Вы находитесь на странице: 1из 224

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty.

Leilanie Espejo

MONDAY June 10, 2013 -NO CLASS-

WEDNESDAY June 12, 2013 -NO CLASS (Holiday)-

MONDAY June 17, 2013 -NO CLASS-

WEDNESDAY June 19, 2013 Transcribed by: Jennidy Tambor and Jessielle Fabian Our subject will be Wills and Succession. The first part will be about wills or testamentary succession and the second part is legal or intestate succession. What is Succession? Art. 774 - It is a mode of acquisition by virtue of which the property, rights and obligation to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. BASIC PRINCIPLES IN SUCCESSION 3 basis of succession: 1) Natural Law even if the legislature did not include succession in our laws, but actually it is inherent in the nature of man to provide for those who he will leave behind. Diba for example you are a parent, you would really think about the welfare of your children. So usually, you would really provide for them even after your death. Thats what happens in succession. We have the law on succession to give us the rules on how these properties shall be distributed to these children. 2) Socio-Economic Postulate Here, succession is intended to prevent the property from becoming idle. Because if a person dies, he leaves properties, and if there is no transfer of ownership of those properties, who will benefit from these properties? So in succession it provides a mode of transfer

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

from the person who died to the persons who survived. So in that way, the property is still useful. So the heirs can still benefit from the property. 3) An Attribute of Ownership it is provided by Article 428 of the Civil Code Art. 428. - The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law.

So the owner has the right to dispose of the thing. This right to dispose may be exercised by this owner during his lifetime or even after his death, so disposition after ones death is one aspect of the right of ownership. It is part and parcel. Because if you would also deprive him of his right to dispose of his property, he cannot control who will receive his properties after his death. In a sense, his ownership becomes limited or impaired. So that is why we have the law on succession. During your study in Constitutional law, have you encountered succession? Yes, in Section 7, Article XII of the Constitution. Thats the only mention of succession in the constitution. Section 7, Article XII of the Constitution. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

Usually diba, aliens are prohibited from owning private lands from the Philippines but except in succession. Again, this is intended to prevent disposition or transfer of land to foreigner. In a sense, only those Filipino citizens or corporations owned by Filipino citizens are qualified to acquire private land. Because if we allow foreigners to buy private lands, there will come a time that all lands will be owned by foreigners. As we all know, they have more capacity to acquire these lands. They have more financial capacity. Now the constitution says save in cases of hereditary succession. What kind of succession is being referred to here?

Ramirez vs Ramirez The constitution when it says hereditary succession refers to LEGAL or INTESTATE SUCCESSION. That is succession by operation of law. It could not be testamentary succession or by will because if we all allow that, it would be very easy to circumvent the prohibition of ownership by foreigners. If you are the owner of the land, you can easily draft a will and institute the foreigner as heir to that land when maybe in truth and in fact there is already consideration. So maghulat nalang siya na mamatay ang owner. That is not allowed. It is only allowed by legal or intestate succession, although it may happen in testamentary succession if the person is a compulsory heir because a compulsory heir is a forced heir. Even if the decedent excludes him from the will, the law imposes upon the decedent the obligation to provide for the compulsory heirs and also, compulsory heirs are legal heirs.

Kinds of succession As to time when ownership is transferred 1) Succession inter vivos the transfer is intended to take effect during the lifetime of the decedent.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

Again, decedent is a technical term. It refers to the person who dies. Decedent is a term which exists in both testamentary and intestate succession. If there is a will, you call him testator. 2) Succession mortis causa is one the ownership is transferred upon the death of the decedent. So this is the succession which we will be discussing. Because succession inter vivos is actually a donation which is governed by the law on donation. Donation inter vivos the transfer here of ownership happens during the lifetime of the donor. So it is also donation proper. The one you discussed in property. Donation mortis causa is similar to succession mortis causa. Here the transfer of ownership happens upon the death of the donor. Art. 728 Donations which are to take effect upon the death of the donor partake of the nature of testamentary provision, and shall be governed by the rules established in the title on succession.

So it is very clear under Article 728 that even if it is termed as a donation, when it is intended to take effect upon the death of the donor or in other words the transfer of ownership will take place only after the death of the donor then it shall be governed by the law on succession. It partakes of the nature of a testamentary disposition governed by the law on succession. If there is a document, it has to be in the form of a will. So even if the document has complied with the form of the donation but it states that the transfer of ownership shall happen upon the death of the donor, that transfer in the document is not valid because it should be in the form of a will. In reality it is not easy because some documents would not say na inter vivos or mortis causa. You would have to read between the lines.

Jutic vs CA When he mentioned in case I will die and then shall succeed to me in case of my death there was intention on the part of the decedent to transfer the property upon his death. What he intended was really succession but unfortunately the document did not comply with the formalities of a will. In fact it was not even a valid donation because there was no categorical declaration. Ganuelas vs Cawed It is mortis causa because it is very clear in the statement to become effective upon the death of the donor and that in the event that the donee should die before the donor, the present donation shall be deemed rescinded and of no force and effect. The distinguishing characteristic of a donation mortis causa enumerated in this case are as follows: 1) It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing that the transferor should retain the ownership (full or naked) and control of the property while alive; 2) That before his death, the transfer should be revocable by the transferor at will ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed; and 3) That the transfer should be void if the transferor should survive the transferee.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

If during the lifetime of the donor he reserves to himself only the naked title but the use and enjoyment of the property is already given to the donee, there is no donation inter vivos only donation mortis causa. If the donee has the naked ownership but the use and enjoyment is reserved by the donee then there is donation inter vivos. Number 1: In this case it is very clear that as long as the naked ownership is reserved by the donor then it cannot be inter vivos because the owner is still the donor. If the ownership will transfer only upon the death then it is really mortis causa. Number 2: If it is revocable at will because in testamentary succession when the testator executes a will he can always revoke his will as a general rule, there is no limitation. So if you say that the donation is revocable at will even without a ground, that is similar to a will (testamentary succession) because when you say donation it can only be revoked on grounds provided for by law, not at the will of the donor. So if it revocable, it can only mean one thingthat it is not intended to be transferred during the lifetime of the donor. Number 3: That the transfer should be void if the transferor should survive the transferee because again in donation when you donate a property the transfer of ownership happens during the lifetime of the donor, what happens when the donee dies before the donor after the donation? Will the donated property revert to the donor in real donation? NO. Because again the ownership was already in the donee, what happens upon the death of the donee? The property shall form art of his estate and will be inherited by the heirs of the donee but when you say that the donee dies ahead of the donor the property will go back to the donor, that is essentially testamentary because in will if you give something in the will and then the heir dies ahead of the testator the execution of the will is already null and void. Because in succession the heir should not predecease the testator, meaning dapat dili siya mauna ug kamatay, dapat when the testator dies, buhi pa ang heirs because if mamatay silag una kaysa sa donor, they wil not become heirs in the first place. Q: How about the allegation that this is really donation intervivos because it is founded on love and affection? So even in succession the underlying consideration could be love and affection, so it is irrelevant because both donation and succession are founded on the consideration of love and affection. Okay so the generosity and liberality of the maker, so that is not a distinction. So here, again as worded, the disposition is of a testamentary succession. Q: so what could be the consequences if it is donation mortis causa? Consequently the donation cannot be given effect because it did not properly comply with the formalities of a will.

Lets proceed to the case of cuevas vs. cuevas. Which also gives us the distinguishing characteristic of a donation mortis causa and donation inter vivos.

Q: What is the nature of the donation? Mortis causa, . Q: How about the phase samantalang ako ay nabubuhay so how can be intevivos when she would be the one who will cultivate and use the property?

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

So you are saying that, the naked ownership already passed on to the donee but the donor, reserves herself the use, possession, cultivation, beneficial ownership of the property. So as long as there is transfer of ownership, whether full or naked, it could be donation inter vivos, because there is already transfer. Here, even if the donor still remained in possession, but that is no longer in the concept of an owner because she already gave the ownership to the donee. And besides, she already renounced the right to dispose the property as she already gave the property. Q: how about the phrase at ang iba pang karapatan ng pagmamay-ari ay sa akin pa rin hanggang hindi ako binabawian ng buhay , would this not be a reservation of the other rights of ownership? So when she said, other rights of ownership, how should be interpret this phrase? So it should be interpreted as those enumerated before the phrase, so it could only be still the beneficial use, like possession, cultivation but not the naked title because again it was very clear that she already gave up the naked ownership, only that she reserved herself certain attributes like possession and cultivation, and she had to mention these because had she not mentioned these, these would also be included in the transfer. So she wanted to reserve that is why she had to mention it in the donation. Had the donor meant to retain full or absolute ownership, she had no need to state possession and cultivation since all these rights are embodied in the full or absolute ownership. Nor would she have excluded the right of disposition from the rights and attributes of ownership that she reserved herself. So remember that case ha. Cause its important to determine if it is intervivos or mortis causa. Just remember those 3 distinguishing characteristics. So you should measure the disposition in terms of the 3 distinguishing characteristics.

Lets now proceed to Article 774. So again, article 774 gives us the definition of succession. So as you can see from this definition succession is actually the mode of acquisition, it is the kind of transfer. So what kind of transfer Is contemplated in succession?

We have two modes of acquiring ownership: 1. Original mode 2. Derivative mode In regards original mode, please read article 712. So article 721 gives us the mode in which ownership is acquired. The first paragraph give us the original mode of acquisition (occupation, intellectual creation). The second paragraph refers to the derivative mode, wherein in derivative mode there is an original owner and it is transferred to another. Succession is one of that mode, because in succession, properties , rights and obligations to the extent of the value of the inheritance are transmitted to another. So it is a derivative mode of acquisition.

Let us go first to Article 775.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

Okay, so I already discussed this, remember the definition, its a technical term.

Article 776. So Article 776 gives us the definition of inheritance. So inheritance includes the property, rights and obligations of a person which are not extinguished by his death. Now remember the definition of succession in Article 774, it is a mode of acquisition. Now as you have seen, succession is different from inheritance and vice versa. Succession refers to the mode of acquisition, the mode of transferring ownership whereas inheritance means the properties, rights and obligation which are transmitted by succession. So let us discuss, what are these properties, rights and obligations which can be transmitted by succession based on Article 776 and Article 774.

Q: Based on your law on property, what are the different kinds of properties? So we have, real property or immovable property and personal property or movable property. So in succession what can e transmitted? So general rule in terms of properties they can be transmitted. Now as long as these properties are not outside the commerce of men. So as long as they are not res nullius and not res communes.

Q: when you say outside the commerce of man, what do you mean by outside the commerce of men? So they are unlawful , illegal, immoral. Q: how about res nullius? Those not owned by anyone, like the stars. Q: how about res communes? So it is owned by everyone. Q: how about the human body, can you transfer it by succession? Can you say, I now give to my boyfriend my heart as a symbol of my everlasting love? So General rule, the human corpse or any part of the human body cannot be transmitted by succession as a general rule because it is not within the commerce of men, these organs are not capable of appropriation. But there is a certain exception: the organ donation act of 1991 or RA 7173. So lets discuss the organ donation act. So under the organ donation act, certain parts of the human body may actually be donated or bequeath, when you say bequeath given as a legacy. So lets go to section 6 of the organ donation act, I think you h ave a copy. So remember under the organ donation act, even if the law allows the transfer by donation or will of certain organs of the human body the recipients are specified and the purposes are also specified. So you cannot just leave your organs to just any person or purpose and for sentimental reasons. You have to comply with the law on organ donation act.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

How do we effect the transfer in this case? Read Section 3. So under this law, you can give by donation or by will. If you do that by will, it says that it becomes effective upon the death of the testator. Ordinarily in testamentary succession, if you execute a will, like I hereby give my house and lot to A, upon your death, although the transfer happens upon death, the will has to be probated first. So the court will first examine whether or not the will was made by the testator, the identity of the will, the capacity of the testator to make the will, whether or not it was made voluntarily, so the court will have to determine that. And only when that is already declared by the court, na allow na xa for probate, then the property can now be transferred. And the probate proceeding could take years. So here under the organ donation act, UPON DEATH, no need for probate. Why? Obviously diba kung magdonate kag heart, human magprobate probate paka, baskin pag 10 days lang na xa patay na to imong recipient . Therefore, probate is not required if it is under the organ donation act. What happens if the will is declared null and void? The law says, as long as the will was executed in good faith it ( the organ donation) can still be given effect. So regardless sa non-compliance sa formalities of the will. Ordinarily in succession, if the will is void for failure to comply with the formalities,all the dispositions in that will cannot be given effect. The properties will go to the legal heirs, so wala na tong will kung dili valid and will as to the formalities. But again here even if not valid as to form as long as made in good faith, the will can still be given effect. Take not that the property of the decedent to be able to pass it by will, he has to own the property, so if he is ot the owner of the property as a general rule he cannot dispose of it by will.

MONDAY June 24, 2013 Transcribed by: Zai Diesto and Adam Jambangan

Last meeting we discuss Art 776. And we learned that properties, rights and obligations, to the extent of the inheritance, can be transmitted by succession. So we also discussed what are these properties that may be transmitted by succession. Let us now proceed to rights, as another subject of succession. Meaning they can be transmitted by succession. GR when it comes to rights: RIGHTS WHICH ARE PATRIMONIAL CAN BE TRANSMITTED BY SUCCESSION. What do we mean by patrimonial rights? Rights which relate to properties. So generally they can be transmitted, because while possessors of these rights die, these rights do not die with them. These rights are not extinguished, these are passed on to the heirs. What are this rights? (examples of these rights) 1.) Contractual rights- basic example of this is the right which arises out of contract of lease. When the lessor and a lessee enter into contract, the lessor has the right to expect to collect rentals, while the lessee has the right to remain peacefully in the lease premises while he pays the rents and the lease contract subsist. When the lessee or the lessor dies, the rights and obligations of the parties is not extinguished. So when the lessor dies, his rights will passed on to his heirs, and these heirs will now collect the rent. And when the lessee dies, his heirs will continue the lease. It means that they can still remain in possession of the leased premises.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

Right arising out of contract of sale. In the case of Liu vs Loy- we all know that there is a difference between a contract of sale and a contract to sell. A contract of sale has greater force than contract to sell, however in this case the SC ruled that the heirs should respect the contract to sell entered into by their predecessor in interest. So, the rights and obligations in a contract of lease, contract of sale and contract to sell are transmitted to the heirs of the parties. So, for example in a contract to sell, any of the parties dies, their rights arising out of that contract are transmitted to their heirs. So in case of LIU VS LOY, between a contract of sale and contract to sell, ordinarily a contract of sale is preferred because there is already a transfer of ownership as long as the documents are executed and there is delivery. But in a contract to sell, even if there is no contract of sale yet, it is still a contract. It gives effect to certain rights and obligations and these rights and obligations are binding upon the parties. So when you enter into a contract to sell, you bound yourself to convey the title upon the fulfillment of the condition, which is the payment of the purchase price. If you are the prospective buyer, you have the right to expect that upon fulfillment of the condition, you can demand the execution of the deed of sale. So these rights are patrimonial, and these rights are transmitted to the heirs of the parties. So in this case it is material that the contract was a contract to sell. Because it was entered by the decedent, and when that decedent entered into that contract he bound himself to that contract. He has rights and obligations that arises out of that contract. So when he died, those rights and obligations are transmitted to his heirs. It is preferred because it was entered into ahead of the contract of sale. He cannot sell the same property twice. Even if it is a contract to sell, but as long as the condition was fulfilled, then the buyer could demand the property which was subsequently made the object of another contract of sale. So, again, in this case the rights and obligation was patrimonial. The right to insurance. It is also transmissible by succession. In the case of Grepalife vs CA -in this cas, Dr. Leuterio was insured, and has rights over that insurance. When he died, his rights were transmitted to his heirs, and one of his heirs is his surviving spouse. As long as you are one of the heirs of the decedent, you have the right. Not extinguished by the death of the decedent. 2.) Another example is an action for forcible entry and unlawful detainer. So if you are the owner of a real property and your property is encroached or usurp by another, you can have file an action for unlawful detainer. Even if you die before you bring the action, or you die during the pendency of the action, the action is not extinguished. Because the rights of the owner or possessor is transferred to his heirs. 3.) Another is an action by the heirs to compel for an execution of a public document under Art 1357 of NCC. These are the acts or contracts which should appear in public document, although the appearance in public document even if the law said should or must is only for convenience. Not for validity, not for enforceability. So for example, you sold a parcel of land, ordinarily, a contract of sale of a real property is covered by statute of frauds, so for it to be enforceable, it has to be in writing. Not necessarily in public document, but must be in writing. So once it is in writing, it is valid and enforceable. But if it is not registered, a private document with a register of deeds, the document has to be acknowledged by a public notary. Now, what if the said heirs refused to execute the necessary public document because they say that, we already executed the contract of sale, so there is no need to be notarized, no need for us to appear before a notary public. And then the buyer dies, his heirs can still compel the seller to execute the necessary public document. So that right is transmissible. 4.)Action to recover possession 5.) Right to receive civil liability arising from crimes. So you know that every criminal action, carries

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

with it the civil liability. GR: One that is criminally liable is also civilly liable. What if the victim dies? Can his heirs recover the right to civil liability? Of course, there is no prohibition. Because these rights are patrimonial and can be transmitted by succession. Victim died and he suffered damages, hospitalization, moral damages, his heirs may claim the civil aspect. 6.)The right to recover from tort or negligence. So that is also a patrimonial right that is transmitted by succession. Now, there are patrimonial rights that cannot be transmitted by succession. So these are the EXCEPTIONS. What are these? 1.)When it is provided in the contract that right is extinguished by death. So in the same example, I gave you in a contract of lease. Even ordinarily, the rights of the parties in that contract is transmissible, the parties may agree that the death of the lessor or lessee will extinguish the contract of lease. A 2.) Another example is usufruct. When you say usufruct, there is usually patrimonial rights arising out of that contract because a contract of usufruct gives one party the right to benefit or to use another person's property but GR under the NCC: A contract of usufruct is extinguished by death of either party in the usufruct unless otherwise provided by the parties in their contract. 3.) Contract of Agency. When you appoint an agent to sell your property, usually the right that arise out of that agency are patrimonial because the agency was constituted precisely to give right. Under the law on agency, if the agent or principal die, the agency is extinguished, that's the general rule. Except when the agency is coupled with an interest, in that case the death of the parties will not extinguish the agency. Example is mortgage. The debtor mortgage his land to the creditor to secure the mortgage. The subject matter of the mortgage is a house and lot owned by the debtor, that is to secure the loan, the money owed by the debtor to the creditor. And the mortgage can be foreclosed judicially or extra-judicially. Now if you want extra judicial foreclosure, you will have to execute the mortgage contract and then you will have to authorize the creditor-mortgagee as the agent with special authority to exact the extra-judicial foreclose if the debt is not paid on time. So that is agency, you authorized the creditor-mortgagee to extra judicially foreclose. Now what if the debtor dies, can the creditor-mortgagee still extra juducially foreclose the mortgage? Can you say No more? Because the agency is extinguished by the death of the debtor-mortgagor? No, because the agency there is what we call coupled with an interest. So it survives the death of the parties in the agency. Precisely that is the securityof the creditor-mortgagee. So how can he be secured when if the debtor dies, he can no longer collect or foreclose the mortgage. 4.)Another would be tenancy. Usually if you have tenants under the Agrarian law, A tenant, has the right in the land on which he is a tenant. So you cannot just terminate or evict him, there has to be a ground for the eviction of the tenant. And if he dies, the tenancy is not extinguished, it continues. The heirs of the tenant succeed to the tenant. But under RA 3844, there is a violation however, because it is the landowner who chooses. For example the tenant has several heirs, it is the landowner who has to choose who had to succeed to the tenancy. So that is with respect to patrimonial rights that cannot be transmitted. 5.)Another would be purely personal rights, GR is that they cannot be transmitted by succession because they are extinguished by death of the decedent. Examples of these personal fights are: a.)parental authority, they are not transmissible by succession although in the family code, there are person generally authorized to exercise parental authority, but that is not by succession, it is by law b.)Marital rights. C.)action for legal separation d.) right to receive support e.) right to vote

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

10

f.) right to become a partner in a partnership because under the law on partnership, death of a partner dissolves the partnership g.)guardianship h.) right to annuity. Do not confuse this with the right to insurance. Please read Art 2027. Article 2027. No annuity shall be claimed without first proving the existence of the person upon whose life the annuity is constituted. (1808) This is also insurance, but a special kind of insurance because usually, in insurance, when you die the heirs will benefit. This is special because, for example when you reach the age of 60 or 65, then you will start to receive your benefits. So that is the annuity. The basis of the annuity is the life or existence of the person receiving the annuity. So when he dies, the heirs cannot claim the continuance of the annuity. i.) the right to revoke donation by reason of ingratitude. j.) the right to public office, or even the right to a private office, example you are the president of a corporation. We now go to obligations. GR: obligations are transmissible. In Liu vs. Loy, in a contract to sell, if the rights are transmitted, the obligations are also transmitted. So, the heirs will be bound by the contracts entered into by the decedent during the lifetime of the decedent. Are debts transmitted? Yes. Actually, all obligations, the transmission is only up to the value of the inheritance. ALVAREZ vs. IAC. In this case, even if the heirs themselves did not inherit the property, but the monetary value of the property devolved into the mass of the hereditary estate. So, that formed part of the inheritance actually even if not the property itself but the monetary equivalent of that property. Now, the SC discussed here the concept of progressive depersonalization of patrimonial rights and duties. When you say depersonalization meaning with respect to certain rights and duties, it has evolved into something like the person is only a representative insofar as these rights and obligations are concerned. So, as a representative, when he dies, these rights and obligations do not die with him. There is now a transfer of his properties to his heirs so whoever acquires ownership of these proeprties by succession also inherit the rights and obligations arising out from these properties. So, from patrimony to patrimony. Ang property itself, or the rights and obligations arising fron that property are not extinguished simply because the person who previously possessed them dies. So, whoever comes into possession now of the property is still the representative but he now can exercise these rights and obligations. So, the rights and obligations do not pertain to the person, they are attahed to the proeprty and whoever has the possession of those properties also exercises these rights and possesses these obligations. So, they are not extinguished by death. In this case also, SC discussed the liability of the heirs insofar as the money-debts of the deceased are concerned. Actually there are 2 views on this matter: Money debts are not inherited because even before the heirs inherit the properties or succeed to the estate, in the order of priority: first payment of taxes, debts and other obligations of the estate. If anything remains of the estate that would now be distributed to the heirs. They have that we call RESIDUAL SHARESthe residue of the estate. It is not the heirs who will pay the debts but the estate. The heirs inherit the onetary debts of the decedent because even if we say that the estate pays all the debts, obligations before the delivery of the shares of the heirs, but by reason of the payment of these obligations this test, the eventual shares of the heirs are reduced. So, they still bear the burden of the debt. By payment of the debt, their residual shares are affected. They bear the burden of the debt. They inherit the obligations.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

11

The prevailing view is that the debts are transmitted. The reason is that, whatever payment is thus made by the estate is ultimately the payment of the heirs or distributee (di ko sure ani na term malabo audio dire na part). So they inherit the debt but only up to the value of the inheritance. So, if the parents have several obligations and they do not have properties at all, when they die, can their childen be made liable? NO because the heirs did not inherit anything. The liability for the debt is only up to the value of the inheritance. If the inheritance is zero, then the heirs cannot be made personally liable for the debts of his decedents. GR: Obligations are transmitted. EXCEPTIONS: If the parties stipulate that the obligations arising out from the said contract are not transmissible. Again lets go back to the contract of lease, ordinarily, the rights and obligations arising out from the contract are transmissible but they can agree that upon the death of either party the contract is extinguished. So, the obligations arising from that contract are also extinguished along with the rights. That is not prohibited. The parties can agree that there will be no transmission. Purely Personal Rights. The obligation to give support This is not transmitted. If the person obliged to give support dies, that obligation is not transmitted to his own heirs. Where the obligation was contracted solely in view of the qualifications of the parties. You are a singer and you have been contracted to perform in the concert. But before the concert, the singer died so namatay si singer. Can his heirs be compelled to sing in that concert because the obligation of the singer was tansmitted to them? NO! but if the singer received payment from that engagement, they can recover the money but they cannot be compeller to assume the role of the singer. Obligation to pay taxes That is not transmitted because thats really an obligation of the estate. Criminal liability. So A was convicted of rape and he was sentenced to die by lethal injection. But before he was executed he died. Can his heirs be now penalized in his behalf? NO! that is not transmitted by succession. Article 777. The rights to the succession are transmitted from the moment of the death of the decedent. This article gives us the operative time, the effective time when succession is made effective. The law says death. Authority says na this is not properly worded because you do not transmit the right to the succession. The rights to the succession are the rights of the heirs. So, that is not possessed by the decedent. What the decedent has are the properties and obligations which he transfers to his heirs by succession and what the heirs have are the rights. They have the rights. So, the proper wording of this article should be the rights of the succession are to be made effective from the moment of the death of the decedent. So, once the decedent dies, the rights of the heirs to the succession are already made effective. So they can exercise the rights. There is already transmission of the properties, rights and obligations. Now, what is the consequence of this article only from the moment of death? During the lifetime of the decedent, can his children demand anything from the parents insofar as the properties are concerned? No, expectancy lang. what if the parents sell properties and the consideration is very low, can the children question that sale during the lifetime of their parents? What if your fathe would say, Im selling this 10M worth of land to 10k because Im generous and mga anak mag -asin2 sa ta ha. Ikaw undang sa ka skwela total 10 years naman ka sa lawskul. ? So the right of the children are mere inchoate so the children cannot question the disposition, alienation even if your parents would

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

12

decide to destroy the property, you do not have the right to question. If they donate for example, can you not say na it will diminish my inheritance!? NO! even donation although when we go to collation, if the donations prove to be inofficious, meaning they would diminish the legitime of the compulsory heir, they can be reduced but not by the children during the lifetime of their parents. For all we know, they would predecease their parents, so there is nothing to inherit and they do not become heirs at all.

How about future inheritance? Under your sales, can you sell future property? What is emptio rei sperate compared to that of emptio spei? Example, you have a barren land. Youre planning to plant it with bananas. So as of now, you are looking for prospective buyers of your bananas.you enter into a contract with them for an exclusive buying and selling of the bananas that will be harvested from your soon to be banana plantation. Would that contract be valid? Yes, that is still a future things. As long as the future things will come into existence, that is still valid. How about future inheritance? Can you follow that argument? No. infact, it is expressly provided under the New Civil Code that contracts regarding future inheritance are void except partition of future inheritance because partition is not a conveyance of the property. Even if there is partition, there could be no transfer yet. There can be partition inter vivos. That will not effectively transfer the property yet. What will trransfer will be succession. It is the succession that is the mode of transfer. Partition is just the segregation, allocation, division of the shares which the heirs already acquired by succession. Once you entered into a contract over a future property, as long as the property itself will come into existence exception: future inheritance. Exception to the exception: partition of future inheritance.

WEDNESDAY June 26, 2013 Transcribed by: Jennidy Tambor and Jessielle Fabian So it is therefore a condition that before there can be succession in general, there should be death, the intervening fact of death. Now, what are the different kinds of death? Is there another kind of death in the first place? Because a s you usually know, when you say death, you picture a person who is lying in a coffin, so thats death, patay na sya. But in succession, there is another concept of death other than actual death. So actual death is the most usual, the common death that you know. So when there is actual death, when he dies, his heirs can already succeed to his estate. Now, what is actual death? We can gather that from the definition of death under the organ donation act of 1991. Death, it is the irreversible cessation of circulatory and respiratory functions, or the irreversible cessation of all functions of the entire brain including the brain stem. A person shall be medically or legally dead, if either:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

13

1. in the opinion of the attending physician, based on the acceptable standards of medical practice, there is an absence of natural respiratory and cardiac functions, ad attempts of resuscitation would not be successful in restoring those functions. 2. in the opinion of the consulting physician, concurrently by the attending physician, that of the basis of the acceptable standards of medical practice, there is a cessation of all brain functions and considering the absence of such functions further attempts of resuscitation, or continuous support and maintenance would not be successful in restoring such function. So remember under the organ donation act, its either absence of natural respiratory functions or absence of cardiac functions or cessation of brain functions. What if naa ka sa bukid, tapos and imohang lolo gi-atake, so wala siya nagtingog, wala siya naglihok, so inyo na siyang gilubong. And then you were asked, for example there is a case: A: Are you sure he was dead at that time? Did you examine if he had repiratory functions? Was there any physician? How about his cardiac f unctions? How About his brain functions? B:wala sir, wala attorney A: So how ca you be sure that hes dead? B:gilubong na man namo siya attorney. Im sure kung buhi pa siya adto, karon patay na siya. [joker si maam] Now, presumed death, we have two kinds of presumptions. First under Article 390 of the new civil code. Under Article 390, we need an absence of 10 years, for example in that period of time his existence is unknown, then 10 years is required for him to be declared as dead. But there is the 7year period, he can be presumed dead, but not for the purpose of opening his succession, when you say opening his succession, distributing his estate by reason of succession because of his death. Now, if he disappeared after the age of 75, take not that the law says after the age of 75, an absence of 5 years would be sufficient. Obviously because of his age, if he disappears, maybe the law says that he has less chances of survival. So the law gives us until 80. Okay, that ordinary presumption.

Article 391. Qualified presumption or extraordinary presumption, okay the law says after 4 years and what are those circumstances when a person is in danger of death. She took part of the war, he was in a vessel that was lost, there is volcanic eruption, tornado, typhoon. As long as there is danger of death. In case of ordinary presumption we said we need 10 years before we presume a person as dead. So if he disappeared in 1970, when will we presume him as dead? Plus 10, so that will be in 1980. How about in extraordinary presumption? 4 years, so he disappeared in 1970, when do we consider him as dead? 1970. What about the 4 years? Thats the when the presumption sets in. All the while you have a feeling that he is dead, but youre not yet sure. So we need the lapse of time to verify if he will appear because if not, then he really died, when? At the time of his disappearance. Because the premise here is that he died in that incident when there is danger of death. So it would be highly improbable that the plane crashed in 1970 he was missing and then after 4 years he is still missing, so after 4 years na matay na jud siya. So dili siguro reasonable to presume na 4 years siya naghingalo didto.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

14

-SURPISE QUIZ-

Okay, so lets discuss the case of Easter vs Lucero. In this case, Capt. Lucero was hired by Easter Shipping Lines as master and captain of its vessel. He was going from HK to Manila. He was expected to arrive on Feb. 18, 1980. Now, during the voyage Capt. Lucero sent three messages. What was the first message? That they encountered bad weather with strong winds causing the vessel to roll and pitch violently. Kusog daw ang hangin. And then second, that the vessel was laboring violently and they had to jettison some cargoes. And third message was that they needed immediate assistance because sea water was entering the hatch of the vessel and that they are preparing to abandon anytime. And then after that no more messages. So later on, the insurer confirmed the loss of the vessel. And so consequently, eastern paid the corresponding death benefits to the heirs of their employees including the wife of Capt. Lucero, but the wife refused to receive the death benefits because according to her the contract of her husband was voyage to voyage, and would only terminate upon the arrival of the vessel in manila. So obviously the vessel did not arrive, so for her she should still continue receiving the compensation.

So what is the issue in this case? WON Capt. Lucero was dead and consequently the spouse to receive the death benefits. So the Supreme Court said: It is undisputed that the company received three messages from Capt. Lucero. And all those messages indicated danger of death and then there is enough evidence to show the circumstances attending the loss and the disappearance of the vessel in fact the insurer confirmed the loss of the vessel, so the SC said, the forgoing fact is sufficient to lead to a moral certainty that the vessel had sunk and the persons aboard had perished with the vessel. So what is the meaning of that? Sure na na patay si Capt. Lucero because of those circumstances and upon this premise the rule on presumption of death under Article 391 if person disappeared under danger of death we need 4 years before we presume him dead, but the SC said the rule on presumption of death under Article 391of the civil code must yield to the rule preponderance of evidence. So where there are facts known or knowable from which a rational condition can be made the presumption does not set in and the rule on preponderance of evidence controls. So here, there were facts leading or showing with moral certainty that Capt. Lucero really died or perished along with the vessel. So from that case where there are facts from which we can infer a rational conclusion that the person really died we need not await the four year period before we conclude that the person is already dead. Here the widow should accept the death benefits. Now, we discussed before that before death, the heirs only have inchoate rights and expectancy so during the lifetime of the decedent the heirs cannot question any disposition, sale, donation, alienation made for example by the predecessors of their properties. But upon death under Article 777 the rights in the succession are made effective. So what is the consequence of that death? In the case of Emnace vs CA, in this particular case, they were partners in the business concerned, so Tabanao and Divinagracia were partners and then in 1986 they decided to dissolve the partnership, so they executed an agreement of partition and distribution of the partnership properties.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

15

Prior the the eventual distribution of the assets of the partnership Tabanao died. So when Tabanao died the remaining partners, specifically Emnace failed to submit to the heirs of Tabanao any statement of assets and liabilities of the partnership and he also failed to render an accounting of the partnerships assets. So also he did not remit to the heirs the share of Tabanao in the partnerships assets and profits. So what did the heirs do? The heirs sued Emnace for accounting distribution and remittance to them of the share of their father in the partnership assets. But here Emnace contended that the spouse of Tabanao had no legal personality to institute the action because she was not appointed as Executrix or administratrix of the estate of Tabanao. When you say administratrix, thats the female version of an administrator. Executrix, the female version of an executor. The administrator or executor basically oversees the administration of the estate of the decedent because when the person dies and leaves properties, there are times that the properties would not be immediately distributed to the heirs so pending the distribution who will take care of the property, if there are income to the property who will receive the income, if there are repairs to be made who will make the repairs? So this is the duty of the administrator. As a discussion, when you say ad executor/executrix, that is the person appointed in the will as administrator. If for example there is a will but there is no appointment of administrator or executor the person is called the administrator with a will annexed. If there is no will, he died intestate or the will is void, the person appointed is called administrator. The rule is, as we would discuss later in the case of Rioferio, when there is an appointed administrator, all suits for and in behalf of the estate should be instituted by the administrator. So in this case, Emnace alleged that the surviving spouse was not appointed as the administratrix or executrix of the estate of Tabanao, so she had no personality or capacityto institute the action. Is that correct? Again, take note, under article 777, transmission happens upon the death of the decedent and what is transferred under Article 776, the properties, rights and obligations. During his lifetime, Tabanao definitely had the right to institute an action for distribution, accounting and remittance of his share in the assets of the partnership, so when he died, that right or those rights were passed on to his heirs. And the spouse is an heir, a compulsory heir of the decedent. So having acquired by succession the right of her husband Tabanao, the wife stepped into the shoes of her husband, whatever action, that Tabanao could have brought during his lifetime, she inherited that so from the moment of death, his rights insofar as the partnership is concerned where transmitted to his heirs, so whatever claims and rights Tabanao had were transmitted to the respondents by operation of law, by succession. So there is no need for the heirs to be appointed as executor or administrator over the estate before they can bring actions for or in behalf of the estate. In Tabanao, when the spouse brought the action there was no proceeding at all for the appointment of a n executor or administrator. Now in the case of Rioferio, there was a pending proceeding for the appointment of an executor or administrator but before the appointment and during the pendency of the proceeding, the heirs brought an action for and in behalf of the estate so the question is, can the heirs bring the action, should they not await the result of the pending proceeding for the appointment of an executor or administrator? The SC said no. Again of there is no appointment of an executor or administrator, whether there is no pending proceeding at all or there is a pending proceeding as long as there is no appointment yet, any of the heirs can bring an action for and in behalf of the estate. Because again by succession under Article 777, they succeed to the property, rights and obligations of their predecessor.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

16

Now what if there is already an appointed executor or administrator? Can anyone of the heirs just bring an action? Here in this case the SC said no. General rule, when there is already an appointed executor or administrator all suits for and in behalf of the estate must be brought by the executor or administrator. Thats the general rule. There is an exception of course. What are these exceptions? Even if there is an appointed administrator, jurisprudence recognizes two exceptions, (1) if the executor or administrator is unwilling or refuses to bring suit; and (2) when the administrator is alleged to have participated in the act complained of and he is made a party defendant. Okay, so that is the rule with respect to the right of an heir to bring an action for and in behalf of the estate from the time that there is death. When their predecessor died, so they stepped into the shoes of their predecessors. Under the rules of court, Rule 131, Section3 (kk). Okay, there are rules under the rules of court, for example, one who is 60 years old and one who is 2 years old, they died at the same incident, there is a presumption na the one who was 2 years old died ahead of the other. There are those rules on survivorship. Those are premised on the facts that given the ages of these persons, one has lesser chances of survival than the other. But under the rules of court, in case of succession, kato dili to siya mag-apply sa succession, because the rule when it comes to succession, there is rule 131 Section 3 (kk). We are talking here of two or more persons who are called to succeed each other like, parent and child, so they are called to succeed each other, the parent dies ahead, the child will succeed. If the child dies ahead, the parent will succeed. Either of them can be the successor of the other. So if they died in the same incident, they are called to succeed each other and there is doubt as to which of them died first, so they died in the same plane crash but have no idea who died first, Do we apply the presumption which I mentioned before where the father was 90 and the son was 17, do we presume that the father died ahead of the son? Under the rules of court insofar as the succession is concerned, there is no such presumption. So how do we know who died first? Well, one who alleges that the son died first ahead of the father should prove it. He should present evidence like any other fact to be proved. Now in the absence of proof, is there a presumption now that the father died ahead of the son? There is no presumption. So again the presumption that I mentioned will not apply. So there is no presumption insofar as the father died ahead of the son, the presumption however is that they dies at the same time. Okay so thats the presum ption, they died at the same time. So will this matter? So what kung namatay una ang papa or ang anak? Is there any consequence? There is a consequence actually, for example, one example is when you go to the concept of reservatroncal under Article 891 of the Civil code. Although ayaw san a xa idigest or I analyze kay basig maibog ra mog taman. But that would apply in so far as RESERVA TRONCAL is concerned because in RESERVA TRONCAL there is a requirement that, for example (I think nag nganga na mo no! hahaha!), the DESCENDANT REPOSITUS kung namatay siya na walay issue, maka inherit sa iyaha ang RESERVOR. So halimbawa walay presumption as to which of them died first, the rule on RESERVA cannot apply. So for now, just take note of that. If the DESCENDANT PROPOSITUS and the RESERVOR died, and theres no evidence as to which of them died first, there can be no RESERVA in the first place. In so far as inheritance is concerned, as for example: A father and son, both of them already have properties. If the father died ahead of the son, the son inherits the fathers properties. If the father died ahead, the properties of the father will go to the heirs of the son. The children of the son will be able to inherit. If there is a spouse, in so far as the share of the son is concerned, lahi ang share sa spouse lahi pud ang share sa son.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

17

If the son died ahead, it is the father who inherits from his son. Ang madagdagan ay ang estate ng husband. In that case, it will form part of the estate of the husband.

Just remember this rule because this rule is significant. It will matter because it will affect the distribution of the estate. Because when we go to legitimes and legal succession, you will be asked to compute the estate. So it will vary if the son died first or the father died first.

DEATH opens succession. GENERAL RULE, there is no succession without the intervening event of death. However, theres one EXCEPTION where there is succession without death. That is FREAK SUCCESSION. FREAK SUCCESSION meaning weird or odd, not usual, it does not happen every day. This is a case of succession which takes place without the triggering effect of death. This contemplates delivery of PRESUMPTIVE LEGITIME prior to the death of the person who is supposed to pay such on the occasion of ANNULMENT OF MARRIAGE or DECLARATION OF NULLITY OF MARRIAGE. In your Persons and Family relations, when the marriage is annulled or declared null and void, one of the decree would order, among others, the delivery of the presumptive legitime of the children of the spouses. So bisag wala pa namatay ang spouses, there will be a computation of their presumptive legitime. Meaning, Bana-bana lang. Halimbawa patay na sila karon, mao ni ang value sa ilang estate, mao ni ang ilahang legitime. So that will be delivered to the children. That is intended for the protection of the children because when the marriage is annulled or declared null and void either spouses can already remarry. So to protect the properties of the children, their legitime from the previous marriage, the law orders the early delivery of their presumptive legitime even before death.

Now, as mentioned under Article 777, there is already transmission of properties, rights, and obligations from the moment of death. Q: Can the testator in his will provide that I hereby institute my children A, B, and C as my heirs but upon my death they will not yet enjoy the property. The property will not yet be transferred to them, but only after 10 years. Theres no transmission upon my death but only after some other time. A: No, because the law says that transmission will happen upon death. However, the testator may PROHIBIT THE PARTITION of his estate for a period NOT EXCEEDING 20 YEARS. So the heirs for the meantime cannot partition the estate but theyre already the owners because by succession, upon the death, they succeed to the properties, rights, and obligation.

Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. TESTAMENTARY SUCCESSION - is the one defined under Article 779. Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

18

So when there is a will, thats what we call testamentary succession. Remember, there sh ould be a will which result from the designation of an heir. Q: what does results from the designation of an heir mean? A: So there should be a designation of an heir because if theres no designation of an heir there is no testamentary succession. In a testamentary succession, you give the estate in accordance with the provisions of the will to the constituted heirs, legatees, or devisees. Q: Can there be a will without the institution of heirs? A: Yes, for example a will which contains only a disinheritance. I hereby disinherit my son A - it is still a valid will. There is no institution because it did not mention any one who will receive but it just mentioned the one who will be excluded. So there is no designation in the will. However, even if there is a will in that case, there is NO TESTIMENTARY SUCCESSION because the distribution of the estate with respect to the heirs who were not disinherited will be in accordance with the law on LEGAL SUCCESSION. Therefore, there should be a designation of an heir for there to be testamentary succession. Q: What does made in a will executed in the form prescribed by law mean? A: So there are formalities in the execution of a will. If the formalities are not observed then the will is VOID. Even if it is merely formal ha, it will affect the existence of the will. If the will is void then the will cannot be given effect. So the heirs mentioned and instituted in the will shall be disregarded and the estate will be distributed by Legal Succession.

BASIC PRINCIPLE IN TESTAMENTARY SUCCESSION a) Testacy is favored over intestacy If there is a will there is a way. If there is a will it has to be PROBATED. PROBATE a special proceeding intended to determine the due execution and genuineness of a will. The probate court will determine whether the document presented as last will and testament of the decedent was really executed by will and executed by him with testamentary capacity, freely and voluntarily. So if there is a document which is alleged as the last will and testament by the decedent, the probate court HAS to pass upon that will whether or not it is valid. It is MANDATORY. Only when the will is proved to be void can there be intestacy. As much as possible we have to give effect to the wishes of the testator. If the heirs would just disregard that then they are frustrating the wishes of the decedent.

Rodriguez vs Borja The testate proceeding (probate) filed at around 11:00am should prevail over the intestate proceeding filed at around 8:00am in the same day (March 12,1963). So in so far as testamentary succession is concerned, it is preferred over intestacy. Intestate succession is only subsidiary or subordinate to the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

19

testate succession. So here, even if the probate proceeding was filed later at 11 oclock in the same day, it should be given preference. The court should pass upon the validity of the will first before they may even entertain the intestate proceeding. It is only when the probate court disallows the will and it becomes final that the court can proceed with the intestate proceeding. The court acquires jurisdiction in probate proceeding and can take cognizance thereof upon the delivery of the will to the court or when a petition for probate is filed. So there can be a probate even without a petition but only by the delivery of the will to the court. So in this case the SC said that technically the probate proceeding was actually instituted ahead of the intestate proceeding because when the will was delivered to the court on March 4, 1963 the court already acquired jurisdiction. Even assuming that the withdrawal of the will really divested the court of its jurisdiction (because the will was withdrawn before the intestate proceeding was filed), the testate proceeding should still be given preference.

Balanay vs Martines So in this case the mother executed a last will and testament. In that last will and testament she disposed of her properties including the conjugal properties, among other dispositions. She provided for the manner by which her paraphernal lands and all the conjugal lands should be subdivided and distributed. She even described these properties as my properties. The probate of the will was opposed on the ground that the provision disposing of the conjugal land was void because the testator can only dispose of her separate properties in the will. The SC said that the will can be given effect. The SC took into account that the husband of the testatrix executed a waiver and renunciation of his share in the conjugal property. Even if the provision in the will was defective, the execution of the husband of the waiver cured the defect. Supposing that the provision was really void, the other valid provisions of the will can still be given effect. So as much as possible, the will should be given effect. To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of. Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will. -The interpretation which would give validity to the will is preferred over the interpretation that would result to the invalidity of the will. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect. - so pwede pa gani daw nimo vary ang language just to give effect to the will as long as its still consistent with the rules provided for under the law.

MONDAY July 1, 2013 -NO CLASS-

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

20

WEDNESDAY July 3, 2013 Transcribed by: Jennidy Tambor and Jessielle Fabian So we already finished Article 779. The definition of testamentary succession. Lets proceed to Article 780. So again we have another definition of succession, mixed succession. Based on the definition, there is a will but partly there is also a disposition by operation of law. Okay, when will there be mixed succession? For example (1) the testator made a will but he did not dispose of his all property in the will. Like he disposed all of his parcels of land but not his cash, cars, etc. So those mentioned in the will shall be distributed in accordance with the will, those not mentioned will be distributed in accordance with the law on legal succession, or (2) when the will does not validly dispose of all properties. Like for example some heirs instituted are disqualified to inherit, like to the mistress, or the priest before whom the testator made his last confession, so that disposition cannot be given effect, although everything was disposed of in the will but because of those disqualifications some disposition cannot be given effect, so those invalid disposition shall be disposed of by way of legal succession. So again thats the case of mixed succession. We also have other kinds of succession, we already discussed inter vivos and mortis causa. Now lets go back to article 778, the law also mentions legal or intestate succession. Legal or intestate succession is not directly defined by the New Civil Code, but the civil code instead enumerates those instances when will there be legal or intestate succession. That is mentioned in Article 960of the New Civil Code. So well just discuss that when we go to art. 960. So aside from that we have again other kinds of succession. (called a student) So can you refresh us what are those kinds of succession which we already discussed before? Okay as to whether or not there is a will. The ones we discussed previously I mentioned that earlier. As to effectivity? Okay, succession mortis causa and succession inter vivos. Now as to the extent? What is universal succession as distinguished from particular succession. So when we say universal, we are talking of the entire property of the testator, the universality of his properties. Universal succession is actually the succession by the heirs, it may not cover the entire property but it can be an aliquot portion or ideal share but in universal succession you do not specify the specific properties so 1/4 all of the 1/4 whatever will be the component of that 1/4. Particular succession, succession to properties with specific properties of the estate, like I hereby give to B my cash in Metrobank, so succession by legatees and devisees. As to part of the property transmitted? Compulsory or forced and voluntary succession. So what is forced or compulsory succession? The succession by the compulsory or forced heirs. Voluntary? Voluntary succession is succession by the voluntary heirs. When you say forced it is the succession by the compulsory heirs who are entitled to their legitimes, who cannot be deprived of their legitimes without a valid ground. Voluntary succession, it just depends on the will of the testator. So if he institutes a person in the will, then he inherits but if he does not and he is not a compulsory heir, then that particular person cannot inherit anything. Can you still remember the other kind of succession that we talked before? That kind of succession where death is not required? Okay, freak succession. Can you remember also contractual succession? What is contractual succession. Donation of future property by reason of marriage. Shall be governed by what? Yes, it shall be governed by the provisions of testamentary succession and the formalities of a will, this is because the donations will take effect mortis causa. So those are the kinds of succession.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

21

So let us now go to Article 781. So we learned before that inheritance consists of property, rights and obligations. Obligations to the extent of the value of the inheritance. So under Article 781, the law says not only those properties existing at the time of death but also those which you have accrued thereto since the opening of succession. For example, the testator died in year 2000, in his will he devised a building to A. Now this building is being leased so it earned for example 200,000 per year. So there are lessees in the building, so as we discussed before, unless otherwise provided in the contract the lessee has the right to remain in the leased premises because the rights and obligations arising out of that contract are transmitted. So the devisee A here cannot dispense of this contract. So at the time of death naa gihapoy lessees the building earned income. Who is entitled to the building? Ofcourse the devisee from the time of death. How aout the rentals from the building from the year 2000? Can the heirs say na ang building lang man ang gihatag sa imoha, walay labot ang income. Can that argument be sustained? No, because pursuant to Article 781 the inheritance includes in his will, not only the building but also the income which accrued from the building since the opening of succession or from the time of death of the decedent. If you remember your law on property, the law on accession. (called a student) Under the law on property, what is accession? What are the kinds of accession? Those which are incorporated or attached for example you have a land and then by virtue of action of the river the land increases, the processes is called accretion but it is also actually an accession because it is added to the land. Under the law on property if you are the owner of the land and there is an accretion attached to the land, who owns the accretion? The owner of the land. SO it is not any property that can be possessed by anybody, thats under the law on accession. So the owner of the principal is also the owner of those which are added to or incorporated to the principal. Now under the law on succession, if you are the owner of the building by virtue of succession of course as owner, as an incident of ownership, you also own whatever maybe incorporated or whatever income that may accrue to the building as an incident of your ownership. So this Article 781 is actually a reflection of the law on accession. You are entitled to whatever that have accrued to the property since the opening of the succession because that is part of the incident of ownership, the owner of the principal is the owner of the accessories. For example, the accretion which I mentioned, so the decedent made a will in 1990 devising to A a percel of lan in calinan, the land has 10 hectares namatay si decedent year 2010 now over time from the time of the execution of the will up to the time the decedent died, nag increase ang area sa land so nakagain siya ug half hectare, so namatay siya. Now, who is entitled to this half hectare? Can the devisee t whom the land was given claim the half hectare? As an addition to his devise, can he claim it under Article 781? Remember hah, we cannot justify that under Article 781 because that addition did not accrue at the time of the death of the decedent, that occurred even before and in another article which we will discuss there is a provision that only those properties given at the time of the execution of the will shall be included in the inheritance, devise or legacy, not those acquired thereafter. So just remember in that situation the accretion will belong to the estate because it is a legacy or devise, it is a gift of particular personal property, so the decedent said that my land in calinan, davao City covered by a certain title that is the only extent of the devise, kung madugangan man siya after the execution of the will dili siya apil sa devise unless expressly stated by the testator, so limited land sa unsa tong gihatag sa will. Article 781 naman, whatever would be added at the time of death onwards, because again in that case, namatay na ang testator there is already transfer of ownership to the heirs and as owner from tht time on you are entitled to whatever is added or incorporated. So for example, if the accretion occurred after year 2010, who would own that accession, so in that case it would now be the devisee because owner na siya in year 2010, so from

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

22

that time on, whatever may be added to or incorporated to his land would already be owned by him as an incident of his ownership pursuant also to article 781. Article 782. So article 782 is the definition of an heir in one hand and the legatees and devisees on the other hand. So an heir actually is one who is instituted to the properties of the decedent without specifying the property given, so he is instituted to the universality of the properties or to an aliquot share or an ideal share, so that person is an heir. Devisees and legatees on the other hand are persons to whom gift of real or personal properties are given by a will. When you say devisee he is the one to whom immovable properties are given by will. Legatee is one whom personal properties are given by will. And there succession is what we call particular succession. The heirs by universal succession, which we already discussed before. Lets go back to the definition of an heir. The law says, a person called to the succession either by the provision of the will or by operation of law, so the term heirs exists both in testamentary and in legal succession. In testamentary succession, we have compulsory or forced heirs and voluntary heirs. In legal succession we have legal heirs. Now take note, when you say compulsory or forced heirs they are entitled to their legitime, if the decedent had no will, all the compulsory heirs are legal heirs. So they will still inherit in the absence of a will. Now does it follow that all legal heirs are compulsory heirs? Because all compulsory heirs are legal heirs? NO. Because in compulsory heirs we have the illegitimate and legitimate children and descendants, parents or ascendants and the surviving spouse. BUT legal heirs include all those mentioned, also the brother and sister, nephews and nieces, all relatives ascending and descending walay limit, and in the collateral line within the 5 th degree of affinity. Even the state can be a legal heir if there is no one to inherit. Now when we talk of voluntary heirs, they are the ones who succeeds to the free portion, they made be friends of the testator, neighbors, strangers, even compulsory heirs can be instituted as voluntary heirs, a child is a compulsory heir if he is given something beyond his legitime, over and above his legitime. Now voluntary heirs will inherit only if they are instituted in the will, they can inherit only the free portion if they are instituted in the will. How do we distinguish in summary heirs from legatees and devisees: 1. The heirs succeed by general right or universal right to all or a fraction or aliquot part, on the other hand the legatees and devisees they succeed by special or particular title. 2. An heir exist both in testamentary succession and intestate succession on the other hand, the legacies and devisees exist only in testamentary succession. 3. The heir if compulsory succeeds to the inheritance regardless of the will of the decedent on the other hand, legatees and devisees succeed only by reason of the testators will. 4. The quantity cannot be determined until after the liquidation of the properties of the estate in so far as the heirs are concerned on the other hand in the legatees and devisees the quantity can easily be determined. 5. The heirs represents the juridical personality of the deceased acquiring his property, rights and obligations o the other hand, legatees do not represent the juridical personality because they only succeed to specific properties. 6. The heirs succeeds to the remainder of the estate after all the debts, devises and legacies have been paid on the other hand the legatees and devisees succeed only to particular property.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

23

In the distribution of the estate, unhaon ug bayad and utang. So taxes, debts and other charges, so we have the net hereditary estate. From that we satisfy the legitimes of the compulsory heirs and then legatees and devisees after that voluntary heirs, so as a voluntary heirs they have what we call residual shares. -breakWhat if the testator says: I hereby institute a gift to A 20% of all my propertiesHeir I hereby give to A 20% of my cash in PNB RoxasLegatee Why is there a need for us to know the distinction between an heir and a devisee or legatee? When we go to Article 854 in Preterition, the institution of heirs can be allowed, if you are an instituted heir and you are not a compulsory heir, you will not get anything but if you are a legatee or devisee, as long as it is not inofficious you will still receive the legacy or devise. Lets go to Article 783. Gives us the definition of a will, so it is an act whereby a person is permitted with the formalities prescribed by law to control to a certain degree the disposition of his estate to take effect after his death. So basically under Art. 783 it says a person is permitted, so it is just a privilege. Without a law permitting the act of making a will, the will cannot be given effect. With the formalities prescribed by law. So there are certain formalities which are required by law, if not observed the will is void. To control to a certain degree the disposition of his estate, so meaning the testator can actually control the disposition but not absolutely there are limitation thats why the l aw says to a certain degree. Now even if the law says that a will is an act it can also refer to the instrument itself as we will discuss when we go to the kind of wills. Now let us go to the essential elements of a will: PASSUCFRIDM ( pass you see freedom) So what does P stand for? P stands for Personal. So will making is a personal act. So what do you mean by personal? So can a person delegate the making of his will to another person? Take note ha we have 2 kinds of wills: 1) Notarial will there are formalities prescribed under the New Civil Code. It is not in hand writing so the mechanical act of making it can be delegated but the content of the will must be that of the testator himself. Required to be acknowledged before a Notary Public but it does not become a public document. 2) Holographic will you cannot delegate even the mechanical act of making the will because a holographic will has to be entirely written, dated, and signed in the hand of the testator. You have to make a distinction. If it is a notarial will yes, if it is a holographic will no. so PERSONAL. Q: Can another person make a will if you say Akong heir kay si A, B, and C, ikaw na bahala kung pila ang ihatag kay A, B ug C A: in this case the other person is already the one making the disposition which should have been done by the testator and that is expressly prohibited by Article 785. That is another feature of a will that is PERSONAL. General rule: Documents acknowledged before a Notary Public are public documents, EXCEPT: Wills. This is a consequence of the characteristic of a Will being PERSONAL. You cannot go to the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

24

Notary Public and procure a copy of the will or even to look at it before the RTC tried it. Generally, if you make notarize a document you have to retain 2 copies, one for your file and one be given to the Clerk of Court. After a number of years the Clerk of Court will give the copy to the Archives office. Under the law, the Notary Public before whom the will is acknowledged is not required to give a copy of the will to the Clerk of Court.

ANIMUS TESTANDI Meaning, he should understand that the document he is executing is a last will and testament and that the consequence of a last will and testament is that all the properties mentioned therein are to be given to the heirs upon his death. And because of this requirement, the testator should be of sound mind, because a person not of sound mind could not execute a will with animus testandi. Montinola vs Herbosa Case about Rizals Mi Ultimo Adios. There is no animus tetstandi in this case because the word give was not translated properly, it should have been leave. The CA said that it can be considered a will in a dramatical sense but not in a legal or juridical sense.

STATUTORY The execution of a will is a privilege; it is not an inherent right that we can demand. We can only make a will in the Philippines because we have the New Civil Code because there are other countries which do not grant the privilege to execute a will. The law can even withhold testamentary power. The congress can disallow us from making a will without prejudice to vested rights.

SOLEMN There are solemnities or formalities that have to be observed in the execution of the will. For Notarial Will we have Article 804 to 809. For Holographic will we have Article 804 and 810 to 814. As a general rule, if the formalities are not observed the will is void even if it was executed with animus testandi etc.

UNILATERAL The testator cannot condition the making of the will upon the consent or the act of another. You cannot even say that I hereby give my house and lot to A on the condition that A would also give to B his car. That is not allowed that is what we call disposicion captatoria which is expressly prohibited under the New Civil Code. When you give something through a will it should be by your own volition and not because you expect something in return. Wills are not contracts. In a contract there are 2 parties and is bilateral disposition, but in a will there is only unilateral disposition.

CAPACITY

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

25

The will in order to be valid, the testator must have testamentary capacity: (a) soundness of mind and (b) legal age.

FREEDOM FROM VITIATED CONSENT In a contract if there is vitiated consent the contract becomes voidable but in a will, if there is vitiated consent the will is VOID. Not voidable because who will annul it if testator is dead. Under Article 1839, it is one of the causes of the disallowance of a will even if the will was executed with all the other elements.

REVOCABLE Pwede siya bawion sa testator, pwede siya i-terminate or i-cancel even if gidawat na sa gihatagan niya. This right of the testator is almost absolute. A will is revocable during the lifetime of the testator; acceptance by the legatee, devisee, or heir during the lifetime of the testator will not vest any legal consequence and will not give him ownership because the transmission of ownership only happens upon the death of the testator. Not like donation wherein upon the acceptance the donation is already protected as long as the formalities are observed. What if the testator probated his will? because there are 2 kinds of probate. Probate a proceeding intended to determine the genuineness and due execution of a will. So the court will pass upon the validity of a will and all the formalities have been complied with. Probate can be done: 1) Ante Mortem Probate - During the lifetime of the testator or; 2) Post Mortem Probate - After his death. Q: So if the testator already probated his will to avoid any conflict upon his death, can the testator still revoke it? A: Yes, because again, until the death of the testator the will is revocable. The testator is not bound even if he already probated it. However, there is only ONE LIMITATION: 1) When the testator loses the soundness of his mind, he cannot revoke the will because in revocation there is what we call ANIMUS REVOCANDI or intent to revoke. If the testator revokes the will during his period of insanity, that revocation is without effect. So revocation just like execution requires the soundness of mind.

INDIVIDUAL The will must be the act of only one person. That is why joint wills are prohibited in the Philippines because it is against public policy. It will tend a spouse, especially the spouse who has lesser resources to commit parricide.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

26

DISPOSITION OF PROPERTY There must be properties of the decedent to be given in the will. Q: What if the document says to my children A, B, and C, I want you to know that X is also my child with my high school sweetheart and I want you to recognize him and love him like your full blooded bother. A: That is NOT a last will and testament because there is no disposition of property. If that document acknowledging a child does not comply with the formalities of a will, it is still valid because such document does not have to be in the form of a will. So that document can still have legal effect and he can use such document as evidence to prove his filiation. In your family code one of the evidence to prove filiation is an acknowledgment of the father in either a hand written document or a record of birth etc., it does not have to be in a form of a will. Q: What about a document appointing an executor or administrator not in a form of a will? A: It is still valid because there is no disposition of property. It is not a will. You are merely appointing a person to oversee or administer the properties. Q: What if the will says because X attempted against my life, I hereby disinherit my son X? A: It is considered a will because there is a disposition of property. Merza vs Porras It is still a valid will. When you disinherit a person, you actually dispose of your property by not letting that person participate in your property. Still, it is you who will determine who will get your property and who will not get your property by the act of disinheritance.

Q: what kind of disposition is that? A: Indirect property disposition. There are 2 KINDS OF DISPOSITION: 1) Direct disposition you assign specific properties to heirs, legatees, and devisee. 2) Indirect disposition you exclude an heir and indirectly saying that those not excluded will inherit.

SUMMARY: If there is a disposition of property to take effect upon the death of the testator, it has to be in the form of a will to be valid. Example: Indirect disposition via disinheritance If there is no disposition of property, it is still valid although not in the form of a will. Example: an acknowledgement of an illegitimate child or an appointment of an executor or administrator.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

27

MORTIS CAUSA The disposition in a will should take effect after the death of the testator because if the wordings of the will show that it takes effect during the lifetime; it is not a will but a donation. If inter vivos form of a donation. If it is a donation, it has to follow the formalities of a donation to be valid. If mortis causa form of a will. If it is a will, it has to follow the formalities of a will to be valid.

Vitug vs CA The SC said that the survivorship agreement is not a will. For it to be considered a last will and testament it must involve SEPARATE FUNDS and not the conjugal funds. Halimbawa naa koy account with my separate money and I will say na in case I die the balance to my account will belong to my husband that is in the nature of a testamentary disposition and cannot be placed in a survivorship agreement. So remember here, THE WILL MUST PURPORT TO DELIVER ONES SEPARATE PROPERTY IN FAVOR OF THE OTHER. IF THE SUBJECT IS NOT THE SEPARATE PROPERTY OF THE TESTATOR, here the conjugal fund, OF PERSONALITY NOT SEPARATE AND DISTINCT FROM THE SPOSES, IT CANNOT BE CONSIDERED A WILL. So swerte ang bana kay dili siya will, therefore, pwede niya makuha even though the document is not in the form of a last will and testament.

MONDAY July 8, 2013 Transcribed by: Zai Diesto and Adam Jambangan

Article 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. Again, we have discussed this before noh, one essential characteristic of a will is that it should be personal. The testator as we explained before cannot let another person make the will for himselfthe testamentary provisions, the properties to be given, the heirs, the portions to be receive by the heirsthose have to be decided by the testatir himself. How about the mechanical act of making the will? Now, we have to make a distinction, if it is a notarial will, the testator can delegate the mechanical act of drafting the will to another person, to his lawyer and this is usually done because insofar as the formalities are concerned, there are a lot of formalities involved in notarial wills and if it is just left to the testator to make his will especially if the testator is just a layman, he might end up with a void will because the formalities are very strict and sometimes difficult to understand that is why a lot of cases have reached the SC regrading these formalities, so, if a notarial will is to be done, the most safe thing to do is to consult a lawyer and let him draft the will BUT as to the contents, it should be that of the testator. If it is a holographic will, not even the mechanical act of drafting the will can be delegated because the law says, the holographic will must be entirely written, dated and signed in the hands of the testator. Mas sayon lang pud buhaton ang holographic will basta tanan handwriting of the testator, dated and signed by him. So, those are just the basi requirements.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

28

Article 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. This is another effect of essential characteristic of the will that it should be personal. Three matters mentioned here cannot be delegated.
1.

2.

3.

The duration of the designation of heirs, devisees or legatees This cannot be delegated by the testator. He cannot say na I hereby institute, A,B and C as heirs to my rest house in Samal and X, my bestfriend, will determine how long shall A use the house that cannot be delegated because that is something that should be decided on by the testator himself. It is equivalent to a testamentary disposition na how long would each enjoy the property left by them as heirs, that is for the testator to decide. The efficacy of the designation of heirs, devisees or legatees I hereby institute A,B and C as my heirs subject to the approval of X so, it is as if it was X ang testator kay ngano siya man ang mag-approve wala ba kay right na mag-approve? So, that is an invallid delegation. the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person I give my money to A,B and C. X will determine how much will each receive. Again, that is another invalid delegation because in that case it is as if X is the testator he will decide how much A,B and C will receive.

Article 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. This article speaks of a valid delegation. What is the difference between this and 785? In article 785, I hereby institute A, B and C to all of my cash as heirs and X will determine how much will each receive. In 786, here, the third person can determine the sums of money that should be given or applied, but there are requisites. Let us distinguish in 785, The heirs, legatees or devisees are named but in 786, In 785, No class or caused specified only heirs, legatees or devisees are named but in 786, it is the class or cause that is specified. In 785, What the 3rd person determines would be the portions which each heir, legatee or devisee will receive which is prohibited while in 786, The 3rd person determines the persons, institutions or establishements. So, if the testator says I hereby leave all my properties to my 3rd year Manresa class and my bestfriend X will etermine how much will each receive . is this a valid delegation? Valid. This falls under 786. The entire property is left to the class or cause. In this case, 3 rd year Manresaclass and there is no naming of specific person only the group and the bestfriend will determine. But if you say, I hereby leave all my properties Rafael, Carina, Jessie and X will determine how much will each receive that is invalid. That falls under Article 785. Now, if the testator said, I hereby leave sum of money as X will determine to my 3rd year class Manresa and X will also determine how much shall each receive . here, invalid because the sum of money is not specified. Article 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. This is actually similar to Art. 785. Here, it is the 3rd person who determine whether or not the testamentary dispostion is operative mura siyag veto power. It is not allowed. It is the testator himself who can decide whether or not his testamentary provision will be operative.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

29

Article 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Here, there are 2 interpretations: one interpretation makes the will invalid and the other makes the will valid or were talking about the provision. One interpretation invalidates and the other interpretation will give effect to the disposition. The latter shall be preferrred. Another way to say it is, the will must be liberally construed in favor of its validity. This is again pursuant to the general principle-- the testacy is favored over intestacy. DIZON-RIVERA vs. DIZON. Insofar as the legitimes the status of the compulsory heirs are fixed. They cannot be converted into legatees, devisees or voluntary heirs. Were only talking here of the free portion. When you say devise or bequeth , that connotes a grasp of free portion. Technically, when you say I bequeth youre giving a legacy. When you say I devise technically youre giving a devisereal property. So, here, because the testatrix use the word, I bequeth when we limit ourselves to the technical meaning of that, it means a grant of a free portion. Why did the SC say here that it is not limited to the free portion; that the testator did not intend this disposition to be merely as devises or legacies but really as heirs? I;m talking here of the free portion. When we say free portion that pertains to the over and above the legitime. We discussed before the distinction of the heirs, devisees and legatees. When we say devisees, they are limited only to a specific property, but when you say heir, whether compulsory or voluntary, were talking of the universality or if it is a free portion, the whole of that free portion or aliquot share of it but when you say devise, only to that specific property. So here, the SC said that it refers to the heirs and not merely to devisees because of the phrase my heir and the testament although she use dthe words I bequeth. In that particular phrase, the SC said it clear she intended to transfer an inheritance not merely a devise or legacy. If you ay inheritance , lets forget about specific properties. That refers to the universality of the estate. Here, the SC said asserted the intent of the testator. What is the first and principal law in the matter of testament. First, if there is doubt (if there is only a doubt lang ha), the basic principle is that testacy is favored over intestacy. How do you uphold testacy? First you should give effect to the wishes of the testator because that is the main reason why the testator made a willfor his wishes to be given effect. How will you give effect to the wishes of the testator? You determine the intention of the testator. Here, SC determined what was the intention. VDA. DE VILLANUEVA vs. JUICO. The SC said, if the testator had intended to impose a sole condition of non-re-marriage of his widow, the word use and possession when alive would have been unnecessary. Since she could re-marry during her lifetime. It is very clear from the will that the intention of the testator here was merely to vest usufruct to his wife. Again, the subject portion here is the free portion not the legitime of the wife because you cannot impose any condition, encumbrance, substitution on the legitimes. Here, this refers to the free portion.

BALANAY, JR. vs. MARTINEZ. The testatrix disposed of the conjugal property in her will. The testator or testatrix could only dispose his or her separate property in the will. You cannot dispose of anothers property in the will or in this case the conjugal . But, the SC here took into account the renunciation of his share made by the husband and in that renunciation, taking into account, the will of the testatrix could actually be given effect because there was already a renunciation. Therefore, the entire property could now be distrubted in accordance of her will as it was now renounced by the husband in her favvor. You could interpret this in 2 ways: 1. If youre very strict, you can say that that provision is void because it involves the disposition of a property not solely of the testatrix. Pursuant to the general rule, that could be validated. But that could also be treated as valid, again, because there was renunciation made by the husband. So, between these interpretations, the SC said na we

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

30

should follow second interpretation, the one which should give effect to the will because the principal law again is testacy is favored over intestacy. For example, the testator says, I hereby give my House and Lot in Jacinto St to my illegitimate child X what if it turns out that X is not his illegitimate child, will X still receive the house and lot? Yes. What was the intention of the testator? To give the house and lot to X. is the fact that the child is not really an illegitimate childnot a child at allis relevant to the disposition? NO! it was merely a description not a condition and when it is intended to be a condition, then in that case, it should be given effect. It would be conditional if if it would be proved is not an illegitimate child, I will give t o her my house and lot in Jacinto St., DC. That is a condition. The fulfilment of that condition is essential to the effectivity of the disposition. But here if you just said my illegitimate child , it is just to be construed as a description and the underlying reason here would be the liberality or generosity of the testator. Take note, that this rule will apply only if there is doubt. If there is no doubt, then give effect to the literal interpretation of the will. Only when there is doubt shall resort to the rules on interpretation. If there is no doubt there is no room for interpretation even if the provision appears to be so unfair, unless it is not illegal, not contrary to law, morals, customs, public order, public policy, then that could be given effect. In fact in the execution of a will, it is expected that some heirs will be favored over the other. Had the testator just intended to give an equal share then di na lang siya magbuhat ug will anyway, under the law they are entitled for equal share. The reason most of the timewhy execute a will is to favor some heirs over the other. Gusto niya tagaan ug more ang isa. You cannot do that in legal succession. Article 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. Ok, lets simplify this. This article speaks of 2 kinds of ambiguties: Latent or intrinsic ambiguity and Patent or extrinsic ambiguty. In Latent or intrinsic ambiguity, this is the kind of ambiguity that is not apparent from the face of the will. When you see the will, you wont see any doubt, or mistake or imperfection or ambiguity. Pagbasa nimo sa will murag walay problema but when the testator already dies, for example, and you start looking for the persons mentioned in the will or the proeprties mentioned in the will, then you will find now that there is now a doubt. There are actually 4 classifications here: 1. Imperfect description of the heir, legatee or devisee. For example, I hereby give my one and only car to my bestfriend Juan dela Cruz in that, walay problema. Youre referring to one and only a car and there is a specific person to whom the property is given BUT when you start looking for Juan dela Cruz, the bestfriend, you discover na, wala siyay bestfriend na Juan dela Cruz ang pangalan. 2. Imperfect description of the property given. Ex: my car described as red, Honda Civic, 2007 model it turns out na pagkamatay sa testator, although naa siyay Honda Civic na 2007 ang model pero dili siya red. 3. When 2 or more persons fit to the descripti on. Ex: to my bestfriend Juan dela Cruz, I hereby give my one and only car and then it turns out na pagkamatay sa testator , tulo diay sila kabuok na iyang bestfriend na Juan dela Cruz ang name. kinsa sa tulo? 4. When 2 or more things fit the description. Ex: I hereby give my 10-hectare land wala siya nagmention kung asa unya naa siyay 2 kabuok 10-hectare land.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

31

When you say patent or extrinsic ambiguty, this is the kind of ambiguity that is apparent in the case of the will itself. By just reading the will, you will easily determine that it suffers from ambiguity. For example, I hereby give all my cash to some of my friends kinsa man ni nga friend? Tanan ba sila? Duha? Tulo?lima? from the will itself, you will readily discover na that there is really an ambiguity. Patent, klaro kaayo siya. Now, this provision gives us the manner to cure the ambiguities. There are 2 kinds of evidence mentioned here: intrinsic evidence. That is the evidence that is found in the will itself in the 4 corners of the will. Ma-discover nimo ang cure by reading the will. Evidence that is supplied by the will itself. Ex: in the example given about Juan dela Cruz, kinsa man na bestfriend, tulo man sila kabuok. Kinsa man sa ila. Sa tenth page sa will nakabutang didto na classmate mo since nursery and then you went together abroad nagbakasyon mo, unya inyong mga manghod kay magbarkada pud. So makita didto naa lang isa sa tulo ang mag-fit sa description. So, in that case, makita na nimoang way to resolve the ambiguity by reading the will. You are able to identify who among the 3 of them is being referred into. We also have extrinsic evidence. Evidence that is gathered by going outside of the will. Bisan unsaon nimo ug basa2 sa will, wala jud ka kaila kung kinsa si Juan dela Cruz. So, nag-investigate ka outside and walay bestfriend na Juan dela Cruz, but naa siyay letters. For example, I hereby give my red Honda Civic 2013 model to my bestfriend Juan dela Cruz. Wala jud ka na -clarify sa will even by reading the will several times. Bisan gamitan pa nimo ug magnifying lens, wala jud kay nakita didto. So, you start investigatin. This time, youre looking for evidence outside the will. So mangita na ka and then nadiscover nimo na ang testator had a bestfriend not Juan but JOAN dela Cruz. And then naa pa jud siyay letters na during his lifetime ana siya na ihatag nako ni sa imoha ning red Honda Civic inig mamatay ko, kay type man kaya ni nimo. So he has discovered na si testator all this time ang tawag niya kay JOAN kay JUAN. By the letter, by investigating, you were able to discover by extrinsic evidence to shed light to the amboguity of the will. Thats an example of extrinsic evidence. Oral evidence excluding the oral declaration of the testator as his intention. Can you use oral evidence or parol evidence to cure ambiguity in the will? Article 789 says excluding the oral declaration of the testator . oral evidence not referring to the declarations of the testator could actually be admitted but not as to his supposed declaration like you present a witness in the court and ask him when do you know that this Juan dela Cruz is actually that girl named Joan? and then the witness would say mao man daw tong giingon sa testator during his lifetime na siya daw tong tagaan ug kotse. Mao man tong verbally giingon sa testator. How would you able to verify if that witness was telling the truth? The testator is no longer allowed to dispute or contend that declaration. ay actually ana ang testator ddili daw siya si Joan, ako daw to! Mao iyang giingon sa akoa. Nobody can dispute that, that is why that is the reason why it is not admissible because it opens the door for perjury. It is very difficult to verify. So that kind of statement is not allowed but as to other oral evidence, that would be allowed. So, to my bestfriend Juan dela Cruz and there is this person who would testify actually isa ra man jud ang iyang bestfriend during his lifetime. Wala na siyay laing bestfriend how did you know that? kabalo ko kay sabay man mi nagdako sa testator. Kalaban kaayo nako na silang duha kay ginaaway ko ana nila. Since, that can be verified, you testify verbally as to facts, that would be admissible. As long as his testimony is based on his/her personal knowledge. But again if you say oral declarations of the testator during his lifetime mao na siya ang dili allowed. That is even supported by Rule 130 Sec. 9of the Rules of Court This is the parole evidence rule. So essentially, the parole evidence na when the agreement has been reduced into writing, then the terms and conditions of that written agreement are the only terms and conditions agreed upon. You cannot anymore vary the tenor or the term of that written agreement by introducing oral evidence because supposedly when you enter into the contract, you are understood na you have already entered in that contract all the terms that you have agreed upon.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

32

HOWEVER, a party may present an evidence to modify, explain or add to the terms of the written agreement as provided here. Now, the term agreement includes wills. So, you can actually prove the contents of the will, for example there is ambiguity, mistake or imperfection of the will, you can shed light to that mistake, imperfection, ambiguity by oral evidence. Exception to the parole evidence rule. What kind of ambiguitymay be cured by extrinsic and intrinic evidence? Both intrinsic and extrinsic ambiguity are curable by any kind of evidence whether intrinsic or extrinsic evidence which will include oral evidence except oral declarations of the testator. So, walay distinction. You can use both kinds of evidence. Now, if you still remember your obligations and contracts, can you correct the concept of reformation? Article 1359 Article 1359. When, there having been a meeting of the minds of the parties to a contract, their true intention is not expressed in the instrument purporting to embody the agreement, by reason of mistake, fraud, inequitable conduct or accident, one of the parties may ask for the reformation of the instrument to the end that such true intention may be expressed. If mistake, fraud, inequitable conduct, or accident has prevented a meeting of the minds of the parties, the proper remedy is not reformation of the instrument but annulment of the contract. Reformation is an action to be filed. If A will just say B, diba atong agreement kay mortagge? why is this contract a sale? and then B will say ay tama diay no? sige usabon nato in that case, by the will of the parties, by their volition, wala nay court action, giusab nila. So, no need for action for reformation but if he says ambot lang nakalimot ko kay paminaw nako sale man jud to oi unya mag-lalis na jud mo so this time, A can file a court action against B for reformation. For example your grandfather would say Chino, Im giving you 10 hectares of land in Calinan DC and you say k. then, nagbuhat na siya ug last will, gipakita ka niya sa last will, pagkakita nimo, napansin nimo na nawala ang zero, 1 hectare ra ang gihatag. Can you file an action for reformation. You tell your grandpa, lo, di ba 10 hectares man to ngano 1 na lang man ni dire? ana imong lolo: I dont know, murag 1 lang man to ako gisaad sa imoha and you insist usaba ni imong will lo! and your lolo says dili ko kay mahal kaayo magpabuhat ana! can you file an action for reformation? Article 1366 Article 1366. There shall be no reformation in the following cases: (1) Simple donations inter vivos wherein no condition is imposed; (2) Wills; (3) When the real agreement is void. The law expressly says na reformation is not a remedy in this case. Assuming that your grandpa really intended you to give 10 hectares and you accepted that but you cannot force him to correct his will because the grant to you is by his generosity or liberality. Pasalamat gani ka kay gitagaan pa ka ug 1 hectare. Remember, the will is generally revocable. When can you raise the question of ambiguity? You cannot raise that when the testator is still alive. You can ask but you cannot file an action in court to have that corrected but after he dies and there is now a question, that question should be raised during the proceeding. Now, when the person dies with a will, the first step is probation. Probate is the proceeding instituted to determine the, genuiness, capacity, due execution of the will.so, basically what the court does during the proceeding is just to determine if the formalities prescribed by law in the execution of the will has been complied with. If the testator has the testamentary capacity at the time when he executed the will and whether or not there was a vitiated consent. After the court determines that, the second would be the distribution in accordance with the provision of the will. So, during that proceeding, the second case, you will now raise the issue of the provisions of the will like ambiguity, kulang imong inheritance. It is part of the whole proceeding. It should really be part of the probate proceeding because, if the will is not probated, wala na tay question sa interpretation because in the first place wala na tay will. It has to be probated first before these ambiguity, etc may come into issue.

WEDNESDAY

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

33

July 10, 2013 -NO CLASS-

MONDAY July 15, 2013 Transcribed by: Zai Diesto and Adam Jambangan

Let's now go to Art 790. Article 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. (675a) So article 790 gives us the rule on how to interpret or construe ordinary and technical terms, what do we mean by ordinary terms? Give us an example. A parcel of land. When you say a parcel of land, it is understood as a land. So when ordinary terms are used in a will we give it their ordinary meaning or their literal meaning as they are understood. How about technical terms? Words that have meaning to certain law, subject, discipline or science. example legacy. Legacy has a technical meaning, it is a gift of a personal property. When we say devise, it is a gift of real or immovable property. What is the rule when the technical term is use?

Ok, so the general rule is an ordinary term is to be given its ordinary meaning, a technical term is to be given its technical meaning.

Are there instances when an ordinary term may be given another meaning or even a technical term given a different meaning other than its technical meaning? Yes. 1. If the intention of the testator is otherwise. Now what happened to the case of Dizon-Rivera vs Dizon? The term used there was bequeath. when we say bequeath it is the giving of personal property from the free portion. It has a technical meaning. Here, it was understood not only limited to the free portion because the intention of the testator was to really constitute these persons as her heirs, As born out by the use of the terms "my heirs in this testament". The intention of the testator was different, so the technical meaning was not followed instead it was interpreted in accordance with the intention of the testator. Another example, this time an ordinary word given a different meaning. I hereby give my bed to A, but there was no bed in the estate of testator. Instead of bed, was a bench, and that bench was used by him as a bed in his lifetime.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

34

The other exception as discussed is 2. If the testator himself drafted the will and he is not familiar with the technical meaning of the word. Like "I hereby give my house and lot to my adopted children". Adopted is a technical term, it means that someone taken in the household by the testator but before that there should be a judicial decree of adoption. What if this children is not legally adopted, but since birth they have been accepted by the testator to his home and he treats them as his own children. By then, they are adopted but not legally. So here, the testator himself is not familiar with the technical meaning of the word. Although it has a technical meaning. And he was the one who drafted his will, not a lawyer. So in that case, it could be construed again following the intention of the testator. So the property should be given to his children even if not legally adopted.

So again. GR: ORDINARY WORDS GIVE ITS ORDINARY MEANING. TECHNICAL TERMS GIVE ITS TECHNICAL MEANING, unless the intention of the testator is otherwise. And how do we know what is the intention of the testator? We have to based ourselves to the circumstances of the testator during the time he made the will. So we should take into consideration the facts and circumstances. Now, if we cannot ascertain the intention of the testator with respect to those words used, then the disposition shall be null and void. It would affect the disposition only which could not be ascertained, not the entire will. But if there is no doubts, the words should be given its technical or ordinary meaning.

Article 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) So article 791 consist of 2 parts: 1. The will must be interpreted as a whole because you have to give effect to every expression which will give effect to the will. Do not interpret the will in isolation or piece by piece, so dapat econsider nimo kung unsa tong naa sa babaw og sa silong. Dapat you have to harmonize.

2. Testacy is favored over intestacy because if a will could be interpreted in two ways, that interpretation which is consistent with the validity of the will shall be followed. Now we have the case of Yambao vs Gonzales. The word tungkulin or gampanan connotes something which is mandatory, to carry out a mandate. Having reference to the word pahihintulutan, it can convey no other meaning than to impose a duty upon the appellees. So again this is an example of the first part of Art 791. The second part, we already discussed that in the cases of Rodriguez and Borja.

Article 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

35

that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n) So some provisions in the will are valid and some are not. So those invalid dispositions, invalidates the will? No. It does not invalidate the entire dispositions as long as they can be separated. But if it is the intention of the testator to really give effect to the entire will even if some are valid and some are invalid. Kung dili nimo maseparate ang invalid sa valid, then the entire will would be invalid.

In the case of Balanay vs Martinez, which we already discussed. The SC said here that rule is that the invalidity of one of the several dispositions obtained in a will, does not result to the invalidity of the other dispositions unless it is to be pursue of the testator would not be such other dispositions, the first invalid disposition that come within. So here again, statement of the testatrix that she own the southern half of the conjugal land is contrary to law because although she is a co owner, her share is inchoate, but that illegal declaration does not nullify the entire will, it may be disregarded. But here, the court did not invalidate the will because there was already a waiver of the husband of his share in the estate. Art 793. Article 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) Ok so were talking here of after acquired property. So under art 793, we another concept of after acquired property. Art 793 simply says that properties acquired after the execution of the will shall not be included in the legacy or devise. The law is silent, it does not even mention legacy or devise, but it applies only to plain legacy or devise. It does not include inheritance. Why? Because when you say inheritance, the heir succeeds to the universality of the property, rights and obligations of the decedent. For example, the testator executed a will in the year 2000. "I hereby give one-fourth of my estate to x" at that time, the estate was 20 million. One fourth of 20M is 5million. Now when he died, at that time, shall we say his estate was already 24million. So 1/4 at the time of death is already 6million. So how much would be the share of that heir? What is the 1/4 of the estate? would it be the 5m or the 6m? 6million because he did not specify what would be the property to be taken by the heir. He was just instituted to the aliquot share of the estate.

Now art 793 refers to a legacy or devise. Remember in a legacy or devise, specific property is given. " I hereby give to A my land in Calinan, Davao City covered by Tct14434" So that land covers 10 hectares in the year 2000. Over time, the land, because of accretion, increased to 12 hectares by the year 2010. and the testator die in 2010. how much the devisee can claim from the estate by reason of devise? 10 hectares only because that is the rule under art 793. The legacy and devise would received only those existing at the time of the execution of the will and not those acquired thereafter. Why not include the 2 hectares? Because again, by the express provision of art 793. But diba under the law of accretion, the principal shall also include the accessory? the accretion here is the accessory. Whoever owns the principal also owns the accessory. So why cant the devisee claim the 2hectares? Because, when the will was executed, he was not yet the owner. The ownership accrues only at the time of death, there is a transfer of ownership only at the time of death. From the time the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

36

will was made until the time the testator died, the devisee was not yet the owner and that's the time when the accretion occurred, so therefore he was not the owner of that accretion.

Now we discussed art781. What does art 781 provide? Actually 781 should be applicable to all, inheritance, devise and legacy. The inheritance, device includes not only at the time of death but also all those that accrue thereto at the opening of the succession. Meaning those which accrue since the time of death. So here, who owns the 2hectares? It would be estate. Not the devisee. So can we not invoke art 791? Again no, because art 781 refers to those which accrue starting from the time of death of the decedent. Halimbawa, the land remain 10 hectares, and in 2010 after the death of the testator, there was a flood and there was accretion, so because of the flood 2hectares were added to the land, kinsa nay tag-iya karun? The devisee or the legal heirs? It will now be the devisee because at the time when there was accretion, he was already the owner. So as an incident to his ownership and also by the provision of art 781, being the owner of the principal, he also owns whatever that may accrue out of that property. So that is under art 781.

Another would be, for example the testator devised a building and the building was being rented out to x. The will was made in2000. So only the building was devised. And then siguro mga 2years before his death wala na nakabayad ang mga lessee.and then the testator died. So ang building karun, naadto kay devisee. Because it was givento him as a devise. So bisan pa og naadto na kay devisee ang building, he has to respect the lease contract. And since girespect gihapon niya maski wala na nagbayad, 2 years pod after namatay ang decedent wala nakabayad ang lessee. So on the 3rd year, the lessee paid. So ang gibayaran niya katong 2years before the death (200thou)and katong 2years after thedeath(200thou). Asa man niya ibayad ang lease rentals? Kay devisee or sa estate? We have to look at the distinction. With respect to the lease rentals which accrued prior to the death of decedent, that should be given the estate because this lease rentals did not form part of the devise. But as to the lease rentals which accrued after the death of the decedent will go to the devisee because as the owner of the building , he also owns the lease rentals, that would now be part of his ownership. Again before death=estate, after the death= devisee. So remember: Art 793 includes accruals after the execution of the will until the death of the decedent while 781 applies from the time of the death of the decedent onwards. 793 should only apply to legacies and devises while 781 can apply to an inheritance, legacy or devise.

Now there are exceptions however to Art 793, what are these? The law specifically says so and by intention of the decedent as was expressly provided in the will. So if the testator said, I hereby devise to A my building and all income with respect to that building shall belong to the devisee starting from the time of the execution of this will. So in that case, when the testator dies, the devisee will get not only the building but the income from the building to be counted at the time of the execution of the will. That is because there is express stipulation as written in the will. The other exception is in Art 836, which we will discuss later. Art 930 and Art 935.

We now go to Art 794, Article 794. Every devise or legacy shall cover all the interest which the testator

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

37

could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n) Now Art 794 mentions only devise and legacy but actually it should also include an inheritance. So Art 794 provides that the legacy, devise or inheritance will include all the interest which the testator has on the property. I hereby give my land to A. So that means that everything that the testator owns in that land, all his interest shall likewise pass on to the devisee. If he is giving the car, so all his interest in the car. He cannot said that ah borrow lang mani, pahiram lang mani, No, if he gives the car, then he gives the ownership, everything. Unless it clearly appears from the will that he intended to convey a less interest. So kung muingon siya nga I hereby give the usufruct of the car to A. So even if the testator is the owner of the car, the grant is only limited to the use of the car, it does not include the ownership. But if you say, I hereby give the car, then that means his ownerhip over the car, and so he has to give the car in its entirety, the tires, the doors, everything. Exceptions: 1. If it clearly appears in the will that the testator merely intend to convey a less interest. The one I mentioned before. The giving only of the usufruct of the car. 2. The testator can even convey a greater interest. Theres a land in Calinan, DC. The testator owns only one-fourth of the land. But in his will, he says I hereby give the entire land to X, the devisee. So is that possible? Yes. That would be under the law on legacies and devisees. In that case, there is an implied directive to the estate to acquire the remaining of the land so that it will be given to the devisee. Now, if the owner of the refuses to alienate his share or he demands excessive price, then the obligation of the estate will just be to give the value of the thing to the devisee. 3. The testator can give property which he knows, does not belong to him. So he ordered the property to be purchased to be given to the legatee or devisee. The second example is under Art 931, the 3rd is under Art 930 and 931 also. So kani, lahi nga situation, the land was not owned by the testator at all, but he is giving that lot to the devisee. That could be possible 1. If the testator knew at that time that he did not own the land but still he expressly orders that the land be given to the devisee. So the same rule would apply. The estate should acquire the land so that it may be given to the devisee. If the owner refuse to sell the land, then the obligation of the administrator of this estate is to give the just value of the land to the devisee.

Art 795. Article 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n) So we now go to the validity of the will. Actually, Art 795 speaks only of Extrinsic validity from the viewpoint of time. But we will discuss the different kinds of validity. The Formal, the extrinsic validity and then we have the intrinsic validity. So this is the 3 rd time that you hear the intrinsic and extrinsic. 1. Intrinsic and extrinsic ambiguity 2.Intrinsic and extrinsic evidence and now we have 3. Intrinsic and extrinsic validity. So, wala pa mo naconfuse? Lahi lahi na silag meaning ha.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

38

A.) Now Formal or Extrinsic validity- this refers to the forms and solemnities that must be complied with to make the will valid. Again, we have 2 kinds of will in our jurisdiction, we have the notarial will and the holographic will. So the Notarial will has formalities that should be observe, Art 804 until Art 809. Holographic will we have art 810 until 814 including 804. So those are the formalities and also the testamentary capacity of the testator whether or not he is of sound mind and of legal age. That is also part of the extrinsic validity of the will.

B.) Intrinsic Validity refers to the legality of the provision in the will. So whether or not the heir that is instituted is disqualified,WON there is valid disinheritance, WON there is preterition, question on filiation and ownership. These are the matters pertaining to the intrinsic validity of the will. When we say intrinsic, we are referring to the provisions of the will, the capacity of the heirs to succeed from the testator. We are referring to the contents of the will and not the form.

So we now go to different viewpoint of validity: (TIME and PLACE or COUNTRY) There was a question before, in the bar exam. What governs the validity of the will? So if that is the question then you will have a very long answer. 1. Viewpoint of TIME(Extrinsic validity)- extrinsic validity of a will depends upon observance of the law enforced at the time the will is made. So this is Art 795. Case of Enriquez vs Abadia. So he made a will in 1923, and at that time holographic will is not allowed. In terms of the law at the time of the execution of the will. So that will is void. How about the subsequent law, because during the probate proceeding, holographic will is already allowed? The controlling is the law at the time of the execution of the law and not any other time, such as the date of death of the decedent or the date of probate proceeding, that is with respect only to the extrinsic validity of the will. In the case of Abada vs Abaja. Abada made a notarial will in 1932. At the time when the New Civil code did not yet effect. The acknowledgement before a notary public is required only in NCC, at that time before, no acknowledgement is required. So it was valid when measured at the time of the execution of the will. But the subsequent laws, have already acknowledgement as requirement. So note, that Legislature cannot invalidate a valid will. Same principle in the case of Enriquez. The legislature cannot validate a void will.

2. Viewpoint of PLACE/COUNTRY(Extrinsic validity)- Asa gibuhat sa testator ang will. That is aside from the law at the time of execution. So we have several rules. a.) Testator= Filipino executed in the Philippines = Art 17 of NCC Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

39

established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) Based on the 1st paragraph The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. So if the will is executed in the Philippines by a Filipino, the obviously we have to follow the law in the place of execution which is the Philippine law. 1 choice. b.) Testator= Filipino executed a will abroad before a diplomatic or consular officials of the Republic of the Philippines in a foreign country, that is the second paragraph of Art 17. We follow Philippine law. c.) Testator= Filipino executes abroad= then go back to 1st paragraph, the law of the place where the will is executed. Example, he made a will in Argentina, then comply the law of Argentina, etc. In addition to that we also have Art 815. Article 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) Actually, this is the same with Art 17, the law of the place of the execution is necessarily the place where he may be at the time of execution. In 815, by the use of the word authorized that means, there is another law which he may comply, so it means that is just an alternative. It is implied that the principal law which he has to comply is the law of his national, in this case the Philippine law. So in this case the options of the testator is to comply with: 1. Art 17- law of the place of execution 2. Art 815- law of the place where he may be and 3. Art 815-Philippine law. d.)testator=Alien/foreigner who executes a will abroad= Art 816 Article 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) Under Art 816, he has actually 3 choices: 1. The law of the place of his domicile/residence 2. The law of his own country/nationality 3. Philippine law, that is in conformity with those which this code prescribes. Aside from Art 816, he may also comply with Art 17, 4. the law of the place of execution. So take note ha, alien who executes abroad has a total of 4 choices. e.) testator=alien executes in the Philippines= Art 817 Article 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

40

own country, shall have the same effect as if executed according to the laws of the Philippines. (n) Under Art 817, he may comply with the law of his country or nationality. Example, he is an American, who executes his will in the Philippines, so he may comply the law of his country which is US. Or under Art 17, the law of the place of execution. So 2 choices. Again, remember ha, when a Filipino executes a will in the Philippines, then he has lesser option than a Filipino who executes his will abroad. And a Filipino testator has a lesser choices compared to alien/foreigner. We now go to Intrinsic Validity. 1. Viewpoint of Time (intrinsic validity)- Please read Art 2263 Article 2263. Rights to the inheritance of a person who died, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. (Rule 12a) So with respect to intrinsic validity of the will from the viewpoint of time, the law that governs is the law at the time of the death of the decedent. Why death? Because again when we say intrinsic, we are referring to the distribution and transmission in succession happens only upon the death of the decedent. For example, the testator made a will in 1930, in that will he excluded his illegitimate son. Before the New Civil Code, illegitimate children have no successional rights but under NCC they already have successional rights. So is that will valid as to its substance? It depends kung kanus-a mamatay si testator. If he die before the NCC, then there is no problem because they are not recognized as having successional rights. But if he dies during the effectivity of NCC, then dili jud na siya pwede. There is what we call preterition. Again, remember it would depend upon the law in force at the time of death. 2. Viewpoint of PLACE/COUNTRY(INTRINSIC VALIDITY)- Art 16 Article 16. Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

41

So with respect to place as to the intrinsic validity, there is only one law, the law of his country or nationality. So mas dali siya timan-an compared sa extrinsic validity. So we have several cases under this, lets start with Bellis vs Bellis. Amos was a citizen of Texas, USA. So in that case, the SC held that he should follow the law of his country. And what would be consequence of that? In so far as the distribution of his estate, the deprivation of the legitime to his children is valid because it is the law of his nationality. SC states that whatever public policy, we have in the Philippines cannot be applied to the will because our law is not intended to extend to the succession of the foreign nationals. So as long as you are a foreigner, the law of your country will apply insofar as the intrinsic validity of the will is concerned. In the case of Llorente vs CA. In that case, he was a former Filipino citizen, but he was naturalized. In so far as the intrinsic validity of the will, marriage, what law shall govern? The law that will govern is his national law. So always remember ha, it is the nationality at the time of decedent.

WEDNESDAY July 17, 2013 Transcribed by: Jennidy Tambor and Jessielle Fabian

So we discussed last meeting Article 795. So we learned that the validity of the will may be intrinsic or extrinsic. And if it is extrinsic we are talking of the forms and solemnities. Intrinsic the substance of the will, the dispositions made in the will. Both may also be viewed in two points: (1) From the viewpoint of time and (2) from the viewpoint of place or country. Now, the last which we discussed was intrinsic validity. And also we already learned that from the viewpoint of time, it is the time of death that determined whether or not a will is valid. So the dispositions in the will have to be measured based on the law enforced at the time of the death of the decedent. Now insofar as the viewpoint of place or country is concerned, there is only one law, the national law of the decedent. Now, we discuss the case of PCIB vs Escolin. (Atty. Yangyang called a student) So what law shall govern the intrinsic validity of the decedent? For example the decedent is a national of Mexico? How do we know the laws of Mexico? Is there a presumption that the law of Mexico is the same as the law in the Philippines? Do our courts take judicial notice of our foreign laws? So the foreign law in question is not taken judicial notice of the court, there should be evidence presented in court as to what is this foreign law in question. So for that purpose what may be presented as evidence? So you can present those documents where we can find their foreign law. For example their civil code, their substantive law in succession. If there is no civil code like he country is not a civil law country but a common law country? Ok, jurisprudence or expert in their laws may be presented. Now what are the exceptions if any to this rule that our courts do not take judicial notice of foreign laws. So based in the case of PCIB vs Escolin: when the laws are already within the actual knowledge of the court such as when they are well and generally known or they have been ruled upon in other cases before it and none of the parties concerned do not claim otherwise. (Another student was called) How about in the case of Mirciano vs Brimo. The complete provision was that he wanted his estate to be disposed of in accordance with the Philippine laws and whoever would contest that would forfeit his inheritance. And that would be against the law, because the law

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

42

says specifically Article 16 that it should be his national law which would govern the disposition of his estate. So that makes it illegal because he wanted it to be distributed in accordance with the Philippine law in direct contravention to article 16, so in this case because that disposition is illegal then whoever opposes the disposition would not forfeit his inheritance because what they are opposing is in the first place an invalid disposition. So we learned here that there was a disposition, in the manner of partition it was not in accordance with Turkish laws, so the oppositors allege that because our courts do not take judicial notice of their laws so they do not know, our courts do not know, what are the laws of Turkey. So if you say that these dispositions are not in accordance with Turkish laws, then you have to present evidence, what are the laws of Turkey which are not complied with. But because no evidence was presented, then the SC applied the doctrine of processual presumption. In the absence of proof to the contrary, it is presumed that foreign laws on the formalities of wills are the same under Philippine laws. So the oppositor here did not prove that the said testamentary dispositions are not in accordance with the Turkish laws. So because there was no evidence they are presumed to be the same as the law of the Philippines. I also assigned the case of Suntay. (She called a student) What is a re-probate proceeding? So even if the will of that decedent has already been admitted to probate abroad, and in that same will, there are dispositions affecting properties in the Philippines, our courts do not automatically enforce that will. So the same will already probated abroad will have to be probated again here in the Philippines. So that is what we call a re-probate proceeding. Now, during the re-probate, what you need to establish is: first, the court over which the proceeding was conducted abroad is really a probate court. Okay and then among others you also have to prove what are the laws of, in this case, China insofar as probate of wills are concerned. So have to prove there procedural law on the matter. Now, what is it cannot be proved by the rules of China insofar as the probate proceedings is concerned? Do we apply the doctrine of processual presumption as we have learned in the case of Miciano vs Brimo? NO! You really have to prove that. That the court where the will was probated, that the probate court had jurisdiction. That the will was probated in accordance with the rules of China insofar as probate of wills are concerned. Absent proof of those matters. The probate of the will in the Philippines shall be denied. So the doctrine of processual presumption was applied insofar as substantive law is concerned but not insofar as the procedural law is concerned. (5-min break) Okay so we already discussed the case of Suntay. I just forgot the title about that other case, but in that particular case, this involves the estate of foreign nationals. So first the wife died and then her estate was distributed to her child and then to her husband. And then the husband remarried in the Philippines and subsequently the husband also died. Now the wife and the husband executed their respective wills, so their wills were probated abroad, and during the probate, they were represented by the same counsel. So the will of the husband was already admitted to probate abroad, and then in the Philippines, there are properties left in the Philippines which also have to be disposed, so during the probate of the same will in the Philippines, the same lawyer who represented them abroad, also represented them in the Philippines. Now in the Philippine proceeding, the lawyer who was also the administrator presented a project of partition, so he made a partition of the properties of the estate of the husband which is not the same as the partition or the disposition done in the will. So nausab, lahi iyang gibuhat in the Philippines, now it was contested, so this is actually an administrative case against the lawyer because of among others gross ignorance of the law, so the lawyer contended that although it is admitted that the decedent was a national of a foreign country and under Article 16 the intrinsic validity of his will shall be governed by his national law, but in this case he made a project of partition in accordance with the Philippine law. His defense was that under jurisprudence, our courts

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

43

do not take judicial notice of our foreign courts, so whoever alleges that this is the foreign law has to allege it and prove like any other fact, and in the absence of proof, those foreign laws shall be presumed to be the same as the Philippine laws. So for him, he relied in the doctrine of processual presumption, that his project of partition is in accordance with Philippine laws because there was no evidence as to what are the foreign laws. So there is presumption that the foreign law is the same as the Philippine law. But the SC rejected his argument, why? First because they were the same lawyer who represented the probate abroad, so they knew what were the contents of the will and the laws of that country where the will was probated. So it is very impossible that he did not know about the dispositions in the will which was already probated abroad and which he also represented abroad. And second the SC said that the lawyer is a partner in a very large law firm, so he had within his access materials and resources, he has access to libraries, to jurisprudence, to the law of the foreign country. SO he can easily research on those laws. Therefore, it was really reprehensible that he still relied on the Philippine laws in presenting his project of partition, when he should known what are the laws applicable in this particular case. So wala gi-apply sa SC ang doctrine of processual presumption in that case. So you cannot just say that anyway since walay evidence sa foreign law presumed na the same sa Philippine law so we rely on the doctrine of processual presumption. We now go to the case of Christensen vs Garcia. (She called another student) So the decedent here was a citizen of California but a resident of the Philippines. So under the law, for example Article 16, the intrinsic validity of his will, the dispositions shall be governed by his national law. So should we apply his national law in this case? How about the California probate code which says that a testator may dispose of his property by will in the form and manner he decides? Actually the SC here cited two laws, we have the California Probate code and Article 946 of the Civil Code of California. So which of these laws would apply? In this case there was a question because the will of the decedent excluded a compulsory heir but in the California Probate Code, a testator may dispose of his property by will in the form and manner he decides, so even if may legitimate child, even if may spouse, kung dili ko ganahan sa imoha, I can exclude you from my will. So is that will valid? In this case? Why do you say that the Philippine law would govern? What is your basis? What particular law? What article of that law? So why dont we follow the California probate code, why do we follow the Article 946? What kind of law is Article 946? Just like in the Philippines diba, we have conflicts of law rule. How about the California Probate code? Like in the Philippines diba we have provision in the new civil code which makes it illegal for the testator to exclude his compulsory heirs but if the decedent is a foreigner and Article 16 says his national law shall govern, if his national law would allow the deprivation of legitimes then that would be valid. So which do we follow? So we follow the Article 16 because we are talking here of a foreign national on the conflicts of law rule. SO the same manner we have Article 946 of the Civil code of California which is a conflicts of law rule and the California probate code which is their internal law. So we follow article 946 because this applies to persons which are citizens of California but residents of other jurisdictions. What do you mean by renvoi doctrine? So diba in the Philippines we have again, the internal law saying that compulsory heirs are entitled to their legitimes. We also have article 16 saying that the intrinsic validity of a will shall be governed by the national law of the decedent. Now, we have here a foreigner, so as to him we apply article 16, so we go to his national law. But his national law also has two kinds of laws: they have their internal law saying that they may dispose of their estate in whatever manner they desire but they have another law, saying that the disposition of his estate shall be governed by the law of his residence. So balik napud ta sa LAW OF HIS RESIDENCE.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

44

So sa Philippines, again na naa siyay mga laws - Katong Internal Law ug katong Conflicts of Law rule, if muingon ang Philippine law na use National law California Law ang gamiton. Pero if the law of California says na: if the citizen is a resident of another country then the disposition of their property shall be governed by the law of their domicile or residence So balik napud ta sa Philippine Law pero sa Philippine law gamiton daw ang law of California. Ana ban a xa? Walay kahumanay ang determination. So, REFERRING BACK means to refer it back to our INTERNAL LAW of the domicile not to the Conflicts of Law rule. So didto na ta sa Internal Law of the Philippines dili sa Conflict of Law rule, otherwise it would become a national football so the matter would be incapable of determination. So this is the RENVOI DOCTRINE.

RENVOI DOCTRINE Actually the Renvoi Doctrine could apply in two instances: 1) if the decedent has his domicile in one country and a citizen of another country and the national law says that the disposition of his estate shall be governed by the law of his domicile. 2) If the decedent is a citizen of one country and has properties located in other countries and his national law says that the disposition of his properties shall be governed by the law where the properties are situated. This is what we call lex rae sitae. in this case it is the law of the place where the property is situated. So in those instances the Renvoi Doctrine can apply. It would not be the National Law of the decedent but either the law of his domicile or the law of the place where the property is situated. In so far as the INTRINSIC VALIDITY of a will of a decedent is concerned, it is governed by his National Law. If he is a foreigner, we will not apply the Philippine law but his National Law. However, there may be instances that we apply Philippine Law. That is: 1) When the DOCTRINE OF PROCESSUAL PRESUMPTION would apply; 2) When the RENVOI DOCTRINE would apply. So those are the two instances where the succession of the estate of a foreign individual would still be governed by Philippine Law.

Art. 796. All persons who are not expressly prohibited by law may make a will. So we are talking about TESTAMENTARY CAPACITY. The general rule is that all persons not expressly prohibited by law may make a will. TESTAMENTARY CAPACITY is the qualification of a person to execute a will. QUALIFICATIONS: 1) legal age (18 years old) and; 2) sound mind.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

45

TESTAMENTARY POWER - The power granted by the state to its citizens or subject to execute wills. So a person, technically, may have testamentary power but no testamentary capacity that is we have the new civil code granting us the privilege to execute wills but we do not yet 18 years old or we dont have soundness mind. Or there is testamentary capacity but no testamentary power like in other jurisdiction where they are not given the privilege to execute wills even if they are of legal age and sound mind. Under the New Civil Code, testamentary power and testamentary capacity are used interchangeably. But if you are asked what is the difference between both, you should be able to come up with the distinctions, although in conclusion you can state that they are used interchangeably. All persons only refer to NATURAL PEROSNS, not to Juridical persons because juridical persons cannot execute wills. Juridical persons do not possess soundness of mind which is a qualification for testamentary capacity.

Art. 797. Persons of either sex under eighteen years of age cannot make a will. LEGAL AGE Persons of either sex so male or female or those in between may execute wills. Under 18 years of age so meaning you have to be 18 years old for you to be able to execute a will.

3 THEORIES TO DETERMINE 18 YEARS OLD 1) Spanish law the 18th birthday should have passed or commenced before one can make a will. So if today is your 18th birthday you can now make a will. It doesnt have to be on the exact hour. For example 18 years ago you were born 4pm, you dont need to wait till 4pm to make a will as long as your 18th birthday has passed or commenced. 2) American Law it is sufficient that the day previous ones birthday have commenced. So if tomorrow is my birthday, today I can make a will. So that is the day before your birthday. 3) Civil Code the person is already considered 18 years old 4 days prior to his birthday. Because under the NCC the computation of 1 year is 365 days. So for you to have 18 years you should have 18 ka 365 days. But every 4 years naa may leap year. So there are 4 leap years in your 18 year life. In a leap year diba 366 days man, that is why it is 4 days before your birthday pa lang, naabot na nimo ang 18 ka 365 days. For the law on succession, we follow the SPANISH LAW. Usually ang mga concepts in succession follow the Spanish law. The Civil Code concept shall be useful in contracts. Like if you enter a contract before 18 years old it is voidable, but if you enter it 3 days before your 18 th birthday, valid na because you are already 6,570 days old.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

46

Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. So the again the two qualifications are 18 years old and soundness of mind, all other qualifications are not actually included. For example a person under Civil Interdiction can still execute a will because he is still of sound mind and presumably 18. This is also evident in Article 34 and 82 of the RPC. Art. 34. Civil interdiction. Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. The execution of a will involves despostion MORTIS CAUSA, therefore he is allowed to make wills. Art. 82. Notification and execution of the sentence and assistance to the culprit. The court shall designate a working day for the execution but not the hour thereof; and such designation shall not be communicated to the offender before sunrise of said day, and the execution shall not take place until after the expiration of at least eight hours following the notification, but before sunset. During the interval between the notification and the execution, the culprit shall, in so far as possible, be furnished such assistance as he may request in order to be attended in his last moments by priests or ministers of the religion he professes and to consult lawyers, as well as in order to make a will and confer with members of his family or persons in charge of the management of his business, of the administration of his property, or of the care of his descendants. So a person who is to be executed can execute a last will and testament. So what happens if the person executing a will is not of legal age and not of sound mind? the will is VOID.

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. SOUNDNESS OF MIND 1st paragraph negative definition of sound mind. So bisan pa naa kay gamay sakit etc, pwede gihapon na qualified ka to execute a last will and testament. So the person does not have to be in full control of all his reasoning faculties or he may be suffering from different illnesses or forgetfulness but he can still have soundness of mind provided he has the 3 requisites under the second paragraph of Article 799.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

47

2nd paragraph positive definition of sound mind. 3 REQUISITES: the testator was able at the time of making the will to know a) the nature of the estate to be disposed of, - the testator must know the nature of the estate to be disposed of - the testator must have a sufficient recollection of his property at least knowledge of his properties in general. - He need not know the lot number or the number of hectares or the exact amount, for as long as he knows the nature and kind of properties he has in general. b) the proper objects of his bounty, and - He must be aware of those persons who would naturally be ___ upon him. Dapat kabalo xa kung kinsa iyang mga ana, apo, asawa, ug mga amigo. Because if he already doesnt recognize his wife, children or himself, there is a problem because how can you give something to someone whom you do not know. c) the character of the testamentary act. - Animus testandi. The testator must understand that the execution of the instrument will dispose of his properties upon his death and that he may revoke it anytime. He must be able to understand the consequences of his making the will.

CASES Bagtas vs Paguio Here he has paralysis of the left side of his body and impaired hearing and loss of speech but there was no mention that his mind was affected. Again, one does not have to be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause, so - SOUND MIND.

Neyra vs Neyra So contrary to the allegation that a person with Addisons disease or Sleeping disease is a person with unsound mind, they actually have a refreshed and active mind because of the adequate sleep they get. Therefore, - SOUND MIND.

Torres vs Lopez

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

48

So First stage Senile Dementia or murag Alzheimers disease , a person becomes forgetful, but as long as it is not a disadvantage and it is only the first stage and he can comply with the requisites of the 2nd paragraph of Article 799, then you are testified. SOUND MIND. Guardianship may be for insanity or incapacity or minority or prodigality and the mere fact of being placed under guardianship does not necessarily mean that you are of unsound mind, it may be for other reasons, so SOUND MIND. If Advanced Senile Dementia na, like dili na siya maka ila sa iyang mga anak or sa iyang mga properties or sa iyang mga short term memories, then dili na siya ka comply with the requirement under 2nd paragraph of Article 799, then UNSOUND MIND.

MONDAY July 22, 2013 -NO CLASSWEDNESDAY July 24, 2013 -NO CLASS-

MONDAY July 29, 2013 Transcribed by: Zai Diesto and Adam Jambangan Now when do we know if a person is not of sound mind? We have discussed before that to be of sound mind, a person need not perfectly sane. So, he may be suffering from illnesses. His mind might be affected by some diseases or injury but as long as he can identify the proper object and the nature of the estate to be disposed of. Now, with respect to being of unsound mind, it is not also required that a person should be totally insane for him to be considered of unsound mind. So, dili jud kinahanglan na naa na ka sa mental hospital, nga buang na jud ka for you to be considered of unsound mind. We go back to the case which we discussed before LOPEZ vs. LOPEZ, senile dementia in itself is not equivalent to unsoundness of mind but here, when the dementia is already advance, when it iss complete senile dementia, it will result to testamentary capacity. That is if the person can no longer remember his children, his spouse, he no longer has any recollection of his properties, even if he may understand the testamentary act but the 3 requisites are required. So, usually pag naa kay Alzeimers disease kung advance na jud siya, makalimot na ka. So in that case, wala na jud ka kaila sa imong asawa, sa imong anak, wa na ka kabalo sa imong property. so, how would you possibly and intelligently execute a will disposing of certain properties na nakalimot na ka and giving them to your relatives na wala na ka kaila. So, in that case, the person is considered of unsound mind. The other instances when a person is considered of unsound mind: 1. when he is unconcious. If he is unconcious and there is a will that appears wherein it was executed at the time that it was unconcious, an unconcious person is not crazy. He is not insane but he could not have possibly executed a will in that stage. If there is excitement or stress, if he cannot recall intelligently the extent of his property, the objects of his bounty*, the character of the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

49

act, if because of that excitement or stress, even if he is not insane, then he can be considered of unsound mind. 2. Delusion/ Drunkeness/Drug addiction High na kaayo siya unya nag-execute siya ug will mao na iyang trip the execution of the last will and testament, ok so, kung high na kaayo ka, ang uban di ba if in that stage, they are capable of committing the most heinous crimeslike mangrape ug tigulang na kaayo mga 90 or 85 pero sa ilahang panan-aw gwapa kaayo si manang or sexy, so wala na sila sa tarong na panghunahuna. So again, if a will is executed in that state the person is to be considered of unsound mind and the will could not be valid. 3. Commatose Again, kung na hospital siya same in unconciousness, commatose siya at that time, then the will appears to be executed during that period where the testator was in the state of comma, the will is not valid. There are also criteria according to IQ. We have 3 classes: 1. Idiots >IQ average: 25 >conginetally and intellectually deficient sila. >they cannot take care of their bodily needs >these persons for the purpose of succession are considered to be of sound mind. So any will executed by them would not be valid. 2. Imbeciles IQ: 26-50 They are mentally deficient due to disease They can be trained to take care of their bodily needs only. Mao lang. they cannot be taught how to write, how to read, how to count These persons, for the purpose of succession, are considered to be of unsound mind. 3. Morons IQ:51-70 They can learn, reading, writing and simple arithmetic They can be self-supporting Under the law of succession, they can execute wills because, if they can read and write and do something simple math, they can understand. So, in executing a will, you dont have to be a genius di ba? Otherwise, walay ma-qualify na magbuhat ug will or siguro 1 in a million lang. so, they can execute wills. TORRES VS. LOPEZ. How do we know whether or not this person is really of unsound mind? If his disease or illness is to some extent, but he can no longer understand the character of testamentary act, he can no longer identify the proper objects of his *** and the nature of the estate to be disposed of. There is no hard and fast rule. Each case rests on its facts and must be decided on its own facts. So, dili buot pasabot na kung dire ok, unya sa laing case ok ra gyapon. Depende gyud sa surrounding circumstances but again I should always remind you that as long a sthe 3 requisites can be complied with. you have to memorize these 3 requisites. so That in the bar exam when you will be asked: W/N the will is valid and it boils down whether or not the testator is of sound mind unya di ka sure kung unsa ang answer. Well, di man ka ma-zero kung at least i-cite nimo ang circumstances under Art. 799. So base on the facts of the case and applying the law under Art. 799.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

50

Lets go to Art. 800. So the first paragraph is the general rule. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The consequence of this presumption is that the proponent of the willthe one who petitioned for the probate of the willdo not have to prove that the testator was of sound mind at the time of his execution. The burden is upon the oppositors who insist that the will is void because the testator was not of sound mind. And the burden can be discharged only by clear and convincing evidence. Higher that preponderance of evidence. In the heirarchy of evidence we have: substantial evidence, preponderance evidence, clear and convincing evidence, proof beyond reasonable doubt. so, gamay na lang proof beyond reasonable doubt na. you have to prove that the testator was not of sound mind by clear and convincing evidence. So in the cases which we already discussed especially in Baltazar vs. Laxa, the SC cited the general rule na a testator is presumed to be of sound mind at the time of the execution of the will so you have to present by clear and convincing evidence to discharge that burden. Now, there are2 instances when the testator would not be presumed of sound mind. That is the second paragraph but that only mentions 1 but actually there are 3. 1. if the testator, one month, or less, before making his will was publicly known to be insane take note, he must be publicly known; the general public must be aware of his insanity. If only his close family members are aware of the insanity, although he may be insane at the time of the execution of the will but the general rule under the first paragraph will apply. He is presumed to be sane unless there is proof to the contrary presented. But if he is publicly known to be insane, then the general rule is that he is already presumed to be of unsound mind. So, during the probate of the will, the proponents have to prove by clear and convincing evidence that the testator was of sound mind at the time of the execution of the will. And then the period1 month or less. 1 month = 30 days. So, halimbawa kung publicly known to be insane siya, 2 months before the execution of the will, what is the presumption? Soundness of mind. Dapat 1 month or less; so the period involve must be very close to the date of the execution of the will such that at the time he made the will it would be natural and logical to presume he was in the same state of mind at that time. 1 month or less.
2.

When the testator was judicially declared insane before making the will If there was already a judicial declaration of his insanity then when he makes the will it is presumed that he was insane at that time. Unless the judicial declaration was already lifted. Like in special proceeding: petition for the hospitalization of an insane person. In that case, there is a declaration by the court that the person is insane and has to be take in a mental institution. So, after the judicial declaration, halimbawa mga 3 months after that declaration, a will of that same person appears, what is the presumption? Was he of sound mind? 3 months naman? NO! because there was a judicial declaration but again proof to the contrary may be allowed. So even if there was a judicial declaration that he was insane at a certain point in time, evidence may still be presented that would actually prove that he was of sound mind when he executed the will. So, we are just talking of the presumption. Rebuttable presumption. Insanity of thegeneral or permanent nature shown to have existed at one time is presumed to have continued.

3.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

51

this is based in the Rules of Court under Rule 131 Sec. 3(ee) Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: xxx That a thing once proved to exist continues as long as is usual with things of the nature; The classic example here is a person was born an indiot or imbecile. So since birth ing-ana na ilang status and there was never a time na nakita nimo na tarong siya or naayo siya and then nawala siya from public view and later on na-learn na lang na namatay siya and then there was a last will and testament made by that person. What is the presumption? Was he of sound mind or unsound mind? Was he publicly known to be insane 1 month or less? NO, because as we said nawala siya from the public view. Is there a judicial declaration? Wala gyapon. But based on his nature, it is presumed that such mental condition continued because it was already established that he was in hat mental condition and for a long time he had been in that condition and that condition was presumed to have continued from the time he has existed. So, we follow this presumption under the Rules of Court. Again, you can present proof on the contrary. TORRES VS. LOPEZ. Even if a person is placed under guardianship, that has nothing to do with his mental condition. If a person is placed under guardianship, may be for other reasons not necessarily for his mental capacity. If a person is placed under guardianship on the account of insanity, that would be a judicial declaration of insanity and the assumption is, he is of unsound mind although evidence to the contrary may be presented to prove that he was really of sound mind when he made the will. We are talking again of rebuttable or disputable presumption. What evidence may be presented to prove the soundness of mind of the testator? 1. The testimony of the notary Public. We are talking here of the notarial will because a notarial will needs to be acknowledge before a notary public. And the notary public, because it is inherent to the acknowledgement, that he needs to see to it that the testator, witnesses voluntarily executed the documents. A person not of sound mind could not possibly understood the import and consequence of the act. So it has to be known to the notary public. Although in practice, ang uban kay papirmahon lang sa libro bisag dili gaatubang ang lawyer, though okey lang siya sa ubang documents nga dili kayo important, pero dili sya dapat sa deed of sale, last will and testament, see to it nga niatubang jud sa inyuha ang parties and gipangutana jud ninyo sila kung tinuod ba tong nakasulat sa dokumento og nakasabot ba sila og sila ba jud tong nag atubang sa inyuha og nagpirma sa document. We have the case of Ramirez vs Ramirez in relation to the testimony of the notary public. What is the presumption if the document is acknowledged in a notary public? It enjoys the presumption of regularity. So when you assail that regularity, what kind of evidence is required? Also, clear and convincing evidence to overturn the presumption of regularity of a public document. So in this case, it was the notary public who testified the mental condition but it was not ___ to him that the testatrix understood the proper bounty and the nature of the act but when ask about the mental condition, he simply referred to the certification. Mao may nakabutang diha, so mao gyud na siya. Pero dili jud niya mapanindigan kay didto lang siya naga-rely. So, the SC said that such testimony fails to establish the testamentary capacity. The statements of the notary public were far from satisfactory, vague, evasive and tend to beg the very issue. Mura gud og, unsa man gwapo? Bryt sya So wala niya ginaaddress and issue. 2. The testimony of the attesting witnesses in a notarial will. So this testimony is given great weight but it should be reasonable and unbiased. It could also be overcome by other competent evidence like the testimony of the physician. 3. Testimony of the attending physician. It should be given the highest regard if the physician was present when the will was executed. In the case of Samson vs Corrales, the physician was not the attending physician, he merely gives his opinion so mere professional speculation cannot prevail over the positive statements of the attesting witnesses as long as the statements of the attesting witnesses

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

52

were not unreasonable. So, kung ikaw jud ang attending physician, ikaw jud ang nag asikaso, ikaw jud ang nagtambal, naghatag og medical attention, then it should be given the highest regard, your testimony as to the ____ pero kung dili ikaw, ang imong professional testification, that can be overcome by other evidence. Also, 4. the testimony of other witness may be accepted. The witnesses are not ____ to the execution of the will, especially if the will is a holographic will. No witnesses are required in the execution of the holographic will and the mental condition of the testator could be an issue in holographic will. So who may testify? It can be the testimony of other witnesses as long as the testimony of the witness is credible, reasonable and must based upon the fact upon which the opinion is based. So factual. So these are the pieces of evidence that may be admitted to prove soundness of mind. Article 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) So we have here the principle of Supervening incapacity or capacity. Take note that soundness of mind and testamentary capacity is required at the time of the execution of the will. So, even if prior to the execution, the testator was not of sound mind, as long as when he made the will, he was already of sound mind, then the will is valid. Now even if after he made the will, he became insane, would the will be affected? NO. The will would still remain to be valid. The supervening incapacity does not invalidate an effective will. Now, if the will was executed at the time when the testator was not of sound mind, the will is void. So, here we have an insane testator, he made a will. Last will and testament, and he made several dispositions and then later on, he was cured, and he discovered that he made a will. So he read his will, and he was so impressed by the what he read, and so he decided to keep that document as his last will and testament. So he was already sane at that time, is the will valid? No. What does Art 801 say? nor is the will of an incapable validated by the supervening of capacity. So what happens now to the will? Kung gusto jud diay niya kato jud iyang will? There is a proper procedure for that, we call it Republication. We should follow the proper procedure on Republication. Although, in reality, kung ing-ana jud ang nahitabo, walay nakabalo nga nagbuhat siya og last will and testament katong time nga buang siya, and then naayo na siya, nakita ninyo iyang gibitbit, gipang-hambog niya nga gwapo kayo iyang last will and testament, unya that time kayo key na siya, so katong mga tao ng kaila siya, kabalo sila ng anaa siyay last will and testament. So it is very difficult to prove, nga that last will and testament was made during the state of insanity. But if it ___it is void, and he should republish that. Article 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) Article 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. (n) So Art 802 and 803 talk of a married woman. But how about a married man? Can a married man make a will without the consent of the wife? And also, can he dispose his property by way of will? Yes. Art 97 of the Family Code. Article 97. Either spouse may dispose by will of his or her interest in the community property . (n) But under the NCC, they need not mention of the married man because it has been recognized that the married man may dispose by will of his property. He may execute a will. Ang mga married woman sauna, mga subdue pa sila, ok subordinate to the husband, so karun klaro na nga naa pod silay right. Dili lang ang husband, cause it also mentioned in the FC. So the law make it clear, the right of the woman to make a will even without the consent of their husband.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

53

So, what may she disposed in a will? Her separate property and her share in the conjugal partnership. What if the spouse disposed of the entire conjugal partnership or the absolute community? Valid only as to the share of the spouse, the testator/testatrix. Although in the case of Balanay, it was valid because there was renunciation made by the husband of the partition made by the wife. _END_ EXAM: 20 MCQ- 1 pt each and minimum of 8 questions for essay Maam suggested that we memorize everything. From Art 774- definition of succession What are the subjects of succession (property, rights or obligations) The modes of acquisition, what kind of mode is succession What properties may be transmitted by way of succession What are the exceptions Organ donation act terms used in succession (decedent, inheritance, legatee, devisee, heirs) different kinds of succession what open succession what are the consequences when the predecessor is still alive what are the rights of the heirs after the death of the decedent essential characteristics of will rules on valid and invalid _____ interpretation of wills rules when there is ambiguities in the will after-acquired property what can a testator convey under Art 794, what are the exceptions extrinsic and intrinsic validity of the will from the viewpoint of time and place testamentary capacity soundness of mind; presumption when the testator if of sound mind and he/she is of unsound mind

August 5, 2013 FORMS OF WILLS. Under the New Civil Code we have 2 kinds of wills. We have the notarial wills and holographic wills. Now, when you say notarial wills the formalities are those mentioned under Art. 804 to 809 and then for the holographic wills, we have Art. 804 also and Art. 810-814. So we will discuss these article one-by-one. Article 804. Every will must be in writing and executed in a language or dialect known to the testator. So, this is the first requirement. Take note that Art. 804 applies to both notarial and holographic wills. The law says every will. When you say it must be in writing, an oral will is not allowed. We have the concept noncupative wills, will which are orally made by the testator in contemplation. Is this will allowed? No, because this is not in writing. You have seen movies and even teleseryes nawala sa iyaha ang properties kay di daw siya ang gitagaan. That is not recognized. That

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

54

is wrong. Usually, mali2 ilang research. Like katong Apoy sa Dagat. Pataka! Ayaw mo ug tuo na sa ilaha. Stay to what you have learned. In writing, what do you mean by that? Need to be in a special paper? Not necessarily. Pwede sa cartolina, pwede sa wall basta in writing. Sa rock pwede pud. Ballpen, yes. Pencil, yes pero delikado kay basig ma-erase. Typewritten, computerized, 1 page, 2 pages or more, there is no such requirement also sa number of pages. Now, another important requirement is that it must be executed in the language known to the testator. This is important to assure that testator really understood the language of his will. He must know the language or dialect used in the will. For example the testator is bisaya and the language of his will is in English and the testator did not understand English, but the will was read to him, interpreted and explained. So, gihubad ang English language into bisaya para makasabot si testator. Is the will valid? NO! because no amount of explanation or interpretation will cure the defect that the will is not in the language or dialect known to the testator. Why? Because we cannot even be sure that the testator really understood the translation. Siguro, wala kaayo siya kasabot sa tranlation or mali ang pagtranslate or pag-interpret. The best thing that we can confirm is to ask the testator na tama ba jud na mao jud ni siya, but the testator is no longer around. We cannot ask him to testify. So the best safeguard is, the will should be in the language known to the testator. Now, the will does not have to be in only 1 language. Basta languages used in the will are all known to the testator and the testator need not to be proficient in the language used in the will. So, pwede na wrong grammar ilang will pero he understood. Pwede pud sa 1st paragraph kay bisaya, sa second kay English.sa 3 rd kay French basta kasabot siya atong tanan na languages. Insofar as the language requirement is concerned, there is a presumption that the will is in the language or dialect known to the testator. So, the law presumes na kabalo siya and as a consequence of this presumption, there is no statutory requirement that the will itself should allege that it is in the language or dialect known to the testator. Usually ang wills ginabutang sa mga lawyers this will is in the language known to he testator , this is not required by law not even required to be stated in the attestation clause. No need to state because it ccan be proved by extrinsic evidence. So, yoou may present witnesses or documents or other pieces of evidence outside the will to prove that indeed this French language used in the will was understood by the testator. So that the consequence of the presumption under the law that the will is in the language known to the testator. So, it can be proved by extrinsic evidence. Abangan vs. Abangan. The will was in the Visayan language. The will was executed in Cebu. The testator resided that time to a place neighboring Cebu. There is a presumption in law. The proximity of the place would give justification that indeed she knew the language. People just come and go to these places and they are presumed to know the language of these places. Reyes vs. Vidal. The language used in the will was Spanish. SC said the besides there is the presumption. Even if there is no testimony that she knew the Spanish language that the records would support that indeed she uses Spanish language. She was a Spanish mestiza and married to a Spaniard, made several trips to Spain and had some letters written in Spanish. So these circumstances would really support the presumption that she knew the language or dialect used in the will. Abada vs. Abaja. Extrinsic evidence or we called it evidence aliunde. Here, was there evidence aliunde? Yes.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

55

How about in the case of Acop vs. Piraso. The presumption is not applied here. Meaning to say is that the presumption of law here is disputable. So evidence to the contrary may naturally be presented to prove that this will is not in the language known by the testator. So, even if we have that presumption, it does not mean that you do not present evidence to the contrary. So here, the SC said that given the circumstances of the testator, testator is a resident of Baguio and evidence would show that he only used the Igorot language and English is not the official language of Baguio. So, here, there is really no connection at all between the circumstances, language known by testator during his lifetime and the language in the will. So, the SC said that the presumption here did not even arise or even if the presumption did arise, it was wholly contradicted and recalled. Javellana vs. Javellana. So again, we have that presumption in law that the will is in the language known by the testator. The presumption is not applied here. No such presumption can arise. Remember these cases. Even that we have presumption in law, but these cases will tell us like Javellana vs. Javellana that even before the presumption arise, there must be circumstances that would at least support the presumption. A connection between the circumstances and the testator and the language used in the will. Naay connection between the language used in the will and the circumstances of the testator. But the cases of Javellana and Picaso, there is no connection at all. Igorot tapos English. Visayan tapos Spanish. So, here, if you are presented with these facts, dili na siya ana kalisod. No brainer na siya. Ingon na resident siya of Tawi-tawi unya ang will niya kay French. He was never out of the country and he never studied French. Tawi-tawi dialect ra jud na siya. In that case, kung kana ang pag present sa facts, it would be absurd for you to insist that the law presumes that the language used is known by the testator. Even before the presumption arise, there has to be presumption between the language and the circumstances of the testator and even if such presumption can arise, contrary evidence would destroy the presumption. That is the rule insofar as the language requirement is concerned. How about the witnesses? Are they required to know the language used in the will? NO. they are not required to know the language used in the will. It is the testator who is required. So, they are only concerned with the attestion clause. The concern of the testator is the will. In the same manner, the testator does not have to know the language used in the attestation clause. Again, remember this principle: the attestation clause is that of the witnesses. The will is that of the testator. So, you cannot require that the testator should know the language used in the attestation clause and the witnesses in the language of the will. Wala silay pakialam sa isat isa. They are separate. Although, the attestation clause is needed for the validity of the will. How about the date? Is the date important in the notarial will? Article 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

56

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. So based on Article 805 you cannot see any requirement as to the date. The date is not an essential requisite in notarial will,so even if it is not dated it will still be valid because in the notrial will we have the witnesses and we also have the notary public. These persons can also testify as to the date of the execution. So the date of execution in the notarial will can easily be determined. Unlike in holographic will which we will discuss later. So, article 805 gives us the requirement. Now, the law says every will other than the holographic will. Therefore, this article applies to notarial wills. If you can memorize Article 805, it will be good for you, but I dont know if you can memorize it word -for-word. Although, you have to memorize what are the requirements of Article 805. Although again not for word. So the proponents under Art. 805 are actually of equal importance and the courts cannot add too or dimish the requirements. You cannot impose additional requirements. The court cannot just forego the other requirements and admit the will. There are cases where the courts would admit the will even if not strictly in accordance with Art. 805. We will discuss that under substantial compliance but general rule all these formalities are of equal importance. The purpose here is to close the door against fraud, bad faith, to avoid substitution to guarantee the authenticity of the will. Lets go the requirements one-byone: 1. The will must be must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction by the testator. What do you mean by subscribe? were talking here of subscription by the testator or by the person requested by him. Subscribe means sign. Who will sign? The testator himself or by some other person. What if it is the testator who signs or subscribes? What should be subscribed in the will? Of course his signature, ideally his full signature. If his name is Juan dela Cruz, he should write: Juan dela Cruz. If he uses Jdecruz, then if it is his customary signature, hell sign into that. His full customary sign ature. How about initials? Yes, if that is the customary signature of the testator or he intended that to be his signature. How about a cross? Thumbmark? Stamp? Smiling face? As long as these marks are either: customary signatures of the testator or intended by him to be his signature. So actually in notary will, dili necessary na signature jud, marks, any marks which is intended by the testator could be his signature. How about a third person? Who signs in behalf of the testator what should be affixed? The name of the testator. Even if ang pangalan sa testator kay pangit he should still write it. So, if Piolo Pascual ang mag-affix, he should write for Juan dela Cruz or he can just even write Juan dela Cruz or for Juan dela Cruz by Piolo Pascual para lang jud mabutang iyang pangalan pud. He should really affix the name of the testator. So, thats the rule insofar as the signature is concerned. The law says if the third person signs on behalf of the testator it should be in his presence, and by his express direction. Presence, what do you mean by in the presence of the testator? It should be within the range of vision of the testator, ideally. Dapat nakita sa testator. That satisfies the test of presence. There are other tests of presence also. we will discuss them later. But take note that not necessarily that the testator actually sees that this person writes but it is enough that he has in

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

57

the position to see. Express direction meaning he really directed the third person by word of mouth or by action that he wanted this person to sign his will in his behalf. So, its not enough that the person said, ako na ang mupirma? It is not express direction. It is consent or it is implied which is not sufficient or silence, not sufficient. It should be express meaning you are the one who directed. The initiative came from the testator himself. So, thas the requisite for express direction. Leano vs. Leano. Not necessary na customary but even if not customary but if it is intended then that will be valid to satisfy the reuqirement in the will. Garcia vs. Lacuesta. The cross here was not the customary signature of the testator and no evidence that it was intended to be the signature of the testator just disregard that cross. Since it was the lawyer who wrote the name, we consider it as signed by a third person in behalf of the testator. the will here is not valid. The law says that the will can be signed in behalf of the testator by a third person but the requirement is: it should be in the presence and under the express direction of the testator. So here, pwede na unta to siya na si daughter ang nagsign in behalf of the testator. but as we go to the attestation clause requirement, there are specific statements that must be made in the attestation clause. One of which is, if the will is signed by a third person, it should be stated in the attestation clause like The will was signed by the third person, under the express direction of the testator. And in this case, mao to siya ang kulangthat statement in the attestation clause. That made the will void. Remember ha, if the attestation clause is defective, the will is void. Although, what I said is that separate and distinct sila, but without the valid attestation clause, there is no valid will if we are talking of a notarial will. So, in that case again, pwede man unta to siya valid kung gibutang siya sa attestation clause that it was signed by the lawyer under the express direction of the testator. That was actually the defect in the will. Ok, that is also the distinction in the case of Leano vs. Leano di ba pareho sila cross?valid siya because it was the customary signature or intended by the testatrix in her signature. Dire sa case ni Garcia vs. Lacuesta, no evidence that was customary or was intended by the testator as her signature. So, it was treated as a will signed by a third person in behalf of the testator. It became void only because it failed to comply the requirement in the attestation clause. How about an e-signature? Can you affix that signature or mark in the will? As defined, an e-sinature is supposed to be attached to or associated with the e-data message or e-documents. So based on the definition of the law, it does not include the will. As one of the valid document that can be affixed with an e-signature. So dili pa pwede because the will is not a transaction as we discussed before in the essential characteristics of the will. So based on the definition of the law, dili siya applicable. Pero halimbawa kung naay subsequent amendment na i-allow siya to affix in the will, then that an be allowed, pero sa karon, as of the present, an e-signature is not allowed to be affixed in a will. Now, where should the testator affix his signature? At the end of the will. So for example mao na siya ang last will and testament (maam raised a piece of paper), does it follow na ang end naa dire sa ilalom? Halimbawa gamay lang kaayo siya ug disposition, nagbuhat lang siya ug disinheritance, so dire lang kutob iyang will sa tunga, naa pay space na dako dire, kung dire ra pud siya nagsign immediately after sa disposition, dili physically sa end, is it valid? YES. When we say end, we are referring to the logical end. When we say logical end, it means, that portion after the disposition of the testator and before the attestation clause. So, we are not referring actually to the physical end but the logical end.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

58

What is the purpose why the will has to be signed at the end? We are talking here about notarial wills ha. This is to prevent insertion, unathorized provisions or clauses. So, if the testator executed a notarial will, he already signed and then it was already attested and then acknowledge, later on, he wanted to add some of provisions in the will, can he add provisions in the notarial will so after signature, napag-isipan niya na gusto pa diay nako tagaan si X, will the will now be valid? NO. that would not be valid. So what is the consequence? If in the notarial will, there are additional provisions after the signature of the testator, of course these additional provisions are not valid and the will itself becomes void in its entirety. Why? Because it now violates that the will should be signed at the end of the testator. by adding some provisions after the signature of the testator, the signature comes in the middle, it no longer at the logical end, so its a matter of form actually. Void ang will actually. So, mangutana mo, magbuot diay ka maam! Kung gusto jud diay magdungag ang testator, di ba to respect the wishes of the testator? yes, but there is a separate rul e for that. We can republish his will or he can execute a codicil but bawal ang insertion sa notarial will. That is the proper procedure. In holographic wills, that could be allowed. Additional provisions after the signature pero sa notarial, dili siya llowed.

2. The testator or the person requested by him to write his name and the credible witness of the will shall sign each and every page of the will on the left margin except the last page. So, we are referring here to the marginal signatures of the testator and the witnesses. So, kung mao ni siya ang last will and testament, ideally dapat each and every page should be signed by the testator and his witnesses in the left margin. What if the signatures appear on the right margin? How about at the top? Bottom? As discussed in the case of Nayve vs. Mojal, the marginal signature is for identification and thus prevent fraud and the purpose is served whether the signature is signed on the right, top, left or bottom margin. So, ang purpose lang actually sa marginal signature is for identification. How? For example the will is now presented for probate and the witnesses will be asked to testify. Mr. Witness, did you really attest or witness the execution of the will? Yes. How did you know that this is the very s ame will which you witnessed? because this will has my signature in the margin. So, the witnesses can identify that the will presented to them during the probate is the very same will they attested some years ago because that will has their signature each and every page because each and every page has to be identified. The will may have been executed with the testator but ang pages lahi na. to avoid substitution ofpages, each and every page should bear the signatures on the margins. This purpose again can be achieved even if the signatures appear on the right side, top or bottom kay ang importante lang ang ilang signature. Kung, isa lang ka papel ang gigamit for example back-to-back para makaconserve ug paper, front page lang unya sa back wala na? the law says each page not sheet. In one sheet there are 2 pages, so both pages must be signed. The law says except the last. Ngano di man kailangan ang marginal signature sa last? Because the last page usually contains all the signatures of the witnesses and the testator so it will be a mere surplusage if magrequire pa ka ug marginal signature. So the principle here is as long as the page has all their signatures of the witnesses and the testator, dili na kailangan ug marginal signature. Kining sa last page, naa dira ang signature sa testator and then attestation clause signed by the witnesses, so, both signature will be very sufficient for the witnesses to identify their signature.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

59

What if the last page contains only the attestation clause? So naka-4 pages ang will, sa first 3 pages nahuman sa testator iyang disposition ang last page kay attestation clause lang jud purely and signed only by the witnesses, wala si testator. would that be valid? Yes, because the attestation clause is actually only the recital of the witnesses. It is not the will itself. What the law says is the will must be signed in each and every page of the margin. So the testator may not sign the page containing only the attestation clause. That is the ruling in the case of Fernandez vs. de Dios. Sa case ni Taboada vs. Rosal lahe pud, the oppositors questioned the will on the ground na ngano ni pirma si testator sa page containing only the attestation clause. Void ba siya just because nipirma? No. If the will only has one page, kinahanglan pa ba ug marginal signature? Again, no kay that page contains already the signatures. What is the effect if tone of the pages does not bare one of the signatures? Kulangan ug isa ka signature? The rule is the will is void. Fatal. Except in the case of Icasiano vs. Icasiano. In that case, one page lacks the signature of one of the witnesses because of the simultaneous lifting of the pages nagdali2 na ang witness. Wala tuloy niya napirmahan ang isa ka page. Would that be void? NO because in that case, failure to affix of he signature in one page was mere inadvertent. So, we should not penalize the testator for the inadvertence or negligence of one of the witnesses and in this case, there are other copies of the will, and in those copies, complete ang signatures. So here, the SC applied the doctrine of substantial compliance. August 7, 2013 So lets proceed to the other requirements in notarial wills. all the pages shall be numbered correlatively in letters placed on the upper part of each page. So this is the other requirement no, numbering. So the numbering that the law says is consecutively and correlatively in letters. When you say in letters, ideally you mean PAGE 1, PAGE 2, PAGE 3 so you spell that out. What if you only use 1, 2, 3 or I, II, II or A,B,C? In the ff cases, the numberings were allowed: UNZON vs ABELA: Arabic numerals ALDABA vs ROQUE: A,B,C NAYVE vs MOJAL: 1,2,3 In Re: Pilapil: In letters and partly in figures

So as long as you can identify which is the first page and the second page and so on and so forth. PURPOSE OF NUMBERING 1) To guard against fraud 2) To forestall any attempt to suppress or substitute any of the pages 3) To prevent any increase or decrease in the pages

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

60

4) To afford means of detecting the loss of any of the pages. The pages would tell us what is missing because it is easy to determine. For example 1,2,4, you know that the 3rd page is missing.

The law says On the upper part of each page . The ff are allowed: FERNANDEZ vs DEDIOS - the page number is in the lower part. The paging may be placed on the top, bottom, left, right, or even in the text itself. As long as you are able to identify which is the 1st page, 2nd page, 3rd page.

Q: What happens if one page is not numbered? What is the effect of failure to place the numbers? A: this will make the will VOID. FERNANDEZ vs DEDIOS Here the document has 4 pages but only the first 3 pages contained the page number. The 4 th page did not. The 4th page was the attestation clause. Will it invalidate the will? The SC took into account that even if the 4th page is not numbered but the attestation clause said this will consist of 3 pages excluding this attestation clause. So by that statement it beco mes evident that such page was actually the 4th page. So if the page number can be identified by implication, like this case, this will cure the defect. We can also relate this to the Doctrine of Substantial Compliance. Q: What if 5 pages pero ang 1st page is unnumbered? Will this affect the validity of the will? A: No, because it is clear which is the first page. Diba usually ang first page kay entitled na Last will and testament? So dali lang madeterine na mao na siya ang first page. Pero kung ang 2 nd page ang walay page number - then it will become a fatal defect because, again, it will violate the requirement that the will should be numbered correlatively in letters. That is the case of LOPEZ vs LIBORO, the first sheet is unnumbered. Q: What happens if the will has only one page and does not have a page number? Will it invalidate the will? A: No, because it is very clear that the will only has one page and the purpose of paging, among others, is to guard against the loss of any of the pages. So in this case, I fthe page is lost, the will is lost. So its very easy to detect the loss of the page because it is equivalent to the loss of the will. This is the case of ABANGAN vs ABANGAN. The fourth requirement:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

61

and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. So here were talking of ATTESTING by the witnesses and SUBSCRIPTION by the witnesses in the presence of the testator and of each and every one of the witnesses. SUBSCRIPTION the act of affixing ones signature. Here the witnesses will subscribe in the margin and the attestation clause. So they will subscribe each and every page of the will. ATTESTATION - that means they witness the execution of the will, they witness the act of the testation of subscribing the will, and they also witness the act of the other witnesses in attesting and subscribing to the will. So i-witness nila ang kada isa na naga witness, ug i-attest nila ang pag attest sa uban ug i-attest pud nila ang pag subscribe sa uban. So that is the requirement. DISTINCTIONS BETWEEN ATTESTATION AND SUBSCRIPTION Attestation consists in witnessing the testators execution of the will, in order to see and take note mentally that those things are done which the statute requires for the execution of the will and that the signature of the testator exists as a fact. It is the act of the witnesses, not that of the testator, although it necessarily involves the act of the testator in executing the will and requesting the witnesses to act on such. Subscription is the signing of the witnesses names upon the same paper for the sole purpose of identification of such paper as the will which was executed by the testator. Attestation is a mental act and act of the senses, Subscription is a mechanical act of the hand. The purpose of Attestation is to render available proof of the authenticity of the will and its due exection (thats why the witnesses are required to attest because later on during the probate of the will they will be called to testify to the facts attendant to the execution of the will: the will was executed by testator, he was of sound mind, was not forced, was of legal age, and all the other formalities were observed), in Subscription the purpose is identification and thus indicates that the will is the very instrument executed by the testator and attested to by the witnesses and therefore implies that the due execution of the will as embodied in the attestation has been performed (So here the witnesses are made to identify if indeed this is the same will executed by the testator which was attested to and subscribed by them).

Q: So how will the witnesses be able to identify that the will presented to them today is the very same will they attested to 20 years ago? A: by their signatures in the will. So the signature would enable them to identify that indeed this is the very same will. Lastly, to attest a will is to know that it was published as such and to certify the facts required to constitute an actual and legal application, subscription, on the other hand, is to subscribe a paper to ___ as a will is only to write in the same paper the names of the witnesses for the sole purpose of identification.

Q: So how do we know whether or not the attestation and subscription was really done in the presence of the testator?

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

62

A: The most ideal definition of in the presence is that it is within the range of vision of the testator and of the witnesses. That is the test of vision. DIFFERENT KINDS OF TEST Test of vision Test of position Test of available senses Test of mental apprehension

JABONETA vs GUSTILO So the SC here applied the test of position. In that case he could have easily just cast his eyes in the proper direction and he could already see. There was no impediment for him to actually see. He was in a position to see. MARAVILLA vs MARAVILLA The test is not whether the witness could see the signing of the will but whether he was in a position to see it if he choose to do so. If the testator is blind what is required? The test of available senses. In this case the SC again did not mind that the witness was not able to identify the signature of the testator because it was understandable under the circumstances. During the execution of the will it was the first and the last time that the witness saw the signature of the testator and that was 14 years ago. Otherwise, It would be too incredible for him if he still remembers after 14 years. And it is not required. What is required is that the witnesses and the testator were in such a position to see each other. that was proved when he testified that during the execution of the will they were sitting next to each other in a round table. They were really in the position to see. So the test here is the test of position. As to the blind testator, can a blind person execute a will? Yes, that is specifically provided under Article 808, as long as he is of sound mind and of legal age. So as to him, how can signing be in his presence when he is blind? It is enough that the signing or action is done within the range of ___ or senses (like hearing, touch, smell, etc.). So basta kabalo siya, or by the test of mental apprehension, kung kabalo siya at the back of his mind that the will is already being signed. Q: What if one witness is blind, is it enough to use the test of available senses? A: No, because as we will discuss in Article 821, a blind person is disqualified to be a witness in notarial wills. Q: Why is a blind person qualified to execute a will but is disqualified to be a witness to a will? A: Because in the execution of a will, you are the only one to be able to execute it. The fact that you are blind should not prevent you from exercising this privilege. But if you are to be a witness, there are millions or billions of people that may become a witness. Why would you choose a blind person?

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

63

Mas maayo kung ang magtestify kay katong naka kita or in a position to see the attestation and subscription. Q: Is there a proper order for the signing of the subscription? A: In the case of GABRIEL vs MATEO, it does not matter that the witnesses signed ahead of or after the testator. As long as the signing is sufficiently contemporaneous and made on one occasion and as far as one single transaction.

PURPOSE The purpose of requiring that the attestation and subscription must be in the presence of the testator is to avoid fraudulent substitution of the will and to make it more difficult the invention of false testimonies by the witnesses since they may be witnesses of one another. So dili sili basta basta makapamakak kay witnesses sila of each other, pwede siya icontradict sa uban. We now go to the ATTESTATION CLAUSE. ATTESTATION CLAUSE Q: What is an attestation clause? Q: what is the purpose of the attestation clause? Q: is the attestation clause the same as the act of the witness in attesting? So is the act of attesting the same as the attestation clause? So when you say the same, the fact that one is done is sufficient so that even if the other is not present, the will is still valid? Like, if the witnesses in fact attested and subscribed the will but the will has no attestation clause the will will still be valid or even if the witnesses did not attest and subscribe the will but there is attestation clause, the will is still valid? A: No. When you say attestation clause we are referring to the recital, the statement in the will itself. The act of attesting is the mental act as we discussed before, the mental act, the act of the senses. So even if the will was in fact attested by the witnesses, if the will does not have an attestation clause, the will would still be void. You cannot prove later on that the will was actually attested without the attestation clause. Its the only acceptable way of proving. You cannot introduce witnesses to testify later on that yes indeed the will was attested. That is not acceptable. There has to be an attestation clause that would preserve in a permanent form the facts which occurred during the execution of the will. Q: Whose act is the attestation clause? A: It is the act of the witnesses.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

64

Q: is the attestation clause part of the will? A: No. it is separate and distinct. Q: So what would be the consequence of that being separate? So the attestation clause is independent of the will. It is separate and distinct from the will. The attestation clause is the act of the witnesses; the will is the act of the testator. Even if the will is not in a language know to the witnesses, that does not matter. In the same manner that the fact the testator does not know the language used in the attestation clause, it is of no relevance. Also that, if the page containing only the attestation clause is not signed by the testator but by the witnesses only, that is not a fatal defect because when the law says that the will must be signed at the margins in each and every page, they are referring here to the will itself, not the attestation clause. But if the page containing the attestation clause also has dispositions, the testator should sign the dispositions. It does not also require that he has to sign another in the margins. As long as all the signatures are present in one page, that is sufficient. But again, if the page only contains the attestation clause you dont need the signature of the testator. So the witnesses here subscribe and attest to the execution of the will. They attest as to the genuineness of the signature of the testator and they attest to the due execution of the will as embodied in the attestation clause. Without the attestation clause the will is VOID even if in fact it was attested. AZUELA vs CA There were no signatures in the bottom of the attestation clause, but there were signatures in the margins. Their signature in the attestation clause is required as a manifestation that they avow or they oath the recitals made in that attestation clause. So the signatures at the bottom of the attestation clause are directed to the avowals made in the attestation clause itself. If the signatures appear in the margins, that would relate to a wholly different avowal. You could not say that signatures on the margin also oath or avow to the recitals made in the attestation clause. The purpose of marginal signatures is for identification and thats why when we are talking about the marginal signatures, it does not matter if the signatures appear in the left margin, right margin, top, or bottom because you can identify the will by means of those signatures wherever their location may be. But as to the attesting signatures, they have to be at the bottom, in order also to prevent the subsequent adding of the attestation clause in a later occasion. So dili pwede na ang signature sa attestation clause be substituted by marginal signatures because they have different purposes. The MARGINAL SIGNATURES is for IDENTIFICATION, while the ATTESTING SIGNATURE is to AVOW THE RECITALS IN THE ATTESTATION CLAUSE. The SC even said that it would be more __ to be disposed to accept the will as valid if there were signatures at the bottom and no signatures in the margin. It is more acceptable, because the signatures in the attestation clause could also serve the purpose of identification. It cannot be allowed on the ground of substantial compliance. STATEMENTS THAT MUST BE STATED IN THE ATTESTATION CLAUSE The attestation clause must state the ff:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

65

1. The number of pages used upon which the will is written; 2. the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction; 3. that the signing of the testator or the person requested by him was in the presence of the instrumental witnesses; 4. that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. Absent any of those statements, the will will be VOID. The number of pages used upon which the will is written; So aside from numbering each and every page of the will, the attestation clause in addition should state the total number of pages used in the will. This is intended to prevent unauthorized additions in the will because you may have a will which is numbered up to 5 but it actually has 7 pages. So the statement in the attestation clause as to the total number of pages used in the will would definitely set the number of pages as the maximum. The consequence if the attestation clause fails to state the number of pages? That was discussed in the case of Azuela vs CA. AZUELA vs CA The attestation clause states that This will consist of ___ pages. It was not filled out. It was alleged by the proponent of the will that such statement as to the number of pages is merely directory and that there was substantial compliance since there was an honest attempt to comply with the requirement. The SC said no. The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. So even if there was an attempt to comply but it was never complied with, it is still void. So this ground, among others, SC said that the will cannot be allowed. So MANDATORY requirement. TABOADA vs. ROSAL The attestation clause failed to state the number of pages in the will, so that should have a fatal defect. BUT the court here said that the acknowledgement itself states that this last will and testament consists of 2 pages including this page. So that absence of the statement as to the number of pages in the attestation clause was CURED by that statement in the acknowledgement portion as to the total number of pages. This was allowed on the ground of substantial compliance. the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction;

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

66

Take note that it says only under his express direction, there is no statement as to the presence. Diba supposedly when a third person signs in behalf of the testator it should be under his express direction and in the presence of the testator. But as to the attestation clause requirement it only mentions under his express direction. FOR THE BAR: to be sure, use both presence and express direction.

GARCIA vs LACUESTA Antero Mercado executed a last will and testament, his name was written by his lawyer and above the name Antero Mercado he affixed a cross but there was no evidence that such was his signature or his customary signature or he intended that to be his signature. Therefore, the SC disregarded the cross. The will was considered signed by the lawyer and that would have been valid as long as a statement is made in the attestation clause to that effect. But here, the attestation clause did not state that the will was signed by another person under the express direction of the testator, that made the will VOID. PAYAD vs TOLENTINO If the will was THUMB MARKED by the testator, for example, the name of the testator was written by a third person and above the name, the testator placed his thumb mark. Is there a requirement for he attestation clause to state that the will was signed by the third person under the express direction of the testator? NO, because the thumb mark itself is the signature of the testator. JALLORES vs INTERINO The SC said that the attestation clause need not state that the third person was caused by the testator to sign in his presence because the law only mentions under his express direction, even if he omits the words in his presence that would not be a fatal defect since thats not mentioned in Article 805. that the signing of the testator or the person requested by him was in the presence of the instrumental witnesses; that the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. So absent these statements, you cannot prove by extrinsic evidence or evidence aliunde that indeed the will was signed in the presence of the testator and of each and every one of the witnesses. August 14, 2013 Article 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.(n)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

67

So Article 806, even if it says every will but this only applies to notarial will because holographic wills need not be acknowledged. Ok, so to be valid there has to be an acknowledgement. Take note that the notary public is not required to maintain a copy of the will and to file a copy with the clerk of court because ordinarily all documents acknowledged or notarized by the notary public have to be submitted to the clerk of court. So the notary public may keep one copy for his own file ad another copy for the clerk of court. So kung mangayo gani mo ug copy sa documents notarized you can request from the clerk of court. But again, wills, because their suppose to be personal and therefore confidential there is no requirement that they should be submitted to the clerk of court. Now, when you say acknowledgement, that means to avow before the notary public and the function here of the notary public in the acknowledgement is to see to it that: (1) the testator understood the contents of his will (2) that he voluntarily executed his will. (3) And for the witnesses that they also understood the attestation clause (4) and voluntarily executed the attestation clause. Can one of the attesting witnesses be the notary public himself? Or can the notary public be one of the attesting witnesses? So that was discussed in the case of Cruz vs Villasor. (called a student) Ok so, in summary, he cannot be one of the attesting witnesses because: (1) He cannot split his personality into twohe cannot say ok karon ako napud witness, o tinood gyud! Ako napud ang notary public, sure ka? So it is a physical impossibility. And its absurd. (2) To guard against immoral arrangement, to prevent conflict of interest here. Because if you are a witness and your act is involved, the tendency is to defend the validity of your own act. If you are the notary public you should also see to it, and scrutinize the witnesses as to WON they really validly executed the attestation clause. So here what would be the consequence if there are 3 witnesses and one of them is the notary public? What will happen to the will? ( Students answer: The will is VOID) So now, t he number of witnesses will fall short of the minimum requirement that there should be at least 3. What if there are 4 witnesses and one of them is the notary public? ( Students answer: The will is VALID) OK, so even if we exclude the notary public as a witness there would still be 3 remaining witnesses. Take note, the notary public is disqualified to act as a witness, he is not disqualified to act as the notary public. So therefore if there are 4, if he is disqualified as a witness the will is still valid. So thats the case of Cruz vs Villasor, how about in the case of Azuela vs CA? (called a student) So what do we cal that document? ( Students answer: Its a jurat) Ok a jurat, a statement under oath, but still it is not sufficient because the law requires an acknowledgement. The Supreme Court said, an acknowledgement is not an empty, meaningless act. The acknowledgement coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. So that is not a valid acknowledgement. There is

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

68

nothing in that statement which says that the testator and the witnesses executed the will in their own free act and deed. So it is fatally defective. In the case of Gabucan vs Manta, here the acknowledgement did not contain the documentary stamps because it is required under the local government code that in every document notarized, you should pay the documentary stamp. So would it render the will void? The SC said no. It is not a fatal defect, the docstamp can just be affixed later on. Should the acknowledgement be done in the presence of the testator and each and every one of the witnesses? NO. There is no such requirement. Under the notarial law, its just required tha t the testator appear personally before the notary public or the witnesses appear personally before the notary public. Is it required that the acknowledgement be done in one single occasion? NO. In the case of Javellana vs Ledesma, the SC said the parties can go one by one to the notary public. Again ang important lang is, PERSONAL APPEARANCE of the testator and the witnesses. Is the notary public required to read the will or to know the contents of the will? There is no such requirement. Ang iyaha lang is acknowledgement, dili niya kailangan basahon but he has to assure that the testator read the will and understood its contents and also the witnesses as to the attestation clause. But in case of blind testators under Article 808, the notary public is required to read and therefore to know the contents of the will. Article 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) Okey so these are the additional requirements if the testator is deaf or deaf-mute. He must personally read the will if able to do so, if not he shall designate two persons. Now take note, the law does not mention who are these two persons. SO they can be any person approved by the testator. Article 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n) So remember these requirements. For blind testators there is a reading requirement, twice. One by the subscribing witness and another time by the notary public before whom the will is acknowledged. So that is the requirement. Now, the law says blind person, do we mean to say that he or she wont be able to see at all? As discussed in Garcia vs Vasquez (called a student). Should Article 808 be complied with? It should have been complied with. Was the testatrix considered blind? Yes, because she was not capable to read her will. Why did the SC arrive at a conclusion that Article 808 was not complied with? Because the will was not properly executed there were errors in the will and had the testator been able to read the will she will have easily detected those misspelling. SO the paper was so untidy and the document really did not look like a will. So its impossible for a person to leave all her possession in such an untidy document. Now in the case of Labarado vs Gaviola (called a student) What was the condition of the testator? (Students answer: He had Glaucoma) So with that kind of condition would he be considered as

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

69

blind? YES. Therefore Article 808 should be followed. So what procedure was undertaken by the testator and the witnesses? In this particular case the lawyer who drafted the will read the will aloud and he gave copies to the testatrix, the subscribing witnesses and the notary public and they just followed the reading silently. And after the reading what did the testatrix do? She was asked and she affirmed that the contents as read corresponded with her instructions. So obviously in this case Article 808 was not followed to the letter. Did it affect the validity of the will? So here the SC applied the doctrine of substantial compliance. Even if it was not followed to the letter but the spirit of the law was complied with. So as long as the purpose of the law was achieved then formal imperfections should be brushed aside. Article 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805. (n) So the principle of Substantial compliance. This principle says that when there has been an honest attempt to comply with all the requirements of the law but the compliance is only substantial not literal and the purpose of the law sought to be attained by the law is accomplished though not strictly followed so the will can be allowed. It is designed to attain the objective in relation on the manner of executing wills, the policy requires satisfaction of legal requirements to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege. Now, in Article 809, what defects and imperfections can be excused? It says, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of article 805. Requisites for Article 809 to apply: (1) There are defect and imperfections in the form of the attestation clause or in the language used therein (2) There is absence of bad faith, forgery or fraud or undue and improper pressure and influence (3) The will was executed and attested in substantial compliance with all the requirements (4) the fact of such execution and attestation is proved. So based on the requirements I mentioned, can you already determine if the defect is to be excused on the ground of substantial compliance? Based on the language of Article 809 you cannot. As discussed by Justice Reyes in the case of Pineda vs CA, the law does not simply distinguish; hence we can conclude that both intrinsic and extrinsic evidence can be used, but if the rule is so broad that no matter how perfect the attestation clause happens to be the same can be cured by evidence alliunde or extrinsic evidence, that attestation would be of no value in protecting against fraud or really defective execution.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

70

So what would be the guiding principle? This was discussed in the case of Abada vs Abaja. (called a student) Okey for example the will fails to state the number of witnesses can you still determine how many witnesses are there in the will? By an inspection of the will itself, so by just counting number of people who signed you will be able to determine the number of witnesses. So the SC held here that that could be cured in the ground of substantial compliance. What did the last part of the attestation clause say? Okay, so from that statement it can be seen that the attesting witnesses witnessed and signed the will in the presence of the testator and of each and every one of them. So as long as you can see from the statement to the effect that the witnesses signed the will in the presence of the testator and of each and every one of them and that the testator also signed the will in the presence of the witnesses so that would be sufficient. As mentioned by the SC, precision of language in the drafting of the attestation clause is desirable however, it is not imperative that parrot-like copy of the words in the statute be made, it is sufficient if from the language employed it can reasonably be deduced that the attestation clause fulfills what the law expects of it. So in these two instances, the SC applied the doctrine of substantial compliance. So when do we apply the doctrine of substantial compliance? Okey, so in short, we can apply the doctrine of liberal construction or substantial compliance if the defect can be cured by intrinsic evidence. When by just reading the will (the will itself, the attestation clause, the acknowledgement portion) you can cure the defect. If it would still require evidence alliunde to cure the defect that is no longer acceptable. So the article should be read: In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if such defects and imperfection can be supplied by an examination by the will itself and it is proved that the will was in fact executed and attested in substantial compliance with the requirements of article 805. For example in the case of Cagro vs Cagro and Azuela case, where the witnesses did not sign at the bottom but signed in the margins, that could not be accepted in the ground of substantial compliance because the fact remains that there are no signature at the bottom which would indicate that the witnesses avowed the statements preceding the signatures. The signatures at the margins refer to a wholly different avowal the purpose of those signatures is for identification, they could not serve the same purpose as the attesting signatures. In the case of Taboada vs Rosal, the notarial will has two pages the first page contains all the dispositions while the second page contains the attestation clause. The signature of the testator was placed at the end of the first page but the signature of the witnesses were place at the left hand margin of the first page. Is it valid? YES because the first page contains only the dispositions in the will so their signatures can appear anywhere but of course as to the attestation clause it has to be at the bottom. In one case the attestation clause failed to state the number of pages but in the acknowledgement portion it was state that this will consist of 3 pages excluding this page by the acknowledgement is located so by that statement, it is very evident that the page containing the acknowledgement was actually the 4th page. So that provision in the attestation clause was cured by that statement in the acknowledgement portion of the will. August 19,2013

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

71

Last meeting we discussed Art 809. Under art 809, we discuss the principle of substantial compliance or liberal interpretation. So the rule is, if the defect can be cured by intrinsic evidence, then we can apply the doctrine of substantial compliance. Of course, as long as there is no forgery, bad faith and fraud that intervenes. We also discuss examples last time, like the case of Cagro vs Cagro where the witnesses signed at the margin but not at the bottom of the attestation clause and that was considered as fatal defect. It cannot be cured by substantial compliance. Taboada vs Rosal, the first page contains the disposition and the second page contains the attestation and then the signature of the testator was placed at the end of the first page but the signature of the witnesses was placed at the left hand margin of the page so of course, there was no defect in that. In the second page the witnesses signed the attestation clause and also the testator, even if that page contained only the attestation clause, the SC said, its still valid. Technically, the testator does not have to signed the attestation clause but the presence of his signature is not a defect that made the will invalid. In the case of Villaflor vs Tobias. The first page of the will contains the disposition but only half was occupied the disposition. And then there was a space on the other half at the bottom and the attestation clause was written on the 2nd page already. It was alleged that the attestation clause would not be ___ but just added but the SC said that there was no evidence that the attestation clause was just added, it is just a matter of form that the 1st page still has a big space even if the attestation clause is not written right after the disposition, that is just a defect in form. It could not render the will void as long as there is still an attestation clause. So dili kinahanglan nga pun-on nimo ang 1st page, nga kung naa pay space dapat isuksok jud nimo didto ang attestation clause. Pwede na sa 2 nd page. We now go to Art 810 Article 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) So, we have 2 kinds of wills that is recognized in the Philippines: 1. Holographic will 2. Notarial Will Q: What are the requisites that must be complied with for holographic wills? Under Art 804, it must be in writing and in a language or dialect known to the testator. Under Art 810, it must be entirely written in the hands of the testator, dated in the hands of the testator and of course signed by the testator himself. And no witnesses are required.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

72

Q: What are the advantages of holographic will? 1. Of course, they are easier to make because we dont need the intervention of the notary public. You dont need to comply with the attestation clause, the marginal page, the paging, the acknowledgement, just a document that is entirely written, dated and signed. Its just like making a Love letter diba :D 2. Easier to revise. Why? Because if you want to erase or add some provisions, you can do so. Unlike in a notarial will when you want to make insertion or addition or alteration, you cannot do so by just cancelling the provisions in the notarial will, You can also add after your signature, however its either you make a new will or you make a codicil. But in holographic will, insertion,cancellation, addition or alteration, you can even add dispositions after the signature. 3. Easier to keep secret because no witnesses are required unlike in notarial will. Disadvantages: 1. Easier to forge because you cannot be really assured that it was written by the testator himself. Usually, it is also the testator that is the witness to the execution, no notary public. 2. Easier to misunderstand because the testator may have difficulty in expressing is last wishes. Kung dili lawyer and testator, there might be technical terms that could be misunderstood. 3. No guarantee that no fraud, no intimidation exerted upon the testator or as to the soundness of mind of the testator. Again, usually there is no witnesses to the drafting of holographic will and it was not acknowledge before a notary public. So we only have the presumption that the testator was of sound mind and anyone who alleges the contrary, should present a clear and convincing evidence. Now we have to trace the history of holographic will. Before, Spanish Civil Code permitted the execution of holographic wills. And then on August 7, 1901, the Code of Civil Procedure or Act # 119 took effect. The Code of Civil Procedure adopted only Notarial Wills. So holographic wills and all other kind of wills were repealed. So from August 7, 1901, there is no holographic will. Ok, remember the date. And then the New Civil Code which took effect in 1950, holographic wills are revived. So from that time on, until today, holographic will are allowed. So From August 7, 1901 to August 1950, holographic will are not recognized. Aside from the requisites mentioned in Art 804 and 810, another is that it must be executed with ANIMUS TESTANDI, the same with notarial will. We have already discussed that in the essential characteristics of notarial will. Otherwise without the intention to constitute that document as a last will and testament, it would not be a valid will. Q:When you say entirely written in the hands of the testator, what kind of handwriting is required? Longhand, shorthand or all capital letters?

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

73

A: no part of the will should be type written, or computerized and no part of the will should be written by another person. Everything must be in the handwriting of the testator. Q: How about if the testator has no hand and he wrote his will with his feet? A: It ok, as long as it is still his writing although not in his handwriting. Q: Can you entrust with a 3rd person the mechanical act of drafting the will? We have discussed that in Castaneda vs Alemany. A. No, it must entirely written by the testator. Q: Can a third person write a will and the testator will just copy the will? A: Yes, because it is now in his handwriting. Q: For example the 1st paragraph is handwritten, the 2nd paragraph is computerized and the 3rd paragraph is handwritten? Would that be valid? A: NO, because everything must be written. Q: So, is that portion only that is not in handwriting of testator is invalidated? A: No, the entire will is invalid in this case because it must be entirely written. Q:Do we need an attestation clause in a holographic will? A: No, there is no such requirement. Q: what if the holographic will contains an attestation clause? A: It is a mere surplusage. It will not invalidate the will. Q: what if the attestation clause is typewritten? A: No, effect. Not part of the will. Q: is the date important in a notarial will? A: no. we have already discussed that. Q: how about in holographic will? A: Yes, it is very important as expressly stated in Art 810. Q: What is the reason why the date is important in holographic will?

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

74

A: 1. If there are two wills, for example in the 1 st will, the testator gave all his estate to A, however in the 2nd will, he gave it to B. So how do we reconcile these two wills? Kinsa ba jud? How do we know? Under the law on revocation, the latter will is deemed to have revoked the earlier will if the provisions of the two will cannot be reconciled. So without the date, we cannot determine which is the latter will. 2. To determine when the will was executed because it might be that it was executed in 1930. Then it shall be void or invalid because at that time, the law does not recognize the holographic will. Under Art 795, the law that governed the formal requisites of the will, and it shall be at the time of execution. 3. Date is significant to determine whether the testator is of sound mind at the time of execution of the will. Whether it was executed during a lucid interval. Q: how is the date written in the holographic will? A: Ideally the date should include the month, the day, and the year when it was executed. Q: Where do we write the date? A: No particular location as held by the case of Labrador vs. CA. It might be at the top, bottom or anywhere. In the case of Roxas vs De Jesus, The mere fact that the date was just Feb 1961 is sufficient because there was no issue, as to the soundness of the mind of the testator, the will was made in 1961, so obviously it was executed after the NCC was effective. Pero kung halimbawa ang testator dri was of unsound mind, the date is important. The other requirement is the signature. Q: what kind of signature is needed? A: If his name is Juan Dela Cruz, then Juan Dela Cruz. Q: What if only J Dela Cruz? A: As long as it is the customary signature of Juan Dela Cruz, then it is enough. Q: What if signed through thumbmark? A: not allowed So remember, a holographic should be signed by the full signature of the testator, but it may be (in the example above) JDCruz, as long as it is the customary signature of the testator. But if it is signed by his initials only, even if that is his customary signature, then that is not allowed because initials are very easy to forge. And again, the reason why the holographic will should fully be in the handwriting of the testator is to assure the authenticity of the will.Lisod na jud na e-forge tanan. Actually, the signature or handwriting of the testator is the safeguard for the authenticity of the will, so the initials are not allowed. The same with thumbmark. Malay mo natulog ra diay na siya, unya gipa-

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

75

thumbmark siya. So thumbmark? No.Cross? No Stamp? No. So the full customary signature but not initials. Q: when should the testator sign the holographic will?(date) A: There is no particular requirement as to the date. Q: where should the signature appear? (location) A: Ideally, at the logical end after the disposition. But it may be in the middle because there may be some additions. Q: Can another person sign in behalf of another person. A: No, that is not allowed in holographic will, but may be allowed in notarial will. In the case of Tsang Liu(?) vs Reyes, the testator here executed a holographic will and of course it was in his handwriting, but the disposition contains only disinheritance. So, it was opposed on the ground that it was not a will because there was no disposition, it was entitled kasulatang ng pag -aalis ng mana and of course there was institution of heirs in this case. But the SC held that a document containing only disinheritance can be considered a will because disinheritance is an indirect disposition. And as long as the document complied with the requirements of the holographic will then it is considered a will. Insofar as the holographic will, usually one that is prepared by one not ___ in law as stated in the ____ should be construed liberally than that one drawn by an expert taking into consideration the circumstances surrounding the execution of the instrument and the intention of the testator. So in the interpretation of holographic will, it is usually more liberal. Because sometimes the testator who draft the will was not familiar with the legal terms and the formalities as long as the basic requirements is complied with and the intent to dispose( animus testandi) is apparent, then the document can be considered a will and should be given effect. Article 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a) Probate of a holographic will. When you say Probate- is the allowance of the will by the court after its due execution is proved. So you will discuss probate in your special proceedings.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

76

Insofar as to the probate of holographic wills is concerned, the only issue here is the hand writing and genuineness of the signature of the testator. That is one of the proponent has to prove. Because the testamentary capacity in the absence of undue influence, the voluntariness as Ive mentioned before, these are already presumed. Otherwise that has to be proved by clear and convincing evidence by the one who allege. If the probate is not contested, what is the requirement? The law says, one witness who knows the handwriting of the testator and he should explicitly declare that the will and the signature are in the handwriting of the testator. Take note, explicitly, it means precisely, clearly, unconditionally, categorically. Q: why do we need one witness if the probate is not contested? A:Because there is possibility of fraud. If you just allow it without any witness, there is a possibility that the document may not be the will made by the testator. Q:Should this witness be present at the time of execution or the time the will was signed by the testator? A: No. witnesses are not required in holographic will. Q: how may he proved that the signature or handwriting of the testator? A: because he is familiar with the signature or handwriting of the testator. You will discuss this in your evidence. Q:If the probate is contested, how many witnesses are required? A: the law says, at least three(3) witnesses are required. And they should also EXPLICITLY DECLARE that the signature or handwriting is that of the testator. Q: What if there is no witnesses who could testify the signature or handwriting is that of the testator? Should the court disallow the probate? A: Expert testimony may be resorted to. Q: can the court on its own also determine WON signature or handwriting is that of the testator? A: Yes, the court may also use its senses to determine WON signature or handwriting is really that of the testator. In the case of AZAOLA v. SINGSON, the presentations of expert witnesses are permissive not really mandatory. During the execution of holographic wills there were no witnesses. So it is really possible that during the probate of the holographic will, there were no such witnesses who know the handwriting of the testator. So it was not mandatory to present expert witnesses.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

77

Take note that in the execution of the holographic will, no witnesses are required. When you require 3 witnesses, you are requiring not merely 3 witnesses but 3 witnesses who can explicitly declare that signature or handwriting is really that of the testator and sometimes it is just close to impossible. Because you cannot just find that witnesses. In the case of CODOY v. CALUGAY, After all the witnesses have been presented, the court is not convinced as to the authenticity and genuineness of the holographic will, it is mandatory. Because the law says it SHALL be necessary. Shall connotes imperativeness as distinguished from May. The second reason is to prevent the possibility that some individual who for their benefit will employ fraud just to defeat the wishes of the testator. In this particular case, the SC noted of circumstances which really made the SC suspicious of the genuineness and due execution of the will:1. _______ this was different from those which appeared with the letter; 2. The will was not found in the personal belongings of the decedent but in one of the respondent. So unlike in the case of Azaola vs Singson, although the SC, I will quoute even if the genuinessxxxxxx the SC ____ only theoretically because the genuineness of the will there was not really an issue but in the case of Codoy vs Calugay, the genuineness of will was really the issue. The facts of the case really pointed out the irregularities in the execution of the will. So that made the SC concludes that Art 811, on the presentation of the 3 witness is mandatory. If you will be ask, WON the presentation of the expert witness are really mandatory, then you can cite the case of Azaola or Codoy, depending on the facts. Q:In the probate of the holographic will, is there a need to submit a copy of the will in the probate court? A:yes. Q: can you present a photocopy? Carbon copy? A: yes.in the case of Rodelas v. Aranza, photocopy or carbon copy is allowed. Under the Rules of Court, you have the (?) Evidence Rule, that if there is original, then you submit the original. But if for example the original is lost or destroyed and no other copy is available, then a copy of the will should be probated. Now, in the case of Gan vs Yap, no copy of the will is presented at all. Can you allow the will to probate on the basis of the testimonies? For example, a person memorize the will of the testator, can he testify in court? No. a holographic will is not allowed probate if no copy is presented in the court. Why? Because the only guaranty as to the genuineness and authenticity of the holographic will is the will itself. It is its own best safeguard. If there is no copy of will presented in court, how can the court possibly make a comparison between the will which is in question and the other document presented. So the SC said, there is no proof the truth and veracity of the will on the mere testimony of the witnesses because these witnesses are not present during the execution of the will. The law regards the document itself as the material proof of authenticity and as its own safeguard since the in the document itself it could be demonstrated WON it was written in the hands of the testator himself. Witnesses may be mistaken as to the handwriting of the testator or they may be lie.So remember the basic principle, if there is no copy of the holographic will, it cannot be allowed even if it was really executed by the testator.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

78

In the case of Rivera vs IAC, remember Art 811 said If the will is contested, at least three of such witnesses shall be required. The word is SHALL ha, mandatory. But it does not mean that anyone may contest the probate, it has to be somebody with direst interest in the proceeding, one who is directly benefited or disadvantage of the result of the proceeding. So it may be a son, an heir, a creditor. The one who must contest must not be a stranger. Dapat the oppositor must have the legal capacity to intervene in the proceeding. Article 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n) So additional dispositions and provisions after the signature can be allowed in holographic will. The requirements is that additional dispositions and provisions must be dated and signed by the testator. If date lang, walay sign, that is not valid. Naay sign, pero walay date, dili gihapon valid. Article 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) So after the disposition in the holographic will, there are now additional dispositions. So Monday, nagsulat siya to X, iyang gipirmahan, pero dili dated, usually invalid na siya, pero Tuesday to Y, again, signed but not dated, again on Wednesday to Z, signed and dated. So the presence of the signature and the date on the last disposition validates the other preceding disposition. Those preceding dispositions shall be considered as dated as of the time of the last disposition. In the example Ive given, the disposition on Monday and Tuesday will be considered as dated on Wednesday, the date of last disposition. The requirement is that the disposition must be signed even if not dated, if dated lang, dili siya in compliance with the requirements. If dated ang 1 st diposition then, ang last kay dated and signed, only the last disposition would be valid. Q: What if there are additional dispositions after the signature of the testator which are written by third person? A: Those additional dispositions are invalid. However, it does not invalidate the entire will. Q: why not the entire will? Remember the case of kalaw vs Relova, refers to insertions, cancellations, alterations, or erasures, that is referred to in Art 814. Here what I am talking is the additional dispositions after the signature of the testator in Art 813. Because in a holographic will, the will must be entirely written by the testator. A: The testator should not be penalized by the act not within his control. The will should not be invalidated for the act of a another person which is without his consent or participation of the testator, otherwise, it would be very easy to invalidate the will of the testator by just writing, thus additional disposition would just be disregarded. Q: What if 3rd person would write additional disposition in behalf og the testator but signed and dated by the testator.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

79

A: In this case, the entire will would be invalidated because this time, the additional disposition would form part of the will, hence the will is no longer entirely written by the testator. Pero kung wala siyay participation sa additional disposition, then only that additional disposition is invalidated. Article 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n) So this article refers to any insertion, cancellation, erasure or alteration. We are talking about insertion, cancellation, erasure or alteration in the body of the will itself, or even in a disposition. For example To A, I give my house and lot, my car, my jewelries and then cancelled the house and lot. What would be the effect? So the intention there is to exclude the house and lot. So to be valid it must be authenticated by the full signature of the testator. It may be the full or customary signature but the initials of the testator. What if gi-cancel lang niya? Will the house and lot still go to A? yes, because it is not authenticated by his full signature. Take note, if the insertion, cancellation, erasure or alteration has no authentication, the will stand in its original form. As if there is no any insertion, cancellation, erasure or alteration. The purpose here is to prevent fraud. It is natural and logical that the testator alone must authenticate any insertion, cancellation, erasure or alteration that he will make in his will. So again the GR: any insertion, cancellation, erasure or alteration without authentication is not valid. We have exception, we have the case of KALAW V. RELOVA. So here there is only one essential provision then the entire will itself is invalidated because the new disposition does not bear the full signature of the testatrix. What about giving effect to the previous disposition in favor of Rosa? Again, that could not be given effect because as we reached the Law on Revocation, the intent of the testatrix was really to revoke the previous disposition. So in this case, the whole will itself becomes void. The act of cancelling here is an act of revocation, and therefore there is no need of authentication. Art 814 does not apply, instead you apply the law on revocation because there was really an intention or change of mind on the part of the testator.

In the case of Ajero vs. CA, if the cancellation would be in the date or signature, then that would amount to cancellation of the will itself because the date and signature of the testator in the holographic will go into the very heart of the will. As mentioned by the SC, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes. August 31, 2013 (Makeup class) Ok, lets proceed. Art. 822. Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

80

of the will. (n) So as I mentioned before this qualifications are required during the execution of the will and of course we are talking here of notarial wills because holographic wills need not be witnessed. Now, what happens if these witnesses lose their qualifications thereafter? Like one became insane during the probate. The consequence is he will not be called to testify anymore because he cannot give an intelligent testimony but it will not affect the validity of the will. In so far as holographic wills are concerned, the witness will be required only during the probate not during the execution and the qualification id that these witnesses should be able to explicitly declare that the will and the signature are that of the testator, the handwriting are that of the testator. Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n) Here the attesting witness first can be a legatee or a devisee in the will. So A is a witness at the same time he is given a legacy or a devise. Is the will valid? YES, it does not affect the validity of the will. What is the consequence if any? A cannot receive the legacy or devise. Or A is a witness and his spouse, parent or child is a legatee or devisee. What is the consequence? The will is still valid but again the legacy or devise cannot be given. It will be void. Or anyone claiming under such person or spouse or parent or child. So what if there are more than 3 witnesses and A is one of them, there are 4 witnesses and A is also a legatee or devisee. Is the will valid? YES. Is A disqualified to become a witness? NO. Can A receive the legacy or devise? YES because of the presence of the other witnesses , so there is no conflict of interest. What is being prevented here is the possibility of conflict of interest. Because if A is a witness and also a legatee, of course he will say that the will is regularly executed all the formalities were complied with otherwise dili nako madawat akong legacy or devise. But if there are more that 3 his presence is not material to the validity of the will. What if A is a legitimate child of the testator, he is an attesting witness, and he is also given a legacy or devise. Can he still receive the legacy or devise? NO. But how about his legitime? YES. Because even if the testator does not even want him to get his legitime, the law mandates that he should be given his legitime. Even if he is a witness or not a witness he still bound to receive his legitime. So insofar as his legitime is concern, there could be no conflict of interest on the part of the heir who is also a witness. Even if the will is not valid he will still receive his legitime. The law mentions recipient of a legacy or devise so halimbawa dili legacy or devise, voluntary heirs, silingan niya iyang gi institute. I hereby institute A to of my estate at the same time A is an attesting witness. Is a disqualified to receive the inheritance? YES. For the same reason that there would be possibility of conflict of interest. So even if the law only mentions devise or legacy, a

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

81

voluntary heir insofar as the free portion is concerned he will not receive the legacy, devise or inheritance if he is also an attesting witness, unless there are more than 3 witnesses. So A is a witness and then A is also a legatee, for example A has a creditor X, can X say okay, A cannot receive the legacy, can I instead on his behalf receive the legacy? NO. because the law says anyone claiming under him or the spouse, the parent or child. For example A is the witness, and then ang legatee si spouse/parent/child, how about the creditor of this spouse/parent /child? STILL DISQUALIFIED. What if A is a witness, then X (creditor) is given the legacy on this will wherein A is a witness. Is X disqualified to receive his legacy or devise? NO that is not covered by Art 823. Article 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n) This time the creditor of the testator himself is the witness. Is the creditor who is the witness disqualified from becoming a witness? X is the creditor of the testator, so naa xay collectible from the testator and then in the will of the testator he provided that I set aside P1M in payment to my debt to may creditor. Tapos the creditor witnessed in that same will, is the creditor disqualified to become the witness? Is the creditor disqualified to receive that P1M allocated for him? NO. The will is valid, he is not disqualified as witness, and he will still receive that P1M reserve for him. Because even if he is not instituted in that will he will still receive that P1M. Remember in the distribution of estate, payment must be paid first with respect to debts, obligations, taxes, charges, etc. But if iyang collectible sa testator is P2M, in his will the testator gave him P3M ang P2M byad sa utang, ang P1M as legacy and the creditor is also a witness in that will. Is the will valid? YES. Is the creditor disqualified to become a witness? NO. Will he receive the P3M? NO. only P2M as payment of his collectible. SUBSECTION 5. Codicils and Incorporation by Reference Article 825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered. (n) So article 825 give us the definition of a codicil. By this definition we can therefore conclude that without an original will there can be no codicil. So the existence of a codicil is dependent upon the existence of an original will. What is the purpose of a codicil? It may EXPLAIN the provisions in the original will or it may ADD to the provision in the original will. Like a mentioned to you before in a notarial will you cannot make additional dispositions after the signature so kung naa pa kay nalimtan sa imong notarial will and you want to add some more you have to execute a codicil or another will. Or ALTER, so a codicil may also amend a will an original will. What if, the provisions in a codicil are different from that of an original will. So conflict ang ilahang provisions, which will prevail? Of course the codicil because the law says Altered so pwede niya usabon and tenor or provision sa original will.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

82

But if the original will is not valid, the codicil which is dependent upon the original will cannot also be given effect. Because the codicil presupposes a will as its principal. Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will. (n) So the codicil itself must follow the formalities of a will. We have a holographic codicil, we can also have a notarial codicil. So kung holographic ang imong codicil you follow the formalities of a holographic will and also notarial wills kung notarial codicil imong i-execute. What if the original will is a holographic will, can you execute a codicil which is notarial or vice versa? YES. There is no prohibition. As long as the codicil in itself can stand as a valid will because it complies with all the formalities of a valid will. Now article 826 can also be an exception to the rule on after acquired properties in Article 793. For example in 1993, the testator made a will giving his land (10 has.) in Calinan to X. Under Article 793, unless otherwise provided by the testator and expressly stated it in his will, even if the land upon his death no, for example in 2000 the land because of accretion increased in area became 11 has., pagkamatay ni testator, 11has. Gihapon ang land. The devisee will get only the 10has. Because this is the rule under Article 793, that only those properties given in the will shall be included in the devise or legacy. Properties acquired after the execution of the will before the death of the testator are not included. EXCEPTIONS: (1) Unless expressly stated otherwise by the testator in his will. (2) The testator executed a codicil.For example the testator in year 2005 executed a codicil. And in that codicil he made mention of a will he executed he made in 1993, he made some other provisions and said that all other provisions of my 1993 will are hereby deemed re-executed or are still valid. So that is the tenor of the codicil and then he died in year 2010. How many has. Will go to the devisee? 11has. Why? Because when he made a codicil, the will was deemed republished, it is as if the 1993 will was made in year 2005 as of that time the land had 11 has. So when he made a will in 2005, it is as if the land already had 11 has. So dili xa macover karon sa after acquired properties kay nagsugod naman pud tag bag.o sa year 2005. Article 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the document or paper

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

83

referred to therein; and (4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (n) Article 827 is what we call incorporation by reference. Meaning we incorporate into a will some papers or documents which will now form part of the will, this is actually an exception to the rule that only those documents executed in the form of a will can be probated, here even if the document is really not in the form of a will, it can still be probated because it forms part of the will that is being probated. When will this apply? For example, the testator has several properties, iyang inventory muabot ug maybe 50pages. He is now making a will to dispose of those properties. Does he have to copy in his last will and testament all those properties written in his inventory? If that would be the case we would now be confronted with a 60-page will so this incorporation via reference gives us a way out of that dilemma no it is for convenience. The testator in his will can just make mention of that inventory he already made. So he can incorporate the document by reference. August 31, 2013 Makeup Class(part2of2ndhalf) That is the reason why in number 1 it is required that the document or paper must be in existence at the time of the execution. Kay kung wala lang diay siya nag exist, then isulat lang dayon nimo sa imong will. One reason is convenience so that you can just mention. If it does not yet exist, better if you write that document in the will and no need for incorporation by reference. 2) the will must clearly describe and identify the document stating the number of pages in the document; 3) identify by clear and satisfactory proof as the document or paper referred to; 4) signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories; When we have voluminous books of account or inventories, there is no requirement to sign each and every page but there is still a requirement to sign a sufficient number of pages. Dili lang jud tanan. Q: Can you incorporate by reference into a holographic will some document or papers? A: only if those documents or papers are written in the hands of the testator because the requirement of a holographic will is that everything must be in the handwriting of the testator.

SUBSECTION 6. - Revocation of Wills and Testamentary Dispositions Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

84

As we already discussed in the essential elements and characteristics of a will, a will is essentially revocable. So the law says the will may be revoked at any time before his death. Revocation it is the cancellation or termination of the potential capacity of the will to operate at the time of death of the decedent. The only limitation is if the testator loses soundness of mind in the meantime. In that state, he cannot revoke the will. But otherwise, there is no ground for revocation, absolute ang right niya to revoke. The law governing revocation is Article 829. Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code.(n) We already discussed before the laws governing the extrinsic validity and intrinsic validity of wills in so far as the execution of wills is concerned. So there are only 2 things you have to remember. Whether the will was revoked in the Philippines or whether the will was revoked outside. If the will is revoked in the Philippines- only one law governs. If the will is revoked outside the Philippines - you have to remember if the will was revoked by a resident or a non-resident of the Philippines.

So duha lang ha. We are not talking about the nationality. The nationality in so far as revocation is concerned has no significance. In both cases, remember, they can comply with the law of the place of their domicile. So domicile would matter in revocation. Another is, if you are a resident, we also comply with the law of the place of revocation. If you are a nonresident, aside for the law of your domicile, you can also comply with the law of the place of execution. Art. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n) In general, these are the 3 modes of revocation:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

85

1) Revocation by implication of law; The testator MAY NOT EVEN HAVE THE INTENT TO REVOKE. But because of the act done by the testator, the law presumes that such act is inconsistent with his intention to retain the will or the disposition. So it is the law that says that the will or disposition is revoked. Example: testator instituted A as his sole heir, but subsequent to the execution of the will he sold all his property to X, therefore the will is revoked by operation of law. The law presumes that there is revocation. What if the intention was really not to revoke the will? Which will prevail, the intention of the testator or the presumption of law? (this kind of revocation will be mentioned in the law on legacies and devise, katong subsequent alienation of the property) The presumption of law will prevail. So if the testator did not really intend to revoke, he should make a manifest his real intention by executing an overt act. What may be those overt acts? He can re-execute the will or he can provide that the sale would be subject to repurchase. When it is subject to repurchase, the law will not presume revocation. So if the property is returned to the estate of the testator before his death, the heir can still get that property. So he has to make manifest his intention otherwise the presumption of law will prevail.

2) Revocation by a subsequent document or instrument; By some will, codicil, or other writing- so meaning there is a will and subsequently the testator makes another will or a codicil where he revokes the previous one. Under this kind of revocation, we have 2 kinds or classifications: a) EXPRESS REVOCATION the second will states that the first will is revoked by this second will. This is a REVOCATORY CLAUSE. Regardless of whether the provisions of the first will and second will can be reconciled, the will is revoked by the existence of the revocatory clause. b) IMPLIED REVOCAITON the second will does not mention that it revokes the first will but the provisions in the second will are COMPLETELY INCOMPATIBLE with the first will. They cannot be reconciled. Therefore the first will is deemed to have been impliedly revoked by the second will. Example: the first will gives all the properties to X, the second will gives all the properties to Y. so it is completely incompatible and cannot be reconciled. Dili nimo pwede iingon na half nalang si X ug si Y because that is not the intention of the testator, the intention was to give all to one of them. So if the first will and second will cannot be reconciled at all, then the second will is deemed to have revoked the first will. Dili pwede na ang first will will revoke the second will because the second will is the later expression of the intention of the testator. Take note that under this kind of revocation, THERE MUST BE:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

86

a) An INTENTION ON THE PART OF THE TESTATOR TO REVOKE (animus revocandi). b) The subsequent instrument or document must be in the form of a will, it must be valid as a will. c) The subsequent document or instrument must be admitted to probate. For example: A made a will in 1990, a notarial will, giving all his property to X. In 1995, he made another will, but this time a holographic will, giving all his property to Y. So all the requisites in the 2 wills are already complied with, so valid, there is intent to revoke the first will. However, by accident the 2nd will is completely burned without any intention to revoke and theres no other copy of the 2nd will. Later on, Y seek to probate the holographic will, but there is no copy of the will available neither are there photocopies, but there is a witness who memorized the provision of the holographic will and he is willing to testify. Who is entitled to receive the estate? Not Y, because even if the holographic will was validly executed but the other requisite for a subsequent document or instrument to revoke a previous document is that it must be admitted to probate. So the notarial will was not successfully revoked by the holographic will because the holographic will cannot be admitted to probate. As we discussed before in the case of ____ vs Yap: in the probate of a holographic will, there has to be a copy of the will, even if a photocopy or carbon copy. Because, again, the only safeguard as to the genuineness and the authenticity of the holographic will is the will itself. The court cannot make a comparison between the other documents in the writing of the testator and the alleged will because there is no will available, it cannot have a visual comparison of the handwriting. So the recital of a witness is not acceptable in the probate of a holographic will. 3) Revocation by means of overt acts. Burning, tearing, cancelling, obliterating these are the four overt acts mentioned by law. So the requirement is, again, there must be an INTENT TO REVOKE and there should be an overt act. So there has to be a concurrence of the two. Intent alone without the act will not result to revocation. Example: if the testator with all intent to revoke the will, place the will in an envelope and threw the will in a burning stove. Pagkakita niya na nasunog na, nihawa na siya. Pero without his knowledge, an heir who saw the burning, immediately took the will out of the stove and as a consequence only the envelope was burned but no part of the will was burned at all. Was there revocation? No. no burning is seen at all in the will. Therefore we cannot say that the will is revoked. The intention alone without the overt act cant produce revocation. Take note, that in so far as the revocation by overt act is concerned, the overt act must be made manifest in the will itself. Dapat Makita jud nimko na naay burning, tearing, cancelling, obliterating. Even if the will is not fully burned, even if only a portion is burned, misking only the first page is burned because an act intended against the first page is directed against the entire will itself. The intention alone without the overt act will not produce revocation. Overt act alone without intention will not produce revocation. So even if the will is completely burned but it was by

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

87

accident, without intention to revoke, there is no revocation. If we can still prove the contents of that will by copies, recital of witnesses, photocopies, the will can be proved. The act and intent must concur. If the will was crumpled with intent to revoke? - there is revocation. The SC said that as long as the act is an act of destruction coupled with intent to revoke, it will produce revocation. September 2, 2013 Last meeting we discussed on Rule on Revocation, So now lets go to Art 831. Art. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. (n) So in Art 831, there is original will, and then subsequently there is another will. In the second will or codicil, there is no revocatory clause. But the provision in the 2 nd will and in the 1st will are inconsistent with each other, they may be totally inconsistent so that the 2 nd will is deemed to have entirely revoked the 1st will, or only some dispositions in the 2nd will and 1st will is inconsistent. So in that case, only those are inconsistent are deemed revoked by the provision in the 2 nd will. It is like revocation. Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a) Art 832 gives us the effect of an ineffective will. For example, in year 2000, the testator executed his last will and testament, giving to A all his properties. And subsequently, in the year 2005, the testator executed another will, giving all his properties to X,Y and Z. and stating therein that he is revoking the 1st will, so there is a revocatory clause. All the requisites for the validity of the will are complied with when the testator executed his will, except that before the death of testator, X died ahead, so he predeceased the testator. And Y became incapacitated because he attempted at the life of the testator and Z repudiated upon the death of the testator. So none of X,Y and Z can receive the estate. SO in that situation, is the 1st will revived? Here by reason of predecease, incapacity or repudiation of the instituted heirs, the will now become ineffective. So because the 2 nd will is ineffective, shall we give effect to the 1st will? NO. So that is prohibited under Art 832. Why? Because an ineffective will is still a valid will. All the requisites have been complied will, although again, the institution could not be given effect because of incapacity, predecease or repudiation. But because the will remains to be valid then the revocation stands. Art 832 is also an illustration of the DOCTRINE OF ABSOLUTE REVOCATION. The revocation stands because it is not testamentary(?) in character. Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n) There is a will instituted by the testator and then because of a belief which turns out to be fault he revoked his 1st will. For example, the testator executed a last will and testament giving A all his properties. And then he received a news that A died and because of that he torn and burned his will instituting A as heir, so he intends to revoke because he said puslan man lang nga wala na si A, wala

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

88

na lang koy will and it turns out that A is not dead. Is the revocation valid? No, the revocation is__. So if he can prove the content of the 1st will, it can be allowed. So the 1st will __ by overt act it is not revoked. For example he made a subsequent will, again he instituted A as his heir for his entire estate. And he received a news that A died. So he executed another will, this time giving to B all his property. And it turns out that A is alive. Who between A and B will receive the estate or the property? So the execution here of the 2nd will is based on false belief by the testator that A died. But how do we know that such institution is based on false cause? How can we prove? Take Note that if the revocation of the 1st will is made by overt act because of the false belief like my example, ----the revocation of his will by reason of false cause can be proved by extrinsic evidence because the destruction or revocation of his 1st will was by overt act. So if the revocation of the 1 st will is by another will, the false cause must be stated in the subsequent will, he cannot prove the false cause by extrinsic evidence. SO it has to be stated in the will. If there is none, like my example then B will receive the property but if he mentioned in the will the cause, like I should have given the property to A but since A is already dead I will now institute B. So that statement in the 2 nd will will prove that the institution in the 2nd will is based on false belief that A died. Without that statement we cannot prove that in extrinsic evidence. In relation to this, we have the DOCTRINE OF DEPENDENT RELATIVE REVOCATION. Molo vs Molo-The testator made a 1st will and then he made another will, expressly revoking the 1st will, infact there is a revocatory clause in the 2 nd will. And because of that(he already have his 2 nd will) he destroyed the 1st will but the 2nd will is not valid because it failed to comply with the attestation clause requirement. Did the 2nd will revoked the 1st will? No, because the 2nd will is not valid. How about the contention that the revocation was not because of the execution of another will but because of the destruction of the 1st will by overt act? Still the answer is no because the overt act was due to a false cause or belief. The court here mentions the Doctrine of Dependent Relative Revocationbecause the act of destruction of the 1st will is connected with the making of the 2nd will. This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of some other document, however, and has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799). The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.) This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation depends, is equivalent to the nonfulfillment of a suspensive conditions, and hence prevents the revocation of the original

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

89

will. But a mere intent to make at some time a will in the place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.) We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect. The theory on which this principle is predicated is that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on two different occasion and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (714) So here we have the recognition of an illegitimate child.Is it required that the recognition should be made in a will? No. diba in you persons and family relation, it can be in record of birth like in birth certificate, it may be in private or legal document. So even if it made in a will, there is no prohibition but it does not have to be in the will. For example if the will contains a recognition of an illegitimate child. So there is a will, then there is a recognition of an illegitimate child and then that will is revoked by the testator, does the revocation also carry with it that recognition? No. Why? Because revocation is not testamentary in character, it is effective immediately, it does not need probate. It does not even have to be made in a will or a valid will at all. So even if the document is revoked but in cases recognition of an illegitimate child, that document can be admitted because as we discussed before a recognition is not a distribution of property that have to be embodied in the last will and testament.

SUBSECTION 7. - Republication and Revival of Wills What is republication? As defined it is the reestablishment by the testator of previously revoked will or one which is revived for want of proper execution__ and for other reason for us to-So there is a will and then, it has been revoked or it is not valid but the testator would want to give effect to his will. So the proper procedure is to republish. For example, the testator with all intent to revoke torn his last will and testament to pieces. Is the will revoke even if mabasa ra gihapon ang will? Yes it is revoked because the will now bears the overt act of tearing. Subsequently the testator changed his mind and he wants to give effect to the will, then he got scotch tape and connected the will, kay mahal baya magpa-notaryo so iya na lang gi-scotchtape with the purpose of keeping that as his last will and testament. Is the will valid? No. why? Because the act of taping the pieces is not the proper procedure, the proper procedure is to republish the will. The same thing with an insane person who made the will during insanity and when he regain his sanity, he discovered his will and read it and he was amazed with what he has written, kay kuyaw

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

90

kayo og mga terms. So I will keep this as my last will and testament, is that valid? No, that is not the proper way, he has to republish it. Revival on the other hand- it is the reestablishment to validity by operation of law of a previously revoked will. Here the will is revoked but by operation of law, the will is restored to life. So what are the distinctions between republication and revival? In republication, it involves the act of the testator, revival it involves the act of law.So it is by operation of law, even if the testator does not want to revive the will. In republication, the ground is different. It may be that the previous will is not valid for want of formality or lack of testamentary capacity or because it was revoked but in revival, it is a will that is previously revoked.

What are the specific provisions for republication? First we have art 835. Art. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. (n) We have 2 kinds of Republication: 1. Express Republication or Republication by re-execution- is mentioned under Art 835. When the original will is void as to form. What do we mean by void as to form? The formality described by law or the validity of the will has not been complied with. What formalities? Those mentioned under Art 804-810. How about testamentary capacity like he was of unsound mind or a minor? That is not included. Void as to its form excludes testamentary capacity. What are the forms mentioned in this article? The testator made a will but it has only two witnesses, he wants to give effect to the will. What should he do? He should republish the will. By what manner? He should re-execute all the provisions of that void last will and testament but this time he should comply with the formalities required by law. So that is re-execution or express. He should make a new will. He should re-execute. That is the only way to republish a will that is void as to form. How about if the testator at the time he made a will, he was 15 years old or he was of unsound mind and he really would want to give effect to that will. That will is invalid because he has no testamentary capacity. But he wants to give effect to the will. How can he give effect? He should republish. How? He can republish by implied republication or by reference. What is Implied republication or republication by reference? 2. Implied republication or republication by reference- He does not have to re-execute all the provisions of the old will. He can just make new will and then mentioned na on January 1, 2000, I executed a last will and testament and I want to give effect to this will but it is void because I was previously__ at that time. One will give effect to that will, therefore all the provision of that will dated January 1, 2000 are deemed reproduced and shall have full force and effect. So that is enough. In that case, the previous will is already valid. He does not have to copy all the provision, he can just refer in the 2 nd will the existence of the 1st will and state there that he is giving effect to that will.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

91

Implied republication will also apply if the 1st will is revoked. Either revoked by subsequent document or by overt act, basta revoke. What if gusto jud niya nga e-re-execute? Void but not as to form but because he was not of legal age at that time? Well, the republication is also valid. There is no prohibition. But if it is really void as to form, he cannot just make reference to that will, he cannot republish by reference or implied republication. He has to do it by express republication. Art. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n) If a will is altered, explained or modified in a codicil and the codicil refers to that old will, that has the effect of republishing the old will. One effect is a codicil shall be reckoned at the date of the execution of the old will. As I mentioned last meeting, if the testator had properties in 2000 consisting only of 10 has and over time the property in 2005, became 11 has. And at that time the testator executed a codicil republishing the old will, it is as if that old will was already dated in 2005. So upon the death of the testator, the devisee can claim the 11 has. It now become an exception to the rule under Art 793 on ____ of property because when the codicil was executed in 2005 republishing the old will, it is as if the will was already executed in 2005 and not in year 2000. I also mentioned before the concept of incorporation by reference. Can you incorporate by reference in a new will or codicil the existence of the old will? Because incorporation by reference, it allows us to incorporate or integrate into a will a document which is not in the form of a will but because of incorporation it now becomes part of the will and may be probated together with the will. So can you incorporate by reference in a new will or codicil the fact or existence of the old will? If the old will is not void as to form, there can be incorporation by reference but take note both will (for example we are talking of the holographic will) if the old will is a notarial will and you have a new will which is holographic, you cannot incorporate by reference into the holographic will that notarial will, because a holographic will must be entirely written, signed and dated by the testator. And again incorporation by reference is only applicable if the old will is void but not as to form , The same principle as to implied republication or republication by reference. Because if the old will is void as to form what you can only do is express republication. Art. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. (739a) We have 2 wills, the 1st will and the 2nd will. The 1st will is expressly revoked by the 2nd will. So naay revocatory clause in the 2nd will. But the 2nd will is still revoked. What kind of revocation? Basta it may be by executing a new document or overt act, basta revoke. What happened to the 1 st will if the 2nd will is revoked? Is it revived? No. It still remains to be revoked. That is the PRINCIPLE OF INSTANTER. For example there is 1st will and there is a 2nd will impliedly revoking the 1st will. Implied lang, walay revocatory clause.So the provisions in the 1st will and 2nd will is incompatible. And the 2nd will is revoked, what happened to the 1st will? It is revived. So this is an example of revival by operation of law, by revocation of the 2nd will which merely impliedly revoked the 1st will, the 1st will is revived. So that is an example of Revival.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

92

Another example of revival, if the testator executed his last will and testament which suffers from preterition, meaning a compulsory heir in the direct line is omitted on that will, so there is preterition. Under Art 854 of the NCC, the consequence of preterition is it annuls the institution of heir. Mawala tong institution of heirs sa imong will. So it cannot be given effect, it is revoked by operation of law. So that is one of example of revocation by operation of law. What if the illegitimate child in the will who has been omitted or preterited dies ahead of the testator and he has no representative of his own, therefore there is predecease, so he did not become and heir of the testator because for you to be a legal heir, you should succeed the testator. He died ahead. So the concept of preterition is removed, the will is now revived. So that is another example of revival. Before we go to allowance and disallowance of will, I remember, I assigned to you the case of Gago vs Mamuyac- Take note that if revocation is by execution of subsequent document or instrument, it is very easy to prove the revocation. Why? Because we have the subsequent document which contains either a revocatory clause or is totally inconsistent with the 1 st will. And there is a requirement that for a 2nd will to effectively revoke the 1st will must be valid and it has been probated. But if the revocation is by means of an overt act like tearing, cancelling or mutilating, usually the evidence of revocation is not preferred like burning. SO when a photocopy is presented and not the original, it should be received with great caution because for all we know, only the photocopy is presented because the original is already revoked. Usually we just accept the photocopy or carbon copy if the original is lost or destroyed and cannot be found because here, if the original cannot be found then it might have been destroyed by the testator, so we must have to prove that such lost or destruction was without the intent to revoke. So in this particular case, we can have the presumption of revocation, for example we cannot find the will itself and the last time it was heard of, it was in the possession of the testator and he has access to that will. So if it cannot be found after his death so the presumption is he must have cancelled or revoked that will. But of course you can also present evidence to the contrary. Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. What is a probate proceeding? It is a proceeding intended to determine the genuiness and due execution of the will. Now, the first paragraph, No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court means that probate is mandatory. You cannot just rely on the last will and testament as the document which transfers ownership over the property. although, we mentioned before under Articles 774 and 776 that in succession it is death that transfers ownership but if there is a will we have to determine if that will was indeed executed by the testator himself and in accordance with the formalities prescribed by law and when the will is proved and allowed, then the transfer will be the consequence, but the transfer

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

93

will happen not from the time of the allowance of the will but from the time of the death of the decedent. Sa probate, tan-awon lang nato kung valid ba jud ang last will, di ba ni siya forge, naa bay intent to execute this document but once it is proved, then the principle under Art774 applies that it is the moment of death that there is transfer by succession whether it is by testamentry or legal succession. For example, the testator executed the last will and testament giving to A his land and then by virtue of that will, A is now in possession of the land, and other persons are claiming the land. So, they filed a case against A because A refuses to vacate the land and then he is asked, what is your proof that you are now the owner of the la nd? because I have here the duly acknowledge last will and testament of the testator devising to me this particular land. Can he present that will as evidence? If that will has not been probated, that will cannot be admitted as evidence, it is a piece of paper. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court so that cannot be made a sthe basis of ownership; that cannot be used as evidence if it has not been probated. So, if it is probated already, then there is no problem. Maninang vs. CA SC said because public policy requires it, when last will is probated and notice thereof given to the whole world the right of a person to his property by will may be rendered nugatory. If we just admit the document as the last will and testament of the testator without determining if indeed it was executed by the testator, will not be disposing the properties of the testator not in accordance with his real intention. For all we know, he intended it to be a distribution by legal succession, he did not execute a will but because we dispensed the probate and relied on the will, his property instead be distributed with the forge or falsified document. So his right to dispose of the properties is rendered nugatory. In the case of Mercado vs. Santos, the principle that I want you to remember is that probate proceeding is a proceeding in rem. When we say in rem, the decree of probate, once it becomes final and executory is binding against the whole world. The only important requisite is that there should be proper notice by publication. So, if you are one of the heirs of the testator, and you discovered or you were subsequently informed that there is already a final decree allowing the will to probate, you cannot say that Im not bound by that decree because I was not able to participate in that proceeding. No, that proceeding is also binding against you. In fact, against the whole world. So, it is a proceeding in rem. The important principle that you have to remember here is that estoppel is not applicable in probate proceedings. Dili applicable ang principle of estoppel sa probate proceedings. You know the concept di ba? Because of the previous deed or conduct which led the other party to believe that such is the nature of things and he relied to that representation and he acted based on that representation, the person who led him to believe that such is the state of things cannot later on deny or disprove that it is not the real state of things. He cannot escape his responsibility in that case. Now, for example, the heirs, there is a person who died and then there is a last will and testament but the heirs did not want to probate the last will and testament because it is expensive and takes time and the dispositions there, they do not agree to the dispositions made in the will. So, they disregarded the will and they executed an extrajudicial partition of properties. So, by virtue of that extrajudicial partition, they received certain proeprties distributed among themselves in accordance to their agreement. For example later on, one of those heirs who participated in the extrajudicial partition realized that what he received is less than what he is entitled or he changed his mind and he files a petition in court for the probate of the will of the testator, can the othe parties argue that he is no longer allowed to institute the action because he is already in estoppel. He participated in the extrajudicial partition, he received benefits from that partition, so he is no longer allowed to act contrary to his previous act of agreeing the extrajudicial partition, that cannot be invoked because

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

94

again the principle does not lie in probate proceedings. Thats also discussed in the case of AlsuaBetts vs. CA. Now, in the case of In Re: Estate of Pilapil (72 Phil 545), the right to ask for probate does not prescribe. So when you read the New Civil Code even the Rules of Court, there is no prescriptive period within which a petition for probate should be filed. So, even if the testator already died a 100 years ago, and he left a will that will can still be probated. So, walay prescription. But of course, once a petition is already filed in court and for example the petition for probate is denied and you were agrieved and you did not act for several years and then subsequently you file another petition for probate on the ground that the right to ask for probate does not prescribe, is that correct? NO because once the petition is filed and assuming it is denied the remedy of the aggrieved party is to appeal and in that proceeding, he is already bound by the rules of reglementary period under the Rules of Court. So, kaisa lang. if it is denied, you appeal. If it is allowed then you are an oppositor, you also appeal. But again, follow or observe the reglementary period. Gallanosa vs. Archangel, here the SC said that an action for annulment of a last will and testament is not allowed. There is no such thing an action for annulment of a last will and testament. If you do not agree to the provisions of the last will and testament or you think that it is not valid because it fails to comply with the formalities, the testator has not testamentary capacity or it was revoked, you opposed the petition for probate. You aprticipate in the probate proceedings but insofar as the independent and separate action for the annulment of the will, there is no such thing. In this particular case, there was a probate proceeding instituted and then the will was allowed. The decree became final and executory subsequently, the petitioners here filed an action for annulment of the will. Again, it will not be allowed because the allowance of the will, the decree of probate is already res judicata on the validity of the will so no subsequent action to its annulment will be allowed. Now, you have to remember that, even if the SC and long line of jurisprudence said that probate is a matter of public policy, that public has interest in probate proceeding but not everybody can participte in the probate proceeding. Not just anybody can intervene in the probate proceeding, so to be allowed to intervene or participate, the person must be an interested party. Like for example, in the case of Leviste vs. CA. The lawyer was hired fo rthe probate of the will. The arrangement was that the fees will be contingent on the what his client will inherit from the estate. Here, the probate court disallowed the will. Rosa here did not appeal she even filed a motion to withdraw but it was the lawyer who appealed because of the contingency agreement kay siyempre kung mapildi ang kaso wala siyay bayad so siya na lang ang ni-appeal. The SC ruled that he has no any interest to the estate. The right of Atty. Leviste to recover his attorneys fees was dependent upon the success of the ca se upon the probate of the will but it was already denied so that contingency did not arise and he is not entitled. He contended that he is a creditor of Del Rosario and he has a right to accept for his client. He cited Art. 1052 of the Civil Code. The rule under Art. 1052 actually refers to the prejudiced creditor if an heir who has several creditors and no properties refuses to accept his inheritance. So, his creditors wala naman silay makuha na properties, they can petition the court to accept the inheritance in behalf of the heir but only to the extent of their credits. Now, here that did not apply to Atty. Leviste because he is not a creditor of the heir. In fact, Rosa was not considered as an heir. The probate court said that she is not an heir so, being that he cannot rely to Art. 1052 because again such refers to creditors of heirs and Rosa here is not an heir. So he has no interest in the proceeding. Even if indeed the will suffers from certain defects, if they are not directly interested, what have they got to lose in that proceeding. So, only a person who is directly interested, one who will directly benefit from the proceedings or who will be directly prejudiced by the results of the proceedings. Not

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

95

just anybody. So, kung naa kay silingan na billionaire and dili ka niya creditor, dili pud ka niya anak, wala pud siyay gihatag na legacy, so, you cannot go to court and participate. Pagtan -aw nimo na duha lang kabuok iyang witnesses ana dayon ka hala, sa among succession class, di ba 3 man to? So I will file intervention, I will oppose wala jud napansin sa ilang mga lawyers. Mga bugo ilang mga lawyers! Mu-appeal ko You are not allowed because you have no direct interest. In the case of Bu Chong vs. Surigao Mining, here, Christian Harris executed a last will and testament disposing of his properties consisting of shares of stocks and interests in the Mindanao Mining Incorporated and 1% royalty in Surigao Consolidated Mining Inc. So, Bu Chong here was constituted as the sole heir; universal heir of the testator, he filed a petition for probate. Now, Surigao Mining Inc opposed the probate upon the ground of forgery. Does Surigao Mining has the personality to oppose the probate? Unsa gani to iyang role? Si testator owned 1% royalty in Surigao Consolidated Mining Inc. he gave the royalty to Bu Chong. Here the company opposed the probate on the ground of forgery. Can he oppose? Does he have the personality? NO because even if Surigao Consolidated owned the shares of stocks but you have to remember in Corporation Laws that the corporation has a personality separate and distinct from its stockholders. So, even if the shares of stocks which were disposed by the testator were owned by the corporation but did not give the ccorporation the right to intervene in how those stocks are to be disposed by the testator. so, it did not have the personality to intervene. He does not place an interest in the succession. He is not an heir, a legatee or a devisee nor a creditor. So, the opposition was denied. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. Can the testator himself file a petition for the probation of his will? Yes, that is expressly recognized here. What do we call that proceedings? Ante Mortem Probate. Better ni siya kay para dili kaayo samok kung naay mga doubts ma-answer niya kay kung patay na siya mag-away ang mga heirs, but that is rarely done. Tagaan na gani mo ug properties inyo pa jud kong hasul-hasulon ug file ug probate, kamo na ang mag-file. So, seldom lang jud na siya. The other is Post Mortem Probate. That is done after the death of the testator, but this is the one which is most commonly instituted. Now, there are 2 phases actually in probate proceeding: 1. Probate proper Only the issues pertaining to the extrinsic validity of the will are discussed: o Whether the instrument offered for probate is the last will and testament of the decedent This is a question of identity o Whether the will was executed according to the formalities prescribed by law This is a question of due execution o Whether the testator had testamentary capacity at the time of exeuction This is question of testamentary capacity During probate, you cannot say your honor, I oppose the probate because the legacy is void! pakialam nako kung void ang legacy, that is not an issue in probate proceeding that is only during the distribution. Invalid disinheritance in the will is not also relevant in probate proceeding. This person instituted by the testator in the will has no right to the inheritance is not also an issue here. That is not proper. Another is impairment of the legitime, gamay ra

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

96

kaayo ang gihatag sa akoa! Kulangan! Void ang will! no, this is not ptoper in probate. Filiation, dili man na siya legitimate child ngano gihimo man na siya sa akong amahan nga i-institute na siya dira, I oppose the probate of the will again, that is not a proper ground. Title to property, ngano gihatag man na sa testator ang house and lot kay A nga di man ganina panag-iya sa testator, sa ilaha man ng silingan! The will is not valid! Mga pataka! again, that is not proper during probate proceeding. So, questions pertaining to the intrinsic validity of the will are not proper issues in probate. So, if those are raise, the general rule is the court should dismiss those oppositions. Dili siya proper. Ang sa probate lang kay question of identity, due execution and testamentary capacity. Mao lang na siya ang i-rule sa probate. Those are the pronouncements of the SC in the cases of: Dorotheo vs, CA, Maloles vs. Philips, Nuguid vs. Nuguid, Pastor vs. CA, Lim vs. CA, Coronado vs. CA. De Leon case, same ruling because here the question is whether or not certain properties should be included in the estate. Just remember, the GR : only matters pertaining to the extrinsic validity of the will shall be considered during the probate proper. Exceptions: o Cayetano vs. Leonidas. In that case, where the will on its face suffers from preterition, the court is constrained to determine the matter of preterition already even if during the probate proper becaue when there is preterition the consequence will be the annulment of the will. So, you battle in court for 10 years whether or not the will is extrinsically valid, finally, it was probated now, going to the distribution, I saw that this cannot be distributed because there is preterition and the will is annulled. So, were just wasting the time, resources, effort and all. So, practical considerations would require the court to meet the issue head on even if during the probate proper stage. 2. Distribution phase September 4, 2013 Lets discuss the case of De Leon. (She called a student) So when you say collation, what is being questioned here? So they want those properties to be included in the estate. (on the issues) So first, will collation be proper in this case? Can the probate court determine issues of title to property? What kind of jurisdiction does the probate court have regarding this question? It has what we call limited jurisdiction. So as we discussed before, only matters pertaining to the extrinsic validity of the will can be determined in a probate proceeding. So matters pertaining to the intrinsic validity should not be passed upon first during the probate proper. As we discussed last meeting, in the case of Cayetano, an exception the question of pretirition was determined because of practical considerations. In this particular case, the question of collation, whether or not certain properties shall be collated. And the ruling of the Supreme Court, first as to the determination of questions as to title, GENERAL RULE: the probate court cannot pass upon questions of title BUT it may only do so PROVISIONALLY for the purpose of what? ( Students answer: Only of knowing whether such properties should be properties included in the will)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

97

Okay, so when you say collation that will actually be discussed during the last topic, the later part of our lessons. When you say collation, for example the decedent during his lifetime made certain dispositions of properties, those properties, gratuitous dispositions of properties, those properties will be included in the computation of the net estate. Okay, so here, WON those properties disposed of by the decedent should still be included in the inventory, it may be, that question may be determined by the probate court but only provisionally because even if it says that this property shall be collated but that is not a determination as to the title over the property. So a separate action can still be filed if one wants to recover ownership over the property. So even if, the probate court says, yes this property should be collated but it doesnt follow that the estate already owns the property. That same question can still be raised in another proceeding brought specifically for that purpose. But here, in this case, the SC also said that the question of collation was premature because there was no evidence, no records would support that the debts had already been paid and the remainder of the conjugal estate had already been determined. So premature pa siya. Pero when it is already proper, then the determination of the probate court is merely provisional. Okay, so thats with respect to questions on ownership. Also in the case of Ajero vs CA, Magalanes vs Cayanan,the same ruling no. For the purpose of determining whether or not certain properties should be included in the inventory, yes, the probate court may determine ownership but that determination is merely provisional. If that determination becomes final and executory, if the decree of the probate becomes final and executory wherein in that same proceeding there was a determination of whether or not the properties shall be included in the inventory, that determination will not constitute res judicata. It will not be conclusive as to the ownership over the property. So again if nahuman na ang probate proceeding, and it was determined in that proceeding that certain properties should be included or excluded, it is not a bar to another case or petition for the recovery of that very same property. Okay, so thats with respect to questions of ownership. Filiation as we discussed before in the case of Rivera vs IAC, wherein an heir a person alleging that he was the illegitimate child of the decedent, filed an opposition to the probate. So usually, the probate court does not yet determine, WON this is really the child of the decedent or the illegitimate child of the decedent. Dili pa na siya proper because that will be during the distribution already. But in that case the question of filiation was determined only to know if that person who opposed the probate of the will had personality to oppose. I think we discussed that in probate of holographic wills. Katong alleging himself to be the son of a certain Rivera and it turned out that his father was a different person. So only for the purpose of determining if this person alleging himself to be the illegitimate son has personality because if he does not have personality to oppose then he cannot participate. That is why in that case, the probate court said there was no need to present three witnesses because if you still remember the probate of a holographic will, ordinarily of there is no contest only one witness who knows the handwriting and signature of the decedent is required but there is an opposition 3 witnesses is required. So in that case he opposed, but he SC said, there is no need to present 3 witnesses because he did not have personality to oppose as he was not the illegitimate son of the decedent. The will was not LEGALLY OPPOSED. So lets proceed to the effect of probate. What is the consequence if the will is submitted to probate? (1) As to the extrinsic validity of the willthe decree of probate become res judicata. So it is already conclusive. As mentioned in Article 838. (last par.) As to its due execution, actually as to the matters

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

98

that are within the jurisdiction of the probate proceeding. Question of identity, question of due execution and question of testamentary capacity. So the decree of probate will be conclusive. When you say conclusive, those matters can no longer be disturbed in another proceeding. (2) As to matters pertaining to the intrinsic validity of the willeven if the probate court makes a determination on this matters, the determination is only provisional and will not be considered as res judicata. Mercado vs. Santos So when the probate court admits a court to probate it is saying, among others, that the will is genuine it is not a forgery. If that decision became final and executory and later on another criminal action is filed based on that same will saying that it is a forgery, that would necessarily disturb the determination made by the probate court. That could not be done. If the probate court admits the will, it means that it is genuine and when it becomes final it cannot be disturbed anymore. It is already conclusive. This is an illustration of the effect of probate. Vda. De Kilayko vs Judge Tengco Until probated, a will cannot be used or given in evidence as the foundation of a right or title to real or personal property. You cannot just rely on the document as proof of your ownership if it is not probated. It has to be probated, the will. It is not like a deed of sale na once notarized imo nang magamit as evidence. Probate is different, a will is different. Can there be a partition between the heirs pending the probate of a will? The SC said the rule is that there can be no valid partition among the heirs of a will till after the will has been probated. But this rule presupposes that the properties to be partitioned are the same properties contained in the will. So if the will disposes of all the properties of the decedent, of course you cannot make any partition of his properties prior to the probate of the will because if the will is probated the distribution of the property will be in accordance of the will. If the court says the will is not valid then you can partition in accordance with your agreement. There are times that the parties would no longer probate the will and usually this is the practice because probate proceedings take so many years to finish and it is also expensive, so parties will partition extrajudicially, but technically that is not allowed. The extrajudicial partition can still be assailed later on. But there are cases that this can be allowed like if the partition is in accordance with the provisions of the will and it is submitted to the approval of the court. So that is the only exception kung ang extrajudicial partition in accordance with the will and submitted to the approval of the court. Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats;

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

99

(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n) Take note that these are the exclusive grounds for the disallowance of the will. You cannot add some other ground, EXCEPT: (you can add one) REVOCATION. if the will was already revoked, of course, it cannot be admitted to probate.

GROUNDS: we can actually group these into 3. 1) if the formalities required by law have not been complied with; 2) if the testator did not possess testamentary capacity at that time, and; 3) if the execution was not voluntary, there was vitiation of consent. FORCE, DURESS, FEAR, or THREAT this connotes the idea of coercion whether mental of physical. You discussed before in your Oblicon what is forcek, duress, fear, or threat, so the same definition. But take note, that in OBLICON or in CONTRACTS specifically, the presence of these vices of consent make the contract VOIDABLE. But in SUCCESSION, in WILLS, these make the will VOID not merely voidable. UNDUE INFLUENCE Ortega vs. Valmonte Petitioner contends that it was "highly dubious for a woman at the prime of her young life [to] almost immediately plunge into marriage with a man who [was] thrice her age x x x and who happened to be [a] Fil-American pensionado," thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it supposedly "defies human reason, logic and common experience"for an old man with a severe psychological condition to have willingly signed a last will and testament. SC ruled: We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud. Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was ever presented. Maam: and even if for example the testator was really influenced to give certain properties to his wife but that cannot be considered undue influence. Actually, when a person executes a will it will be expected that some heirs will be favored over the others otherwise he would not have made a will for his heirs to have equal shares. Ok, so you have to prove your allegations, you have to present proof. So you remember these grounds for disallowance, just memorize if you can memorize. DISTINGUISH REVOCATION FROM DISALLOWANCE

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

100

REVOCATION it is the voluntary act of the testator may be with or without cause May be partial or total

Done during lifetime of testator BOTH: presuppose that there is an existing will and because of revocation or disallowance, the will cannot be given effect.

DISALLOWANCE it is by means of a judicial decree there must be a ground (Article 839) Generally total except when the fraud or undue influence affects only parts of the will the Invoked after the the testators death

September 11, 2013 We now proceed to Article 840. Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (n) So this what we call the institution of an heir. Take note that when it comes to the legitime there is no need to institute an heir because the law provides for the legitime and the heirs or the compulsory heirs who are entitled to their legitime. So when we say institution this would apply to the free portion. Although when the testator disposes of his entire property in his will and he may designate certain persons and all of them will get the entire estate, so that is also institution but some of them receive partly their legitime and part of the free portion. So it is the act of designating in the will the person or persons who are to succeed. An heir is one who is instituted or one who is given an aliquot share of the estate, an ideal shareso the share of the heir cannot be determined, it is spiritual or ideal as distinguished from a legacy or a device where their share is specific. But some provisions on the subject of institution of heirs can also apply to legacies and devises. Now, what are the characteristics of an instituted heir? We already mentioned before that he is entitled to an aliquot portion as distinguished from a legatee or devisee who receives a specific portion. The instituted heir continues the personality of the testator but only in relation to the inheritance without being personally liable for the debts of the testator. We already discussed this before that an heir represents the juridical personality of the testator, bring actions in behalf of the testator. If you are an instituted heir, specifically the free portion, you may represent the testator, you continue the personality of the testator in so far as the portion you receive but of course you can also

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

101

be held liable for obligations but not beyond the value of your inheritance. So the continuation of the personality in so far as the obligation are concerned will be limited only to the value of the estate. Can a juridical person be instituted as an heir? YES. It can be instituted as an heir. Provided that it is not disqualified by law. If it is a corporation, if it is chartered, it is not prohibited to inherit. Natural persons of course can be instituted as an heir. But take note, unlike contracts like sale, lease, etc. where we need the parties to be of legal age, in contract where the consideration is liberality the recipient need not be of legal age, take note in donation, an infant of a child can be a done, so in succession also, a baby, a person who is not yet of legal age can be an heir, even one who is still in the womb, a conceived child can receive by donation or succession but there is a condition that they should later on acquire juridical personality. How does one acquire juridical personality? If the child has an intra-uterine life of less than 7 months, he must live for at least 24 hours after delivery. That would be under Article 40 and 41 of the Civil Code. Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a) Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a) Okay so if the fetus had an intra-uterine life of less than 7 months, it has to be at least 24 hours after delivery if it died after 10 hours it did not acquire juridical or civil personality, so any disposition given to it by donation or succession would not be valid. If the fetus had an intra-uterine life of more than 7 months or more, as long as he is born alive. It doesnt matter if he dies 2 hours after, so that child already acquired juridical or civil personality. An instituted heir acquires rights limited to the disposable portion, it cannot impair the legitime. So even if you are instituted as an heir, if the legitime of the of the compulsory heirs will be impaired by your institution, like you are given of the estate but there are legitimate children the diposable portion in that case will only be . So your institution would be inofficious that would be reduced to give effect to the legitime of the compulsory heirs but you can still receive pero mabawasan lang. ok so that is the principle. And it is presumed that the institution is equal unless there is a contrary intention, ok we will discuss this later. Now what are the requisites for a valid institution? 1. The will must be extrinsically valid because as defined the institution is made in a will, without a valid will there can be no institution, only the legal heirs can receive if there is no will. There should be a valid will. If the will is not valid inform/extrinsically. The institution cannot be given effect. So the heirs mentioned in that will cannot receive unless they are also legal heirs. 2. The institution must be intrinsically valid so as to substance. So what do we mean by intrinsically, like:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

102

there should be no pretirition, because of there is preterition the institution of heirs will be annulled. The heir instituted should not be disqualified to receive from the testator because there are also disqualifications under the law. There should be no impairment of the legitime because as I mentioned before even if you were given something in the will if it would prejudice the legitime of the compoulsory heir, its either your inheritance will be reduced or you cannot receive at all, for example, the entire estate consist of legitime there are cases ha na tanan sa estate legitime, wala nay free portion, so if you are instituted also the institution will not be given effect.

3. The institution must be effective. I think we discussed before an ineffective will in revocation. If there are heirs instituted in the will but the instituted heirs cannot receive because of predeceased, incapacity or repudiation, then the institution becomes ineffective, the will also becomes ineffective, for institution to be valid it must effective. The heir instituted should not predecease, should not repudiate the inheritance and should not become incapacitated. Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764) So number one, even if the will does not contain an institution of heirs it is still valid provided it complies with all the formalities prescribed by law. Can you imagine a will that does not contain an institution of heirs? Yes, a will containing only a disinheritance, it does not have instituted heirs but it is still valid because there is an indirect disposition in that particular case. So what is important is that there should be at least a disposition of properties. Or the institution should not comprise the entire estate. Like only of the estate has been disposed of in the will so we now have a case of mixed succession. The disposition is partly by will and partly by law. Or even if the person does not accept the inheritance or becomes incapacitated. So we already discussed that. So what will happen to this kind of will? If for example the heirs in the will do not accept the inheritance, they repudiate or they become incapacitated, what will happen to their share given? That will go to the legal heirs without prejudice to substitution, representation an accretion which we will discuss again later. So actually in the order of distribution, in the order of effectivity, the intestacy is the least preferred. As long as there is a way to give effect to the will, the will should be respected, the property should be disposed of in the will. If the instituted heir cannot receive because of incapacity or etc. if there is a substitute to that heir then give to the substitute, if there is no substitute and the right of representation would be proper, then right of representation, if its not proper then accretion is applicable, then distribute by way of accretion. If dili gihapon the last resort is intentacy. Art. 842. One who has no compulsory heirs may dispose by will of all his estate or any

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

103

part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a) Ok so the freedom to dispose by the testator. If he has no compulsory heirs then he can give to anybody his estate he does not have a free portion and legitime but its entirely the free portion, he can give to anybody. But of course if there are disqualifications provided by law, he cannot give to the disqualified persons. Like for example, the law disqualifies a testamentary disposition made by a testator to a person with whom he is guilty of adultery or concubinage or if the disposition is made in consideration of a crime. So that is not allowed. So if you give to X because that is his payment for killing Y, that is not allowed even if your entire property is free portion. So thats one limitation. Of course if you have compulsory heirs, then you can now dispose of the free portion, in the order of distribution, give first to the compulsory heirs their legitimes. The balance is the free portion, so you can give that to legatees, devisees and heirs (instituted heirs) Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772) So you should identify the heir otherwise, the institution becomes ineffective. So the heir must be certain, how can you make the heir certain by designating him or her, ideally you must identify him or her by his or her name, full name. Kung wala, first name, as long as ma-identify na siya to. Nick name? pwede gihapon, to payat, human tambok d-ay to, (haha) pero mao man na ang gitawag, term of endearment sa testator, so kana. Or any other name. So you should designate him in a manner that there can be no doubt as to who has been instituted. Ang akong pinaka.bright na apo, so kato siya, ma-identify gihapon xa. So for example, I hereby institute Juan to one have of my estate, my best friend Juan, but there are two Juans and both of them are claiming as his best friend. So you cannot identify which of them is being referred to in the will. Can you give to both? NO. because the intention of the testator is to give to only one. You can use the rules we discussed before in construction in interpretation of wills or the rules in resolving intrinsic or extrinsic ambiguity of the will. But if the doubt cannot be resolved at all, the institution cannot be given effect. Art. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir. (773a)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

104

So if there is an error in the name, like spelling for example, that is not material, as long as the heir can be identified. to my adopted son Juan, but it turns out that Juan is not legally adopte, he can still inherit because the term adopted is just an identification, a description it is not a condition that he will inherit so that will be disregarded. So two persons having the same names or surnames, Ive already mentioned that before, as long as there is proof that you can use to identify then give to the person named, if not identified then none of them shall be an heir.

Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a) So in favor of an unknown person, who is an unknown person? As defined, an unknown person is considered by law as non-existing. Someone who cannot be identified, not one who is unknown to the testator of course if that person is unknown to the testator he would not have given some disposition in his favour. So an unknown person is someone who cannot be identified. He is considered by law as not existing. Like for example, I hereby give my car to one of my nephews and then you have 10 nephews who among the 10 nephews is entitled to the car? And there are no other identifying circumstances, so how can we give that car if the person cannot be identified but if there is an identifying circumstance like, to my nephew who will first become a lawyer so he can be identified even if not now because the identifying circumstance before the death of the testator or after his death. The minimum requirement is that the person should already be living at the time of death of the testator. There is one case: I hereby give my property to my relative who will study for priesthood. So who is that person can that be identified, if any relative would study for the priesthood then that would be the person who is entitled but that person should at least be alive or living at the time of death of the testator because transmission happens at the time of death of the testator. So if wala pa d-ay xa naanak at the time of death of the testator who later on studies for the priesthood, he is not qualified to inherit. Ok so thats the minimum requirement: must be living or at least conceived at the time of death of the testator. Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765) The principle of equality. So in his will the testator instituted A, B, C and D as his heirs. The estate is 10M. Silent kung pila ang shares ni A B C and D. I hereby institute A B C and D as my sole heirs. How do we divide the estate? The presumption is equal. Because of the testator intended a different sharing he would have specified so in his will. So each of them will receive 2.5M. What if, I hereby institute A B C and D as my sole heirs to my entire estate of 10M. Silent ang institution. But A and B are the legitimate children of the testator, so how do we divide the estate? So here the heirs do not stand in the same juridical relation to the testator because some are compulsory

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

105

heirs, in that case, we limit the institution only to the free portion. Because as I mentioned before, general rule, the institution is limited only to the free po rtion, you dont need to institute heirs to the legitime. You give first to A and B their legitime, being compulsory heirs, being legitimate children they are entitled to of the net estate, so 5M divided by 2= 2.5 each. So A and B will get 2.5 each. The free portion here is 5M, how do we divide the 5 million? Wala nay labot si A ug B kay nakadawat na? LABOT GIHAPON because they are instituted together with C and D. So the presumption is to the free portion, the sharing of A B C and D will be equal. So 5M divided by 4= 1.25. So that would be the distribution of the estate. Article 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a) So this is the principle of individuality. I designate as my heirs A and B, and the children of C. the children of C for example are X and Y, X and Y are considered individually instituted together with A and B, meaning equal shares sila. They shall not be treated collectively. Like for example, the estate is 5 million, A and B and the children of C, the children of C are X and Y, how do we divide the 5 million? They shall be treated individually meaning X and Y share the same status as A and B. Cause if you say collectively, 3 lang ang bahinan ana, A B and the children of C. But individual A B X and Y. And that is illustrated in the case of Nable vs Unson. Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a) So you know what is a half-blood sister and a half-blood brother. Its either the same mother but different fathers or the same father but different mothers. As they necessarily illegitimate? NO! Pwede na, nag-asawa imong papa karon tapos namatay ang mother, nag-asawa ug lahi, so ang anak nila sa ikaduha nga marriage, half-brother or half-sister sa kadtong mga anak sa first marriage. But all of them are legitmate. So being half-blood brods and sis does not necessarily equate to being illegitimate. So under Article 848, if brothers and sisters are instituted, some of them are full blood and others are half-blood, how do they divide the estate if the sharing is silent? EQUAL. Why? Because there is an institution, so the testator made a will, and he made some institutions of heirs in the will, he had the opportunity to specifically designate their shares, and he could have specified that some would receive higher shares than the others, if that were his intention, but his institution is silent, so it is presumed na equal lang iyang pagtagad. So remember this article, Why? Because when we go to legal succession, of course in legal succession there is no last will and testament, if half-blood brothers and sisters successes together with full blood brothers and sisters, those of the full blood will inherit twice of those of the half-blood. Because the law presumes that the affection of the decedent for the full blood is more than that of the half blood. Article 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (771)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

106

So i hereby institute P and the children of P. Halimbawa si P nay anak si A B and C, so the presumption is they are successively instituted and also individually. So if the estate is 10M, P and the children A B and C, each of them will receive equal shares of 2.5 million at the same time, so simultaneously. Not successively. Unless there is a contrary intention. And also under article 847 individual. So it is the principle of simultaneity. Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a) What is the effect if the institution is based on a false cause? I hereby institute my veeeery beautiful daughter X as my heir to of my estate. And then really it turns out na dili d.ay xa beautiful, in fact exact opposite, so can you not give to the daughter because i-contest nimo, Your honor why? Because it is very clear veeery beautiful daughter and that is false, RES IPSA LOQUITOR The law says it shall be considered as not written, just disregard that because it is just a description UNLESS it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. EX: I would have wanted to institute B my best friend as heir but because A saved my life, I am instead instituting A to of my estate. And it turned out that A did not really save the life of the testator, so the institution of A is based on a false cause, would A receive the estate? NO because there is a clear statement here that he would not have given to A the had he known that A was not the one who saved his life. So can B receive the ? NO. because B was not also instituted. So that portion will go the legal heirs. Now, take note in revocation, the statement of a false cause in revocation annuls the revocation but here, statement of a false cause in the institution does not affect the institution, the institution is still valid. Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n) So this is a case where the institution does not cover the entire estate and there is no intention to dispose of the entire estate. So in that case you have a case of MIXED SUCCESSION so partly by will and partly by operation of law. Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n) EXAMPLE:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

107

P10M: A-1/4, B-1/4 but theres intention to dispose of the entire estate. Saying I hereby give my entire estate to A and B, each (naunsa diay ka te stator dili ka kabalo mag math? Haha!) So, you increase proportionately. You increase their share to 5M each. P120T: A-1/6, B-1/8, C-2/3. So their share shall be increased proportionately, kung pila tong ilang share sa original institution, increase nimo siya proportionately. So first you distribute their original shares then the remaining balance you distribute using the fraction of their (Original Shares/Total Original Shares). Answer= A:P20,869.565, B:P15,652.179, C:83,478.862. (PLEASE SEE SIGMA TRANSCRIPTIONS nalang please! <3 p. 170. hahaha lisod man gud itype and computation! ) Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n) So here nasobra ang gihatag. So the share of each will now be reduced in proportion. EXAMPLE: P120T: A-1/4, B-1/8, C-2/3. There is an intention to distribute the entire estate to A,B, and C. So first get the original shares= of 120T, 1/8 of 120T, and 2/3 of 120T, total is 125T. So sobra ug 5T. So you have to reduce by 5T, but ABC has to share it proportionately (use the fractions using their original shares). So dapat ang total P120T. (SEE SIGMA TRANSCRIPTION p.170) Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a) Preterition is a favorite Bar question.

The first thing you have to remember in preterition is that there has to be a will. The principle you have to remember is if the decedent did not make a will, there is no preterition. So if the omission was in a compromise agreement, not in a will, it cannot be considered preterition. Any allegation of preterition without a will will be premature. So there should be a will. REQUISITES: 1) There must be omission from the inheritance. OMISSION if the will executed by testator the heir is omitted, wala xa gitagaan, did not give any inheritance, legacy or devise, even if gamay. For example the estate is P10M, and A, a legitimate son is given P10.00. Is he preterited? No, because he is mentioned in the will although he is just given P10.00, but the remedy here is not preterition. He is only entitled to a COMPLETION OF HIS LEGITIME.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

108

What if the testator says To by 3 beautiful daughters ABC, to A, the other is to B. is C preterited? But she is mentioned as one of the three beautiful daughters? When you say OMITTED meaning not given anything. So even if mentioned but not given anything by legacy, devise, or inheritance there is still omission. The omission is not only in the will but it should be in the total or entire estate. Because even if the will did not mention the heir but the will only disposed of of the estate then there is no omission. So when you say omission omitted from the entire estate. So you have to remember, THE WILL SHOULD DISPOSE OF THE ENTIRE ESTATE because even if there is a will and the will does not mention the heir but the testator left other properties not mentioned in the will, there is no preterition. The omitted heir in the will can still receive by legal succession and if that is enough he will be entitled to a completion of his legitime. For example: the will dispose of entire estate, the heir is not mentioned in the will, but during the lifetime of the testator, that omitted heir already received a donation. Is she preterited? No, because she received by way of donation. In fact she received in advanced, because donations made by the testator during his lifetime to the compulsory heirs will be considered as ADVANCES to their legitime - they will be COLLATED or BROUGHT BACK to the estate upon the death of the testator. The OMISSION IS TOTAL: not given anything in the will, there is nothing left which the heir may receive by way of intestacy, and the heir did not receive anything at all by donation or other gratuitous dispositions during the lifetime of the testator. Gratutitous dispositions - because walay formal donation but during the lifetime of the testator iyang gipangbayaran ang utang sa iyang anak or xa ang nag finance sa election sa iyang anak sa campaign. That can be considered advances. Those expenses can be collated to consist of the sons legitime. If that happens, there is no omission because he still received by way of gratuitous disposition. Note: Under the old rules: preterition will only apply if the omission was INADVERTENT. If Deliberately omitted, the rules on disinheritance applies. BUT, the NEW RULE: preterition will apply even if the omission was INADVERTENT or DELIBERATE as long as there is no statement na the heir is really disinherited. That is preterition. Why is this being argued? Because the EFFECT of preterition and invalid disinheritance is NOT THE SAME. Mas subtle ang effect sa invalid disinheritance in so far as the instituted heirs are concerned. Xempre kung ikaw ang naomit mas gusto nimo ug preterition kay mas dako kag makuha in the end. 2) the omitted heir must be a compulsory heir in the direct line. Dili misking kinsa lang na compulsory heir but a compulsory in the direct line. COMPULSORY HEIRS: (1) Legitimate Children or descendants, (2) in their absence, the Legitimate Parents or ascendants. (3) Surviving spouse (4) Illegitimate children

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

109

If in the DIRECT LINE: Those are the heirs from whom the testator descend or who descended from the testator. Ascending or descending. So in that definition, the surviving spouse is EXCLUDED. She cannot be preterited. Even if the spouse is omitted in the will, that is not preterition. There would be no annulment of the institution of heirs in the will. But because she is omitted, she is entitled to a COMPLETION of her LEGITIME but there is no preterition (Neri vs. Hakutin?) A surviving spouse cannot be preterited because she is not a compulsory heir in the direct line.

ADOPTED CHILDREN By provision of law adopted children shall be considered a legitimate child of the adopter/testator. So the adopted child can be preterited.

3) the preterited heir should not predecease the testator. EXAMPLE: Testator has 3 legitimate heirs A,B,C but he only gave his entire estate to A and B. C is preterited. If C died ahead of the testator, there is no more preterition because C did not become an heir because he predeceased the testator. So there is no preterition. EXCEPT: if C himself has his own REPRESENTATIVE, there is the right of representation. Meaning, C has his own heir/child, the child will replace C in the succession of the estate of the testator. So the preterition of C will still have an effect because there is still somebody who will represent him. So there is still preterition, so the institution of the heirs in the will will still be annulled. So you have to know the CONSEQUENCES of preterition. EXAMPLES: a) Estate 120T, testator has X,Y,Z as heirs. Z is preterited. How do we distribute the estate? You distribute by LEGAL SUCCESSION, you disregard the institution of heirs. In legal succession, they will all receive equal shares. b) Estate 100T, testator has X,Y,Z as heirs. Testator instituted only X and Y to his entire estate. Z is omitted from the will. But during the lifetime of the testator he gave Z a donation of P20T. Is there preterition? No preterition, Z is just entitled to a completion of his legitime. How do we distribute the estate? We add back the 20T by way of donation, so the total actual net estate is 120T. Because Z is not preterited, we will respect the institution of X and Y but Z should be given the completion of his legitime. So 120T/2 = 60T legitime sa legitimate children. 20T each dapat ang legitime sa each legitimate child. Since Z already received a 20T donation, that is already considered as an advance of his legitime. So wala na xay bahin sa nabilin na 100T. So kay X ug Y, they will divide equally the balance of the free portion kay sila man ang gi-institute para sa free portion. 30T each sila sa free portion, you add that to their share in the legitime of 20T each, so bale 50T each na si X ug Y. That is if there is no preterition.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

110

c) Estate 120T, A,B,C legitimate children. The testator only instituted A, B and X (a friend) as his heirs to his entire estate. C is preterited. What is the effect of that preterition? You distribute by LEGAL SUCCESSION, you disregard the institution of heirs. In legal succession, we divide among LEGAL HEIRS. All compulsory heirs are legal heirs. So 120T/3 = 40T each si ABC. Si X? TY. Walay madawat, because he is not a legal heir and because the preterition caused the annulment of the institution of the heirs. d) Estate 100T, testator has ABC as heirs. Testator instituted only A, B and X (a friend) to his entire estate. Z is omitted from the will but during the lifetime of the testator he gave Z a donation of P20T. so like the previous example, Z already received his share of the legitime of 20T. so the free portion of 60T shall be divided equally by A, b and X (yey naa nay share si X!) because there is no preterition, theres no annulment of the institution of heirs. Z will not share in the free portion because he is not instituted. Remember that institution of heirs only apply to the free portion of the property. e) Estate 100T, Testator has ABC as legitimate children, C is preterited. X is given a legacy or devise of 20T. what is the effect to the preterition? The institution of heirs shall be annulled BUT legacies and devises which are not inofficious shall be RESPECTED. So that is the difference between an instituted heir and a legatee or devisee. Because if you are an instituted heir and there is preterition, there is annulment of the institution and you will not be able to get anything. But if you are a legatee or devisee, as long as your legacy or devise is not inofficious, it will be respected and you will be able to receive. How do we distribute? First, determine what are the legitime because that is important to know if the legacy or devise is inofficious. INOFFICIOUS meaning it impairs the legitimes. So 120T/2 = 60T ang legitime, 6oT ang free portion. So definitely, the 20T donation to X can be covered by the free portion. So this is not inofficious. So give to ABC their legitime of 20T each. Then the free portion, first you give it to the legatee/devisee because it is not inofficious. Then the remaining of the free portion of 40T is divided equally among A, B and C. so all of them will receive equal shares (because there was an annulment of the institution of heirs), except lang na hatagan nato si X ug iyang legacy. f) kung ang legacy or devise ni X is 70T, that is inofficious. But that can STILL BE RESPECTED, it will only be REDUCED to 60T (the allowable free portion to be given as a legacy /devise). So the remaining legitime of 60T will be divided equally among A,B and C.

So that is the consequence of preterition. EXAMPLE Estate of 10M, I hereby institute A, B, and C as my sole heirs without mentioning how much is his estate and Z (an illegitimate child) is not mentioned. Is there preterition? No. because as we discussed before, institution refers only ot the free portion. If he said na I hereby dispose of my ENTIRE ESTATE to to A, B, and C only then kana klaro na wala nay madawat si Z. So since wala xa

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

111

niingon na ENTIRE ESTATE, the institution I hereby institute A, B, and C as my sole heirs should only be applied to the FREE PORTION. It will not cover the legitime. So give first the legitime to A, B, C and Z then the free portion only to A, B and C. September 14, 2013 So last meeting we discussed Art. 854. In the case of CAIN VS. IAC, it is established that a spouse cannot claim preterition because she is not an heir in the direct line. In the case of AZNAR VS. NUNCAL, one can only claim preterition if he is not mentioned as an heir, a devisee or a legatee and he receive nothing at all by virtue of a will.if he receives something by reason of intestate succession or he received a donation during the lifetime of the testator, there is no preterition. In the case of J.L.T. Agro, Inc. vs. Antonio Balansag, again, we mentioned before that there is only preterition when there is a will. In this particular case the subject was a supplemental deed allegedly wherein the compulsory heir was ommitted. The SC said, in the case at bar, Don Julian did not execute a will since it was a partition inter vivos to his property. thus, it is premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a will depriving the legal heir of his legitime. In the case of HEIRS OF LIBERATO ORETA VS. HEIRS OF ORETA SR. GR No. 165930 September 14, 2011 here, it was alleged that there was preterition because some of the compulsory heirs were not included because some of the compulsory heirs were not included in the partition. It was already after the death of the decedent. But the SC here said that actually when we go to Art. 1104, theres another concept of preteritionpreterition of the compulsory heirs in the partition, so if that is the case if the heir is omitted in the partition, it is not preterition under Art. 854 because Art. 854 presupposes that tehre is a will and the compulsory heir is ommitted in the will. So the effect of that is annulment of the institution of heirs but if it is just preterition in the partition, the remedy would be to annul the partition if there is bad faith and fraud otherwise, the partition shall be respected and the preterited heir shall just be given his share in the estate. So, preterition under Art. 854 is different from preterition under Art. 1105 and there is no will involve because there is just a partition. So, Art. 854 cannot apply. Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. So here, a child has been omitted in the will. What happens when the child is omitted? Actually this article may apply if there is preterition but if there are devise and legacy. This can also apply if the child omitted is not preterited because if there is preterition, the institution of heir shall be annulled totally. So the distribution shall be in legal succession. If there is a devise or legacy, such can be respected we can apply this. Ex: At the time of his death, the testator left an estate worth 100k. A,B,C are his legitimite children. C is omitted in the will but during the lifetime of the testator C received a donation of 20K. so, again in the computation, we have to add the 20k to the 100k to arrive at the net estate. As I mentioned, C is not preterited because even if he is omitted in the will, he received a donation, so this will be considered as advance to his legitime. Now, in the distribution, the legitime of each compulsory heir would be 120k/2= 60k/3= 20K each. So, where do we get the share of C, the omitted heir? Of course we do not get it from the legitimes of other compulsory heirs. We get first from the free portion.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

112

If it is for example an illegitimate child that has been omitted, for exampl, C is an illegitimate child and he also received donation of 5k, A and B are legitimate children. If the estate I 115K at the time of death and then we add the 5k donation, we arrived at 120k. 120k/2= 60k/2=30k for each legitimate child. How about C, the illegitimate child? Under the law, he is entitled of the share of 1 legitimate child. So he gets, 15k. Now, he already received 5k, so he is entitled to an additional of 10k. where do we get that additional? In the free portion. In all cases, if there is an omitted heir, a child or descendant, we preserve the legitimes of other compulsory heirs. We just get from the undisposed portionfree portion. We will have the computation when we go to legitimes. However, Art. 855 also said xxx if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs this is when the compulsory heirs received more than their legitimes. So, halimbawa gi-institute sila as heirs, C is omitted, but he received 20k by way of donation and then he was not mentioned in the will. The estate is 100k. so the total is 120k. In the will, the testator only instituted A and B as his sole heirs. So, you give the legitimes of A, B and C and then we have the free portion. Halimbawa lang, the share of the omitted heir and iyang nadawat kay gamay lang jud siya na kinahanglan pa ka magkuha ug additional sa free portion. If A and B are sole instituted heirs to the free portion, ang ilahang share sa free portion, bawasan nimo para ihatag kay C. Unsaon pagbawas proportionally? Kung unsa ilang nadawat like for example equal share sila sa free portion so ang ilahang i-contribute to complete thelegitime of C would also be in equal share. If kay A and kay B sa free portion, you have to deduct this shares to complete the legitime of C. A should contribute and B 1/4 proportionately ang share nila. But in any case, you will not deduct from the legitimes of the other compulsory heirs. So, these last paragraph applies only to the share of thecompulsory heirs in the free portion. Their legitimes will not be reduced. Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. We are referring to the VOLUNTARY heirs who received from the free portion. The legitime can be transmitted. The legal shares if it is intestate succession can be transmitted. So, with respect to voluntary heirs, or this can also apply to legatee or devisee , if the voluntary heir or the legatee or devisee dies ahead of the testator. namatay siya una, what happens to the iheritance, legacy or devise? The testator instituted X as heir. So, the estate for example 1M worth of properties. In 2000, X died and in 2001, the testator died. So, the will was not changed. The testator insituted X as heir and X died in 2000. Can the heirs of X now claim this inheritance? NO! because X is a voluntary heir. A voluntary heir who dies before the testator transmits nothing to his heirs. So, what happens to this inheritance supposedly given to X? the principle of ISRAI will apply. ISRAI stands for: Institution, Substitution, If there is a substitute for X, the inheritance will go to the substitute.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

113

Representation, If the right to represetnation is proper, it will go to the represenative. But here, the right of represenation is not proper because we are referring to the free portion. Accretion, Accretion will apply if 2 or more heirs are instituted to the same inheritance. We will discuss that later. here, there is no accretion because only X has been instituted. Intestacy This is thelast resort. This portion shall go to the legal heirs of X. Now, the 2nd paragraph: A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. The same thing ha, if the compulsory heir dies ahead of the testator or becomes incapacitated or who renounces does not also transmit except in cases provided for by law and what is that case? The right of representation will apply. For example, X is a compulsory heir so he is entitled to his legitime. So we are now talking of the legitime not just the free portion. The legitime. So, X died ahead of the testator. wala siyay anak. Upon the subsequent death of the testator, what happens to the shares supposedly going to X? wala na, omitted na si X from the distribution because he died ahead or he became incapacitated or because he repudiated, he never became an heir of the testator. So, wala siyay labot except when the right of representation applies. So, X is the son of the testator. Anak ni X si Y. Apo ni testator si Y. If X died ahead or was incapacitated, X cannot receive the inheritance, but X had a child. Under the right of representation, Y will now receive the share of X. Y is alleviated to the degree and status of X. That is in predecease and incapacity. So, even if X dies ahead of the testator, if he has representative, the latter can inherit. So, he can transmit his right to his heir. Or if X becomes incapacitated, even if he cannot inherit, but his representative can inherit in his will, but it is different when it is repudiation. If X repudiates the inheritance in the estate of testator, Y cannot receive anything in behalf of X because an heir who repudiates cannot be represented. So, just remember the basic principle. Insofar as the free portion is concerned, the heir, legatee or devisee cannot transmit anything to his own heir, but with respect to the legitime, the heir can transmit can transmit to his own heir. If he becomes incapacitated or he dies ahead, his heirs can still receive in his behalf, but in repudiation, he cannot be represented. Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. We now go to the concept of substitution. Now, as defined in Art. 857, it is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. By this definition, it can picture a situation where there is a first heir and then the first heir cannot inherit. So, in his default, another heir will inherit. This contemplates an alternative inheritance. Its either A, the original heir or B, the substitute. there is no way that both can inherit at the same time in this definition. But this is not actually a complete definition because there is another concept of substitution in the new civil code where both heirs can inherit. That is the concept of INDIRECT SUBSTITUTION. So, Art. 857 is the definition of direct substitution, it does not cover indirect

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

114

subsitution. So, when you are asked to define substitution, in its broad sense, it should be substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted or after the heir originally instituted. So that will cover also indirect substitution. There are 2 kinds of substitution, direct substitution where either A or B, so alternative it cannot be both and only 1 heir inherits. If there is default on the part of the original heir then the substitute may inherit. Indirect substitution, both heirs will inherit one after the other. So that is the concept of indirect. There is only 1 example of indirect substitution in the civil code that is the concept of fideicommissary substitution. Actually, substitution is intended by the testator , of course, so that even if the original heir cannot inherit, there is still another who will suceed to prevent the property from going to intestate or legal succession because in that case, the testator will have no control already as to the heirs. Article 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary. These are the kinds of substitution under New Civil Code. What is simple substitution? Article 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. So the substitution may be by reason of predecease, incapacity or repudiation that would be the general rule, but the testator is not precluded for providing for other reasons for the substitution. Article 860. Two or more persons may be substituted for one; and one person for two or more heirs. So brief institution is two or more persons may be substituted for one heir. SO A is the heir originally instittuted and in default of A, B,X,C will be the substitute. Compedious substitution, there are 2 or more heirs originally instituted and in their default, the substitute is only one. RECIPROCAL SUBSTITUTION. Art. 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

115

more than one substitute, they shall have the same share in the substitution as in the institution. (779a) X and Y are instituted as heirs of the testator. X is instituted to 3/4 , Y is instituted to 1/4 . The testator provides that in default of X, Y would be the substitute, in default of Y, X is also the substitute. So we have the case of reciprocal substitution. For example the estate is worth 120,000. So the share of X is 90,000and then the share of Y is 30,000. So these would be their respective share as instituted. If X predeceased the testator, diba the substitute is Y, how much will go to Y? The whole of 90k share of X or limited only to the share of Y? Of course he would get the entire 90k because he was the substitute to that portion. For example, X,Y and Z are instituted as heirs. To X-1/2, to Y-1/4 and to Z-1/4. So they are all instituted heirs. And the testator provides that in default of X- Y and Z shall be the substitute, in default of Y- Z and X shall substitute and in default of Z- X and Y shall be the substitute. So again, there is a reciprocal substitution. We have an estate of 120,000. Now Y predeceased the testator. So the vacant portion is the share of Y. The substitute are X and Z. So pila gani ilang share? of 120k is 60k. is 30k. So give to X the 60k, because he did not predecease, or he is not incapacitated or he did not repudiate. But Ys portion is now vacant. So asa nato ihatag ang share ni Y? Ti his substitutes X and Z. Pila man ang maadto kay X og pila pod maadto kay Z? Tungaon nila in equal share? The law says, they will have the same share in the substitution as in the institution. So kung pila ang ratio sa institution, that would be the same. But dili and kay of 30k is 15k and is 7,500. So dili siya madispose tanan, So how do we get the proportionate share of X and Z? kay X is 60/90 x 30,000 or 20,000 and to Z 30/90 x 30,000 or 10,000. So mao na siya ang distribution n case of reciprocal substitution. Fideicommissary substitution is discussed in Art 863. So we will just discuss that. Art. 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless and testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. (780) So in substitution, if the original heir instituted is subject to a condition, then the substitute shall be subject to the same condition, even if the testator did not mention na subject siya to the same condition. The law says The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, so for example A, B and C are students of the testator, so mga law students, and then they are substitute to each other. But for example, A is instituted subject to a condition that he will pass the bar exam. And the substitute of A is B or C. So assuming namatay si A ahead of the testator, will the substitute be also subject to the same condition? A,B and C are all law students. General Rule: YES, unless the condition is applicable only to the person or unless expressly provided otherwise by the testator. So in this case, applicable man siya kay B kay law student man gihapon si B. Pero kung B is already a lawyer and A is a law student and the institution of A is subject to the condition that A will first pass the bar, in his default B is the substitute. Now if A died ahead of the testator, B will now substitute A. But should B be subject to the condition to pass the bar first? NO because he already pass the bar in the first place. So that condition is no longer applicable to him. So GR: If the institution is subject to a charge or a condition and there is a substitute, the substitute is also subject to the same charge or condition except if: 1. If the testator expressly provided otherwise; and

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

116

2. If the charge or conditions are applicable only to the heir instituted. Lets now go to the concept of FIDEICOMMISSARY SUBSTITUTION. Art. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a) Ok, so fideicommissary substitution, that is an example of indirect substitution. So that kind of substitution both the 1st heir and the 2nd heir will inherit but not at the same time, one after the other. So basically, when you say fideicommissary substitution, there is the 1st heir and then the 2nd heir. The 1st heir will enjoy first the property but after a certain period or a certain term, the 1st heir will have to turn over the property to the 2nd heir.As to the 1st heir, he has the obligation to preserve the property and then later on transmit the property to the 2 nd heir. So both the 1st heir and 2nd heir actually inherit, they benefit from the property although not in the same capacity. In a fideicommissary substitution, what should you remember? 1) The fideicommissary substitution, as also discussed in Art 865, should be made expressly. When can a fideicommissary substitution be __ expressly? Art. 865. Every fideicommissary substitution must be expressly made in order that it may be valid. So it should be expressly made and in relation to that we have Art 867 Art. 867. The following shall not take effect:

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; So again, the Fideicommissary substitution must be made expressly. How can you make it expressly? It either making that of a Fideicommissary substitution I hereby institute A as my heir under a Fideicommissary substitution, A is the 1st heir, B is the 2nd heir We label that as a Fideicommissary substitution or without making it as such, you can still make it a Fideicommissary substitution by imposing upon the 1st heir the obligation to preserve and transmit the property to a 2nd heir. So that has still the same effect as giving it a label you are giving the requisites of a Fideicommissary substitution. 2) There must be of course be a 1st heir. The 1st heir is what we call fiduciary, fiduciaro, heredetero or ___. What is required of the 1st heir? Of course: i) He should have the capacity to inherit from the testator; and

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

117

ii) He should not predeceased the testator(he should be living or atleast conceived at the time of the death of the testator subject to the condition under Art 40 and 41 of the NCC). What are the right of the 1st heir? The 1st heir shall enjoy the property, he shall benefit from the property. But can he sell the property? Can he alienate or dispose the property? No because he has the obligation to preserve and transmit the property to a second heir. So again this obligation to preserve and transmit must be stated although it may not the same word like preserve or transmit, it can be other word with the same meaning like the heir must pass on the land and house and lot unimpaired to the 2 nd heir. So this also connotes an obligation to preserve and transmit. 3) The 2nd heir or the Fideicommissary or fideicommissario or beneficiary or ___.The 2nd heir also, should have the capacity to inherit from the testator. Take note ha, both the 1 st heir and the 2nd heir are heir of the testator. The 2nd heir, although he receives the property from the 1st heir, is the heir of the testator not of the 1st heir. Therefore the 2nd heir himself must be capacitated to inherit from the testator. So he must be living or atleast conceived at the time of death of the testator. 4) As to the relationship. The 2nd heir should not go beyond 1 degree from the 1st heir. What do we mean by not beyond 1 degree from the 1st heir, the relationship between the 1st heir and the 2nd heir should within 1 degree only. When you say 1 degree, it has already been resolved to mean 1 generation because before it has been argued that one degree could mean one transfer but the SC has already clarified that only one generation. One generation like the relationship between father and child, mother and daughter, parents and child, so thats one degree. That is the only degree allowed in Fideicommissary substitution. Therefore based on that requirement, can there be a Fideicommissary substitution between a juridical person? No because the degree in generation cannot be applied in juridical persons , only natural person. 5) Both the 1st and 2nd heir must be living at the time of death of the testator or atleast conceived at the time of death of the testator. Again when you say conceived, you must follow the requisites under Art 40 and 41. Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a)

Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a)

Art. 864. A fideicommissary substitution can never burden the legitime. (782a) You cannot impose any substitution upon the legitime. So if you have a legityimate child, a compulsory heir, you cannot tell him. Ok imong legitime nak, ikaw sa mag-enjoy ana ha unya pagkahuman ihatag na sa imong anak. No, dili na pwede. The general principle is you cannot

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

118

impose any substitution, condition, burden or charge upon the legitime. Why? Because the legitimes are provided for by law. The law provides that compulsory heirs are entitled to their legitime whether the testator likes it or not. He has to give their legitime. So you are not allowed to impose any substitution, condition, etc because this condition might be very difficult for the compulsory heirs that he would rather choose to give up his legitime. So legitime should go to the compulsory heirs without any burden, encumbrance, etc. So you can only impose substitution, direct substitution, indirect substitution in the free portion. There is no substitution in the legitime, anyway the law provides the right of representation insofar as the legitime is concerned. Of course there is no such thing as substitution in legal succession because substitution can only be done in a will. Art. 865. Every fideicommissary substitution must be expressly made in order that it may be valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (783) Art 865, we already discussed the 1st par. The 2nd par, what are the obligations of the fiduciary? So as we discussed, to preserve the property and then deliver the property to the 2 nd heir. What are the deductions allowed to 1st heir? Only those arise from legitimate expenses, credits and improvements unless otherwise provided for by the testator. Why is there a limitation on the deductions that can be made by the 1st heir? Because if he can just make any deductions, he might not be able to deliver anything at all to the 2nd heir because of deductions. Art. 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784) So take note as I mentioned before, the 2nd heir is the heir of the testator not of the 1st heir. So what is important is at the time of the death of the testator, both the 1 st heir and the 2nd heir must be living or atleast conceived subject to the requirements under Art 40 and 41 of the NCC. What happened if, for example, the testator died in 2000 and he mentioned that, so there is supposed to be a fidiecommissary substitution between A and B. A is the 1 st heir and B the 2nd heir. A will enjoy the property for a period of 10 years, after that he will deliver the property unimpaired to B. On the 3 rd year, B died. What happened now to the fidiecommissary substitution? Is it extinguish? No, it subsist. So, A will have to preserve the property for a period of 10 years and on the 10 th year, he will now deliver the property to the heirs of B. So kung may anak si B nga si X og Y, sila ang magsubstitute kay B. So the right of the 2nd heir is transmitted to his own heirs. If the property however is lost by fortuitous event before the delivery to the 2 nd heir, the obligation is extinguished except, for example there is a bond, so the bond will now answer for that. So if it was due to the fault of the 1st heir, then he shall be liable for the loss. He would still have to deliver. Article 867. The following shall not take effect:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

119

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863; (3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension; (4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. (785a) We already discussed number 1, so we now proceed to number 2. (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863; Can you prohibit a person from, for example you are the testator and then you give the property to X as his inheritance take note ha, we are talking again of the free portion, now can you impose upon the heir a condition that he cannot sell the property, he cannot alienate the property? YES. But for a period only of 20 years. So for example, I hereby institute A as my heir, I hereby devise this land to A but he cannot sell this land forever as long as he lives. If a lives for 30 years actually on the 20 th year he could already sell the property, if A lives only for 15 years he cannot sell the property at all because 15 years lang man, the prohibition is valid but only up to 20 years. a temporary one, beyond the limit fixed in article 863; For example,the testator instituted A as heir or devisee of a parcel of land and then the testator says, I hereby institute A as devisee to this land, A and those who succeed from A cannot sell the land forever, that shall be construed only up to 20 years. If the testator says they cannot sell for 20 years, so the testator died and the land goes to A is A bound to observe not to alienate the property for 20 years? YES. Now if A died on the 3 rd year, and the property is inherited by X his child, is X bound by the prohibition to alienate for the next 17 years? YES. So if X died after 2 years, so naadto ang property sa iyang anak na si Y, is Y bound by the prohibition not to alienate for the next 15 years? This time he is no longer bound. Why? Because this is already beyond the limit prescribed in Article 863, it should not go beyond one degree from the heir originally instituted. 3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension; So the same thing, so if the testator instituted M, and M has the obligation to give a certain income to A and then after, the child of A, X and then after X to Y and Z and so on and so forth successively, is M bound to give to A? YES. Is M bound to give to X? YES. Is M bound to give to Y? No more because that is beyond the limit prescribe under Article 865.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

120

Basta successive, but kung muingon si testator na M your bound to give income or pension to A X Y and Z simultaneously, there is no prohibition. Only successively because that is to prevent the perpetual or indefinite curtailment of a certain property, ok so dapat certain and disposition sa property pwede muhimo ug uncertain but only for a certain period and only up to a certain generation which is one degree. 4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator I hereby leave this certain property, A will hold this property subject to my instruction as to who will be the recipient of this property or what shall be done with this property. That is not allowed. Why? Because who will verify if that was indeed the instruction of the testator. Kung halimbawa ang instruction ni testator kay A is to provide a certain income to a charitable institution but instead of that A gave the income to other organization, not the instruction, nobody will verify that because diba secret gani to sa testator so walay nakabalo kundi sila lang duha, so nobody will be able to know whether that person action in accordance with the secret instruction of the testator. But for example, A is made an heir, so A is made an heir he is the owner of that property, and A will use that property depende sa ilang storya, in accordance with his instruction , in that case, this will not apply because A himself becomes the heir of the property, so he becomes the owner of the property, so he has the right to dispose of the property, etc. etc. But in my previous example, A is not the heir, so he is only given an instruction to apply the property for a certain purpose. Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786) What if the fideicommisary substitution becomes void, how? Like for example the second predecease the testator, diba ang requirement both the first heir and the second heir must be living at the time of the testators death. What if the second heir predecease the testator? Is there still a fideicommissary substitution? No more because the requisites are not present. Can the first heir still receive the property? YES. It now becomes a case of simple substitution. Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of article 863 shall apply. (787a) SO valid ang provision na I give to the ownership of this property to you A and to you B the usufruct. So that is valid. So naked ownership and kay A, ang usufruct kay B. If the testator gives the usufruct to various persons successively,Ok so A is the owner, so naked ownership kay A si B usufruct, after B dies muadto napud xa kay C the child of B and to D the child of C. that provision shall be valid only up to X applying the prohibition in Article 863. If simultaneously, again, there is no problem they can enjoy at the same time. Article 870. The dispositions of the testator declaring all or part of the estate inalienable

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

121

for more than twenty years are void. (n) So prohibition to dispose for more than 20 years, we already discussed, the excess should be void. So that would be for substitution. We now go to article 871. Conditions and terms. You have learned before in your obligations and contracts the concept of conditions and terms diba? So the same actually are applicable in institution. Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a) The institution can be a simple institution which is one not subject to any condition, term or burden. Simple or pure institution. And then we have conditional institution , so the institution can be made subject to certain conditions that would be under 871 to 877. 4 KINDS OF INSTITUTION 1) Simple or Pure 2) Conditional - So the institution may me made subject to certain conditions. That will be under Article 871-877 and Article 883-334 of the new civil code. 3) Institution with a term - Then it may be with at term or period. That will be under Article 878, 880-881. 4) Modal Institution subject to a certain burden or charge. Under Article 882-883. Note: if we are talking about a condition, we are talking about the free portion. Because you cannot impose any condition, substitution, etc. on the legitime. CONDITION (Oblicon) a future or uncertain event or a past event unknown to the parties upon which the demandability or extinguishment of an obligation depends. CONDITION (Succession) it is an uncertain or future event upon or a past event unknown to the parties which the demandability or repudiation of a testamentary disposition depends. Example of past event: I will give you 1M if A died in the plane crash. The plane crash happened yesterday, but as of today you still dont know if A died in the plane crash. So it is a past event but what is made a condition is the future knowledge of a past event. So once they know na A died in the plane crash, the obligation now becomes effective, the same in succession. CHARACTERISTICS OF A CONDITION it has the elements of 1) UNCERTAINTY the event may or may not happen 2) FUTURITY it will happen in the future. If it pertains to a past event, you are talking of future knowledge of a past event.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

122

KINDS OF CONDITIONS 1) SUSPENSIVE it is a condition, the fulfillment of which gives rise to an obligation. In succession, it makes the institution effective. 2) RESOLUTORY it is a condition, the fulfillment of which extinguishes an obligation. In succession, it ends or extinguishes the institution. 3) POTESTATIVE it is a condition dependent solely on the will of one of the parties. In oblicon an obligation with a potestative condition is valid, depending if: Potestative Suspensive on the part of debtor void, no debtor would want to pay Potestative Resolutory on the part of debtor valid, debtor really wants to be paid Potestative Suspensive on the part of the creditor valid In Succession Potestative Suspensive on the part of the heir valid. Ex: I hereby give this land to A subject to the condition that A will cut his hair

4) CASUAL it is a condition which is depends merely upon chance. Ex: rain, or will of a third person. 5) MIXED it is a condition which is partly by chance and partly by will of a party. So these conditions can be imposed in succession, in an institution. The same with your oblicon. Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a) So we already discussed that, that the testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes so as to really give effect to the legitimes. Art. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. In Oblicon: Art 1183. - If an obligation is subject to an impossible condition, the conditional obligation is void. So both the condition and the obligation are void. Why both void? Because in oblicon, the condition goes into the very consideration and is part and parcel of the consideration, and consideration is an essential element of an obligation therefore it the impossibility or illegality will affect the very existence of the obligation. In Succession: the condition is only considered as not written and the institution shall be effective even if the testator should provide otherwise. Why not both void? Because in succession, the consideration is the generosity or liberality of the testator. So even if there is an impossible or illegal condition, that can be separated from the consideration.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

123

MICIANO VS BRIMO The portion where testator provided that the institution of legatees is subject to the condition that the legatees must respect the testators will to distribute his property not in accordance with his national law but in accordance with Philippine laws. As we all know, the intrinsic validity of a will is governed by the national law of the decedent. Therefore that condition is illegal because it is against Article 16. There is another provision, that whoever opposes will lose his inheritance. So that provision is also an illegal condition. So it is considered as not written. The heirs will not lose their inheritance. September 16, 2013 Article 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. (793a) So 1 of condition that is not allowed, an absolute prohibition not to contract 1 st or subsequent marriage. The reason here is because this is actually against public policy, if you prohibit a person from marrying whether 1st or subsequent marriage. You would be therefore allowing or granting that person to enter into immoral arrangement just so he could get the inheritance. So kung dili pwede magpakasal, pwede man mag live-in na lang. But take note, if that prohibition was imposed by the deceased spouse or by the relative or ascendants or descendants of the deceased spouse, then that would be allowed. Take note that this applies only to the free portion not to the legitime. So if the husband gave a legacy or a devise or instituted the wife as voluntary heir with a condition that the wife will not remarry, that is allowed prohibition. Or the mother of the husband gave a legacy or a devise or instituted the wife as voluntary heir with a condition that the wife will not remarry when her husband die, that would be allowed. That would prevent the property from going to another person because for example the wife becomes a widow, then she can already remarry. And that property which the wife received from her deceased husband, if she remarry will from part of her absolute community with the present spouse, so in effect the 2nd husband would be very lucky, na he would already have the property of the wife coming from her 1st husband. So that prohibition is allowed. GR: Absolute prohibition not to contract 1st or subsequent marriage shall be considered as not effect. For example, I hereby institute A to of my estate provided that A will not marry X. Is that allowed? Yes, because that is not an absolute prohibition not to marry. He can marry but not X. That is RELATIVE PROHIBITION. 2ND paragraph, an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. Take note that the allowance or some personal prestation already effective immediately upon the death of the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

124

testator/testatrix. But if the legatee only marry or remarry, he or she will forfeit the usufruct,legacy, etc. So here it is allowed because the person already enjoyed the property immediately. Only that he or she is in danger of forfeiting if s/he marry or remarry. Ang 1 st par, wala pa niya na enjoy. You are not supposed to marry, that is the condition before you are going to receive. Article 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void. (794a) So this provision is what we call DISPOSITION CAPTATORIA. So the grant to other person is conditioned upon the grant also by that person of a property, etc, inheritance to the testator or to some other person. So this in a nature of a contract which is not allowed in will. So this kind of disposition is not allowed. Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator's death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a) We already discussed before what is a potestative condition. It is dependent upon the sole will of the, in this case, succession, sole will of the heir, legatee or devisee.So he will receive the inheritance once he fulfill the condition which is dependent upon himself. So the law says, it must be fulfilled by him as soon as he learns of the testator's death. Why does he have to wait for the testators death? Because testamentary disposition is e ssentially revocable. So this is essentially dependent upon the will of the heirs, legally to fulfill the condition. So if the he performed it during the lifetime of the testator, the testator might still revoke the disposition in his favor so useless lang gihapon iyang performance, that is why it has to be done as soon as has learned of the testators death. And this cannot apply also when the condition that has been complied with cannot be performed again. So that is the exception to the rule that he has to comply it after the testators death. What if the heir performed it during the lifetime of the testator and such cannot be done again? In that case, it shall be considered as complied with. What kind of compliance is required? Liberal? For example to sing (kanang lisod nga kanta, unsa man?) to sing that song. Is it purely dependent upon the will of the heir, so what if yabag to siya? The heir? And he can sing pero dili jud ing-ana ka-nindot, dili jud niya makuha ang high notes, so does he really have to sing the way it is sang? Dapat ana jud siya, strict? So remember, if the condition is potestative, dependent upon the sole will of that heir, legatee or devisee, substantial compliance is sufficient because, by subordinating the inheritance to a condition which is purely dependent upon the sole will of the heir, the testator had some kind of trust and confidence already in the heir. So that is the reason here. So it is enough as long as, there is substantial compliance. That is for purely potestative condition.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

125

Article 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. (796) So here the condition is : CASUAL-meaning purely dependent upon chance or the will of the 3 rd person or MIXED-partly upon a chance or partly upon the will of heir, legatee or devisee. So if that is the kind of the condition, when should the condition be fulfilled? So the law says, before or after the death of the testator. Why? Because it is dependent upon chance. So it is more difficult for the heir, legatee or devisee to have this condition fulfilled. So even if that condition already happened during the lifetime of the testator, that would be sufficient because it may not happen again. If for example, it already existed upon the execution of the will and the testator was not aware that such condition has already been complied with, then what is the rule? The GR it shall be deemed as complied with. Pero, if at the time the testator made the will, the condition was already complied with but still the testator included that as a condition in the will, then that testator would want that condition be fulfilled again. EXCEPT if it no longer exist or it can no longer be complied with. What is the example of a mixed condition? To pass the bar exam. That is an example of a mixed condition. It is partly upon the will of the person who will take the exam and partly upon chance. SO even if you study, you are not sure, siguro 99% sure lang that you will pass the bar, and it would not definitely be purely dependent upon chance, otherwise ayaw na lang mo og tuon. So that is mixed condition. If the testator already knew that the heir is already a lawyer, but still he include that as a condition, then it shall be considered as complied with because it is in its nature that it cannot be complied again. But if for example, I will give A my house and lot if A will take the bar exam. Now at that time when the testator made the will, A has already taken the bar exam, and then he include that as the condition, so it means that A has to take the bar exam again. Siguro hunahuna sa testator, mabagsak ni siya, so e-sure na lang nako nga mutake siya og usab maong hatagan nako siya og house and lotas an incentive, with a condition that he will take the bar exam again. Pero kung nakapasar na, then that condition cannot be complied with again.So it shall be deemed already as complete. Kind of compliance. If the condition is mixed or casual, strict compliance is required. Why? Because by subordinating the institution to a mixed or casual condition, it means that the testator has no confident

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

126

on the heir, devisee or legatee. Unlike in the condition which is purely dependent upon the will of the devisee, pasabot, naa siyay pagsalig nga e-comply gyud. But here in mixed or casual, strict compliance is required. Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. (799a) Here we have an institution that is subject to SUSPENSIVE TERM. SUSPENSIVE TERM-is a future and certain event upon which the fulfilment of, for example in this case fulfilment of the testamentary disposition ni siya, so upon the arrival of the term or period then, it is only when the testamentary disposition is given effect. But unlike a condition, when you say a condition it is a future and uncertain event upon which the fulfilment of the testamentary disposition shall depend or the effectivity of the testamentary disposition in subordinated. Now once the condition is fulfilled, the testamentary disposition becomes effective but it is not certain, it may or may not happen. If the condition is will not happen or it becomes indubitable that the condition will not happen, then the testamentary disposition cannot be given effect. So here there is an element of certainty because we are talking of term. For example, the testator instituted X as heir to of his estate and then the testator died in 2000. The institution of X is subject to a term. X will receive the inheritance 5 years from the death of the testator. It is subject to a period, it is certain but in the meantime that 5 yrs had not yet elapsed, X will not enjoy the inheritance. If in 2002, X already died. In 2005, what will happen now to the property given to X as his inheritance, to whom will it go? Did X acquire any right over this property? Yes because his institution is certain, he just have to wait for a certain period. So from the time of the death of the testator, X already have the right over the inheritance. His right is to wait for 5 yrs before he may be able to get the property, but because he died, that right shall now be transmitted to his own heirs. His heirs will now have to wait the period or term, so they are now subject to the same term as of X. Now, when 2005 arrive, the heirs of X can now claim the property. Because as provided under Art 878 it does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. So the institution is already effective but only the demandability is dependent. If it is a condition, X will get the property of the estate of the testator if X will pass the Bar exam. So when X died after the death of the testator, without passing the Bar exam. Can his heirs claim? No more because the condition did not happen and it will never happen. So he cannot have the right if the condition is not fulfilled. Again, one element of condition is it is UNCERTAIN. Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. (800a) So NEGATIVE POTESTATIVE CONDITION. I hereby leave of my estate to X provided that X will not take the Bar exam. So that is a purely negative potestative condition. He will not do. So when will

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

127

X get the inheritance? The condition is if he will not take the Bar exam. Hangtod masure jud nga dili siya magtake og bar exam? When will that be certain? If he die, diba? So unsaon niya pagkuha sa inheritance? So if the institution is subject to a negative potestative condition, it is immediately effective upon the death of the testator. So there is just one requirement, that the heir has to furnish a bond. That bond is properly termed as CAUCION MUCIANA. What is the condition of the bond? That he will not do what has been prohibited, so if he do what has been prohibited, then he will forfeit the property. He will return the property to the real party in interest. The bond is effected to ensure that, for example he violated his undertaking and the property is no longer there, the bond will answer for the value of the property. So that is the reason why he has to furnish a bond. Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. (801a) So here the institution is subject to SUSPENSIVE CONDITION OR A TERM. So again, the institution may or may not be effective because the condition may or may not happen. What happen in the meantime to the property? I hereby institute A as heir to of my estate on a condition that A will pass the Bar exam. So in the meantime that A has not yet pass the bar exam, it will be placed under administration until the condition is fulfilled or until it become certain that the condition will now be fulfilled. If the condition is fulfilled, of course the property will now go to the heir. If the condition is not fulfilled, then the property will now go to the estate of the testator.The same applies, to an institution that is subject to a Suspensive term, until the arrival of the term, the property shall be placed under administration. Or again if the institution is subject to a negative potestative condition and the heir has not yet furnished the required bond. It will be place under administration. Art. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a) This will actually be discuss in your special proceeding, under Rule 78 to 79 of the Rules of Court. So again, I dont know if I already mentioned this before, if the testator, appointed an administrator in the will, that person is called the EXECUTOR, kung babae EXECUTRIX. If he left a will but did not appoint an administrator, so the administrator will be called an ADMINISTRATOR WITH A WILL. If there is no will, the administrator will simply be called the ADMINISTRATOR. Again the rule on the procedures, the duties to the appointment and qualification will also be discussed in Section 15. Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

128

interests, if he or they should disregard this obligation. (797a) Art 882 is what we call an institution subject to a mode or a modal institution. So this is the mode institution. We have the: 1.simple or pure institution, 2. institution subject to a period or term, 3. institution subject to a condition and 4. an institution subject to a mode. What is a mode or modal institution? So it is what is referred to by Art 882, it is an institution with a statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him. object of the institution- so in the institution, the testator state the object or the reason for the institution. I hereby leave 1 million to A for his bar exam. application of the property- I hereby leave a house and lot to B so that he may use the same as a school or an orphanage, etc. institution with charge- I hereby give to A the Riceland provided that every year he should give 10 sacks of rice to X.

Now the law says , shall not be considered as a condition unless it appears that such was his intention. So the statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, these shall not be considered as a condition. The heir that is instituted will immediately receive the property, it is not subject to uncertainty. Because when you say it is a condition, he has to comply first before he can receive the inheritance or the institution becomes effective. But here the institution becomes effective immediately but subject only to the bond under second par. So he should furnish a bond. He should give security for compliance. Now, actually the distinction between a mode and a condition is clearly demonstrated in the case of RABADILLA VS CA- Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, [12] or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution.[13] The Codicil sued upon contemplates neither of the two. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation.[14] In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

129

not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir.[15] In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." [16] Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir.[17] In the case under scrutiny, the near descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla. The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil Code provide: Art. 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir.[18] A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession.[19] On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

130

for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. [20] To some extent, it is similar to a resolutory condition.[21] From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal and not conditional. Distinction between a mode and a condition: When you say condition it will be subordinated to the happening of the condition. While a mode is effective immediately so that he may be able to comply with the obligation required of him. In both cases (negative potestative condition and modal institution), there is a security requirement before the property will be acquired by the heir and in case, there is a violation, the inheritance will be forfeited and the property shall be returned to the estate. Mode is obligatory while a condition is never obligatory. The heirs have to fulfil the mandate of the institution otherwise he will forfeit the property. The condition is not mandatory because sometimes it is beyond the sole will of the heirs. So they cannot be mandated to comply that.

Now after the interpretation, if there is a doubt, it shall be considered as a mode. Because if it is a mode, it shall be effective immediately, if it is condition, you will still have to wait for the compliance. The mode is more in keeping with the wishes of the testator. If there is a doubt if it is a mode or a suggestion? Then it shall be SUGGESTION. Because suggestion is more keeping with the will of the testator, you dont have to comply, if there is non -compliance, the institution is still effective, whereas if it is a mode, and there is no compliance, the inheritance will be forfeited. Article 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. This refers to the principle of substantial compliance. So even if the performance is not really in the exact manner stated y the testator, as long as it is complied with in the most analogous manner and still in accordance with the wishes of the testator, the fulfillment is deemed to be substantial. 100 piculs of sugar and then without the fault of the heir, tehre was a typhoon and destroyed most of the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

131

growing crops so only 75-90 piculs lang ang naharvest gyud, so that would be substantial compliance. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. This refers to the principle of constructive fulfillment. Like for example again, deliver 100 piculs of sugarand then that is the only sugar left in the warehouse and then the legal heirs of the decedent stole some of the sugar so mga 50 na lang or 60 but again because it is without the fault of the heir and it is the non-fulfillment of the exact wishes is due to the fault of the persons interested, in my example the legal heirs, then it shall be deemed to have been constructively fulfilled. Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. So, insofar as the rules in obligations and contracts are not in conflict with the rules in succession on conditional institutions, those same rules will apply. So take note, we have provisions in succession which are different in obligations and contracts. Ex: impossible conditions, in succession, it is deemed as not written, but in obligations and contracts, it will make the conditional obligation void. So, in this case, we follow the rule on succession because we are dealing with succession. Potestative condition, in obligations and contracts, if it is purely potestative on the part of the debtor, potestative suspensive, it is void. But in succession, it is not void it can be given effect because the heir is definitely interested to fulfill the condition purely dependent on his part. In case of conflict, the provision in succession shall govern. In case of silent situation, when there is no applicable law in succession, we can go to the rules in obligations and contracts. Article 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. Were talking here of institution subject to a te rmsuspensive term and resolutory term. So an institution can be a subject of a suspensive term. Resolutory term, the institution will be effective immediately, but uponn the arrival of a certain term or period, the institution shall cease. So the heir will have to return the property. In both cases, if it is for example, an obligation subject to suspensive term, the legal heir shall be considered as called to the succession. Were talking here of the suspensive condition first. Di ba wala pa man niabot ang term. As we discuss before, it shall be placed under administration. In the meantime, the legal heirs will enjoy it. Resolutory term, in the meantime, upon the death of the testator, the heirs immediately enjoy the property. so, upon the death of the testator, immediately, the heir will enjoy the property, will get the property and will benefit the property, but upon the arrival of the term, the effects of the institution shall cease, the legal heirs shall now get the property. In case again of an institution subject to a resolutory period, the law says: he shall not enter into possession of the property until after having given sufficient security; so, he has to give bond or security. What are those cases when the heir has to give a bond or security? When the institution is subject to a resolutory period. So he has to furnish a bond. Also, in modal institution. There is also

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

132

a bond requirement. Another would be, in the institution subject to a negative potestative condition. There is also a requirement of giving a bond. That would be for conditions. Lets now proceed to legitimes. You have to memorize that. Article 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. so, if you will be asked to define what is a legitime, this is the definition. We already discussed it before. This is part of the testators property which he cannot dispose of because the law has reserved it for his compulsory heirs. Even if the testator does not wish to give this portion to the compulsory heirs, he has no choice. He is mandated by law to give to the compulsory heirs their legitimes. He can only deprive the compulsory heirs to their legitimes when there is a valid ground. We can do that in disinheritance. So, the law is really watchful that the legitimes of the compulsory heirs should be given. There are several remedies provided for in the law of succession to safeguard the legitimes of the compulsory heirs. For example: 1. Even if the testator does not want to give his son his legitime because his son is gay but he cannot just do that because that is not a ground allowed by law. We cannot just whimsically, arbitrarily deprive his compulsory heirs to their legitimes. There has to be a ground. If the testator disinherits an heir and it is not a gound provided for by law, th at is what we call invalid disinheritance and the heir, the invalidly disinherited heir is still assured that he will receive his legitimes. 2. If the testator just conveniently omits the compulsory heir in the will and did not give him anything at all, the will is defective in this case, this is what we call PRETERITION. In preterition, even if there is no disinheritance mentioned in the will and the heir is not mentioned also, the will is annulled and the institution of the heirs in the will shall be annulled, the proeprty shall be distributed by legal succession. Again here, the legitime of the preterited heir is still assured or safeguarded. 3. Now, he testator during his lifetime donated all his properties to his friends, to his other legitimate children but omitted 1 compulsory heir, what will happen upon the death of the testator? can the omitted heir still receive his legitime or naa siyay madawat pero kulang na lang sa iyahang legitime. Whats the remedy provided for by law? We have the concept of COLLATION. All the properties made by the testator during his lifetime, if he dies with compulsory heirs, these properties shall be brought back to his estate and the value of the estate shall include the values of those properties donated durng the lifetime and that would be the basis of the computation of the legitime. If after that computation, it appears that a compulsory heir receives less than her legitime and others received more by way of donation, shall return. So katong nadawat nila by donation, iuli nila to the estate so Collation by reduction or abatement, we will discuss that later on. 4. Even if the testator died without a will, so in legal succession, we dont talk at all the legitimes bacause thats legal succession. Legitime is only relevant in t estamentary succession. Now even in legal succession, the legal heirs who are also compulsory heirs are assured that they will not receive less than their legitimes. We will also illustrate that later.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

133

Who are these compulsory heirs? Article 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; For example, the testator has children A,B,C and granchildren X,Y,Z. will all of them inherit because the law says legitime children and descendants? The rule on proximity will apply. Those who are nearer to the testator will exclude those who are farther. So, if this is the case, all of them survived the testator, the legitimate children will exclude the grandchildren. Only the legitimate children. Kung wala na ni tanang legitimate children and only the grandchildren, then the grandchildren will inherit. For example, some of the legitimate children predeceased the testator. Like B predeceased the testator. the estate is 120k, who are his compulsory heirs? Supposedly A, B and C. they will divide the estate if the estate is 120k/2= 60k, that will be the legitimes of the legitimate children. They are 3 so 60k/3= 20k each, but B already predeceased the testator so in that case he will be represented by his own childrenthe grandchildren. So the right of representation. How much will the representatives get? Only the share to which B would have been entitled 20k. X and Y (mga anak ni B) 20k divided by 2= 10k each. Again, they cannot concur at the same time. They cannot concur because the nearer relatives exclude those who are far except when right of representation applies. (2) In default of the foregoing, the legitimate parents and ascendants, with respect to their legitimate children and descendants; meaning kung walay anak ug walay apo or apo sa tuhod there is no limitation as to the number of generation, so pwede apo sa tuhod, apo sa kumingking basta naa pay mga descendants pero kung wala na, in default of them, So dili pwede mag concur ang legitimate children and descendants ug ang parents. The parents are excluded by the presence of legitimate children and descendants. Take note: LEGITIMATE children and descendants. (3) The widow or widower; This is the surviving spouse. The surviving spouse concurs with the children. He/ she is not excluded by the presence of any of the heirs. (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in article 287. #4-5 are just lumped up by the Family Code as ILLEGITIMATE CHILDREN. They also concur with all kinds of heirs. Ang #2 lang jud ang ma-exclude. They inherit only in default. That is why they are called SECONDARY COMPULSORY HEIRS. Legitimate children and descendants, the surviving spouse and the illegitimate children, they are the primary compulsory heirs. They are not excluded by any class of heirs. Take note: illegitimate children will not exclude the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

134

parents. So, kung naay legitimate parents ug naa puy illegitimate children they concur, but legitimate children and descendants, they will exclude the parents. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. Adopted children are they heirs? Yes, they are considered as part of legitimate children and descendants because under the Domestic Adoption Act, adopted children have the same successional rights as legitimate children. If there is an adopted child, there are legitimate parents, will the adopted child exclude the legitimate parents because they have the same status as legitimate children? DEL ROSARIO VS. CONANAN in that case, SC said that the rule cannot apply because in the first place, the relationship between the adopted child and the parent the adopter is only between them. This will not affect the relationship of the adopter with his own parents. So we also have to consider that the blood relationship exists between the adopter and the parents but the adopted child and the adopter is only by fiction of law. So that cannot be disregarded. In that case, the SC considered that adopted child as illegitimate child. He or she did not exclude the legitimate parents. They concur so the sharing is like of an illegitimate child. They have the same successional rights as legitimate chidren. As to illegitimate children, the law says, In all cases of illegitimate children, their filiation must be duly proved. Ilano vs. CA GR No. 104376 Feb. 23, 1994 SC said an before an illegitimate child can avail of his successional rights he must be recognized first by his putative parents. So what would be that recognition? It could be in the form of public record of birth, private handwritten document sugned by the fatherprimary evidence. It can also be secondary evidence like he enjoys the reputation of an illegitimate child or he has been proved to be an illegitimate child by DNA testing or blood testing. So, it can be by primary or secondary evidence. The SC said that before Art. 287 can be availed of, there must first be a recognition of paternity either voluntarily or a court action. This arises from a legal principle that an unrecognized spurious child, likenatural child, has no rights from his parents or to their estates because his rights spring not from the filiation or blood relationship but from his acknowledgment by the parent. In other words, the rights of an illegitimate child arose not because he was the true child of his parents but because under the law he has been recognized or acknowledged as such child. So if you are an illegitimate child and you claim from the estate of your putative parent, you must first prove that you are recognized y your parent. Recognition can also be done in the same proceeding for the settlement of the estate. You can prove that. But you can only do that by primary evidence. You remember in your Persons, again we have primary evidence: public record of birth, private handwritten document signed by the parent, so you can use those kinds of evidence to prove your filiation. You can prove that during the lifetime or after the death. But if your evidence is only secondary evidence, like katong reputation of being an illegitimate child, DNA testing ook lang na sila basta buhi pa ang parents. That can be used but secondary evidences can no longer be used upon the death of the putative parent. So, if you are an illegitimate child and you want to inherit and then

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

135

you have not acknowledged during the lifetime of the parent and this is the first time that you will insist your filiation, if you have primary evidence, you can prove that but if you only have secondary evidence, you can no longer prove that. Even if manguha pa kag buhok didto or tissue to prove na anak jud ka ni testator, that is already barred because ethat is secondary evidence. DNA testing has not yet been elevated to the status of a primary evidence under the present Family Code. Actually, blood testing can also be used not to prove filiation; that can be used only to disprove filiation. By blood testing, pwedi nimong ma-prove na that a certain child, cannot be a child of this parent by blood testing. Interesting siya. Sige i-illustrate nako: BLOOD TYPE A B AB O

AA or AO BB or BO

Now, the types AB, they are the dominant bloodtypes noh? Type O dili siya ang dominant, recessive. So, ang person na type A pwede na siya na AA or AO (or OA). So, B pwede BB or BO. O, O ra jud na siya. So, for example: So kung A ug O imong combination, you are type A. B and O, type B ka. SO for example you hve a child na type O pero iyang parent kay ang isa type A ang isa type B. possible ba na ang anak na type O, anak sa parents na ang isa type A ang isa type B? Possible, because this may be AO and BO, so pagcombine nila ang nakuha sa anak ang type O. Pwede pud ang both parents kay both type A or type B pero ilang anak type O. For example both parents are type AB and then ilang anak kay type O. in this case, it is not possible that this is a child of these parents. Pero it is not conclusive na kana siya anak sa duha. For example mother, father both type O unya naay kabit na AO pud. Pwede na O gyapon. So, dili Dona Lolay siya pwede na magamit to detemine whether or not a child is really the child of these parents. But it can be used to detrmine conclusively that this child could never be the child of these parents. Article 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. this article gives us the legitime of the legitimate children and descendant so of the net hereditary estate. Kung pila kabuok ang legitimate children or descendants you divide that equally among all of them. If there are descendants who inherit together with the children because of right of representation, again they only get what the person represented would have been entitled to. The other is the free portion. But from the free portion we get the share of the surviving spouse and the illegitimate children. So, the free portion is not really free because it will still burden the legitimes of the spouse and the illegitimate children, but after getting the legitime of the spouse and the illegitimate children, if there is still a free portion that is what we call the FREE DISPOSAL. Mao na siya ang tinuod na free portion. Article 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

136

The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. Actually because the legitimate parents and ascendants inherit only in default of legitimate children and descendant, so pareha sila ug share sa latter -- of the net hereditary estate. Article 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor. If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. Again, remember always that they only inherit in default of the legitimate children and descendants. So for example: 1M as the net estate of the Rizal. Assuming he died survived by his mother and father, how do we divide the estate? To whom shall we divide the estate? Mother Father 1 1 Mother Father 2 2

Rizal

Again the same rule: PROXIMITY. The nearer relatives exclude those who are far. So the 1M, the legitime of the parents will be of it= 500k, so Dona Lolay goes 250K and to Don Kikoy 250k and the remaining 500k is the free portion. For example, Don Kikoy predeceased Jose Rizal, so the survivors Don Kikoy are Dona Lolay and her parents and the parents of Don Kikoy. How do we divide the estate? Who are the heirs? ang legitime to the mother only. Why cant mother 2 and father 2 inherit? They are excluded by the presence of Dona Lolay. How about the right of representation? Remember, there is no right of representation in the ascending line. The right of representation is only in the descending line. So in succession, love daw always goes down. Its like the law of gr avity, it always goes down. Remember ha, dili pwede makarepresent ang grandparents. JOKE TIME: What goes up and never goes down? AGE. Eto, what goes down and never goes up? THE RIGHT OF REPRESENTATION :p It never goes up. It only goes down. Again, in the e xample, its only Dona Lolay. Now, what if Dona Lolay and Don Kikoy both predeceased Jose Rizal, how do we divide the estate and who shall be the heirs in that case? The grandparents. Ok so of the net estate= 500k. How do we divide? Remember ha, in the ascending line we always divide it by 2 by the lines. So maternal line= 250k and paternal line= 250k. 125 each kada isa sa ilahang upat.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

137

How about if F2 also predeceased? What if F1 and M1 and M2 are the only heirs? How do we divide? definitely ang legitime is 500k. how do we divide the 500k by 3? As I said, always by line. So here, 250k goes to the maternal line and the other 250k goes to paternal line. So sa maternal line, since duha pa man sila ang buhi magtunga sila ana. Sa paternal line, si M2 ra man isa, so iyaha to tanan. Now, we also have to remember if we are talking of the spouses, A and B and they acquired properties and then A the husband died, the properties left worth 1M. in that case, we first have to get the absolute community or absolute partnership. So, kung 1M ang properties, ana conjugal share or absolute community sa wife ug isa sa husband. For example namatay si husband, surviving si wife so ang 500k goes to the husband as his share in the absolute community or conjugal partnership. Ang estate sa wife is 500k also iyahang share. But in that share of the wife, the husband will still get a share because the husband is also an heir of the wife. So, be careful if you are given a problem. Determine first if the properties left still form part of the absolute community or conjugal. So i-divide sa na nimo. Ang estate sa decedent will be his share in the conjugal partnership or absolute community. September 18, 2013 Lets skip Article 891. Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (834a) So surviving spouse together with legitimate children, if there is only one legitimate child, if the estate is 1M, of that will go to the legitimate child, 500K. will be the share of the spouse, so that will be 250k. the other remaining is the free portion. If there are two legitimate children, how do we divide the estate? Again, the legitimate children are always entitled to . And they will just divide that among themselves, the . So if there are two, 500K divided by 2, each would get 250K. the spouse, remember if there are two or more legitimate children, the share of the spouse is equal to the share of one legitimate child. So equal siya to 1 legitimate child. So the share of the spouse if 250K. If there are 4 legitimate children so each would get 125K, the spouse will also get 125K. So nagkagamay imong legitime kung nagkadaghan imong anak. So gamay ra dapat imong anak magkadako ang free portion pud. So that is when the spouse survives with a legitimate child or legitimate children. Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

138

estate. This fourth shall be taken from the free portion of the estate. (836a) So walay descendants, walay anak, pero naay ascendants or parents. So if the survivors are the parents and the spouse, the share of the spouse is . How about the parents or ascendants? . Always hah, ang sa ascendants or parents . Because they succeed in the absence of legitimate children, legitimate children also always . Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (n)

So surviving spouse and illegitimate children, so to spouse 1/3, to the illegitimate children 1/3, the free portion is also 1/3. Take note hah, we only limit our classification to illegitimate and legitimate. So all others: spurious, natural, acknowledged, they no longer exist under the family code. Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a) Illegitimate children surviving with legitimate parents, the legitmate parents , the illegitimate children . The share, I already mentioned this before, the share of the parents and the illegitimate children are taken from the free portion. Only after satisfying the legitime of the spouse and the legitimate children, anything left in the estate, that is what we call the free disposal. Now, in the case of Del Rosario vs Cunanan, what if the parents concur with an adopted child? Because under the domestic adoption act, the adopted child is to be treated as a legitimate child so he has the same successional rights as legitimate children. So are we saying that the adopted child will exclude the parents of the testator? So in the case of del Rosario vs. cunanan, the Supreme Court said NO, because between the adopted and the parents of the adopter, the parents and the adopter are bound by blood relationship, while the adopted and the adopter, only by fiction of law. So it would be unfair to exclude the parents, by the presence of the adopted child. So here, the supreme court treated the adopted child in the same manner as an illegitimate child, so the parents were not excluded and the adopted child was given of the net hereditary estate. Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining oneeighth of the estate. (n) So here the survivors are the parents of the testator, the spouse and illegitimate children. Take note that the parents still , the illegitimate children 1/4 but the spouse it is 1/8. Take note hah, kung ang spouse mag survive with legitimate parents lang, the parents have the spouse has , pero kung

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

139

naa nay illegitimate children, the share of the spouse is reduced to 1/8, the illegitimate children . This is what they call the unholy provision in the civil code. Why unholy? Because its like the spouse if being penalized for not having children with the testator, diba? 1/8 nalang iyaha kay wala siyay anak. kUng naa siyay anak, kung naa siyay legitimate children, the parents are excluded, the spouse if there is only one legitimate child, the spouse has , there two or more legitimate children, the spouse has the same share as one legitimate child. The illegitimate children, they get of the share of 1 legitimate child. Always remember na general rule, if legitimate children and illegitimate children concur, the illegitimate children gets of the share of 1 legitimate child. Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to onehalf of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (837a) If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n) So general rule, , as I mentioned, if married in articulo mortis and died within 3 months from the celebration of marriage, reduced to 1/3. Why is it reduced? Because the law views such marriage as one for convenience, that the spouse married the testator because of the expectancy that he or she would inherit a certain portion from the testator, take not ha, when you say married in articulo mortis, it should be the testator who was in articulo mortis at the time of marriage. So dili pwede na kadtong surviving spouse siya ang dying at the time of marriage and then nagpakasal and then later on siya ang nagsurvive ang namatay ang testator, NO! dapat kadtong namatay later on mao pud tong dying at the time of marriage. But if they have lived together as husband and wife for 5 years, so the presumption of the law, is that that marriage was because of love not because of money so mubalik napud ta sa . Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator. (842a) If there are no other heirs, only the illegitimate children so they are entitled to of the net estate. Actually, general rule, when only one class of heirs survives, that class gets . Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a) So as we said, illegitimate children, have successional rights. So assuming this is the testator, and he had an illegitimate child X, so X is entitled to inherit, now X had his own children Y and Z. Y is legitimate, Z is illegitimate. So X himself is illegitimate, again he can inherit from the testator because

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

140

illegitimate children have successional rights. Assuming that he predeceased the testator, survived by his own children Y and Z, can Y represent X? Can Z reprensent X in the same estate? Can they both represent? Under Article 902, YES! The rights of an illegitimate are transmitted to his descendants whether legitimate or illegitimate. So it doesnt matter if Y is legitimate and Z is illegitimate. They all can represent their parent. Take note of that provision because we will later on compare that with article 992. The iron bar rule, between the legitimate family and the illegitimate family.

Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n) First, legitimate parents surviving with illegitimate children, so what is the share of the legitimate parents? They are entitled to 1/2 Ang legitimate parents. Children? Ang illegitimate children . What if the parent is illegitimate? How can we have illegitimate parent? If you are an illegitimate child, your parents are your illegitimate parents because with respect to you, your parents are not married. So they are your illegitimate parents. So illegitimate parents they are excluded, both by legitimate children and illegitimate children. So for example, si testator diba naa siyay illegitimate child na si X, so si X naa siyay anak na si Y ug c Z. With respect to these two, X is the illegitimate child of the testator, assuming the testator is A. So A is the illegitimate parent of X. Now, under the law, if X is survived by A his illegitimate parent, Y his legitimate child, Z his own illegitimate child. A is excluded he cannot inherit. What if si Y ang naa , si Y kay legitimate. So A is the illegitimate parent of X, X died, survived by his illegitimate parent A and his legitimate child Y, with more reason, Excluded gihapon si A. If X is survived by Z his illegitimate child and A his illegitimate parent, who is his hier? Si Z because A is excluded by his illegitimate child. Ang difference hah take note, kung legitimate parent si A, he can be excluded only by the legitimate children, he can concur with illegitimate children. But if the parent is illegitimate, he is excluded by the presence of either legitimate or illegitimate children. Ok so that is the rule with respect to illegitimate parents. And illegitimate parents surviving with the spouse, the share of the illegitimate parents is , the spouse if . Take note hah, kung legitimate parents surviving with the spouse ang sa legitimate parents . Sa spouse pero kung ang parent illegitmate lang ang iya ang the spouse is also . Art. 904. The testator cannot deprive his compulsory heirs of their legitime, except in

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

141

cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. (813a) Ok so we already discussed this before that the testator cannot impose any burden, encumbrance or condition upon the legitime, he cannot deprive his compulsory heirs of their legitime unless there is a valid ground for disinheritance and that is provided for by law. So he cannot impose any condition substitution, etc. otherwise the testator will be able to circumvent the law on legitimes but posing very difficult or onerous condition to the heir such that the heir would rather give up his legitime. Now there are however exceptions to Article 904. First we have Article 891, the concept of reserve troncal and Article 1083, Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime. S So he can prohibit the division of the legitime for a period not exceeding 20 years, so these are the two allowable encumbrances that the law allows to the legitime. Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (871) So article 891 gives us the concept of reserva troncal. So as I mentioned before this is one of the exceptions to the rule that you cannot impose a burden upon the legitime because the reserva is actually a burden to the legitime. Now in reserva take note we have 3 parties before a reserva can arise. So general concept in reserva, there is an origin of a certain property, the origin gave to the propositus (decendant or a half brother or sister) this property by gratuitous title. And then this property was preserved in the estate of the propositus because he did not die with issue, wala siyay anak so pagkamatay niya, the same property which he got by gratuitous title from the origin, by operation of law, naadto napud sa another ascendant, the reservoir. For example we have the grandfather paternal, then we have the grandson and then we have the mother. SO the grandfather donated a parcel of land to his grandson, and then the grandson reserved this property and then he died without any children of his own, so he did not leave any will for example and this same property because he did not have any children and his only survivor was his mother, so by operation of law through legal succession this same land went to the mother. So now have a case of reserva. This mother, or we call the reservoir, owns now the land as her inheritance but that land is subject to reserva, meaning the condition is if the mother dies and there are relatives of this grandson within the 3rd degree coming from this line, the line of the origin, then that land will not go to the estate of the mother. That land will instead go to these third degree relatives who are called the reserves.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

142

The concept of reserva is to preserve the property from the line from which it originated. SO for example if the property originated from the paternal line as much as possible that same property should revert to this line. So pagkamatay unta ni propositus dapat mabalik but in some accident in life naa pa d.ay siyay mother, so maadto sa siya sa mother, but the mother because she is in the other line, so the law seeks to later on return that property to the line of origin. SO the purpose of reserva is to prevent that property from straying from one line to the other line. So as much as possible daw ang property mareserve lang siya sa line where it originated. So if by some accident in life the property strayed to the other side of the family. Later on, it would have to go back to the original line. If there is no delineation from the line of origin, like, ang ascendant niya kay iyang father, there is no reserva because the father belongs to the same line as the grandfather. So reserva only happens when the property strays from one line to the other. ORIGIN Who can be the origin? - An ascendant like parents (father or mother), grandparents (grandfather or grandmother) or half-brother or Sisters, as long as the origin belongs from a different line from the reservor. If the same sila walay reserva. Why half brother or sister? Why not a full blood brother or sister? - Because there is no distinction of line. Example: A,B, and C are full blood brothers. Anak sila ni X and Y. B donated to A. A died without issue. So the property was inherited by their mother or father. Would there be a distinction of line? No. because B is also the child of either X or Y. Pareha lang sila ug gi-gikanan na line. So there is no application of the reserva because there is no straying from one line to the other. But if it is a half-brother or sister it should be a half-brother or half-sister from a different line as that of the reservor. In the same example, if B is a legitimate half-brother of A sa father side (child sa iyang father from a former marriage), then naadto sa mother Y. there is now reserva because the line of B (paternal side) is different from the line of the mother Y (maternal side). Note: All the relationship in reserva should be LEGITIMATE. If illegitimate, dili mag apply ang reserva. For reserva to occur, all the requisites must be present. GRATUITOUS TITLE Meaning the consideration for the transfer is liberality or generosity. It could be by donation or by succession. So kung gibaligya sa Origin kay A ang property, there is no reserva. CHUA vs CFI OF NEGROS So in determining won a transfer is gratuitous, you just have to establish whether the transferor, assignor, or grantor imposed any condition or charge. If there is none, then it is gratuitous. So in this

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

143

case there was no imposition at all by the decedent, it was just the court which imposed the payment of charge. So in so far as the decedent was concerned, it is gratuitous.

PARTIES IN RESERVA TRONCAL: 1st party Origin 2nd party Descendant Propositus 3rd party Reservor

PROPOSITUS Who can be the origin? - Must be a descendant of the origin or a half-brother or half-sister of the origin, and he should die without issue. Walay anak. Kay kung mamatay siya na naay anak, the property will go to his children because ascendants are excluded. In that case, there is no straying of the property from one line to the other. So there is no reserva if the descendant Propositus died with issue. A.K.A Arbiter of the Reserva because it is upon him that the existence of the reserva depends. Because if he will dispose of the property or he will destroy the property, such that upon his death the property will no longer be in his estate, there will be no reserva. Reserva only applies if THE VERY SAME property from the origin was preserved by the Propositus. Example: What if the grandfather gave to his grandson a Lotto Ticket and the lotto ticket won 10M. The 10M was not spent because the Propositus died kay happy kaau siya kay nadaog siyag lotto. The 10M was inherited by his mother. Is there reserva? No, because the money was not the very same property which he received from his ascendant, he received a lotto ticket, not the money. It must be the very same property he received from the origin. How should the property transfer from the Propositus to the reservor? By operation of law. Transfer by operation of law: 1) by legal succession 2) by testamentary succession (in so far as the legitime is concerned) if the Propositus left a will giving the property to his mother (only survivor) there is still transfer by operation of law. Remember ha, if there is a will, there is still transfer by operation of law. This is a common mistake of my students (3/10pts). There is transfer by operation of law by way of LEGITIME. So if naay will, the reserva will be limited to the legitime. That is why if the mother received the property as her legitime, that property, if there are reservees, will not form part of her estate. So even if legitime niya ha. Pag naay reservees dili na maadto sa iyang legitime, it will go to the reservees. That is a burden upon the legitime. Because supposedly pag legitime na nimo, imuha na na xa. Wala nay

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

144

conditions. But here, the legitime is subject to the reserva. Subject to the condition na if there are reservees, that property shall go to the reservees.

RESERVOR What are the rights of the reservor in so far as the reservable property is concerned? The rights of an owner (right to dispose and enjoy) not just a usufructuary because she inherited the property, therefore, she is now the owner of the property, but the ownership is subject to a RESOLUTORY CONDITION. What is a resolutory condition? - The fulfillment of that condition will extinguish her ownership over the property. What is the resolutory condition? That if upon her death there are reservees who survive, that will extinguish her ownership. The property will not go to her estate but it will go to the reservees. If upon her death there is no reservees who survive, then the resolutory condition did not happen so the property will go to her estate. Example: what if the reservor sells the property to a third person, what are the remedies of the reservees? Can they file an action for injunction to enjoin the reservor from selling the property? No, because the reservor is the owner. So how about the reserva? It is in danger of being prejudiced. If it is a REAL PROPERTY >>> they can ANNOTATE the fact of the reserva in the title of the property. If they fail to do so and the property goes to an innocent purchaser for value and the reservor dies and they survive, they cannot claim the property from the innocent purchaser for value because the law on land registration will now apply. So they have to annotate their right in the reservable property. If it is a PERSONAL PROPERTY >>> they can require the reservor to furnish a BOND OR SECURITY to answer for the loss or dissipation of the property in case the reservor dies and they survive. RESERVEES What are their rights with respect to the property? - Again there is an expectancy diba? They will receive the property upon the death of the reservor and they still survive. In the meantime, they cannot demand from the reservor to deliver to them the property. They cannot question the sale. Can the reservees sell the properties during the lifetime of the reservor? Yes. SIENES vs ESPARCIA 1 SCRA 750 Facts: The reservor during her lifetime sold her property to A, also, during the lifetime of the reservor, the reservees sold the property to X. So there are now two buyers. Issue: which of the two sales is valid? who between A and X is entitled to the property?

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

145

Held: The 2 sales are valid because when the reservor sold the property she was the owner thereof. Therefore, she can sell the property, BUT that sale is subject to a RESOLUTORY CONDITION. What is the resolutory condition? That if upon the death of the reservor and the reservees survive, the sale made by the reservor would thereupon be extinguished and the property will go to the reservees. The sale of the reservees was also valid because that sale is considered a sale of FUTURE PROPERTY subject to a SUSPENSIVE CONDITION. What is that Suspensive condition? That it would be valid if upon the death of the reservor, the reservees survive. So the RESOLUTORY CONDITION OF THE RESERVOR IS THE SUSPENSIVE CONDITION OF THE RESERVEES. So that is a future sale. In your Sales you had the concept of EMPTIO REI SPERATAE sale of future property. That is the sale of future property subject to the condition that the property should exist. Here, the sale of future property is subject to the condition that the reservees should survive the reservor. So who between A and X is entitled? It depends, if sa pagmatay ni reservor wala nay reservees, then A is entitled because the resolutory condition did not happen. If the at the time of death of the reservor there are still reservees who survive, then X should be given the property because the sale made to A is now extinguished by the fulfillment of the resolutory condition that is the death of the reservor and the survival of the reservees. September 25, 2013 So during the lifetime of the Reservor, he/she is the OWNER of the property and not merely the usufructuary of the property. He can transfer, sell, convey, but subject to a resolutory condition. Rights of the Reservees If real property - they can annotate the fact of the reserva in the title. If personal property they can require the reservor to post a bond or security to answer for the loss or destruction of the property if upon the death of the reservor there are reservees who survive.

RESERVEES They are the relatives of the descendant propositus within the 3rd degree (counted from the descendant propositus). They should belong to the line of origin of the original owner from where the descendant propositus got the property by gratuitous title. Example of reservees: (within the 3rd degree) Direct line: Parents, grandparents, great-grandparents Collateral line: uncles and aunts, brothers and sisters, nephews and nieces

Q: if all of them survived, would all of them share/inherit the property? A: No, not all of them will get the property. Under the concept of reserva, we merely determine the class of persons to whom the property may belong. But between and among them, we follow the rules on LEGAL SUCCESSION.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

146

Rules in Legal Succession 1. PROXIMITY the nearer relatives exclude those who are far, except: if the right of representation applies 2. IF ALL OF THEM BELONG TO THE SAME DEGREE those who are in the descending line are preferred over those who are in the ascending line 3. IF ALL OF THEM BELONG TO THE SAME DEGREE AND THE SAME DESCENDING/ASCENDING LINE those who are in the direct line are preferred over those who are in the collateral line Situations: The ones left in the class of the reservees are the who will inherit the property? a) The grandparents and the great-grand parents >>> the grandparents (nearer over farther) b) The uncles/aunts and the nephews/nieces >>> the nephews and nieces (descending line over ascending line) c) The nephews/nieces and great-grandparents >>> the great-grandparents (direct line over collateral line EXAMPLES: Origin: Grandfather >> donated (House and Lot) >> Propositus: grandson >> inherited through legal succession >> Reservor: Mother Survivor/Reservees are as ff: a) Brother (of the descendant propositus) NB: Even if the mother survived with the brother, if the propositus died intestate, the brother will not share, the property will go to the mother. Brothers/sisters are excluded by the presence of the parents. b) Grandmother (the wife of the donor-grandfather) Who is entitled? The BROTHER! Why? Because the reservees are the relatives of the descendant-propositus within the 3rd degree coming FROM THE LINE OF THE ORIGIN. The grandmother does not come from the line of the origin; she is not a blood relative of the grandfather, she is related only by AFFINITY and not consanguinity. EXAMPLES WITH COMPUTATIONS: Scenario 1: Origin donated land worth 10M >> to the Propositus. Propositus died and the same property (10M) was transferred by legal succession >> to the reservor. How much is the value of the reserva? 10M, because everything was transferred by legal succession or by operation of law.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

147

2 CONCEPTS OF COMPUTATION OF THE RESERVA IN TESTAMENTARY SUCCESSION 1. Reserva Maxima the value of the reserva is as much as that which can be covered by the legitime. Under the concept of Reserva Maxima, the maximum value of the reserva could be the legitime but it could be lesser if the value of the property is lesser than the legitime. 2. Reserva Minima the reserva is of the value of the property given. Under the concept of Reserva Minima, in every property given- is the legitime, is the free portion.

Scenario 2: What if the descendant propositus left a will and he gave the property to his mother, he died, the mother inherited through testamentary succession. (NB: there can be a reserva even if testamentary succession, but the portion considered transferred by operation of law is that part of the legitime) So how much is the value of the reserva? Legitime (1/2) = 5M >> consists the Reserva Free portion (1/2) = 5M >> goes to the estate of the mother The reserva is only limited to 5M. She is bound to reserve the 5M, but the other 5M which is the free portion, when she dies even if there are reservees; that 5M will go to her estate. Scenario 3: what if the descendant propositus; aside from the donation of 10M, earned 5M from his own industry. So the estate at the time of his death was 15M. He left a will giving his estate to his mother. There is reserva. Legitime (1/2) = 7.5M; Free portion (1/2) = 7.5M How much is the reserva? Under Reserva Maxima: only 7.5M (as much as can be covered by the legitime. Under Reserva Minima: only 5M (Kay out of the 10M na hatag sa origin, 5M lang dira ang legitime), you cannot say na 7.5 kay wala may labot ang 5M nga gikan sa own efforts sa propositus. Ang 5M na naearn sa propositus, dira (2.5M) kay legitime the other (2.5M) is the free portion pero dili na ni included sa reserva because it is not coming from the origin. Although it is legitime; it is not coming from the origin. Scenario 4: Origin donated land worth 5M >> to the Propositus. Propositus died; having earned 10M from his industry >> 15M was inherited by the reservor. Legitime (1/2) = 7.5M; Free portion (1/2) = 7.5M How much is the reserva? Under Reserva Maxima: only 5M (kay 5M lang ang coming from the origin. Didto lang pud kutob ang reserva. It cannot be 7.5M because although the legitime was 7.5M, the value of the property coming from the origin is only 5M.) So under the concept of Reserva Maxima, the maximum value of the reserva could be the legitime but it could be less. Maximum na nang legitime. In the first example, the value of the property given was 10M, but the legitime was only 7.5M, the reserva is only 7.5M. But here, even if the legitime is 7.5M but the value of the property given is only 5M, the reserva is only 5M. Under Reserva Minima: only 2.5M (1/2 of the value of the property given by the origin)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

148

DELAYED INTESTACY THEORY Actually, that is the same as the concept of reserva. When the resolutory condition of the reserva is fulfilled, the properties are distributed to the reservees as if they are inheriting from the prospositus at the time of fulfillment of the condition. Since there is no will, then the reservees inherit by virtue of intestate succession, the decedent being the propositus. Thus the name: Delayed Intestacy. Meaning: Upon the death of the descendant propositus, the reservees should have already inherited (being relatives within the 3rd degree of the descendant propositus) but because of a certain accident in life (which is the presence of the reservor) the property would not go to the reservees but instead the law on succession would say that the property would be inherited by the reservor. But, upon the death of the reservor, the property will now go back to the reservees. It is considered delayed because they do not inherit immediately from the descendant propositus; they have to wait for the death of the reservor. And it is intestacy because the inheritance by the reservees is not by virtue of a will but by legal succession. Art. 905. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and the latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. (816) So during the lifetime of the decedent or the testator, the heirs cannot validly enter into a compromise or they cannot validly renounce their inheritance. Any renunciation made during the lifetime of the testator/decedent is void because as of that time their right to the inheritance is not yet vested. There is nothing yet to renounce. So even if you already renounced and you acknowledge before the notary public that you do not want to receive anything from the estate of your parents, and then they died, you can still change your mind and accept it later on. You cannot be bound by that repudiation or renunciation. For example: what if the heirs, during the lifetime of the testator made a compromise agreement. ABC ang heirs. Ana si A na sigi musugot ko na wala nalang koy dawaton na legitime, hatagi lang ko karon ug 5K because I really need money. Ana pud si B na dili na pud xa mudawat ug legitime. So they received amounts by virtue of that agreement. That compromise agreement is not valid. The amounts received by virtue of the compromise agreement will be considered as an advance of their legitimes. They are entitled to the completion of their legitimes. Hatagan sila sa kulang. So that is the meaning of but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. Art. 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. (815) If the heir is not preterited but he just received a little amount less than his legitime, he received a donation during the lifetime of the testator, he is given a devise or legacy, what would happen in the distribution is that his legitime will be completed. It is not considered preterition, so the institution of heirs could not be annulled, but the heir is entitled to a completion of his legitime.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

149

Art. 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. (817) For example: free portion = 100K, legitime =100K. Testator executed a will giving his friend 120K. That legacy/devise is inofficious because it is more than the free portion. Otherwise, it will impair the legitime of the heirs. So it will be reduced such that the legitime of the heirs will be preserved. Art. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. HOW TO COMPUTE NET HEREDITARY ESTATE First, if were talking of the estate of a person who died with a spouse having conjugal property or absolute community >> first divide the properties and give the shares of the spouses in the conjugal property or absolute community. Now we have the estate of the decedent. FORMULA: Estate of the decedent Obligations (taxes, charges, and other obligations of the estate, expenses like funeral expenses, expenses for the last illness of the decedent, etc. those which are allowed under the NIRC.) = Net Estate + The value of all donations made by the testator in his lifetime (this is what we call collation) = Net Hereditary Estate (basis of the computation of the legitime) Art. 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. (819a) Take note, if a person dies with COMPULSORY HEIRS, all donations (to heirs or to strangers) made by him during his lifetime shall be subject to collation. Their value shall be brought back to the estate. EXAMPLE:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

150

a) Estate (upon testators death) = 1M, Donation to Son A (during lifetime) = 150K, Donation to Friend (during lifetime) = 50K. There are No debts. NHE = 1.2M (1M+150K+50K) Legitime = 600K Legitime of each child (3 children) = 200K each Treatment: - A (entitled to a completion) >> give additional 50K - Donation to Friend>> 50K charged to free portion of 600K b) Estate (upon testators death) = 300K, Donation to Son A (during lifetime) = 150K, Donation to Friend (during lifetime) = 750K. NHE = 1.2M (300K + 150K + 750K) Legitime = 600K Legitime of each child (3 children) = 200K each

Treatment: - A (entitled to a completion) >> give additional 50K - Donation to friend>>inofficious, reduce it to 600K. Friend is ordered to return the 150K. (this is collation by abatement- dili lang nato iadd ang value kundi ipa uli gyud sa iyaha ang sobra) - >> give to B 200K - >> give to C 200K

Art. 910. Donations which an illegitimate child may have received during the lifetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. (847a) So the same thing no. Donation made to a COMPULSORY heir, in that case the illegitimate child shall be considered as an advance of his legitime. If it is inofficious, it shall be reduced. Art. 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

151

(3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a) This contemplates a situation where the decedent left compulsory heirs and made donations during his lifetime and there are also legacies and devises in the will. You have to take note of that because there is a s somewhat similar provision in Art 950. EXAMPLE: NHE = 1.2M, Legitime =600k, Free Portion = 600K. The donations inter vivos are as follow Donation in 1980 200K Donation in 1998 250K Donation in 2000 50K Legacy(Preferred) 30K Legacy 2 80K Legacy 3 40K

If the donations are made to strangers, we charge that donation to the free portion. If we compute all of this it is equal to 650K. Diba ang mga legacies are also taken from the free portion. So kulang na ang free portion to accommodate all the donations and legacies. ORDER OF PREFERENCE 1) Earlier Donation - priority first to donations over legacies and devises. if there are 2 donations, prioritize the earlier one. First in time, priority in right. 2) Later Donation 3) Preferred legacies 4) All other legacies (pro rata) = 600K-200K-250K-50K=100k. so ang 100K ang nabilin for legacies. Unahon ang preferred legacy so 100K-30K=70K tapos divide to all other legacies prorate. so Legacy 2=(80/120)*70K = Legacy 3=(40/120K)*70K =

Art. 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devisee if the reduction does not absorb one-half of its value; and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

152

The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime. (821) If for example the devise consists of RP which cannot be divided otherwise the division will impair the value. EXAMPLE: NHE=1.2M, Legitime =600k, Free Portion = 600K, Devise = House worth 650K so this devise is inofficious because it is more than the free portion. That has to be reduced. But how can you reduce it? tangtangon nimo ang door? No. it cannot be reduced without impairing its value. So in that case: if the reduction does not cover of the value of house, here its only 50K. so that house will go to the devisee. But he will pay the compulsory heirs 50K. Kung baliktad, if ang mareduce sa iyaha kay 500K, so the compulsory will get the house and pay him 150K. Art. 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. (822) So meaning, any one of them can exercise the right in the preceding paragraph or it may be sold in public auction and the proceeds divided. Art. 914. The testator may devise and bequeath the free portion as he may deem fit. (n) So that is the free portion. Actually again, from the free portion you get the shares of the surviving spouse and the illegitimate children. So after deducting their legitime, we have the free disposal. So that is actually the REAL FREE PORTION. That is the portion which the testator may devise or bequeath, but of course subject to limitations. Like the rules on disqualification or incapacity. He cannot devise or bequeath to persons disqualified to receive from him. - END OF 2nd exam coverage GOODLUCK!

SUCCESSION September 25, 2013 DISINHERITANCE

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

153

The legitime is safeguarded by the law. The testator cannot just deprive his compulsory heirs of their legitime. We have discussed preterition the institution of heirs shall be annulled and the preterited heir shall be given his legitime. There will be intestate succession. Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (848a) Art. 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849) What is Disinheritance? It is defined in Art 915. So a comp8ulsory heir can actually be deprived by his legitime but that is for grounds provided for by law. And the process of withholding his legitime is what we call disinheritance. REQUISITES OF DISINHERITANCE 1) it should be for causes expressly stated by law (Art 915) Dili pwede for any cause, pareha sa teleserye na idisinherit kay magminyo sa dili gusto sa parents. That cannot be. That is not valid. That is not a ground for disinheritance. 2) it should be made in an extrinsically valid will(Art 916) So no disinheritance can be made without a will. For the disinheritance to be valid, the will must also be valid. So if there were valid grounds but the will was witnessed by 2 persons only, the will is not valid. Therefore, the disinheritance cannot be given effect. In Probate, the court will discuss only the extrinsic validity of the will identity, due execution, testamentary capacity. One exception is preterition. If preterition is apparent from the very face of the will the court may proceed to determine the question of preterition because it will be a waste of time of the court and the parties if they later discover that the will cannot be given effect because there is preterition. That is not an absolute rule ha na once the question of preterition is raised the court will immediately consider that even during the probate proper. It is in a case to case basis.

MANINANG vs CA GR L-57848 June 1982 Issue: won the omission in the will is preterition or disinheritance. Held: preterition and disinheritance are 2 diverse concepts. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heirs of his share in the legitimate for a cause authorized by law." Disinheritance is always "voluntary", preterition upon the other hand, is presumed to be "involuntary" The effects of preterition and disinheritance are also totally different.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

154

The effects flowing from preterition are totally different from those of disinheritance. Pretention under Article 854 of the New Civil Code shall annul the institution of heir. This annulment is in toto, unless in the wail there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution of heirs", but only "insofar as it may prejudice the person disinherited", which last phrase was omitted in the case of preterition. Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. We cannot go directly to the determination of that issue, without first determining won the will is extrinsically valid. Why? because if indeed it was a disinheritance, a valid disinheritance can only take place in a valid will. How do we know if the will is valid? - If the 3 questions of identity, due execution, and testamentary capacity are answered. So that is not an excuse for going directly to the question on intrinsic validity. If the issue is won there is preterition or disinheritance, we should first go to the extrinsic validity of the will first before we proceed to the intrinsic validity.so that would not warrant an exception to the general rule. Again because the question of disinheritance can only be addressed if indeed there is a valid will. So it is a prerequisite that you first know won the will is extrinsically valid. 3) the legal cause should be specified (Art 916) Even if there is indeed a ground for disinheritance but it was not mentioned in the will, niingon lang na I hereby disinherit my son, the disinheritance cannot be given effect. 4) it should be for an existing cause For example: iyang anak 2 yrs old pero naay tendency na mahimong criminal. So gidisinherit na niya. That is not valid because the cause does not yet exist. It cannot be for a future cause. Art. 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (850) 5) the cause for the disinheritance must be a true cause It has to be a true cause because it has to be proved. If the disinherited heir would deny having attempted against the life of the testator, the other heirs have the burden of proving the truth of the cause for disinheritance. So dili automatic na ma exclude, the heir can actually question/oppose/deny the ground for disinheritance. Art. 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a) INVALID DISINHERITANCE is when disinheritance does not specify the cause or

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

155

even if there is a cause specified but it does not prove to be true or if there is a cause but it is not one of those mentioned in the Civil Code.

Effect of invalid disinheritance It shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime.

Example: Estate = 1.2M. ABC children. He only instituted A and B testator said that I hereby disinherit C because I dont like his face, he looks like our driver. >>> INVALID DISINHERITANCE Consequence: it shall annul the institution of heirs but only insofar as the legitime of C is prejudiced. So if there is invalid disinheritance, give the legitime of the invalidly disinherited heir and all other provisions can be given effect. So here you give the legitime of C = 200K. The free portion of 600K will be given to A and B only because they are the only ones instituted. This is the consequence if there DISTINCTION BETWEEN PRETERITION (Art 854) AND INVALID DISINHERITANCE (Art 918) PRETERITION INVALID DISINHERITA NCE

Conseque Shall annul the shall annul the nce to the entire institution institution of institution of heirs heirs insofar as of heir it may prejudice the person disinherited How distribute the the devises and distributed estate by legacies and intestate other succession testamentary dispositions shall be valid to such extent as will not impair the legitime Example NHE = 1.2M, ABC are the heirs. Instituted A, B and X NHE 1.2M / 3 = 400K each to ABC. X gets nothing because hes an instituted heir unless X is given a devise If C is disinherited because he is gay. That is invalid disinheritance. We give the legitime of the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

156

(friend).

or legacy which compulsory is not heirs = 200K inofficious. each. The free But if you are portion of 600K an instituted is divided by A, heir and there B and X equally is preterition, = 200K each. unless you are also a compulsory heir, you will not receive anything. So here it does not matter if X is just an instituted heir he can still inherit from the free portion.

What if C The institution of heirs shall be was annulled. Mas mag prevail ang invalidly effects sa preterition. disinherited and B is preterited

Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; Maltreatment of the testator by word or deed, by the child or descendant; When a child or descendant leads a dishonorable or disgraceful life; Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

GROUNDS FOR DISINHERITANCE (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

157

So here we are talking about CHILDREN or DESCENDANTS (legitimate/illegitimate) who are being disinherited. found guilty so there must be conviction by final judgment. attempt with more reason if frustrated or consummated. This also contemplates an intentional one, not by reckless imprudence, because this connotes a perversity on the part of the child or descendent. (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; This is false accusation of a crime which the law prescribes imprisonment for six years or more. So na acquit jud ang testator. Accused father na nag patay sa manok only malicious mischief, not a ground The descendant filed a case against the testator or The descendant refuse to be a witness for the testator (on a ground which would have been sufficient to acquit the testator) The descendant acted as a false witness against the testator (but again the testator was found innocent) The false accusation may be in these forms:

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; So this presupposes conviction by final judgment of the child or descendant for adultery or concubinage with the spouse of the testator. The SPOUSE can be disinherited but not under this ground but under Article 921 (4) - when the spouse has given cause for legal separation, this does not even need conviction. (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; Self-explanatory (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; So here the child refuses to give support to the parent or ascendant. For the ground of refusal to be justifiable, we have to consider the means of the child and the necessity of the parent to demand such support. (6) Maltreatment of the testator by word or deed, by the child or descendant; It is the child or descendant who maltreats the testator. Example: yawyawan nimo pirminti imong mama, ginasagpa, gina dukol, gina kusi. Ok lang sa parent ang mgangusi sa anak pero dili pwede na ang anak ang mangusi sa parent. That is why it is a ground for disinheritance of a child but it is not a ground for disinheritance of a parent. Walay nakabutang ana sa Art. 920.

PECSON vs MEDIABILIO? FACTS: The testator disinherited his granddaughter Rosario because she was grossly disrespectful to me, she raised her hand against me (usually this is a ground for disinheritance of the descendant) but why did Rosario raise her hand against the testator? SC found out the cause why Rosario acted

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

158

that way, kag gistoryahan diay siya about sa lalake na nanguyab sa iyaha. After that incident, Rosario lost all her mental faculties (nabuang xa).

HELD: SC said that she was not responsible for the disrespect and disobedience shown to her grandfather during that occasion. It was found that she was of very tender age (14 at that time) and she lost the use of her mental faculties. So basig buang na xa before pa ato. It was invalid disinheritance, the ground was disregarded because it was not a valid ground for disinheritance.

(7) When a child or descendant leads a dishonorable or disgraceful life;

This is a very controversial ground. dishonorable or disgraceful we have to take the norms of society. If acceptable na sa society ang mangawat, then dili na xa dishonorable. Example: Napoles she can be disinherited if maconvict na xa, a lthough she doesnt need it. Tuition fee girl not dishonorable daw (ana si mac2! Hahaha! The law here presupposes something HABITUAL kay life. So ang one-night-stand or first-time ok lang! haha!

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Mga grave na jud ni xa na mga offenses. Conviction presupposes a final judgment. Succession Sept 30,2013-1st part Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate: (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; (2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

159

testator; (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (6) The loss of parental authority for causes specified in this Code; (7) The refusal to support the children or descendants without justifiable cause; (8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. (756, 854, 674a)

(Note:Kulangan dri nga part kay wala narecord-as I can remember ana si mam, dili na idiscuss tanan kay tapos na daw dati- I think No.1 ni siya- When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue )

This refers to the kind of abandonment when the children are deprived of the basic necessity in life. So it is not necessary that this abandonment should equate to a crime. So as long as, again because of the abandonment, the children have been deprived of the basic necessity, so that it may be a ground for disinheritance. Or inducement to live a corrupt or immoral life or attempted against their virtue. The law says a daughter, so you could just imagine a daughter who has been led to a life of prostitution for example, or the parent attempted to rape the daughter or child or seduce. Does this apply to son? Ok, by analogy, this can apply to son because __ nowadays, males can be induced to live a corrupt or immoral life. Diba tong unang panahon, usually mga babae man ang ga engage sa prostitution, pero karun dili ta makaingon nga ang mga customers mga lalaki lang kay naa namay mga matron, nay mga bading diba so pwede na ma include ang son.

Next No. 6- The loss of parental authority for causes specified in this Code You have to know that not all grounds __law have authority to be a cause for disinheritance, like for example, age of majority, that causes the loss of parental authority, but that would not be ground to disinherit because what the law contemplate to be a ground to disinherit a parent or an ascendant is one that is due to the fault of the parent or the ascendant. So only those grounds.

No. 8- An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. The attempt here does not mean conviction by final judgement, it can be proved by preponderance of evidence. Now take note, we also have No. 2- ) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants - and as we discussed last meeting, this requires conviction by final judgement but actually, the same situation can apply in No. 8.__ attempt by the guilty parents against the life of the other(?). the father

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

160

attempted against the life of the mother of the testator, so the testator is the child, so the testator can disinherit his father.

Under No.2 the ascendant could mean the mother of the testator, so this provision is similar to the attempt by one of the parents against the life of the other parents. So for example, when the father of the attempted against the life of his spouse who is also the mother of the testator, do we need conviction by final judgement or the mere attempt suffice? If you are the lawyer for the testator and you were consulted by the testator. And you asked, did your mother filed a case, and he says no, you cannot just say, ah wala na. kalimti nalang na kay wala kay ground. Hulata sa magfile imong mama. Actually, you can use that as a ground to disinherit, not under No. 2 but under No. 8. An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. So kung nagreconcile na ang mother og father sa testator, then with more reason that the testator must forgive the offending parent because he is not the directly affected. That is the reason of law there.

Article 921. The following shall be sufficient causes for disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a)

So, some of the grounds for disinheriting a spouse are the same with the grounds for disinheriting a child, ascendant or descendant, we have No.1, 2, 3, 5, and 6. So basically ang bag-o lang dri is No. 4- When the spouse has given cause for legal separation. Again as we discussed before, in 919, the ground to disinherit a child when the child or descendant have been convicted of adultery or concubinage to the spouse of the testator and under art 920 also a ground to disinherit - When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator(4) but in 921 it has not been mentioned that when the spouse has been convicted of adultery or concubinage with the child, parents of the testator, that is not mentioned in the provision but we have

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

161

here when the spouse has given cause for legal separation. Now, what are the cause for legal separation? Art 55 of the Family Code.

Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)

So take note of those grounds for legal separation. They are also grounds for the disinheritance of the spouse. Can you disinherit your son because he is gay? Is this provided for in Art 919? Could you say that being a gay is living a corrupt or an immoral life? Then you are bound to receive a lot of objections. So just because a person is a gay is not a ground if he is a child or a parent. But if the spouse or the husband is gay or if the wife is a lesbian, is that a ground to disinherit him or her? YES. So for example, if the spouse has an affair with the child or ascendant of the testator, can that be a ground for disinheritance? Ok so that could be considered as infidelity or perversion, so that is also a ground for legal separation. And take note that there is no more need of conviction. Like when a child is convicted of adultery or concubinage to the spouse of the testator, there is a conviction there, but here sexual infidelity or perversion does not need conviction, a mere preponderance of evidence is

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

162

sufficient. If that can be proved by preponderance of evidence, then that can be ground for disinheritance.

Attempt by the spouse against the life of the other. Again, in Art 921, No.1 When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants, so here conviction by final judgement is required but in Art 55 of FC, as a ground for legal separation, when the guilty spouse attempted against the life of the innocent spouse, again here there is no need for conviction by final judgement because a mere preponderance of evidence is sufficient. Seangio vs Reyes- Actually this case falls under Art 919- So here the testator left a holographic will disinheriting his son Alfredo Seangio for a cause. The document is a holographic will which reads as follows: Ako si Segundo Seangio Filipino may asawa naninirahan sa 465 -A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking. At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia. Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana. So the document was entitled Kasulatan sa pag-aalis ng mana. I think we already discussed this case when we were still in the essential elements and characteristics of the will. The first issue was WON this document is the last will and testament because it only contains a disinheritance? So as ruled by the SC even if the document contains only disinheritance, it is considered as indirect disposition. So now as to the ground of disinheritance, is there a ground based on the wordings of the will? Now, the SC said With regard to the reasons for the disinheritance that were stated by Segundo in his document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or descendant under Article 919 of the Civil Code. Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856) What is reconciliation? Reconciliation is a mutual restoration(?) of the relationship between the testator and the disinherited heir after the incident. Both diba nagka-ayuhay, example katong heir kay nangayog pasaylo tapos gipasaylo pod siya sa testator, so there is reconciliation. For example pardon lang? father disinbherited his son because his son attempted against his life and the son was convicted and put into prison. What if the father one

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

163

day, went to the detention cell and then he saw the condition of the son. And then told the son, gipasaylo na taka sa imong gibuhat pero ang anak dili siya mangayo og pasaylo, hilom diha pa, makagawas ra gani ko dri, bantay lang ka. Pero ang papa gipasaylo jud niya. So is there reconciliation? No that is pardon, unilateral. So if there is reconciliation, this will now erase the ground for disinheritance. In my example, if the son was not yet disinherited and then there is reconciliation , the father can no longer subsequently disinherit the son because there is already reconciliation. Halimbawa naman, there was already a disinheritance made in the will and subsequently there was a reconciliation, so that is reconciliation makes the disinheritance ineffectual. Halimbawa namatay ang father nga wala niya nausab ang will, in his will, there was disinheritance but actually there was already reconciliation, during the probate of the will and the distribution, the son who was disinherited could actually say that I already had a reconciliation with my father. So that the disinheritance in the will is no longer effective. As long as the son can prove that he already reconciled with his father. Article 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. (857) So under this article, we can say that a disinherited heir may be represented. For example, if the testator has a son B and B has a son X. For example B was convicted for an attempt against the life of his father and his father disinherited B. So when we sa disinherited, he was deprived of his legitime, he is excluded from the distribution of the estate. But if B has a child X, the share of B will go to his son X. So a person who has been disinherited can be represented. So in the distribution of the estate, bisan pa nay na disinherit validly, maapil lang gihapon og bahin pero iya ng anak mukuha. SO that is what is meant by Art 923. Now for example, X is a minor. Under the FC if you still remember, if a child owns property and he is minor. Under the law, the parents shall act as guardian of the minor child and the properties of the minor child shall be under the administration of the parents. And the parents also has __ over those properties except that if the annual income of the property shall exceed Php50,000, the parents will have to post bond. But in the example, since B as the parent of X who is a minor was validly disinherited, he cannot have administration or usufruct over the property of his minor child, with respect only to the property nga nadisinherit si B. So this is the exception to the rule in FC that parents should administer. So knsa man karun mag administer? A guardian has to be appointed because the parent is disqualified. SEPTEMBER 30, 2013 PART 2 ADCJ

Article 924. All things and rights which are within the commerce of man be bequeathed or devised.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

164

Ok so what will be the subject of a legacy or devise? When you say bequeath that is when you give a legacy devise when you give a devise. Actually this article is the same when we discuss ed the subjects of successionproperty, rights and obligationsalthough legacy and devise walay apil ang obligation. What you can bequeath or devise are only properties and rights unlike inheritance na apil obligation. Why obligations are not included? For example the testator says I hereby bequeath my debt worth P10M to my bestfriend X would X accept that? Of course not. The subjects are only things or rights as mentioned under Art. 924. Ok so what are those things and rights? Those which are transmissible, not within the commerce of men, not res nullius, not res communes and of course remember the Organ Donation Act. Organs of the human body can be a subject of legacy as long as the conditions under the law are complied with.

Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them.

This is what we call a sub-legacy or a sub-deviselegacy within a legacy; a devise within a devise. For example: I hereby give to A P1M, but A would have to give an allowance P1k/week to X, so that allowance to X is a sub-legacy. Of course, the sub-legacy should not also exceed the value of the legacy. In that example, hantod na mahurot ang P1M? dili pud pwede. Only up to the amount of the legacy or devise. Who can be charged of a legacy or a devise? Legatee, devisee or even the compulsory heir. But insofar as the compulsory heirs are concerned, the value or the charge should not exceed the amount of the free portion given to them. So, pwede ka ma-charge ug sub-legacy or sub-devise sa compulsory heirs kung natagaan siya ug free portion over and above the legitimes because you cannot charge the legacy with another legacy or devise. Intact jud dapat ang legitimes. So only in addition to the legitime can be charged with a legacy or devise.

Article 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit.

This is easy to be understood. Pero halimbawa there are several legatees and there is a sub-legacy mentioned but the testator did not mention who has the obligation to fulfill that sub-legacy so, legatee 1, 2, 3 gitagaan sila ug 50k, 100k, 50k respectively and there is this sub-legatee to be given 1k/month. Wala giingon sa testator kung kinsa kay 1,2,3 ang maghatag so they all shall bear the charge proportionally, so , , and sharing. So thats the proportion.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

165

Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent. So for example there is a legacy or devise, given by the testator: I hereby give my house and lot to X but prior to the distribution, naa pa man na probate, daghan pang proceeding, so the devisee cannot demand to deliver to him the house and lot. In the meantime some of the heirs, for example A and B, they possess the house and lot and then naguba ang balay or nagdeteriorate, even if A is only negligent, both of them shall be solidarily liable. This is another instance where the law provides for solidarity. Although the innocent heir can claim from the one who is negligent, but as to the estate and as to the devisee, they are solidarily liable.

Article 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind.

So for example, devise of a parcel of land. The est ate has several lands. I hereby leave to X, a parcel of land with an area of 1Ha and another heir should deliver it to the devisee. For example si X, X is an heir and he is charged of the obligation to deliver the land to the devisee. There are several lands in the estate ha but the testator did not specify which land. So si heir karon ang mamili kung asa na land ang ihatag kay devisee. Now, if X gave this land in Jacinto St. Davao City and later on, it turned out that the land has a problem and the devisee has been evicted or ejected from that land, what do we mean by shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind.? meaning, another land has to be delivered because there are several lands in the estate and the testator himself did not specify which land to give to the devisee. So why did the heir give this land in Jacinto St. Davao City na he could have chosen another land.

If the testator said I hereby give the 1Ha land in Jacinto St., Davao City to D and the heir should deliver that land to D, and D has been later on evicted from that land, there is no liability for eviction because it was the testator himself who said that that land should be delivered to the devisee.

In the first case, wala, indeterminate, so ang heir ang nagpili kung asa na land ang ihatag. There is liability for eviction but of course again, ang ihatag ni heir kato ra pung land belonging to the estate. Dili buot pasabot na in his personal capacity si heir karon ang mangita ug land kay devisee. Its only from the estate.

Article 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest,

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

166

Q: can the testator bequeath or devise something which is more or less than his interest or he does not have the interest in? this is the article that will answer. In this article, the testator owns only a portion of the property. for example, he owns the land in Matina. lang ang iyang ownership and then the testator said I hereby give my land in Matina to D so, pila karon ang mahatag kay D? for exampl lang ang kay testator ato kay co-owner lang siya. Pila? Of course the devise will be limited only to the interest of the testator of that land, so . unless the testator expressly declares that he gives the thing in its entirety.

So, he can actually give more than what he has in the property. like, the testator has share in a parcel of the 10-hectare land and then he said I hereby give my 10 hectare land in Matina Davao City to D but again testator only owns of that land. Technically his share is 2.5 hectare but he said I hereby give my 10 hectare land is that possible? YES. The law says again unless the testator expressly declares that he gives the thing in its entirety.So, how can we give that? That would be equivalent in saying that the estate shall acquire the entire land so that it can be given to D. what happens if the other co-owners refuse to give up their share or they demand an expensive price of their shares what would be the obligation of the estate now? The estate has only to give the just value of the thing to the devisee.

Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect.

So here, the thing devised or bequeathed did not belong to the testator when he made the will. I hereby give the land, or the TCT 14344 to B and the testator did not know that he was not the owner of the land. He just thought that he was the owner. So he gave that to B. so, what is the effect of that disposition? It is void. The testator cannot give what he does not own. Note, at the time he made the will, he has thought that he owns the land but in reality he does not own and he gave that to the devisee. But for example 10 years after he executed the will, and he wasstill alive that time, the land was donated to him and the testator said uyyy dili diay ni akoa? But anyway, thank you kay akoa na ni karon and note that he previously made a will and he did not change tha t. He died with that will. Can B claim the land?

Yes, under Art. 930, xxxBut if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. Take note ha, in this article, the testator did not own the property, but he erroneously thought that he owned it.

Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

167

must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing.

So here, the same thing as in Art. 930 that the thing devise or bequeathed did not belong to the testator at the time that he made the will BUT HE KNEW THAT HE DID NOT OWN IT. Despite knowing that, he ordered that the thing be given to the legatee or the devisee that be acquired so that can be given to the devisee or legatee. So again, how can the testator give a thing which he did not own it? It shall be acquired from the owners but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing.

Article 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent.

Take note ha that the thing bequeath or devised here already belong to the legatee or devisee at the time of the execution of the will. So, D own a parcel of land. Testator said I hereby give to D a parcel of land covered by TCT 14344, but again as I mentio ned, that land already belongs to D. what is the status of the devise? It is VOID because you cannot give to a person what he already own. So, that is void.

What if that land owned by the devisee had been mortgaged by him? And the will, the testator said I hereby give to D a parcel of land covered by TCT 14344 and I order that the land shall be free from the mortgage. Is the devise valid? That land belongs to the devisee, when the testator executed the will, ang owner ng land kay si D, but only that it was mortgage. So, the devise itself is void because again you cannot give to a person what he already own but because the testator said that the land shall be free from the mortgage, meaning the estate shall pay the debt of D so that it can be free from mortgage. So, it shall be valid only to such an extent, only as to free the thing from the encumbrance or charge. Insofar as the devise of the land itself, it is void VOID because you cannot give to a person what he already own.

Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

168

In 1990, the testator executed a will giving to X a parcel of land. At that time, X was the owner of the land. In 1995, X sold the land and in 2000, the testator died. What is the status of the devise? When the testator died in 2000, X was no longer the owner of the land, but when the testator made the will in 1990, X was the owner of the land, so upon the death of the testator, because X was no longer the owner of the land and he was made the devisee of that land in 1990. Can X claim the land from the estate of the testator by virtue of the devise made by the testator? no. simple lang ha. You just have to remember na if the devisee or the legatee is the owner of the thing bequeath or devised at the time of the execution of the will, the devise or legacy is void. There is no exception. Even if subsequently it was donated by the devisee, at the time of death of the testator, the devisee is no longer the owner of the property, so void jud siya.

If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. In this paragraph, refers to the situation wherein at the time of the execution of the will, legatee or devisee is not the owner of the thing. Dili siya ang tag-iya, pero after the execution of the will, the legatee or devisee acquired the thing gratuitously.

So, in 1990, the testator made a will devising to X a parcel of land. X was not the owner of that land. In 1995, X acquired the land. So katong gidevise sa iya na land by the testator, he acquired that in 1995 and then the testator died in 2000, that time si X gyapon ang tag-iya sa land. Is that devise to X of the land valid? IT DEPENDS. If he acquired the land in 1995 by gratuitous title, X can no longer claim anything more from the estate. He has no more claim. But if he acquired the land onerously, like he bought the land for 1M but earlier it was devised to him by the testator, upon the death of the testator, he can demand reimbursement from the heir or the estate for the value of what he paid of the land. Kay dapat free man iyang pagkakuha sa land, iyaha mang gibayran so i-reimburse siya for the price which he paid.

Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will. Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee.

The testator owned a parcel of land 2 hectares. That land was mortgaged by him. And then he made a will giving that land to B as a devise. The testator died. What is the obligation of the estate? Can B get the land? Yes because it was devised to him. He can get that. Now, as I said, that land was mortgaged by the testator. can he give by inheritance that land which was mortgaged? Yes, because mortgage in the land does not lose the ownership over the land. Thats merely a collateral. Although again, if you fail to pay the debt the mortgagee has preferential right to get the land but we have to follow the procedure. It has to be foreclosed dili diretso kwaon sa mortgagee, but this is a different

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

169

story. So, can the devisee get the land? YES. How about the debt? Naka-mortgage man siya? Unsa may obligation sa estate? The estate has to free the thing from the mortgage. Meaning, the estate has to pay the debt so that the land will go to the devisee without any encumbrance or charged. Thats if the thing is pledged or mortgaged to secure a recoverable debt.

What if during the lifetime of the testator, he posted that property as property bond because he was an accused in a case and then to secure his provisional liberty, he posted the land as a bond, but that same land he devised to B in his will and the testator died. Can B get the land? Yes. Again, kung proeprty bond siya, dili man mawala ang ownership over that land. Ang lisod lang ana kung magescape ang testator kay ma-forfeit ang bond katong land kay makuha pero in this case namatay man ang testator. ok, for example, posted that as a property bond to secure the provisional iberty of his son. That same land was given to B as a devise. He died. Can the devisee own the land? Is the estate oblige to free the land from that bond? No, there is no such obligation.

the land shall go to the devisee but still it is encumbered by the fact that it is constituted as a property bond. That is the meaning of Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee. So kato lang pledge or mortgage. Didto lang kutob ang obligation sa estate to free the thing from pledge or mortgage. Of course, unless the contrary intention appears. General rule: if the thing pledged or mortgaged to secure a recoverable debt was given as a devise or legacy, kung silent lang ang disposition, the obligation to free the thing from the mortgage unless ingon sa testator na dili na nako bayaran ang utang even if the devisee gets the land, that is still burdened with the mortgage. So, that was expressly stated otherwise, the presumption is the estate has the obligation to pay the debt.

Article 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one. In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. For example, what is a legacy of credit and what is a legacy of remission. For example the testator during his lifetime lend some money to X. The testator is the creditor and X is the debtor. Halimbawa ang utang ni X kay 400K. now in the will the testator said if upon my death, X still owes me some money, I hereby consider that portion of the debt as remit ted. So that is what we call a legacy of remission.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

170

For example the same thing, the testator has a receivable worth 100k, and then he has a friend Y. in his will, he said If upon my death, I still have receivables from X, I am giving those receivables to Y. So si Y na ang bahala mag collect. Si X didto na magbayad kay Y. that is what we call a legacy of credit.

So, the law says xxx shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. no problem if wala jud nibayad si debtor so 100k jud iyang utang so if it is a legacy of remission, ang value sa iyang legacy is 100k. if it is a legacy of credit, ang value of legacy to Y kay 100k. assuming during the lifetime of the testator, X paid 20k. while the testator died, in year 2005, 80k na lang iyang utang. Sa legacy of remission, pila karon ang value sa legacy? Only 80k. because that is the only debt existing at the time of debt. Y also, in the legacy of credit, the value of the legacy is worth 80k. you cannot deman 100k because that is the only value of the debt at the time of death.

Assuming, instead of paying, the debtor paid some 20k more. ahh remission diay, sige mangutang na pud ko. So, at the time of the death of the testator, 120k iyang utang. How much is the value of his legacy? 100k. why not 120k? the 20k is considered as after acquired properties. Also in the case of legacy of credit, you can only claim 100k because the 20k is an after-acquired properties unless it is expressly provided by the testator that additional credits after the exectuion of the will shall be also considered as part of the legacy.

Article 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death.

what do you mean by should bring an action? does it include sending a demand letter to the debtor? Actully, the law contemplates JUDICIAL action. Mere sending of demand letter to the debtor will not revoke the legacy. This article is an example of revocation by confirmation of law. Even if it is not the intention of the testator but he brought an action/ filed a case against the debtor after he made the legacy of credit of legacy of remission, so the legacy is considered revoked even if there was no payment made.

The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. Take note: when a thing is pledged, you need a collateral for debt and when you pledge a thing meaning you have to deliver the thing to the pledgee. Pledge is a real contract; there is a need of delivery of the thing to the pledgee. Here there is a neclace or cellphone. A very expensive cellphoneNOKIA 5110. So nangutang si legatee kay testator and then as a collateral of that debt, the legatee pledged to the testator his NOKIA 5110 cellphone. Now, the testator said in the will I hereby bequeath to L this particular cellphone is that legacy valid which is in the first place was owned by L and was pledged to secure his debt to the testator?

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

171

NO. that is void because you cannot devise or bequeath a thing which already belongs to the legatee or devisee. Does the legatee have any other legal consequence? Yes, it shall discharge the right of pledge. Ao, unsay mahitabo? Iuli sa estate ang cellphone to the legatee, if the legatee cannot pay, the estate cannot proceed against that cellphone, sell it at public auction and use the proceeds in payment of the debt. So ang utang ni legatee naa lang gyapon. Its only the pledge that has been discharged. Meaning, kung dili makabayad si legatee, wala lang. it now becomes an unsecured debt. Only the pledge ha but not the loan itself. But the legacy of the cellphone is not valid because in the first place it is owned already by the legatee.

Article 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones.

This is the one I explained to you before. Not included the subsequent debts only those existing at the time of the execution of the will. If there were payments, deduct those payments from the value of the debt but if there are subsequent debts, thy are not included in the legacy.

Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares. In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise.

So, if X is also a creditor, naa siyay gipahulam sa testator na 1M and then in his will the testator also gives 1M also, will that be considered payment of his debt? No. meaning over and above pa to siya unless the testator says na pambayad to siya sa utang. For example niingon si testator na pambayad to siya sa utang, so naa siyay utang kay X na 2M and then in his will, he left 1.5M to X in payment of the debt, that will be applied to the debt, but X can also collect the remaining 50K.

Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

172

So if the testator said I hereby leave to X 1M in payment of my debt when in fact he did not owe anything, so that is not due to X. if he said I hereby leave to X 1M in payment of my debt but ang iyahang utang lang diay kay 200k, so the excess is not due. Meaning katong 800k dili to dapat ihatag kay X. Unless the contrary intention appears.

The foregoing provisions are without prejudice to the fulfillment of natural obligations. If that debt has already prescribed, and in his will the testator gave X 1M in payment of his debt, if it is delivered to X, can the estate recover that? No because the law on natural obligations will now apply. Pero halimbawa wala pa nahatag, ang utang niya kay X kay 1M, and then in his will he said that his giving 1M to X in payment of his debt, is that demandable even wala pa nadeliver? The law on natural obligation authorizes the retention of what has been voluntary delivered. Wala pa man nabayad, but again if nabayad na siya, you cannot recover under the law on natural obligations.

October 2, 2013 NOTE: Wala nakaArticle 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged. If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs. Once made, the choice is irrevocable. In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a)

is sufficient to extinguish the entire obligation. So in that case, if for example, one of the things is lost by reason by the fault of one who is bound to deliver obligation, the debtor, he is not liable because general rule he has the right of choice. So even if he destroyed the car for example he is not liable, so even if the debtor destroys the car he is not liable he because he can still choose the other things, so the thing calls for alternative legacies or devises. So the law in Oblicon respecting alternative obligations can be applied also in alternative legacies and devises. Article 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

173

A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)

LECAGY OF GENERIC PERSONAL PROPERTY a car So that is generic, not specified. Assuming the testator gave to L a car. But theres no car in the estate. Is that legacy valid? It is valid according to Art. 941, even if there be no things of the same kind in the estate. How can the estate comply? A car should be purchased so that it can be given to the legatee. I hereby give to D a parcel of landbut there is no land in the estate, is that valid? The Second par. Says NO! A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. So kung naay land in the estate, valid pero kung walay land the executor has no obligation to buy a land. What if the devise is I hereby give to D a parcel of land consisting 10 has covered by TCT no. 123456, located in Calinan Davao City so thats specific but it does not belong to the estate. Will that devise be valid? IT DEPENDS. If the testator did not know that he was not the owner of that land, such devise is not valid but for example by any title he acquires that property subsequently, that devise will become valid. But even if the testator did not own that land but he knew that he did not own that land, so that would be valid, so what will happen is the estate will get that land from its owner. If the owner refuses to alienate the property or demands an excessive price, the estate will just have to give just value of the land to the devisee. So because here, the legacy or devisee is generic, the obligation of the heir, or the executor or administrator who has the right of choice shall be to deliver the thing of MIDDLE QUALITY, not inferior and not superior. Taking to account of course the status of the person to whom the property is to be given, the purpose and also the capacity of the estate to give such property. For example, I hereby bequeath to my niece a car for her to use on her wedding day So unsa man nga car? So it depends on the circumstances. Article 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a)

So that is self explanatory. Article 943. If the heir, legatee or devisee cannot make the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

174

choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a)

So for example the one to whom the choice has been given cannot make the choice, such right shall pass to his heirs, meaning the right to make a choice and once the choice has been made it is already irrevocable. Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently. A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided. If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate. If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a)

LEGACY OF EDUCATION The law says UNTIL THE LEGATEE IS OF AGE. So when does a person become of age? 18. So for example a legatee of education so that an heir may pursue a study in law. So until 18 lang? NO! So or beyond the age of majority in order that legatee may finish some professional, vocational or general course. And provided he pursues his course diligently. For example law school so beyond the age of majority, ok lang, basta kay ingon man diri until finish. Pero 4 years lang man ang law school diba? Unya times two naman siya, so would that legacy continue? Well theres that phrase provided he pursues his course diligently So when you say 8 years di SUPPORT. During the lifetime of the legatee unless the testator provides otherwise. What is the value of the legacy? According to the social standing and circumstances of the legatee and the value of the estate. So if during his lifetime the testator used to give the legatee support so that can be the basis unless it is already markly disproportionate to the value of the estate. Article 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

175

testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a)

So just remember here, when shall the estate be obliged to deliver the legacy? At the beginning of each period. If the legatee died his estate is not bound to return what he has received by virtue of that legacy or devise. For example montly pension. So for the month of January, So Jan. 1 palang ihatag na nimo tanan for that month. For example 30k, and then he died on the second day of Jan. Ofcourse his estate is not required to return the balance. Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. (868a)

So meaning during his lifetime the testator owned a parcel of land but the usufruct of that land must be given to X for example. And the testator devised that land to D. So upon the death of the testator because the land is devised to D, it would have to be delivered to D but the usufruct diba is given to X, so is the usufruct extinguished? NO. the legatee or devisee shall respect such right until it is legally extinguished. Now remember the law on usufruct. GR: If it is silent upon the death of any party in the usufruct, actually it is extinguished but they can provide that it shall continue. So a contrary stipulation can be had. So in that case, that stipulation will subsist even after the death of the owner of the property and it shall pass on to the devisee. Remember what we discussed before under Article 934: Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will.

[So the estate has to free the property from pledge or mortgage.] Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee.

One such example is a usufruct.even if the property is given a s a devise, subject of a usufruct and the testator dies, the usufruct shall continue, until it is legally extinguished.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

176

Article 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs. (881a)

PURE AND SIMPLE LEGACY OR DEVISENot subject to any condition, term or mode so it will pass on to the legatee or devise upon the death of the testator but of course since its a legacy or devise diba it is given by virtue of a will and as what we have discussed before, no will shall pass unless it has been allowed in accordance with the rules of court. So that will has to be probated first and only when the probate is granted and the will is allowed can the legatee or devisee claim the property in the will. But of course, his right starts not from the probate of the will but from the death of the testator. Article 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death. From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a)

We are talking here of a specific and determinate thing being given as a legacy or a devise. The law says the thing shall pertain to the legatee or devisee upon the death of the testator because that is the time when there is already transmission of ownership. So for example there is a parcel of land and it has growing crops or fruits, that growing crop or fruit is included in the legacy or devise but if at the time of the death of the testator that has already been cut or harvested, can the legatee or devisee claim that fruit? NO MORE! The law says growing fruits. Or unborn offsprings of animals, the land have cows, cattle of course upon the death imoha na na xa because and legacy is specific. What if buntis ang cow during the lifetime of the testator nya nanganak na xa after the death of the testator, kinsa ang tag iya atong anak? LEGATEE because unborn, when you say unborn, unborn at the time of death. Kay kung nanganak xa during the lifetime of the testator walay question sa ESTATE jud xa. If nabuntis ug nanganak xa after? LEGATEE by right of accretion. Or uncollected income but not the income which was due and unpaid before the latters death. For example the devise is of a specific building, the building is being leased by several lessees. So during the lifetime of the testator there were already accrued and demandable rents but not yet paid for example rent for one year. And then the testator died. So the building will go to the devisee because it was devised and because there are lessees, naa gihapoy rentals but still those lessees did not yet

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

177

pay the rentals until after 1 year from the death of the testator. So after 1 year nagbayad karon ang lessees ug two-years worth of rental, who owns the rentals? You have to make a distinction. Those which became due during the lifetime of the testator that belongs to the estate of the testator. Those which became due after the death of the testator that should belong to the devisee. NOTE: those rentals which accrued before the death of the testator is under the classification of After Acquired property. Thus, it belongs to the estate. The last par: the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. (882a)Because he is now the owner. Article 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. (884a)

Here the bequeath is not specific and indeterminate thing. Generic lang ang pagka.describe. So for example I hereby give a parcel of land consisting of 10 has to D. and there is a land there are several parcels of land in the estate. So it is a valid devise. Now, because the testator did not specify which land, it shall be the executor or the administrator or the heir charged who will choose which of the several land shall be given to the devisee. Now prior to choosing which land, of course we have no idea which land should be given, so eventually for example the executor chose the land in calinan davao city and it so happens that such land even before the delivery, after the death of the testator but before the delivery to the devisee, that land had fruits which were harvested, can the devisee claim those fruits harvested after the death of the testator but before delivery to him? GR: NO! because it is generic or indeterminate. The right of such legatee or devisee over such property (the fruits) shall start only from the time it is chosen by the executor, etc. UNLESS the testator would specify that the fruits and interest which accrued in the property from the time of death shall likewise pertain to the legatee or devisee. Article 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

178

estate; (6) All others pro rata. (887a)

So this article gives us the order of priority in satisfying the different legacies and devises if the estate is not sufficient to pay off all these legacies and devises. 1.) Remuneratory legacies or devisesso those which are rewards for services given to the testator. 2.) Legacies or devises declared by the testator to be preferential kadtong iyang gi.ingon nga PREFERRED. 3) Legacies for supportsupport contemplated in the family code. Excluding education from the term support. 4 ) Legacies for education; 5) Legacies or devises of a specific, determinate thing which forms a part of the estate;

6) All others pro rataif legacy or devise is generic. basta ang point sundon ang pagkasunodsunod) CF: Article 911 Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime. (3) If the devise or legacy consists of a usufruct or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. (820a)

In Article 911, the free portion is not sufficient to satisfy all donations intevivos and all legacies and devises. First is between legacies and donations, donations are preferred. Between two or more donations, those made earlier are preferred.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

179

After those donations, if there are preferred legacies, then kato sila ang isatisfy. Kung naa pay mabilin, all others pro rata.

But here, lahi atong priority, so when do we apply article 911 and when do we apply article 950? REMEMBER: we only apply Art. 911 if there are compulsory heirs and there are donations intevivos made by the testator. These two conditions must be present because even if there are donations made intervivos but there are no compulsory heirs there is no need of charging donations to the free portion. Why? Because there is no need of collation. Collation is required only if there are compulsory heirs and donation intervivos. Because we have to preserve the legitimes. So if there are compulsory heirs but there are no donation intevivos then we follow article 950. Article 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in which it may be upon the death of the testator. (883a)

Article 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value. Legacies of money must be paid in cash, even though the heir or the estate may not have any. The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime. (886a)

Just remember here that it must be the very thing that is delivered. As a GR you cannot just pay in cash if the legacy is of a car you have to deliver the car, if it is money ofcourse it should be delivered in cash, even if the estate does not have cash. So how Can the estate derive cash? By selling properties. First the personal properties and then later the real properties.

Article 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. (885a)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

180

So there has to be authority, either from the heir charged or from the executor or administrator authorized by the court to deliver. Again as I mentioned before since we are talking about legacies or devises which are provided for in the will there has to be a prior probate of the will before things can be delivered.

Article 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)

We are talking here if a single devise or legacy and it is partly onerous and partly gratuitous. For example, two story apartment, so sa ground floor there is a charge that you have to maintain it every month. Sa second floor there is no such obligation. Now the legatee or devisee cannot just accept the second floor dili ang first floor. He cannot do that. But he can repudiate BOTH. But if he should accept, he should accept BOTH.

Now can he accept the onerous and not the gratuitous? Based on the wordings of Art 954 there is no such prohibition. What is prohibited? Only Accepting the gratuitous and repudiating the onerous. The same thing goes for the heirs of the legatee or devisee who died.

Article 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both. Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both. (890a)

Here there are two or more legacies or devises, the same rule as before, you cannot accept the gratuitous and renounce the onerous. You can accept BOTH

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

181

You can renounce BOTH You can accept the onerous and renounce the gratuitous BUT you cannot accept the gratuitous and renounce the onerous.

If both legacies or devise are gratuitos, walay problema kung irenounce nimo and isa or renounce both or accept both. EXCEPT if the testator should say that you should accept both.

So even if both legacies are both gratuitous or both are both onerous if the testator says they are inseparable then you choice would only be to accept both or renounce both.

Compulsory heir who is at the same time a legatee or devisee may: waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both.

Article 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. (888a)

In this article you will see that intestacy is the last resort. So remember the acronym here ISRAI. First if there is an instituted heir or there is a legatee or devisee give the thing to them. If he cannot accept for some reason if there is a substitute then give to the substitute. Now if there is no substitute and the right of representation is proper (we say if proper because the right of representation will be proper only in so far as the legitime is concerned or in so far as the entire share in legal succession) So if proper sa representative, if dili proper then we go to the next accretion. Simply stated, there can be accretion in two or more heirs are instituted to one inheritance. And if accretion is not proper then the last resort would be intestacy. So that portion shall go to the legal heirs of the testator.

Article 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had; (2) If the testator by any title or for any cause alienates the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

182

thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of article 928. (869a)

THIS IS AN IMPORTANT PROVISION!!!!

So article 957 talks of revocation by operation of law of the legacy or devise. NOTE: these refers to specific things.

1. TRANSFORMATION-- If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had;

I hereby bequeath to B my ring subsequently mga 2 years after the execution of the will, the testator had the ring melted and he made it into a pair of earrings. And then the testator died. Can B claim the earrings? No because of transformation.

2. ALIENATION--(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

So the testator might have alienated the thing by donation or sale, so for any title subsequent to the legacy or devise. So for example I hereby divise my land in calinan davao city to B so a specific land was devised. Now 2 years after the testator sold the very same land to X. SO what happens to that devise? Can B claim the land? NO, by the subsequent sale or donation or any other kind of alienation

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

183

by the testator of that very same property given as a devise or legacy by operation of law that legacy or devise becomes void.

For example in 1990 the testator devised a specific land to X and then in 1995 the land was sold to B. and then subsequently in 1999 the sale to by the testator was declared null and void because maybe there was absence of consideration or prohibited by law . So naa nampud ang land sa testator. Then the testator died in 2005. Can the devisee claim this land? NO. NOTE: with the same facts except that in 1995 the testator filed a case for annulment of contract of sale on the ground of vitiated conset. Can X claim the land? YES because here the alienation made by the testator was actually involuntary because his consent was vitiated. SO the alienation referred to in article 957 should be VOLUNTARY. If it was involuntary like it was foreclosed and sold to public auction it is also considered as involuntary. SO it will not cause the revocation of the legacy or devise. Another, ever if the sale was voluntary, same situation above but in 1995 the testator sold the land to B. the sale was pacto de retro and true enough he was able to repurchase the land. Can X claim the land? YES because by reserving his right to repurchase the land the law presumes that the testator really intended to give effect to the devise or legacy. NOTE: if there is no right of repurchase but the testator bought the land again. Can X claim the land? NO. because it was an absolute sale.

3. LOSS OF THE THING BEQUAETH-- If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault.

Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of article 928.

Article 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n)

MISTAKE IN THE NAME-you can use here the rules in the interpretation of wills and also the rules in resolving an intrinsic or extrinsic ambiguity. So as long as it is possible to indentify the thing then the devise or legacy will be effective.

Article 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

184

those nearest in degree. (751)

So here the disposition is in favor or the testators relatives, so it is a general or collective disposition, who are these relatives entitled? Here we follow the rule on PROXIMITY. They do not have the right of representation. This is applicable to the free portion. We also do not follow the rule that those who are in the ascending line are preferred to those who are in the descending line. BAsta kay kung kinsa and dool basta parehas sila ug degree whether descending or ascending parehas sila nga mag inherit. Also there is no application of the rule that those in the collateral line are favored over those who are in the direct line. Again remember lang proximity. Mao lang na xa ang rule that applies in article 959.

What if the disposition is in favor of those who are entitled thereto? do you follow article 959? NO! so in that case it refers actually to the legal heirs so we follow the rule on legal succession even if it is testamentary hah. We are limited in legal sux, kay diba ang heirs if collateral line is only up to the 5th degree. So kung walay collateral relatives ug wala pud in the ascending or descending line then the property will go to the state.

Note also na kung ang disposition is limited to the relatives of the testators spouse dili mag apply ang article 959.

CHAPTER Legal or Intestate Succession

SECTION General Provisions

NOTE: there are provisions here that are no longer applicable.

Ok. So legal succession, actually in the civil code there is no definition of what is legal or intestate succession. But the law only enumerates the instances where there is legal or intestate succession.

Article 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

185

the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a)

(Actually ang gibasa nalng n imam ang provi balik, no discussion)

Article 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a)

So as we discussed before, all compulsory heirs are legal heirs, so we have the legitimate heirs and the descendants, in their absence legitimate parents and ascendants so we have the surviving spouse and the illegitimate children. So they are all legal heirs if the testator left no will. But not all legal heirs are compulsory heirs. Why? Because in addition to them we also have other relatives who are considered as legal heirs we have brothers and sisters, uncles and aunts, nephews and nieces. So relatives within the 5th degree of consanguinity are considered as legal heirs if that is in the collateral line but if it is in the ascending or descending line, direct there is no limitation as I said.so pwede nga muabot ug 10 degree pero that is already physically impossible. In the absence of both relatives then we have the state.

Article 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines. (912a)

RULE ON PROXIMITY- the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

186

Actually this concept is also applicable in the case o f testamentary succession with respect to the legitime. So the rule on proximity with the exception of the right of representation. With that the children excludes the grandchildren, if all the children are alive but if some of the children predecease the testator and they have their own children. Then their children will have the right of representation.

GR: Relatives in the same degree shall inherit in equal shares EX: 1.) Article 1006 with respect to relatives of the full and half bloodbecause those full blood inherit more than those which are half-blood even if there are of the same degree. 2.) Article 987, paragraph 2, concerning division between the paternal and maternal lines recall that in the ascending line we always divide by the line even if they are in the same degree. 3.) when the right of representation applies.note that although theoretically the children og ht e heir who predeceased are elevated to the status of the heir but their shares are not equal to the share of the brothers and sisters of the person they represented. 4.) Inheritance of legitimate and illegitimate children.

Succession 10-7-1st part SUBSECTION 1. Relationship Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915) Article 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a) Article 965. The ascending. direct line is either descending or

The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. (917) Article 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

187

Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a) Art 963 to 966 tell us how to compute the number of generation. For example parents to child? How many generation? One. Parents to grandchildren? Two. Brothers and sisters? Two. Why? Halimbawa parents have children A, B C and D. SO from D, how many degree to A? Two. Because From D to the common ascendant, their parents then go down to A. Nephews and nieces? Three. From you, to the parents, to brothers or sisters, to nephews and nieces. These is what is explained in 963 to 966, how to compute the proximity of the relationships determined by the number of generation. Each generation forms a degree. Article 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. (920a) How do you know WON your brother is your full blood brother? We have same parents, the same father and the same mother. Half blood? We have either the same father, but not the same mother, or the same mother, but not the same father. When we say halblood, do we mean illegitimate? Not necessarily because for example, the father have been married before and have children, then the spouse died and then he remarried and then he have another children. So those brothers and sisters to the 1st marriage are half blood brothers and sisters but they are all legitimate. Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. (922) Art 968 talks about incapacity or __ or repudiation. Let us illustrate. For example. There is a decedent with 3 children, A have own children X and Y, B has also child Z. So under the rule of proximity, if the decedent died, he will be survived by his children A, B and C, and they will all inherit in equal share. X,Y and Z shall be excluded. If for example A is incapacitated to inherit, because he was convicted of an attempt against the life of his parents, also a ground for disinheritance, also a ground for incapacity. What will happen to his share? Remember, if it is incapacity, predecease, disinheritance, the heir who is incapacitated or disinherited can be represented. So if the estate is 1.2M, each should get 400k. But since A is incapacitated, his share shall go to X and Y. Now, what if instead of incapacity, A repudiated his share. What will happen to his share of 400k? It shall go or accrue to his co-heirs namely B and C. Nothing will go to X and Y. It is because in repudiation, an heir who repudiated cannot be represented.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

188

Article 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. (923) So in my previous example, if A repudiated his share, it will accrue to B and C because he cannot be represented. What if A, B and C repudiated? Who shall be the heir of the decedent? And how much shall he receive? Since they cannot be represented, so the heirs next in degree shall be the heirs. Who are in next degree? X, Y and Z. So they will inherit in their own right. And how would they divide the estate? Divided by 3, each will share in his own right. If for example, C has own child also, M. this time, all of them, X, Y, Z and M shall divide equally the inheritance in their own right. Assuming, not repudiate, but A, B and C predeceased the decedent, so X, Y, Z and M shall represent their parents. SO their inheritance would be by right of representation. How do we divide the estate? Divided by 3, the number of person represented. SUBSECTION 2. Right of Representation Article 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (942a) Ok, so that is the meaning of the Right of Representation. Article 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (n) So in my previous example, A predecease the decedent so his children X and Y shall represent him. They will now be raised to the degree and status of A, assuming X and Y are alive, they will inherit together with B and C. Take note, that by represenating A, X and Y do not inherit from A, they inherit from the decedent himself. That is why their qualification to inherit will be measured based on their relationship with the decedent not with A. So, if they are incapacitated to inherit from the decedent himself, even if A died, they cannot inherit. Article 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (925)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

189

So take note, we already discussed this before that right of representation takes place in the direct descending line not in the ascending line. This is based on the principle in Succession that Love always descend. In collateral line, right of representation is proper as long as again, it is descending up to nephews and nieces, so grandnephews and grandnieces are not included. For example, A,B and C are brothers, and their children were X,Y and Z. If for example, they have another brother D who is the decedent. D died, and his only heirs were his brothers A, B and C. The children of brothers are excluded under the rule on proximity. But for example, A predecease the decedent. So X and Y are alive, together with B and C. Insofar as the decedent is concerned X and Y are his nephews and nieces. So, the nephews and nieces can represent their parent A, who is the brother of the decedent. Assuming, namatay na pod ni si X og Y pero naa na pod silay mga anak O an P. So patay na si A, X, and Y, si O og P na lang. Bali apo ni D si O og P, grandnephews and grandnieces ni decedent. Can O and P represent? No, because right of representation shall apply only up to nephews and nieces. Article 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. (n) So I already explained this before. The representative inherit not from the person represented but from whom the person represented succeeded. Article 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (926a) If for example the decedent have children A, B and C and grandchildren X, Y, Z and M. Assuming that A predeceased the decedent, and he is survived by his own children x and y, as we discussed, well divide the estate by 3. So 400k for A, B and C. Since X and Y only represented A, they will divide the share of A, so each( X and Y) will get 200k. So the inheritance of X and Y is called per stirpes, they shall divide the share of the person represented. Their share cannot exceed that of the person represented. How about B and C? Their share are called per capita, in their own right. Article 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927) Take note of that. We are talking here of the inheritance of nephews and nieces. So assuming again that A, B and C are brothers of D, decedent. X, Y, Z and M are the children of brothers of decedent. So kung si A lang ang namatay, he will be survive by his children X and Y. But assuming all A, B and C died, survived by their children, mga nephews and nieces ni D. How do we divide? The law says, in equal shares, like per capita. So we divide the estate by 4. Remember that because we have a different rule when it comes to grandchildren. Kung grandchildren, If all of the children of the decedent died ahead and survived by their children, the inheritance of the children would be by right of representation, it would not be per capita but per stirpes. So sa succession better pa ang position sa grandnephews/nieces who are in the collateral

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

190

line kesa grandchildren, because grandchildren always inherits by right of representation as long as there is no repudiation. Because if there is repudiation, that is when they inherit in their own right, that is per capita. Article 976. A person may represent him whose inheritance he has renounced. (928a) For example, the decedent, D has a child B and B has a child Z. For example B died ahead, so predeceased, pagkamatay ni B, kinsa gani ang heir? Si Z ang iyang anak. Not D coz he is excluded. Descendant is favoured over ascendant. Z repudiated his share in Bs estate. Example the D died, ang nabilin iyang mga anak, A and C, because as Ive mentioned, B died ahead. So ang nabilin, Z ang iyang apo. So can Z now represent B? Yes. Because a person who repudiated his inheritance can represent the person whose inheritance he has repudiated. Assuming nga naa pay anak si Z nga si R katong time nga namatay si B, Z cannot be represented by R. Why? Because again, a person who repudiated his inheritance cannot be represented. But when D died, the grandfather of Z, and as Ive said B already predecease, so Z now, who repudiated his share to his fathers estate may represent him to his grandfathers estate. Again, a person who repudiated his share cannot be represented but he can represent. Article 977. Heirs who repudiate their share may not be represented. (929a) So we already discussed that before. SECTION Order of Intestate Succession 2

In Intestate succession, who are legal heirs? Remember the compulsory heirs, the legitimate children and descendants, in their absence the legitimate parents or ascendants. We have the surviving spouse and we also have the illegitimate children. And then we have the collateral relatives up to the 5th degree of consanguinity. Who are these collateral relatives? Brothers and sisters, uncles and aunts, nephews and nieces, up to the 5 th degree of consanguinity. The counting starts from the decedent. Kung direct line, there is no limitations. In the absence of collateral relatives up to the 5 th degree of consanguinity and relatives in the ascending or descending, we have the STATE, as a legal heirs. So those are the heirs of the decedent. So under the legal succession, we follow the three basic rules, which we already discussed in reserve troncal: 1. The nearer relatives excludes those who are far(rule of proximity), 2. Those who are in the descending line are favoured over those in ascending line, 3. Those who are in the direct line are favoured over those who are in collateral line. SUBSECTION 1. Descending Direct Line Article 978. Succession pertains, in the first place, to the descending direct line. (930)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

191

Article 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. (931a) Legitimate children as long as they are legitimate, even if they came from different marriages, they have the same right. They are all entitled to the same share. An adopted child, based on Domestic Adoption Act, has the same successional right as a legitimate child. So, he shall be considered as legitimate child for the purpose of succession. For example, the decedent, has child B and B has adopted child Z. Insofar as Z is concerned , he is considered as legitimate child of B. So he will enjoy same as the legitimate child. Assuming B predecease the decedent(D), so he is survived by Z. So subsequently, D died, survived by his other children A and C and Z, the adopted child of B. So who are the legal heirs entitled to inherit? A and C. How about Z? Can he not represent B, since we said that an adopted child may inherit like a l legitimate child? No. For the purpose of representation, an adopted child cannot represent his adopter because the fiction created by adoption is only existing between the adopter and the adoptee. Sa ilaha lang nang duha. It does not extend to the relatives of the adopter, like his parents for example. And take note, that in Right of Representation, the representative inherit not from the person represented but from the decedent himself, from whom the person represented should have succeeded. And we also discussed that, the capacity of the representative to inherit shall be measured in terms of his relationship with the decedent. So here walay relationship at all. Article 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. (932) As long as the child is the child of the decedent, under the rule on succession, the descendants are preferred over the ascendants. The computation would be per capita. Article 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation. (934a) I already explained that. Article 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions. (933) The grandchildren and other descendants shall inherit by right of representation. As we discussed before, if A predecease the decedent and survived by his own children X and Y. X and Y shall represent. If for example, for example all, A, B and C died survived by their own children, the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

192

inheritance of the grandchildren would be by representation. So per stirpes, divided by 3 and whatever would be the share of A shall go to X and Y. if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions- meaning if any one of the grandchildren have died and he has several heir, for example, Z died, the share of Z as representative would be divided by his heirs in equal portion. Remember ha, if parents predeceased, children inherit by right of representation, but if we are talking of nephews and nieces, they will inherit in equal shares. Article 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions prescribed by article 895. (n) Sa legal succession, and even in testamentary succession, illegitimate children inherit half of the share of one legitimate child. Illustration (Note: based ni sa akong kopya sa illustration ni Maam kay mas dali sabton): Intestate Succession: Art 983 Estate=5,000,000 (5M) Assumption: 2 legitimate; 1 illegitimate child Distribution: legitimate children= 2M each Illegitimate child= 1M How? Use algebra Let x= 1 illegitimate child 2x= 1 legitimate child 2x + 2x + x = 5M 5x/5=5M/5 X=1M refer to the distribution above

Still intestate, but this time assuming: Estate= 14 M; 2 legitimate; 14 illegitimate child Distribution: Must follow testamentary succession. Why? Legitime of legitimate children will be impaired if computation of intestate succession will be followed. Look at the illustration below. Let x= 1 illegitimate child 2x= 1 legitimate child

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

193

2x + 2x + 10x = 14M 14x/14=14M/14 X=1M So if this would be the computation, distribution would be: 2 legitimate children= 2M each while each illegitimate child=1M? No, their legitimes are impaired. Now remember, even if it is legal or intestate succession, we have to preserve the legitimes of the compulsory heirs especially the legitimate children. Kanang mga legitime nga dili pwede magamay (Parents, spouse and legitimate children). Ang sa illegitimate children, pwede na siya magvary. So take note of that, even if it is a legal succession and we are not supposed to concern about the legitime, BUT IN ALL CASES, THE LEGITIME OF THE LEGITIMATE CHILDREN SHOULD NOT BE PREJUDICED. That is another protection given by law for the legitime of the legitimate children. So in the example, if magkulang na ang legitime sa legitimate children, we follow the computation of the testamentary succession. So the estate, divided by 2 and the remaining free portion shall be divided equally among the illegitimate children. So 7M divided by 10. Illustration: If Testate, the legitimes of 2 legitimate children would be: Estate: 14M/2 7M/2(no. of legitimate children) 1 legitimate child shall get 3.5 M or total of 7M 10 illegitimate children shall divide the remaining free portion.

Octobr 7, 2013 Part II

Actually we have the Family Code insofar as the succession to the estate of an adopted child is concerned. We will just discuss separately succession by an adopted child to the estate of an adopted child.

Lets proceed. Ok, I already explained to you that the order in legal succession. Who are these legal heirs. Now insofar as the ascending direct line is concerned, the computation again if only 1 class of heir in legal succession survives like: all illegitimate children or all legitimate children only, or legal spouse onlyor parents only, only the brothers or sisters, if there is only 1 class, the entire estate will go to them. Unlike in testamentary succession na legitimate children , surviving spouse and there is a qualification or but in legal succession kung 1 class lang jud ang nabilin, all of them will inerit the entire estate. For example in Art. 985, as we all know, legitimate parents and ascendants only inherit in the absence of legitimate children. Their inheritance is dependent on the absence of

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

194

legitimate children and descendants. In accordance with the rule that those which are in the descending line, are favored over those who are in the ascending line.

Now for example under Art. 986, only the father and ghe mother survive, all of them, the 2 of them shall get the entire estate dividng that in equal shares. Now for example, only the mother survived, but the grandparents in the paternal line also survived. Who are the heirs of the decedent? Katong giexplain nako before di ba, the mother excludes the grandparents. Under the rule on proximity. There is no right of representation in the ascending line. So all will go to the mother. If the mother also dies and survivors are grandparents of both sides, then we divide it by 2. to the paternal line and other to the maternal line. For example the grandmother in the maternal line died already, so grandfather na lang sa maternal line ang nabilin and kumpleto pa sa paternal side, how do you divide the estate by 3? NO, by 2. to the maternal and other half to the paternal. Kung kinsa man ang nabilin sa maternal siya na lang isa ang magdawat ato. That is what we had discussed before in testamentary succession.

SUBSECTION 3. Illegitimate Children Article 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased.

We now go to the illegitimate children. Of course, they are compulsory heirs and they are also legal heirs. Their share, if compared to legitimate children of the share of 1 legitimate child. Now, under Art. 988 as I mentioned, if there are no other relatives, only 1 class survives like only the illegitimate children survive, they shall succeed to the entire estate.

Article 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation.

So the same thing. For example: we have D(decedent) A,B,C are his children and A has X, B has Y and Z, and C has M. all of them are illegitimate children. So under Art. 989, assuming A predeceased the decedent, A is an illegitimate child, he predeceased his parent D and survived by his child X. of course, the child of A (si X) can represent him together with B and C.

Article 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

195

Ok, same example, assuming B, an illegitimate child of D, has children Y (illegitimate) and Z (legitimate). Buhi pa si A and C patay na si B. Can Y and Z represent B in the estate of the latter? Can Y represent? YES. Can Z represent? YES. Will it matter that Y is an illegitimate and Z is legitimate? NO, because Art. 990 says xxx to illegitimate children shall be transmitted upon their death to their descendants xxxthis means that the law does not distinguish a legitimate and an illegitimate descendant. It does not matter whether the descendant is legitimate or illegitimate.

Article 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children.

I already explained this before. Article 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

This article is very important. This is known as the IRON-BAR RULE in succession. This article sets a bar or separation between the legitimate and the illegitimate family because the law recognizes and presumes that there is a natural animosity the exists between the legitimate family and the illegitimate family. For one, the illegitimate family is the reminder of sin, a blemish broken in life. For the other side, they look the legitimate family with envy.

NOTE: Iron bar rule applies only in legal succession. In testamentary succession, if you institute the illegitimate sister or brother as an heir, then there is no problem. They can inherit. Only in legal succession. Ex: Decedent has 2 children: A (legitimate) and B (illegitimate). A has 2 children: P (legitimate) and Q (illegitimate) the same thing with B: R(legitimate) and S(illegitimate). 1. Can A and B inherit from the decedent? Yes, because the children, insofar as the children are concerned regardless whether legitimate or illegitimate, you are considered as a legal heir.

2. Assuming A and B both predeceased the decedent. The survivors are: P,Q,R,S. who would now be entitled to inherit from the decedent as represenatives of their parents? Can B, an illegitimate child be represented by X (his legitimate child)? YES. How about S? Yes. Art. 990.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

196

Lets go to A, can P represent A? YES because P is a legitimate granchild of the decedent. Can Q represent A? NO, because of the prohibition under Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother. Insofar as A and the decedent are concerned, they have a legitimate relationship. Decedent is a legitimate relative of A, the father of Q. thats the difference between Art. 992 and 993. NOTE: Insofar as R is concerned, dili mag-apply kay in the first place, insofar as B is concerned, B is his illegitimate relative. So S, even if he is illegitimate, he can represent B because the latter is an illegitimate relative of the decedent. Illegitimate gyapon. For example we have an illegitimate brother or sister, the same thing. If for example you are survived by legitimate sister and illegitimate brother, from your estate your illegitimate brother cannot inherit. Only the legitimate sister. Kung halimbawa, wala jud moy legitimate na heir tapos tanan nimong nahibilin kay mga illegitimate na brothers wala nay lain. Wala kay mga cousins na. can they inherit? No. To whom does it go? To the State.

DIAZ VS. IAC There was a grandparent and he has a legitimate child and his legitimate child predeceased him leaving his illegitimate child. Can the illegitimate child represent him? NO, because of the iron bar rule.

DELA MERCED VS. DELA MERCED We have the decedent (D) and then A and Q. A is a legitimate child of D. Q is an illegitimate child of A. now, the decedent died and then A aldo died. When the decedent died, his properties went to his legitimate child A. when A died survived by his illegitimate child, Q, is Q entitled to inherit considering that the properties composing the estate of A came from the decedent who is a legitimate child of his father. Can he inherit? Yes, because this is not a case of representation. He is not representing A. he will be inheriting in his own right as an heir of A, his father even if all the properties came from his grandfather, but thats not the one contemplated in Art. 992. So, magmatter ha kung kinsa ang unang namatay. Kay kung una namatay si A, in that example and followed by the decedent, then Q will not be able to inherit anything because ehe cannot be allowed to represent his father.

SUNTAY GR No. 183053 June 16, 2010

In this case, the grandparents had a legitimate son Emilio and then Emilio had children: Emilio II ( legitimate) and Emilio III (illegitimate). Here, Emilio I predeceased his parents. The grandmother died. Supposedly ang heir ni grandmother kay si grandpa and si Emilio I pero predeceased man siya. So

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

197

we now have Emilio II and Emilio III. Now the grandfather filed a petition to include Emilio III as a coadministrator in the estate of grandmother. Now, that petition was opposed on the ground that Emilio III is an illegitimate child of Emilio I, so he cannot represent his father in the succession in the estate of his grandmother because insofar as Emilio III is concerned, he is an illegitimate grandson, he cannot inherit by legal succession in this case. But in this particular case, since birth, Emilio III and his sister were taken in the home of their grandparents. They cared for these children like their own. They showered them with care and attention without any discrimination from the legitimate grandchildren. So, there is actually no animosity. Like a normal legitimate grandchild. And note that when the grandmother died, the grandfather adopted Emilio III. Will Art. 992 apply insofar as Emilio III is concerned? NO. 1. Because Art. 992 is premised on the presumption that there is a natural animosity between the legitimate family and the illegitimate family. But in this particular case, these children were treated like legitimate children by the grandparents. There is no discrimination whatsoever.

2. Emilio III was adopted. By adoption, he became not just a grandchild but a son by legal fiction of the grand father.

3. With respect to the petition questioned, he was just appointed as an administrator not to inherit from the estate of the grandmother. Being an administrator, you will not inherit. You will just administer the property.

NOTE: Halimbawa kung wala jud niy adoption dire na case, would you think the same gyapon ang answer sa SC? Dili ta kaingon kay wala naman tong animosity. In that case the SC said, na walay animosity so Art. 992 will not apply, but aside from that reasoning naa pay laing reasons gi-consider ang court.

Article 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or mother shall succeed to his entire estate; and if the child's filiation is duly proved as to both parents, who are both living, they shall inherit from him share and share alike.

Here, the survivors are the illegitimate parents. If youre an illegitimate child, your parents are your illegitimate parents. So if you dont have your own children and they will survive, they alone inherit the entire estate. If there are 2, then they share alike.

Article 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse who shall be entitled to the entire estate.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

198

Now, will the parents of an illegitimate child succeed together with the spouse of an illegitimate child? YES they can, but in default of the father or mother, then the spouse succeed to the entire estate of the decedent.

If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shall inherit one-half of the estate, and the latter the other half. If there are brothers and sisters surviving together with the spouse, will the spouse exclude the brothers and sisters? NO, the spouse will succeed together with the brothers and sisters.

How about illegitimate children surviving with the brotehr and sisters of the deceased? So the deceased had illegitmate children and brothers and sisters, so when he died, this person survived him. Who will inherit? Will the illegitimate child exclude the brothers and sisters of the decedent? YES. So, even if the brothers and sisters are legitimate but they are excluded by the presence of illegitimate children.

SUBSECTION 4. Surviving Spouse Heirs of Spouses Remedios R. Sandejas, et al., vs. Alex A. Lina G.R. February 5, 2001 No. 141634

This is just an illustration on how to compute the conjugal share and the hereditary share of the surviving spouse. If a person dies leaving properties co-owned with his ir her spouse, before you divide that to the heirs, liquidate first the conjugal partnership or absolute community. Kapag madeliver na nimo ang share sa spouse, only that share of the deceased spouse in the conjugal estate or absolute community shal be included in his estate. So, in the estateof the deceased spouse, naa ra gyapon share ang iyang surviving spouse. Article 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under article 1001.

Article 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

So we have the surviving spouse and the children. Di ba in testamentary succession, if the surviving spouse survives with one illegitimate child, ang legitimate child is of the estate ang spouse, 1/4 . if there are 2 or more legitimate children, ang legitimate child dividing to them in equal share then and wife is equivalent to 1 legitimate child. In legal succession, equal sharing. So kung a spouse and

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

199

1 legitimate child, they shall divide by 2. Kung spouse and 2 legitimate children then divide by 3 and so on. Equal ang share sa spouse with the legitimate children or decendant.

Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.

Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. (836a)

Article 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. (n)

Article 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall be entitled to the same share as that of a legitimate child. (n)

Actually, the spouse has the same share as 1 legitimate child. Ang illegitimate child has a share equivalent to of 1 legitimate child. In the computation, we just indicate the share of the spouse as to X, di ba? X= share of an illegitimate child, naay 2 ka children and naa spouse, so divide the entire estate. So, x is 1 illegitimate child ang uban kay 2x,2x,2x so thats the computation. BUT again remember, we just have to preserve the legitimes of the children and the spouse. So, if there are 10 illegitimate children, again we follow the computation in testamentary succession give the legitimes of the children and the spouse and whatever remains, give that to the illegitimate children.

Article 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth. (841a)

Article 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

200

Article 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles.

SUCCESSION October 9,2013 part 1 As I mentioned last time, you have to memorize the intestate shares of the legal heirs. Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth. Whereas in testamentary sux: to parents, to illegitimate child, and 1/8 to surviving spouse, so there is a free portion of 1/8. Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a) In testamentary sux: brothers and sisters do not get anything unless theyre instituted as heirs, legatees, or devisees. So if the spouse alone she gets , or 1/3, or . We discussed that before. Art. 1002. In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles. (n) Were talking here of the surviving spouse as t he guilty spouse or the one who gave cause to the legal separation. So the spouse is disqualified to inherit from the deceased. So there must be a decree of legal separation. If for example there is only a cause for legal separation, but there is no decree yet, the surviving spouse can still inherit. UNLESS the spouse who was entitled disinherited the guilty spouse, because giving cause to legal separation is also a ground for disinheritance. SUBSECTION 5. - Collateral Relatives Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (946a) So if there are no descendants, ascendants, illegitimate children, or a surviving spouse, that would be the time that the collateral relatives shall succeed to the entire estate. Among them you follow the rule of proximity, so those who are in the descending are favored over those who are in the ascending. Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. (947) Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the descendant's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. (948)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

201

In my example before: If the survivors are all brothers and sisters and there are also nephews and nieces, the brothers and sisters exclude the nephews and nieces. But if some of these brothers and sisters already predeceased the decedent and they left their own children who are, in relation to the decedent, are nephews and nieces, the nephews and nieces will inherit together with the brothers and sisters. The nephews and nieces inherit by right of representation of their deceased parents. Their inheritance is per stirpes meaning they only get what the person they are representing are entitled to receive. Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. (949) So full blood brothers and sisters inherit twice as much as half blood brothers and sisters, that is in legal succession. Remember that in testate sux, if full blood brothers and sisters are instituted together with half blood brothers and sisters, they will get equal shares. Because this is testate sux. The testator had the opportunity to specify their share if he wanted them to have different shares but because the institution is silent, it is presumed that they are equal. But in legal sux, there is no will, their share is 1:2. Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property. (950) Because they are all half blood, there is no distinction as to their sharing although they come from different lineages. Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood. (915) Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. (954a) So in the absence of brothers and sisters or nephews and nieces, other collateral relatives shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. AS LONG AS: (art 1010) Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line. (955a) As long as they do not go beyond the 5th degree in the collateral line of consanguinity. In so far as the direct line is concerned, theres a distinction whether ascending or descending. Take note that in the collateral line the right of representation is only up to nephews and nieces.

RIGHT TO INHERIT OF ADOPTED CHILDREN

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

202

Based on the ___ adoption act, adopted children have the same successional rights as adopted children. So theyre entitled to of the NHE. What if the adopted child survives with the parents of the adopter? Will the adopted child exclude the parents of the adopter? Diba legitimate children exclude the legitimate parents of the decedent. Del Rosario vs Cunanan SC gave more weight to the blood relationship between the adopter and his parents. So in that case the SC treated the adopted child as an illegitimate child. So how will they divide the estate? In legal sux, to the parents, to the illegitimate children. So all of them will inherit. Because the fiction of law only exists between the adopter and the adopted child. So that should not affect the rights of the parents themselves to inherit from their children. AN ADOPTED CHILD CANNOT REPRESENT THE ADOPTER because the fiction of law created by adoption exists only between the adopted and the adopter. There is no relationship between the parents of the adopter and the adopted. UNLESS the adopted is actually a relative (pwede man na diba? Mag adopt ka ug relative?) so he can represent not because of adoption but because of blood relationship. SUCCESSION TO THE ESTATE OF AN ADOPTED CHILD Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters. (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. Now take note in all cases of legal sux, Generally, there are 2 classes of heirs that if they survive they concur, they shall divide the estate in equal shares. Like parents and spouse, spouse and legitimate children (except when legitimate children survive with illegitimate children- legit inherit twice as much as the illegit). SUBSECTION 6. - The State

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

203

Art. 1011. In default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. (956a) So the state is also a legal heir of the decedent. That means that when the decedent dies without leaving any heirs (relatives w/in the 5th degree of consanguinity in the collateral line or any relative in the direct line whether ascending or descending) . CADUCIARY RIGHT the right of the state to succeed to the estate of a person who died without a will and without heirs. The right of a state to claim through estate proceedings the property of a decedent who are not survived by any heir.

NB: without heir and without a will. If there is a will, the estate will be divided using the will, it will not go to the state. Art. 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. (958a) That is the RULE 91 ROC - RULE ON ESCHEAT PROCEEDING. ESCHEAT it is the process by which the state acquires the properties of a decedent who died intestate and without ___. Art. 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. (956a) So take note of how the properties instituted in favor of the state is shall be distributed. personal property - shall be assigned to the municipality or city where the deceased last resided in the Philippines real estate - to the municipalities or cities, respectively, in which the same is situated. because you cannot uproot these real estate If the deceased never resided in the Philippines - the whole estate shall be assigned to the respective municipalities or cities where the same is located.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

204

FOR WHOS BENEFIT - public schools, and public charitable institutions and centers, in such municipalities or cities. Art. 1014. If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within five years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. (n) If after the escheat of the properties in favor of the state and there appears an heir who claims that he should be entitled to the property he can claim that provided he files a claim within five years from the date the property was delivered to the State.

PARTIAL INTESTACY There is a will but the will does not dispose of the entire estate. Example: NHE=120K. Legacy 10K in favor of X (friend). Heirs: Parents, Surviving Spouse, Illegitimate children. Diba in legal sux parents , SS , IC . Where do we deduct the 10K? Remember, even if legal sux, we have to preserve the legitime of the compulsory heirs. They cannot be given anything less than their legitime even if legal sux. So if we deduct first the 10K, we will make the estate 110K, therefore we would now be distributing less than their legitime. So you do not deduct the legacy first. How? We charge the legacy/devise to the share of the legal heir who gets more in legal sux than in testamentary sux. K pila gani ilang legitime? If testamentary succession parents 1/2, spouse 1.8, illegitimate children . Kinsa karon ang nakadawat ug more than his/her legitime? It is the spouse. So sa iyaha nato icharge ang legacy kay naa pa xay allowance, pwede pa xa kuhaan na dili pa mabawasan iyang legitime. Estate = 120K, legitime: parents 60K, Spouse 15K, Illegit child 30K. Sa parents and child, their legal shares are the same as their legitimes, so dili na sila pwede bawasan. How much can we deduct from the spouse? Actually, up to 15K. pero ang legacy 10K lang man, so we charge the legacy of 10K to the spouse. So now we distribute. Ang spouse, supposed to be iyang legal share = 30K, but we charge to her the legacy of 10K. so iya nlng madawat is 20K which is still over and above her legitime. Kung halimbawa ang legacy kay 15K, pwede gihapon nato xa icharge sa spouse. Kung ang legacy is 30K, ang pwede lang icharge kay 15K kay para dili maprejudice iyang legitime. So that is how we compute in case of partial intestacy. Charge the legacy/devise to the legal share of the heir who gets more in legal succession than in testamentary succession.

CHAPTER 4 PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSIONS SECTION 1. - Right of Accretion Art. 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

205

receive his share, or who died before the testator, is added or incorporated to that of his coheirs, co-devisees, or co-legatees. (n) The concept of accretion is that there is: 3 REQUISITES UNITY OF OBJECT - Meaning there is only inheritance, legacy, or devise. PLURALITY OF SUBJECT 2 or more heirs are instituted to the same one inheritance. THERE IS A VACANT PORTION meaning one of them cannot inherit.

For example a house. what will happen to the share of A? it will accrue to B. all those 3 requisites must be present unity of object, plurality of subject, and vacancy. Examples: No unity of object. A sa 1st floor, B sa 2nd floor. A dies. To whom will the share of A go? There is no accretion. There is no unity of object. There is an earmarking of the respective share of A and B although its the same house. Gispecify na sa testator asa ang maadto kay A, asa ang maadto kay B. So the concept of accretion again is subject to the priorities as we discussed before. Katong ISRAI. Insitution, Substitution, Representation, Accretion, and Intestate Succession. Art. 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. So these are the requisites of accretion as I mentioned before. Art. 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. So for example the testator said in his will na I devise to A of my land, and to X of the same land. Is there earmarking if you say to A and to X? No. Accretion is possible in that case. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. You are not making any one of them the exclusive owner of a determinate portion of the property. In every sq. m. of the property A owns and X owns 3/4 . so dili ka maka ingon na akua ning diri imo nang dira. You cannot claim a specific portion.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

206

BUT! If you say kay A, kay B. Kay A katong naay kasilyas dapit, kay B katong naay garden. In that case there is no accretion because there is already earmarking. You are now specifying which portion goes to A which portion goes to B. In case of money or fungible goods. Example: I hereby bequeath to A and B my money, and giving of my cash to A and of my cash to B. there is accretion because there is no earmarking, you are just specifying their share. my cash in metrobank shall go to A, my cash in BPI shall go to B NO ACCRETION because there is now earmarking. You are making each heir an owner of a specific portion of the property. Art. 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. Remember this ha! The concept of accretion applies only to testamentary succession and legal succession. Not all vacancy in testamentary succession or legal succession will there be accretion. What are those instances of vacancy when there can be accretion? In testamentary succession: there can be accretion if the vacancy is caused by Predeceased Incapacity Repudiation If the Suspensive condition is not fulfilled There is failure to identify one particular heir or the institution becomes ineffective.

October 9, part 2 SUCCESSION October 19, 2013 MAKE UP CLASS Part 1 of Part 4

Ok, last meeting we discussed about the law on accretion. We now proceed to capacity to succeed by will or by testacy. When we say testamentary capacity, we are referring to the qualifications of the testator to execute a will. Now under the capacity to succeed, we are referring tto the qualifications of the heir, legatee or devisee to inherit either by legal succession or testamentary succession.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

207

Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. So what law governs the capacity to succeed whether an heir, legatee or devisee? The national law of the decedent. Is this familiar to you? We discussed that before under Article 16. Di ba under Art. 16, what matters are governed by the national law of the decedent? We have the order of succession, amount of successional rights and the intrinsic validity of the testatmentary provisions. In relation to that we have the capacity to succeed. This was asked before in the bar exam: what matters are governed by the national law of the decedent? We have four those that I mentioned. Ok, so not the law of the place of execution, not where he dies but the national law of the decedent.

Now, who can inherit in general? When it comes to testamentary succession, of couse we have natural persons even those who are still conceived subject to the conditions under Art. 40-41 of the Civil Code. Can a juridical person inherit? Do they have the capacity to succeed? It depends. In the testamentary succession, if they are allowed by the law of creation by charter to inherit, then they can inherit. Even as we have discussed before, a class: the poor, the soul, na-discuss na ba nako ang the institution of the soul? Ay wala pa diay, but they can be instituted but in legal succession, of course, notnatural persons have the capacity to succeed, juridical persons they cannot inherit by legal succession but the State can inherit because the State is also a legal heir if there are no other relatives of the decedent who died intestate. Insane persons, do they have the capacity to succeed? Insane persons cannot execute wills. They do not have testamentary capacity. Can they inherit by will? There is no prohibition.

Article 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession. The general rule is capacity. So as long as they are not disqualified or incapacitated by law, they can inherit. Persons not incapacitated by law xxx, again, when it comes to succession by will, this may refer to natural or juridical persons. In legal succession, this may refer to natural persons and the State.

Article 1025. In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. We already discuss this. Insofar as natural persons are concerned, they must be living or at least conceived at the time when succession opens, meaning at the time of death. so the point in time is the time of death because that is when the transmission happens. So even conceived, as long as the conditions under Art. 40-41 are complied with.

What are the kinds of incapacity? We have 2 kinds of incapacity:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

208

1. Absolute incapacity The heir cannot inherit from anybody under all circumstances. He cannot inherit. Ex: o Article 1026 (2).All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. So, if their charter prohibits them from inheriting, they cannot inherit absolutely.

o Article 1027 (6) Individuals, associations and corporations not permitted by law to inherit.

o Those who lack juridical personality The abortive infant Those who have an intrauteline life of less than 7 months and died within 24 hours from the time of birth.

2. Relative Incapacity They cannot inheit only from certain persons but with the other persons, they can inherit. Or they cannot inherit certain properties. Some of the properties may be inherited but some are not. So relative ang ilahang incapacity. 3 classifications: o Incapacity by reason of possible undue influence -here, by reason of the position, of the person or his relationship to the testator, he is considered to be incapacitated because he is presumed to have exercised undue influence upon the testator. When you say there is undue influence, meaning even the testator instituted this person, that institution is not voluntary. That must be a reason of undue influence. Take note that the disqualifications under Art. 1027 shall apply only to testamentary succession. If it is testamentary succession, it will only apply to the free portion because the undue influence can only happen when the testator by his will institutes the heir. In legal succession, there is no will. So even if there was undue influence, but the right of the heir to inherit is by virtue of the provision of law. Not because they unduly influecne the decedent. Again, this will only apply to testamentary succession and only to the free portion. Article 1027. The following are incapable of succeeding:

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

209

(1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; > this happens when the testator is suffering from an illness. And it should be the last illness because that illness should be the reason of which he died or the illness which subsisted immediately prior to his death. it should be graveone which there is a posiblity of death because if the testaor was just having a cough or sipon at that time nagconfess siya and then subsequently instituted the heir who is the priest and then he died pagkahuman niya ug himo sa will in a car accident. His last illness was his cough or his sipon and he made a confession. Under this circumstance, the testator would not be thinking that he will die. Kung naa ka sa sip-on, do you think mamatay na ka? So this is not what is contemplated here. It must be one which there is a great possibility of death. grave illness like naa siyay cancer, stage 4 na siya, naghingalo na siya, and he confessed. Iyang last confession and after his confession, he made a will and he instituted that priest, the law presumes that during his confession, there was undue influence. Maybe the priest said, sir, hapit naman jud ka mamatay noh, daghan kaayo kag properties. Mas makaayo sa imong kalag kung muhatag ka sa simbahan bisan lang or katong 1 hectare nimo sa Puan para makatabang pud sa imong kalag. Because of that, di ba kung hapit na ka mamatay, di naman jud ka maghuna2 sa imong properties imong huna-hunaon jud imong kalag so you instuted the church, the priest or the order, the law says there is undue influence. So that institution, devise or legacy would be void. It cannot be given effect. Take note: during the last illness and after the confession because it is presumed that the undue influence took place during the confession. If the legacy was given or the will is made even before the confession, there is no undue influence because wala pa man nagstoryahanay si father ug ang testator. so, thats not by reason of undue influence.

It is not even necessary that the testator should really die from that illness. Like for example, he was sick, he has a cancer, he confessed and then he made the will and then he died mga 2 days after because na hit ad run siya, he did not die because of cancer but that was the last illness that existed just before his death. pero halimbawa: he had cancer and then he confessed and he made a will and then after 10 years he died, would that institution be valid? Yes, it can be given effect because of the time. You have to consider the time between the institution of the will and the death. if it was 10 years pa before he died, there was a sufficient time or opportunity for him to cancel or change his will if there was undue influence but he did not change his will. It cannot be presumed that the institution was by reason of undue influence.

What if the priest was the son of the testator and he gave the priest a house and lot? Will the priest be disqualified? Insofar as his legitimes is concerned, that would be given to him because the law mandates that the legitimes

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

210

should be given regardless of the will of the testator; if that heir who was also the priest was given more than his legitime, over and above his legitime, he is not qualified to receive that which exceeds his legitime. Ang iyahang legitime lang ang iyahang madawat.

If the priest was appointed as executor or administrator, would he be diqualified by reason of this article? No, because the appointment is not an institution he is not given a testamentary benefit. He was just made an executor or administrator.

(2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong;

(3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; Take note that this disqualification will apply only once the guardianship subsists. The law says xxxbefore the final accounts of the guardianship have been approvedxxx because again when you are a guardian and you have a ward, the law presumes that you exercised moral ascendancy over your ward and if there is testamentary benefit given in your favor, that may be because of the undue influence that you exercised over the ward but if the final accounts have already been approved, so the guardianship has already extinguished and then the former ward made a testamentary succession in favor of the former guardian, that would be valid. Only the time when there is guardianship and before the final accounts have been approved.

Take note here that if the guardian is the ascendant, descendant, brother , sister or spouse of the ward, the disposition would be valid because it is presumed that if the guardian is also those that I mentioned, the disposition was made because of the affection or the relationship. Not because of the undue influence. Take note that this exception does not apply to the priest. Sa guardian lang na siya.

(4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children;

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

211

I think this is familiar to you because theres a similar provision under Article 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. For example: an attesting witness is also given a legacy or devise and he is also made as an heir. What is the consequence of this to the will? Will this invalidate the will? No because he is qualified to become a witness but what is the consequence of this? The person who is at the same time the witness and the devisee, legacy or an heir, is disqualified to accept the inheritance, legacy or devise.

Take note also that in Art. 823, of there are more than 3 witnesses to the will so there are 4 witnesses, si A, B, C and D. D witness at the same time legatee. In this case, D will now be able to receive the legacy because his presence as a witness is no longer required for validity of the will, so there is no more conflict of interest insofar as he is concerned. Kay kung 3 lang mo, there will be a conflict of interest because you are an heir, you would like the will to be upheld because you would get soething from the will and because of the that if you ar ethe witness, you will really say that the will is valid, but if there are 4 witnesses, even if you will testify against or in favor of the will, that will not matter because there are 3 other persons who can also testify.

(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; Again, because they ar in the position to unduly influence the testator. the law says xxx who took care of the testator during his last illness meaning the care given is continuous over a period of time. If for example the testator just went to the doctor for a check up 1 day lang and then he instituted that doctor as an heir of his will. Will that doctor be disqualified? No because this will jot fall under this ground. Isolated incident ni. Dapat continuous ang service na gihatag katong siya jud ang nag-assist or nag-attend sa imoha.

The law mentions druggists, pharmacists ni sila.

(6) Individuals, associations and corporations not permitted by law to inherit.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

212

NOTE: the disqualification under this article would apply to testamentary succession and the free portion.

What if these persons were able to prove or present evidence, that they in fact did not exercise undue influence? Would that rebut the presumption? The presumption is conclusive. Thus, no evidence to the contrary would be accepted.

o Incapacity by reason of public policy or morality Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. Article 739. The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; If we translate this ground for disqualification here, no need here for criminal conviction, only preponderance of evidence is needed.

Take note ha, in disinheritance di ba with conviction? But here, even if there is no disinheritance, they cannot still inherit and the guilt again can be proven by mere preponderance of evidence.

(2) Those made between persons found guilty of the same criminal offense, in consideration thereof; So, the disposition would be by reason of criminal offense and not for any other reason.

(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. So if you gave to him to the judge and he was your best friend, then that would be valid not because of his office but because you are a litigant and you have a pending case, you give a car to the judge, by will, that would be disallowed. (guys, mao jud ni ang actual na gisulti ni maam pero murag niungot siya after niya ni gisulti seems na conflicting iyang explanation, pero kamo na lang mag-discern, wala kayo ni naclarify)

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

213

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.

So, they are not allowed because this is against our norms or morality.

o Incapacity by reason of unworthiness Article 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent.

Article 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in article 1013.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

214

So, this is what we call the institution of the soul. The testator left a certain amount of his property for prayers and pious works for the benefit of his soul. Is this valid? Yes, under Art. 1029. If that happens who shall dispose of the property? The executor shall deliver to the church and to the State.

Article 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.

The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality.

So, we have the institution of the poor. That is under Art. 1030. If that is the tenor of the disposition, I hereby give of my property to the poor Who are these persons? Who will be considered as poor? The law says limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.

Article 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void.

For example the testator had a mistress and he wanted to give a house and lot to the mistress, but he cannot do it by will, he cannot do it by omission because that would be void, can he be instead denominate it as a sale? Deed of sale to his mistress when in fact it is not a sale? The law says it is void even if it is made in under the guise of an onerous contract, or ihatag sa niya sa iyang bestfriend, ang iyang best friend ang muhatag sa mistress, still it is void. If it can be proven that the best friend was just used as an intermediary and intended to the mistress, that disposition shall not be given effect.

Article 1031, cannot apply to Art. 1032. The latter would deal on the incapacity by reason of unworthiness. So, because of the act committed of that heir against the testator even if there is no disinheritance, the persons or offenders here are disqualified. They cannot inherit. For example the

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

215

son attempted against the life of the testator and he was convicted. That is a ground for disinheritance but the testator did not disinherit the son. The son still cannot inherit because he is disqualified under the law to inherit.

What if during his lifetime, the testator sold the land to the son or gave the land to his friends so that his friend can give it to his son? Can that disposition be allowed? Yes, because even the testator himself under Art. 1032 can give directly to the son. By giving to the son, he has directly to the son, he has forgiven his sin and therefore the son is qualified. Thus, Art. 1031 will not apply to Art. 1032. October 19 part 2 and 3

October 19, 2013 Makeup class part4/4 It will be charged to the free portion. Meaning, aside from that donation of P200K, the heir will still receive his legitime. In that case na duha ka anak na legitimate children, tagaan silag P375K each. Ang lesion na P200k, It will be charged to the free portion. So P750K-P200K = P550K free portion. Unless, if dako kaayo xa na it will impair the legitime of the other child, so ireduce xa para macomplete ang legitime sa isa. Example: Free portion P750K, donation is 1M. In that case, it is inofficious by P250K because if the value of the estate is still 1.5M, P500K nlng ang mabilin sa free portion, kulang na xa para sa isa ka heir. So ibalik nimo ang P250K para macomplete ang legitime sa isa ka compulsory heir. Actually naa gihapoy collation by mathematical process but theres no collation by equitation(?) because it can be charged to the free portion. Art. 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. Actually were talking here of legacies and devises. They are not subject to collation because they have not even distributed the legacies and devises before the death of the testator. And of course, the legitime shall not be impaired. Meaning, if hes legacies and devises exceed the free portion, they shall be reduced accordingly. How about donations made to strangers? Because the law does not mention that. Is it subject to collation? Vda de Tupas vs RTC Negros occidental Here Tupas foundation incorporated was a donee of a property belonging to the testator. It was made during the lifetime of the testator. Would this be subject to collation? SC said YES. A person's prerogative to make donations is subject to certain limitations, one of which is that he cannot give by donation more than he can give by will (Art. 752, Civil Code). If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the extent of such excess, though without prejudice to its taking effect in the donor's lifetime or the donee's appropriating the fruits of the thing donated (Art. 771, Civil Code). Such a donation is, moreover, collationable that is, its value is imputable into the hereditary estate of the donor at the tune of his death for the purpose of determining the legitime of the forced or compulsory

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

216

heirs and the freely disposable portion of the estate. This is true as well of donations to strangers as of gifts to compulsory heirs, although the language of Article 1061 of the Civil Code would seem to limit collation to the latter class of donations. So it is subject to collation. Meaning, upon the death of the testator or decedent, the value of the donation will be added back to the estate. So we have collation as a mathematical process. And that donation shall be charged to the free portion because thats a donation made not to a compulsory heir. Procedure of computing NET ESTATE: (1) determination of the value of the property which remains at the time of the testator's death; (2) determination of the obligations, debts, and charges which have to be paid out or deducted from the value of the property thus left; (3) the determination of the difference between the assets and the liabilities, giving rise to the hereditary estate; (4) the addition to the net value thus found, of the value, at the time they were made, of donations subject to collation; and (5) the determination of the amount of the legitimes by getting from the total thus found the portion that the law provides as the legitime of each respective compulsory heir.

What if the testator said that the donation is IRREVOCABLE? Is that equivalent to saying that the donation is not subject to collation? No. Buhay De Roma vs CA The donation was denominated as "sa pamamagitan ng pagbibigay na di na mababawing muli" meaning irrevocable. The phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the donation as "irrevocable" and should not be construed as an express prohibition against collation. The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061. The intention to exempt from collation should be expressed plainly and unequivocally as an exception to the general rule announced in Article 1062. Absent such a clear indication of that intention, we apply not the exception but the rule, which is categorical enough. Anything less than such express prohibition will not suffice under the clear language of Article 1062. The suggestion that there was an implied prohibition because the properties donated were imputable to the free portion of the decedent's estate merits little consideration. Imputation is not the question here, nor is it claimed that the disputed donation is officious The sole issue is whether or not there was an express prohibition to collate, and we see none. So take not that when you say IRREVOCABLE meaning it cannot be taken back by the donor. But when you say COLLATION thats a totally different banana (haha! :P) thats a different issue. Thats a mandate by law. That is not in accordance with the will of the donor. So we really have to add back

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

217

the value of the donation to determine the value of the estate to prevent the circumvention of the law on legitime. Whether revocable or irrevocable, it is still subject to collation. If the testator says it is not subject to collation, the value woul d still be added back to the estate, only that it will not be considered as an advance to the legitime of the compulsory heir. Art. 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property. They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. Example: drawing2x si maam So we have Testator, grandchildren A, B, C. During his lifetime, testator donated to A 200K. Estate 1M. so the value of the net estate at the time of death of the testator would be 1.2M. for example A predeceased the Testator, so A will now be represented by X and Y (children of A). How to divide: Legitime 600K/ 3 = 200K each child ABC. But their father A already received the 200K. so X and Y cannot receive anymore because they already received that in advance. So even if the donation was given to their father, it will still be subject to collation even if they inherit by representation. In addition, They shall also bring to collation all that they may have received from the decedent during his lifetime So even the donations which they receive shall be subject to collation and charged to their legitime unless the testator provides otherwise. Art. 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. Example: So here X and Y are children of A. testator died, the survivors are ABC. So legitime is 200K each. What if the testator donated during his lifetime to X and Y? Would A collate that? Would that be considered as an advance to the legitime of A? No. because in the first place, dili man gani heir ni testator si X ug Y. because under the rule on proximity those who are near exclude those who are far. So we will only consider those donations made to ABC but not to their children. Different sa previous article because the representative inherit, so they will bring to collation all that they received and all that their parents have received because they represent their parents. So that is the difference. Art. 1066. Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. Example: So here the testator donated to the spouse of A. testator died, his heirs are ABC. Will A bring to collation what his spouse received? No, because hes a separate person from his spouse. The donation was not made to him but to his spouse. The donation was made to his spouse not to A. the donation made to his spouse shall be charged to the free portion and not considered as an advance to the legitime of A.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

218

If jointly gihatag sa ila ang donation, then ang half na share ni A would be considered an advance to his legitime and he has to collate that. Art. 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. So education this should only refer to up to high school. Medical attendance so naoperahan ka, gigastosan ka sa imong parents and gipakaon ka. so gikwenta sa imong parents imong gatas since tung bata pa ka pati imong diapers den o anak ha advance na to your legitime! pwede ba na? No. it is not subject to collation, even the value of those expenses will not be added back to the value of the estate because these are obligations of the parents to their children. Not included in collation. Customary gifts birthday gifts, jewelry ginagmay, not subject to collation. Art. 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. This is what we call OPTIONAL COLLATION expenses for professional, vocational or other career. So this is education after high school. GR: professional, vocational or other career are not subject to collation. EX: if your parents provide otherwise. So they can say na subject to collation. Ikaw anak imong pagskwela nimo sa lawschool icollate nako na xa as advance to your legitime, since 10 years man ka nag lawschool, wala na kay madawat! Actually ibalik pa nimo ang sobra anak kay na impair na nimo ang legitime sa imong ubang igsuon! hahahaha! agay! If they do that, dili pud tanan imong iuli. Because imong expenses if nagpuyo lang ka sa inyong balay, wala ka nag lawschool, magkaon man gihapon ka diba? So kana xa pwede xa ideduct didto sa value sa imong iuli. Optional collation added to the value of the estate to determine the hereditary estate and charged to the legitime of the compulsory heir if so directed by the testator. Art. 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation. So remember ha na not only donations are subject to collation. Anything given gratuitously by the parents, as long as not excluded by law, are subject to collation. Such as debts naay utang gibayaran, election expenses, fines - nakulong gipyansahan, subject to collation. Art. 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. General rule: when it is jewelry, clothing, and outfit not subject to collation. Exception: if their value exceed one-tenth of the free portion. Example: Free portion 1M, 10% is 100K. so if imong gown kay 200K, ang excess na 100K kay considered na na advance to your legitime.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

219

Halimbawa gihatagan kag mga PLATO? They will not be part of the collation, they are considered as customary gifts under Art. 1067, not subject to collation. What if HOUSE AND LOT during your wedding? That is subject to collation. They are not mentioned under jewelry, clothing and outfit. They are considered ordinary donations which is subject to collation. BUT if ana ka ka rich (murag si Napoles) na pag mag birthday, binyag, manghatag na kag house and lot, then thats considered as customary gifts under Art. 1067. It dep ends on your status. Art. 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed. Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. Now here, if the donations are subject to collation, what shall be the value added back to the estate? It is the value at the time of the donation. So if the value has increased/decreased, sa donee na to xa na risk. Art. 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance. Example: If the testator, jointly with his wife, made a donation of 200K to A. if namatay si testator, only of that or 100K is added back to his estate. So ang legitime ni A from his father considered as advance is only 100K. pagkaamatay sa mother, the other 100K mao napud tong iadd back sa estate of the mother as an advance to A. Art. 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. So theres a donation inter vivos to his son A. considered as an advance to the legitime of A. If that is a parcel of land, in the distribution of the estate, as much as possible to assure equality, si B ug C hatagan pud ug land. Art. 1074. Should the provisions of the preceding article be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction. If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. IF IMMOVABLE: So kung ang estate has no land, the law says that they should receive its equivalent in cash or securities. If walay cash or securities, so much of the other property as may be necessary shall be sold at public auction. IF MOVABLE: If ang gihatag kay A kay Car, supposedly ang ihatag kay B ug C kay car. Kung wala nay lain car, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

220

Art. 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened. For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. This will apply only if there is a need of reduction or abatement. Because if wala na impair ang legitimes, we will only consider its value at the time of donation. Pero if there is a need to return kay inofficious xa, what happens to the fruits and interest of the property? General Rule: The fruits and interest of the property subject to collation shall pertain to the estate from the day on which the succession is opened. (At the time of death) So the donee should return the property and the fruits and interest of the property which accrued from the time of death. So katong nakuha niya na fruits and interest during the lifetime of the testator, wala na toy apil. Art. 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value. The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition if effected. As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. This will only apply if there is a need to return because if there is no need to return, there is no need for reimbursements. What expenses can be reimbursed to the donee who has to collate: necessary expenses improvements - which have increased the value of the property, and which exist at the time the partition if effected expenses for mere pleasure - no reimbursement is due him for them; he has, however, the right to remove them

Art. 1077. Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. So during the distribution of the estate theres a controversy whether or not certain things are subject to collation, the distribution will still continue but they will just furnish a security for the property in question.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

221

So, as we mentioned before, donation made inter vivos to the heirs or strangers are subject to collation. Donations made to children advances to their legitime. Donations made to strangers charged to the free portion. How about DONATIONS of the testator to his SPOUSE? The donation would be VOID. So because it is void, its value will not leave the estate, therefore there is no need for collation. What if dili pa sila asawa nag DONATE xa sa iyang FUTURE SPOUSE then nahimo niyang wife? Would that be valid? Yes. it will be subject to collation. That would be considered as a donation made to strangers charged to the free portion. SUCCESSION OCTOBER 21 First 17 minutes

SECTION Partition and Distribution of the Estate SUBSECTION 1. Partition

Article 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. So, upon the death of the testator, if there are several heirs and there is still no distribution, there is now a state of co-ownership among the co-owners. Ok, so what is the consequence if, there is still co-ownership? Each heir is not considered an absolute owner of any portion of the property. even if you say that there are 4 heirs and each of them owns 1/4 , but each of them cannot claim a specific portion or exclusively own for a certain portion of the property. so, for each and every square meter of the property, they are co-owners, each. That is why, a conveyance, donation, disposition, sale made by a co-owner of a specific portion of the property prior partition is void. If you sell 1hectare assuming that the land is 4 hectares, you sell 1 hectare and you specify the meets and bounds, the technical description, that is null and void, because again there is no partition. So you cannot claim an exclusive ownership over a specific portion. But if affter the partition, that portion is allocated to the one who sold, then that sale now becomes valid. Ok, it cannot later on question the sale on the ground that it is void. Article 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. So, the laws says that the thing itself may be divided or its value, for example it is not practicable, you divide a thing, like a house, you cannot divide it physically, so pwede its value. Let us go to specific cases

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

222

How is partition done? Is there a specific formality or requirement under the law on how it should be done? Actually when you say partition, even the testator himself can partition the thing during his lifetime. So that is what we call partition inter vivos. Partition may also be done by his heirs after the death of the decedent or testator. so, is there a specific form? NONE. It can be done orally, in writing, private or public document, but we also have specific rules under the Rules of Court. For example, there are several heirs and there are no debts and they can agree among themselves how to partition, so they can just do that by a document. They dont have to go to court to partitio n the property. they can execute EXTRAJUDICIAL PARTITION OF THE ESTATE. So that is just in a public document notarized by the notary public. If there is only 1 heir, he/she can just execute an AFFIDAVIT OF SELF ADJUDICATION, adjudicating to himself or herself the entire estate. If the parties cannot agree as to ow to partition the property, then they will have to go to court. Because it will now be the court who will decide how to partition. That is what we call, JUDICIAL PARTITION. So, in that kind of partition, there is an administrator/ executor who will submit a ____ of partition and that would have to be approved by the court. Usually pag di na magkasinabot ang parties, pwede na lang na raffling. I-raffle2 kung pila imong share. Unsa imong share, unsa imong makuha. That is how partition is done.

Now, lets go back to an EXTRAJUDICIAL PARTITION. Onw which is done by the heirs themselves. When you extrajudicially partition a property, one requirement is there should be no will. Rule 74 Sec. 1 of the Rules of Court. What are the conditions? The decedent left no will The decedent left no debts or if there were debts left, they were paid. The heirs are all of age or if there are minors, that latter are represented by their judicial guardian or legal representatives. The partition was made by means of a public instrument or affidavit duly filed in the register of deeds. So, it requires that the extrajudicial partition should be written and acknowledge before the notary public because its public document and filed with the register of deed It has to be published in a newspaper of general circulation for 3 consecutive weeks.

In the case of HEIRS OF TEVES vs. CA, this involves an extrajudicial partition. Now, the question is what if by extrajudicial partition is not made in a public instrument and not registered in the register of deeds? Will it be valid? YES, even an oral partition is valid. So, what about Rule 74 Sec. 1 of the Rules of Court? According to the SC, this is only required, if there are creditors affected because this will now serve as a protection of the creditors because they should be apprised that the heirs are now dividing the property. and this is also for the benefit for the heirs themselves to protect them against the time ____ of the creditors because there is a certain period which is called the STATUTE OF MANIFESTNG*** that the creditors have to present their case in court otherwise, the claim will be barred. If there are no creditors affected, then the partition, even if orally mad ecan be respected and it is valid. It does not affect its exclusive validity when there are no creditors or the rights of the creditors are not affected.

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

223

Article 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. So here we are talking of partition made by the testator or the decedent himself. When you say act inter vivos, there is no particular requirement as to how it should be done. As discussed in the case of JLT Agro incorporated vs. Balansag GR: 141882 March 11, 2005 The SC said, that if the partition is made by an act inter vivos, no formalities are prescribed by the Civil Code. The partition will of course be effective only after death. it does not necessarily require the formalities of the will fo rafter all it is not the partition that is the mode of acquiring ownership. Neither will or formalities of a donation be required since donation will not be the mode of acquiring ownership hereafter death. since nobody has remain, it follows that the mode will be succession or intestate succession. Besides, the partition is limited to physical determination of the part to be given to the heir. So, there is no particular formalities. Although it can be done in a will, but it can also be done in another way. Now, with respect to future things, for example, the testator or the decedent is still alive, so he makes the partition of the property and he signed the partition and also his heirs. Now, there is a general rule that contacts upon future things may be entered into for as long as they are not outside the commerce of men. Contracts which involve future things can be valid. So future object or thing may be an object of a contract. Exception: under the new civil code, no contract may be entered into with respect to future inheritance because again as we discussed before, the rights of the heir to their inheritance will only be inchoate or expectancy. So any contract with respect to their future inheritance will be void. An exception to the exception is the partition inter vivos referred to in Art. 1080. Because even if the decedent is still alive he can already make a partition of his property and he can make that as an agreement among his heirs. It is valid again because the partition even if done during his lifetime will not be effective then, it will not cause the transfer of ownership to the heirs during the execution. It will only transfer ownership to the heirs upon the death of the decedent. The mode of acquisition or the mode of transfer of ownership would not be the partition but succession. Again, this is not covered under the exception to the general rule that no contract will be entered into on future inheritance. Article 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs. The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatary, in such

SUCCESSION TSN 1st Exam Coverage Based on the Lectures of Atty. Leilanie Espejo

224

case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. So here, we are just talking of the right of the decedent to entrust to another person the power to make a partition of his property. that can be entrusted to another person any person. In that case, the person is not making a testamentary disposition. He will just be making a partition. Article 1082. Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. Again, this supports our discussion that theres no particular form for partition. As long as it puts an end to their co-ownership. Example: Lucillo vs. Yap Here, there was no specific document executed by the heirs, but they already possessed certain portions of the estate. They made improvements on their portions which they possessed and they declared these portions which they possessed in their names for taxation purposes. So wala silay document na gi-execute but the SC said, these acts amount already to partition. This is evidence of the fact that they already made an agreement before an oral or verbal partition of their property. so these are indications that the heirs of Lucillo agreed to divide the subject estate among themselves for why should they: Contruct improvements thereon Pay the taxes therefor and Exercise acts of ownership If they did not firmly believe that the property was theirs.

-End*ang last part kay pag.tra