Succession

November 13, 2014

Mac Sinsona
Do not confuse preterition and disinheritance. In both cases, there is a will.
In preterition, however, an heir is just omitted. Even if he is mentioned in the will,
named as one of the children, but he is not given anything by way of institution, legacy
or devise. So, there is preterition.
When you say disinheritance, he is really mentioned as being deprived of his legitime.
"Dili na nako ni siya iapil, wa ni siyay labot, I disinherit him." There should be a
mention that the heir is being deprived of his legitime or excluded from the inheritance.
You should be able to know because the consequences of the two are different.
In preterition, the entire institution of heirs is annulled, except again of legacies and
devises.
Sa disinheritance, if it is ineffective, the institution of heirs is also annulled, but not total.
It will only be to the extent that the legitime of the invalidly disinherited heir is
prejudiced. Just remember in invalid disinheritance, ihatag lang nato ang legitime sa
invalidly disinherited heir. All the rest can be given effect. Even an institution of a
voluntary heir can be given effect. Basta lang isatisfy nato ang legitime sa invalidly
disinherited heir.
The distinction is also discussed in the case of Maninang v. CA GR L-57848. This case
discussed the difference between preterition and disinheritance.
Preterition consists in the omission in the testator's will of the forced heirs or any
one 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 legitime for a cause authorized by law.
Disinheritance is always voluntary, preterition, upon the other hand, is presumed
to be involuntary.

In disinheritance, you should know the grounds. The grounds to disinherit a child or
descendant, the grounds to disinherit a parent or ascendant, and the grounds to
disinherit a spouse. Some of the grounds for disinheritance are the same grounds for
incapacity.
We cannot discuss the grounds one by one, just take note of the grounds.
In the case of Pecson v. Mediavillo GR 7890.
Here, the granddaughter was disinherited on the ground of maltreatment. So,
maltreatment is a ground to disinherit a child or descendant. Was there
maltreatment here? What happened here was that on one occasion, Rosario
Mediavillo, according to the testator, was grossly disrespectful to him. She raised
her hand against the testator. So, because of that, the testator disinherited Rosario.
The Supreme Court said that the act of Rosario in raising her hand against her
grandfather, ordinarily could qualify as maltreatment. But, in this case, right after
that incident, Rosario lost her sanity. So nabuang siya. And that was never cured
until the probate of the will. The record says that very soon after the incident she
lost the use of her mental prowess and that she has never regained them except for
very brief periods, up to the present time. So taking into consideration her tender
years, and the fact that she, very soon after the incident, lost the use of her mental
faculties, the conclusion was reached that she was probably not responsible for the
disrespect and disobedience shown to her grandfather. The Supreme Court held it
could not have been voluntary.
In the case of Seangio v. Reyes GR 140371-72
In this case, the ground also was for maltreatment. According to the testator, there
was verbal abuse on the part of his son. Ana iyang anak "Ngayon ikaw nasa
ibabaw, pero darating ang araw na ako ang nasa ibabaw at ikaw ang nasa ilalaim."
Then nangutang pud daw iyang anak sa China Bank gigamit iyang pangalan, unya
wala nagbayad. Gina-pirate pa gyud sa iyang anak iyang client sa travel center. So,
nasuko siya, so he disinherited his son.
The Supreme Court said that the incidents taken as a whole can be considered a
form of maltreatment. The testator has sufficient ground to disinherit a child or
descendant under Article 919 of the Civil Code.

What is important in disinheritance are the grounds, whether or not those are the
grounds provided for by law. Because if there is disinheritance on a cause not provided
for by law, that is invalid disinheritance. Or even if there is a ground to disinherit, but in
the will, it is not expressly mentioned, the disinheritance is also not valid. Even if there
is a ground provided for by law, mentioned in the will, but it is not proved, the
disinheritance is also not valid. It does not follow na if there is a disinheritance in the
will, it is effective. It has to be proved by the proponents of the will especially if the
disinherited heir denies the ground for disinheritance.
And even if the ground for disinheritance is proved, it is mentioned there in the will,
but there has already been reconciliation between the testator and the disinherited heir,
the disinheritance is not valid. If there is reconciliation before the testator makes a will,
he can no longer use that as a ground for disinheritance in making a will. If there was
already a will and it provides for a disinheritance, then subsequently there is
reconciliation between the testator and the disinherited heir, that disinheritance in the
will loses its effect.
Reconciliation that would erase the ground for disinheritance is the mutual resumption
of the relationship of the testator and the disinherited heir. The relationship prior to the
offense. So, it is mutual, bilateral between the two. There is forgiveness by the testator,
and of course, the disinherited heir also asked for forgiveness. Because if it is just
condonation, which is unilateral on the part of the testator, like when the testator
forgives but the disinherited heir does not accept the forgiveness, there is no
reconciliation there. The disinheritance will still stand.
If there is valid disinheritance, the heir is excluded not only from the will, not only from
his legitime, but in the entirety of the estate of the testator. He will not receive anything,
although the disinherited heir may still be represented.
LEGACIES AND DEVISES
Let us now go to Legacies and Devises.
When you say legacy, it is a gift of personal or movable property. When you say devise,
it is a gift of specific real or immovable property. It is important to know because there
are certain concepts in succession where being a legatee or devisee would matter like in
preterition. If you are a legatee or devisee, and there is preterition, you can still receive
the legacy or devise. As long as your legacy or devise is not inofficious.

What do you mean by not inofficious? It does not impair the legitimes of the
compulsory heirs. It does not exceed the free portion.
If you are not a legatee or devisee, you are just an instituted heir and a voluntary heir,
and there is preterition, because the entire institution of heirs shall be annulled, you
cannot receive anything. An instituted heir is different from a legatee or devisee.
What are the rules insofar as legacies and devises are concerned?
What can be given as a legacy or devise? We discussed during the first semester, what
properties can be the object of succession. Insofar as legacies and devises are concerned,
properties and rights can be the subject of a legacy or devise. As long as the property is
within the commerce of man, as long as the right is transmissible. There is no such thing
as a legacy of an obligation.
General rule: property, rights and obligations are transmitted. But insofar as legacies
and devises are concerned, properties ug rights lang. Walay legacy of a debt. Walay
mudawat ana kung hatagan nimog legacy of a debt.
These properties must be within the commerce of man.
Important here would be the ownership by the testator of the property devised or
bequeathed. General rule, one cannot give a property which he does not own. So the
testator cannot bequeath or devise what he does not own.
Example: He only owns a portion of the property. I hereby give to A my lot in Jacinto
Street, Davao City. Mao na ang tenor sa iyang will. But he owns only 1/4 of that lot.
Unsa man ang extent karon sa devise? It would only be up to the share of the testator.
Unless it is expressly stated by the testator in his will that he is giving the entire lot to A.
Unsa man ang effect karon kung gihatag niya ang entire lot to A, but in reality he only
owns 1/4 of that lot? If it is expressly stated that he will give it in its entirety, there is
now an implied instruction to the administrator of the estate that the shares of the other
owners will have to be acquired so that the entire lot can be given to the devisee.
What if the other owners would refuse to alienate their share or demand an excessive
price for their shares? The law says to give to the devisee the just value.
So that is kung portion lang ang iyang ownership.

What if dili gyud siya ang owner? Again, the general rule is that void ang legacy or
devise, he cannot give what he does not own.
Except if he knew that he did not own the thing, and despite that, he gave the thing to
the legatee or devisee. So, unsa man karon ang mahitabo, dili man diay siya ang tag-iya,
how can he give that to the legatee or devisee? The same rule. It shall be acquired by the
estate and if the owners refuse to alienate or they demand an excessive price, just give
the just value of the thing to the legatee or devisee.
The other situation: Dili si testator ang tag-iya sa thing bequeathed or devised. Ang tagiya kay si legatee or devisee. So si L ang legatee, for example. Gihatag sa testator kay L
ang jewelry by way of legacy. Pero si L ang tag-iya sa jewelry. What is the status of that
legacy? Remember in all cases, a legacy or devise of a thing belonging to the legatee or
devisee at the time of the execution of the will is void. It cannot be made valid even if
subsequently pagkamatay ni testator, dili na si legatee or devisee ang tag-iya ato. Bisan
pa na naabot na to sa estate sa testator, si testator na ang owner at the time of his death.
What matters is at the time of the execution of the will, if the legatee or the devisee is
the owner of the thing, the legacy or devise is void.
Another situation: At the time of the execution of the will, dili si legatee or devisee ang
owner sa property. It may be the testator, it may not be the testator. Pero kung dili ang
testator, just remember na dapat kabalo siya na dili iyaha, pero iyaha gihapong gihatag.
But in our situation here, at the time of the execution of the will, the property is not
owned by the legatee or devisee. Pero after sa execution sa will, na-acquire ni legatee or
devisee ang property. At the time of death of the testator, naa na sa legatee or devisee
ang property. What is the status of the legacy or devise here? If the legatee or devisee
acquired the thing by gratuitous title, he can no longer claim anything from the estate.
Why? Because the purpose of the legacy or devise is for the legatee or devisee to acquire
the thing, and that already happened, so wala na siyay ma-claim pa. But if the legatee or
devisee acquired the thing by onerous title, he shall be reimbursed for what he paid.
REVOCATION OF LEGACY OR DEVISE
Another important concept in legacies and devises is the revocation of the legacy or
devise. Or, when shall the legacy or devise lapse?
1. The legacy or credit or remission shall lapse if the testator, having made it, should
bring an action against the debtor for the payment of his debt.

What is a legacy or credit or remission?

For example, during his lifetime, the testator was a creditor. So the debtor is X. So he
had a receivable from X, let's assume it's 10 million. In his will, the testator says na
"whatever collectibles I have from X, I am giving that to A". So that is a legacy of credit.
So, A, at the time of the death of the testator, can collect directly from X.
Or the testator may say na "whatever outstanding balance X would have upon my
death, I would consider that balance as having been condoned or remitted". So that is a
legacy of remission in favor of X.
What if after having executed that will, the testator files an action for collection? The law
presumes that the legacy of credit or remission is already revoked. Just remember, the
testator should bring an action. Meaning, he has to file a case in court. Mere sending of a
demand letter is not an action contemplated by law.
2. 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.
So, the testator gave to A a necklace in the will as a legacy. After the execution of the
will, the testator had the necklace melted and converted it into a bracelet. So, upon the
death of the testator, can the legatee still claim the bracelet which was formerly the
necklace? There is transformation.
When will there be transformation? When the thing does not retain its denomination,
formerly it was a necklace karon it is a bracelet, so dili siya pareho ug name. Or form.
Lahi man ug porma ang necklace ug bracelet. Mas taas man ang necklace sa bracelet
bisan pareho sila ug design gamay.
So, that already revokes the legacy or devise, it is no longer effective.
3. Alienation. If the testator by any title or for any cause voluntarily 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 devises to A a parcel of land. But after the will was executed, 2 years
perhaps, the testator sold the very same land to X. What happens to the devise of the
land to A? It is already revoked.
What if subsequently, and contract between the testator, as the seller, and X, as the
buyer, was annulled because it was simulated? So nabalik karon sa testator ang land.
Upon the death of the testator, naa gihapon sa iyang estate ang land. Can A claim that
land as his devise because naa man siya sa will nakabutang? No. Because the act of the
testator, in selling that same land to X, already revoked the devise. The law mentions
even if after the alienation, the thing should again belong to the testator. Even if it be by
reason of nullity of the contract.
What if the land was returned to the testator because the contract of sale was annulled
on the ground of vitiated consent? Nareturn kay testator ang land, namatay si testator,
can A claim the land as his devise? Take note here, the alienation should be voluntary
on the part of the testator.
In the first case, even if the contract was declared as null and void, still it was voluntary.
But in the second situation, vitiated ang consent sa testator. There is lack of
voluntariness. Therefore, the land can still be claimed by A as his devise. There was no
revocation.
The same thing goes for involuntary sales like gi-foreclose ang property. That is an
involuntary alienation. Dili mag-apply ang principle na revocation because of
alienation.
Also, if the return of the property to the testator is by virtue of the right of repurchase.
When the testator sold the land to X, they executed a sale with right of repurchase. Or a
pacto de retro sale. So if the testator is able to repurchase the land, by virtue of that
contract, then A can still claim the land as his devise. Ngano makaclaim man siya?
Because the law presumes that by reserving the right of repurchase when he sold the
land, the testator really intended to honor the devise or legacy.
Pero halimbawa walay right of repurchase, so deed of absolute sale gyud siya, and it so
happened na after 2 years, pagbaligya sa testator, nakakwarta siya so gi-offeran niya
tong buyer sa una na si X na "paliton nako balik ang land be, I will pay double". So
nakuha niya balik ang land. Then he died. Can A claim the land as his devise? No. In
the first place, when the testator sold the land to X, he did not reserve the right to
repurchase. He was just lucky that the buyer later on agreed to resell the land to him.

But it was not by reason of the right of repurchase. In that case, revoked ang legacy or
devise.
4. If the thing bequeathed is totally lost during the lifetime of the testator, or afer 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.
So, nawala ang thing bequeathed. Insofar as loss is concerned, just remember what is
the concept of loss - when it perishes, goes out of commerce or disappears in such a way
that its existence is unknown or it cannot be recovered.
When you say without the heir's fault, it means the heir charged with the duty to deliver
the legacy or devise. So, in that case, the legatee or devisee can no longer demand
anything from the estate or from the heir charged to deliver the legatee or devise.
SATISFACTION OF LEGACIES OR DEVISES
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 law to be preferential;
3. Legacies for support;
4. Legacies for education;
5. Legacies or devises of a specific, determinate thing which forms part of the
estate;
6. All others pro rata.
So as you all know, a legacy or devise is taken from the free portion. We have to satisfy
first the legitime of the compulsory heirs. What if the free portion is not sufficient
because there are several legacies and devises pero kulang ang free portion? So Article
950 is the order of priority.
The acronym for that is RPSESA. Remuneratory, Preferential, Support, Education,
Specific determinate thing and All others pro rata.
When you say remuneratory, that is intended to remunerate perhaps for past services.

Preferential, meaning gi-declare sa testator to be preferred or prioritized.

Support, you know what that is in Persons, everything that is indispensable for the
sustenance, medical attendance, shelter, but excluding education. Support man gud sa
Family Code included ang education. Pero here, excluded siya. Ngano man? Because
education is mentioned separately under the 4th priority.
Number 5, specific determinate thing forming part of the estate. If it is a legacy of a
specific thing, unya forms part of the estate. Dapat specific.
Then, all others pro rata. Wala naapil sa category sa 1-5.
Sometimes Article 950 is confused with 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 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 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.
Under Article 911, there are also legacies and devises, and the free portion is also not
sufficient to accomodate all of them. The difference is that in 911, there are also
donations inter vivos.
We apply Article 911 if:
1. There are donations inter vivos,
2. The testator left compulsory heirs.
So kanang duha dapat present. Because if there are no compulsory heirs, there is no

need to collate donations. That is why in 911, the order of preference, if the free portion
is not sufficient, so there are donations which are to be charged to the free portion, naa
pud to be charged on the legitime.
For example naay donations na to be charged to the free portion. And there are 2 or
more donations. So under 911, the older donations are preferred over the newer ones.
So, first in time priority in right ang rule nato dira.
After sa mga donations, na-satisfy na sila, kung naa pay nabilin estate, kato na pud mga
legacies and devises na preferred.
Then, all others pro rata na. Walay RPSESA. Preferred lang then all others pro rata.
Again, kung walay compulsory heirs and walay donation inter vivos, we follow Article
950.
LEGAL/INTESTATE SUCCESSION
The law does not really define what this is. But it enumerates what the intances are
when 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 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.
In number 1, obviously when there is no will, there is intestacy. Kung naay will pero
declared void, then intestacy gihapon. Even if there is a will pero gi-revoke na sa
testator, still intestacy.
Number 2, there will be mixed succession because ang not the entire estate is disposed

of by the will. So partly by will and partly by operation of law.

Number 3, halimbawa an heir is instituted subject to a suspensive condition pero wala
na-fulfill. So asa man nato ihatag tong share na supposed para didto sa heir? Sa legal
heirs.
Remember the order ha. Institution, Substitution, Representation, Accretion, Intestacy.
ISRAI. So in the scheme of things, Legal succession or Intestacy is the least preferred. So
institution, if there is an instituted heir, as much as possible, give effect to that
institution. If the institution is not possible because maybe the instituted heir dies,
repudiates or becomes incapacitated, so if there is a substitute, give the property to his
substitute. If there is no substitute, and the Right of representation is proper, then give
to the representative. In testamentary succession, the right of representation is proper
only in the legitime, there is none in the free portion. If Representation is not proper,
and Accretion is proper, then give the vacated share to his co-heir by accretion. And if
accretion is still not proper, then Intestacy.
What is important in legal succession?
First, you have to know who the legal heirs are. So you know who the compulsory heirs
are: The legitimate children and descendants, in their default, the legitimate parents and
ascendants. The surviving spouse. Then the illegitimate child. In the absence of a will,
all these people are legal heirs. Remember the basic rule that all compulsory heirs are
legal heirs.
Legal heirs, we include the collateral relatives. We have the brothers and sisters, uncles
and aunts, nephews and nieces.
Under the law on legal succession, insofar as collateral relatives are concerned, the heirs
are only those collaterals who are related by consanguinity to the decedent within the
5th degree.
I hope na kabalo mo magcount sa degrees. Balik na lang mo 1st year kung dili.
So, 5th degree, that is in the collateral line, blood relationship.
Sa direct line, walay limitation. It may be ascending line or descending line as long as
naa. Because impossible man pud gud na muabot pa kag 5th degree or 6th degree kay
generations atong ginastoryahan.

What if wala na gyuy nabilin na direct line, ascending or descending, ug wala na puy
within the 5th degree sa collateral? Kinsa man karon ang mag inherit? We have the State
by virtue of its caduciary right. The right of the State to succeed to the estate of a person
who died intestate and without a will. The proceeding here by which the State acquires
the property is what we call escheat proceedings.
Important also to know, who are the heirs that will concur with the others. And ang
pinakaimportante, pila ang ilahang shares, ilahang legal or intestate shares.
Just like in legitimes, you have to memorize the table of legal or intestate shares. So dili
pud na siya enough na you are familiar.
Just like in testamentary succession, the legitimate parents or ascendants are excluded
by the legitimate children or descendants. Pero of course the parents concur with
illegitimate children.
Insofar as collateral relatives are concerned. Pinakaduol dira brothers and sisters or
uncles and aunts, 2 degrees. Rememer that the children and the parents exclude the
collaterals. So kung muingon kag children, even illegitimate children, they exclude the
collateral relatives. Parents or ascendants and the children. The surviving spouse
concurs with the brothers and sisters of the decedent, dili siya maka-exclude, half-half
sila.