Succession Reviewer.doc

8/10/2019 Succession Reviewer.doc

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SUCCESSION

A mode of acquisition by

virtue of which the property,rights and obligations to the

extent of the value of the

inheritance, of a person aretransmitted through his

death to another or others

either by his will or by

operation of law.(Art. 774)

Kinds:

. !estamentary or !estacy (by

will)"#. $egal or intestacy (by operation

of law based on the decedent%s

presumed will)"

&. 'ixed (artly !estamentary and$egal)" and

4. artition inter vivos (to a certain

degree).

Elements:

. *+**! (sub-ective element)

#. /++*01 (sub-ective

element)a. 2eirs 3 those who are called

to the whole or to an aliquot

portion of the inheritanceeither by will or by operationof law

) oluntary 5 those

instituted by the testator

in his will, to succeed tothe inheritance or the

portion thereof of which

the testator can freely

dispose.#) +ompulsory or 6orced 5

those who succeed by

force of law to some

portion of theinheritance, in an amount

predetermined by law,

nown as the legitime.

&) $egal or 8ntestate 5 thosewho succeed to the

estate of the decedent

who dies without a valid

will, or to the portion ofsuch estate not disposed

of by will.b. evisees or legatees 3

persons to whom gifts ofreal or personal property are

respectively given by virtue

of a will

NOTE: !he distinctions

between heirs anddevisees9legatees are

significant in these cases:

. reterition

(pretermission)#. 8mperfect disinheritance

&. After3acquired properties

4. Acceptance or non3

repudiation of thesuccessional rights.

&. *A!2 06 !2* *+**!

(casual element)

'oment when rights to succeed

are transmitted (Art 777)

2owever, a person may be

;presumed< dead for thepurpose of opening hissuccession (see rules on

presumptive death). 8n this

case, succession is only of

provisional character becausethere is always the chance that

the absentee may still be alive.

4. 8nheritance (ob-ective

element)"

NOTE:=hatever may be the timewhen actual transmission taes

place, succession taes place inany event at the moment of the

decedent%s death. (Lorenzo vs.

Posadas 64 Phil 353)

SUCCESSION INHERITA

NCE

1efers to the

legal mode

by whichinheritance is

transmitted

to the

personsentitled to it

1efers to the

universality or

entirety of theproperty,

rights and

obligations of

a person whodied

Inheritance includes:. 10*1!>, 18?2! A

0@$8?A!80 NO

!"#N$%#&'! @> *A!2

General rules on rights and

obligations extinguished bhis death

a) 1ights which are purel

personal are by their natureand purpose intrans*issi+le

for they are e,tinguished +

death(e.g. those relating to


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civil personality, family

rights, discharge of office).b) 1ights which arepatri*onial

or relating to property are

generally part of inheritance

as they are not e,tinguished+ death.

c) -ights of o+ligations are by

nature trans*issi+le and

may constitute part ofinheritance both with respect

to the rights of the creditor

and as regards to the

obligations of the debtor.

#. A$$ =28+2 2A* //-%!

!2*1*!0 8+* !2* 0*8?

06 /++*80 (rticle 012/ivil /ode)

I!TESTA"ENTAR# SUCCESSION

A! CONCE$T

%I&& ' an act whereby a person ispermitted, with the formalities

prescribed by law, to control to a

certain degree the disposition ofhis estate to tae effect after hisdeath (Art. 7&)

NOTE: !hus, a document that

does not purport to dispose ofone%s estate either by the

institution of heirs or designation of

devisees9legatees or, indirectly, by

effecting a disinheritance, is not tobe governed by the law on

testamentary succession but by

some other applicable laws.

Kinds o( %ills:

. otarial or ordinary

#. 2olographic

Characteristics o( a %ill:

. /8$A!*1A$

#. !18+!$> *10A$ A+! 3 !he

disposition of property is solelydependent upon the testator.

NOTE: !he following acts 'A>

0! be left to the discretion of athird person: (rticle 015 010

/ivil /ode)

duration or efficacy of the

designation of heirs, devisees orlegatees"

determination of the portions which

they are to tae, when referredto by name" and

determination of whether or not

the testamentary disposition is

to be operative.

NOTE: 2owever, the following acts

'A> be entrusted to a third

person: (rticle 016 /ivil /ode)a. distribution of specific

property or sums of money

that he may leave in general to

specified classes or causes"and

b. designation of the persons,

institutions or establishments to

which such property or sumsare to be given or applied.

&. 61** A 0$/!A1> A+! 5

Any vice affecting the testamentary

freedom can cause thedisallowance of the will.

4. 601'A$ A 0$*' A+! 5

!he formalities are essential for the

validity of the will.B. A+! '01!8 +A/A

C. A'@/$A!01> A 1*0+A@$*

/18? !2* !*!A!01%$86*!8'*7. 888/A$ A+! 5 !wo or more

persons cannot mae a singleoint

will, either for their reciprocal

benefit or for another person.2owever, separate or individually

executed wills, although containing

reciprocal provisions (*utualwills),

are not prohibited, sub-ect to therule on disposicion captatoria.

. 808!80 06 10*1!>

)! INTER$RETATION O* %I&&S(A1!. 737D#)

!he testator%s intent (ani*us

testandi), as well as giving effect to

such intent, is primordial. 8t issometimes said that the supreme

law in succession is the intent of

the testator. All rules of

construction are designed toascertain and give effect to that

intention. 8t is only when theintention of the testator is contrary

to law, morals, or public policy thatit cannot be given effect.

8n case of doubt, that

interpretation by which thedisposition is to be operative shall


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be preferred. !hat construction is

to be adopted which will sustainand uphold the will in all its parts,

if it can be done consistently with

the established rules of law.

Kinds o( A+biguities: (Article

7C)

. $A!*! 01 8!188+

A'@8?/8!8* 5 that which doesnot appear on the face of the will

and is discovered only by extrinsic

evidence.

#. A!*! 01 *E!188+A'@8?/8!8* 5 that which appears

on the face of the will itself

NOTES: !here is no distinction between

patent and latent ambiguities,

in so far as the admissibility of

parol or extrinsic evidence to

aid testamentary disposition isconcerned.

*xtrinsic evidence to explain

ambiguities in a will cannot

include oral declarations of the

testator as to his intention.

!he validity of a will as to itsform depends upon theobservance of law in force at

the time it is made. (Art. 7DB).

8f a law different from the law in

force at the time of the

execution of the will goes intoeffect before or after the death

of the testator, such a law shall

not affect the validity of the

will, provided that such will was

duly executed 8n accordancewith the formalities prescribed

by law in force at the time it

was made.

A*TER'AC,UIRE- $RO$ERT#

.Art! /012

Gen! Rule: roperty acquiredduring the period between the

execution of the will and the death

of the testator is 0! included

among the property disposed of.

Exce3tion: =hen a contraryintention expressly appears in the

will

NOTE: !his rule applies only to

legacies and devises and not to

institution of heirs.

C! TESTA"ENTAR# CA$ACIT#4 refers to the ability as well as the

power to mae a will.

3 must be present at the time of

the execution of the will.

Re5uisites:

1. At least years of age

2. 0f sound mind, i.e., the abilityto now:

a. the nature of the estate to

be disposed of"

b. the proper o+ects of hisbounty" and

c. the character of the

testa*entar act.

NOTE:!he lawpresu*esthat the

testator is of sound mind, /$*:

a. he, one month or less, before

maing his will, was publicly nownto be insane" or

b. was under guardianship at the

time of maing his will. (orres

and Lopez de ueno vs. Lopez 41Phil 00)

8n both cases, the burden of

proving sanity is cast uponproponents of the will.

Effect of Certain Infirmities:

. mere senility or infirmity of old

age does not necessarily implythat a person lacs

testamentary capacity"

#. physical infirmity or disease is

not inconsistent withtestamentary capacity"

&. persons suffering from idiocy

(those congenitally deficient inintellect), imbecility (those whoare mentally deficient as a

result of disease), and senile

dementia (peculiar decay of the

mental faculties whereby theperson afflicted is reduced to

second childhood) do not

possess the necessary mental

capacity to mae a will"4. an insane delusion which will

render one incapable of mainga will may be defined as a belief

in things which do not exist,and which no rational mind

would believe to exist"

B. if the insane delusion touches to

sub-ect matter of the will,


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testamentary disposition is

void.C. a deaf3mute and blind person

can mae a will (i.e. Art. F73

F). A blind man with a sound

and disposing mind can mae aholographic will.

7. an intoxicated person or person

under the influence of drugs

may mae a will as there is nocomplete loss of understanding.

!,ception: where the testator

has used intoxicating liquor or

drugs excessively to such anextent as to impair his mind, so

that at the time the will is

executed, he does not now the

extent and value of hisproperty, or the names of

persons who are the natural

ob-ects of his bounty, the

instrument thus executed willbe denied probate for lac of

testamentary capacity.

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

CO""ON *OR"A&ITIES. *very will must be in writing"and

#. *xecuted in a language or

dialect nown to the testator.

S$ECIA& *OR"A&ITIES

I! NOTARIAL OR ORDINARY

WILL

a. /@+18!80 5 made at theend thereof by the testator

himself or by the testatorGs

name written by some otherperson in his presence and byhis express direction"

&u+scription refers to the

*anual act of testator and

also of his instru*ental7itnesses of affi,ing their

signature to the instru*ent.

b. A!!*!A!80 A

/@+18!80 3 (evidenced +an 8attestation clause9)by & or

more credible witnesses in thepresence of the testator and of

one another"

Attestation consists in the

act of witnesses of

witnessing the execution of

the will in order to see and

tae note mentally that such

will has been executed inaccordance with

requirements prescribed by

law.

ATTESTATI

ON

SU)SCRI$T

ION

. an act of

the senses

. an act of

the hand

#. mental act #.

mechanical

act

&. purpose is

to render

available

proof

duringprobate of

will

&. purpose is

identification

c. 'A1?8A$ 8?A!/1* 5

affixed by the testator or the

person requested by him towrite his name and the

instrumental witnesses of the

will on each and every page

thereof, except the last, on the

left margin"

Exce3tions to the rule that all

o( the 3ages o( the 8ill shallha9e to be signed on the le(t

+argin b the testator and

8itnesses::

() in the last page, when thewill consists of two or more

pages"

(#) when the will consists of

only one page"(&) when the will consists of

two pages, the first of which

contains all the testamentary

dispositions and is signed at thebottom by the testator and the

witnesses and the second

contains only the attestationclause duly signed at the

bottom by the witnesses.

!he inadvertent failure of one

witness to affix his signature toone page of a testament, due to

the simultaneous lifting of two

pages in the course of signing,

is not per se sufficient to -ustifydenial of probate (#casiano vs.

#casiano ## &/- 4).


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d. A?* /'@*18? 5 =rittencorrelatively in letters placed on

the upper part of each page"

NOTE: !his is not necessary whenall of the dispositive parts of a will

are written on one sheet only.

e. A+H0=$*?'*! 5 onebefore a notary public by the

testator and the instrumental

witnesses.

NOTE: !he notary public before

whom the will was acnowledged

cannot be considered as the third

instrumental witness since hecannot acnowledge before himself

his having signed the will. 8f the

third witness were the notary

public himself, he would have toavow, assent, or admit his having

signed the will in front of himself.

!o allow such would have the effect

of having only two attestingwitnesses to the will which would

be in contravention of Arts. FB

and FC. (/ruz vs. illasor 54&/- 32)

"ANNER O* SIGNING:

!he use of any signature, mars

or design intended by thetestator to authenticate renders

the will sufficiently signed by

the testator.

A signature by mar will be

sufficient even if at the time ofplacing it, the testator new

how to write and is able to do

so.

8t is sufficiently signed by

writing his initials, or his first

name, or he may use even an

assumed name.

A complete signature is not

essential to the validity of a will,provided the part of the name

written was affixed to the

instrument with intent to

execute it as a will.

ATTESTATION C&AUSE

3 memorandum or record of factswherein the witnesses certify that

the will has been executed before

them, and that it has been

executed in accordance with the

formalities prescribed by law.

Absence of this clause will

render the will a nullity.

8t must state the followingESSENTIAL FACTS:

2. the number of pages used

upon which the will is

written"20=**1, even if number of

pages is omitted in the A+ @/! if

there is an acnowledgment clause

which states the number of pagesor the will itself mentioned such

number of pages, it may still be

considered valid applying the

$iberal 8nterpretation of the law.(a+uada vs. -osal)

. the fact that the testator

signed the will and everypage thereof, or caused

some other person to write

his name, under his express

direction, in the presence ofthe instrumental witnesses"

=hen the testator expressly

caused another to sign theformer%s name, this fact must

be recited in the attestationclause. 0therwise, the will is

fatally defective. ($arcia vs.

Lacuesta ;< Phil 41;)

3. that the witnesses witnessed

and signed the will and all

the pages thereof in the

presence of the testator andof one another.

TEST O* $RESENCE: ot

whether they actually saw eachother sign, but whether they

might have seen each other

sign had they chosen to do so

considering their mental andphysical condition and position

with relation to each other at

the moment of inscription of

each signature. (=a+oneta vs.

$ustilo)

8n the case of an ordinary or

attested will, its attestationclause need not +e 7ritten in a

language or dialect >no7n to

the testator since it does not


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form part of the testamentary

disposition.

!he language used in the

attestation clause liewise need

not even +e >no7n to the

attesting 7itnesses. Art. FBmerely requires that, in such a

case, the attestation clause

shall be interpreted to said

witnesses. (/aneda vs. / &/- 012)

E((ects o( de(ects or

i+3er(ections in the AttestationClause:

8f the defect of the attestation

clause goes into the very

essence of the clause itself orconsists in the omission of one,some, or all of the essential

facts, and such omission cannot

be cured by an examination of

the will itself, the defect issubstantial in character, as a

consequence of which the will is

invalidated.

2owever, 8n the absence of bad

faith, forgery, fraud, or undueand improper pressure and

influence, defects andimperfections in the form of

attestation or in the language

used therein shall not render

the will invalid if it is provedthat the will was in fact

executed and attested in

substantial compliance with Art.

FB (for*al re?uire*ents). !hisis nown as the -OCTRINE O*

&I)ERA& INTER$RETATION

(Art. FD)

$ur3oses o( re5uiring 8itness

to attest and to subscribe to a

8ill:. identification of the instrument

#. protection of the testator from

fraud and deception

&. the ascertainment of the

testamentary capacity of thetestator.

NOTE: Certain points toconsider(olentino)

. 'ere nowledge by testator

that another is signing, and

acquiescing in it, there being

no express direction, is 0!sufficient.

#. ot required that the name of

the person who writes the

testator%s name should alsoappear on the will" enough that

testator%s name is written.

&. 8f the required numbers of

attesting witness arecompetent, the fact that an

additional witness, who was

incompetent also attested to

the will, cannot impair thevalidity.

4. 8mmaterial in what order the

acts are performed provided the

signature or acnowledgmentby the testator and the

attestation of the witnesses be

accomplished in one occasion,

and as part of one transaction.B. !he law refers topaeand not

to sheet or leaf or folio, so

every page used in the will

should be signed on the leftmargin.

C. An attestation clause need be

signed 0$> by the witnessesand not by the testator as it is adeclaration made by the

witnesses.

7. date of !ill:

a. ordinar 7ill: not anessential part"

b. holographic 7ill: an essential

part.

. 6ailure or error to state theplace of exec"tion will not

invalidate the will.

D. igning of a will by the testatorand witnesses andacnowledgment before a

notary public, need not be a

single act.

F. Testamentar# capacit#must also exist at the time of

acnowledgment.

A--ITIONA& RE,UIRE"ENTS

*OR S$ECIA& CASES$% Deaf or deaf&m"te testator:

a) personal reading of the will,if able to do so" 01

b) if not possible, designationof # persons to read the will

and communicate to him, in

some practicable manner,

the contents thereof. (ArticleF7)


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'% (lind testator:

ouble3reading requirement:

a. first, by one of thesubscribing witnesses, A

+. second, by the notary public

before whom the will isacnowledged. (rticle 1


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E((ects o( 8ords 8ritten banother and inserted in the

8ords 8ritten b the testator:

a. 8f the insertion was made after

the e,ecution of the will, but7ithout the consent of the

testator, such insertion is

considered as not 8ritten,

because the validity of the willcannot be defeated by the

malice or caprice of third

person.

b. 8f the insertion after thee,ecution of the will was 7ith

the consentof the testator, the

8ill re+ains 9alid but the

insertion is 9oid.c. 8f the insertion after the

e,ecution is validated + the

testator + his signature

thereon, then the insertionbecomes part of the will, and

the entire 8ill beco+es 9oid,

because of failure to comply

with the requirement that itmust be wholly written by the

testator.

d. 8f the insertion made by a thirdperson is madeconte*poraneous to the

e,ecutionof the will, then the

8ill is 9oid because it is not

written entirely by the testator.

$robate o( Hologra3hic %ill

. 8f %N/ON!&! requires that

at least witness who nowsthe handwriting and signature

of the testator explicitly declare

that the will and signature arein the handwriting of thetestator" if no witness, expert

testimony may be resorted to.

#. 8f /ON!&! requires at least

& of such credible witnesses, ifnone expert witness.

NOTE: =here the testator himself

petitions for the probate of hisholographic will and no contest is

file, the fact that he affirms thatthe holographic will and the

signature are in his ownhandwriting, shall be sufficient

evidence thereof. 8f the

holographic will is contested, the

burden of disproving the

genuineness and due execution

thereof shall be on the contestant.

A photostatic or xerox copy of a

lost or destroyed holographic

will may be admitted becausethe authenticity of thehandwriting of the deceased can

be determined by the probate

court, as comparison can be

made with the standard writingsof the testator. (-odelas vs.

ranza 22; &/- 26)

GO7ERNING &A% ON*OR"A&ITIES

$% As to time:

!he validity of a will as to itsfor* depends upon theobservance of the la8 in (orce

at the ti+e it is +ade. 8ts

intrinsic validit, however, is

-udged at the ti+e o( thedecedent>s death b the la8

o( his nationalit.

! As to place:a. 6ilipino testator executing a will

in the hilippines: hilippine lawb. 6ilipino testator executing a will

outside of the hilippines: either) !he law of the country in

which it is executed" or

#) !he law of the hilippines.

c. Alien testator executing a will inthe hilippines: either

) !he law of the hilippines" or

#) !he law of the country of

which he is a citiJen orsub-ect.

d. Alien testator executing a will

outside of the hilippines: either

) !he law of the place where itis executed" or

#) !he law of the place in which

he resides" or

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

As3ects o( the 8ill go9erned b

National &a8 o( the -ecedent

(Article F&D and Article C +ivil+ode)

a. 0rder of succession

b. Amount of successional rightsc. 8ntrinsic validity

d. +apacity to succeed


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Koint will 5 a single testamentary

instrument which contains the willsof two or more persons, -ointly

executed by them, either for their

reciprocal benefit or for the benefit

of a third person33will of # or more persons is made

in the same instrument and is

-ointly signed by them

'utual wills 5 wills executed

pursuant to an agreement between

two or more persons to dispose of

their property in a particularmanner, each in consideration of

the other

33separate wills of # persons, which

are reciprocal in their provisions.

1eciprocal wills3 wills in which the

testators name each other as

beneficiaries under similartestamentary plans

NOTE: A will that is both -oint and

mutual is one executed -ointly bytwo or more persons, the

provisions of which are reciprocal

and which shows on its face thatthe devises are made inconsideration of the other. uch is

prohibited.

Reasons:. will is purely personal and

unilateral act

#. contrary to the revocable

character of a will&. may expose the testator to

undue influence, and may even

induce one of the testators toill the other.

NOTE: Koint wills executed by

6ilipinos in a foreign country shall

not be valid in the hilippines, eventhough authoriJed by the foreign

country in which they may have

been executed (rticle 12; /ivil

/ode).!his prohibition is

applicable only in -oint willsexecuted by @ilipinos in a foreign

country" it does 0! A$> to -ointwills executed by aliens.

E! CO-ICI& AN-

INCOR$ORATION )#RE*ERENCE

CO-ICI&

A supplement or addition to a

will, made after the execution ofa will and annexed to be taen

as a part thereof, by which any

disposition made in the original

will is explained, added to, oraltered. (Article #B)

NOTE: !o be effective, it must be

executed as in the case of a will.

8ts execution has the effect ofrepublishing the will as modified.

INCOR$ORATION )#RE*ERENCE(A1! #7)

+ontemplates only lists of

properties, boos of accounts,and inventories.

rovisions which are in the

nature of testamentary

dispositions must be contained

in the will itself.

Re5uisites (or a 9alidincor3oration b re(erence:

(A1! #7)

to in the will must be in

existence at the time of the

execution of the will"! !he will must clearly describe

and identify the same, stating

among other things the number

of pages thereof"1! 8t must be identified by clear

and satisfactory proof as the

document or paper referred to

therein"?! 8t must be signed by the

testator and the witnesses on

each and every page, except in

case of voluminous boos ofaccount or inventories.

*! RE7OCATION O* %I&&S AN-

TESTA"ENTAR# -IS$OSITIONS

RE7OCATION

An act of the mind, terminating

the potential capacity of the willto operate at the death of the

testator, manifested by some

outward or visible act or sign,


11/36

symbolic thereof. uch right to

revoe a will cannotbe waivedor restricted.

&A%S %HICH GO7ERN

RE7OCATION (A1! #D)

the hilippines, whether the

testator is do*iciled in the

Philippines or in so*e othercountr, it is valid when it is in

accordance with the la8s o(

the $hili33ines

! 8f the revocation taes placeoutside the hilippines, by a

testator 7ho is do*iciled in the

Philippines, it is valid when it is

in accordance with the la8s o(the $hili33ines

&. 1evocation done outside the

hilippines, by a testator 7ho

does not have his do*icile inthis countr, is valid when it is

done according to the:

a. la8s o( the 3lace 8here

the 8ill 8as +ade, orb. la8s o( the 3lace in 8hich

the testator had his

do+icile at the ti+e o(re9ocation"

"O-ES O* RE7OCATION (A1!

&F)

1. @y implication of law:

a. legal separation revoes

testamentary provisions in

favor of the offending

spouse"

b. preterition revoes the

institution of heir"

c. -udicial action for recovery ofdebt revoes a legacy ofcredit9remission of debt"

d. transformation, alienation,

or loss of bequeathed

property revoes a legacy ofsuch property"

e. act of unworthiness by an

heir, devisee9legatee

revoes testamentaryprovisions in his favor"

f. if both spouses of thesubsequent marriage acted

in bad faith, said marriageshall be void ab initio and

testamentary dispositions

made by one in favor of the

other are revoed by

operation of law (Art. 44,

6amily +ode)" and

g. void ab initio or annulled

marriages revoe

testamentary dispositions

made by one spouse in favorof the other (Art. BF, 6amily

+ode).

#. @y some will, codicil, or other

writing, executed as provided incase of wills, which may either

be:

a. *xpress 5 when there is a

revocatory clause expresslyrevoing the previous will or

a part thereof

b. 8mplied 5 when the

provisions thereof arepartially or entirely

inconsistent with those of

the previous will

NOTE: =hile express revocationmay be effected by a subsequent

will, or a codicil, or a

nontestamentary writing executed

as provided in case of wills, impliedrevocation may be effected only by

either a subsequent will, or a

codicil.

&. @y burning, tearing, cancelling,

or obliterating the will.

Re5uisites:

a. testamentary capacity at thetime of performing the act of

destruction"

b. intent to revoe (animus

revocandi)"

c. actual physical act of

destruction"

d. completion of the sub-ectivephase" and

e. performed by the testator

himself or by some other

person in his presence and

express direction (!2* $8! 8 *E+$/8*.)

NOTE: !he act of revocation is a

personal act of the testator. 2ecannot delegate to an agent the

authority to do the act for him.Another person, however, may be

selected by him as an instrumentand directed to do the revocatory

acts in his presence. A destruction

not accomplished in the testator%s

presence is an ineffectiverevocation of the will.


12/36

-OCTRINE O* $RESU"E-RE7OCATION

=henever it is established that

the testator had in his

possession or had ready accessto the will, but upon his death it

cannot be found or located, the

presumption arises that it must

have been revoed by him byan overt act.

=here it is shown that the will

was in custody of the testator

after its execution, and

subsequently, it was foundamong the testator%s effects

after his death in such a state

of mutilation, cancellation orobliteration as represents asufficient act of revocation, it

will be presumed in the absence

of evidence to the contrary, that

such act was performed by thetestator with the intention of

revoing the will.

-OCTRINE O* -E$EN-ENTRE&ATI7E RE7OCATION (A1!

) A revocation sub-ect to a

condition does not revoe a willunless and until the condition

occurs. !hus, where a testator

;revoes< a will with the proven

intention that he would executeanother will, his failure to

validly mae a latter will would

permit the allowance of the

earlier will.

=here the act of destruction is

connected with the maing of

another will so as fairly to raise

the inference that the testatormeant the revocation of the old

to depend upon the efficacy of

the new disposition intended to

be substituted, the revocationwill be conditional and

dependent upon the efficacy of

the new disposition" and if for

any reason, the new willintended to be made as a

substitute is inoperative, the

revocation fails and the originalwill remains in full force (da.

e 'olo vs. 'olo DF hil &7).

Re9ocation b +ista@e

A revocation of a will based on

a false cause or an illegal causeis null and void. !hus, where a

testator by a codicil or later will,

expressly grounding suchrevocation on the assumption of

fact which turns out to be false,

as where it is stated that the

legatees9devisees namedtherein are dead, when in fact,

they are living, the revocation

does not tae effect.

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

contained in a previous will

which is void as to its form, orhe executes a codicil

(constructive) to his will.

8ts purpose is to cure the will of

its formal defects.

NOTES: !o republish a will void as to its

for* all the dispositions must

be reproduced or copied in thenew or subsequent will"

!o republish a will valid as to its

for* +ut alread revo>ed the

execution of a codicil which

maes reference to the revoed

will is sufficient.

E((ects o( Re3ublication b9irtue o( a Codicil:

. +odicil revives the previous will#. !he old will is republished as of

the date of the codicilL maes

it spea, as it were, from the

new and later date.&. A will republished by a codicil is

governed by a statute enacted

to the execution of the will, but

which was operative when thecodicil was executed.

RE$U)&ICAT

ION

RE7I7A&

. !aes place

by an act of

the testator

. !aes place

by operation of

law.


13/36

#. +orrects

extrinsic andintrinsic

defects.

#. 1estores a

revoed will

RE7I7A&

!he restoration to validity of a

will previously revoed by

operation of law (implied

revocation).

$RINCI$&E O* INSTANTER

!he e,press revocation of the

first will renders it void becausethe revocatory clause of the

second will, not being

testamentary in character,

operates to revoe the previouswill instantly upon the execution

of the will containing it.

NOTE: 8n i*plied revocation, the

first will is not instantly revoed bythe second will because the

inconsistent testamentary

dispositions of the latter do not

tae 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

mandatorily required for the

purpose of establishing thevalidity of a will.

!he statute of limitations is not

applicable to probate of wills.

,uestions deter+inable b the3robate court: (8+*)

. identity of the will"

#. testamentary capacity of the

testator at the time of theexecution of the will" and

&. due execution of the will.

$!N!-L -%L!: 8n probate

proceeding, the court%s area of

inquiry is limited to an examination

of, and resolution on the extrinsic

validity if the will, the dueexecution thereof, the testatrix%s

testamentary capacity and the

compliance with the requisites or

solemnities prescribed by law. !heprobate court cannot inquire into

the intrinsic validity of

testamentary provisions.

!"/!P#ON: ractical

considerations, e.g. when the will

is intrinsically void on its face.

8n Nuguid vs Nuguid (20 &/-

44;) the upreme +ourt held

that, if the case were to be

remanded for probate of thewill, nothing will be gained. 0n

the contrary, this litigation

would be protracted. And for

aught that appears in therecord, in the event of probate

or if the court re-ects the will,

probability exists that the casewill come up once again beforeus on the same issue of the

intrinsic validity or nullity of the

will. 1*/$!: waste of time,

effort, expense, plus addedanxiety.

8n Nepo*uceno vs / (23;

&/-


14/36

=hen a will is declared void

because it has not been

executed in accordance with theformalities required by law, but

one of the intestate heirs, after

the settlement of the debts ofthe deceased, pays a legacy in

compliance with a clause in the

defective will, the payment is

effective and irrevocable(rticle 243


15/36

inherit in equal parts. !his is

limited only to the case whereall of the heirs are of the same

class or -uridical condition, and

where there are compulsory

heirs among the heirsinstituted, it should be applied

only to the disposable free

portion.

#. $resu+3tion o( Indi9idualit5 =hen the testator institutes

some heirs individually and

others collectively, those

collectively designated shall beconsidered as individually

instituted, unless it clearly

appears that the intention of

the testator was otherwise.&. $resu+3tion o( Si+ultaneit

5 when the testator calls to the

succession a person and his

children, they are all deemed tohave been instituted

simultaneously and not

successively.

INSTITUTION )ASE- ON A

*A&SE CAUSE .Article ;=2

$!N!-L -%L!: !he statement

of a false cause for the institutionof an heir shall be considered as

not written.

Reason: ?enerosity of the

testator is the real cause of the

testamentary disposition.

!"/!P#ON: 8f it appears from

the face of the will that the testator

would not have made the

institution had he nown the falsityof the cause.

!,a*ple: =here the person

instituted is a total stranger to

the testator, it is obvious that

the real cause of thetestamentary disposition is not

the generosity of the testator

but the fact itself which turned

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 befalse"

&. it must appear from the face of

the will that the testator would

not have made the institution

had he nown the falsity of thecause.

=here the one3sentence

will institutes the petitioner asthe sole, universal heir and

preterits the parents of the

testatrix, and it contains no

specific legacies or bequests,such universal institution of

petitioner, by itself, is void.

8ntestate succession ensues.

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

$RETERITION(A1!. B4)

0mission in the testator%s will ofone, some, or all of thecompulsory heirs in the direct

line, whether living at the time

of the execution of the will or

born after the death of thetestator.

Re5uisites:

. !he heir omitted must be acompulsory heir in the direct

line"#. !he omission must be complete

and total in character" and&. !he compulsory heir omitted

must survive the testator.

There is no total o+ission

8hen:

a. A devise9legacy has been

given to the heir by the

testatorb. A donation inter vivos has

been previously given to the

heir by the testator" or

c. Anything is left from theinheritance which the heir

may get by way of intestacy.

NOTE: 8n the above cases, theremedy of the heir is

completion of legitime under

Art. DFC, in case the value of

the property received is less

than the value of the legitime.

E((ects o( $reterition:

. 8t annuls the institution of heir"#. !he devises and legacies are

valid insofar as they are not

inofficious" and


16/36

&. 8f the omitted compulsory heir

should die before the testator,the institution shall be effectual,

without pre-udice to the right of

representation.

NOTE: 8n case of o*ission7ithout preterition, the rule in Art.

BB should be followed. !he

suggested alternate phrasing of r.

!olentino to the said article is:8he share of the co*pulsor heir

o*itted in a 7ill *ust +e first

ta>en fro* the part of the estate

not disposed of + the 7ill if anCif that is not sufficient so *uch as

*a +e necessar *ust +e ta>en

proportionall fro* the shares of

the heirs given to the* + 7ill.9

$RETERITIO

N

-ISINHERIT

ANCE

. deprivationof a

compulsory

heir of his

legitime istacit

. deprivationof a

compulsory

heir of his

legitime isexpress.

#. may bevoluntary but

the law

presumes that

it isinvoluntary

#. alwaysvoluntary.

&. lawpresumes that

there has been

merely an

oversight ormistae on the

part of the

testator.

&. done with alegal cause.

4. omitted heir

gets not onlyhis legitime

but also his

share in the

free portion

not disposedof by way of

legacies9

devises.

4. if

disinheritanceis not lawful,

compulsory

heir is merely

restored to

his legitime.

=here the deceased left no

descendants, legitimate or

illegitimate, but she left forced

heirs in the direct ascendinglineLher parents, and her

holographic will does not

explicitly disinherit them but

simply omits them altogether,the case is one of preterition of

parents, not a case of

ineffective disinheritance.

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

NOTE: reterition of the surviving

spouse () does not entirelyannul the institution of the heir

since is not a compulsory heir

in the direct line. 2owever, since

Article 4# protects the legitime ofthe , the institution is partially

annulled by reducing the rights of

the instituted heir to the extent

necessary to cover the legitime of. (olentino)

E**ECT O* $RE-ECEASE

33an heir who dies before thetestator shall transmit no right to

his own heirs (rule is absolute with

respect to a voluntary heir)33what is transmitted to therepresentatives of compulsory heir

is his right to the legitime and not

to the free portion

E**ECT O* INCA$ACIT#33A voluntary heir who is

incapacitated to succeed from

testator shall transmit no right to

his own heirs.33compulsory heir may be

represented, but only with respect

to his legitime

E**ECT O* RE$U-IATION

33whether voluntary or compulsory,

the heir who repudiates his

inheritance cannot transmit anyright to his own heirs.

B!

SU)STITUTION O* HEIRS

(A1! B737F)

SU)STITUTION !he act by which the testator

designates the person orpersons to tae the place of the

heir or heirs first instituted

(!olentino). 8t may be

considered as a subsidiary andconditional institution.


17/36

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

which taes place when the

testator designates one or

more persons to substitute theheirs9s instituted in case such

heir9s should die before him, or

should not wish, or should be

incapacitated to accept theinheritance)

#. )rie( or Co+3endious: +rief

(there are two or more persons

designated by the testator tosubstitute for only one heir),

co*pendious (one heir is

designated to tae the place of

two or more heirs)

Instances 8hen

substitution ta@es 3lace:

a. instituted heir predeceasesthe testator"

b. incapacit of the instituted

heir to succeed from the

testator" andc. repudiation of the

inheritance.

E((ect o( substitution:*eneral r"le: once the

substitution has taen place,

the substitute shall not only

tae over the share that wouldhave passed to the instituted

heir, but he shall be sub-ect to

the same charges and

conditions imposed upon suchinstituted heir.

Exceptions:

() =hen the testator has

expressly to the contrary"(#) =hen the charges or

conditions are personally

applicable only to the heir

instituted.

1!*ideico++issar

Re5uisites:

a. 6irst heir (fid"ciar#) called tothe succession.

b. An obligation clearly imposedupon such first heir to preserve

the property and to transmit itto the second heir.

c. econd heir

(fideicommissar#) to whom

the property is transmitted bythe first heir.

=ithout the obligation clearly

imposing upon the first heir the

preservation of the propertyand its transmission to the

second heir, there is no

fideicommissary substitution(-a+adilla vs. / 334 &/-

5)

NOTE: ending transmission ofproperty, the fiduciary is entitled to

all the rights of a usufructuary,

although the fideicommissary is

entitled to all the rights of a naedowner.

&i+itations:

a. ubstitution must not gobeyond one degree from the

heir originally instituted.

b. 8egree9 means degree of

relationship.c. 6iduciary and fideicommissary

must be living at the time of the

death of the testator.

d. ubstitution must not burdenthe legitime of compulsory

heirs.

e. ubstitution must be madeexpressly.

A fideicommissary substitution

is void if the first heir is not

related in the stdegree to the

second heir (-a*irez vs. da.

e -a*irez 222 &/- 0


18/36

whatsoever upon the legiti*e of

co*pulsor heirs.#. #*possi+le conditions and those

contrar to la7 or good

custo*sare presumed to have

been imposed erroneously orthrough oversight, thus, are

considered as not imposed.

&. An a+solute condition not to

contract a first marriage isalways void and will be

considered as not written.

4. An a+solute condition not to

contract a su+se?uentmarriageis generally void, unless

imposed upon a widow or

widower by the deceased

spouse or by the latter%sascendants or descendants.

*ven so, however, the legiti*e

of the surviving spouse cannot

+e i*paired.

An absolute condition not to

contract marriage when validly

imposed is resolutory incharacter. +onsequently, if the

testator institutes his wife as

heir sub-ect to the conditionthat she will never marry again,she immediately acquires a

right to the inheritance upon

the death of testator, but if she

violates the condition bycontracting a #ndmarriage, she

loses her right to said

inheritance.

NOTE: 2owever, the following

relative conditions regarding

marriage have been considered as

-alid and .indin:a. generic condition to contract

marriage"

b. specific condition to contract

marriage with a determinateperson" and

c. specific condition not to

contract marriage with a

determinate person.

B. Any disposition made upon thecondition that the heir shall

mae some provisions in his willin favor of the testator or of any

other person shall be void

(disposicion captatoria).

C. +onditions imposed by thetestator upon the heirs shall be

governed by the rules

established for conditionalobligations in all matters not

provided for by the law on

succession.

Kinds o( Conditions

. Potestative /ondition5 depends

exclusively upon the will of the

heir, devisee, or legatee, andmust be performed by him

personally.

#. /ausal /ondition 5depends

upon the will of the heir,devisee, or legatee, but upon

the will of a third person.

&. Bi,ed 5 depends -ointly upon

the will of the heir, devisee, orlegatee and upon chance and9or

will of a third person.

*ul(ill+ent o( Conditions:. Potestative /onditions must be

fulfilled after the death of the

testator (except when it has

already been fulfilled and is ofsuch nature that it cannot be

repeated)"

#. /ausal or *i,ed conditionsmaybe fulfilled either .efore orafter such death unless the

testator has provided otherwise.

"O-A& INSTITUTION

.INSTITUCION SU) "O-O2

Attachment by the testator to

an institution of heir, or to a

devise or legacy, of a statement

of the:

a. o+ectof the institution"b. application of the property

left by testator" or

c. chargeimposed by him.

NOTES:

=hen in doubt as to whether

there is a condition or merely a

*ode consider the same as

*ode.

=hen in doubt as to whetherthere is a *ode or merely asuggestion consider same only

as a suggestion.

!he Mcondition% suspends but

does not obligate" the Mmode%

o+ligates but does not suspend


19/36

(for he who inherits with a

mode is already an heir" onewho inherits conditionally is not

yet an heir)

-OCTRINE o( CONSTRUCTI7E*U&*I&&"ENT: =hen without the

fault of the fault of the heir, an

institucion sub modo cannot tae

effect in the exact manner statedby the testator, it shall be complied

with in a manner most analogous

to and in conformity with his

wishes.

NOTE:

8f the condition is casual, the

doctrine is not applicable sincethe fulfillment of the eventwhich constitutes the condition

is independent of the will of the

heir, devisee9legatee. 8f the

condition is potestative ormixed, the doctrine is

applicable.

&!

&EGITI"ES (A1! C 5 D4)&EGITI"E

!hat part of the testator%sproperty which he cannot

dispose of because the law has

reserved it for certain heirs whoare, therefore, called

compulsory heirs.

!he course of action to enforce

a legitime accrues upon thedeath of the donor3decedent

since it is only then that the net

estate may be ascertained and

on which basis, the legitimemay be determined. (#*perial

vs. / 326 &/- 323)

NOTE: 0ne half of the estate isalways reserved for the primary or

secondary compulsory heirs. !he

other half is what is termed under

the ++ as the ;free portion< fromwhich the legitime of the

concurring compulsory heirs are

taen. !his ;free portion< is

different from the ;disposable freeportion< over which the testator

has testamentary control. !he

;disposable free portion< is that

which remains after the legitimehas been covered.

CO"$U&SOR# HEIRS .CH2

!hose for whom the legitime is

reserved by law, and who

succeed whether the testator

lies it or not. !hey cannot be

deprived by the testator of theirlegitime e,cept by

disinheritance properly effected.

Kinds o( Co+3ulsor Heirs:. $ri+ar 5 those who have

precedence over and e,clude

other +2. *.g. $+.

#. Secondar 5 those whosucceed only in the a+sence of

the pri*ar+2. *.g. $A or 8.

&. Concurring 5 those who

succeed together with theprimary or secondary +2. *.g.

8+ and .

I( the

testator is a&EGITI"ATE

3erson

I( the

testator isan

I&&EGITI"ATE 3erson

.

$egitimate

children

anddescendan

ts ($+)

.

$egitimate

children

anddescendan

ts ($+)

#. 8n defaultof the

foregoing,

legitimate

parentsand

ascendant

s($A)

#.

8llegitimat

e children

anddescendan

ts (8+)

&. urviving

spouse

()

&. 8n default

of the

foregoing,

illegitimate

parentsonl(8)

4.8llegitimat

e children

and

4. urvivingspouse

()


20/36

descendan

ts (8+)

NOTES:

ee ections 7 I of 1.A.

BB#. @y force of the 6amily +ode,

adopted children are deemed

legitimate children of theadopters.

@y force of the 6amily +ode, 8+

without distinction and so long

as their filiation is duly

established or proved inaccordance with law, are each

entitled to 9# of the legitime of

a $+, thus abrogating the B:4ratio between ;natural< and

;non3natural< 8+.

RU&ES:

. irect descending linea. 1ule of preference between

lines

b. 1ule of proximity

c. 1ight of representation adinfinitu* in case of

predecease, incapacity, or

disinheritance ($+: $ only"

8+: both $ and 8)d. 8f all the $+ repudiate their

legitime, the next generation

of $ succeed in their own

right#. irect ascending line

a. 1ule of division by lines

b. 1ule of equal division

&. on3impairment of legitime

TA)&E O* &EGITI"ES/18

01

$*?8!8'

*

0!*

$+ N ivide by

the O of

$+,whether

they

survive

alone or

withconcurring

+2.

$+

N

P

# or N

more $+

equal to

$+

$+

8+

N

N of

$+

$+

8+

N

P

N o f $+

All the

concurring

+2 getfrom the

half free

portion,

the shareof the

having

preferenc

e overthat of the

8+, whose

share may

sufferreduction

pro rata

because

there isno

preferenc

e amongthemselves.

$A N =hether

theysurvive

alone or

with

concurring+2.

$A8+

NP

8+succeed inthe P in

equal

shares.

$A

N

P

$A

8+

N9

P

8+ N ivideequally

among

the 8+.


21/36

8+

9&9&

N 9& if

marriageis in

articulo

mortis

anddeceased

spouse

dies

within &mos. after

the

marriage.

8 N

8

Any child

3

excluded38t

depends

+hildren

inherit inthe

amounts

establishe

d in theforegoing

rules.

8

PP

0nly theparents

are of 8+

are

included.?randpare

nts and

other

ascendants are

excluded.

STE$S IN -ETER"INING THE

&EGITI"E O* CO"$U&SOR#

HEIRS:

. etermination of the ross-al"eof the estate at the time

of the death of the testator"

#. etermination of all de.ts and

c/ares which are chargeableagainst the estate"

&. etermination of the net valueof the estate by deducting all

the debts and charges from thegross value of the estate"

4. Collation or addition of the

value of all donations inter

vivos to the net value of the

estate"B. etermination of the amount of

the leitime from the total

thus found"

C. Imp"tationof the value of alldonations inter vivos made to

compulsory heirs against their

legitime and of the value of all

donations inter vivos made tostrangers against the disposable

free portion and restoration to

the hereditary estate if the

donation is inofficious" and7. Distri."tion of the residue of

the estate in accordance with

the will of the testator

CO&&ATION

. 6ictitious mathematical process

of adding the value of the thing

donated to the net value of thehereditary estate (Art. DF and

Arts. FC3F77).

#. Act of charging or imputing

such value against the legitimeof the compulsory heir to whom

the thing was donated (Arts.

FC3F77).&. Actual act of restoring to thehereditary estate that part of

the donation which is inofficious

in order not to impair the

legitime of compulsory heirs.

RESER7A TRONCA&(A1! D)

!he reservation by virtue of

which an ascendant whoinherits from his descendant

any property which the latter

may have acquired by

gratuitous title from anotherascendant or a brother or sister,

is obliged to reserve such

property for the benefit of

relatives who are within the &rd

degree and who belong to the

line from which such property

came.

8t constitutes as an e,ceptionto

both the system of legitime and

the order of intestatesuccession.

$ur3oses:

. !o reserve certain property infavor of certain persons"

#. !o prevent persons outside a

family from acquiring, by some


22/36

chance or accident, property

which otherwise would haveremained with the said family"

&. !o maintain a separation

between paternal and maternal

lines.NOTE: +onsidering the rationale

for reserva troncal which is to

ultimately revert ownership of

property that originally belongs toa line of relatives but which by

force of law passes to a different

line, the reserva would have no

reason to arise where theascendants who acquire the

property themselves belong to the

line of relatives from which the

property was, in turn, acquired bythe descendant.

Re5uisites:

. !he property should have beenacquired by operation of law by

an ascendant (reser-ista) from

his descendant (proposit"s)

upon the death of the latter.#. !he property should have been

previously acquired by

gratuitous title by thedescendant (proposit"s) fromanother ascendant or from a

brother or sister (oriinator).

&. !he descendant (proposit"s)

should have died without anylegitimate issue in the direct

descending line who could

inherit from him.

$ersonal ele+ents:

. Oriinator5 the ascendant, or

brother or sister from whomthe propositushad acquired theproperty by gratuitous title (e.g.

donation, remission, testate or

intestate succession)"

#. +roposit"s 5 the descendantwho died and from whose death

the reservista in turn had

acquired the property by

operation of law (e.g. by way oflegitime or intestate succession).

!he so3called ;arbiter of the fateof the reserva troncal.


23/36

gratuitous title during his

lifetime from anotherascendant, brother9sister.

Obligations o( Reser9ista:

() !o mae an inventory of allreservable property"

(#) !o appraise value of all

reservable movable

property"(&) !o annotate in 1egistry of

property the reservable

character of all reservable

immovable property"(4) !o secure by mortgage (a)

restitution of movables not

alienated, (b) payment of

damages caused by his faultor negligence, (c) return of

price received for movables

alienated and (d) payment

of value of immovablealienated.

A reservatorio may dispose of

his e,pentanc to the

reservable property duringpendency of the reserve in its

uncertain and conditional form.8f he dies before the reservista,

he has not transmittedanything, but if he survives

such reservista, the

transmission shall become

effective.

7ill *a prevent the

constitution of a reserva. 8n

case of testate succession, only

the legitime passes byoperation of law. !he propositus

may, + 7ill, opt to give the

legitime of his ascendant

without giving to the latterproperties he had acquired by

gratuitous title from another

ascendant, or brother or sister.

#n such case a reserva troncalis avoided.

2owever, if the ascendant

was not disentitled in the will to

receive such properties, thereser-a minima rule

(proportional reserva) should be

followed. !he rule holds that all

property passing to the reservistamust be considered as passing

partly by operation of law and

partly by will of the propositus.

!hus, one half of the propertiesacquired by gratuitous title should

be reservable, and the other half

should be free.

Causes (or Extinguish+ent o(

Reser9a Troncal:

1. eath of reservatarios"

2. eath of all relatives ofpropositus within the &rddegree

who belong to the line from

which the property came"

3. $oss of the reservable propertyfor causes not due to the fault

or negligence of the reservista.

4. =aiver or renunciation by the

reservatarios"5. rescription of the right of the

reservatarios, when the

reservista holds the property

adversely against them in theconcept of an absolute owner"

6. 1egistration by the reservista of

the property as free property

under the $and 1egistration Act

"! -ISINHERITANCE (A1! DB

5 D#&) A testamentary disposition by

which a person is deprived of,

or excluded from, the

inheritance to which he has a

right.

A disinheritance properly

effected totally excludes the

disinherited heir from the

inheritance. !he disinherited

heir is deprived not only of thelegiti*ebut also of such part of

the free portionthat would have

passed to him by a previous will

(which is revoed, asinconsistent with, the

subsequent disinheritance) or

by intestate succession.

Re5uisites:

. *ffected only through a valid

will"

#. 6or a cause expressly stated bylaw"

&. +ause must be stated in the will

itself"4. +ause must be certain and true"

B. /nconditional"

C. !otal" and


24/36

7. !he heir disinherited must be

designated in such a mannerthat there can be no doubt as to

his identity.

E((ects o( -isinheritance:

1. eprivation of the compulsory

heir who is disinherited of any

participation in the inheritance

including the legitime.

2. !he children9descendants of the

person disinherited shall tae

his or her place and shall

preserve the rights of compulsory heirs with respect

to the legitime.

3. !he disinherited parent shall not

have the usufruct oradministration of the property

which constitutes the legitime.

I"$ER*ECT -ISINHERITANCE

A disinheritance which does not

have one or more of the

essential requisites for its

validity.

E((ects:

. 8f testator had made disposition

of the entire estate: annulmentof the testamentary dispositions

only in so far as they pre-udicethe legitime of the person

disinherited" does not affect the

dispositions of the testator with

respect to the free portion.#. 8f testator did not dispose of the

free portion: compulsory heir is

given all that he is entitled to

receive as if the disinheritancehas not been made, without

pre-udice to lawful dispositions

made by the testator in favor of

others.&. evises, legacies and other

testamentary dispositions shall

be valid to such extent as will

not impair the legitime.

I"$ER*ECT

-ISINHERITANCE

$RETERITIO

N

. !he persondisinherited

may be any

compulsory

. !he personomitted must

be a

compulsory

heir heir in the

direct line

#. Alwaysexpress

#. Alwaysimplied

&.Alwaysintentional

&. 'ay beintentional or

unintentional

4. *ffect:

artialannulment of

institution of

heirs

4. *ffect:

!otalannulment of

institution of

heirs

Co++on Causes (or-isinheritance o( children or

descendants 3arents orascendants and s3ouse:

. =hen the heir has been found

guilty of an attempt against the

life of the testator, his9herdescendants or ascendants, and

spouse in case of children and

parents"

#. =hen the heir has accused thetestator of a crime for which the

law prescribes imprisonment for

C years or more, if the

accusation has been foundgroundless"

&. =hen the heir by fraud,

violence, intimidation, or undue

influence causes the testator tomae a will or to change one

already made"

4. 1efusal without -ustifiable cause

to support the testator who

disinherits such heir.

$eculiar Causes (or

-isinheritance

1. ChildrenD-escendants:

a. =hen the child9descendant

has been convicted of

adultery or concubinage withthe spouse of the testator"

b. 'altreatment of the testator

by word or deed by the

child9descendant"c. =hen the child9descendant

leads a dishonorable or

disgraceful life" +onviction of

a crime which carries with ita penalty of civil interdiction.

2. $arentsDAscendants:


25/36

a. =hen the parents have

abandoned their children orinduced their daughters to

live a corrupt or immoral life,

or attempted against their

virtue"

b. =hen the parent9ascendant

has been convicted of

adultery or concubinage with

the spouse of the testator"

c. $oss of parental authority for

causes specified in the +ode"

and

d. Attempt by one of theparents against the life of

the other, unless there has

been reconciliation between

them.3. S3ouse:

a. =hen the spouse has given

cause for legal separation"

=hen the spouse has givengrounds for the loss of

parental authority.

Re9ocation o( -isinheritance:. 1econciliation"

#. ubsequent institution of the

disinherited heir" and&. ullity of the will which containsthe disinheritance.

NOTE: 0nce disinheritance has

been revoed or renderedineffectual, it cannot be renewed

except for causes su+se?uent to

the revocation or based on ne7

grounds.

RECONCI&IATION

8t is the resumption of genuine

cordial relationship between thetestator and the disinherited

heir, approximating that which

prevailed before the testator

learned of the cause fordisinheritance, reciprocally

manifested by their actions

subsequent to the act of

disinheritance.

A subsequent reconciliation

between the offender and theoffended person deprives the

latter of the right to disinherit,

and renders ineffectual anydisinheritance that may have

been made. (Art. D##)

NOTES: 'ere civilit which may

characteriJe their relationship, a

conduct that is naturally

expected of every decentperson, is not enough. 8n order to be effective, the

testator must pardon thedisinherited heir. uch pardon

must specifically refer to the

heir and to the acts causing the

disinheritance. he heir *ustaccept the pardon.

o particular form is required.

8t may be made expressly or

tacitly.

NOTE: =here the cause for

disinheritance is liewise a ground

for un7orthiness to succeed, what

is the effect of a subsequentreconciliation upon the heir%s

capacity to succeedQ

. #f disinheritance has +een

*ade: 1ule on reconciliationapplies. !he disinheritance

becomes ineffective.

#. #f disinheritance has not +een*ade: 1ule on reconciliationdoes not apply. !he heir

continues to be incapacitated to

succeed unless pardoned by the

testator under Art. F&&. !helaw effects the disinheritance.

N! &EGACIES AN- -E7ISES

(A1!. D#4 5 DBD)

$ersons charged 8ith legaciesand de9ises:

()compulsory heir"(#)voluntary heir"

(&)legatee or devisee"

(4)estate

NOTES:

8f the will is silent with regard

to the person who shall pay or

deliver the legacy9devise, there

is a presumption that such

legacy or devise constitutes acharge against the decedent%s

estate.

ince legacies and devises are

to be taen from the disposablefree portion of the estate, thus,

the provisions on institution of


26/36

heirs are generally applicable to

them.

STATUS O*$RO$ERT#GI7EN )#

&EGAC#D-E7IS

E

E**ECT ONTHE&EGAC#D-E

7ISE

. @elonging to

the testator at

the time of theexecution of the

will until his

death

*ffective

#. @elonging tothe testator at

the time of the

execution of the

will but alienatedin favor of a &rd

person

1evoed

&. @elonging to

the testator at

the time of theexecution of thewill but alienated

in favor of the

legatee9devisee

gratuitousl

o

revocation.

!here is aclearintention to

comply with

legacy or

devise.

4. @elonging to

the testator at

the time of the

execution of the

will but alienatedin favor of the

legatee or

deviseeonerousl

$egatee9devi

see can

demand

reimburseme

nt from theheir or estate

B. ot belongingto the testator at

the time the will

is executed but

he has orderedthat the thing be

acquired in orderthat it be given

to thelegatee9devisee

*ffective

C. ot belonging

to the testator at oid

the time the will

is executed and

the testatorerroneously

believed that the

thing pertainedto him

7. ot belonging

to the testator atthe time the will

is executed but

afterwards

becomes his bywhatever title

*ffective

. Already

belonged to thelegatee9deviseeat the time of

the execution of

the will even

though anotherperson may have

interest therein

8neffective

D. Already

belonged to the

legatee ordevisee at thetime of the

execution of the

will even though

it may havebeen

subsequently

alienated by him

8neffective

F.!estator had

nowledge thatthe thing

bequeathed

belonged to athird person and

the

legatee9devisee

acquired theproperty

gratuitouslafter

the execution of

the will

$egatee9devi

see can claimnothing by

virtue of the

legacy9devise

.!estator had

nowledge thatthe thing

bequeathed

belonged to a

third person and

$egatee9devi

see candemand

reimburseme

nt from the

heir or estate


27/36

the

legatee9devisee

acquired theproperty by

onerous title

ART! 0


28/36

1. 8f a person dies without a will,

or with a void will, or one whichhas subsequently lost its

validity"

2. Absence of an institution of

heir"

3. artial institution of heir. 8n

such case, intestacy taes place

as to the undisposed portion

(mixed succession)"

4. on3fulfillment of suspensive

condition attached to the

institution of heir"

5. redecease of the institutedheir"

6. 1epudiation by the instituted

heir"

7. 8ncapacity of instituted heir"8. reterition. 8ntestacy may be

total or partial depending on

whether or not there are

legacies9devises"

9. 6ulfillment of resolutory

condition"

10. *xpiration of term or period of

institution"

11. on3compliance or impossibility

of compliance with the will.

NOTE: 8n all cases where therehas been an institution of heir,

follo7 the #.&.-..#. order of

Kustice aras. 8f the Institution

fails, Substitution occurs. 8f thereis no substitute, the right of

Representation applies in the direct

descending line to the legitime if

the vacancy is caused bypredecease, incapacity, or

disinheritance. !he right of

Accretion applies to the freeportion when the requisites in Art.FC are present. 8f there is no

substitute, and the right of

1epresentation or Accretion does

not apply, the rules on Intestatesuccession shall tae over.

A! RU&ES

1. Rule o( $re(erence bet8eenlines

!hose in the directdescendingline shall exclude

those in the direct ascendingand collateral lines, and

those in the direct ascending

line shall, in turn, exclude

those in the collateral line.

2. Rule o( $roxi+it

!he relative nearest in

degree excludes the more

distant ones, saving theright of representation when

it properly taes place.

!his rule is sub-ect to therule of preference betweenlines.

3. Rule o( E5ual -i9ision

1elatives in the sa*edegree

shall inherit in equal shares.

!"/!P#ON&:

a)ivision in the ascending line

(between paternal and

maternal grandparents)"

b)ivision among brothers andsisters, some of whom are of

the full and others of half

blood" and

c) ivision 8n cases where theright of representation taes

place.

NOTE: !his rule is sub-ect to

the rule of preference betweenlines.

4. Rule o( )arrier bet8een the

legiti+ate (a+il and the

illegiti+ate (a+il

!he illegitimate familycannot inherit + intestate

succession from the

legitimate family and vice3versa.

5. Rule o( -ouble Share (or (ull

blood collaterals

=hen full and half3blood

brothers or sisters, nephews

or nieces, survive, the full

blood shall tae a portion in

the inheritance double thatof the half3blood.

NOTE: 8n case of a disposition

made in general terms underArticle DBD, only the 1ule of

roximity applies.

)! RE&ATIONSHI$ (A1!. DC& 5DCD)

. umber of generations

determines proximity.

#. *ach generation forms adegree.

&. A series of degrees forms a line.

4. A line may be direct or

collateral. A direct line is thatconstituted by the series of

degrees among ascendants and


29/36

descendants (ascending and

descending).B. A collateral line is that

constituted by the series of

degrees among persons who

are not ascendants ordescendants, but who come

from a common ancestor.

C. 6ull blood: same father and

mother" half blood: only one ofeither parent is the same.

7. 8n adoption, the legal filiation is

personal and exists only

between the adopter and theadopted. !he adopted is

deemed a legitimate child of the

adopter (A), but still remains

as an intestate heir of hisnatural parents and other blood

relatives.

C! RIGHT O* RE$RESENTATION.RR2

(A1!. D7F 5 D77)

A right created by fiction of law,

by virtue of which therepresentative is raised to the

place and degree of the person

represented, and acquires therights which the latter wouldhave if he were living or if he

could have inherited. !he

representative is called to the

succession by the law not bythe person represented. 2e

succeeds the one whom the

person represented would have

succeeded.

NOTES:

8n the direct line,

representation taes place ad

infinitu* in the direct

descending line, never in theascending.

8n the collateral line,

representation taes place only

in favor of the children of

brothers or sisters (nephewsand nieces), whether of the full

or half3blood, and only if they

concur with at least uncle oraunt.

a) =hen a compulsory heir in

the direct descending linehad predeceased the

testator and was survived by

his children or descendants.b) =hen a compulsory heir in

the direct descending line is

excluded from the

inheritance due to incapacitor un7orthinessand he has

children or descendants.

c) =hen a compulsory heir in

the direct descending line isdisinherited and he has

children or descendants"

representation covers only

the legitime.d) A legatee9devisee who died

after the death of the

testator may be represented

by his heirs.

! Intestate Succession

a) =hen a legal heir in the

direct descending line hadpredeceased the decedent

and was survived by his

children or descendants.

b) =hen a legal heir in thedirect descending line is

excluded from the

inheritance due to incapacitor un7orthinessand he haschildren or descendants.

c) =hen brothers or sisters had

predeceased the decedent

and they had children ordescendants.

d) =hen illegiti*ate children

represent their illegitimate

parents who already died inthe estate of their

grandparents.

e) =hen nephe7s and niecesinherit together with theiruncles and aunts in

representation of their

deceased parents who are

the brothers or sisters ofsaid uncles and aunts.

-!

INTESTATE OR &EGA& HEIRS

!hose who are called by law to

the succession either in the

absence of a will or of qualifiedheirs, and who are deemed

called based on the presumedwill of the decedent.

REGU&AR OR-ER O*

SUCCESSION .-ecedent is alegiti+ate 3erson2:


30/36

. $egitimate children or

descendants ($+)

#. $egitimate parents or

ascendants ($A)

&. 8llegitimate children or

descendants (8+)

4. urviving spouse ()

B. @rothers and sisters, nephews

and nieces (@9)

C. 0ther collateral relatives withinthe Bthdegree (+B)

7. tate

IRREGU&AR OR-ER O*

SUCCESSION .-ecedent is an

illegiti+ate 3erson2:. $egitimate children or

descendants ($+)

#. 8llegitimate children or

descendants (8+)

&. 8llegitimate parents (8)

4. urviving spouse ()

B. @rothers and sisters, nephews

and nieces (@9)

C. tate

OR-ER O* CONCURRENCE. $+, 8+, and

#. $A, 8+, and

&. 8+ and

4. and 8B. @9 and

C. +B (alone)

7. tate (alone)

TA)&E O* INTESTATE SHARES

/1801

8!*!A!*2A1*

Any class

alone

*ntire estate

$+

9#9#

(iongson vs.

/inco 04 &/-

221)# or

more $+

+onsider as

$+, then divideestate by total

number.$A

9#

9#

$A

8+

9#

9494

8

9#

9#(he la7 is silent.

ppl

concurrence

theor.)

@9

9#

9#

$+

8+

6irst, satisfy

legitimes. *statewould be

insufficient.

1eduction must

be madeaccording to the

rules on

legitimes. !he

legitimes of $+and shall

always be first

satisfied in

preference to the8+.

# or

more $+

8+

6irst, satisfy

legitimes. !here

would be anexcess in the

estate. istribute

such excess inthe proportion:#:#, in

accordance with

the concurrence

theor.

OR-ER O* CONCURRENCE IN

THE CASE O* A-O$TE- CHI&-

SUR7I7ORS SHARE

. $A98

A

N

N

#. $A98

A

N

N

&. $A

A

8+

N

N

4. $A

A

8+

9&

9& 9&

CAR-INA& $RINCI$&ES O*

INTESTATE SUCCESSION

.Bustice $aras2


31/36

. *ven if there is an order of

intestate succession, the+ompulsory 2eirs .CH) are

never excluded. !he +ivil +ode

follows the concurrence theory,

not the exclusion theory.#. 1ight of 1epresentation .RR) in

the collateral line occurs only in

intestate succession, never in

testamentary successionbecause a voluntary heir cannot

be represented (collateral

relatives are not +2).

&. !he intestate shares are eitherequal to or greater than the

legitime.

4. $!N!-L -%L!:

?randchildren always inherit by11, provided representation is

proper.

!"/!P#ON:=henever all the

children repudiate, the

grandchildren inherit in theirown right because 11 would not

be proper.

B. ephews and nieces inherit

either by 11 or in their 0wn1ight (OR).

a. 11: when they concur withaunts and uncles (provided

that 11 is proper)

b. 01: when they do not

concur with aunts and

uncles.

C. 8+ of legiti*ates cannotrepresent because of the

barrier, but both the 8+ and

$+ of illegiti*atescan.

7. !here can be reserva troncal inintestate succession.

. A renouncer can represent, but

cannot be represented.

D. A person who cannot representa near relative cannot also

represent a relative farther in

degree.

III! "I6E- SUCCESSION OR$ARTIA& INTESTAC#

uccession that is effected

partly by will and partly by

operation of law.

RU&ES:

intestacy, because the

testamentary dispositions can

affect only the disposable freeportion but never the legitimes.

! 8f among the concurring

intestate heirs there are

compulsory heirs, whose legalor intestate portions exceed

their respective legitimes, then

the amount of the testamentary

disposition must be deductedfrom the disposable free

portion, to be borne by all the

intestate heirs in the

proportions that they areentitled to receive from such

disposable free portion as

intestate heirs.

1! 8f the intestate share of acompulsory heir is equal to his

legitime, then the amount of

the testamentary disposition

must be deducted only from theintestate shares of the others,

in the proportions stated above.

?! 8f the testamentary dispositionsconsume the entire disposablefree portion, then the intestate

heirs who are compulsory heirs

will get only their legitime, and

those who are not compulsoryheirs will get nothing.

I7! $RO7ISIONS CO""ON TO

TESTA"ENTAR# AN-

INTESTATE SUCCESSIONS

A! RIGHT O* ACCRETION .A2

(A1! FB 5 F#&)

A right by virtue of which, when

two or more persons are calledto the same inheritance, devise

or legacy, the part assigned to

one who renounce or cannot

receive his share, or who diedbefore testator, is added or

incorporated to that of his co3heirs, co3devisees, or co3

legatees.

A right based on the presumed

will of the deceased that he

prefers to give certain


32/36

properties to certain individuals,

rather than to his legal heirs.

Re5uisites:

been called to the sameinheritance, legacy or devise, or

to the same portion thereof,pro

indiviso" and

! there must be a vacancy in theinheritance, legacy or devise

(caused b 3redecease

inca3acit re3udiation

non(ul(ill+ent o( sus3ensi9econdition or 9oid or

ine((ecti9e testa+entar

dis3ositions!2

E**ECTS o( $RE-ECEASE

INCA$ACIT#

-ISINHERITANCE or

RE$U-IATION in bothTESTA"ENTAR# and

INTESTATE SUCCESSION

CAUSE

O*

7ACANC#

TESTA"ENT

AR#

SUCCESSION

INTES

TATE

SUCCES'

SION.IS2

&egiti+e

*ree$ortion

$redec

ease

. 11

#. 8

. A

#. 8

. 11

#. 8

Inca3acit

11#.

8

A8

. 11

#. 8

-isinh

eri'

tance

.

11

#.8

R R

Re3udia'tion

8 A A

Su++ar:

.A2 In

testa+entar succession:() $egitime:

(a) 8n case of predecease of

an heir, there is

representation if there

are children ordescendants" if none,

the others inherit in

their own right.(b) 8n case of incapacity,

results are the same as

in predecease.

(c) 8n case of

disinheritance, resultsare the same as in

predecease.

(d) 8n case of repudiation

by an heir, the othersinherit in their own

right.

(#) isposable free portion:Accretion taes place when

requisites are present" but

if such requisites are not

present, the others inheritin their own right.

.)2 In intestate succession:

()8n case of predecease, there isrepresentation if there are

children or descendants" if

none, the others inherit in their

own right.(#)8n case of incapacity, results are

the same as in predecease.

(&)8n case of repudiation, there is

always accretion.

)! CA$ACIT# TO SUCCEE- )#

%I&& OR )# INTESTAC# (A1!.F#4 5 F4F)

Re5uisites:

1. !he heir, legatee9devisee must

be living or in existence at themoment the succession opens"

and

2. 2e must not be incapacitated or

disqualified by law to succeed.

THE *O&&O%ING ARE

INCA$A)&E O* SUCCEE-ING:A! )ased on Undue In(luence orInterest:(8?1A)

1. $riest who heard the confession

of the testator during his last

illness, or the minister of thegospel who extended spiritual

aid to him during the same

period"

2. Individuals, associations andcorporations not permitted by

law to inherit"3. Guardian with respect to

testamentary dispositions givenby a ward in his favor before

the final accounts of the

guardianship have been

approved, even if the testatorshould die after the approval


33/36

thereof" nevertheless, any

provision made by the ward infavor of the guardian when the

latter is his ascendant,

descendant, brother, sister, or

spouse, shall be valid"

4. Relatives of such priest or

minister of the gospel within the

4th degree, the church, order,

chapter, community,organiJation or institution to

which such priest or minister

may belong"

5. Attesting witness to theexecution of a will, the spouse,

parents or children, or any one

claiming under such witness,

spouse, parents or children"and

6. $hysician, surgeon, nurse,

health officer or druggist who

too care of the testator duringhis last illness.

)! )ased on "oralit or $ublic

$olic(A1! 7&D)

. !hose made in favor of a person

with whom the testator wasguilty of adultery or concubinageat the time of the maing of the

will.

#. !hose made in consideration of

a crime of which both thetestator and the beneficiary have

been found guilty.

&. !hose made in favor of a public

officer or his spouse,descendants and ascendants, by

reason of his public office

C! )ased on Acts o(Un8orthiness (A46&)

1. arents who have abandoned

their children or induced their

daughters to lead a corrupt orimmoral life, or attempted

against their virtue"

2. Any person who has been

convicted of anattempt againstth

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