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SUCCESSION

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THE AWESOME NOTES

GENERAL PROVISIONS

RULE ON TRANSMISSIBILITY OF PECUNIARY


OBLIGATIONS

BEFORE DISTRIBUTION OF THE ESTATE


- obligations of the estate must first be satisfied

DEFINITION
SUCCESSION
is a mode of acquisition, by virtue of which
the property, rights and obligations to the
extent of the value of the inheritance of a
person
are transmitted through his death
to another or others
by his will or by operation of
law

LIABILITY OF THE HEIRS TO SUCH OBLIGATIONS


OF THE ESTATE
- limited only up to the value of the property they
received from the estate

WHEN HEIRS ACQUIRES RIGHT OVER


INHERITANCE
ONLY FROM
the moment of the death of the testator

INHERITANCE
all property, rights and obligations of a person
- which are note extinguished by bis death

DECEDENT
person whose property is transmitted through
succession,
whether or not he left a will

IF DECEDENT HAS LEFT A WILL


- he is called Testator

HENCE; PRIOR TO THE DEATH OF THE TESTATOR


- the interest of the heirs over the inheritance is merely
inchoate or a mere expectancy.

Q: CONTRACT ENTERED UPON FUTURE


INHERITANCE
A: void

EXTENT OF INHERITANCE
only transmissible property, rights and obligations; or
those not extinguished by the decedent's death

THIS REMAIN TRUE EVEN


before judicial declaration of their being heirs
in the testate or intestate proceedings.
- as after such declaration, their rights
retroact to the moment of the death of
the decedent

NOTE: OBLIGATION
thus, it follows that the heirs does not succeed
only to rights and properties, but as well as the
decedent's obligations.

RULE OF TRANSMISSIBILITY OF RIGHTS AND


OBLIGATIONS

TRANSMISSIBLE RIGHTS AND OBLIGATIONS

Patrimonial Rights
UNLESS:
otherwise provided by will or by law
Rights and obligations arising from contracts
UNLESS:
not transmissible by their nature, stipulation or
law

NOT TRANSMISSIBLE
- purely personal rights

REQ:
1. succession has not yet been
opened
2. the object of the contract forms
part of the inheritance
3. the promissor has with respect to
the object, an expectancy of a
right which is purely hereditary in
nature

NOTE: the law in force at the time of the decedent's


death
- shall determine who are the heirs.

ESTATE TAX
STATE CAN COLLECT
- from the moment of death of the decedent

VALUATION
- based on the value of the estate at the time of the
death of the decedent
REGARDLESS OF
- subsequent appreciation or depreciation

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

2 of 56

THE AWESOME NOTES


Q: if the heirs inherit shares of stock of a
corporation, do they automatically becomes the SH
of said corporation?
A: NO!

THE RULE:
transfer of title by means of succession, though
effective and valid between the parties involved,
DOES NOT BIND
corporation and 3rd persons

TO BIND CORPORATION
GEN RULE:
The transfer must be registered in the books of
the corporation to make the transferee-heir a
SH

EXE
Registration of Transfer shall not be required
when;
- the transferee held definite and uncontested
titles to a specific number of shares of the
corporation

KASI:
the registration here becomes mere
formality nalang in confirming their
status as sh.

KINDS OF SUCCESSION
TESTAMENTARY SUCCESSION
- designation of an heir is made in a will, executed in
the form prescribed by law

LEGAL OR INTESTATE SUCCESSION


- if a person dies intestate, or with a void will, or one
which has subsequently lost its validity

MIXED SUCCESSION
- effected partly by will and partly by operation of law

common:
intestate succession with regard to free portion
not disposed by the will

COMPULSORY SUCCESSION
- by operation of law, with resect to the legitime in favor
of compulsory heirs

HEIR, DEVISEE AND LEGATEE


HEIR
- person called to he succession either by provision of
the will or by operation of law

DEVISEE
- person to whom gifts of real property is given by will
LEGATEE
- person to whom gifts of personal property is given by
will.

HEIR
anyone who succeeds
to the whole or to a
portion or fraction of
the inheritance

DEVISEE

LEGATEE

person who succeed the


testator in a determinate
or individualize thing or
quantity

exist in testamentary c a n o n l y e x i s t i n
a n d i n i n t e s t a t e testamentary succession
successio
IN CASE OF PRETERITION
the institution of heirs remains effective to the
is annuled
extent that the legitime
are not impaired

KINDS OF HEIRS
VOLUNTARY HEIRS
- those who are instituted by the testator in his will
- the right to succession is entirely dependent upon the
will

LEGAL OR INTESTATE HEIRS


- those who succeed to the estate of the decedent who
dies without a valid will, or such portion not disposed of
by will

COMPULSORY HEIRS
- those who succeed by force of law to some portion of
the inheritance called the legitime

LEGITIME
- an amount predetermined by law, of which
they cannot be deprive by the testator, exe by
valid disinheritance

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

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THE AWESOME NOTES

TESTAMENTARY SUCCESSION
WILLS IN GENERAL

WILL; defined as
a personal, solemn, revocable and free act
by which a capacitated person
disposes of his property and rights; and
declares or complies with duties
to take effect after his death.

NOTE: WILL MUST BE IN WRITING


ART. 804
every will must be in writing

RIGHT TO MAKE A WILL IS PURELY STATUTORY


ART. 783
a person is only permitted with the formalities
prescribed by law, to dispose of his estate effective
upon his death through his will

DISPOSITION OF HIS ESTATE BY WILL


DIRECTLY
- by designating persons who shall inherit
INDIRECTLY
- by validly disinheriting

M A K I N G O F W I L L S I S P U R E LY
PERSONAL ACT

CONSEQUENCES
1. the making of the will cannot be left in whole or in
part to the discretion of a 3rd person
2. cannot be accomplished through the instrumentality
of an agent or attorney
3. testator cannot make testamentary disposition in
such a manner that another person has to
determine whether or not it is to be operative
4. will cannot be subject of a compromise agreement
which would thereby defeat the very purpose of
making a will

WITH RESPECT TO DELEGATION;


WHAT CANNOT BE DELEGATED
(essence of will making)
1. the designation of HDL
2. duration or efficacy of such designation (including
such terms, conditions or substitutions); and
3. the determination of the portion they are to receive,
when referred to by name

EXE: it is proper when


1. what is delegated is purely mechanical act of
drafting the will
2. what is delegated is

NOTE: WILL WHICH PROVIDES A


PROVISION DISINHERITING AN HEIR
- it can only be effected after probate of the will.

PROVIDED
the testator has already determined the
property or amount of money to be given

WILL TO TAKE EFFECT AFTER THE TESTATOR'S


DEATH
AS: a will is a disposition mortis causa

the manner of distribution of specific property or


sum of money that the testator leave in general
to SPECIFIED CLASS or CAUSES

Q: is a survivorship agreement between H and


W with respect to their joint bank account be
deemed as conveyance mortis causa and
hence should be embodied in a will?
A: NO
- because since it is a joint account, a nature of
conjugal funds, it does not comes within the
term of a will
which is "dispose of his property and
rights."

the designation of the person, establishment or


institution to which such property or sum of
money to be given or applied

PROVIDED
the testator has already determined the class
or cause to be benefited

NOTE: #2
no delegation of the will or testamentary
disposition as the testator himself has already
made the disposition
- what is delegated here is the details of its
execution

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

4 of 56

THE AWESOME NOTES

RULES IN INTERPRETATION OF
WILLS

RULE THAT INTENT OF TESTATOR IS SUPREME


LAW IN SUCCESSION

RULE FAVORING TESTATCY


interpretation that the will render a testamentary
disposition operative TAKE PRECEDENCE
over construction that will nullify a provision of
the will.

GEN RULE:
- to be taken in their ordinary and grammatical
sense

EXE:
clear intention to use them in another sense
can be gathered
AND the other sense can be
ascertained

BASTA: interpretation which shall prevent


intestacy

RULE IN CASE OF AMBIGUITY


LATENT AMBIGUITY
(intrinsic)

GEN RULE:
to be taken on their technical sense

NATURE
ambiguity which cannot ambiguity appears upon
be seen from a mere t h e f a c e o f t h e
perusal of the will or on instrument
the face of the will
DETERMINABLE ONLY
- upon consideration of
extrinsic circumstances

when the designation is


not definite
I designate some of the
children of my brother as
a devisee

HOW TO ADDRESS AMBIGUITIES


DETERMINE THE INTENTION OF THE
TESTATOR BY

FIRST
examining the words of the will
IF NOT ENOUGH
resort to parole or extrinsic evidence to
show the situation of the testator; and
all relevant facts and circumstances
surrounding him at the time of the making of
the will

PAROL OR EXTRINSIC EVIDENCE;


USE IS LIMITED ONLY TO
- written declaration made by the
testator outside of the will

EXE:
1. context clearly indicate a contrary intention;
or
2. satisfactorily appears that the will was
drawn solely by the testator who was
unacquainted with such technical sense

RULE IF SOME DISPOSITIONS ARE INVALID

EXAMPLE
when testator named
"Anna" as his heir, when
he has several relatives
named Anna

ON TECHNICAL WORDS

PATENT AMBIGUITY
(extrinsic)

ON NON-TECHNICAL WORDS

GEN RULE
it does not result in the invalidity of the other
dispositions

EXE
when it is to be presumed that -
the testator would not have made such other
disposition IF
the first invalid disposition had not been made.

RULE ON PROPERTIES ACQUIRED AFTER


EXECUTION OF WILLS

GEN RULE:
not deemed included among the properties disposed of
in the will

EXE:
contrary intention appears
ie.
testamentary disposition provides for the
"whole estate" or "entire inheritance."

HENCE: cannot use


- oral declaration of the testator
to establish his intentiin
prepared by: ronie ablan
AAA - BASTE / ATB

SUCCESSION

5 of 56

THE AWESOME NOTES

RULE ON THE EXTENT OF LEGACY OR DEVISE


IF THE TESTATOR OWNS THE ENTIRE
ESTATE

LAWS GOVERNING THE VALIDITY OF WILLS


FORMAL VALIDITY
(extrinsic)

INTRINSIC VALIDITY

GEN RULE
it shall cover all the interest which the testator
could devise or bequeath in the property
disposed of

LEX LOCI
CELEBRATIONIS
- the law of the country in
which they are executed

LEX NATIONALII
- the national law of the
person
whose
succession is under
consideration

EXE:
clearly appears that the testator intended to
convey a lesser interest

law in force at the time of law in force at the time of


the execution of the will
the death of the testator

IF THE TESTATOR ONLY OWNS A PART OR


INTEREST IN PROPERTY
GEN RULE
legacy or devise shall be understood limited to
such part or interest

REGARDLESS ON WON
the testator knows that the thing is
partly owned by another

EXE:
should the testator expressly declares that he
gives the ENTIRE thing to the the devisee or
legatee, and he KNOWS that the thing
bequeathed partly belongs to another

IN THIS INSTANCE,
testator is liable, either by
1. should he subsequently acquire
the subject property, it shall
pertain to the devisee or legatee
2. should he failed to acquire, the ff
shall transpire:
the heirs upon whim the
obligation is imposed or the
estate
- must acquire the
interest of the 3rd
person in the thing and
- give the sane to the
legatee or devisee;
should the 3rd person refuses
to alienate the same or
demands for an excessive
price, the heirs or estate shall
only be obliged
- to give the just value
of the interest of the
third person

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

6 of 56

THE AWESOME NOTES

TESTAMENTARY CAPACITY

note:
mere omission of some of his
relatives
- does not affect the validity of
the will

QUALIFICATION AND CAPACITY TO MAKE A WILL


1. the capacity of a person to make a will shall be
governed by his national law
2. only natural persons are qualified to make a will

EXE FOR #2
a. expressly prohibited by law
b. below 18 years of age
c. unsound mind at the time of the execution
of the will

NOTE:
PERSON SUFFERING FOM CIVIL
INTERDICTION IS QUALIFIED TO MAKE A
WILL
- as for civil interdiction, it only deprives a
person to make disposition of his properties
inter vivos, but not mortis causa

MARRIED WOMAN MAY MAKE A WLL


WITHOUT THE CONSENT OF HIS HUSBAND

IN RE: SOUNDNESS OF MIND


WHEN REQUIRED
at the time of the making of the will
HENCE:
supervening incapacity does not in invalidate
a will
if of unsound mind at the time of the
execution of the will
- supervening capacity does not cure
the defect

TEST OF SOUNDNESS OF MIND

CHARACTER OF TESTAMENTARY
ACT
that the testator is aware that the
instrument he is executing
is a disposition mortis causa.

BURDEN OF PROOF
GEN RULE
law presumes sanity
HENCE: the burden of proof is upon
the person who alleges that the
testator is of unsound mind at the time
of making the will.

EXE:
1. the testator 1 MONTH OR LESS,
before the execution of the will,
was publicly known to be insane.
2. testator executed a will AFTER
BEING
PLACED UNDER
GUARDIANSHIP, in case of
insanity, and such was made
BEFORE the order was lifted.

CONSEQUENCE:
burden of proof is shifted to the
person who alleges the validity
of the will
- that the same was executed
during lucid interval

THE TESTATOR MUST HAVE THE ABILITY


TO KNOW
1. the nature of the estate to be disposed of
2. the proper object of the testator's bounty
3. the character of the testamentary act

NATURE OF ESTATE
enough na;
- fairly accurate knowledge of what he
owns
not req:
to know every details of his
property

PROPER OBJECT OF HIS BOUNTY


testator must know under ordinary
circumstance
- his relatives in the most proximate
degree
prepared by: ronie ablan
AAA - BASTE / ATB

SUCCESSION

7 of 56

THE AWESOME NOTES

TWO KINDS OF WILLS

NOTARIAL WILLS

HOLOGRAPHIC WILLS

one which is NOT entirely in the


handwriting of the testator
BUT
which is required to follow the
formal requirements provided in
Art. 805 and 806 NCC

is required to be:
1. entirely written by the testator
2. dated; and
3. signed
= by him personally

FORMAL REQUIREMENTS COMMON TO BOTH WILLS

1. the will must be in writing


2. must be executed in a language known to the testator

NOTE:
LEX LOCI CELEBRATIONIS
- the forms and solemnities of wills shall be governed by the laws of
the country in which they are executed
MANDATORY REQUIREMENT THAT THE WILL MUST BE IN
WRITING
- HENCE; if otherwise, it is void and cannot be probated
NUNCUPATIVE WILLS
- oral wills declared or dictated by the testator and dependent
merely on oral testimony.
SINCE NOTARIAL WILLS ONLY REQ THAT IT MUST BE IN
WRITING, EVEN NOT PERSONALLY BY THE TESTATOR
it follows then that, it may either be:
1. entirely written by the testator himself.
2. partly written by the testator himself and partly by another
3. entirely printed, engraved or litographed; or
4. partly written, by testator or by another, and partly printed etc.

REQ THAT IT MUST BE IN A LANGUAGE KNOWN TO THE


TESTATOR
THE LAW HOWEVER DOES NOT REQ
- that it be stated in the will itself or in the attestation clause that it
was executed in a language or dialect known to the testator
- as it can be established by extrinsic evidence / proof aliunde

NOTE:
law presumes that it is executed in a language known to the testator

SPECIAL FORMALITIES
1. must be subscribed at the
end thereof
- by the testator himself; or
- by the testator's name written
by some other person in his
presence and by his express
direction

1. it must be entirely written by


the testator himself
2. it must be dated
3. it must be signed by the hand
of the testator himself

2. it must be attested and


subscribed by at least 3 credible
witnesses
- in the presence of the testator
and of one another

3. the person requested by him


to write his name
- must also sign every page exe
the last,
- on the left margin
- in the presence of the
witnesses

4. the witnesses must sign


- every page, exe the last
- on the left margin
- in the presence of the testator
and of one another

5. all pages must be numbered


correlatively in letters
- on the upper part of each page
6. it must also contain an
attestation clause which
expressly states the ff:
a. the number of pages used
upon which the will is written
b. the fact that
- the testator signed the will and
every page thereof, or
- cause some other person to
write his name, under his
express direction,
# in the presence of the
instrumental witness

c. the fact that


- the witnesses witnessed and
signed the will and all the pages
thereof
- in the presence of the testator
and of one another

7. it must be acknowledged
before a notary public
- by the testator and the
witnesses

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

8 of 56

THE AWESOME NOTES


DISCUSSION
FORMAL REQUISITES OF NOTARIAL WILLS

d.attestation clause stating


the fact that the testator caused some other
person to write his name
under his express direction; and
in the presence of the instrumental
witnesses

[FIRST]
must be subscribed at the end thereof
by the testator himself; or
by the testator's name written by some other
person in his presence and by his express
direction

I. BY PERSONALLY SUBSCRIBING

SIGNATURE OF THE 3RD PERSON SIGNING


ON BEHALF OF THE TESTATOR UPON
LATTER'S REQUEST
the testator's name must appear both in the
- attestation clause and
- the dispositive portion

sufficient na that it is personally signed by the


testator himself.
HENCE; not required that it must also
be handwritten by him

thumbprint may also do, as well as placing an


X against his name, intending that such cross
to be his signature.
NOTE: for an X to suffice as signature of the
testator
not only that he intended that such to be
his signature, but
also requires that it must be his habitual
signature or one of the way by which he
signed his name

absence of one; it is not deemed as signed with


the testator's name
RATION: WHY IT MUST BE SUBSCRIBED AT
THE END OF THE WILL
- to prevent fraud or interpolations between the
testamentary dispositions and the signature

TRUE TEST OF PRESENCE OF THE


TESTATOR AND THE WITNESSES
if the witness could see everything that
took place
by merely casting his eyes in the
proper direction; and
without any physical obstruction to
prevent his doing so
II. BY LETTING SOMEONE SIGNED THE
TESTATOR'S NAME IN THE LATTER'S
PRESENCE AND BY HIS EXPRESS
DIRECTION

REQUISITES

b. that the signing is under


the express direction of the testator
c. the person requested by the testator
must sign the testator's name,
and not his

END OF THE WILL


- the point where the last testamentary
disposition ends

the testator must sign in the presence of at


least 3 instrumental witnesses
- otherwise, the will is null and void.

Q: can the person who signed the testator's


name on the will upon the request of the
testator be one of the 3 witnesses?
A: NO
- as he must signed in the presence of the
testator and of 3 other instrumental witnesses

2 WAYS BY WHICH THE TESTATOR CAN


SUBSCRIBE ON A NOTARIAL WILL

a. the person requested by the 3rd person to


sign for him must sign in the presence of
the testator; and
the instrumental witness

NOTE: the signature here is valid


- as it does not contain testamentary
disposition.

[SECOND]
must be attested and subscribed
BY AT LEAST 3 CREDIBLE WITNESSES
- in the presence of the testator and of one another

2 ACTS REQUIRED OF THE WITNESSES


1. to attest; and
2. to subscribe

ATTESTATION
consists in witnessing the testator's execution
of the will
IN ORDER TO SEE AND TAKE NOTE
MENTALLY
that those things are done which
the stature requires for the
execution of the will; and
that the signature of the testator
exists as a fact.

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

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

9 of 56

THE AWESOME NOTES


Q: supposing the will has only 2 pages. the witnesses
signed both page on the left margin, and did not signed
the attestation clause found on the 2nd page. is the
signature on the left margin suffices?
A: NO. different purpose kasi

EFFECT IF WITNESS RECEIVES BY WAY OF


LEGACY OR DEVICE

PURPOSE OF SIGNATURE ON LEFT


MARGIN
- signify that the witnesses are aware that the
page they are signing forms part of the will
P U R P O S E O F S I G N AT U R E O N T H E
ATTESTATION CLAUSE
- for the purpose specified thereon.

NUMBER OF WITNESSES
- 3 credible witnesses or more
NOTE:
the notary public before whom the will was
acknowledged cannot be counted as the third
instrumental witness

NOTE:
the witnesses must signed in the presence of
the testator and of one another

QUALIFICATIONS OF WITNESSES
1. must be of sound mind
2. at least 18 years of age
3. not be blind, deaf or dumb
4. able to read and write
5. domiciled in the Philippines
6. not have been convicted of
falsification of a document
perjury or false testimony

[THIRD]
the person requested by him to write his name
must also sign every page exe the last,
on the left margin
in the presence of the witnesses

3 REQUIREMENTS UNDER THIS REQUISITE


1. the testator or the person requested by him to write
his name must sign on every page, exe the last
2. such signature be on the left margin; and
3. the signature must be done in the presence of the
witnesses

PAGE
- if both pages of the sheet or leaf are used, it
is therefore necessary that both front and
reverse sides should bear the signature of the
testator and of each of the witnesses

SIGNATURE PLACED ON THE LEFT MARGIN


- merely directory
- sufficient na that every page, exe the last, the
signature of the witnesses are present.

NOTE: LEX LOCI CELEBRATIONIS


wills executed in foreign countries, the law
allwis him to follow the formalities of the place
of execution.
- hence, if such is the case, the witness need
not be domiciled the country. and among
others...
QUALIFICATION IS DETERMINED
- at the time of attestation of the will
HENCE: subsequent incapacity shall
not affect the validity of the will

THE WITNESS MUST BE BOTH


COMPETENT AND CREDIBLE

COMPETENCY
- when a witness possess all the
qualifications enumerated in Art
820-821

CREDIBILITY
- believability of the witness

EXE:
the testamentary disposition in favor of
the witness shall be valid if
- there are 3 competent witnesses
aside from him

GEN RULE
the will shall remain valid
as it does not disqualify him to be a
witness
but shall only invalidate the devise
or legacy in favor of the witness

PURPOSE OF SIGNATURE ON EACH PAGE


- to avoid the substitution of any of said sheets
and thereby changing the testator's disposition

[FOURTH]
the witnesses must sign
every page, exe the last
on the left margin
in the presence of the testator and of one another

see discussion above


Q: the original copy was not signed by one of the
witnesses, through inadvertence. the duplicate copy,
however, was signed by the said witness. is the will
invalidated.
A: NO
- the law should not be strictly and literally interpreted
as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct
he had no control.
- especially so when there is no deviation from the
original and the duplicate. ICASIANO vs, ICASIANO

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

10 of 56

THE AWESOME NOTES


[FIFTH]
all pages must be numbered correlatively in letters
- on the upper part of each page

- such remains valid if it contains all the facts


required and the signature of all of the
instrumental witnesses appears thereon.

PURPOSE
to forestall any attempt to suppress or substitute any of
the pages thereof

NOTE: the requirement of attestation clause is


satisfied
- even if not placed in a separate and
independent clause
- but rather on the concluding paragraph of the
body of the will, phrased as an attestation.

CONTENTS OF ATTESTATION CLAUSE


1. the number of pages upon the will is written
2. the fact that the testator signed the will and every
page thereof, or caused some other person to write
his name, under his express direction and in the
presence of the instrumental witnesses
3. the fact that the signing by the testator or by the
person designated by him was in the presence of
the instrumental witnesses
4. the fact the the witnesses witnessed and signed the
will and all pages thereof in the presence of the
testator and of one another

Q: first page has no page number but its authenticity


and genuineness of the signature of the testator and
the witnesses thereon is not questioned. is the will
invalid?
A: NO
- if there is no question regarding its authenticity
- its authenticity and genuineness may be may be
supplied by other form of identification mire trustworthy
than the conventional numerical words or characters.
WHEN NOT REQ
when all of the testamentary disposition is contained in
one page
- the object of the statute disappears

[SIXTH]
it must also contain an attestation clause which
expressly states the ff:

a. the number of pages used upon which the will is


written
b. the fact that
the testator signed the will and every page
thereof, or
cause some other person to write his name, under
his express direction,
# in the presence of the instrumental witness

EFFECT OF OMISSION TO STATE ANY OF


THE FOREGOING FACTS
GEN RULE
a fatal defect
- cannot be proven by oral evid or proof aliunde
to supply the omission
- substantial compliance cannot be invoked

EXE:
defects can be remedied by intrinsic evidence
supplied by the will itself

c. the fact that


the witnesses witnessed and signed the will and
all the pages thereof
in the presence of the testator and of one another

ie. attestation clause failed to state that


all pages thereof were signed
- but a mere examination of the
signatures shows every page thereof
were actually signed.
- cured na yung defect.

ATTESTATION CLAUSE
part of an ordinary will whereby
the attesting witnesses certify that the instrument
has been executed before them; and
to the manner of execution of wills

PURPOSE
preserving in a permanent form of record of the fact
that attended the execution of a particular will
- so that failure of memory of the witnesses or other
casualty, such facts may still be proved.

WHOSE SIGNATURE SHALL APPEAR ON THE


ATTESTATION CLAUSE
only by the witness
- as it contains only declaration made by the witnesses
and not that of the testator

NOTE: regardless on whether the attestation


clause was phrased in such a way that it
seems to be a declaration of the testator
himself

FAILURE TO STATE IN THE ATTESTATION


CLAUSE THE NUMBER OF SHEETS OR
PAGES USED IN THE WILL

GEN RULE:
renders the will void
EXE:
1. when the number of pages, while not
stated in the attestation clause itself,
appears at the end of the will proper; or
2. t h e s a m e w a s s t a t e d i n t h e
acknowledgment clause

NOTE:
no substantial compliance, unless
papasok sa exe mentioned above

prepared by: ronie ablan


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SUCCESSION

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THE AWESOME NOTES


FAILURE TO STATE THAT THE WILL HAS
BEEN SIGNED BY THE TESTATOR, HIS
DESIGNATE AND WITNESSES

GEN RULE:
renders the will void
- cannot be proven by proof aliunde

SPECIAL REQUIREMENTS
- note: what enumerated here need not be stated in the
attestation clause. it may be proven by extrinsic
evidence.

IF THE TESTATOR IS DEAF OR DEAF-MUTE

EXE:
from the examination of the will that every page
thereof actually bears the signature of the
testator and the witnesses
- intrinsic evidence

[SEVENTH]
it must be acknowledged before the notary public
- by the testator and the witnesses

MANDATORY REQUIREMENT
- while the law provides "every will"
- it does not cover holographic will, as it does not
requires to be witnessed
- only applies to notarial wills.

LAW DOES NOT REQUIRE THAT THE WILL MUST


BE ACKNOWLEDGED AND ATTESTED ON THE
SAME OCCASION
NOTARY PUBLIC CANNOT BE COUNTED AS AN
ATTESTING WITNESS
- as he cannot avow, assent or admit his having signed
the will in front of himself

REQ:
the will shall be read to him TWICE
- once, by one of the subscribing witnesses;
and
- by the notary before whom the will is
acknowledged

NOTARY PUBLIC MUST ACT WITHIN THE PLACE OF


HIS COMMISSION
- otherwise, if he acted outside the territorial limits of his
jurisdiction, is deemed to have acted without official
character, and thus, it is void.

if the testator is unable to read


he must designate 2 persons
- to read it and communicate to him,
- in some practicable manner, the
contents thereof (need not be the
instrumental witness)

IF THE TESTATOR IS BLIND

REQ:
If the testator is able to read
- he must personally read the will

NOTE: THE REQ IS NOT LIMITED ONLY TO


BLIND TESTATOR
- covers; those who, for one reasons or
another, are incapable of reading their wills,
either because of poor or defective eye sight or
because of illiteracy.

MERE JURAT IS FATALLY DEFECTIVE


JURAT
- is a part of the affidavit whereby the notary
certifies that before him/her, the document was
subscribed and sworn to by the executor

ACKNOWLEDGMENT
- is the act of one who has executed a deed in
going before some competent officer and
declaring it to be his act or deed,
and in the case of a notarial will, that
competent officer is the notary public
- coerces that the testator and the instrumental
witnesses to declare before an officer of the
law that they had executed and subscribed to
the will as their own free act or deed.

prepared by: ronie ablan


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THE AWESOME NOTES


DISCUSSION
SPECIAL FORMALITIES IN HOLOGRAPHIC WILLS

SIGNATURE MUST APPEAR ON THE WILL


ART. 812
written below his signature

[FIRST]
it must be entirely handwritten by the testator

*** any disposition below his signature


must further be signed and dated, as it
is considered as independent will.
pero supposing number of
dispositions were not dated,
but the last disposition was
properly signed and dated,
- such validates the disposition
preceding it, whatever be the
time of the prior disposition

HENCE; IF WORDS WRITTEN BY ANOTHER


PERSON WERE INSERTED AMONG THE WORDS
WRITTEN BY THE TESTATOR

if the same was made AFTER the execution of


the will and WITHOUT the consent of the testator
- such insertion is considered not written

if the same was made AFTER the execution of


the will BUT WITH CONSENT of the testator
- the will remains valid
- but the insertion is void
if the same was made AFTER the execution of
the will BUT VALIDATED by the testator by his
signature thereon
- the insertion becomes part of the will
- the entire will becomes void.

NOTE:
no witnesses is required in the execution of wills
ART. 810
need not be witnessed

POST MORTEM PROBATE OF HOLOGRAPHIC WILL

insertion was made CONTEMPORANEOUS to


the execution of the will
- the will is void

IF THE WILL IS CONTESTED


at least 3 witnesses
- same as above

DATE
- include the month, day and the year of its
execution

NOTE: IN THE ABSENCE OF ANY


COMPETENT WITNESS AND IF THE COURT
DEEMS IT NECESSARY
- expert testimony may be resorted to.

OMISSION OF DATE

GEN RULE:
the will is invalidated

NOTE: EXECUTION AND THE CONTENTS


OF A LOST OR DESTROYED HOLOGRAPHIC
WILL
- may not be proved by the bare testimony of
witnesses who have seen or read such will

EXE:
when established that the will was made in the
absence of:
bad faith
fraud
undue influence or pressure

NOTES:
- the law does not specify where the date should be
placed in the will. sufficient na that the date be in the
will itself and executed in the hands of the testator
- the law does not require that the will be executed on a
single day, at one time and in a same ink, as unity of
act is not required for this form of wills

IF THE WILL IS NOT CONTESTED


1 witness
who knows the handwriting and signature of
the testator
explicitly declares that the will and the
signature are in the handwriting of the
testator

[SECOND]
must be dated

DAPAT: with a photostatic copy or


xerox copy of the holographic will
- comparison of the handwritings of the
testator.

[THIRD]
must be signed by the hand of testator himself
- name written by the testator in his usual, customary
and habitual manner

HENCE: REQUIREMENT DEEMED NOT


COMPLIED
- by mere thumb mark
prepared by: ronie ablan
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THE AWESOME NOTES


RULES IN CASE OF INSERTION, CANCELLATION,
ERASURE OR ALTERATION

REQUIREMENT
- the testator must authenticate the same by his full
signature.

OTHERWISE
- considered not made
EXE
where the testator himself crossed out the
name of the heir named, abd substituted the
name of another, without authentication
- it does not result in making the person whose
name was crossed as heir.

Full Signature
- the habitual, usual and customary signature

prepared by: ronie ablan


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THE AWESOME NOTES

LAWS GOVERNING FORMALITIES OF


WILLS

WHEN EXECUTED BY FILIPINOS


GEN RULE:
lex loci celebrationis

ART. 17 NCC
the forms and solemnities of contracts, wills
and other public instruments, shall be
governed by the law of the country in which
they are executed

EXE:
Joint Wills
- shall not be valid in the Philippines, although the law
of the country in which it was executed authorizes such.

CODICILS AND SUBSEQUENT WILLS

CODICIL; defined
a supplemental or addition to a will
- made after the execution of a will; and
- annexed to be taken as part thereof,
by which any disposition made in the original
will is
explained
added to; or
altered

FORMS REQUIRED
would depend to which such codicil refers to:

WHEN EXECUTED BY ALIENS


WILLS OF AN ALIEN WHO IS ABROAD
- produces effect in the Philippines if:
1. made with the formalities prescribed by the law of
the place in which he resides;
2. according to the formalities observed in his country;
or
3. in conformity with the formalities prescribed in the
Philippines

HENCE: NOT A CODICIL


- when it does not explain or modify the original
will.
IN SUCH CASE
- it is treated as a new will

IF DIRECTED AGAINST HOLOGRAPHIC


WILL
- the form must be by holographic will

IF DIRECTED AGAINST NOTARIAL WILL


- may either be in the form of a notarial/attested
will or by holographic will

INCORPORATION BY REFERENCE

REQUISITES
to be considered as part of the will
1. document or paper must exist at the tine of the
execution of the will
2. must be clearly describe and identified in the will,
stating among others the number of pages
3. must be identified by clear and satisfactory proof as
the document or paper referred to in the will
4. must be signed by the testator and the witnesses in
each and every page
EXE: in case of voluminous books of accounts
or inventories

WILLS OF AN ALIEN MADE IN THE PHILIPPINES


- produces effect in the Phil if:
1. executed in accordance with the law of the country if
which he is a citizen; and
2. which might be proved and allowed by the law of his
country
JOINT AND MUTUAL WILLS
JOINT WILLS

MUTUAL WILLS

is one where the same


instrument is made the
will of 2 or more persons
and is jointly signed by
them.

are separate wills of 2


persons, which are
reciprocal in their
provisions

always void, whether valid if embodies in a


executed in the Phil ir separate instrument
abroad

NOTE: #4 does not apply to holographic wills


- as it does not require that it must be attested
by a witness

prepared by: ronie ablan


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THE AWESOME NOTES

REVOCATION OF WILLS

TIMEFRAME
at any time before the testator's death.
FOLLOWING
- that testamentary dispositions is essentially
ambulatory

NOTE:
any waiver or restriction of right to revoke a will
- void
BUT: its invalidity shall not affect the validity of
the will itself

LAWS GOVERNING VALIDITY OF REVOCATION


IF DONE OUTSIDE THE PHILIPPINES
by any person NOT DOMICILED in the Philippines,
the revocation is valid if it is done:
1. according to the law of the place where the will
was made; or
2. according to the law of the place which the
testator had domiciled at the time of the
revocation

by person DOMICILED in the Philippines


- must be done in accordance with Philippine
Laws

IF DONE IN THE PHILIPPINES


must be done in accordance with Philippine Laws,
whether the testator be a domicile of the Phil or not

INSTANCES
filing of an affidavit of reappearance
- the spouse who contracted
subsequent marriage in bf shall be
disqualified to inherit from the innocent
spouse by testate and intestate
succession

if both spouses of the subsequent marriage


referred to in Art. 41 of FC acted in BF
- testamentary dispositions by one in
favor of the other are revoked by
operation of law

in case of annulment
- the spouse who contracted the
marriage in bfthe testatmentary disposition in favor to
him/her made by the other spouse is
deemed revoked by operation of law

decree of legal separation


- the provisions in favor of the offending
spouse made in the will of the innocent
spouse shall be deemed revoked by
operation of law

in case of preterition of compulsory heirs in


the direct line
- annuls the institution of heirs
- but the devises and legacies shall be
valid insofar as they are not inofficious

HDL commits any acts of unworthiness


- incapacitate them to succeed
- revoked by operation of law

legacy of credit against a 3rd person or of


the remission of debt of he legatee
- after its execution, testator brought an
action against debtor for the payment
of debt

MODES OF REVOKING WILLS


1. by implication of law
2. by subsequent will, codicil or subsequent
instrument; or
3. by physical destruction

REVOCATION BY IMPLICATION OF LAW


HOW
when certain acts or events take place
subsequent to the making of a will
- which nullifies or render inoperative either the
will itself or some testamentary disposition
therein.

testator transform the thing bequeathed in


such a manner
- that it does not retain either its firm or
denomination its had; or
- when he alienates by any title or for
any cause the thing bequeathed or any
part thereof; or
- when the thing bequeathed is totally
lost during the testator's lifetime or after
his death without the fault of the heirs.

prepared by: ronie ablan


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THE AWESOME NOTES


R E V O C AT I O N B Y S U B S E Q U E N T
INSTRUMENT

NOTE
REVOCATION OF A WILL DOES NOT
AFFECT
THE RECOGNITION OF AN
ILLEGITIMATE CHILD

HOW
by some will, codicil or other writing executed
as provided in case of will

MANNER: express or implied


EXPRESS REVOCATION

IMPLIED
REVOCATION

CONCEPT
subsequent instrument
executed in the form if a will,
there is a
REVOCATORY CLAUSE
- expressly revoking the will
or the part thereof

when the provisions


of a subsequent will
or codicil
- are partially or
a b s o l u t e l y
inconsistent with or
contrary to those of
the previous will

REQUIREMENT
for the revocatory clause to
produce an effect
1. it must contain all the
requisites of a will, whether
ordinary or holographic; and
2. it must be probated

ABSENCE OF THE FIRST


~ Doctrine of Dependent
Relative Revocation
- is equivalent to the nonfulfillment of a suspensive
condition, and hence
prevents the revocation of the
original will

RATION:
recognition is not a
testamentary disposition;
and
it takes effect immediately
after its execution and not
upon the testator's death

IMPLIED REVOCATION; revokes only


such dispositions in the prior wills as
are inconsistent with or contrary to
those contained in the later will.
PAROLE EVIDENCE; admissible
when there are several wills
inconsistent or containing express
revocatory clauses
TO SHOW
which was in fact last executed
PROVIDED:
may date
AS OTHERWISE:
all fail for uncertainty
NOTE: NOT ADMISSIBLE ANG
PAROLE EVIDENCE
- to prove illegal or false cause.

EXE: Doctrine of Dependent


Relative Revocation
1. incapacity of the HDL; or
2. renunciation or repudiation

FALSE OR ILLEGAL CAUSE


if the revocation is based on
false or illegal cause, such is
null and void

REQ:
such must appear on the face
of the instrument
- cannot be proven by parole
evidence. not admissible to.

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

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THE AWESOME NOTES

REVOCATION BY PHYSICAL DESTRUCTION


WAYS OF PHYSICALLY DESTROYING WILLS
1. burning
2. tearing
3. canceling
4. obliterating

REPUBLICATION AND REVIVAL OF


WILLS

REPUBLICATION OF
WILLS

R E Q U I S I T E S F O R VA L I D I T Y O F
REVOCATION BY PHYSICAL DESTRUCTION
1. testator must, at the time of performing it,
be in possession of his faculties and
capable of making wills
2. destruction must be with intent to revoke or
coupled with animus revocandi
3. must be evidenced of the overt act
(BTCO); and
4. must have been a completed act

NOTE:
IT IS NOT IMPERATIVE THAT THE
PHYSICAL DESTRUCTION BE DONE
BY THE TESTATOR HIMSELF
- may be performed by another person,
under his express direction and in the
presence of the testator

HENCE: IF UNAUTHORIZED
DESTRUCTION
- no revocation
- parole evidence admissible
(for notarial will)
- if holographic will, regardless
on the fact that it was
destroyed without authority of
the testator, if no copy or
photostatic copy left, parole
evidence not admissible.

PRESUMPTION OF REVOCATION

where a will cannot be found and it


was shown to have been in the
possession if the testator, when last
seen
- in absence of competent
evidence, presumed to have
been cancelled by the testator
GIST
- presumption shall only arise if
it has been shown hat the will
was in the hands of the
testator.
OTHERWISE
- no presumption that it was
destroyed by the testator
himself or under his express
direction.

REVIVAL OF WILLS

CONCEPT
RE-EXECUTION or the
RE-ESTABLISHMENT
by a testator of will
- which is void; or
- which the testator had
once revoked

is the process of
RENEWING
the
operative force of a will
- which had one revoked
by the testator

MANNER
1. REPUBLISH
- by reproducing the
contents of a previous
will in a subsequent will;
or

IF PREVIOUS WILL
WAS
REVOKED
E X P R E S S LY B Y A
SUBSEQUENT WILL
- the revocation of the
subsequent will does not
2. by execution of codicil revive the previous will,
- referring to the previous as a rule.
will to be republished
EXE:
#1 or #2 in republication

IF THE PREVIOUS WILL


WAS
REVOKED
I M P L I E D LY B Y A
SUBSEQUENT WILL
- the revocation of the
latter revives the former
NOTE:
IF THE PREVIOUS WILL
IS VOID AS TO FORM

it can only be
republished
- by reproducing the
provisions thereof in a
subsequent will

prepared by: ronie ablan


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SUCCESSION

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THE AWESOME NOTES


ie:
- preterition
- testamentary provision in favor of
concubine

PROBATE OF WILLS

MANDATORY REQUIREMENT
ART. 833 NCC
no will shall pass either real or personal property
UNLESS it is proved and allowed in accordance with
the rules of court

HENCE:
- even estoppel will not lie, as this proceedings
involves public interest

EFFECT OF PROBATE OR ALLOWANCE OF WILL


CONCLUSIVE
- as to its due execution and extrinsic validity.
- binding against the whole world (in rem)
- acquires a status of res judicata

PUBLIC INTEREST INVOLVED


- as if estoppel is applied, it will block the
ascertainment of the truth as to the
circumstances surrounding the execution of a
testament... inimical to public policy.

PROBATE OF WILL
to prove before some officer or tribunal, vested by law
with authority for that purpose:
1. that the instrument offered to be proved is the last
will and testament of the deceased person whose
testamentary act is alleged to be;
2. that it has been executed, attested and published as
required by law; and
3. that the testator was of sound and disposing mind.

HENCE:
no res judicata with resect to intrinsic validity
- pwede pa i-question ang legality of any devise
or legacy

PROBATE DURING LIFETIME OR AFTER DEATH OF


THE TESTATOR
ANTE MORTEM
PROBATE

- a process of proving the validity of the will


ISSUES ADDRESSED IN PROBATE PROCEEDINGS
1. whether the will submitted is indeed, the decedent's
last will and testament
2. compliance with the prescribed formalities for the
execution of wills
3. the testamentary capacity of the testator; and
4. the execution of the last will and testament

GENR RULE:
probate proceedings are limited only to
extrinsic validity

EXTRINSIC VALIDITY
court shall inquire only on
the due execution,
whether or not it complies with the
formalities prescribed by law; and
the testamentary capacity of the
testator
- AND NOT; validity and efficacy of the
testamentary provisions

BUT SUCH IS ONLY LIMITED TO


question of whether the testator
is of sound mind
freely executed it in accordance with the
formalities prescribed by law, without duress,
fraud, undue influence, menace, and that it
is genuine

POST MORTEM
PROBATE

DEFINITION
probate of the will during
the lifetime of the testator

probate after the death of


the testator

ALTERATION OF THE WILL AFTER PROBATE


ALLOWED
NOT ALLOWED
- will being ambulatory
- right to the succession
is transmitted only from
the moment of death of
the decedent
- the probate here merely
authenticates the will and
does not pass upon the
e f fi c a c y
of
the
dispositions therein.

RATION
- as such usually comes fully after the
will is proved.

EXE:
court shall determine first Intrinsic Validity of
the will when;
1. defect of the will is apparent on its face; or
2. parties agree that intrinsic validity be first
determined

prepared by: ronie ablan


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THE AWESOME NOTES


GROUNDS FOR DISALLOWANCE OF WILL
1. If the formalities required by law have not been
complied with;
2. If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its
execution;
3. If it was executed through force or under duress, or
the influence of fear, or threats;
4. If it was procured by undue and improper pressure
and influence, on the part of the beneficiary or of
some other person;
5. If the signature of the testator was procured by
fraud;
6. If the testator acted by mistake or did not intend that
the instrument he signed should be his will at the
time of affixing his signature thereto.
7. testator was below 18 yrs of age at the time of the
execution of the will.

EFFECT IF GROUND FRO DISALLOWANCE


OF WILL
- the will shall be declared void

IN CONTRAST TO OBLICON
- contracts entered into by minor or by
a person of unsound mind, the contract
is merely voidable

PAYMENT (LEGACY OR DEVISE) MADE IN


ACCORDANCE WITH THE PROVISIONS OF
A DEFECTIVE WILL
- made after settlement of debts
- such is effective and irrevocable. this is a
case of natural obligation.

PERSONALITY TO INTERVENE IN PROBATE


PROCEEDINGS

HE MUST HAVE AN INTEREST IN THE


1. estate
2. will; or
3. property

EITHER AS AN
- heir;
- one who claim against the estate, like creditor
- executor

prepared by: ronie ablan


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THE AWESOME NOTES

INSTITUTION OF HEIRS

INSTITUTION OF HEIRS; defined


is an act, by virtue of which
a testator designates in his will the person/s
who are to succeed him in his
property
transmissible rights; and
obligations

EFFECT OF LACK OF INSTITUTION

NO INSTITUTION OF HEIRS
RULE:
the will shall remain valid
- regardless on whether no heirs are instituted
or the institution does not comprise the entire
estate.

RULES ON INSTITUTION OF HEIRS

HOW MUST DESIGNATION BE MADE


AS A GENERAL RULE
- by name and surname
BUT SUFFICIENT NA
- in such a manner that there can be no doubt
as to who has been instituted

IF SAME NAME
RULE
the testator must indicate some circumstance
- by which the instituted heir may be known

OTHERWISE
LATENT AMBIGUITY

IN THIS INSTANCE; cured by


- extrinsic evid (parole evid) other than
oral declaration of the testator as ti his
intention

EFFECT:
the estate shall pass to the legal heirs by
intestate succession

IN CASE OF REPUDIATION OR INCAPACITY


RULE:
will shall remain valid

IF AMONG PERSONS HAVING SAME NAMES


AND SURNAMES, AND SAME
CIRCUMSTANCES

EFFECT:
the testamentary disposition not repudiated or
to those person who are not incapacitated
- shall be complied with

CURED BY
other proof, including proof aliunde, to
ascertain the intention of the testator
- other than oral declaration of the
testator

with those that pertain to repudiated share and


share of person incapacitated to receive
- shall pass to the legal heirs

IF PERSON INSTITUTED CANNOT


STILL BE IDENTIFIED
none shall be an heir

EXTENT OF FREEDOM OF DISPOSITION


IF NO COMPULSORY HEIRS
- may dispose by will all of his assets or any part of it in
favor of any person having capacity to succeed.

IF HAS COMPULSORY HEIR


- as long as the disposition does not prejudice the
legitime of said heirs.

LEGITIME
- is the part of the testator's property which he
cannot dispose of because the law reserved it
for certain heirs who are called compulsory
heirs.

EFFECT OF ERRORS
(in the name, surname or circumstances of
the heir)

GEN RULE
shall not vitiate the institution

BUT ONLY IF
- it can be ascertain, by use of proof
aliunde
OTHERWISE
- cannot inherit

prepared by: ronie ablan


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THE AWESOME NOTES


RULE ON DISPOSITION IN FAVOR OF
UNKOWN PERSON

GEN RULE
the disposition to unknown person shall be void
EXE:

GEN RULE: BETWEEN FULL AND HALF


BLOOD
- equal parts

EXE:
different intention clearly appears

If the identity can become certain by some


event or circumstance

PROVIDED
such designated heir must be living/
capacitated to inherit as an HDL at the
time the succession opens.
OTHERWISE:
such designation is invalid

A disposition in favor of a definite class or


group of persons

INSTITUTION OF BROTHERS AND SISTERS

3RD PERSON MAY BE DESIGNATED


TO THE
1. distribution of the property or
money he leaves to such group or
class; or
2. designation of the persons within
the class or group to whom the
property or money shall be given

INSTITUTING A PERSON AND THE


LATTER'S CHILDREN
GEN RULE:
deemed instituted simultaneously, and not
successively

EXE:
contrary intention appears
ON STATEMENT OF FALSE CAUSE
(for the institution if an heir)
GEN RULE:
deemed not written
EXE:
testator would not have made such institution if
he had known the falsity of such cause

OTHER RULES

DESIGNATION OF SHARES
IF WITHOUT DESIGNATION
- heirs instituted shall shall inherit in equal parts
NOTE: THIS SHALL NOT APPLY TO
COMPULSORY HEIRS NAMED IN
THE WILL BUT WITHOUT
DESIGNATION OF HIS SHARE
- as he is entitled to his legitime from
the portion given to him in the will.

S O M E I N D I V I D U A L LY D E S I G N AT E D ,
OTHERS COLLECTIVELY

ie:
I designate as my heir A and B and the
Children of C.

GEN RULE
those collectively designated shall be
considered as individually instituted
- hence, per capita and in equal parts

IN THIS INSTANCE;
ground for annulment of institution on
the ground of false cause

REQUISITES:
1. that the cause for the institution of
heirs must be stated in the will
2. cause must be shown to be false
3. it must appear from the face of
the will that the testator would not
have made such institution, if he
had known the falsity of the
cause.

INSTITUTION OF ONLY ONE HEIR


where the institution is limited to an aliquot
portion of the inheritance
AS TO THE EXCESS; those not disposed of
- legal succession shall take place
NOTE: THIS RULE SHALL APPLY ONLY TO
- when the heir is not instituted as sole heir

EXE:
contrary intention clearly appears

prepared by: ronie ablan


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THE AWESOME NOTES

INSTITUTION OF SEVERAL HEIRS


but limited only to an aliquot portion, and all
parts do not cover the whole inheritance

EFFECTS OF PRETERITION
1. annul entirely the institution of heirs
2. legacies and devises shall remain valid, so long as
they are not inofficious

AS TO THE EXCESS; those not disposed of


- legal succession shall take place

HENCE
once preterition has been established, intestate
succession will take place
EXE: with regard to devises and
legacies not inofficious.

AS TO THE THE FREE PORTION

IF THE TESTATOR INTENDED THAT


THE PERSON DESIGNATED SHALL
BE HIS SOLE HEIRS TO THE WHOLE
ESTATE
- each part shall be increased
proportionately

PRETERITION vs. INEFFECTIVE DISINHERITANCE


PRETERITION

IF THE ALIQUOT PORTION


D E S I G N AT E D E X C E E D S T H E
WHOLE INHERITANCE
each part shall be reduced
proportionately

PRETERITION

PRETERITION; defined
omission in the testator's will of the compulsory heirs in
the direct line or anyone of them, either because:
they are not mentioned therein; or
though mentioned, they are neither instituted as heirs
nor expressly disinherited

MANRESA; added
- nor assigning to him some part of the property

INEFFECTIVE
DISINHERITANCE
EFFECT

GEN RULE
- annulment of the
institution of heirs

nullity of the institution of


heirs IS LIMITED
- to the portion of the
estate of which the
EXE
disinherited heirs have
t e s t a m e n t a r y been illegally deprived of
dispositions in the form his legitme
of devises and legacies
not inofficious

CAUSE
by mistake and/or
inadvertence

if intentional
- defective disinheritance

NOTE:
WHEN TO ASSAIL PRETERITION
only after the death of the testator, when there is a will

REQUISITES:
1. the heir omitted must be a compulsory heir in the
direct line, whether ascending or descending
2. the omission must be total and complete
3. the omitted heir must survive the testator

#1
- covers adopted children
- since compulsory heir in the direct line, no
preterition if the person omitted is the spouse of
the testator

#2
- if the omitted heir receives anything from the
testator, inter vivos, no preterition.
REMEDY
entitled for the completion of his
legitime

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

23 of 56

THE AWESOME NOTES

SUBSTITUTION OF HEIRS

KINDS OF SUBSTITUTION

SUBSTITUTION
is the designation by the testator of a person/s to take
the place of the heir/s first instituted

1.
2.
3.
4.

UNDER SUBSTITUTION, THE TESTATOR MAY


EITHER

SIMPLE OR COMMON (VULGAR)


SUBSTITUTION

SIMPLE SUBSTITUTION

WHEN IT TAKES PLACE


when testator designates 1 or more persons to
substitute the heir/s instituted
- in case such heir/s should die before
hime, or should not wish, or should be
incapacitated to accept the inheritance

PROVIDE FOR THE DESIGNATION OF


ANOTHER HEIR to whom the property shall
pass in case
- the original heir should die before him/her
- renounces the inheritance; or
- be incapacitated to receive

GROUNDS:
1. predecease
2. repudiation
3. incapacity

FIDEICOMMISSARY SUBSTITUTION

LEAVE HIS PROPERTY TO ONE PERSON,


WITH EXPRESS CHARGE THAT
it be transmitted subsequently to another/ other

simple or common (vulgar)


brief or compendious
reciprocal
fideicommissary

AS DISTINGUISHED FROM ACCRETION

IN ACCRETION
- is a right by virtue of which, when 2/ more persons are
called to the sane inheritance, devise or legacy,
the part assigned to the one who
renounces or
cannot receive his share; or
dies before the testator,
IS ADDED OR INCORPORATED
- to that of his co-heirs, co-devisees/legatees

AS TO NUMBER
(BRIEF, COMPENDIOUS AND RECIPROCAL)
BRIEF
- when 2/ more persons are designated by the
testator to substitute for only one heir

COMPENDIOUS
- when there is only one person designated to
substitute for two or more heirs

BETWEEN
ACCRETION
AND
SUBSTITUTION; which is to be preferred
RIGHT OF THE SUBSTITUTE IS
PREFERRED
- as his right springs from the express will of
the testator

CONTRA: ACCRETION
- is derived only from a will presumed
by law

EFFECT OF SUBSTITUTION
GEN RULE:
the substitute is subject to the same charges and
conditions imposed upon the instituted heir
as he merely steps into the shoes of the latter

EXE:
1. the testator expressly provided in the will the
contrary; or
2. charges or conditions are personally applicable only
to the instituted heir.

NOTE HOWEVER
that should the testator expresses in
his will that only repudiation shall be
the ground for substitution,
- it must be respected.

RECIPROCAL
- when two or more persons are reciprocally
substitutes for each other

FIDEICOMMISSARY SUBSTITUTION
IT TAKES PLACE
- when the fiduciary (first heir) is entrusted with the
obligation to preserve and transmit to the 2nd heir
(fideicommissary) the whole or part of the inheritance

REQUISITES
1. the fiduciary called primarily to the
enjoyment of the estate
2. the 2nd heir to whom the property is
transmitted by the 1st heir
3. an obligation clearly imposed upon the
fiduciary to preserve and transmit to the
2nd heir the whole or part of the estate.

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

24 of 56

THE AWESOME NOTES


LIMITATIONS UPON FIDEICOMMISSARY
SUBSTITUTION
1. the substitution must not go beyond one
degree from the heir originally instituted
2. fiduciary and fideicommissary must be
living at the time of the death of the testator
3. substitution must not burden the legitime
4. must be expressly made

EXE:
testator cannot impose the condition of
inalienability with respect to the legitime

HENCE: pag wala isa, such substitution is


deemed not written.

NOTE:
fideicommissary does not succeed from the
fiduciary, for he acquire his right directly from
the testator upon its death.

TIME OF TRANSMISSION FOR VALID


FIDEICOMMISSARY SUBSTITUTION
GEN RULE:
at the death of the fiduciary
EXE:
when the testator provide for the time of
transmission

NOTE:
fiduciary is obliged to deliver the inheritance to
the fideicommissary, without other deduction
other than those which arise from the legitimate
expenses, credits and improvements
EXE:
when the testator has provided
otherwise.

AS TO FIDUCIARY
- it follows that since he has the obligation to
preserve the property, he cannot alienate it
during his lifetime, even if it exceeds 20 years
AFTER THE FIDUCIARY DIES
- pwede, so long as it does not exceed 20
years

1. perpetual prohibition against alienation of property


or for a period exceeding 20 years
2. imposition which impose upon the heir the charge of
paying to various persons successively a certain
income or pension, beyond 20 years
3. dispositions which leaves to a person the whole or
part of the hereditary property in order that he may
apply or invest the same according to secret
instruction communicated to him by the testator

SUCCESSION OF USUFRUCT
an instance whereby the testator leaves to a person the
whole or part of the inheritance and to another the
usufruct
- valid

UPON EXPIRATION OF USUFRUCT


- naked owner becomes the absolute owner of
the property

I F N O VA L I D F I D E I C O M M I S S A R Y
SUBSTITUTION

GEN RULE
testator may prohibit alienation, so long as it
DOES NOT EXCEED 20 YEARS
- any excess, void

INVALID CONDITIONS (deemed not written)

PROHIBITION TO ALIENATE THE ESTATE (BY


TESTATOR)

RATION:
as the law prohibits any charge,
condition or substitution whatsoever
upon the legitime.

IF THERE IS A VALID FIDEICOMMISSARY


SUBSTITUTION

the right of the fideicommissary may be


transmitted to his heirs, ONLY after he
survived the testator.
EFFECT OF INVALID FIDEICOMMISSARY
SUBSTITUTION
1. considered not written or not imposed
2. the validity of the institution of the first heir
is not affected
3. the first heir is no longer obliged to
preserve and transmit the inheritance to
the second heir. he acquires exclusive
ownership na.

- HOWEVER; should the heir survived


after 20 years, the prohibition loses its
effect.

IF USUFRUCT IS GIVEN TO VARIOUS


PERSONS, SUCCESSIVELY
(not simultaneously)
- such is valid only if:
1. all such persons are living at the time of
the death of the testator; and
2. they must not be beyond one degree

if the prohibition states that he cannot


alienate it during his lifetime
- the prohibition is valid
prepared by: ronie ablan
AAA - BASTE / ATB

SUCCESSION

25 of 56

THE AWESOME NOTES

CONDITION, MODE AND TERM

P O W E R O F T H E T E S TAT O R T O I M P O S E
CONDITION, MODE AND TERM

GEN RULE
- yup. he has the right to do so
EXE
if it is imposed upon the legitime. this is considered as
not imposed.

TESTAMENTARY DISPOSITION WITH A TERM


when the demandability (suspensive, ex die) or
extinguishment (resolutory, in diem) of successional
rights is made to depend
upon the arrival of a day certain or
upon the happening of a future but certain event

RATION
ART. 872 and ART 904
- the testator cannot impose upon the legitime
any burden. encumbrance, charge, term,
condition or substitution of any kind
whatsoever.

SUSPENSIVE
CONDITION

SUSPENSIVE
TERM

the instituted HDL DOES


NOT ACQUIRE any
successional right upon
the death of the testator
- so long as the condition
is not yet fulfilled.

the successional right is


I M M E D I AT E LY
TRANSMITTED to the
HDL upon the death of
the testator
A LT H O U G H
the
demandability of such
right is suspended
- UNTIL
the arrival of the day
certain designated by the
testator.

EXE TO EXE
prohibition against partition for a period not
exceeding 20 years.

PRIOR TO THE
ARRIVAL OF THE TERM
- the inheritance, devise
or legacy shall be given
to the legal or intestate
heirs, for the meantime
- but the intestate heirs
cannot take possession
of the property, unless it
gives sufficient security.

MODAL TESTAMENTARY DISPOSITION


in here, the testator states
1. the object of the institution
2. the purpose or application of the property left by the
testator; or
3. the charge imposed by the testator upon the heir

MODAL

CONDITIONAL

imposes an obligation
upon the HDL, but it
d o e s n o t a ff e c t t h e
efficacy of his right to the
succession

the condition must


happen or be fulfilled in
order for the heir be
entitled to succeed the
testator

obligates but does not


suspends

does not obligate, but it


suspends

effect should the instituted HDL


dies, with resoect to their own heirs
should the HDL dies prior
to the fulfillment of the
condition
- no right is transmitted to
his heirs

NOTE: the law presumes against condition.


HENCE: unless it clearly appears from the will itself
that such was the intention of the testator, it is to be
construed then as modal.

EFFECTS OF MODE
1. the HDL can claim immediate delivery of
the inheritance subject to the giving of
security or bond for the compliance of the
obligation.
2. non delivery of bond, not entitled to the
delivery of the inheritance. it is a condition
sine qua non for its delivery
3. non-compliance with the mode/obligation,
HDL is obliged to return whatever he may
have received by virtue of the institution or
the devise or legacy, together with the
fruits and income
4. if he cannot return, or in case there is
deficiency, the bind shall answer for it.

should the HDL dies prior


to the term but after the
testator dies,
- the heirs of the HDL are
entitled to the inheritance
upon the arrival of the
term

EFFECTS OF RESOLUTORY TERM


1. HDL can demand immediately for the
delivery of the inheritance, device or
legacy, subject to the termination of his
right upon the arrival of the terms
2. HDL is not required to give bond!

CONDITIONAL TESTAMENTARY DISPOSITION


- when the acquisition or extinguishment of
successional rights is made to depend upon the
happening or non-happening of a future and uncertain
event.

KINDS
1. suspensive or resolutory
2. potestative, casual or mixed
3. possible or impossible

prepared by: ronie ablan


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SUCCESSION

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THE AWESOME NOTES

SUSPENSIVE
CONDITION

EFFECTS

CONSEQUENCE

SUCCESSIONAL
RIGHTS ARE
TRANSMITTED
ONLY
upon
the
happening of the
condition

C A PA C I T Y O F
THE HDL IS
DETERMINED:

HAPPENING OF
THE CONDITION
- it retroacts to the
moment of the
testator's death

RESOLUTORY
CONDITION

SUCCESSIONAL
RIGHTS ARE
A C Q U I R E D
IMMEDIATELY
- upon the death of
the testator

BUT SUBJECT
TO EXTINCTION
upon
the
happening of the
condition
POTESTATIVE
CONDITION

a condition whose
fulfillment depends
E X C L U S I V E LY
upon the will of the
HDL and must be
PERFROMED
personally

CASUAL
CONDITION

1. at the time of
the testator's
death; AND
2. at the time of
the happening of
the condition.

the fulfillment of
the condition
D E P E N D S
EXCLUSIVELY
- upon chance
and/or the will of
third person.

U
P
O
N
EXTINCTION, the
inheritance,
device or legacy,
shall pass to:
- to those who are
legally entitled to
it, to substitute (if
so provided) or to
co-heirs by
accretion, as the
case may be
W
H
E
N
CONDITION
MUST
BE
FULFILLED

GEN RULE
- as soon as the
HDL learns of the
testator's death

EXE:
1. condition was
already complied
with at the time
he learns of the
testator's death
2. when the
condition is if
such nature that it
cannot be fulfilled
again.

EXE: if shown gf
and due to
reasons not
imputable to him

EXE TO EXE:
when the testator
has otherwise
provided

IF IT BECOMES
CERTAIN THAT
THE CONDITION
CANNOT BE
FULFILLED
- the property
must be delivered
either to the
substitute or to
co-heirs by
accretion, as the
case may be.

REQUIRES
- it actual
compliance as
general rule

MIXED
CONDITION

the fulfillment of
the condition
D E P E N D S
PARTLY
1. upon the HDL;
and
2. upon chance
and/or the will of
third person

REQUIRES;
- s u f fi c i e n t n a
constructive
compliance

PROVISIONS COMMON TO MIXED AND CASUAL


CONDITION

IF AT THE TIME OF THE EXECUTION OF THE WILL


THE CONDITION IS ALREADY FULFILLED
IF TESTATOR IS UNAWARE
- condition is deemed complied with
IF TESTATOR IS AWARE
- the condition must be fulfilled again
- UNLESS: it is of such nature that it can no longer exist ir
be complied with again

IF THE POTESTATIVE CONDITION INVOLVES


OBLIGATION NOT TO DO
-HDL is entitled to immediate delivery after the testator's
death
UPON giving the security or bond known as
caucion muciana

IF THE CONDITION IS VIOLATED


- must return the property, including the fruits and income
- if it cannot be returned, the caucion muciana shall answer
for it.
IMPOSSIBLE
CONDITION

considered as not imposed and shall


not affect the disposition.

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

27 of 56

THE AWESOME NOTES

PROHIBITION TO MARRY
GEN RULE: void condition
EXE:
1. imposed on the widow or widower by the deceased
spouse or by the latter's ascendant or descendants
( parang resolutory in character to ); or
2. when the condition is not absolute in character. in
here, the prohibition is only relative with respect to
person, time or place.

#1: cannot be imposed upon the legitime


#2: pwede yung condition na "marry this
person." it shall be ineffective only is it it
becomes impossible for the heir to marry at all.
ie: namatay na yung named person.

DISPOSITION CAPATORIA
- void disposition. but shall not affect the will itself.
- one which imposes as condition that the heir shall
make some provision in his will in favor of the testator
or any other person

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

28 of 56

THE AWESOME NOTES

TESTAMENTARY LEGITIME

SECONDARY COMPULSORY HEIR


those who succeed only in the absence
of the primary heir

- is the part of the testator's hereditary estate which he


cannot dispose of because the law has reserved it for
compulsory heir
FF ABOVE
the testator cannot deprive his compulsory heirs of
their legitime
the testator cannot impose any burden,
encumbrance, condition, or substitution of any kind
upon the legitime.

EXE:
1. valid disinheritance
2. prohibit partition for a period not exceeding
20 years.
see table
PRIMARY COMPULSORY HEIR
those who have precedence over and
exclude other compulsory heir
LEGITIMATE
CHILDREN AND
DESCENDANTS
RULE
OF
PROXIMITY
in
the
descending line,
the children
excludes the GC
of the decedent

ADOPTED
CHILDREN

FF DOMESTIC
ADOPTION ACT
- considered as a
legitimate child of
the adopter for all
intents and
purposes
- entitled to same
share
as
l e g i t i m a t e
children, without
discrimination

HENCE: should
he only survives
- excludes the
legitimate parents
and ascendants

NOTE: NEW
RULE DAA
- a compulsory
heir can only
inherit from his
biological parents
by testamentary
disposition
- as all legal ties
between the
adopted and the
biological parents
is already served
to be an intestate
heir

NOTE:
the
adopted is an heir
of the adopetr but
not
of
the
relatives of the
adopter.

LEGITIMATED
CHILDREN
ILLEGITIMATE
CHILDREN
L E G I T I M AT E D
CHILD
children
conceived and
born outside of
wedlock
of
parents who, at
the time of the
conception of the
former, were not
d i s q u a l i fi e d b y
any impediment
to marry each
other.
L E G I T I M AT I O N
TAKES PLACE
- upon valid or
voidable marriage
of the child's
parents.
LEGITIMATION
- the child enjoys
all
the
successional
rights accorded to
a legitimate child
- if none: same
rights lang as
illegitimate child

I L L E G I T I M AT E
CHILDREN
becomes
p r i m a r y
compulsory heir if
their illegitimate
parents has no
legitimate children
or descendants.
- otherwise,
concurring lng

LEGITIMATE
PARENTS AND
ASCENDANTS

ILLEGITIMATE
PARENTS

ADOPTING AND
BIOLOGICAL
PARENTS

B E C O M E S
C O M P U L S O RY
HEIR ONLY
- in absence of
legitimate children
and descendants
of the former.

B E C O M E S
C O M P U L S O RY
HEIR ONLY
- in the absence
of legitimate or
illegitimate
children and
l e g i t i m a t e
descendants

B E T W E E N
ADOPTER AND
ADOPTEE
- under DAA;
- each shall have
reciprocal rights
of succession
without distinction
from legitimate
filiation in legal
succession.

HENCE:
if illegitimate child
is the one that
only survives, it
only concurs to
LP/A

RULE
OF
PROXIMITY
- same same
IF BOTH FATHER
AND MOTHER
SURVIVES
- equal share
- if only one
survives; shall get
the entire estate
- if none, the
n e a r e s t
ascendant.
- if both in
maternal and
paternal sides
s u r v i v e s
(grandparents);
equally

IN
SUCH
INSTANCE
- only illegitimate
parents are
entitled.
HENCE;
- in absence, the
ascendants
cannot inherit

see notes on
adopted child.

IT FOLLOWS
THEN THAT NO
RECIPROCITY
O
F
SUCCESSIONAL
R I G H T S
BETWEEN IGP
IGC
- as while the IGC
may inherit from
IGP
by
representing IP
- the IGP cannot
succeed from
IGC, as only the
IP
in
the
ascending line
may inherit.

CONCURRING COMPULSORY HEIRS


those who succeed together with the
primary and secondary compulsory heirs
SURVIVING SPOUSE

ILLEGITIMATE
CHILDREN

N O T E : I N C A S E L E G A L LY
SEPARATED
surviving spouse remains compulsory
heir of the deceased spouse,
- if the katter had given cause for the
same.

REQ: to be
entitled
- filiation must be
duly proved
before they can
be entitled to
successional
rights

HENCE: if the ss is the guilty spouse,


disqualified to inherit.
NOTE: share of ss should he/she is
survived with LC and IC; is preferred
over IC
- hence, to complete here legitime, it
shall be reduced pro rata from IC's
share.

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

29 of 56

THE AWESOME NOTES


NOTE:
even though the law does not expressly so
requires, there is still an obligation to reserve
even if the reservista and the other ascendant
from whim the property came belong to the
same line.

RESERVA TRONCAL or
RESERVA LINEAL
- a delayed succession.

DEFINITIONS
PRAEPOSITUS
- the deceased descendant

RESERVISTA
- the ascendant
RESERVATARIO
- the relative of the praepositus within 3rd
degree of consanguinity and of the same line
where the property came from

NATURE OF RIGHT OF THE RESERVISTA OVER


THE PROPERTY INHERITED FROM THE
PRAEPOSITUS
- reservista acquires legal title and dominion to the
reservable property
BUT subject to a resolutory condition
- by the survival of reservatarios at the time of
the death of the reservista
- akin to usufractuary

LAW FURTHER REQUIRE


- that the reservatario must be related
by blood not only from the
praepositus, but also to the other
ascendants, or brothers or sister,
from where the property came.

EXAMPLE
GF (paternal side) donated to GS a
parcel of land. upon death of GS, the
said property was inherited by his
mother, M (reservista). M upon her
death, was survived by his mother,
GM. GM is not a reservatario,
although within 2nd degree of
consanguinity with GS, she does not
belong to the same line where the
property came.

REQUISITES
1. the property must be received by a descendant
(praepositus) from an ascendant or from a brother
or sister BY GRATUITOUS TITLE
2. the said descendant died without an issue
3. the same property is inherited by another ascendant
(reservista) by operation of law (either through
intestate or compulsory succession) from the
praepositus.
4. that there are living relatives within the 3rd degree
counted from the praepositus and belonging to the
same line from where the property originally came
(reservatarios)

NOTE: RESERVA TRONCAL EXISTS ONLY


- in the legitimate family

HENCE: IT EXCLUDES
- illegitimate and
- adoptive relationship; and
- relationship by affinity

SHOULD RESERVISTA ALIENATES


T H E P R O P E R T Y, A N D W A S
SURVIVED BY RESERVATARIO
- the alienation transmits only the
revocable and conditional ownership of
the reservista. hence, if the resolutory
condition happens, the reservatario
has better right over the property.
--- see mirror doctrine as an
exe.
- in this instance, reservista's
estate shall be liable for its
value

NATURE OF RIGHT OF THE RESERVATARIO


- mere contingent or inchoate right or mere expectancy

FOR BETTER PROTECTION OF HIS RIGHT;


HE MAY:
1. cause the annotation the reservable
character of all reservable immovable
property in the Registry of Deeds; or
2. demand for the constitution of mortgage or
security to guaranty the obligation of the
reservista to deliver upon his death, the
personal property and the value of the
property alienated.

RULE AS TO WHO AMONG THE RESERVATARIO IS


TO BE PREFERRED
1. direct line of the praepositus is preferred over the
collateral line
2. the nearer relatives exclude the farther one
3. the right of representation wherever proper can
apply
4. and full-blood brothers and sisters get twice as
much as half-blood bro and sis

NOTE #3
- if follows then that the reservatario need not
be living at the time of the death of the
praepositus.

prepared by: ronie ablan


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SUCCESSION

30 of 56

THE AWESOME NOTES

OTHER RULES AFFECTING THE


LEGITIMES

COMPUTATION OF THE LEGITIME

NO RENUNCIATION OR COMPROMISE OF FUTURE


LEGITIMES
- VOID

[FIRST]
the value of the property which remains at the
time if the decedent's death shall be
determined

[SECOND]
all debts and charges which are not imposed in
the will shall be deducted

RATION:
- a contract against future inheritance which is
expressly prohibited by law
- future inheritance is mere expectancy over
which the heir does not acquire any real right
until the death of the testator.

the difference is called


NET HEREDITARY ESTATE (NHE)

WHEN IT IS NOT DEDUCTIBLE


- debt or charge arises for the first time
from the will itself as a unilateral act of
the testator.

HENCE; even if such is made, compulsory heir


may still claim

RIGHT TO DEMAND FOR COMPLETION OF


LEGITIME
- does not arise is preterition but only when the
omission is partial.
- the action is in order to cover his legitime

FF ARE PARTIAL OMISSION


(NO PRETERITION)
1. if the heir has received anything from the
testator, even by way of donation inter
vivos (considered as an advance of his
legitime)
2. the will did not mentioned the compulsory
heir nor the compulsory heir was given any
advance to his legitime, but the
testamentary disposition do not cover the
entire estate (something has left to be
disposed of)
IN HERE #2
- the undisposed portion shall pass to
the omitted compulsory heir by way of
intestate succession. if it is still not
enough to cover his legitime, he can
ask for completion of the same.

INOFFICIOUS TESTAMENTARY DISPOSITION AND


DONATION
- testamentary disposition which impairs or diminishes
the legitime if the compulsory heir. This shall also cover
inofficious donation inter vivos.

SUCH SHALL BE REDUCED


by way of petition
by person who have the right to the legitime

PRESCRIPTIVE PERIOD
10 YEARS
- from the time the right of action accrues
- that is; death of the decedent.

[THIRD]
COLLATION
by adding to the NHE; value of all donations by
the testator that are subject to collation, at the
time he made them, whether given to
compulsory heirs or to strangers

the total is called


DISTRIBUTABLE ESTATE

[FOURTH]
donations which had been brought to collation
should next be imputed and charged against
the corresponding portion of the estate.

RULES ON IMPUTATION OF DONATIONS AND ITS


REDUCTIONS

IN GENERAL
donations given to compulsory heirs should be
charged to their legitime
donations made to strangers shall be charged to that
part of the estate which the testator could have
disposed by his last will
donations shall be respected so long as the legitime
can be covered, reducing or annulling, if necessary,
the devises or legacies made in the will

REDUCTION OF DEVISES AND LEGACIES


GEN RULE
- pro rata, without any distinction
EXE:
if the testator has directed that a certain devise
or legacy be paid in preference of others
IN THIS INSTANCE
- it shall not suffer reduction, until after
all other devises and legacies have
been applied in full to the payment of
the legitime.

prepared by: ronie ablan


AAA - BASTE / ATB

SUCCESSION

31 of 56

THE AWESOME NOTES


DONATION SHALL BE REDUCED OR
ANNULLED ONLY
AFTER; annulling the legacies and devises the
legitimes cannot yet be fully paid.

IF THERE ARE SEVERAL


DONATIONS; among which is to be
applied first
- the donation made on recent dates

RULE:
DEVISE SUBJECT TO REDUCTION
CONSIST OF REAL PROPERTY WHICH
CANNOT BE CONVENIENTLY DIVIDED

FIRST

IT SHALL GO TO THE DEVISEE


- if the reduction does not absorb 1/2 of
its value

OTHERWISE; TO COMPULSORY
HEIRS
- subject to; reimbursement of the
devisee, for what respectively belongs
to him.

SECOND
if the devisee is also entitled to the legitime, he
may RETAIN THE ENTIRE PROPERTY
- regardless on won; the reduction of the devise
should absorb more than 1/2 if the value of the
property

PROVIDED; the value does bot


exceed:
a. that of the disposable portion; and
b. the share pertaining to him as a
legitime

THIRD
if the heir or devisee mentioned above does
not choose to avail of the foregoing right
- any heir or devisee who did not have
such right may exercise it
should nobody exercise this right
- the property shall be sold at public
auction at the instance of any
interested parties.

prepared by: ronie ablan


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THE AWESOME NOTES


STATEMENT OF THE CAUSE IN THE WILL
if the cause is stated in another will and the
disinheritance in another
the defect is cured
- when the necessary connection
between the cause and the
disinheritance is clearly established.

DISINHERITANCE

RULE ON DEPRIVATION OF LEGITIME


GEN RULE
the testator cannot deprive his compulsory heirs of their
legitime

EXE
by valid disinheritance
DISINHERITANCE

PRETERITION

deprivation of a compulsory heir of his share in the


legitime

EFFECT OF INVALID DISINHERITANCE


- the institution of heirs are invalidated, insofar as it may
prejudice the legitime of the person disinherited
- the legacies and devises and other testamentary
dispositions shall remain valid, so long as it dies not
impair the legitime

MANNER
express

implied
CAUSE

Legal Cause

due to mistake or
inadvertence
- law presupposes
above.
VALIDITY

valid if due to legal cause


- if due to an invalid
cause, the legitime of the
disinherited compulsory
heir is restored
- this shall cover the free
portion as part of his
legitime should the will
does not provide for the
distribution of the free
portion.

always invalid
- the omitted heir gets
not only his legitime but
also his entire share in
the free portion not
disposed of by way of
legacies and devises.

REQUISITES FOR A VALID DISINHERITANCE


1. the heir disinherited must be designated in such a
manner that there can be no doubt as to his identity
2. the disinheritance must be for a cause designated
by law
3. must be made in a will
4. made expressly, stating the cause in the will itself
5. must be certain and true and must be proved by the
interested heirs if the person disinherited should
deny it
6. must be unconditional and total

prepared by: ronie ablan


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THE AWESOME NOTES

LEAGL CAUSE FOR VALID DISINHERITANCE

OTHER GROUND TO DISINHERIT PARENTS


OR ASCENDANTS

CAUSES COMMON TO ALL COMPULSORY


HEIRS

Parents have abandoned their children or


induced their daughters to live a corrupt or
immoral life, or attempted against their
virtues
Convicted of adultery or concubinage with
the spouse of the testator
Loss of parental authority for causes
specified in the FC
An attempt by one of the parents against the
life of the other, Unless there has been a
reconciliation between the.

Conviction by final judgment of an attempt


against life of the testator, his or her spouse,
descendants or ascendants

NOTES:
- intent to kill is crucial here
- there must be a conviction by final
judgment

Accusing the testator of a crime for which


the law prescribes imprisonment for
6 YEARS OR MORE, if the accusation has
been found groundless or false

OTHER GROUNDS TO DISINHERIT THE


SPOUSE

NOTES:
- REQ: judicial declaration that the
accusation us groundless or false

When the heir causes the testator to make a


will or change one already made by fraud,
violence, intimidation, or undue influence

EFFECT OF SUBSEQUENT RECONCILIATION


1. Deprives the Testator to disinherit his heir
2. Renders ineffectual any disinheritance that may
have been made.

Unjustifiable refusal to give support

FORM
- no required form. express or tacit.

FOR DISINHERITING CHILDREN


- unjustified refusal to support parent or
ascendants who disinherit such child or
descendants

EXAMPLE
- testator who has knowledge of facts which
would make his compulsory heir unworthy, but
nonetheless instituted the same as heir in his
will
- when testator, condones in writing the heir
who committed an act which would make it
unworthy.

FOR DISINHERITING PARENTS


- unjustified refusal to support the
children or descendants

FOR DISINHERITING A SPOUSE


- unjustified refusal to support the
children or the other spouse.

OTHER GROUND TO DISINHERIT


CHILDREN OR DESCENDANTS

When a child or descendant has been


convicted of adultery or concubinage with
the spouse of the testator
Maltreatment of the testator by word or
deed, by the child of the descendant
When a child or descendant leads a
dishonorable or disgraceful life
Conviction of a crime which carries with it
the penalty of civil interdiction

When the spouse has given cause for legal


separation
When the spouse has given grounds for the
loss of parental authority.

RIGHT OF REPRESENTATION; AVAILABLE IN CASE


OF DISINHERITANCE
- children or descendants of the disinherited heir can
take his place and preserve the disinherited heir's right
to the legitime.

NOTE:
- the representative acquires the rights which
the person represented would have if he were
living or if he could have inherited.
Hence, not limited to legitime.
NOTE:
In here, the disinherited parent SHALL NOT
HAVE the usufruct or administration of the
property which constitute the legitime.

prepared by: ronie ablan


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THE AWESOME NOTES

LEGACIES AND DEVISES

LIABILITY FOR LOSS/ DESTRUCTION AND


EVICTION

FOR LOSS AND DESTRUCTION


- shall be borne by the heir who is at fault or through his
negligence caused the loss/destruction.

DEFINITION
DEVICE
- gift of real property given by virtue of a will

HOWEVER;
if it is in the possession of 2/more heirs, they
shall be solidarily liable, although only one
acted negligently.

LEGACY
- gift of personal property given by will.
WHAT CAN BE DEVISED OR BEQUEATHED
- all things and rights which are within the commerce of
man

WHO IS CHARGED WITH THE PAYMENT OF


LEGACY

IF LEGACY OR DEVISE IS INDETERMINATE


- one that is indicated only by its kind

PERFORMED BY WHOM
I F T H E R E I S A N A D M I N I S T R AT I O N
PROCEEDINGS
- it shall be done by the executor or
administrator

CHARGES SHALL BE TAKEN FROM


GEN RULE
from the estate itself
EXE:
when the testator expressly burdens a
particular heir, legatee or devisee with their
payment.

HENCE: pag walang designation, all


heirs shall be liable for such in the
same proportion in which they may
inherit.
- this applies in the absence of
administration proceedings for the
settlement of the estate of the
decedent.

LIMITATIONS
if an heir is burdened for its payment, such
burden cannot be imposed upon the
legitime.
Hence, he cannot be charged beyond
the free portion.
if legatee or devisee is burdened for its
payment, he shall be liable only to the extent
of the value if the legacy or devise received
by him.

LIABILITY SHALL BE BORNE BY


the heir who is charged with the
payment or delivery of the legacy or
devise

IF LEGACY OR DEVISE IS SPECIFIC


- no warranty against eviction is present.
hence, no liability shall attach to the heir
charged with its payment or delivery

IF THERE IS NONE
- it shall be performed by the heirs.

FOR EVICTION

LEGACY OF THING PARTLY OWNED BY THE


TESTATOR

GEN RULE:
shall be understood to be limited to such part or interest
owned by the testator.
This remains true, regardless on won the
testator knew that the this was partly owned by
a stranger.

EXE:
1. it clearly appears from the will that the testator
intended to convey a less interest
2. when the testator expressly declares that he
bequeaths or devises the thing in its entirety.

REQUISITES FOR #2
a. an express declaration to that effect
appearing in the will itself
b. knowledge on the part of the testator that
the thing belongs partly to a third person
c. that such knowledge must appear either in
the will itself or proved by competent
evidence.

BURDEN OF PROOF
- is upon the devisee or legatee
favored with such property

RATION WHY SUCH KNOWLEDGE IS


ESSENTIAL
- as otherwise, the devise or legacy
would be void. Art. 930

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THE AWESOME NOTES

EFFECT OF PARTITION
IF PHYSICALLY DIVISIBLE OR CONVENIENT
OF DIVISION
- walang problema

IF THE THING IS PHYSICALLY INDIVISIBLE


OR INCONVENIENT OF DIVISION

LEGACY OR DEVISE OF A THING BELONGING TO


DEVISEE OR LEGATEE

GEN RULE:
the devise or legacy shall be ineffective

1. if the entire property is adjudicated to the


testator, the subsequent acquisition does
not affect the legacy or devise.
2. if the property is adjudicated to a 3rd
person;

EXE: when it shall remain valid


1. alienation in favor of the testator and continue in the
testator's possession at the time of his death
2. if the thing is burdened by a charge or encumbrance
in favor of 3rd person
the devise or legacy shall remain valid, should
the testator expressly states that the charges or
encumbrance shall be extinguished.

a. LEGAL REVOCATION OF THE


DEVISE OR LEGACY
- if the testator has not express,y
declared that he bequeaths or devises
the property in its entirety

RULE:
IF, AT THE TIME OF THE EXECUTION OF
THE WILL, THE THING DID NOT BELONG
TO THE LEGATEE OR DEVISEE BUT HE
SUBSEQUENTLY ACQUIRES IT

b. REVOCATION ONLY OF THE PART


WHICH PASSED TO 3RD PERSON

LEGACY OR DEVISE OF A THING BELONGING TO


ANOTHER
GEN RULE:
VOID
- if at the time of the execution of the will, the testator
erroneously believed that the thing belonged to him

IF THE TESTATOR HAS NO KNOWLEDGE


THAT THE THING BELONGED TO THIRD
PERSON ORIGINALLY
- the device or legacy is void

IF THERE IS NO ERROR IN PART OF THE


TESTATOR

EXE:
1. if the thing is subsequently acquired by the testator,
by whatever title
2. when the testator provides in his will that the thing
be acquired and be given to legatee or devisee.

IN CASE OF #2
WHO HAS THE DUTY TO ACQUIRE IT:
1. the person designated, heir, legatee or
devisee
2. if there is no designation, it shall be
executed by the executor or administrator

IF THE THING CANNOT BE ACQUIRED


- the heir or the estate shall be obliged to give
the just value of the thing.
- provided, legitime of the compulsory heirs are
not prejudiced.

NOTE:
if the time testator bequeathed or devises a thing which
does not belong to him, of which he knew at the time he
executed his will, and on said will does not provide for
its acquisition
- the device or legacy shall still remain valid
- as the law presumes that the intention of the testator
is that it is to be acquired by the executor or
administrator of his estate, or by his HDL charged with
the legacy or devise.

IF ACQUIRED GRATUITOUSLY BY
THE LEGATEE OR DEVISEE
- the latter can claim nothing by virtue
of such devise or legacy
IF ACQUIRED ONEROUSLY BY
LEGATEE OR DEVISEE
- the latter can demand reimbursement
from the estate.

RULE:
IF THE THING WAS OWNED BY THE
T E S TAT O R AT T H E T I M E O F T H E
EXECUTION OF THE WILL AND ACQUIRED
SUBSEQUENTLY BY THE LEGATEE OR
DEVISEE

IF GRATUITOUSLY
- deemed to be in compliance with the legacy
or devise

IF ONEROUSLY
- legatee or devisee is entitled for the recovery
of the price paid by them from the estate.

IF THE LEGATEE OR DEVISEE ACQUIRED IT


FROM 3RD PERSON BY ONEROUS TITLE
- the device or legacy id deemed revoked
- and the subsequent acquisition by the legatee
or devisee doesn't mean that the device or
legacy is revived.

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THE AWESOME NOTES

LEGACY OR DEVISE OF THE THING PLEDGED

LEGACY IN FAVOR OF CREDITOR

GEN RULE:
regardless of whether the pledge or mortgage was
made after the execution of the will
- the estate is obliged to pay the debt to remove the
encumbrance thereon

GEN RULE:
it shall not be applied to his credit

EXE:
contrary intention appears
NOTE: THIS RULE APPLIES ONLY TO
ENCUMBRANCES BY VIRTUE OF PLEDGE
AND MORTGAGE

HENCE; as to any other charge, not pledge


and mortgage, it shall pass to the devisee or
legatee.

EXE:
when testator so expressly declares
- in here, the creditor has the right to collect the
excess, if any, of the credit, or devise or legacy.

when the testator does not expressly so declares,


BUT merely directs his executor to pay a debt which
he recognizes as existing in favor of the person
named in the will
- no legacy here. hence, creditor must present
his claim to the probate court for allowance.
- this is mere direction, not a testamentary
disposition.

LEGACY OF CREDIT
- this is to refer to credit which the testator has against
a third person, existing at the time of the death of the
testator
HENCE: not to cover those credit acquired
after his death.

- if the direction is for the payment if debt in


which he does not actually owes
it is deemed bot written
- if orders for the payment of debt, but more
than the amount thereof
the excess is not due
UNLESS; contrary intention appears.

THE LEGACY HERE SHALL COVER


- all interests on the credit which may be due
the testator at the time of his death.

LEGACY IS DEEMED REVOKED BY THE


TESTATOR
- should during his lifetime, brought an action
against the debtor for its payment
remains true; even the payment was
not effected during his lifetime.

ALTERNATIVE LEGACIES OR DEVISES


- when the testator bequeaths one if two or more things
that he designates

RIGHT OF CHOICE BELONGS TO


to the heir upon whim the obligation to give
the legacy or devise may be imposed; or
the executor or administrator of the estate if
no particular heir is obliged.

LEGACY OF REMISSION OF DEBT

3 KINDS OF REMISSION OF DEBTS


1. SPECIFIC LEGACY FOR REMISSION OF
DEFINITE DEBT
- this shall be effective only with respect to
debts existing at the time of testator's death.

DEEMED REVOKED
- should the testator, after having made
the legacy, brought an action against
the debtor

2. GENERIC LEGACY OF REMISSION OF


DEBTS
- this shall comprise; all debts existing at the
time of the execution of the will
BUT NOT; the subsequent one

3. LEGACY TO THE DEBTOR OF THE


THUNG PLEDGED BY HIM
- discharge only the right of pledge.

NOTE: should the heir designated dies


before he could made a choice
- the right shall pass to their respective
heir

ONCE CHOICE IS MADE


- it is irrevocable

GENERIC LEGACY OR DEVISE


IF ON PERSONAL PROPERTY; valid if
- there be no things of the same mind in the estate
IF ON REAL PROPERTY; valid if
- if there be immovable property of its kind in the estate
RIGHT OF CHOICE BELONGS TO
to the executor or administrator, if so
designated on the will
if no designation, shall be upon the heirs.

NOTE: should the heir designated dies


before he could made a choice
- the right shall pass to their respective
heir

prepared by: ronie ablan


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THE AWESOME NOTES


ONCE CHOICE IS MADE
- it is irrevocable

DUTY OF THE PERSON WHO HAS THE


RIGHT OF CHOICE
- to deliver neither of inferior nor of superior
quality.

have been applied in full to the


payment of the legitime.

FF CAUSES FOR REVOCATION OF LEGACY OR


DEVISE BY OPERATION OF LAW

WHEN RIGHT OF LEGATEE OR DEVISEE VESTS

testator transform the thing bequeathed in such a


manner that it dies not retain the form or the
denomination it had.

GEN RULE
- from the death of the testator

testator, by any title or any cause, alienates the thing


bequeathed or any part thereof.

FROM HERE:
- the devisee or legatee acquires a definite right
to transmit it to his heirs.
- the things shall be delivered to him, including
all its accession and accessories, its incomes
and fruits.
EXE:
if the bequest should not be of a specific and
determinate thing
- but is a generic or of quantity

IN HERE
the obligation to deliver arises only upon
making the selection
- HENCE; it also follows that the fruits and
income from the thing shall pertain to the
legatee or devisee only from the moment the
selection was made
EXE: even before the selection, it shall
pertain to the devisee or legatee if the
testator expressly so provides

THIS SHALL REMAIN TRUE


- if after the alienation, the testator
subsequently reacquire it. even if such is due to
nullity of the contract.

EXE:
- if reacquisition is by virtue of the exercise of
right of repurchase.

if the thing bequeathed is totally lost during the


lifetime of the testator, or after his death without the
heir's fault

EXE:
person obliged to give the legacy or devise is
liable for eviction
- WHEN; the thing bequeathed is not
determined as to its kind.

RULE OF PREFERENCE AMONG LEGACIES AND


DEVISES
1. remuneratory legacies or devises
2. legacies or devises declared by the testator to be
preferential
3. legacies for support
4. legacies for education
5. legacies for devises of a specific determinate thing
which form part of the estate
6. all others pro rate

APPLIES ONLY:
1. after the legitimes of the compulsory heirs
have been sufficiently provided
2. no chargeable donation inter vivos against
the free part.

HENCE; IF PRESENT EITHER OR BOTH OF


ABOVE MENTIONED
- the devises and legacies shall be reduced pro
rata
EXE:
when the testator has directed that a
certain devise or legacy be paid in
preference to others
- in which case
it shall not suffer any reduction
until other devises or legacies
prepared by: ronie ablan
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THE AWESOME NOTES

L E G A L O R I N T E S TAT E
SUCCESSION

COLLATERAL LINE
- brother and sister of the deceased
[Third] in default of second
the surviving spouse shall inherit the entire
estate
w
CONCURRED BY:
- brothers and sisters; or their children

IN GENERAL
- the law disfavor intestacy, as the intent of the testator
is the supreme law in succession.

WHEN LEGAL SUCCESSION TAKES PLACE


1. when a person dies without a will, or the will is void,
when a valid will subsequently lost its efficacy
2. when there is a will, but it does not designate an
heir or when it does not dispose all of the property
belonging to the testator
3. when the heir instituted in the will is subject to a
suspensive condition, and such condition is not
fulfilled
4. when the heir instituted in the will repudiates the
inheritance and no substitution and right of accretion
or representation takes place
5. there is preterition in the testator's will of one, some
or all of the compulsory heirs in the direct line
6. resolutory condition/term attached to the institution
of the heir happens/arrives and there being no
substitution and no right of accretion takes place.
7. when testamentary disposition is impossible of
compliance or is ineffective

RULE OF PROXIMITY AND RULE OF EQUAL


DIVISION

RULE OF PROXIMITY

EXE
when right of representation takes
place.

RULE EQUAL SHARES


GEN RULE
relatives in the same degree shall
inherit in equal shares

BASIC RULES OF INTESTATE SUCCESSION

RULE OF PREFERENCE BETWEEN LINES


[First]
direct descending line EXCLUDES direct
ascending and collateral lines

DIRECT DESCENDING LINE; includes:


- legitimate children and their descendants
- as well as adopted children

WITH ABOVE MENTIONED


CONCURS WITH
- the surviving spouse
- illegitimate children
[Second] in default of the first
direct ascending line EXCLUDES those in the
collateral line.

DIRECT ASCENDING LINE


- legitimate parents and ascendants

WITH ABOVE MENTIONED


CONCURS WITH
- the surviving spouse

[Fifth] in default of fourth


the State shall inherit the entire estate

GEN RULE
relative nearest in degree excludes the
more distant ones

WHO ARE THE LEGAL OR INTESTATE HEIRS


1. legitimate and illegitimate relatives of the deceased
2. the surviving spouse; and
3. the state

[Fourth] in default of third


the collateral relatives shall inherit the entire
estate

- illegitimate children

EXE:
brother and sisters of the full blood
survive together with bro and sis of
the half blood
- the former inherit to a share
double that of the latter.
should there be ascendants in both
lines
- half shall go to the parental
and the other half to the
maternal.
- in each line, the division shall
be made per capita.
whenever there is succession by
representation
- the succession shall be made
per stirpes.
HENCE IN HERE
- the representative,
although in the same
degree, shall not
inherit more than what
the person they
represent would
inherit, if he were living
if could inherit.

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THE AWESOME NOTES


C O M P U TAT I O N O F
DETERMINATION OF LINES

DEGREES

AND

proximity of relationship is determined by the number


of generations. each generation forms a degree
a series of degree forms a line, which may either be
direct or collateral.

IF ALL OF THE CO-HEIRS REPUDIATE


WITHIN THE SAME DEGREE
- those of the nest degree shall inherit in their
own right.

DEFINITIONS
DIRECT LINE
- constituted by the series of degrees among
ascendants and descendants

COLLATERAL LINE
- constituted by the series of degree among
persons who are not ascendants and
descendants, but who come from a common
ancestors

DESCENDING DIRECT LINE


- unites the head of the family with those who
descends from him

ASCENDING DIRECT LINE


- binds a person with those from whom he
descends

FULL BLOOD RELATIONSHIP


- between persons who have the same father
and mother

HALF BLOOD RELATIONSHIP


- between persons who have the same father
but not same mother, or vice versa

HOW TO COUNT DEGREES


DIRECT LINE
- ascent is made to the common ancestor

COLLATERAL LINE
- ascent is made to the common ancestor and
then descent is made to the person with whom
the computation is to be made.

RULE IN CASE OF REPUDIATION AND INCAPACITY


IN CASE OF INCAPACITY
The share that is rendered vacant shall pass to
the co-heirs, within the same degree
- ONLY; if right of representation does not
obtain.

IN CASR OF REPUDIATION
IF ONLY ONE OF THE CO-HEIR REPUDIATE
IN THE SAME DEGREE
the co-heir shall receive the share rendered
vacant. ACCRETION
- ONLY; if right of representation does not
obtain

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THE AWESOME NOTES

RIGHT OF REPRESENTATION

DEFINITION
is the right created by fiction of law, by virtue of which,
the representative is:
raised to the place and degree of the represented;
and
acquires the rights which the latter would have if he
were living or if he could have inherited.

WHO ARE ENTITLED TO REPRESENT

ILLEGITIMATE CHILDREN
ONLY with respect to the legitime of the IC

NOTE:
- representation obtains degree by degree and
no jump is made
- representative merely takes the place of the
person represented. hence, he can only inherit
the portion of the person represented should
rightfully receive.
furthermore; since the representative
inherits from the decedent and not from
the person represented, his capacity
and right to succeed must be
determined in relation to the decedent
and not the person represented.
- it it does not make him liable to pay
for the debts of the person
represented.

NOT AVAILABLE
- to illegitimate descendants of
legitimate children in the inheritance of
a legitimate grandparents

RATION:
IRON CURTAIN RULE
Art. 992 prohibits succession
ab intestato between the
illegitimate child and the
legitimate children and
relatives of the father or
mother.

ADOPTED CHILDREN
not available
- since the relationship created by adoption is
limited to the adopting parents and does not
extend to their relatives,
the adopted child, should he survive
with his adopting parents, cannot
represent the former in the inheritance
from the parents or ascendants of the
adopter.

WHERE REPRESENTATION TAKES PLACE

in the collateral line, nephews and nieces right to


represent their parents, who is a bro/sis of the
decedent, is only present when they are survived with
their uncles and/or aunts
- Hence, if the nephews and nieces alone
survive, they shall inherit in their own right.

NOTE: FF SCENARIO WHERE RIGHT OF


REPRESENTATION EXISTS:
a son who repudiates the inheritance from his father
does not lose the right to represent the latter in the
inheritance from the grandfather
a great-grandson may be called to the inheritance of
his great-grandfather even if the grandfather should
die before the great-grandson has been conceived.
a son who cannot inherit from his father on the
ground of unworthiness can still inherit from his
grandfather by representing his father,provided, he is
not unworthy with respect to his grandfather.

HENCE: no right of representation with respect


to voluntary heirs who succeeds only by virtue
of a will.

direct descending line, but never in the ascending line


- Hence, a GF cannot inherit from GS by
representing the father.

AVAILABLE
- to illegitimate descendants of IC in
the inheritance of an illegitimate
grandparents.

RIGHT OF REPRESENTATION APPLIES ONLY TO


SUCCESSION CONFERRED BY LAW
1. legal or intestate succession
2. testamentary succession, but inly with respect to the
legitime.

LEGITIMATE CHILDREN

3 CAUSES THAT JUSTIFY THE RIGHT OF


REPRESENTATION
1. predeceased
2. valid disinheritance
3. representation of unworthy child or descendant

NOTE: NO REPRESENTATION IN CASE OF


REPUDIATION
- the share rendered vacant shall accrue to the
others of the same degree, or if none, person
next in degree

prepared by: ronie ablan


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THE AWESOME NOTES

ORDER OF INTESTATE SUCCESSION

AS TO LEGITIMATE CHILD
1. legitimate children and descendants
2. legitimate parents and ascendants
3. illegitimate children
4. surviving spouse
5. collaterals up to 5th degree
6. the state

[FIFTH]
in default lahat; shall be inherited by Illegitimate BS,
entire

[SIXTH]
pag wala na talaga lahat; The STATE!

INTESTATE SUCCESSION IN THE DIRECT


DESCENDING LINE
- this includes adopted children

EXCLUDES
legitimate parents and ascendants
collateral relatives
the state

CONCURRED BY
surviving spouse
illegitimate children
see: pg 679 Rabuya's Book for concrete
example

see: attachment; Table

AS TO ILLEGITIMATE CHILD
[FIRST]
LC and descendants are preferred over IC

CONCURRED BY
- IC and SS
[SECOND]
in the absence of LC and descendants, IC and their
descendants shall succeed the entire estate.

CONCURRED BY:
- SS
[THIRD]
in the absence of LC and their descendants and IC and
their descendant
- the person who shall inherit is the Illegitimate Parents
of the decedent

CONCURRED BY
- SS ( tag 1/2 sila )
[FOURTH]
in default ng LC, IC, IP
- the SS shall inherit.

CONCURRED BY
- BSNN ( tag 1/2 sila )

NOTE:
the BS must be by illegitimate filiation,
as otherwise, the Iron Curtain Rule will
apply.
prepared by: ronie ablan
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THE AWESOME NOTES


PRO INDIVISIO
- when testator designates "one half for each"
or "in equal parts;" or
- though designating an aliquot part, do not
identify it by such description as shall make
each heir the exclusive owner if determinate
property
ie
- designating 1/2 to A, 1/4 to B, and the
remaining 1/4 of my estate to C.
- walang accretion na pag particularly
described yung mga property. gaya ng;
i will designate my house and lot to A,
my hacienda in Iloilo to B, and my
Ferrari to C.
- in case of money or fungible goods
if the share of each heir is not
earmarked, there shall be a right of
accretion

PROVISIONS COMMON TO
T E S TAT E A N D I N T E S TAT E
SUCCESSION
RIGHT OF ACCRETION

DEFINITION
is a right, by virtue of which,
- when two or more persons are called to the SAME.
inheritance, deice or legacy
- the part assigned to the one who
renounces; or
cannot receive his share; or
who died before the testator
IS ADDED OR INCORPORATED
- to that of his co-heirs, co-devisee or co-legatee

HENCE;
- if it is not particularly designated or
physically segregated from all others of
the same class, meron paring right of
accretion.

ACCRETION IN TESTAMENTARY SUCCESSION


CAUSES
1. renunciation or repudiation of the
inheritance
2. incapacity; or
3. predecease

CAUSE
only repudiation

BASIS
- the presumed will of the testator
HENCE; NO ACCRETION IN THE FF:
1. when the testator designate a substitute
2. when the testator expressly so provides
that there shall be no right of accretion
among those persons called to inherit

FURTHERMORE; NO ACCRETION
- on the legitime; only on the free portion
- as in legitime, an heir shall only inherit it in
their own right

HENCE; should an heir repudiate his


legitime
- that portion shall accrue to his coheirs, by their own right, and not by
accretion.

ACCRETION IN INTESTATE SUCCESSION

IN CASE OF INCAPACITY OR PREDECEASE


- if representation does not take place, other
heir shall inherit in their own right,
and NOT by right of accretion

EFFECTS OF ACCRETION
1. heirs to whom the portion goes by right of accretion
- take it in the same proportion that they inherit
2. heirs to whom the inheritance accrues
- shall succeed to all the rights and obligations
which the heir who renounced or could not
receive it would have had.
EXE:
when the testator expressly provides for the
contrary, in testamentary succession
when it is purely personal.

ELEMENTS OF ACCRETION
1. 2/more persons are called to the same
inheritance, or to the same portion thereof,
jointly or pro indivisio; and
2. there is a vacancy in the inheritance as a
result of predecease, incapacity or
repudiation.

prepared by: ronie ablan


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THE AWESOME NOTES


SUBSTITUTION

REPRESENTATION

ACCRETION

SUBSTITUTION

In Testamentary Succession

if the cause is predecease and incapacity

if the cause is predecease, incapacity and disinheritance


- the representatives
shall succeed to the
vacant portion

not available

not available

not available

IF RIGHT OF
REPRESENTATION
IS NOT AVAILABLE
- then the vacant
portion shall go to
the co-heirs in their
own right

IN DEFAULT
- the vacant portion
shall go to heirs in
the next order if
intestacy

IF ABOVE
MENTIONED IS
STILL
NOT
AVAILABLE
- the vacant portion
shall go to other
secondary and/or
compulsory heirs

if it is due to repudiation

not available

if it is due to repudiation

right of accretion, representation and substitution shall not takes


place. in fact, accretion and substitution cannot take place.

RIGHT OF
ACCRETION
- the vacant portion
shall go to the other
co-heirs by right of
accretion
IN DEFAULT
- the vacant portion
shall go to heirs if
the next degree in
their own right

WHAT HAPPEN HERE;


1. the other co-heirs shall succeed to it in their own right
2. in default thereof; the vacant portion shall go to other secondary
and/or compulsory heirs

WITH RESPECT TO THE FREE PORTION


(in case of predecease, incapacity or repudiation)
IF THE TESTATOR
DOES
NOT
PROVIDE FOR
SUBSTITUTION
- the vacant share
shall go to the coheir by right of
accretion
* if the requisites are
present; and
* the testator has not
provided to the
contrary

not available

NOT APPLICABLE
- in testamentary
s u c c e s s i o n ,
representation shall
take place only with
respect to the
legitimes
- it does not take
place with respect to
what is voluntarily
given by will.

RIGHT OF
REPRESENTATION
SHALL
TA K E
PLACE
- representative to
succeed the vacant
portion

IF
REPRESENTATION
IS NOT AVAILABLE
- then the co heirs of
the same degree
shall succeed to it in
their own right.
- not by accretion,
as accretion applies
only to free portion

substitution shall
take place IF
- provided for by the
testator

ACCRETION

In Intestate Succession

WITH RESPECT TO THE LEGITIME

not available

REPRESENTATION

IN DEFAULT
- it shall go to the
heirs in the next
order of intestacy

HENCE; pag wala


yung requisites or
the testator provides
for the contrary
- the vacant portion
shall pass to the
legal heirs if no
substitute has been
designated.

prepared by: ronie ablan


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THE AWESOME NOTES

INCAPACITY TO SUCCEED

QUALIFICATIONS
1. possession of juridical capacity
2. not specifically disqualified
3. the heir, devisee, legatee (HDL) must be living at
the moment the succession opens

TIME WHEN CAPACITY IS TO BE DETERMINED


AND GOVERNING LAW

EXE:
if the institution, devise or legacy should be
conditional (suspensive)
- the capacity is to be determined not only at
the time of the death of the decedent,
- but also at the time of the fulfillment of the
condition.

EXE TO: POSSESSION OF JURIDICAL


PERSONALITY

I. testamentary disposition by the testator of


the whole or part of his property for prayers
and pious works for the benefit of his soul
- in general term, without specifying its
application

IN THIS INSTANCE; It shall be


distributed in the ff manner, after
court's approval
1. 1/2 to the church or denomination
which the testator belongs
2. 1/2 to the State, for the benefit of
public school, charitable
institutions and centers.

GEN RULE
shall be based at the time of the death of the
decedent

NOTE:
CAPACITY TO SUCCEED; governed by
- the national law of the decedent.

II. testamentary provision made in favor of


the poor in general
- W/O designation of particular persons or
community

IN THIS INSTANCE
1. the recipient shall be limited to the
poor living in the domicile of the
testator at the time of his death.
EXE:
contrary intention clearly
appears
2. designation and the distribution shall
be made by
person appointed by the testator for
the purpose
in default thereof, the executor; or
should there be no executor, shall
be done by justice of peace, mayor
and municipal treasurer
- who shall decide by majority
vote, and subject to RTC's
approval

QUALIFICATIONS FOR #3

- a child already conceived at the time of the


death of the decedent is capable of
succeeding; PROVIDED
1. the child must be alive for at least 24 hrs
from complete delivery, if it had an intrautirine life of less than 7 mos; or
2. the child must be alive even onky for a few
hrs from complete delivery, if it had an
intra-utirine life of at least 7mos.

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THE AWESOME NOTES

DISQUALIFICATIONS
BY REASON OF PUBLIC POLICY
Art. 739. The following donations shall be void:
1. Those made between persons who were
guilty of adultery or concubinage at the
time of the donation;
2. Those made between persons found guilty
of the same criminal offense, in
consideration thereof;
3. Those made to a public officer or his wife,
descedants and ascendants, by reason of
his office.

BY REASON OF POSSIBLE UNDUE


INFLUENCE
Art. 1027. The following are incapable of
succeeding:
(1) The priest who heard the confession of the
testator during his last illness, or the minister of
the gospel who extended spiritual aid to him
during the same period;

REQUISITES
a. the will must have been made
during the testator's last illness
b. t h e
spiritual
ministration(confession or
extension of spiritual aid) must
have been made during the last
illness
c. the will must have been executed
during or after the spiritual
ministration.

(4) Any attesting witness to the execution of a


will, the spouse, parents, or children, or any
one claiming under such witness, spouse,
parents, or children;

(5) Any physician, surgeon, nurse, health


officer or druggist who took care of the testator
during his last illness;

(6) Individuals, associations and corporations


not permitted by law to inherit.
BY REASON OF UNWORTHINESS
Art. 1032. The following are incapable of
succeeding by reason of unworthiness:
(1) Parents who have abandoned their children
or induced their daughters to lead a corrupt or
immoral life, or attempted against their virtue;

EXE: any provision made by the ward


in favor of the guardian when the latter
is his
ascendant,
descendant,
brother, sister, or
spouse,
shall be valid;

NOTE: DISQUALIFICATION APPLIES


- if the designation of the guardian was
made prior to the approval of the final
accounts

IT ALSO INCLUDES
a. abandonment of the child
b. inducement of a daughter to lead
a corrupt or immoral life
c. attempt against a daughter's
virtue

(2) Any person who has been convicted of an


attempt against the life of the testator, his or
her spouse, descendants, or ascendants;

(2) The relatives of such priest or minister of


the gospel within the fourth degree, the church,
order, chapter, community, organization, or
institution to which such priest or minister may
belong;
(3) A guardian with respect to testamentary
dispositions given by a ward in his favor before
the final accounts of the guardianship have
been approved, even if the testator should die
after the approval thereof;

EXE:
if there are 3 other competent
witnesses to such will

REQUISITES
a. the heir must have made an
attempt against the life of the
decedent, his or his spouse,
descendants or ascendants
b. there must be an intent ti kill; and
c. there must have been a final
conviction for such attempt.

(3) Any person who has accused the testator of


a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;

IT ALSO INCLUDES
a. filing of a complaint against the
testator without a cause; and
b. testifying falsely as a witness
against the testator

(4) Any heir of full age who, having knowledge


of the violent death of the testator, should fail to
report it to an officer of the law within a month,
unless the authorities have already taken
action; this prohibition shall not apply to cases
wherein, according to law, there is no obligation
to make an accusation;
prepared by: ronie ablan
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THE AWESOME NOTES

DECLARED INOPERATIVE
- as the law does not vest an obligation
to a person to make an accusation for
violent deaths under the law

(5) Any person convicted of adultery or


concubinage with the spouse of the testator;

NOTE:
- the offending spouse of the testator
here is not covered by Art. 1032.
hence, di sya declared unworthy
- HOWEVER; if as a result thereof,
legal separation has bern granted on
the ground of sexual infidelity, the
offending spouse is disqualified to
inherit from the innocent spouse
note: yung qualification here
applies only in intestate
succession. as nothing
prevents the testator-innocent
spouse from still designating
his offending spouse as his
heir.

EFFECT OF UNWORTHINESS/ INCAPACITY


GEN RULE
exclusion from the entire inheritance
- losses everything which he could have have
otherwise received mortis causa from the
decedent, including his legitime if he is a
compulsory heir.

EXE:
I. he shall still retain what he had already
received from the decedent during the lifetime
of the latter

(6) Any person who by fraud, violence,


intimidation, or undue influence should cause
the testator to make a will or to change one
already made;

ACTS INCLUDED ARE THE FF:


a. causing the testator to make a will
b. causing the testator to change an
existing will
c. preventing the decedent from
making a will
d. preventing the testator from
revoking his will

EXE TO EXE
when he should commit any act of
ingratitude enumerated under Art. 765
NCC:
1. if the donee should commit some
offense against the person, the
honor or the property of the donor,
or of his wife or children under his
parental authority;
2. If the donee imputes to the donor
any criminal offense, or any act
involving moral turpitude, even
though he should prove it, unless
the crime or the act has been
committed against the donee
himself, his wife or children under
his authority;
3. if he unduly refuses him support
when the donee is legally or
morally bound to give support to
the donor.

II. Pardon upon the act of unworthiness

(7) Any person who by the same means


prevents another from making a will, or from
revoking one already made, or who supplants,
conceals, or alters the latter's will;

2 KINDS OF PARDON

(8) Any person who falsifies or forges a


supposed will of the decedent.

1. E x p r e s s P a r d o n - w h e n t h e
decedent, having knowledge of
the. cause, subsequently
condones it in writing
2. I m p l i e d P a r d o n - w h e n t h e
testator, having knowledge of a
cause, institutes the offender as
HDL.

R E P R E S E N TAT I O N ; I N C A S E O F
UNWORTHINESS
since unworthiness is purely personal to the
heir, it does not prejudice his children and
descendant.

WHO ARE ENTITLED TO


REPRESENT THE UNWORTHY HEIR
1. the children of the unworthy heir;
or
2. descendant to the decedent's
inheritance (?)

prepared by: ronie ablan


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THE AWESOME NOTES


RIGHT OF REPRESENTATION (IN
CASE AN HEIR IS DECLARED
UNWORTHY) IS AVAILABLE ONLY IN
THE FF INSTANCES:
if the person excluded from the
inheritance by reason of unworthiness
1. should be a child or descendant
of the descendent; or
2. is a brother or sister
REQ FOR #2
- the children of the unworthy
heir must survive with their
uncles and aunts.

EXTENT OF REPRESENTATION
- extends to whatever portion in
intestate succession the person
represented may have been entitled to.

OBLIGATION OF THE EXCLUDED HEIR WHO


ENTERED INTO POSSESSION OF HEREDITARY
PROPERTY
1. to return the hereditary property
2. including the fruits and rents he may have or could
have received through the exercise of due diligence

NOTE:
regardless on WON the excluded heir acted in
bf, he has the right to recover necessary
expenses.

KUNG NA ALIENATE NA YUNG PROPERTY


ALIENATION REMAINS VALID
- if it was made prior to the declaration
of his incapacity

PROVIDED
if the transferee acted in gf
or w/o knowledge of the
facts which render the
transferor unworthy
- only remedy of the
co-heirs; to recover
damages from the
disqualified heir
HENCE; should the
transferee acted in bf
- alienation not being
valid, the co-heirs may
recover it from the
transferee.

PRESCRIPTION PERIOD
- for declaration of incapacity and for the
recovery of the inheritance, devise or legacy
SHALL BE BROUGHT
WITHIN 5 YEARS
- from the time the disqualified person
took possession thereof.

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THE AWESOME NOTES

ACCEPTANCE AND REPUDIATION OF


INHERITANCE

C O R P O R AT I O N A N D O T H E R
ENTITIES

AS TO ACCEPTANCE
- through its lawful representatives.
NOTE: dapat yung entity is
qualified to acquire property.

NATURE
- purely voluntary and free
- an HDL may not be compelled to accept the
inheritance. he is free to accept or repudiate the same

AS TO REPUDIATION
- approval of the court shall be
necessary

REQUISITES OF VALID ACCEPTANCE AND


REPUDIATION
1. the person accepting or repudiating the inheritance
MUST be certain of the death of the person from
whom he is to inherit; and
2. he must be certain of his right to inherit

WHO MAY EFFECT THE


REPUDIATION

PUBLIC OFFICIAL ESTABLISHMENT


- such as; state universities and public
libraries
- can neither accept nor repudiate
without the approval of the
government.

ACCEPTANCE OR

GEN RULE
- the HDL
- deaf-mutes who can read and write may
accept and repudiate the inheritance personally
or through an agent
- a married woman may accept or repudiate
inheritance w/o the consent of his husband.

EXE: when acceptance and repudiation is


done by person, other than the HDL
MINOR
AND
OTHER
INCAPACITATED PERSON

AS TO ACCEPTANCE
- by their parents or guardians
AS TO REPUDIATION
- by their parents or guardians, only
after judicial authorization.
- absence of judicial authorization, the
repudiation shall be void.

INHERITANCE LEFT TO THE POOR


AS TO ACCEPTANCE
- by the person designated by the
testator to determine the beneficiaries
and distribute the properties.

REMEDY OF CREDITORS PREJUDICED BY


THE REPUDIATION
- may petition the court to authorize them to
accept it in the name of the heir

REQUISITES
1. there must be a repudiation by the
heir in legal form, a repudiation
valid in law
2. there must be a credit existing
against the heir who repudiates
3. judicial authorization must be
obtained before the creditor may
accept for the debtor; and
4. the act of repudiation prejudices
the claims if the creditor.

SHOULD IT BE GRANTED
EXTENT OF RESCISSION OF
REPUDIATION
ONLY TO THE EXTENT
- sufficient to cover the amount of their
credits.
HENCE; as to the excess, the
repudiation shall still remain
valid.

AS TO REPUDIATION
- no right to repudiate

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THE AWESOME NOTES

MANNER OF ACCEPTANCE
EXPRESS ACCEPTANCE
- in writing. public or private document

IMPLIED ACCEPTANCE
- one resulting from acts by which the intention
to accept is necessarily implied.

IE.
1. if the heirs sells, donates, or
assigned his right to a stranger, or
to his co-heirs, or to any of them
2. if the heir renounces the same,
even though gratuitously, for the
benefit of one or more of his coheirs (this act is cession really)
3. if the heir renounces it for a price
in favor of all his co-heirs
indiscriminately (not really a
renunciation)
4. if within 30 days after the court
issues an
order for the
distribution of the estate in
accordance with the Rule of Court
- the HDL failed to signify to
the court having jurisdiction,
whether they accept or
repudiate the inheritance.

NO IMPLIED ACCEPTANCE
1. when the act does not qualify as
an act of dominion, rather it is
merely for preservation,
provisional administration
2. w h e n t h e h e i r e x p r e s s l y
renounces gratuitously his part in
favor of all co-heirs, to whim the
portion renounced shall pass by
the right if accretion, substitution
or by intestate succession.
(absolute repudiation)

MANNER OF REPUDIATION
1. notarial document (public document)
2. authentic document ( one whose authenticity or
genuineness is admitted and clearly proved)
3. by way of petition presented to the court having
jurisdiction over the testamentary proceedings.

EFFECT OF DEATH OF HEIR; without having


accepted or repudiated the inheritance
- his right shall be transmitted to his heirs

PROBLEMO
should an heir is both testamentary and
intestate heir, what is the effect of his
repudiation when done only in either one
capacity?

ANS:
S H O U L D H E R E P U D I AT E S . T H E
INHERITANCE IN HIS CAPACITY AS A
TESTAMENTARY HEIR
- deemed to have repudiated the inheritance as
an intestate heir

S H O U L D H E R E P U D I AT E S T H E
INHERITANCE IN HIS CAPACITY AS AN
INTESTATE HEIR
without knowledge of him being a testamentary
heir
- not deemed to have renounced his right as a
testamentary heir.

EFFECT OF ACCEPTANCE AND REPUDIATION


RETROACTIVE EFFECT
- the repudiation and acceptance shall always
retroact to the moment of the death of the
decedent
even if
- the institution of heir is subject to
suspensive condition

SHOULD HE ACCEPTS
- possession of hereditary property is deemed
transmitted to the heir without interruption,
from the moment of the death of the
decedent

SHOULD HE RENOUNCES
- deemed to have never possessed the
hereditary property

IRREVOCABILITY OF ACCEPTANCE OR
REPUDIATION
GEN RULE
acceptance and repudiation, once
made, is irrevocable and cannot be
impugned.

EXE
1. when it was made through any of
the cause which vitiate consent
(FUiVIM)
2. when an unknown will appears

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THE AWESOME NOTES

FF NOT SUBJECT TO COLLATION:

COLLATION

1. Expenses for support, education,


medical attendance, even in
extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts

2 CONCEPTS
1. As a mere Mathematical Computation
- computation of the value of the net hereditary
estate by
adding the value of all donation inter
vivos made by the decedent to the
remaining assets at the time of his
death
- including, the determination of the amount of
the legitme of compulsory heirs and the
disposable portion
and imputation of donation inter vivos
either to the legitime or to the
disposable portion.

2. Expenses incurred by the parents in


giving their children a professional,
vocational or other career shall not be
brought to collation

EXE:
the parents so provide, or
they impair the legitime;

LESS: sum which the child


would have spent if he had
lived in the house and
company of his parents shall
be deducted therefrom.

2. Involving Actual Return of Property


- for those donations made by the decedent
during his lifetime
in the event that said donation is found
to be inofficious.

NOTE: if found to be
inofficious;
- chargeable to sa free portion

RULES AND PROCEDURES

3. gifts by parents and ascendants


consisting of jewelry, clothing, and
outfit, shall not be reduced as
inofficious

FIRST
determine the value of the property which
remains at the time of the death of the
decedent

EXE:
insofar as they may exceed
1/10 of the sum which is
disposable by will.
~ excess subject to collation

SECOND
all debts and charges which are not imposed in
the will shall be deducted.

after deduction, the difference is called;


NET HEREDITARY ESTATE (NHE)

THIRD
ADD to NHE
- value of all donations by the testator that are
subject to collation, at the time he made them.
whether such donation was made in favor of
his compulsory heir or strangers

the total shall be called;


DISTRIBUTABLE ESTATE
VALUATION OF THE DONATIONS
MADE
- the value of the property at the time it
was donated

NOTE:
pag both parents made a donation, 1/2
shall be brought back to the inheritance
of the father, and the other half to the
mother.

DISTRIBUTABLE ESTATE
- shall be the basis for computing the
free portion and the legitime

NOTE: subject to collation yung


when the testator expressly provide
that the disposition made in the will
shall be subject to collation
any sums paid by a parent in
satisfaction of the debts of his
children, election expenses, fines
and similar expenses.

The grandchildren, if they concur


with their uncles, aunts or cousins;
shall be obliged to collate:
all that their parents, if alive, would
have been obliged to bring
even though
- such grandchildren gave not
inherited the property
all that they may have received
from the decedent during his
lifetime.

FOURTH
After determination of the
distributable estate
the legitimes
the free portion
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THE AWESOME NOTES


= donations which had been brought to
collation should next be imputed and
charged against the corresponding
portion of the estate.

EXE TO PRO RATA REDUCTION OF


DEVISES AND LEGACIES MADE
WITHOUT DISTINCTION
- if the testator has directed that a
certain device or legacy be paid in
preference of the others

IMPUTATION OF DONATIONS AND OTHER


GRATUITOUS DISPOSITION

IF AFTER REDUCTION/ANNULMENT
OF LEGACY AND/OR DEVICE, THE
LEGITIME IS STILL IMPAIRED
- will be the only time that the
donations made shall be reduced or
annulled, as the case may be.
- sa order of preference as to which of
several donations shall be reduced first
yung donation having the
recent date shall be reduced
first

DONATIONS MADE TO COMPULSORY


HEIRS

GEN RULE
chargeable to their legitimes

EXE:
when chargeable to the free portion:
1. w h e n t h e d o n o r e x p r e s s l y
provides that collation shall not
take place. (testator manifested in
his will that the donations made
shall not constitute as an advance
on the legitime)
2. when the donee renounces the
inheritance, thus becoming a
complete stranger to the
inheritance.

ORDER OF PREFERENCE AS TO THE


PAYMENT OF LEGACIES AND DEVICES

Art. 950. If the estate should not be sufficient to


cover all the legacies or devises, their payment
shall be made in the following order:

1. Remuneratory legacies or devises;


2. Legacies or devises declared by the
testator to be preferential;
3. Legacies for support;
4. Legacies for education;
5. Legacies or devises of a specific,
determinate thing which forms a part of the
estate;
6. All others pro rata.

DONATIONS MADE TO STRANGERS


CHARGEABLE AGAINST
- the free portion.
- that part of the estate which the
testator could have disposed by his last
will.

IF FOUND TO BE INOFFICIOUS
- they shall be reduced insofar as they
are inofficious

THE FF ARE DEEMED DONATIONS


TO STRANGERS
1. made by an ascendants to their
grandchildren
2. made by a parent-in-law to their
child-in-law
- pero; if made the spouses
jointly,
1/2 shall be charged
against the legitime of the
donee-child
the other half shall be
charged against the free
portion

REVOCATION/ REDUCTION OF INOFFICIOUS


DONATIONS

IN CASE OF INOFFICIOUS DONATION


- such is reducible to the extent, such excess
WITHOUT PREJUDICE
- to its taking effect in the donor's lifetime or the
donee's appropriating the fruits of the thing
donated.

NOTE: MERE FACT OF INOFFICIOUS DONATION


D O E S N N O T R E S U LT T O A U T O M AT I C
REVOCATION.
- there must be an action for revocation
- that said action must be filed within the prescriptive
period

PRESCRIPTIVE PERIOD
10 YEARS
- following the death of the donor-decedent

DONATIONS SHALL BE RESPECTED


SO LONG AS
- as the legitimes shall be covered

IF THE LEGITIMES ARE IMPAIRED


- the devises and legacies made in the will shall
be reduced pro rata to the extent necessary,
and even be annulled to ensure satisfaction of
both the legitime and donation made.

WHO CAN FILE AN ACTION


1. those who has right to the legitime at the
time of donor's death; and
2. their heirs and successors-in-interest

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WITH RESPECT TO THE FRUITS AND INTEREST OF
THE PROPERTY SUBJECT TO COLLATION
- it shall not pertain to the estate
EXE:
from the moment succession opens

DONEE, AFTER COLLATION, MAY ASK FOR


REIMBURSEMENT FROM COMPULSORY HEIRS
BENEFITED THE FF
1. necessary expenses incurred for the preservation of
the property donated to him
2. improvements made by him upon an immovable
which have increased its value, and which exist at
the time the partition is effected
ORNAMENTAL EXPENSE
- same sa property law.

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PARTITION

NOTE: PRIOR TO PARTITION


- the whole estate is owned in common by the heirs,
subject to the payment of the debts of the deceased.

DEFINITION
is the separation, division and assignment of a thing
held in common
among those to whom it may belong.

BY THE HEIRS THEMSELVES


HOW
- extrajudicial settlement

* the thing itself may be divided or its value.

NOTE: WHAT IS DELEGATED


- only power to make physical division
of the estate
DOES NOT INCLUDE
- power to distribute or dispose. this
should still be exercised by the testator.

REQUISITES (R74 S1 ROC)


1. the decedent left no will
2. the decedent left no debts, or if
there were, all had been paid
3. the heirs are all of age, or if they
are minors, the latter are
represented by their judicial
guardian or legal representatives
4. the partition was made by mans
of a public instrument or affidavit
duly filed with the Register of
Deeds.

PARTITION COVERS
- every act which is intended to put an end to
indivision among co-heirs, legatees and
devisees,
although it may purport to be a sale,
exchange, compromise, or other
transaction.

WHO AND HOW PARTITION IS EFFECTED

BY THE TESTATOR HIMSELF


- shall be respected, so long the legitimes of
compulsory heirs are not affected

HOWEVER;
Vda. de Reyes vs. CA
- oral partition may be valid
- the need that it be placed in a
public instrument and
registered in RD, is only for the
purpose of protection of
creditors and at the same time
of the heirs. HOWEVER, such
does not apply in extrajudicial
settlement of estate when
there are no creditors whose
right may be prejudiced.

HOW
1. by will
2. act intervivos

BY ACT INTER VIVOS


- as an exception to the prohibition
against future inheritance
- the partition here shall take effect only
after death of the testator

REQ: should a testator


partition his estate by act inter
vivos
- he must execute first a will,
with all the formalities
prescribed by law. (Legasto vs
Verzosa)
pero parang in conflict
s a J LT A g r o v s
Balansag.
pg. 726 Rabuya. ano
ba talaga?

BY A THIRD PERSON DESIGNATED BY THE


TESTATOR (MANDATARY)
Testator may, by act inter vivos or mortis causa,
intrust the power to make the partition after his
death to any person
- who is not one of his heirs.

THE POWER SHALL BE EXERCISE


ONLY
- after the death of the testator

BY THE COURT
HOW
Ordinary Action for Partition
(Rule 69 ROC)

2 WAYS OF PARTITION UNDER


RULE 69
BY AGREEMENT
- where the parties prepare a
project of partition and submit
the same for the court's
confirmation

THROUGH COMMISSIONER
- when no such agreement can
be reached
- court shall appoint
commissioners, who shall
prepare and submit report of
partition

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THE AWESOME NOTES

NOTE: no partition can be effected


when expenses chargeable to the
estate is still at issue.
- in this instance, settlement of estate
is the proper course of action.

IN THIS INSTANCE; 2 SCENARIO MAY ARISE

ISSUES TO BE RESOLVED SHOULD


THE ACTION FOR PARTITION IS
BROUGHT BY A CO-OWNER

1. the thing may be adjudicated to one of the


heirs
PROVIDED
he shall pay the others the excess in
cash.

2. the thing shall be sold at a public auction,


should any of the heirs demand for it.
- in here; strangers shall be allowed to
bid.

FIRST
- whether the plaintiff is indeed
a co-owner

SECOND
- after the first has been
determined, how the property
is to be divided.

S A L E O F H E R E D I TA R Y S H A R E B E F O R E
PARTITION
- is allowed

RIGHTS OF CO-HEIRS TO DEMAND PARTITION


GEN RULE:
every co-heir has a right to demand division of
the estate, AT ANY TIME

ONCE CO-OWNERSHIP IS
RECOGNIZED
- action to compel partition will not
prescribe

EXE:

testator may validly prohibit the partition of


the estate for a period NOT EXCEEDING 20
YRS
- this may even apply over legitime

IF THE HEIR SOLD HIS SHARE TO A


STRANGER, BEFORE PARTITION...
RIGHTS OF THE CO-HEIRS

they may redeem such share from the


purchaser
BY: reimbursing the latter for the
price of the sale

EXE TO EXE
1. any of the causes for which
partnership is dissolved; or
2. w h e n t h e c o u r t fi n d s f o r
compelling reasons that division
should be ordered, upon petition
by one of the co-heir

the heir themselves may agree on indivision,


for a period NOT EXCEEDING 10 YEARS
- but renewable for like period.

voluntary heirs upon whom condition has


been imposed, cannot demand a partition
- UNTIL the condition has been fulfilled.

EXE TO EXE:
even prior to the fulfillment of the
condition, should the voluntary heir
GIVES SUFFICIENT SECURITY for
the rights which the said voluntary
heirs may have.

IF PARTITION IS NOT POSSIBLE


EITHER BECAUSE
the thing is indivisible; or
the thing will be impaired if divided

QUALIFICATIONS
an heir can only sell his ideal or undivided
share in the estate, and not any specific
property therein.
RATION:
- since, the share of an heir is only
determined after the final adjudication
of division of the estate by the probate
or intestate court.
IN HERE; it presupposes that
all debts of the estate has been
paid and the shares of the
legatees and devisees has
been given

TIMEFRAME
- WITHIN 1 MONTH from the time they
were notified in writing of said sale.

EFFECTS OF PARTITION
the co-ownership is terminated, and each co-owner
becomes the absolute and exclusive owner of the
share allotted to him.
it shall not prejudice the rights of 3rd persons, who
shall retain the rights of mortgage, servitude, or any
other real rights belonging to them before the division
was made
personal rights pertaining to 3rd persons against the
ownership shall also remains.
mutual accounting shall be rendered by the coowners to each other with regard to benefits and
expenses and each co
owner shall be liable to pay for damages caused by
reason of his negligence or fraud.

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THEY SHALL REIMBURSE ON ANOTHER
FOR
- the income and fruits which each one of them
may have received from any property of the
estate
- for any useful and necessary expenses made
upon such property
- for any damage thereto through malice or
neglect

RESCISSION DUE TO PRETERITION


AVAILABLE ONLY
- if bf of fraud on the part of the other person
interested has been proved.

HENCE; IN ABSENCE OF BF/FRAUD


- the other persons interested be
proportionately obliged to pay to the
person omitted the share which
belongs to him.

every co owner shall be liable for defects of title


and quality of the portion assigned to each of the
other co-heirs (action must be brought WITHIN
10 YEARS from the time the action accrues)
- this is proportionate to the respective
hereditary shares of the co-heirs.
- if one is insolvent, other co-heirs shall
shoulder the part in the same proportion
those who pays in favor of the
insolvent co-heir has right to be
reimburse after his financial condition
improve

OBLIGATION OF THE HEIRS WHI


WAS SUED
1. he may indemnify the plaintiff for
the loss; or
2. consent to a new partition

WHEN OBLIGATION OF WARRANTY AMONG


CO-HEIRS SHALL CEASE
1. when testator himself has made the
partition. UNLESS; can be reasonably
presumed that his intention was otherwise.
2. when it has been expressly stipulated in
the agreement of partition. UNLESS; there
has been bf.
3. when the eviction is due to a cause
subsequent to the partition, or due to the
fault of the distributee of the property.

RESCISSION AND NULLITY OF PARTITION


GROUNDS
same cause a contracts

RESCISSION ON ACCOUNT OF LESION


- partition, whether judicial or extrajudicial
- when any one of the co-heirs received things
whose value is less, by at least 1/4, than the
share to which he is entitled.

IF THE PARTITION WAS MADE BY


THE TESTATOR; it can be impugned
only if:
1. legitime of the compulsory heirs
are prejudiced
2. i t c a n b e r e a s o n a b l y b e
presumed, that the intention of the
testator was otherwise.

PRESCRIPTION PERIOD
AFTER 4 YRS
- from the time the partition was made

OPTION OF
INDEMNIFICATION
either by
cash; or
delivery of a thing of the
same kind and quality as
that awarded to the
plaintiff.

OPTION OF CONSENTING
TO A NEW PARTITION
- this shall not affect those who
were not prejudiced nor those
who received more than their
just share.

NOTE: NOT PROPER GROUND OF


RESCISSION

omission of one or more objects or securities


of the inheritance
this can be cured by completion of the
distribution

AN HEIR CANNOT BRING ACTION


FOR RESCISSION WHEN
- he alienates the whole or
considerable part of the real property
adjudicated to him

HIS ONLY REMEDY IS


- right to be indemnified in cash

none participation of some of the heirs in the


partition.
EXE:
- fraud or bf has been established on
part of interested persons.

IN THIS INSTANCE
- the person/s who employed
fraud or bf shall be
proportionately obliged to pay
to the person omitted the share
which belongs to him.

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inclusion of non-heir in the partition


AS THE ONLY EFFECT IS
- such partition shall be void only with
respect to him.

prepared by: ronie ablan


AAA - BASTE / ATB