperation of law.

#. *orrects extrinsicand intrinsicdefects.

#. 0estores arevo6ed will

RE7I7A&

!he restoration to validity of a willpreviously revo6ed by operation oflaw (implied revocation).

$RINCI$&E O* INSTANTER

!he e,press revocation of the firstwill renders it void because therevocatory clause of the second will,not being testamentary in character,operates to revo6e the previous willinstantly upon the execution of thewill containing it.

NOTE: n i*plied revocation, the first

will is not instantly revo6ed by thesecond will because the inconsistenttestamentary dispositions of the latterdo not ta6e effect immediately but onlyafter the death of the testator.H! A&&O%ANCE AN- -ISA&&O%ANCE O*%I&&S

$RO)ATE

A special proceeding mandatorilyrequired for the purpose ofestablishing the validity of a will.

!he statute of limitations is not

applicable to probate of wills.

,uestions deter+inable b the 3robatecourt: (*)

1. identity of the will"

2. testamentary capacity of thetestator at the time of the executionof the will" and

3. due execution of the will.



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MEMORYAIDINCIVILLAW

$!N!-L -%L!: n probateproceeding, the court%s area of inquiry islimited to an examination of, andresolution on the extrinsic validity if the

will, the due execution thereof, thetestatrix%s testamentary capacity andthe compliance with the requisites orsolemnities prescribed by law. !heprobate court cannot inquire into theintrinsic validity of testamentaryprovisions.

!"/!P#ON: 'ractical considerations,e.g. when the will is intrinsically void onits face.

n Nuguid vs Nuguid (20 &/- 44;)the -upreme *ourt held that, if thecase were to be remanded forprobate of the will, nothing will begained. /n the contrary, thislitigation would be protracted. Andfor aught that appears in the record,in the event of probate or if thecourt reects the will, probabilityexists that the case will come uponce again before us on the sameissue of the intrinsic validity ornullity of the will. 0-$!9 waste of

time, effort, expense, plus addedanxiety.

n Nepo*uceno vs / (23; &/-


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MEMORYAIDINCIVILLAW

of contest based on 50A, freeagency of the testator need not beshown to have been destroyed.

Allegations of fraud and undue

influence are mutually repugnantand exclude each other" their oiningas grounds for opposing probateshows absence of definite evidenceagainst the validity of the will(#casiano vs. #casiano 22 &/- 4)

RE7OCATION -ISA&&O%ANCE. voluntary act ofthe testator.

. given by udicialdecree.

#. with or without

cause.

#. must always be

for a legal cause.

:. may be partial ortotal.

:. always totale,cept: when theground of fraud orinfluence forexample affectsonly certainportions of thewill.

I! INSTITUTION O* HEIRS(A0!-. 4F2BC)

INSTITUTION An act by virtue of which a testator

designates in his will the person orpersons who are to succeed him inhis property and transmissible rightsand obligations. (Art 4F)

!he proper test in order todetermine the validity of aninstitution of heir is the possibility offinally ascertaining the identity ofthe instituted heir by intrinsic orextrinsic evidence.

$RESU"$TIONS

1. $resu+3tion o( E5ualit 1eirsinstituted without designation ofshares shall inherit in equal parts.!his is limited only to the casewhere all of the heirs are of thesame class or uridical condition, andwhere there are compulsory heirsamong the heirs instituted, it shouldbe applied only to the disposablefree portion.

2. $resu+3tion o( Indi9idualit =henthe testator institutes some heirsindividually and others collectively,those collectively designated shall

be considered as individuallyinstituted, unless it clearly appearsthat the intention of the testatorwas otherwise.

3. $resu+3tion o( Si+ultaneit whenthe testator calls to the succession aperson and his children, they are alldeemed to have been institutedsimultaneously and not successively.

INSTITUTION )ASE- ON A *A&SE CAUSE.Article ;@=2

$!N!-L -%L!: !he statement of afalse cause for the institution of an heir

shall be considered as not written.

Reason9 ?enerosity of the testator isthe real cause of the testamentarydisposition.

!"/!P#ON:f it appears from the faceof the will that the testator would nothave made the institution had he 6nownthe falsity of the cause.

!,a*ple: =here the personinstituted is a total stranger to thetestator, it is obvious that the realcause of the testamentarydisposition is not the generosity ofthe testator but the fact itself whichturned out to be false.

RE,UISITES *OR THE ANNU&"ENT O*INSTITUTION O* HEIRS:. cause of institution of heirs must be

stated in will"#. cause must be shown to be false":. it must appear from the face of the

will that the testator would not have

made the institution had he 6nownthe falsity of the cause.

=here the one2sentence willinstitutes the petitioner as the sole,universal heir and preterits theparents of the testatrix, and itcontains no specific legacies orbequests, such universal institutionof petitioner, by itself, is void.ntestate succession ensues.



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MEMORYAIDINCIVILLAW

(Nuguid vs. Nuguid et al. 20 &/-44;)

$RETERITION(A0!. B4)

/mission in the testator%s will ofone, some, or all of the compulsoryheirs in the direct line, whetherliving at the time of the execution ofthe will or born after the death ofthe testator.

Re5uisites:. !he heir omitted must be a

compulsory heir in the direct line"

2. !he omission must be complete andtotal in character" and

:. !he compulsory heir omitted must

survive the testator.

There is no total o+ission8hen:

a. A devise8legacy has been givento the heir by the testator

b. A donation inter vivoshas beenpreviously given to the heir bythe testator" or

c. Anything is left from theinheritance which the heir mayget by way of intestacy.

NOTE: n the above cases, theremedy of the heir is completion oflegitime under Art. DFC, in case thevalue of the property received is lessthan the value of the legitime.

E((ects o( $reterition:. t annuls the institution of heir"

2. !he devises and legacies are validinsofar as they are not inofficious"and

:. f the omitted compulsory heir

should die before the testator, theinstitution shall be effectual,without preudice to the right ofrepresentation.

NOTE: n case of o*ission 7ithoutpreterition, the rule in Art. BB shouldbe followed. !he suggested alternatephrasing of r. !olentino to the saidarticle is9 8he share of the co*pulsorheir o*itted in a 7ill *ust +e firstta>en fro* the part of the estate notdisposed of + the 7ill if anC if that is

not sufficient so *uch as *a +enecessar *ust +e ta>en proportionall

fro* the shares of the heirs given tothe* + 7ill.9

$RETERITION -ISINHERITANCE

. deprivation of acompulsory heir ofhis legitime is tacit

. deprivation of acompulsory heir ofhis legitime isexpress.

#. may be voluntarybut the lawpresumes that it isinvoluntary

#. alwaysvoluntary.

:. law presumes

that there has beenmerely an oversightor mista6e on thepart of the testator.

:. done with a

legal cause.

4. omitted heir getsnot only his legitimebut also his share inthe free portion notdisposed of by wayof legacies8 devises.

4. if disinheritanceis not lawful,compulsory heir ismerely restored tohis legitime.

=here the deceased left nodescendants, legitimate orillegitimate, but she left forced heirsin the direct ascending lineLherparents, and her holographic willdoes not explicitly disinherit thembut simply omits them altogether,the case is one of preterition ofparents, not a case of ineffectivedisinheritance. (Nuguid vs. Nuguid20 &/- 44;)

NOTE: 'reterition of the survivingspouse (--) does not entirely annul the

institution of the heir since -- is not acompulsory heir in the direct line.1owever, since Article 4# protects thelegitime of the --, the institution ispartially annulled by reducing the rightsof the instituted heir to the extentnecessary to cover the legitime of --.(olentino)

E**ECT O* $RE-ECEASE22an heir who dies before the testatorshall transmit no right to his own heirs



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MEMORYAIDINCIVILLAW

(rule is absolute with respect to avoluntary heir)22what is transmitted to therepresentatives of compulsory heir is his

right to the legitime and not to the freeportionE**ECT O* INCA$ACIT#22A voluntary heir who is incapacitatedto succeed from testator shall transmitno right to his own heirs.22compulsory heir may be represented,but only with respect to his legitime

E**ECT O* RE$U-IATION22whether voluntary or compulsory, theheir who repudiates his inheritancecannot transmit any right to his own

heirs.

! SU)STITUTION O* HEIRS(A0!- B727F)

SU)STITUTION

!he act by which the testatordesignates the person or persons tota6e the place of the heir or heirsfirst instituted (!olentino). t may beconsidered as a subsidiary andconditional institution.

Kinds:1. Si+3le or Co++on (that which

ta6es place when the testatordesignates one or more persons tosubstitute the heirs8s instituted incase such heir8s should die beforehim, or should not wish, or should beincapacitated to accept theinheritance)

2. )rie( or Co+3endious9 +rief (thereare two or more persons designatedby the testator to substitute for only

one heir), co*pendious (one heir isdesignated to ta6e the place of twoor more heirs)

Instances 8hensubstitution ta?es 3lace:

a. instituted heirpredeceasesthe testator"

b. incapacit of theinstituted heir to succeed fromthe testator" and

c. repudiation of theinheritance.

E((ect o( substitution:

*eneral r"le: once the substitutionhas ta6en place, the substitute shallnot only ta6e over the share thatwould have passed to the institutedheir, but he shall be subect to thesame charges and conditionsimposed upon such instituted heir.Exceptions:() =hen the testator has expresslyto the contrary"(#) =hen the charges or conditionsare personally applicable only to theheir instituted.

1! *ideico++issarRe5uisites:

a. 5irst heir (fid"ciar#) called tothe succession.b. An obligation clearly imposedupon such first heir to preserve theproperty and to transmit it to thesecond heir.

c. -econd heir (fideicommissar#)to whom the property is transmittedby the first heir.

=ithout the obligation clearlyimposing upon the first heir thepreservation of the property and itstransmission to the second heir,there is no fideicommissarysubstitution (-a+adilla vs. / 334&/- 5)

NOTE:'ending transmission of property,the fiduciary is entitled to all the rightsof a usufructuary, although thefideicommissary is entitled to all therights of a na6ed owner.

&i+itations:a. -ubstitution must not go beyondone degree from the heir originallyinstituted.

b. 8egree9 means degree ofrelationship.c. 5iduciary and fideicommissarymust be living at the time of thedeath of the testator.d. -ubstitution must not burden thelegitime of compulsory heirs.



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e. -ubstitution must be madeexpressly.

A fideicommissarysubstitution is void if the first heir is

not related in the stdegree to thesecond heir (-a*irez vs. da. e-a*irez 222 &/- 0


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death unless the testator hasprovided otherwise.

"O-A& INSTITUTION .INSTITUCION SU)"O-O2

Attachment by the testator to aninstitution of heir, or to a devise orlegacy, of a statement of the9

a. o+ectof the institution"

b. application of the property leftby testator" or

c. chargeimposed by him.

NOTES:

=hen in doubt as to whether there isa condition or merely a *odeconsider the same as *ode.

=hen in doubt as to whether there isa *ode or merely a suggestionconsider same only as a suggestion.

!he Mcondition% suspends but doesnot obligate" the Mmode% o+ligatesbut does not suspend (for he whoinherits with a mode is already anheir" one who inherits conditionallyis not yet an heir)

-OCTRINE o( CONSTRUCTI7E*U&*I&&"ENT: =hen without the faultof the fault of the heir, an institucionsub modo cannot ta6e effect in theexact manner stated by the testator, itshall be complied with in a manner mostanalogous to and in conformity with hiswishes.

NOTE:

f the condition is casual, the

doctrine is not applicable since the

fulfillment of the event whichconstitutes the condition isindependent of the will of the heir,devisee8legatee. f the condition ispotestative or mixed, the doctrine isapplicable.

&! &EGITI"ES (A0!- C D4)&EGITI"E

!hat part of the testator%s propertywhich he cannot dispose of becausethe law has reserved it for certain

heirs who are, therefore, calledcompulsory heirs.

!he course of action to enforce alegitime accrues upon the death ofthe donor2decedent since it is onlythen that the net estate may beascertained and on which basis, thelegitime may be determined.(#*perial vs. / 326 &/- 323)

NOTE: /ne half of the estate is alwaysreserved for the primary or secondarycompulsory heirs. !he other half is what

is termed under the +** as the ;freeportion< from which the legitime of theconcurring compulsory heirs are ta6en.!his ;free portion< is different from the;disposable free portion< over which thetestator has testamentary control. !he;disposable free portion< is that whichremains after the legitime has beencovered.

CO"$U&SOR# HEIRS .CH2

!hose for whom the legitime is

reserved by law, and who succeedwhether the testator li6es it or not.!hey cannot be deprived by thetestator of their legitime e,cept bydisinheritance properly effected.

Kinds o( Co+3ulsor Heirs:

1. $ri+ar those who haveprecedence over and e,clude other*1. .g. $*.

2. Secondar those who succeed onlyin the a+sence of the pri*ar *1..g. $'A or '.

3. Concurring those who succeedtogether with the primary orsecondary *1. .g. * and --.

I( the testator isa &EGITI"ATE

3erson

I( the testator isan I&&EGITI"ATE

3erson

. $egitimatechildren anddescendants($*)

. $egitimatechildren anddescendants($*)



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San Beda College of Law7"

MEMORYAIDINCIVILLAW

#. n default ofthe foregoing,legitimateparents and

ascendants($'A)

#. llegitimatechildren anddescendants(*)

:. -urvivingspouse (--)

:. n default ofthe foregoing,illegitimate

parents onl(')

4. llegitimatechildren anddescendants(*)

4. -urvivingspouse (--)

NOTES:

-ee -ections 7 I of 0.A. BB#.

@y force of the 5amily *ode,

adopted children are deemedlegitimate children of the adopters.

@y force of the 5amily *ode, *

without distinction and so long astheir filiation is duly established orproved in accordance with law, areeach entitled to 8# of the legitimeof a $*, thus abrogating the B94 ratiobetween ;natural< and ;non2natural< *.

RU&ES:. irect descending line

a. 0ule of preference between linesb. 0ule of proximity

c. 0ight of representation adinfinitu* in case of predecease,incapacity, or disinheritance ($*9$ only" *9 both $ and )

d. f all the $* repudiate theirlegitime, the next generation of

$ succeed in their own right#. irect ascending line

a. 0ule of division by linesb. 0ule of equal division

:. +on2impairment of legitime

TA)&E O* &EGITI"ES-033/0 $?!& +/!-

$* N ivide by theO of $*,whether theysurvive alone

or withconcurring*1.

$*--

NP

# or more$*--

Nequal to $*

$**

NN of $*

$*--*

NPN of $*

All theconcurring *1get from thehalf freeportion, theshare of the-- havingpreferenceover that ofthe *, whoseshare maysufferreduction prorata because

there is nopreferenceamongthemselves.

$'A N =hether theysurvive aloneor withconcurring*1.

$'A*

NP

* succeed inthe P inequal shares.

$'A--

NP

$'A--*

N8P

* N ivide equallyamong the *.

--*

8:8:



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San Beda College of Law7#

MEMORYAIDINCIVILLAW

-- N 8: ifmarriage is inarticulomortis and

deceasedspouse dieswithin : mos.after themarriage.

' N

'Any child

2excluded2t depends

*hildreninherit in theamountsestablished inthe foregoing

rules.

'--

PP

/nly theparents are of* areincluded.?randparentsand otherascendantsare excluded.

STE$S IN -ETER"INING THE &EGITI"EO* CO"$U&SOR# HEIRS:

1. etermination of the ross -al"eofthe estate at the time of the deathof the testator"

2. etermination of all de.ts andc/ares which are chargeableagainst the estate"

:. etermination of the net value ofthe estate by deducting all the debtsand charges from the gross value ofthe estate"

4.Collationor addition of the value ofall donations inter vivos to the netvalue of the estate"

5. etermination of the amount of theleitimefrom the total thus found"

6. Imp"tation of the value of alldonations inter vivos made tocompulsory heirs against theirlegitime and of the value of alldonations inter vivos made tostrangers against the disposable freeportion and restoration to the

hereditary estate if the donation isinofficious" and

7. Distri."tion of the residue of theestate in accordance with the will of

the testator

CO&&ATION. 5ictitious mathematical process of

adding the value of the thingdonated to the net value of thehereditary estate (Art. DF and Arts.FC2F77).

#. Act of charging or imputing suchvalue against the legitime of thecompulsory heir to whom the thingwas donated (Arts. FC2F77).

:. Actual act of restoring to the

hereditary estate that part of thedonation which is inofficious in ordernot to impair the legitime ofcompulsory heirs.

RESER7A TRONCA&(A0! D)

!he reservation by virtue of whichan ascendant who inherits from hisdescendant any property which thelatter may have acquired bygratuitous title from anotherascendant or a brother or sister, is

obliged to reserve such property forthe benefit of relatives who arewithin the :rddegree and who belongto the line from which such propertycame.

t constitutes as an e,ception toboth the system of legitime and theorder of intestate succession.

$ur3oses:. !o reserve certain property in favor

of certain persons"#. !o prevent persons outside a family

from acquiring, by some chance or

accident, property which otherwisewould have remained with the saidfamily"

:. !o maintain a separation betweenpaternal and maternal lines.

NOTE: *onsidering the rationale forreserva troncal which is to ultimatelyrevert ownership of property thatoriginally belongs to a line of relativesbut which by force of law passes to adifferent line, the reserva would have noreason to arise where the ascendants



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San Beda College of Law7$

MEMORYAIDINCIVILLAW

who acquire the property themselvesbelong to the line of relatives fromwhich the property was, in turn,acquired by the descendant.

Re5uisites:

1. !he property should have beenacquired by operation of law by anascendant (reser-ista) from hisdescendant (proposit"s) upon thedeath of the latter.

2. !he property should have beenpreviously acquired by gratuitoustitle by the descendant (proposit"s)from another ascendant or from abrother or sister (oriinator).

3.!he descendant (proposit"s) shouldhave died without any legitimateissue in the direct descending linewho could inherit from him.

$ersonal ele+ents:. Oriinator the ascendant, or

brother or sister from whom thepropositushad acquired the propertyby gratuitous title (e.g. donation,remission, testate or intestatesuccession)"

#. +roposit"s the descendant who died

and from whose death the reservistain turn had acquired the property byoperation of law (e.g. by way oflegitime or intestate succession). !heso2called ;arbiter of the fate of thereserva troncal.

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San Beda Reviewer Succession - Civil Law