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TITLE IV SUCCESSION
CHAPTER I
GENERAL PROVISIONS
What are the modes of acquiring ownership?
a.
b.
c.
d.
e.
f.
g.
Occupation
Intellectual creation
Law
Donation
Testate and intestate succession
Tradition (In consequence of
contracts)
Prescription 1
certain
OCCUPATION
MODE
TITLE
SEIZURE
PROPERTY SEIZED IS
WITHOUT A KNOWN
OWNER
2
INTELLECTUAL
EMERGENCE OR
CREATION
DISCOVERY
ORIGINALITY OR
NOVELTY
LAW
FORCE OF LAW
CONCURRENCE OF
PREREQUISITE
CONDITIONS
DONATION
FORMALITIES/DELIVERY
AGREEMENT OF
PARTIES
SUCCESSION
DEATH
LAW OR WILL
TRADITION
DELIVERY
AGREEMENT OF THE
PRESCRIPTION
LAPSE OF PRESCRIBED
POSSESSION IN THE
PERIOD
CONCEPT OF AN
PARTIES
OWNER
b.
a.
b.
c.
d.
Property;
Transmissible rights (those not extinguished by death);
Transmissible obligations (those not extinguished by
death); and
All property which have accrued thereto since the
opening of the succession (death of the decedent). 5
4
Note however that if the decedent died with a valid
will, the after-acquired property shall not pass to the
designated heir unless the same is expressly stated in the will
or the intention clearly appears. 6 When the testator used
general terms in the disposition of his property such as my
entire estate,
estate, all
all my property,
property, etc. the intention to pass
after-acquired property is deducible in the absence of the
contrary context.
What
properties?
a.
b.
are
examples
of
after-acquired
Alluvial deposits
Interests on credits
examples
intransmissible
What
are
the
intransmissible rights?
of
criteria
in
determining
5
a.
b.
6
pay off the creditors. Philippine procedural law, however,
influenced by the common-law system, has laid down a
different method for the payment of money debts, which is
found in Rules 88 to 90 of the Rules of Court. It is only after
the debts are paid that the residue of the estate is distributed
among the successors. 8
In our system, therefore, money debts are, properly
speaking, not transmitted to the heirs nor paid by them. The
estate pays them; it is only what is left after the debts are
paid that are transmitted to the heirs.
Are contractual obligations transmissible?
Generally, unless otherwise provided in the contract,
contractual obligations are transmissible. Thus, if the
decedent is the lessor in a contract of lease with a definite
period, his heirs will inherit the obligation to respect the
lease. Similarly, in a contract of sale, the heirs are obligated
to deliver the property sold by their predecessor in
interest to the buyer. (Pamplona
(Pamplona vs. Moreto, 96 SCRA 725)
725) 9
8
8
they are acquired or transmitted, thus the first is the
objective of the second.
Patrimony refers to the aggregate of all juridical
relations of a person susceptible of economic valuation, while
inheritance refers to the mass or totality of the patrimony of
the decedent, which is not extinguished by his death, thus the
first is broader than the second.
What are the requisites for an effective
transmission by succession? (Requisites before rights
may be transmitted mortis causa)
causa)
a.
b.
c.
d.
10
11
12
a.
b.
c.
d.
e.
f.
13
10
g.
h.
11
death of A, B sold his entire right to the inheritance to
X, a third person for 20, 000.00. Is the sale valid?
Yes.
Suppose that the hereditary estate was finally
partitioned in 1962. According to the project pf
partition, B, C and D shall be entitled to 30, 000.00
each. D however repudiated his share of the
inheritance. Under the law, the 30, 000.00, which
would have passed to him, shall now accrue to B and C
in equal shares. Who shall now be entitled to the 15,
000 accruing to B?
X is now entitled to the 15, 000.00.In other words,
he can now compel the estate of A to pay to him not only 30,
000 to which B is entitled as a legal heir, but even the 15, 000
to which B is entitled by right of accretion. This is because of
the principle of retroactivity as applied to acts and acceptance
or repudiation (Art. 1042 NCC).
What are the kinds of succession?
a.
b.
c.
d.
e.
14
12
b.
c.
13
d.
e.
f.
g.
16
17
18
14
6.
20
21
22
23
15
11.
25
26
16
1.
2.
the
has
the
this
What
Articles?
is
the
distinction
between
the
two
28
27
28
17
29
29
18
Illustrations:
The testator in his will gave his friend X a specified
parcel of land. It turned out that he has 2 friends by
that name. However, while making the will, the
testator orally stated that he was referring to his
neighbor X, but among his files was found a letter
stating that he wanted to give the land to X of
Malaybalay City.
a.
b.
c.
30
19
that another meaning was used provided that other
meaning can be determined.
2.
will?
2.
various
dispositions
are
31
32
20
2.
Exceptions:
a.
b.
c.
d.
2.
a.
33
34
35
36
37
21
b.
c.
b.
a)
For Filipinos
38
39
40
41
42
22
(1)
(2)
(3)
(4)
(5)
b)
For foreigners
(1)
43
44
45
46
47
Article 17 NCC
48
49
Article 17 NCC
50
23
b)
b.
b)
Illustration:
51
Article 16 NCC
24
b.
55
56
25
estate in accordance with Philippine laws. Is the
will valid?
The provision is void, because the estate must
be distributed in accordance with the laws of his country,
and not the law of the Philippines. Article 16 provides:
Real property as well as personal property is subject to
the law of the country where it is situated. However,
intestate and testamentary succession both with respect
to the order of succession n the amount of successional
rights and 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.
c.
26
Testamentary power is the statutory right to
dispose of property by acts effective mortis causa)
Who have testamentary capacity?
1.
2.
3.
All
natural
persons,
unless
disqualified
by
law.
Juridical
persons
are
not
granted
testamentary capacity;
Persons 18 years or over; and
Persons of sound mind at the time
the will is made.
58
57
58
27
This is defined by the Code only by indirection
because only soundness of mind is defined. (Article 799)
What is soundness of mind (sanity)?
Negatively:
mind?
presumption of insanity:
1.
2.
two
instances
of
rebuttable
What
capacity?
is
the
time
for
determining
mental
28
It is the time of execution of the will; no other
temporal criterion is to be applied (Article 801).
At the time A executed his will, he was sane.
One day thereafter, he became insane. What is the
effect of As subsequent insanity?
The will is not avoided. The rule is that supervening
incapacity does not invalidate an effective will. (Art. 801)
Can a death convict make a will?
A death convict, before his execution is expressly
allowed by law to make a will. A convict under civil
interdiction is allowed to make a will because the civil
interdiction prohibits a disposition of property inter vivos , not
mortis causa.
SUBSECTION 3. FORMS OF WILLS
What are the kinds of wills allowed in the
Philippines?
a.
b.
In writing; and
In a language or dialect known to the testator.
Notes:
29
30
a.
b.
c.
d.
e.
f.
g.
h.
Notes:
Some discrepancies:
1)
2)
31
cannot be presumed that the attestation clause was meant to
tell a lie.
3)
On
the
other
hand,
the
attestation clause is not required
to state that the agent signed in
the testators presence a
circumstance mandated by the
first and second paragraph of the
article.
32
What are the requisites for signing by the
agent of the testator?
Two requisites for signing by the agent:
1.
2.
the
agent
be
one
of
the
attesting
33
Note: Signing before the end invalidates not only the
dispositions that come after, but the entire will, because then
one of the statutory requirements would not have been
complied with.
Is it required that the witnesses actually saw
the testator affixed his signature in the will?
No, because the phrase in the presence does not
necessarily require actual seeing, but only the possibility of
seeing without physical obstruction. In Jaboneta vs. Gustilo, 5
Phil. 541, it was said that if a witness merely turned his back,
the signing is still considered in his presence. (Could have
seen it had he chosen to)
What is the true test to determine the presence
of the testator and the witnesses in the execution of a
will?
In Nera vs. Rimando, 18 Phil. 451, it was held that
the true test of presence of the testator and the witnesses in
the execution of a will is not whether they actually saw each
other sign, but whether they might have seen each other
sign, had they chosen to do so, considering their mental and
physical condition at the moment of inscription of each
signature.
But it is especially to be noted that the position of
the parties with relation to each other at the moment of the
subscription of each signature, must be such that they may
see each other sign of they choose to do so. It does not
depend upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription by each
of them, but that at the moment of its subscription and their
position with relation to each other were such that by merely
casting their eyes in the proper direction they could have
seen each other sign. Thus, actual seeing is not required, but
the ability to see each other by merely casting their eyes in
the proper direction.
A executed a will. At the time he affixed his
signature in the will, X, one of the three instrumental
witnesses, was outside of the room, talking to a friend.
When the will was submitted to probate, it was
opposed on the ground that the will is void, as one of
the witnesses was not present when the testator
affixed his signature in the will. Will you approve the
will, if you were the judge?
34
35
Attestation and subscription differ in meaning.
Attestation is the act of the senses, while subscription is the
act of the hand. The former is mental the latter is mechanical,
and 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 publication; but to subscribe a paper published as a will
is only to write on the same paper the names of the
witnesses, for sole purpose of identification. (Caneda vs.
Court of Appeals, 222 SCRA 781)
In Toboada vs. Rosal, it was held that 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 a will and
that the signature of the testator exists as a fact. On the
other hand, subscription is the signing of the witnesses
names upon the same paper for the purpose of identification
of such paper as the will which was executed by the testator.
As it involves a mental act, there would be no means,
therefore of ascertaining by a physical examination of the will
whether the witnesses had indeed signed in the presence of
the testator and of each other unless this is substantially
expressed in the attestation.
Should the attestation clause be written in a
language or dialect known to the testator?
The attestation clause need not be written in a
language or dialect known to the testator since it does not
form part of the testamentary disposition. (Caneda vs. Court
of Appeals, 222 SCRA 781)
Should the language used in the attestation
clause be known to the attesting witnesses?
The language used in the attestation clause need not
be known to the attesting witnesses. The last paragraph of
Article 805 merely requires that, in such a case, the
attestation must be interpreted to the witnesses. (Caneda vs.
Court of Appeals, 222 SCRA 781)
What are the essential facts which must be
stated in the attestation clause?
1.
36
2.
3.
of
the
above
37
The directory part the place of the signature, i.e.
the left margin; the signature can be affixed anywhere.
A executed a will consisting of ten pages. At
the probate, B, one of his children interposed an
opposition on the ground that A and one of the
witnesses has not signed one of the pages of the same.
Rule on the opposition and cite your reasons for your
ruling.
As a rule, the testator and the instrumental
witnesses must sign the will on each and every page thereof.
The defect is fatal if there is failure to have the original
signatures. (Estate of Tampoy vs. Alberastine, L-14322, Feb.
25, 1960). However, if there was a mere inadvertence of one
of the three witnesses or even the testator, where he forgot
to sign on one of the pages, the will must be admitted to
probate because of the application of the liberality rule. The
will must be respected, rather than having the testator die
intestate. (Icasiano vs. Icasiano, L-18979, June 30, 1964)
May the notary public himself be a witness in a
last will and testament? Why?
No, because the notary public cannot be considered
as third instrumental witness since he could not have
acknowledge before himself his having signed the will. He
cannot split his personality into two so that one will appear
before the other to acknowledge his participation in the
making of the will. To permit such a situation to obtain would
be sanctioning a sheer absurdity. (Cruz vs. Villasor, 54 SCRA
31)
What is the purpose of the law in requiring that
the pages of the will be numbered?
The purpose is to prevent fraud, and to afford means
of preventing substitution of the will. (Lopez vs. Leboro, 81
Phil. 429)
The attestation clause of Xs will does not
contain his signature. At its probate, it is being
opposed on that basis. Is the opposition correct? Why?
No, because the attestation clause is not an act of
the testator. It is an act of the instrumental witnesses. The
testators failure to sign it is not fatal; it is immaterial.
(Abangan vs. Abangan, 40 Phil. 467; Estate of Paula Tray, L-
38
2415, July 31, 1950; Fernandez vs. Vergel de Dios, 46 Phil.
922)
Suppose the attestation does not state the
number of pages, is the will valid? Why?
Yes. In Taboada vs. Hon. Rosal, 48 SCRA 195, the
Supreme said that even the attestation clause does not state
the number of pages, if the same can be determined from the
will, it is valid. This is because of the liberality rule or that
there was substantial compliance with the law. (Singson vs.
Florentino, Oct. 25, 1952; Perez vs. Rosal, 118 SCRA 195)
What is the effect if the instrumental witnesses
did not sign the attestation clause? Why?
The will is void, because the total absence of the
signature of the witnesses shows their non-participation. (In
re: Testate of Vicente Cagro, April 29, 1953[92 Phil. 1032])
The attestation clause must be signed by the witnesses at the
bottom thereof, and not on the left hand margin, otherwise, it
would be easy to add such clause to a will on a subsequent
occasion and in the absence of the testator and any or all of
the witnesses.
If the entire document consists of only two sheets,
the first containing the will and the second, the attestation
clause, there need not be any marginal signatures at all
(Abangan vs. Abangan, 40 Phil. 476)
Suppose the attestation clause does not state
that the will was signed by the testator in the presence
of the witnesses, is the will valid? Why?
As a rule, it is void, except if such statement is made
in some other parts of the will. (Gil vs. Murciano, L-3362,
March 1, 1951; Singson vs. Florentino, Oct. 25, 1952; Perez
vs. Rosal, 118 SCRA 195)
If the acknowledgment of the will was not
signed by the notary public in the presence of the
testator and the witnesses, is the will valid?
The notary public need not be present at the time of
the execution of the will. In Javellana vs. Ledesma, 97 Phil.
258, it was held that whether or not the notary signed the
certification of acknowledgment in the presence of the
testator and the witnesses does not affect the validity of the
39
will. A comparison of Articles 805 and 806 of the new Civil
Code reveals that while the testator and witnesses must sign
in the presence of each other. All that is thereafter required is
that every will must be acknowledged before a notary public
by the testator and the witnesses: (Article 806); i.e. that the
latter should avow to the certifying officer the authenticity of
their signatures and the voluntariness of their actions in
executing the testamentary dispositions. The subsequent
signing and sealing by the notary of his certification that the
testament was duly acknowledged by the participants therein
is no part of the acknowledgment itself nor of the
testamentary act. Hence, their separate execution out of the
presence of the testator and his witnesses can not be said to
violate the rule that testaments should be completed without
interruption.
Thus, the certification of acknowledgment need not
be signed by the notary in the presence of the testator and
the witnesses. Article 806 does not require that the testator
and the witnesses must acknowledge on the same day that it
was executed. Neither does the article require that the
testator and the witnesses must acknowledge in one
anothers presence. However, if the acknowledgement is done
by the testator and the witnesses separately, all of them must
retain their respective capacities until the last one has
acknowledged.
40
when the will is executed by a blind person.
(Article 808)
Can the notary public be counted as one of the
attesting witnesses?
In Cruz vs. Villasor, 54 SCRA 31, the notary public
before whom the will was acknowledged cannot be considered
as the third instrumental witness since he cannot
acknowledge before himself his having signed the will.
Consequently, if the third witness was the notary public
himself, he would have to avow, assent, or admit his having
signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation
in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer absurdity.
B.
41
SCRA 489); or due to poor, defective or blurred vision
(Alvarado vs. Gaviola, Jr. 226 SCRA 348).
What are the distinctions between Articles 807
and 808?
1.
2.
3.
42
witnesses, will invalidate the will. No amount of
liberal interpretation would save the will.
What is the test in determining substantial
compliance?
In determining whether the statements made in the
attestation clause comply substantially with what the law
requires, the correct rule is that omissions which can be
supplied by an examination of the will itself, without resorting
to extrinsic evidence, will not be fatal; but omissions which
cannot be supplied except by presenting evidence aliunde will
invalidate the attestation clause.
809)
43
Yes, since the law does not specify any particular
location where the date should be placed. (Labrador vs. CA,
184 SCRA 170)
X executed a holographic will dated Christmas
Day 1990. Is the will valid? Why?
Yes, because it was completely dated, written and
signed by the testator. The date Christmas day 1990 is a
substantial compliance with the requirements of the law.
(Roxas vs. De Jesus, Jr. G.R. No. 38338, Jan. 28, 1985[ 134
SCRA 245]) The law has a tender regard for the will of the
testator expressed in his last will and testament because the
testators disposition is better than that which the law can
make.
Where the date written is Feb/61 without the
specific date of the month having been indicated, the probate
of the holographic will was allowed following the rule of
substantial compliance.
will?
44
45
for
Signature; and
Date
a.
b.
c.
46
The
discussion
above
presupposes that the latter
disposition was dated and signed
by the testator himself.
Therefore;
a.
b.
47
alteration in a holographic will, the testator must authenticate
the same by his full signature.
Give the rules governing the formal validity of wills.
Articles 815, 816 and 817 lay down the rules of formal
validity of wills:
1.
2.
3.
Thus:
1.
2.
48
3.
4.
49
Are joint wills allowed?
1.
2.
3.
4.
5.
be of sound mind
be at least 18 years of age
be able to read and write
not be blind, deaf, or dumb
be domiciled in the Philippines
not have been convicted (by final judgment)
of falsification of a document, perjury, or
false testimony
How
is
competence
credibility (of a witness)?
distinguished
from
50
instrumental witness to a will is determined by the statute,
that is Articles 820 and 821, whereas his credibility depends
on the appreciation of his testimony and arises from the belief
and conclusion of the Court that said witness is telling the
truth. Competency as a witness is one thing, and it is another
to be a credible witness, so credible that the Court must
accept what he says. Trial courts may allow a person to testify
as a witness upon a given matter because he is competent,
but may thereafter decide whether to believe or not to believe
his testimony.
Thus, the rule is that the instrumental witness in
order to be competent must be shown to have the
qualifications under Articles 820 and none of the
disqualifications under Article 821 and for their respective
testimony to be credible, that is worthy of belief and entitled
credence, it is not mandatory that evidence be first
established on record that the witnesses have a good
standing in the community or that they are honest and
upright or reputed to be trustworthy and reliable, for a person
is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must
be competent and their testimonies must be credible before
the court allows the probate of the will they have attested.
51
witnesses to know the language in which the attestation has
been written. It is sufficient that the same be interpreted to
him.
What is the effect of the subsequent incapacity
of a witness?
It shall not prevent the allowance of the will. But of
course the said witness cannot testify. This does not mean
however that the validity of the will is impaired by such fact.
X made a notarial will with A, B and C as
witnesses. Aside form the other testamentary
provisions in the will, A was given a piece of land as a
devise. Is the will valid?
The will is valid, since there were three credible
witnesses. However, while A is capacitated as a witness, he is
incapacitated to receive the devise, hence the provision
regarding said devise should be disregarded, the rest of the
will being valid.
To whom does the disqualification extend to?
1.
2.
3.
4.
5.
the witness;
the spouse of the witness;
the parent of the witness;
the child of the witness;
anyone claiming the right of said witness, spouse,
parent or child (ex. The creditor of the witness if the
said creditor has not been paid.)
52
Can a witness who is disqualified to inherit
under Article 824 still be a witness in court?
Yes. He is disqualified to inherit but not to testify. He
can attest to the due execution of the will at the probate
hearing. He will be admitted as a witness as if the devise or
legacy had not been made or given.
SUBSECTION 5. CODICILS
AND INCORPORATION BY REFERENCE
How is
subsequent will?
codicil
distinguished
from
it
being
the
later
53
What are the requisites for the validity of
documents incorporated in a will by reference?
1.
2.
3.
4.
1.
2.
3.
54
clause. The attestation clause on the will is enough.
(Unson vs. Abella, 43 Phil. 494)
Can holographic will incorporate documents by
reference?
The test of Article 827 suggests a negative answer.
Paragraph 4 of the article requires the signatures of the
testator and the witnesses on every page of the incorporated
documents (except voluminous annexes). It seems, therefore,
that only attested will can incorporate documents by
reference, since only attested wills are witnesses (unless, of
course, the testator executes a holographic will, and
superfluously, has it witnessed).
Also, a holographic will requires that its contents be
in the handwriting of the testator, thus if the other instrument
is not entirely in the handwriting of the testator, it is
submitted that there can be no valid incorporation by
reference in a holographic will.
Must the codicil conform to the form of the will
to which it refers? (That is, a holographic codicil for a
holographic will, and notarial codicil for a notarial
will?)
The law does not require this. Thus, an attested will
may have a holographic codicil; a holographic will may have
an attested codicil. It is enough that the codicil has the
formalities of a will. Article 826 requires that the codicil be
executed as in the case of a will, not of the will.
SUBSECTION 6. REVOCATION OF WILLS
AND TESTAMENTARY DISPOSITIONS
What are the conflicts rules for revocation of
wills?
a.
in
the
55
b)
b.
a)
the
his
b)
c)
56
1.
2.
3.
Burning;
Tearing;
Canceling; or
Obliterating.
57
or restriction of this right is void (Article
828).
Is the mere intent to revoke sufficient to effect
revocation of a will?
No, intent to revoke is not sufficient. This is only one
of the elements. There must be overt act of burning, tearing,
obliterating, or canceling by the testator or any one under his
express direction. (Manaloto vs. Ca, GR No. 76464, February
29, 1988)
T, the testator, threw his will on a stove but it
was not burned because H, one of the heirs tried to
recover it from the stove. Was the will revoked?
No, because there was no physical destruction.
However, the heir who saved it is not entitled to inherit due to
unworthiness (Article 1032).
T executed a will in 1990 with his nephew N
who was living with him as a principal beneficiary. In
1991, with intent to revoke the will, he sent N to get it
from the safe so that he can destroy it; however,
knowing of the intent of his uncle, substituted another
paper inside the envelope and hid the real will. It was
this envelope which he gave to the testator. The latter,
without investigating the contents, subsequently
destroyed it by burning. After his death in 1992, N
presented the will, which was hidden, for probate. Is
there a revocation in this case?
There is no revocation by burning because although
there was intent to revoke, yet there was no actual physical
destruction. Not all the intention in the world without
destruction can revoke a will; and not all the destruction in
the world without the intention can revoke a will. The two
must always go together. However, the heir who saved it is
not entitled to inherit due to unworthiness (Article 1032).
What is the effect of crumpling of a will?
Crumpling of a will is not equivalent to tearing. There
us no revocation of the same. However, in Roxas vs. Roxas,
48 Phil., the Supreme Court said that crumpling with intent to
revoke constitutes revocation.
58
What is the effect of tearing of the will up to
the signature only?
If the testator tears the will up to the signature,
there is revocation because to goes to the heart of the will.
However, if it is only the signature of the witness, there is no
revocation.
X made a will making Y his heir. X then learned
that Y was dead, so he made another will instituting Z
as heir. If Y turns out to be still alive, who inherits?
Y inherits, because the revocation was based on a
false cause.
What if the testator states in his second will: I
am not sure whether Y is dead or still alive. However, I
hereby revoke the legacy to him which I made in my
first will. Is there a revocation of the legacy?
Yes, for here, he cannot be said to be proceeding
upon an error.
If a will is destroyed without the testators
express direction, can the will still be established and
the testators estate distributed in accordance
therewith?
Yes, but the same must be proved in accordance
with the rules of evidence: a) the contents of the will; b) its
due execution; and the fact of its unauthorized destruction,
cancellation, or obliteration.
Can there be revocation by oral declaration?
Revocation cannot be done by mere parol. Generally
speaking, revocation of a written will can be accomplished by
the testator only by another writing, by destruction of the
instrument, or by some act manifest thereon, except where,
under the doctrine of implied revocation by a change in
circumstances, he may revoke his will indirectly by some act
which results in such a change.
If a subsequent will which revokes a prior will
and the said subsequent will becomes inoperative by
reason of the incapacity of or repudiation by the heirs
designated therein, does this fact affect the revocation?
59
(Will the revocation made by the testator in said
subsequent will remain effective?)
A revocation made in a subsequent will shall take
effect, even if the new will should become operative by
reason of the incapacity of the heirs, devisees, or legatees
designated therein, or by their renunciation (Article 832). The
reason is that the act of revoking a will is entirely distinct,
separate and independent from the testamentary disposition
contained in the subsequent will. Moreover, the incapacity of
or repudiation by, the heirs is beyond the control of the
testator, but the act of revocation is within his absolute
control.
What is the doctrine of dependent relative
revocation?
The failure of the new testamentary disposition,
upon whose validity the revocation depends, is equivalent to
the non-fulfillment of a suspensive condition, and hence
prevents the revocation of the original will. But a mere intent
to make at some time a will in 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.
This doctrine is not limited to the existence of some
other document and has been applied where a will was
destroyed as a consequence of a mistake of law.
What is the effect of implied revocation?
It only annuls such dispositions in the prior will as
are inconsistent with or contrary to those contained in the
later will. (Article 831)
What is the effect of revocation
recognition of an illegitimate child?
on
the
60
What is republication?
It is the process of re-establishing a will, which has
become useless because it was void, or had been revoke.
How may republication be made?
1.
2.
2.
2.
61
3.
2.
Application:
1.
62
effect is that the will ceases to exist and is as inoperative
as if it has never been written. Consequently, there is
now only one will of T which remains the first will which
was executed. In reality, the first will was not considered
revived since it has never been validly revoked in the first
place.
2.
63
1.
2.
2.
3.
2.
64
1.
2.
3.
4.
65
66
3.
67
No, it does not apply to probate proceedings for they
are vested with public interest, and if estoppel would be a
applied, the ascertainment of the truth may be blocked. This
should be avoided for the primary purpose of a probate
proceeding is not the protection of the interest of living
persons.
Notes:
He
signature.
needs
merely
affirm
his
handwriting
and
68
b)
3.
c)
before
the
69
3.
RULE 75
RULE 76
70
court deem it necessary, expert testimony may be
resorted to.
Section 11 If the will is contested, all the
subscribing witnesses and the notary public in the case of
wills executed under the Civil Code of the Philippines, if
present in the Philippines and not insane, must be
produced and examined, and the death, absence, or
insanity of any of them must be satisfactorily shown to
the court. If all or some of such witnesses are present in
the Philippines but outside the province where the will
has been filed, their deposition may be taken. If any or
all of them testify against the due execution of the will,
or do not remember having attested to it, or are
otherwise of doubtful credibility, the will may,
nevertheless, be allowed if the court is satisfied from the
testimony of other witnesses and from all the evidence
presented that the will was executed and attested in the
manner required by law.
If a holographic will is contested, the same shall be
allowed if at least 3 witnesses who know the handwriting
and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the
testator, in the absence of any competent witness, and if
the court deem it necessary, expert testimony may be
resorted to.
Section 12 Where the testator himself petitions for
the probate of his holographic will and no contest is filed,
the fact that he affirms that the holographic will and the
signature are in own handwriting, shall be sufficient
evidence of the genuineness and due execution thereof.
If the holographic is contested, the burden of disproving
the genuineness and due execution thereof shall be on
the contestant. The testator may, in his turn, present
such additional proof as may be necessary to rebut the
evidence for the contestant.
will?
1.
2.
71
3.
4.
5.
6.
7.
72
1.
2.
3.
4.
b.
73
Concept of legitime:
Legitime is that part of the testators property which
he cannot dispose of because the law has reserved it for
certain heirs whom he cannot disregard known as compulsory
or forced heirs.
heirs
can
2.
3.
4.
5.
61
74
1.
2.
3.
4.
5.
heirs?
He
is
a
testamentary
heir
as
distinguished from a legal or intestate
heir. He is also different from a devisee
or legatee.
He continues the juridical personality of
the testator but only in relation to the
inheritance without being personally
liable for the testators debts.
He is a natural person (Art. 40 to 42),
even if only a conceived child, but not a
child not yet conceived. However,
testamentary dispositions may be made
in favor of a juridical person, except
those not permitted by law to succeed.
He acquires rights which are limited to
the disposable portion of the inheritance
and cannot impair that portion known as
legitime.
He is presumed to have been instituted,
where there are several heirs, equally,
individually and simultaneously with the
others, unless the contrary intention
appears.
75
a.
b.
c.
6.
1.
2.
3.
4.
5.
6.
76
7.
8.
1.
2.
77
Can extrinsic evidence be
determine the identity of the heir?
admissible
to
78
institute as my heir the person whom my brother
Juan may designate.
2.
79
There is, however an exception to the rule. If of the
persons instituted, one is a compulsory heir, the rule would
not apply. The legitime of that heir has to be removed first;
otherwise, he would be unduly prejudiced.
80
A had 3 legitimate children B, C, and D. D,
however died in 2000, survived by 2 legitimate
children, E and F. A died in 2002 with a will. In the will
he made the following institution of heirs: I designate
as my heirs B and C, and the children of D. The net
remainder or residue of the estate of A is P120, 000.00.
How shall the distribution be made?
There are 2 provisions of the Civil Code, which must
be applied, Articles 846 and 847. Where there are compulsory
heirs among the heirs instituted, or where all of them are
compulsory heirs, the provision of Art. 846 should be applied
only to the free or disposable portion. Consequently, the
distribution shall be made as follows:
First, satisfy the legitime of B, C, E and F. B and C
shall be entitled to 20, 000.00 each in their own right, while E
and F shall be entitled to 10, 000.00 each by representation.
Then the free portion of 60, 000 shall be divided among all of
them in equal parts in accordance with Art. 846. Therefore,
the shares of each will be:
B 35, 000.
C 35, 000
E 25, 000
F 25, 000
81
a.
b.
82
Exception The falsity of the stated cause for
institution will set aside the institution, if certain factors are
present.
Before the institution of heirs may be annulled
under Article 850, what are the requisites that must
concur?
1.
2.
3.
law?
The same will not be considered as written unless
such illegal cause appears to be the sole reason for the
institution of the heir.
83
X institutes Y because he wants him to kill Z. Is
the institution valid?
No, it is void since the real motive is illegal.
X institutes Y because during the last election,
he was a flying voter. Is the institution valid?
Yes, because the real motive here is generosity,
liberality or affection and the illegal cause is only incidental.
In Articles 852 and 853, what are the requisites
in order that the said articles will apply?
1.
2.
3.
4.
2.
84
X- 1/3 (P120, 000)
Y- (P90, 000)
Z- 1/6 (P60, 000)
P270, 000
Balance: P90, 000 will be distributed as
follows:
3.
4.
b.
85
c.
d.
e.
f.
86
6.
Get
the
least
denominator: 12
common
A = 6/12
B = 4/12
C = 3/12
2.
3.
87
4.
5.
6.
7.
88
What is preterition and its effects?
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. Devises and
legacies are valid insofar as they are not inoficious. (Article
854)
What are the three kinds of preterition?
1.
2.
3.
89
i.e.,
preterition
will
still
result
notwithstanding that the preterited heir died
before the testator.
Should the compulsory heirs omitted,
however predecease the testator, there is
no preterition unless there is a right of
representation in which case preterition will
still result notwithstanding the predecease
of said compulsory heir.
Where is there no omission:
1.
2.
3.
4.
Testamentary succession,
Legacy or devise,
Donation inter vivos, or propter nuptials,
Intestacy.
90
Preterition means total omission in the inheritance.
Summarizing therefore, total omission means that
the omitted compulsory heir receives nothing under the will,
whether as heir, legatee or devisee, has received nothing by
way of donation intervivos or propter nuptials, and will
receive nothing by way of intestate succession.
What are the effects of preterition?
1.
2.
3.
Other effects:
1.
2.
article?
1.
2.
3.
91
the protection of this Article. This gap is
merely the result of careless drafting
(according to Manresa)
4.
Adopted children.
How do
disinheritance?
you
distinguish
preterition
from
i.
ii.
iii.
iv.
In
preterition,
the
omitted
compulsory heir gets his share
from the entire estate, i.e. not only
his share of the legitime but also of
the free portion not disposed of by
way of devises and legacies, while
in disinheritance, if valid, the
compulsory heir is excluded from
the inheritance and if defective, the
compulsory heir is merely restored
to his legitime, and testamentary
dispositions which are inofficious
reduced.
v.
92
Application:
1.
2.
93
3.
4.
5.
6.
7.
94
8.
9.
95
X objected to the will of Y, his son, on the
ground that (a) He has not been instituted, he being
the only heir of his son; and (b) That even if he is
instituted, his share is less than Z, his wife, as the free
portion was left to Z.
Rule on Xs objections.
a.
b.
96
on the ground of preterition. Will the contention of B
prosper?
Yes, because there was preterition of a compulsory
heir in the direct descending line. The law does not make a
distinction whether the heir is legitimate or illegitimate.
Suppose that it is the husband or the wife who
is omitted in the testators will, would there be a
preterition, which would have the effect of annulling
the institution of heirs?
No, because a husband or wife is not a compulsory
heir in the direct line. However, such husband or wife would
still be entitled to his or her legitime, in other words, there
would be an annulment of the institution of heirs but only to
the extent that the legitime of such husband or wife is
prejudiced.
Is there any difference as to effect between the
omission of a forced heir by mistake or inadvertence
and voluntary or intentional omission?
Yes, in Acain vs. IAC, G.R. No. 72706, Oct. 27, 1987,
it was held that if preterition is by mistake or inadvertence,
there is true preterition and total intestacy results. The
reason for this is the inability to determine how the testator
would have distributed his estate if none of the heirs had
been omitted or forgotten.
If the omission is intentional, the effect would be a
defective disinheritance covered by Article 918, in which case
the institution of heirs is not wholly void but only insofar as it
prejudices the legitime of the person disinherited. The nullity
is partial unlike in true preterition where the nullity is total.
Preterition is presumed to be only an involuntary
omission; that if the testator had known of the existence of
the compulsory heir at the time of the execution of the will,
he would have instituted such heir. On the other hand, if the
testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive
as little as possible from the estate.
What is the right of the preterited heir or heirs?
They are entitled not only to their shares of the
legitime but also to those of the free portion which was not
expressly disposed of by the testator by way of devise and
legacies, unlike in the case of improper disinheritance or
97
incomplete legitime wherein their right is limited to the
completion of their legitime.
If the omitted heir is not in the direct line, the
institution of heir is annulled only to the extent that it impairs
the legitime. This is not true preterition.
If an heir was omitted, from where will his
share be taken?
i.
ii.
Predecease
Incapacity
Renunciation
Transmits
nothing
Representatio
n
Transmits
nothing
Representatio
n
Voluntary
Transmits
nothing
No
representation
Transmits
nothing
Transmits
nothing
Representatio
n
Transmits
nothing
Representatio
n
Transmits
nothing
No
representatio
n
Transmits
nothing
No
representatio
n
Transmits
nothing
No
representatio
n
Legal
No
representation
Disinheritanc
e
Transmits
nothing
Representatio
n
Not
applicable
Not
applicable
Application:
1.
i.
98
ii.
If A is incapacitated?
The same answer as (i).
iii.
b.
c.
d.
99
e.
Notes:
100
repudiation. Therefore, if the heir is voluntary and he
predeceases or repudiates or is incapacitated to
succeed, he transmits nothing to the heirs absolutely
because there is no right of representation as to the
voluntary heir. In the case of the compulsory heir he
transmits no rights to his heirs in case of
predecease, incapacity, repudiation or disinheritance
without prejudice to the right of representation
which, however, may exist only in case of
predecease, incapacity or disinheritance but never
when there is repudiation.
Thus,
in
testate
succession,
the
right
of
representation covers only the legitime. In intestate
succession, it covers the entire share of the person
represented. The whole inheritance would descend
by the rules of intestate succession.
SECTION 2. - SUBSTITUTION OF HEIRS
Define substitution of heirs.
101
Since substitution is merely a second institution, the
principles and rules on institution of heir are applicable to
substitution, except in so far as they may be modified by the
express provisions on substitution. Thus
a.
b.
c.
d.
there
be
substitution
in
devises
and
is
substitution
distinguished
from
102
receive his share, or who died before the testator, is added or
incorporated to that of his co-heirs, co-devisees, or colegatees. As in substitution, therefore, a vacant portion of the
inheritance goes to another heir.
In case of conflicting claims between a substitute
and an heir entitled to accretion, the former should be
preferred, because his right from the express will of the
testator while that of the latter is derived only from a will
presumed by law.
What are the purposes of substitution?
1.
2.
3.
4.
1.
2.
3.
4.
5.
6.
103
2.
3.
4.
5.
1.
2.
3.
Reciprocal (reciproca)
104
Fideicommissary (fideicommisaria).
Where the testator institutes a first heir, and charges
him to preserve and transmit the whole or part of the
inheritance later on to a second heir.
Note: In reality, there are only two kinds of
substitution: the simple and the fideicommissary. These two
are mutually exclusive, i.e., a substitution must be one or the
other, and cannot be both at the same time.
The other two enumerated the brief or
compendious and the reciprocal are mere variations of either
the simple of fideicommissary.
What are the causes of simple substitution?
a.
b.
c.
for
simple
105
No. The second heir succeeds from the testator and
not from the first heir.
Note: It may happen that the heir for whom a
substitute is appointed is a compulsory heir of the testator. In
such case, the substitution cannot affect the legitime,
because the law prohibits the testator from imposing any
charges, conditions, or limitations upon that part of his
inheritance. Besides, the power to appoint a substitute
emanates only from the freedom to dispose by will; since the
legitime is not subject to the free disposal of the testator,
there is nothing to justify his right to order vulgar substitution
as to such part.
What are the instances when the substitution is
extinguished?
a.
b.
c.
d.
e.
f.
106
Such substitution is essentially a conditional
institution of the second heir. Therefore, the
second heir must have the capacity at the
time the condition (renunciation by first
heir) happens. To have capacity, the second
heir must be living at that time (Article
1025); hence, if he had died prior to the
happening of the condition, or the
renunciation, he cannot succeed because of
want of capacity. The capacity must be
determined, not only at the time of the
testators death but also when the condition
happens (Article 1034, par. 3).
X made a will instituting A as heir, and B as
substitute. In 1995, B died, leaving C, his child. In
2000, X died but B is incapacitated to inherit. Can C
inherit from X?
No, because B is a voluntary heir and since he
predeceased the testator, he transmits nothing to his own
heirs.
X made a will instituting B as heir, and B as
substitute. X died in 2000. B renounced the inheritance
in 2001. B died in 2002. Can C, the child of B inherit
from Xs estate?
Yes, because this is not a case of predecease on the
part of B, who after all survived the testator, and immediately
inherited from X, subject to the condition of Bs noninheritance. Since the condition was fulfilled, B inherited. C
gets the estate not as an heir of X but as an heir of B.
X institutes A to 120, 000, B to 20, 000, and C
to 40, 000. The estate is 180, 000. A made the
substitute of B or C; B and C are substitutes of A. A
predeceased B and C. How much will B and C get?
B gets 60, 000. (20, 000 by institution, 40, 000 by
substitution)
C gets 120, 000. (40, 000 by institution, 80, 000 by
substitution)
X makes the following provisions in his will: I
institute A and B to 1/3 of my estate and nominate C as
their substitute. If A predeceases B, will the 1/3
portion go to C?
107
108
b.
c.
d.
e.
109
That the second heir has no heirs is impossible. His
heirs are: descendants, ascendants, and collateral relatives to
the fifth degree, then the state.
What is the effect of the charges and conditions
imposed on the substitution?
General rule: If the substitute inherits, he must fulfill
the conditions imposed on the original heir.
Exceptions:
1.
2.
Distinguish
between
a
fideicommissary
substitution from a simple substitution.
While in the simple substitution, only one of the heirs
inherits, in the fideicommissary, both inherit the property or
right simultaneously, although the enjoyment and possession
are successive.
What are the requisites of the fideicommissary
substitution?
a.
b.
c.
d.
e.
f.
g.
h.
What
mean?
the
requirement
one
degree
110
There is no question that only one transmission is
allowed in fideicomisoria, from the first heir to the second
heir. But, on top of that, does the term one degree mean
that the second heir must be in the first degree of relationship
with the first heir, as the word degree is used in Article 963,
964 and 966? In other words, must the second heir be either
a child or a parent of the first heir?
Yes, ruled the
Ramirez, 111 SCRA 704.
Supreme
Court
in
Palacios
vs.
111
the property which is the subject matter of the
substitution?
Upon the death of the testator or fideicomitente, the
fiduciary heir acquires all the rights of a usufructuary until the
moment of delivery to the fideicommissary substitute. In
other words, pending the transmission or delivery, he shall
possess the beneficial ownership of the property, although the
naked ownership is vested in the fideicommissary substitute.
What are the obligations of the fiduciary heir?
1.
2.
112
2.
2.
3.
113
What is the rule on damage or deterioration?
1.
2.
2.
3.
114
degree from the first. There is no prohibition,
however, on simultaneous beneficiaries.]
4.
115
anybody except B. Moreover, if the first heir can be prohibited
to alienate as long as he lives in order that the same could be
delivered to the second heir, why not for a period of 30 years?
Of course, even if 30 years have not elapsed yet, if the first
heir has already died, the property should be given to B by
virtue of the fideicommissary substitution.
X instituted A as his only heir but prohibited
him and all who may subsequently inherit form him to
dispose of the property for a period of 20 years. X died.
If A dies 3 years after X, will As son B still bound to
respect the temporary prohibition?
Yes, for the next 17 years.
Suppose B died after 10 years more, and the
property is in turn inherited by C who is his son, is C
bound not to alienate for the remaining 7 years?
No more, because although a total of 13 years has
lapsed, still to impose the prohibition for the remaining 7
years on C would be beyond the limits of Article 863, since C
is not a first degree relative of A who originally inherited the
property.
[In case there is no fideicommissary substitution, the
testator can prohibit an heir, and all those who may inherit
from the latter, for a total period of 20 years, provided the
same prohibition will not go beyond the limits imposed by
Article 863 (does not go beyond one degree from the heir
originally instituted)]
X died in 1952 with a will. In the will, he
devised a house and lot to A as fiduciary heirs and to
the latters son, C, as fideicommissary substitute,
declaring that said property shall not be alienated for
100 years. A died in 1962. May B now validly alienate
the property?
No. 3 of article 867 provides that provisions which
contain a perpetual prohibition to alienate, and even a
temporary one, beyond the limit fixed in Article 863 shall not
take effect. There are only two limitations stated in Article
863. They are: first that the substitution must not go beyond
one degree from the heir originally instituted; and second,
that both the first heir and the second heir must be living at
the time of the death of the testator. It is evident that in
testamentary dispositions, which contain a perpetual
116
prohibition to alienate, neither one nor the other can possibly
be violated. He only limitation, which is violated, is that
provided in Article 870. The prohibition to alienate is good for
20 years. Beyond that, it is void. Therefore, in the instant
problem, C must still have to wait for 1972 before he can
validly alienated the property.
What is the effect of
fideicommissary substitution?
the
nullity
of
the
117
Summary:
1.
2.
3.
Substitution as to legitime It is
not
only
fideicommissary
substitution
that
cannot
be
established with respect to the
legitimes of compulsory heirs; all
kinds of substitutions are prohibited
in
so
far
as
legitimes
are
concerned. If the testator provides
for a substitution in relation to a
legitme,
the
substitution
is
considered as not imposed.
SECTION 4
118
1.
2.
3.
4.
119
conditions are those which are fulfilled by abstaining
from doing something.
5.
ii.
iii.
GENERAL PROVISIONS
What is the general rule on the testamentary
freedom of the testator (Article 871)?
GENERAL RULE: The right of the testator to impose
conditions, terms and modes springs from the testamentary
freedom. If he has the right to dispose of his estate mortis
causa, then he has the right to make the dispositions subject
to a condition, term or mode.
What is the exception to this testamentary
disposition (Article 872)?
EXCEPTION: The legitime passes by strict operation
of law, independently of the testators will. This is the logical
consequence of the principle that the testator cannot impose
any charge, condition or substitution whatsoever upon the
legitimes, and should he do so, the same shall be considered
as not written. Therefore, the condition can be imposed only
on the free portion and never on the legitme.
120
2.
121
2.
3.
or
at
is
in
If
imposed
by
the
deceased spouse or by his
ascendants
or
122
b)
b.
descendants condition is
valid.
If imposed by anyone else
condition is considered
as not written.
2.
Are the
enforceable?
following
conditions
valid
and
123
What is scriptura
captatoria?
captatoria
or
disposition
124
1.
2.
3.
are
potestative,
1.
2.
3.
casual
and
mixed
Positive:
1.
2.
Exceptions
a.
b.
125
3.
b.
B.
Negative:
b.
again
ii.
126
administration. The property shall be in the executors or
administrators custody until the heir furnishes the caucion
muciana. The procedural rules governing the appointment of
administrator is governed by Rules 77-90 of the Rules of
Court.
State the effects of the fulfillment or nonfulfillment of the suspensive condition.
1.
2.
127
2.
3.
4.
Resolutory term
Rules:
1.
2.
3.
4.
128
A mode (institucion sub modo) is an obligation
imposed upon the heir, without suspending (unlike in a
conditional disposition), the effectivity of the institution.
State the rules:
A mode must be clearly imposed as an obligation in
order to be considered as one. Mere preferences or wishes
expressed by the testator are not modes.
Requisites:
a.
b.
c.
d.
institution
and
1.
2.
Principles:
129
What is caucion muciana?
It is a security to be put up to protect the rights of
the heirs who would succeed to the property, in case the
condition, term or mode is violated.
What are the instances where caucion muciana
is needed?
1.
2.
3.
SUBSTANTIAL COMPLIANCE
What are the rules in substantial compliance?
1.
2.
3.
a.
b.
1.
2.
130
2.
131
Does the testator have the power to impose
burdens on legitime? Why?
1.
132
A parent who, in the interest of his
heirs 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 or
ordering that the legitime of the other
children to whom the property is not
assigned, be paid in cash.
2.
1.
133
2.
4.
that
determine
the
The
The
The
The
134
3.
62
135
1.
2.
3.
4.
1.
2.
3.
1.
2.
3.
4.
63
illegitimate
136
There must be recognition of the illegitimate
relationship. Articles 172 and 175 of the Family Code provide
the rules on establishment of filiation. 64
What are the different computations for the
legitimes of each compulsory heir?
LC alone
of the estate.
LC and SS
LC: of the estate;
SS: a share equivalent to 1 child.
1LC and SS
LC: of the estate;
SS: of the estate.
LC and IC
LC: of the estate;
IC: share of 1LC.
64
137
1LC, IC and SS
LC: of the estate
IC: of share of 1LC;
SS: (preferred) of the estate.
LP alone
of the estate.
LP and IC
LP: of the estate;
IC: of the estate.
LP and SS
LP: of the estate;
SS: of the estate.
LP, IC and SS
LP: of the estate;
IC: of the estate;
SS: 1/8 of the estate.
SS alone
of the estate (1/3 of the estate if
marriage is in articulo mortis; of the
estate if living together for 5 years).
SS and IC
SS: 1/3 of the estate;
IC: 1/3 of the estate.
SS and IP
138
SS: of the estate;
IP: of the estate.
IC alone
of the estate.
IP alone
of the estate.
LEGITIME OF SURVIVNG SPOUSE IN
TESTAMENTARY SUCCESSION (TESTACY)
Concurring
Heirs
Legitime
Free
Portion
Article
Spouse alone
; 1/3;
Art. 900
Spouse
Art. 892
1 leg. Child
Spouse
Same share
of 1 leg. child
Remainde
r
Art. 898
Remainde
r
Art. 897
2 or more leg.
children
Spouse
Leg. Children
Illeg. Children
Same share
of 1 leg. child
Art.176,
FC. 65
Remainder
not to exceed
free portion
Spouse
65
Art. 895
Arts.889
& 893
139
Leg. Parents
Spouse
Illeg. Parents
Spouse
1/3
Illeg. Children
1/3
Spouse
1/8
Leg. parents
Illeg. Children
Spouse
Brothers and
sisters,
nephews and
nieces
None
Art. 903
1/3
Art. 894
1/8
Art. 899
{Cf. Art
1000}
Art. 900
66
Heirs
Share
Legitimate
child/children
Alone
Article
888
Illegitimate
child/children
Alone
Article
901
Legitimate parents
Alone
Article
889
Illegitimate parents
Alone
Article
66
Free
Portion
Article
140
903
Heirs
Legitimate
parents
Share
Free
Portion
Article
Arts. 888
& 896
Remainder,
if any
Arts.
176(FC)
Illegitimate
children
Legitimate
children
Illegitimate
Children
Illegitimate
children
Illegitimate
parents
of share of
1 leg. child
Art. 903
None (being
excluded)
141
where the right of representation is proper. This is known as
the rule of proximity.
a.
b.
a.
142
b.
c.
Such
renunciation
or
compromise
contravenes the policy of the law which
seeks to secure to the testator the greatest
possible freedom in disposing of his
property by will (Article 783), and to
prevent the utilization of the will form as a
vehicle fro imposing contractual obligations
on the testator.
A
future
legitime
involves
future
inheritance, and under Article 1347, par. 2,
no contract may be entered into upon
future inheritance except in cases expressly
authorized by law.
1.
2.
143
3.
Article 1347.
67
1.
2.
1.
2.
67
144
What is the remedy of the compulsory heir to
whom the testator has left any title less than the
legitime belonging to him?
1.
2.
145
does not lose his legitime but on the other hand, he
cannot claim more than his legitime. He has
therefore a right to claim what is lacking, that is, the
completion of the portion that by law belongs to him.
However, in the case of preterition, the compulsory
heir who was totally omitted has the right to demand
his legitime and also demand that the institution of
heirs be annulled except the devises and legacies.
How is legitime determined?
1.
2.
3.
4.
146
5.
6.
7.
3 steps:
1.
2.
147
which are purely persona; are not taken
into account.
(3) The difference between the gross assets
and th unpaid obligations will be available
assets.
3. Adding the value of donations inter vivos
148
1.
2.
149
3.
a.
Exceptions
1.
2.
3.
b.
68
150
Exceptions
1.
2.
c.
Donation to spouse
General rule not allowed.
d.
1.
2.
3.
151
4.
1.
2.
3.
152
unimpaired, reduction is necessary because there are
donations and the donations and the legacies together exceed
the free portion. While Article 950 will be applied when the
reduction is between the legacies themselves alone because
there are no compulsory neither heirs; nor donation inter
vivos, or there being compulsory heirs their legitimes are
unimpaired and there are no donations.
1.
2.
3.
4.
1.
2.
3.
4.
153
5.
6.
7.
1.
2.
154
Testator X dies leaving his legitimate children A
and B, surviving spouse S and one acknowledged
natural child C. While alive X donated P5, 000 to A in
1995, another P5, 000 to C in 1998 and P10, 000 to D a
very good friend in 1993. His gross estate at the time
of his death if P20, 000. His debts and liabilities
amount to P15, 000. Divide the estate:
1.
2.
3.
4.
5.
6.
7.
8.
9.
1.
155
2.
3.
1.
2.
1.
2.
3.
156
It is a system of reserve by virtue of which an
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 the said property
came.
Illustration and diagram:
Reservatorio
O (Origin)
R (Reservista)
P (Prepositus)
P (prepositus) inherits a piece of land from his father,
O (origin). Subsequently, P dies intestate, single and without
issue, and the land is in turn inherited by his mother R
(reservista). R is now required to reserve the property in
favor of Ps paternal relatives within the third degree
(rerservatorios).
What are the three transmissions are involved
in a reserva troncal?
1.
2.
3.
157
DESCENDANT (PREPOSITUS)
LEG. RELATIVES
1. RECEIVES PROPERTY BY
GRATUITOUS TITLE
ASCENDANT
ASCENDANT (RECEIVES BY LAW)
2. DIED WITHOUT ISSUE
What are the purposes of reserve troncal?
1.
2.
2.
3.
4.
158
1.
2.
3.
4.
Notes:
issue?
159
Can there be reserve if the prepositus is an
adopted child?
Under the old rule: No, because adoption only
creates a personal relationship between the adopter and the
adopted; hence, there are no relatives of the adopted or
adopter by adoption. For the same reason, an adopted child
cannot claim the benefit of reserva troncal, and therefore
cannot be a reserve through adoption.
Under the new rule: Yes. The adopted may represent
the adopter in the inheritance of the latters parents (Section
17, R.A. No. 8552 [1988]). 69
Suppose that there are several persons who
can qualify as reservatorios, to whom shall the
reservable property be adjudicated?
In such a case, the rules of intestate succession shall
apply. This is because Article 891 merely determines the
group of relatives to whom the reservable property should be
returned; it is silent with regard to the individual right of such
relatives to the property. Thus, the following principles of
intestate succession still apply:
1.
2.
3.
4.
69
160
the full blood, the principle of double share for the
full blood collaterals shall apply those of the full
blood shall be entitled to double the share of those of
the half blood.
What is the meaning of line in reserva
troncal?
The term line is not used in the juridicogeometrical sense of direct or collateral lines, but in the
familiar sense of paternal and maternal lines. Exception:
When the origin is a full-blood brother or sister, who comes
from the same common parents, the line would be the same.
Can money be reserved?
Yes. In money, the property is the purchasing power
and not the bills. As such, the value of the money can be
reserved.
The origin/mediate source:
He is either an ascendant or a brother or sister of the
prepositus:
1.
2.
b.
161
He is either a descendant or a brother/sister of the
origin, who receives the property from the origin by
gratuitous title. Thus, in the scheme of the reserva troncal, he
is the first transferee of the property.
He is the point of reference of the 3rd degree
relationship.
While the property is still with the prepositus there is
as yet no reserve. During the lifetime of the prepositus, he is
the full owner of the property. He can therefore alienate the
property and defeat the seeds of reserva troncal at this point
of time. He can even prevent the supposed reservor from
receiving it (by operation of law) causing its partition. The
reserve arises only upon the second transferor.
The origin must be a legitimate relative because
reserva troncal exists only in the legitimate family. The
prepositus must be a legitimate descendant or a legitimate
half brother of the origin of the property.
The reservista or reservor
He is an ascendant of the prepositus by whatever
degree. The reservista must be an ascendant other than the
origin; otherwise, if the two parties are the same person,
there would be no reserva troncal.
He must be another ascendant other than the
mediate source, if the mediate source is an ascendant.
The reservor must have inherited the property by
operation of law (as share in legal succession or as legitime in
testamentary succession). If he acquire it through other
means, there is no obligation to reserve.
Reserva troncal begins once the reservista inherits
the property. He is bound by the obligation.
The ownership of the reservoir over the property is
full ownership subject, however, to two (2) resolutory
conditions: (1) his death; and (2) on his death, the presence
of relatives of the prepositus who are within the third degree
of consanguinity. Upon the death of the reservor, his
ownership is terminated and the same is transferred to the
reserves.
162
Should the origin and the reservista belong to
different lines?
Query illustrated: A receives by donation a parcel of
land from his paternal grandfather X. Upon As death, the
parcel passes by intestacy to his father Y (Xs son). The
property never left the line. Is Y obliged to reserve?
One view: No, because another ascendant is one
belonging to a line other than that of the reservista.
Another view: Yes, because: 1) the law makes no
distinction, and 2) the purpose of the reserve is not only
curative, but also preventive; i.e. to prevent the property
from leaving the line. This is the view accepted by the
majority.
May the reservista sell the reservable property?
If so, what is the nature of the sale?
Yes, because he acquired ownership of the
reservable property upon the death of the descendant
propositus. The sale, however, is subject to the resolutory
condition that there must exist, at the time of his death,
relatives of the descendant who are within the third degree
and who belong to the line from which the property came. In
this case, the buyer acquires a limited and revocable title.
After the death of the reservista, the reservatorios may
rescind the contract because the resolutory condition to which
the reserve is subject has already been fulfilled.
If the reservor has alienated the property, his estate
will reimburse the reserves for the value of the reserved
properties which were alienated (Lunsod vs. Ortega, 46 Phil.
664).
Can the reservista execute a will disposing of
the reservable property?
No, because the reservable property does belong to
him or his estate. The property belongs to the reservatorios if
they are existing upon the reservistas death.
The reservoir cannot dispose of the reservable
property by acts mortis causa because upon his death, the
property does not belong to his estate. Automatically, and by
163
operation of law, the reserves if there are any, become the
owners thereof.
Is the reserved property part of the reservistas
estate which can be transmitted to his heirs or which
may be used to pay the debts of his estate?
A reservista is nothing but a life usufructuary or a
fiduciary of the reservable property received.
Reservable property neither comes, nor falls under
the absolute dominion of the ascendant who inherits and
receives same from descendant, therefore does not form part
of his property nor become the legitime of his forced heirs. It
becomes his own property only in case that all relatives of his
own descendant shall have died in which case said reservable
property losses such character [Florentino vs. Florentino, 40
Phil. 480].
The reserved property is not part of the reservistas
estate upon his death. It does not even answer to the debts
of the latter [Cano vs. Director, 105 Phil. 1]. The reservable
property cannot be transmitted by a reservista to his or her
own successors mortis causa so long as a reservatorio within
the 3rd degree from the propositus are in existence when the
reservista dies.
Consequently, the creditors of the reservor cannot
attach or levy on execution a reservable property temporarily
held by the reservor.
Can the property reserved be substituted?
The very same property must go to the process of
transmissions in order for the reserve to arise. Thus, the
same property must come from the mediate source, to the
prepositus by gratuitous title, and to the reservista by
operation of law. If the prepositus substitutes the property by
selling, bartering, or exchanging it, the substitute cannot be
reserved, since while the property is with the prepositus,
there is yet no reserve, which commences only when the
property is received by the reservista. Consequently, the
prepositus has, over the property, plenary powers of
ownership, and he may exercise these powers to thwart a
potential reserve. This refers to all kinds of properties real
or personal, fungible or non fungible.
What is the nature of reservistas right?
164
1.
2.
3.
4.
will,
prefer
some
3.
165
What
are
reservatorio?
1.
2.
3.
4.
5.
6.
the
requirements
to
be
166
What are therefore the only requisites for the
passing of the title from the reservista to the
reservatorio?
They are (1) death of the reservista; and (2) the fact
that the reservatorio has survived the reservista.
From whom do the reservatorios inherit?
They inherit from the descendant propositus and not
from the reservista, of whom the reservatorios are the heirs
mortis causa, subject to the condition that they must survive
the reservista. The reservable property is not part of the
estate of the reservista, who may not dispose of it by will, as
long as there are reservatorios existing.
Is there preference among the reservatorios?
They are beneficiaries in equal shares, regardless of
the difference in degree of relationship with the prepositus.
Is there representation among reservatorios?
As in intestate succession, the rule of preference of
degree among reservatorios is qualified by the rule of
representation.
If the claimants of the property after the death of the
reservor are brothers and sisters of the prepositus and
nephews and nieces (children of other brothers and sisters
who have predeceased the reservoir), the right of
representation is applicable as long as the representatives are
relatives to the prepositus within the third degree (Florentino
vs. Florentino, 40 Phil. 489).
What are the reservatorios rights?
(1) The reservatorios have a right of expectancy
over the property;
(2) The right is subject to a suspensive condition,
i.e. the expectancy ripens into ownership if the
reservatorios survive the reservista;
(3) The right is alienable, but subject to the same
suspensive condition;
(4) The right is registrable.
Can the reservatorio (reservee) alienate his
right of expectancy during the lifetime of the reservor?
167
168
and the other half should be free and remain in the estate of
the reservor.
Illustration:
A died leaving a will. C received P1, 000, 000
from A by virtue of the latters will. C in his own right,
acquired properties worth P2, 000, 000. C died without
issue. In his will, he gave the entirety of his estate (P3,
000, 000) to B. One-half of this P3 Million was received
by B by operation of law (i.e. legitime) and the other
half by will as voluntary heir.
When B died, there is a surviving relative who
qualified as a reservee (D).
Is the entire property (P3, 000, 000) received
by B reservable?
The reservable property refers only to the P1 Million
received by C from A and not the entire P3, 000, 000.
Out of this
reservable portion?
1.
2.
P1
Million,
how much
is
the
169
Note: The principles of reserva maxima and reserva
minima are advocated by Manresa and Scaevola. These
principles or theories need not be followed in the Philippines.
They will only complicate the already complicated reserva
troncal. The law must be interpreted to mean that the entire
property actually received by the prepositus be considered
reservable. The phrase by operation of law should not be
considered in its technical sense. It should be read simply to
mean inherited by the reservor. Otherwise, if some part of
the property will be retained by the reservor, the intention to
return the property to the trunk where it came from is
partly defeated. Therefore, if reserva troncal is applicable, the
problem will just be a matter of identifying the property or
knowing its value and which must be transmitted to the
reservees, if there are any. If there are none, the property
shall remain part of the estate of the reservor and shall pass
to his own heirs.
Extinguishment
How may the reserva be extinguished?
1.
2.
3.
4.
5.
6.
7.
8.
170
b.
Define disinheritance
It is the process or act, thru a testamentary
disposition of depriving in a will any compulsory heir of his
legitime for true and lawful causes.
What
are
disinheritance?
1.
the
requisites
of
valid
2.
3.
171
5.
6.
7.
172
His legitime;
His intestate portion; and
Any other testamentary disposition made in a prior
will of the disinheriting testator.
What is ineffective disinheritance?
1.
2.
3.
If
there
is
ineffective
or
imperfect
disinheritance, will the heir in question get any part of
the free portion other than his legitime?
The heir in question gets his legitime, but as to
whether he will also get any part if the intestate portion or
not, depends on whether the testator gave away the free
portion through testamentary dispositions. If he did, these
dispositions are valid and the compulsory heir improperly
disinherited gets his legitime. If the testator did not, the
compulsory heir will be entitled to his corresponding share of
the free portion as well.
173
What is the difference
disinheritance and preterition?
between
imperfect
2.
3.
4.
5.
6.
7.
8.
174
Can an intestate heir who is not a compulsory
heir be the subject of disinheritance?
Intestate heirs who are not compulsory heirs (not
entitled to legitime) cannot be the subject of disinheritance.
The right to disinherit must be exercised through a will where
the specific cause for disinheritance must be specifically
stated.
Re: Par. 1 (Attempt against the life of
testator)
175
for adultery or
spouse of the
176
1.
2.
177
3.
4.
for the
whether
178
5.
6.
7.
8.
NOTES:
Enumeration is exclusive.
Nos. 2, 5 & 7 are the same as the grounds in Art.
919.
Exception to par. 6: Adoption, age of majority.
The loss of parental authority should have been
effected either:
i.
ii.
iii.
179
3.
4.
5.
6.
c.
of
setting
aside
the
180
Note: There is no required form of reconciliation. It
may be express or implied. In fact, the mere act of living
together in the same house is sufficient.
Is
there
disinheritance?
right
of
representation
in
181
Distinguish
ordinary heir.
legatee
and
devisee
from
an
importance
of
the
182
2.
3.
183
State the rule if the thing was owned by
another person at the time of making of the will and
acquired thereafter by the legatee/devisee.
1.
2.
184
1.
2.
What is the
legacies/devises?
1.
2.
rule
on
validity
of
generic
185
1.
2.
c.
When is a
demandable?
legacy
of
periodical
pension
vest?
1.
2.
3.
4.
186
1.
2.
3.
4.
acceptance
and
Primarily substitution;
Secondarily accretion;
Tertiarily intestacy.
187
2.
3.
4.
Alienation;
Total loss;
If the legacy is a credit against a third person or the
remission of debt, and the testator, subsequent to
the making of the will, brings an action against the
debtor for payment.
CHAPTER 3. INTESTATE SUCCESSION
3.
4.
5.
6.
7.
8.
1.
2.
188
3.
an exception
to
the
principle
of
2.
189
3.
4.
5.
2.
3.
190
person with those from whom he descends. (Article
965)
Who are collaterals by degrees?
1.
2.
3.
4.
5.
191
What is the effect of renunciation by all in the
same degree?
The right of succession should first be passed on the
heirs in succeeding degrees (in successive order) before the
next line can succeed, because of the rule if preference of
lines. Thus:
1.
2.
3.
192
a.
Legitime; and
b.
Intestacy.
shall
the
right
of
In testamentary succession:
a.
b.
c.
2.
In intestate succession:
a.
b.
193
of other heirs who can exclude them from
the succession, a brother or sister is
incapacitated to succeed from the decedent
and he or she has children. (Articles 972,
975, 1035).
Can an heir who repudiates his inheritance be
represented?
No, because an heir who has repudiated
inheritance may not be represented (Article 977).
his
194
If the child to be represented is legitimate only
legitimate children/descendants can represent him (Article
992).
If the child to be represented is illegitimate both
legitimate and illegitimate children/descendants can represent
him (Articles 902, 989, 990)
Is there representation by a renouncer?
Although a renouncer cannot be represented, he can
represent the person whose inheritance he has renounced
(Article 976). The reason is in Article 971 The representative
does not succeed the person represented but the one whom
the person represented would have succeeded.
How does representation operate?
Per stirpes the representative receives only what
the person represented would have received. If there are
more than one representative in the same degree, then the
portion is divided equally, without prejudice to the distinction
between legitimate and illegitimate children, when applicable.
What are the rules on qualification?
1.
2.
3.
195
What is the difference in the rule in case of
representation by grandchildren and representation by
nephews and nieces?
1.
2.
Legitimate
children/
descendants;
Illegitimate
children/descendants;
Legitimate parents/ascendants;
Illegitimate parents;
Surviving spouse;
Brothers,
sisters,
nephews,
nieces;
Other collaterals to the 5th
degree;
State.
Exclude
parents,
collaterals and state.
They
concur
with
surviving
spouse
and
illegitimate children.
They are excluded by no
one.
Exclude
state
collaterals
and
196
b.
c.
c.
Exclude
parents,
state
Concur
spouse,
children
parents
They are
one
illegitimate
collaterals and
with
and
surviving
legitimate
legitimate
excluded by no
b.
c.
Exclude
all
other
collaterals and the state
Concur
with
surviving
spouse
197
c.
Exclude
collaterals
in
remoter degree and the
state
Concur with collaterals in
the same degree
Are excluded by legitimate
children,
illegitimate
children,
legitimate
parents,
illegitimate
parents, surviving spouse,
brothers and sisters, and
nephews and nieces.
(8) State.
a.
b.
c.
2.
Excludes no one
Concurs with no one
Is excluded by everyone
[For
rules
of
exclusion
concurrence, see above]
and
(1)
(2)
(3)
(4)
198
in
2.
3.
4.
5.
6.
7.
8.
199
Surviving spouse of the estate.
9.
spouse
of
and
the
Illegitimate
brothers,
sisters,
nephews, nieces of the estate
(the nephews and nieces inheriting
200
by
representation,
cases).
in
proper
201
b.
If decedent
Philippines:
never
1.
c.
Personality property to
municipality
of
last
residence
Real property where
situated
a
resident
of
the
where
respectively situated.
2.
202
party, or motu propio,
court may order creation
of a permanent trust for
the
benefit
of
the
institution concerned.
What are the successional rights of illegitimate
children in intestate succession?
a.
b.
c.
d.
e.
f.
203
Can an illegitimate child inherit ab intestato
from the legitimate children and relatives of his father
or mother, and vice versa?
No, an illegitimate child has no right to inherit ab
instestato 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 (Article 992).
This is the well known, and much criticized,
successional barrier between legitimate and the illegitimate
relatives of a decedent.
What are the successional rights
surviving spouse in intestate succession?
of
the
204
INTESTACY: INTESTATE SHARE OF SURVIVING SPOUSE
SPOUSE AND
CONCURRING
HEIRS
SHARE
ARTICLE
1. Spouse alone
1. All
Articles
995 & 996
1. Spouse
1.
Article 996
2. 1 leg. Child
2.
1. Spouse
Article 996
Articles
999 & 176
FC 71
2. 2 or more leg.
children
1. Spouse
2. Leg. Children
3. Illeg. children
2. 2 shares each
3. 1 share each
1. Spouse
1.
2. Leg. parents
2.
1. Spouse
1.
2. Illeg. parents
2.
Article 997
Article 991
(by
analogy)
Article 889
(by
71
205
analogy)
1. Spouse
1.
2. Illeg. children
2.
1.Spouse
1.
2. Leg. parents
2.
3. Illeg. Children
3.
1. Spouse
1.
2. Brothers &
sisters, nephews
& nieces
2.
Article 998
Article
1000
Articles
1001 &
994
206
a.
b.
c.
3.
4.
Surviving
spouse
children + adopter
and
illegitimate
207
6.
Predecease
Incapacity
Repudiated
208
b.
In testamentary succession:
a.
As to legitime:
i.
ii.
iii.
iv.
b.
In case of prerdecease of
an
heir,
there
is
representation if there are
children or descendants; if
none, the other heirs
inherit in their own right.
In case of incapacity of an
heir, the results are the
same as in predecease.
In case of disinheritance
of an heir, the results are
the same as in incapacity
or predecease.
In case of repudiation by
an heir, the other heirs
inherit in their own right;
no accretion.
b.
209
c.
210
e.
b.
211
are however some well known exceptions, such as those
organizations or associations for religious, scientific, cultural,
educational, or charitable purposes mentioned in Article 1026
or the poor in general contemplated in Article 1030.
Give and
incapacity.
define
the
different
kinds
of
b.
the
different
kinds
of
relative
212
1.
2.
3.
4.
5.
6.
7.
8.
9.
213
4.
5.
6.
7.
8.
A written condonation, or
The execution by the offended party of a will with
knowledge of the cause of unworthiness.
214
effect
of
incapacity
upon
2.
215
3.
the
extent
of
representation
in
216
b.
c.
repudiates
his
b.
c.
72
217
1187)] Similarly, if the condition does not
happen, the property goes to the appropriate
successor, with the same retroactive effect.
When may an heir, legatee or devisee accept or
repudiate his inheritance?
When the following requisites are present:
1.
2.
218
2.
3.
4.
c.
219
3.
4.
5.
6.
If he renounces it for a price in favor of all his coheirs indiscriminately; but if the renunciation should
be gratuitous, and the co-heirs in whose favor it is
made are those upon whom the portion renounced
should devolve by virtue of accretion, the inheritance
shall not be deemed accepted; (Article 1050)
If he performs acts of preservation or administration
from which it can be inferred that he has assumed
the title or capacity of an heir; (Article 1049)
If he fails to accept or repudiate within a period of
thirty days after the issuance of the order of
distribution of the estate. (Article 1057)
When the heir demands partition of the inheritance.
220
transactions, or dispositions of their debtors which will
prejudice or defraud them
If the heir should die without having accepted
or repudiated the inheritance, is his right to the
inheritance extinguished?
No, if the heir should die without having accepted or
repudiated the inheritance, his right shall be transmitted to
his heirs. (Article 1053) This rule is a consequence of the
principle that the right of succession vests at the moment of
death (Article 777). Therefore, the right of the heir who dies
before accepting or renouncing is already vested and is
transmitted to the heir.
But in order that this be available two requisites
must concur:
a.
b.
221
Note: This rule is not applicable to legitime. In view
of the rationale of the rule, should the heir be simultaneously
as compulsory heir and a testamentary heir, he can accept
either or both. The legitime passes not because of any implied
will or wish of the decedent but by strict operation of law,
irrespective of the decedents wishes. Thus, the term ab
intestato in this article refers solely to intestate succession.
What is the nature of the acceptance or
repudiation of an inheritance?
The acceptance or repudiation of an inheritance,
once made, is irrevocable, and cannot be impugned (Article
1056).
The exceptions are:
a.
b.
1.
2.
222
away in accordance with law to the prejudice of his
compulsory heirs. Equality among children will thus
be insured.
3.
b.
an
c.
4.
223
donations inter vivos, whether to compulsory heirs or
to strangers. The immediate purpose is to determine
or compute the legitime of compulsory heirs.
Under Articles 1061 to 1077, collation refers to the
subsequent act of charging or imputing the value of
the thing donated against the legitime of the
compulsory heir to whom the donation is made.
Thus, when the Code says that a property or right
which a compulsory heir had received by gratuitous
title from the decedent, during the lifetime of the
latter, must be brought to collation, what is meant is
that the value of such property or right shall be
considered as an advance of his legitime and,
therefore, imputable against it during the partition.
Hence, it is applicable only to donations made to a
compulsory heir who succeeds with other compulsory
heirs.
5.
b.
c.
here
is
one
made
to a
224
d.
e.
f.
225
gratuitous title. However, there may be
difference in imputation; it is either
imputable to the legitime or the free
portion. Since donations or gifts by
gratuitous title to compulsory heirs are
generally chargeable to the their legitime,
when the testator provides that there be no
collation, the evident meaning is that it
should not be imputed to the legitime but to
the free portion. That is the reason why if it
exceeds the free portion it should be
reduced insofar as it is inofficious.
6.
7.
2)
ii.
If
the
donee
renounces
the
inheritance, because
in this case the donee
gives up his status as
a compulsory heir and
therefore cannot be
considered as one.
(Article 1062)
226
b.
8.
strangers
9.
227
228
personal property of the
inheritance at its just price.
13. Who owns the fruits and interests of collationable
properties? (Article 1075)
a.
b.
c.
73
229
PARTITION
Define partition.
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. (Article 1079)
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, an exchange, a compromise, or
any other transaction. (Article 1082)
2.
2)
amount expended.
230
some of the participants or coowners, the rest remaining in a
state of indivision or community
ownership.
d.
2)
e.
Extra-judicial when it is
effected by the testator himself,
or by some person named by
such
testator, or
by
the
participants
or
co-owners
themselves amicably or by
common accord.
(1) Made
by
the
testator (Article
1080)
(2) Made
by
the
decedent in an
act inter vivos
(Article 1080)
(3) Made
by
the
heirs themselves
(Rule 74, Sec.,
Rules of Court)
(4) Made by a third
person entrusted
by the testator or
decedent (Article
1081, par. 1).
2)
3.
231
c.
d.
e.
f.
5.
6.
7.
232
d.
e.
8.
By will, or
By act inter vivos
9.
233
12. When may an heir demand the division of the
estate?
Every co-heir has a right to demand the division of
the estate at any time (Article 1083). This is the
same rule laid down in Article 494, par. 1.76
13. What are the instances when partition cannot be
demanded?
a.
b.
c.
d.
14. 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
the debts of the deceased. (Article 1078)
The immediate effect of the decedents death is the
vesting of the success ional rights of the successors
because the rights to the succession are transmitted
from the moment of the death of the decedent
76
234
(Article 777). The estate however is a mass of
properties. The immediate effect, therefore, of the
decedents death is a co-ownership of the heirs over
the entire mass. Partition ends the co-ownership
among the co-heirs as to the thing partitioned.
Kinds of partition:
a.
b.
235
b.
17.
g.
Note:
>Sale must be made to stranger a stranger within
the meaning of this article is anyone who is not a coheir. (Basa vs, Aguilar, 117 SCRA 128)
236
>When right of redemption may be exercised the
right may be exercised only before partition, not
after. (Caro vs, CA, 113 SCRA 10)
>Written notice is required without it period does
not commence to run (Garcia vs. Calaliman, 172
SCRA 201)
20. What is the rule if a thing is indivisible, or would be
much impaired by its being divided? (Article 1086)
a.
b.
21. Upon partition, what are the obligations of the coheirs among each other? (Article 1087)
The co-heirs shall reimburse one another:
a.
b.
c.
b.
237
Note: This article only provides for the right over the
document. The co-heirs, however, have the right to
have the title divided into individual titles, separate
for each of the owners to correspond to the separate
portions held by them respectively.
1.
EFFECTS OF PARTITION
77
238
Those who pay for the insolvent heir shall have a
right of action against him for reimbursement,
should his financial condition improve. (Article 1093,
par. 2)
Exception [When there is nor right to be reimbursed]
When the insolvency has been judicially declared,
since judicially declared insolvency extinguishes all
obligations.
27. What is the period within which to file an action to
enforce the warranty among co-heirs?
It must be brought within ten years from the right of
action accrues. (Article 1094)
28. If a credit should be assigned as collectible, what is
the effect of the subsequent insolvency of the
debtors estate on the co-heirs?
The co-heirs shall not be liable for the subsequent
insolvency of the debtor of the estate, but only for
his insolvency at the time the partition is made
(Article 1095). [The warranty covers only insolvency
of the decedents debtor at the time of partition, not
subsequent insolvency, for which the co-heir takes
the risk.]
29. What is the period within which the warranty of the
solvency of the debtor can be enforced?
It can only be enforced during the five years
following the partition. (Article 1095, par. 2)
Warranty for good debts that the debtor is solvent
at the time of the partition (not later). The warranty
is good for five years following the date of the
partition.
There is no warranty for bad debts an heir accepts
them at his own risk.
30. Are co-heirs bound to warrant bad debts?
Co-heirs do not warrant bad debts if:
a.
239
b.
b.
c.
d.
e.
RESCISSION
PARTITION
AND
NULLITY
OF
240
Note the slight variation from pars. 1 & 2 of Article
1381, which specifies more than one-fourth, while
Article 1098, provides for a minimum lesion for
rescission, which is one-fourth (25%). In cases of
partition of the inheritance, Article 1098 applies.
34. What is the exception to the rule that partition can
be impugned on the ground of lesion?
A partition made by the testator himself is not
subject to rescission even in case of lesion in the
amount specified in Article 1098. (Article 1099)
Exceptions:
a.
b.
b.
241
alienated in whole or a considerable part of the real
property, he cannot maintain an action for rescission
on the ground of lesion, but he shall have a right to
be indemnified in cash. (Article 1102)
37. What is the effect if there is a preterition of any of
the compulsory heirs in the partition of the
decedents estate?
A partition made with preterition of any of the
compulsory heirs shall not be rescinded, unless it is
proved that there was bad faith or fraud on the part
of the other persons interested; but the latter shall
be proportionately obliged to pay to the person
omitted the share which belongs to him (Article
1104)
38. What is the effect if the partition includes a person
believed to be an heir, but who is not?
A partition, which includes a person, believed to be
an heir, but who is not, shall be void only with
respect to such person. (Article 1105)