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Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

June 18, 2016

If by will, who qualifies as testator?

It is neither love nor affection that brings the best and worst among
the family, it is property.

Succession, defined.

It 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
either by his will or by operation of law.
o By the definition alone, it actually captures the essence of
succession
o Mode of acquisition the manner by which you acquire
property
o Coverage property, rights & obligations
o Limitation value of the inheritance in so far as obligations
are concerned
o of a person decedent; the one who dies that gives you
property
o transmitted again the manner by which you acquire
property
o When through or upon his death
o Recipient to another or others

Why another or others?

Another could be the compulsory heirs; others


which means 3rd person, could be the voluntary heirs
o either by his will or by operation of law if by will, testate
succession; by operation of law, intestate succession

Who is that person?

Decedent whose estate is to be distributed.


o Decedent is a general term
o Testator with will
o Intestate without a will
o If a person dies, is he automatically a decedent?

You define a decedent as the one who transmits


properties, rights and obligations. So, if a person is
homeless, penniless, no nothing, no rights and no
obligations to concern, that person cannot be
considered as a decedent even if he dies. He is
nothing but a dead body, waiting to be eaten by
worms. Beyond resurrection, unless there is life after
death. But whether there is life after death is beyond
the subject matter.

Hence, a dead person is not necessarily a decedent.


If you go by the definition of a decedent, he is
somebody who has property that is transmitted to
another or others upon his death.

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At least 18 years old


o Legal capacity to act
Of sound mind
o It is not necessarily a fundamental faculty state. It is
necessary that he only know the extent and the nature of
the every transaction
o Meaning you meaning the objects that you are bounty,
bounty here is not the property but liberality; object means
the recipient of your liberality
o You should know where your property goes and the fact that
it is revocable. If it is a will then it can be revoked. As long as
you know that, you are already of sound mind for purposes
of executing a will. Not necessarily super genius, for as long
as you understand what you mean
o Presumption is you are of sound mind
o EXCEPTION: 30 days from the execution therewith, you are
publicly known to be insane, the burden of proof shifts to the
one who maintains the validity of the will
o Take note: it says there publicly known, it does not say
declared by competent authority
Presumption of soundness of mind
Married woman
o Without consent of husband
o Without court authority
o Her separate property
o Her share of the conjugal partnership or absolute community

PROVIDED, she does not tinker with the legitime.

GR: Legitime is untouchable

EXCEPTION: disinheritance

When you say disinheritance, that is all or


nothing

You cannot say that I dont exactly like


you, there are causes of disinheritance that
are prescribed now under the law
Person with disability
o Deaf or deaf-mute

As long as they are able to read

If not able to read, somebody or 2 persons who can


be designated
o Blind

The will will be read to you twice by (1) one of the


witnesses and (2) the notary public
o Deaf-mute and blind

Rules are silent

Under Paras, s/he is not capable to execute a will


because of the (inherent Killing *ambot bitaw, d

UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

maklaro) incapacity to communicate its wishes or


intentions
Remedy: Let him die and let the law do it for him. By
death, by operation of the law , he can still transmit
but for as long as he is alive, and by that
impairment, di jud siya makatransfer

When?

Upon death
o Actual death
o Presumed death

Ordinary presumption

Person went missing for 10 years under


ordinary circumstances

Will opens at the end of 10-year period for


purposes of succession

If went missing at the age of 75, period is


only 5 years.

Extraordinary presumption

There is danger of death

Sent to a war (soldier), missing vessel or


under any circumstance that there is danger
of death

Period 4 years
o NOTE: there is a difference between
dangerous
circumstance
and
mysterious circumstance (mugawas
daw ni sa exam)

Difference of ordinary and extraordinary

Date when death is presumed

Ordinary at the end of the 10-year period


or the 5-year period, as the case may be.

Extraordinary at the time when the person


went missing
o On or before

Similarity

Makes the will conditional in character


because there is always the possibility of
return or reappearance, when the dead
comes to life.

Effect of return or reappearance

The dead person who was presumed dead


can still recover the property the way it was
during the disappearance

If was already sold, he can recover the price


or consideration but that is very hard to
enforce.

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The fruits thereof, he is not entitled


anymore because what if the person
who sold person who sold the
property already used it for his
consumption (e.g. pagkaon nya)
Paras says, he cannot recover
anymore because it was in good
faith. Kailangan man ug pagkaon, for
subsistence.

What includes inheritance? (P-R-O)

Property
Rights
Obligations
Accruals
o Kanang kalit lang nitubo na property by the action of nature
o Remember sa property, alluvium. By nature, act of author,
gradual deposit of soil.
o BUT do NOT say accretion because in succession it has a
different meaning. Its not about the deposit of soil that adds
to the property, accretion is a result when a person
renounces his inheritance and when I renounce it now
benefits the other heir/s similarly situated. What benefits
them is it increases their property. That is accretion in so far
as succession is concerned.
o But if you look at the provision there, when you say accruals,
it is only by action of nature. What about if the accrual is in
the form of income. For example, adona ko building gi-rent
sa Smart pananglit. 1 million a month. I die but smart still
pays the rent. That is an accrual, right? But under the law,
accrual would seem to mean or to refer only to action of
nature. Income is not an action of nature. Technically,
probably, that income will not fall under the contemplation
of accrual but the effect is the same. Where does it go? To
the heirs. The effect is the same.
After-acquired properties
o Reckoning period the time decedent made the will
o NOT the death of decedent
o If you made a will today, the acquired properties later, the
after acquired properties PRIOR to his death does not form
part of the legitime or does not form part of the
transmissible properties because after acquired na siya.

UNLESS that is the intention, express intention of the


decedent

What happens now if it was not intended? Wala siya


mu-ingon na okay after acquired properties still goes
to my heris. it is silent.

UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Thats when MIXED succession comes in.


You can still acquire that, not because it is
your right you are constituted as a
compulsory heir, but because the law does
see it fit. Mixed succession. Incomplete man
iyahang last will and testament dba. Iyahang
properties abi niya 10 parcels of land lang
then after he made a will nagging 15. So the
5 is now in limbo. Where does it go? Still to
the heirs but through operation of law, not
because of the will.

Student: Clarification with regards accruals. You mentioned accruals by act


of nature but also in the form of income. Does it still for part of inheritance
Sir: Yes, it is. My point was, my first premises is this, accrual, meaning the
property of deceased and under the definition of the law it seemed that
acrual is only by action of nature. But your also income there that actually
accrues to the property, it increases the property. So it need not be under
the term accrual but the effect is the same. It still goes to the heirs.
What includes property?

Death
o Must establish death
Rights or properties are indeed transmissible
Transferee is still alive, willing or capacitated to inherit
o Meaning he did not predecease. He did not die ahead of the
testator
o He did not repudiate or who are now capacitated

another or others

Another refer to family members or the compulsory heirs

Others friends; voluntary heirs; third persons

Legacy personaL property

Not extinguished by death


Practically all rights provided they are not extinguished by death
Excluding also personal rights or rights personal to the testator
E.g public office is not a property right so it cannot be inherited.

Devisee real property


Way to memorize: Deivse as it can be very emphatic so it can be
real
State,
Public and private corporations

Living (alive)
o must at least be conceived at the time of the designation in
the will however subject to the qualifications that:

if intrauterine life of 7 months, must be alive for 24


hours otherwise it did not acquire legal personality

Who is incapacitated to inherit?

Not extinguished by death


o Generally, all provided they are not extinguished by death
o E.g obligation to support very personal and CANNOT be
transmitted.
To the extent of the value of inheritance

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What are requisites for transmission?

Who is capacitated to inherit?

What includes obligations?

If you are instituted as a compulsory heir, you cannot be too


happy because you still need to determine whether the
decedent left debts. What if the value of the property or the
debt exceeds the value of the property? You get nothing.
Pero the consolation there is to the extent of the value of
inheritance. Meaning you cannot be personally held liable.
So if the person has debts of 2.5M and the value of the
property is only 1M, you cannot pay for the difference.
Charge it to experience. Ang problema ato sa creditor.it;s no
your problem.

Who can inherit?

Real
Personal
Is the corpse or dead body, a part of the property or estate of the
decedent?
o No, it is not property and property is anything that is capable
of appropriation. You cannot appropriate a dead person.
o UNLESS it will be used for science - experiment.
What if you donate your organs?
o You cannot sell your organs anymore. There is a law that
prohibits selling of organs even blood. You cannot sell it
anymore. But of course ang uban tagaan ka ug pahalipay. A
donation.

What includes rights?

Priest who hear confession or minister who extended spiritual aid


during last illness
o Gikompisalan na pare di pwede ky basin advice-an ka na
sige dong aron ka mahilangit, taga-i ko gamay(No offense
meant ha!)

UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Last illness means the last illness that caused the death
What if nangumpisal ka during your last illness ( santalana),
that priest cannot be an heir
o What if nangumpisal ka during your last illness but you did
not die of that illness, but instead you died of an accident.
What happens there? Is the priest still incapacitated?

It depends. If he died right after the confession,


because of the accident, the priest may still qualify.
Relatives of such priest or minister within the 4th degree
o NOTE: relatives here are by consanguinity, NOT by affinity
probably by reason of the presumption that the priest
doesnt marry at all.
Guardians with respect to testamentary dispositions given in his
favor prior to approval of final accounts of guardianship
o Probably or possibly by reason of conflict of interest and
undue influence
o Final accounts of guardianship means you have not yet
accounted for everything. So, after everything has been
accounted for, thats the time youll qualify
Attending witness to the will, including spouse, parents or children
o Reason: conflict of interest
o Take note that we only need 3 witnesses fror the execution
of the will.
o Can the witnesses be forever be disqualified because of
that?

Not necessarily. Because there is a possibility that


there will be excess. It could be that there is 4 th
witness. The purpose of the law is already complied
with. Naan na 3, unya ika-4 na. conflict of interest
doesnt matter anymore.
Physician or medical practitioner who took care of testator during
last illness
o Same thing for voluntary heirs. If
o
Others not allowsed by law
o
o

Reason: possible undue influence


Legitime cannot be denied.

o All the others are primary compulsory heirs


The widow or widower
o Widow the woman
o Widower the man
Acknowledged natural children and natural children by legal fiction
Other illegitimate children

What does compulsory mean?

It only means that you cannot be disregarded by the decedent, he


must give something to you
EXCEPT: disinheritance
Because you cannot mean compulsory according to respective as an
heir, theres no compulsion for you under the law to accept the
benefit. If you want to repudiate or refuse one.

How are property, rights and obligation transmitted?

By will
o Notarial will
o Holographic will

one being signed, written, drawn under the


(inaudible) of the estate

no need for witnesses


By operation of law (intestate succession)
o Legitime
o NOTE: If you cannot do for yourself, you just die. The law will
do it for you after your death.
o If by operation of law, the free portion disappears. Because
the free portion is only there if there is discretion. And a
dead person is without discretion anymore. Thats why in
intestate succession, no more free portion. Everything there
is legitime.
o Only in notarial and holographic will that the free portion will
apply where discretion is allowed
By both will and operation of law
o Mixed succession

Nothing is transmitted if the compulsory heir is

EXC: disinheritance

Who are compulsory heirs?

Legitimate children and descendants, with respect to their legitimate


parents & ascendants
In their default legitimate parents & ascendants, with respect to
their legitimate children & descendants
o Take note: in their default makes them the secondary
compulsory heirs

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Incapacitated
o Not necessarily mentally incapacitated
o You can be represented in the acceptance
Repudiates
o Difference of repudiation and renunciation

Repudiation di lang ka. I dont need your


money, Im richer than you

Renunciation - you actually say I renounce


in favor of my other heirs

UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Predeceases
o Nauna kamatay sa decedent

Repudiation and acceptance

Purely voluntary

Pure in the sense that you cannot pose a condition


Retroacts to the death of the decedent

Otherwise, there is a possibility that at some point in time a


property is without an owner or a possessor and the law
does not like that

Express
o Made in public or private document
Implied
o Disposal

You sell, donate or transfer the rights

You cannot dispose which is not yours in the first


place
o Renunciation

Gratuitously

okay I just renounce in favor of my other


sisters

For consideration

It is not actually renunciation but a sale for it


is with a consideration

Who repudiates or accepts

Any person
o PROVIDED that they know that something is coming
Minors and incapacitated persons
o PROVIDED they are represented
The poor
Lawful representatives of corporations
o Acceptance no need of court approval
o Repudiation needs court approval

WHY? Because it is unusual or contrary to human


experience for somebody to refuse a benefit
Public official establishments
o These are for charity and education. E.g. UP, redcross
o Acceptance needs court approval
o Repudiation need court approval
o Why the difference that both acceptance and repudiation
requires court approval from the prior enumeration?

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** There is NO representation in the COLLATERAL line (WIFE). It is


descending.
21 JUNE 2016
Who may succeed, can you enumerate them?

Kinds of acceptance

Probably because it involves public matter/money, it


might get mixed
Persons with disability
o Deaf mutes

If they are able to read

If not, somebody who will read for them

The heirs, the legatees, and the devisees. For heirs, there are
the compulsory heirs and the voluntary heirs.

What do you
succession?
-

understand

by

an

heir,

under

the

context

of

Heirs are those who can succeed either by will or by intestate


succession, otherwise known as by operation of law.

Who are these compulsory heirs?


-

The descendants with respect to their legitimate ascendants,


and absent the first,

When you say with respect, what do you mean by that? The provision of
law says, with respect to the legitimate parents and ascendants. Is it not
kind of redundant there that you need to say, with respect, because there,
you already understood there supposedly, right? That if I die, the compulsory
heirs are children and descendants, or in the absence of these children and
descendants, I go up, parents or ascendants. Why does the law still say
with respect to. Is it not understood that if you are a decedent, you have
children, you have parents? What do you think is the reason why the law still
says with respect to?
The reason there is for emphasis in limitation. It has to be your parent or
your child, not anybody else. For emphasis. So it actually emphasizes
filiation, the relationship. So thats only for limitation.
And then, what else?
-

Third, widow or widower. Fourth, spurious children. Fifth, other


legitimate children.

Do we still call them spurious children?

UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

No. According to Paras, there is no more distinction. Both are


illegitimate children already having the same rights. As a matter
of fact, in this law, it actually says acknowledged natural
children.

Who is a devisee?
-

One who inherits a real property, as opposed to a legatee who


inherits personal property. But there is a similarity between the
two in that they only inherit specific properties.

So it says there acknowledge. Is there need to acknowledge?


-

Yes. So that he may become a compulsory heir.

Going back to compulsory heirs, we have there primary compulsory heirs.


Why do we call them primary?
-

Theyre always there. Their presence does not depend upon the
presence or absence of other compulsory heirs. Because here
were talking about entitlement to the legitime. The legitime is
untouchable.
Except
disinheritance.
Its
only
through
disinheritance that you can touch the legitime.

Now, these are the heirs, can a juridical person be an heir?


Yes.

Can a juridical person make a will? Aside from the provision of the
law, why do you think so?
-

No, because a juridical person cannot die.

Its only if you make a will.

The making of the will is purely personal, that is why only a


natural person can make a will. Of course, it may be argued that
a juridical person may make a will through its board. But the
board is composed of two or more persons, so it cant be
personal anymore. As a matter of fact, there is a prohibition
there that no juridical person can make a will. No two persons
can make a will. It has to be a single person. Meaning, it is a
purely personal act thats why a juridical person cannot make a
will. But it can be an heir.

Who is a devisee? BTW, what is an example of a voluntary heir?


-

Brothers or sisters, or a friend.

Gamayon | Ibarra | Rudas | Sibay | Singh | Torcal |Tunacao | Villalon

Descendants mean only within the context of the right to


representation, because the nearest excludes the farther. Okay?
I am the grandparent, and I have children, lets say three of
them. They are the compulsory heirs, and when the law says
and descendants, meaning the children of my children, they
can only inherit with the right of representation.

So that does not make me a compulsory heir?

What if you die a natural death?


-

The voluntary heir, devisee and legatee, they all get something
from the free portion only. But the difference is that the legatee
and devisee, they both get something specific; for the voluntary
heir, not necessarily.

Question: It is stated in the compulsory heirs that the first one is


legitimate children and descendants, so for example, sir, my
grandparent died and then, we have my mother and then aunties
and uncles. So, compulsory heir, what does descendant mean in
that situation?

What else? Is death always necessary for succession?


-

Yes, because they get their inheritance from the free portion,
and in that sense, the voluntary heir, devisees and legatees are
considered the same.

Is there a difference between a legatee, devisee and a voluntary


heir? We said, the legatee and devisee, we give them specific
properties. What about the voluntary heir?

What about the widow/widower, is she always there?

Primary because theyre always there. Being a compulsory heir


does not depend on the presence or absence of a father.

Why are secondary compulsory heirs called secondary?

If you are a devisee and/or a legatee, are you also considered a


voluntary heir? Why?

You are not in the same category as your parents. Sorry.

Can a state, municipal or provincial corporation inherit?


-

Yes.

What about private corporations, associations and organizations?


-

No. They cannot inherit through legal succession.

What about by a will? Can they?

Yes. They can.

UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

Read Article 1026.


Article 1026. A testamentary disposition may be made to the State,
provinces, municipal corporations, private corporations, organizations, or
associations for religious, scientific, cultural, educational or charitable
purposes.
All other corporations or entities may succeed under a will, unless there is a
provision to the contrary in their charter or the laws of their creation, and
always subject to the same.
These corporations, do they need to be registered to qualify?

How do you establish the capacity to inherit?

No, because the provision says may be made. As a matter of fact,


under the law, there is no compulsion to specify for what purpose.
But, of course, he can do that because these are voluntary heirs. As
opposed to being a compulsory heir entitled to a legitime, he cannot
impose a condition there. Its actually a condition for what
purpose? Religious, charitable, bla.. bla.. bla. You know, its very
common for rich people.

What about the State? Can the State be a voluntary heir?

The State.

Why the State?

Gamayon | Ibarra | Rudas | Sibay | Singh | Torcal |Tunacao | Villalon

Succession starts at the time of the death of the decedent. Prior to


the death, the nature of the right to succession is inchoate. Inchoate
meaning (vernacular) hilaw pa. Its premature because it matures
only upon the death of the testator.

When you explain to clients, you cannot say, inchoate pa imong right. Its
very common when you become lawyers maglumot-lumot na nang mga
sumusunod, Nya, attorney, pwede na nako ibaligya? You cannot say
inchoate pa. They cannot understand that. Okay? You say, Hilaw pa.
Paabota. But dont pray, just wait.

What do you understand by representation?

Yes, it can be a voluntary heir.

What about if the decedent did not make a will? He died intestate
and the decedent is an orphan. No family, no children, no parents,
no spouse, no nothing. Who gets the property?

He is capacitated to inherit provided he complies with the provisions


of the Civil Code, Article 41. For civil purposes, the fetus is
considered born if it is alive at the time it is completely delivered
from the mothers womb. However, if the fetus had an intra-uterine
life of less than seven months, it is not deemed born if it dies within
twenty-four hours after its complete delivery from the maternal
womb.

You said that the capacity to succeed is determined at the time the
succession opens. Why not at the time the will was made by the
testator?

Is it necessary for the decedent to state for what purpose is it going


to be willed (inaudible)?

At the death of the decedent.

What about if the child is conceived at the time of death?

Yes.

Its actually a gray area. Im bothered by this because it says there for
religious purposes. So the question is, when you say religious, can you apply
that to the State? Thats a problem there. Diba? Did you not think about it?

He must be living or alive at the time the succession opens.

At the time the succession opens meaning?

If you read the law there, it states the State, province, municipal
corporations, etcetera, for religious scientific, cultural, educational or
charitable purposes. Does this purpose apply to each and every one of those
enumerations? There is an enumeration there, right? And theyre separated
by a comma. This is statutory construction.

Because under the law, under the Constitution, all the properties
belongs to the State. (for corruption)

Representation is the substitution of the (inaudible). For example,


representation is you taking the place of someone who is supposed
to acquire rights or properties or obligations. In their absence, you
step into their shoes.

Is it the same as the agent in the Law of Agency?

Somehow, it is because they take on the (inaudible) that youre


supposed to do, however, in this regard, theres a distinction
because representation does not need a formal authorization; unlike

UNIVERSITY OF SAN CARLOS

Succession |Atty. Gujilde| EH403 | A.Y. 2016- 2017

in agency, wherein they need a document or wills to authorize


someone to do things in their behalf.
Also, the reason why agency is allowed is because you cannot be at
two places at the same time, thats why you need to authorize
somebody else. But here, insofar as representation is concerned, the
reason there is because you are called upon by law to succeed or
represent another not because you cannot be in two places at the
same time, but because under the right of representation, youre
going to be somebody youre not supposed to be yet.

What about
represent?

Who may represent?

Those people who himself is capable of succeeding the decedent.


For example, a grandfather dies and the supposed heir or the nextin-line generation, those sons and daughters of his, however, one of
those died, the heirs of those who died takes on the shoes of the
decedent. And thats representation.

the

grandnephews

and

grandnieces?

Can

they

Article 970. Representation is a right created by fiction of law, by


virtue of which the representative is raised to the place and the
degree of the person represented, and acquires the rights which the
latter would have if he were living or if he could have inherited.
Article 972. The right of representation takes place in the direct
descending line, but never in the ascending. In the collateral line, it
takes place only in favor of the children of brothers or sisters,
whether they be of the full or half blood.

Theres a part there in the law that says, the right to representation it takes
only in favor of the children of brothers or sisters. What does that mean?
Only up to the line of the nephews and nieces but it does not go beyond
grandnephews and grandnieces.

When did he die?

Prior to the opening of the succession of the grandfather. Meaning,


he died first prior to the death of the testator. Predecease.

If you renounce, can you represent?

Article 976. A person may represent him whose inheritance he has


renounced. Hence, he can represent still.
An example of a renouncer who represents still even if he renounced
already: You are the child, I am the parent. You have a grandparent.
If you renounced your share from me, can you represent me
insofar as my inheritance from your grandparents is
concerned?
o Yes. I can still represent because I take on your shoes. What I
have renounced are the properties that I might get from you,
not the share that you have acquired from the opening of
succession of the first in line.

No, because representation in this regard is only allowed in


relationship by consanguinity.

Yes, but it does not mean that you become grandchildren of the
parents of your adoptive parent because adoption is only between
the adoptive parent and the adopted child. It does not go beyond
that relationship. Walay labot ang grandparents sa adoption,
remember that. Thats why from the grandparents to the adoptive
parents, it stops there.

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It means that they can represent but not represented.

What do you think is the reason why?

They are actually collateral relatives, and the farthest only are the
nephews and nieces. So probably the reason there is that the
grandnephews and grandnieces are too far. The law probably
contemplates that it could not have been the intention behind the
provision.

The compulsory heirs, including those who are incapacitated,


predeceased, and those disinherited.

What do you think is the reason why we allow representation?

Is it not that adoption means that youre going to be my own?

Who may be represented?

Can an adopted child represent the adoptive parent?

Were you not confused there? Because it could be taken to mean both ways.
It could be taken to mean that nieces and nephews can represent or they
can be represented. If you interpret that as they can be represented, who
represents them? The grandniece and grandnephew now. Did you not think
about that? That can be a source of confusion there. That line, does that
mean that they can represent or they can be represented?

First, the law doesnt allow the non-ownership of a certain property


which the deceased left that comprises the legitime. Second, for the
property that was left by the deceased to be given to the rightful
people which belongs to the heirs themselves.
Is it not also unfair if were going to not give the share to the
children of the compulsory heirs because of the misfortune that the

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parents predeceased or incapacitated? Its unfair diba? Thats why


the law allows them to represent because it would be unfair.
But how come we dont allow those who repudiate their share to be
represented?

We dont allow because the moment the person repudiates his right
over the property, that means to say that the right to dispose or his
ownership is already separated from himself by the acts of
repudiating the inheritance.

Can the children of the one who repudiates argue, Its not our
fault! That was the decision of our parents! Can they argue that
way?

No, because the children only has the right with regard to the
persons who they represented. Therefore, whatever their parents
have, they only take that right because they are only acting as
representatives.

What do you think is the reason why a person would repudiate


inheritance?

Pride. It makes sense because it only comes out when theres a


falling out between the parents and the compulsory heirs. And then
the compulsory heir repudiates especially if he or she is richer, but I
dont that its a very good idea because you are actually depriving
your children of something. But, you know, out of pride, yes.

What about the disinherited heirs? Can they be represented?

Yes.

Can you not argue the same with insofar as those who repudiates?

No, because those are two different things. When we say


repudiation, its the person himself who repudiates his right over the
property, while disinheritance is not his own intent. As a matter of
fact, that was the voluntary act of the compulsory heir to repudiate.
Thats exactly the reason why the law mandates that if you
repudiate, it has to be in a public or authentic document, or by
petition before the court during testate or intestate proceedings. The
law would like to make sure that indeed you are really repudiating.
So it has to be very specific. It must be in writing, expressly in
writing, the act of repudiation. You are actually trying to deprive your
children of a share from the grandparents.

Who cannot be represented?

The adopted children, and heirs in the descending line.

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Heirs in the descending line cannot be represented. Not ascending. Puro


mana nimo ninuno. If you talk about blood, yes! Related! Why cant they go
up? Aside from the law expressly saying so, what do you think is the reason
why?

Theyre only secondary compulsory heirs. Also, its because it might


be improbable already that you have grandparents represented by
great grandparents.

What about the


represented?

adopted

child?

Again,

why

cant

they

be

Its because filiation is only between the adoptive parent/s and the
adopted child. Walay labot ang grandparents.

What about the stepfather? Can they be compulsory heirs? Why are
they not enumerated?

No, because theres no filiation. Filiation is only between the childs


mom, who probably just wants to be happy again, and the
stepfather. It has nothing to do with you, unless the stepfather
adopts the child as well. The child becomes his own.

Question: What if the adoptive child is the son of your sibling,


meaning, your nephew. Can he be represented?

Adoptive children cannot be represented. Also, a nephew cannot be


represented but can represent. Otherwise, if we say that the nephew
can be represented, it is now the grandnephew who represents
which is not allowed.

June 22, 2016


Art. 1025 - In order to be capacitated to inherit, the heir, devisee or legatee
must be living at the moment the succession opens, except in case of
representation, when it is proper.
A child already conceived at the time of the death of the decedent is capable
of succeeding provided it be born later under the conditions prescribed
under Article 41.

Let me talk first, this might be your problem. Because it says there,
must be living. Living or at least conceived at the moment the succession
opens, meaning at the moment of death. The problem is, it goes through
say, except in cases of representation, it now presupposes that in cases of
representation, you need not be living, you need not be conceived, you can
be dead, right?

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I think that's the problem. Because, first, the first premise says you
must be living, now it says, except, so meaning pwede diay patay? Di ba?
Now what did Paras say about that? Paras said that, there's something
wrong with the grammar or the phraseology of the law. Unsa may example
nato ani? Refer to the example in the book. A is the decedent, and he has
two children, B and C. So, if A dies, the succession opens. Now if B and C are
both living no problem. Right? But what if the problem there is, B is okay but
C is incapacitated. Supposedly if C is incapacitated, B gets everything, if we
stop there the moment the succession opens. But now it says, except in
cases of representation. So what happens now is, if we contemplate about
representation, buot ipasabot, C probably has a child D. But the problem
there is, when should C had a child or at least conceived the moment the
succession opens? Kanang buot ipasabot ana, in cases of representation, is
this. If A dies in 2003 then C conceives D in 2007, so if we entertain the
exception there, this could happen. B does not get everything yet at the
moment in 2003 when the decedent died because it says except in cases of
representation.
So, what results is what we call absurdity. Because it results in
suspended ownership. So magpaabot xa. Murag muingon si C nga okay, I am
incapacitated now but wait till I can be represented later on, I might have a
child later on 7 years after, etc.if you're going to go by the exception. And
the book says it results in absurdity. What if C now, conceives D, 20 years
after? So magpaabot si B, when supposed to be the moment the succession
opens, siya ra unta ang muinherit. It is absurd. So what happens next? Since
it is absurd, Paras said it should have been written this way, in cases of
representation if proper, the person represented need not be alive at the
time the succession opens. But, Paras says that might be redundant or
superfluous because we already have a lot of provisions about
representation when the heir predeceases the testator. In other words, in
statutory construction, if the provision of the law does not make sense, if it
results in absurdity the remedy is disregard the law. So in your book,
imaginarily, take out the "in cases of representation when it is proper."
Tangtanga na xa because it does not make sense. It is a superfluity, it's a
redundancy that should not have been there in the first place.
Can a conceived child represent or be represented?

It is impracticable because the law says there that yes, they can
represent, they can be represented but I call that conditional or
provisional representation, because it has to be compliant with
Articles 40 and 41.

What is the difference between renunciation and repudiation?

It might have been interchangeably used but later on we'll learn and
we'll discover that there is a slight difference between the two. But
not in the context of this article. If you notice, the law there says in
case of repudiation, in case of renunciation. They mean one and the
same thing. They mean that you refuse, but there is a slight
difference in so far as the purpose is concerned. Because in other

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articles, when you say renunciation, it presupposes that, you


renounce in favor of another heir. There is a specific gratuity by
giving it to somebody else. But repudiation is, you just refuse. To me,
repudiation is refusal by arrogance and renunciation is refusal by
charity. So, the rule in accretion shall apply. But in so far as these
articles are concerned, there's not much difference. A renouncer
cannot be represented but can represent.
For purposes of examination, how do we use the word incapacity. Because it
has different meaning in the book. They might not fall there, incapacity. They
just probably under persons with disability. Because in incapacity there are
different concepts there, relative and absolute incapacity.
Atty. G: What is the nature of acceptance? Or how do you describe
acceptance?
Ans: Free and voluntary.
Atty. G: Can it be subject to conditions?
Ans: No, in order to avoid confusion and uncertainty as to the
ownership of the property.
Atty. G: Is it irrevocable? When you accept, can you revoke that?

Ans: No, still to avoid confusion and uncertainty as the owner of the
property.

Atty. G: Is the rule on the revocability of the acceptance absolute?

Ans: No, it has exceptions. First, when there is presence of vitiated


consent (corrupted consent) when there is fraud, mistake, violence,
intimidation or undue influence. Second exception, when an
unknown will appears.

Atty. G: What is that unknown will? Is that a new will or an old will?
Or better yet is tat a will subsequent to the one made that you
accepted?

Ans: It's a new will wherein you have no knowledge or which was
subsequently made after you accept.

Atty. G: Okay, first is there's a will, then the testator died, then you accept,
then there's another will that reappears. What is that kind of will? Is that the
will subsequent or prior to the first will? Remember ha, it is an unknown will.
You don't know where it came from? So does it matter now, as to the date of
the execution of the will? If it was before, what is the implication if it was
before the will, will be accepted? Does it matter?

Ans: No, it does not matter because the will that you accepted is
probably a revocation of that old will.

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Atty. G: But what if the will that resurfaced is after the will that you
accepted? Does it matter now?

Ans: It depends if the changes are insignificant. If the changes in the


new will are insignificant and it do not affect substantially the old
will, so the acceptance will not be revoked. If the changes are
substantial, that might have the effect of revoking the old will then it
might render your acceptance useless.

So the first premise there is: acceptance of the will is irrevocable, except, in
cases of vitiated consent and appearance of an unknown will that
substantially changes the will that you accepted.

Atty. G: Why does the law provide for retroactive effect of


acceptance?

Atty. G: Who may accept?

Ans: Yes, because acceptance is the usual practice compared to


renunciation or repudiation which is contrary to human experience.
That's why murag ang balaud niingon, are you sure? You really want
to repudiate? That's why if you repudiate you must put it into
writing, public or private instrument or petition to the court. It must
be formal, expressly written ang repudiation, because again,
contrary to human experience ang repudiation. But, acceptance of a
benefit is what is expected. There's nothing wrong and unthinkable
about it, so that's why it may be presumed.

Atty. G: May acceptance be made during the lifetime of the


decedent or the testator? Can you accept right away upon knowing
that okay, testator A says, I now give you my property so you
accept right away.

Ans: The following requisites must be met: first, you must be certain
that the testator is dead; and second, you must be certain that you
really have the right to the inheritance. If these conditions concur,
you can now accept or even repudiate.

Atty. G: Do we have a specific timeline when to accept? Or is there a


timeline for you to accept, after the requisites have been met?

Ans: ANYTIME (i.e. 20 years after the succession opens, or a month


after, year after, etc.). In other words, we say anytime, it does not
matter, because anyway, the moment you accept, it retroacts. So
the gap there is deemed cured because of the retroactive effect of
acceptance.

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Ans: Your guardian can accept on your behalf without court approval.
Except in case of repudiation where it needs court approval.

Atty. G: What is the reason for the difference?

Ans: Acceptance is presumed by law because the State does not


approve that the property is without an owner, while repudiation is
an act of disposition, thus, it should need court approval.
Repudiation is something very unsual, contrary to human
experience, that's why the law needs to be very sure, whether or not
you really know the implications of repudiation. Because you are
going to prejudice your heirs also if you repudiate, that's why it has
to pass through the legal formalities there.

Atty. G: What about if I say I give my entire free portion to the


poor? Who's going to accept for the poor?

Ans: No it cannot be made during the lifetime of the testator or the


decedent because your right to the inheritance is still inchoate.

Atty. G: When should you accept, then?

Ans: General rule: any person having free disposal of the property.

Atty. G: What if you're a minor or incapacitated person, can you


accept?

Atty. G: May the acceptance be presumed?

Ans: In order for the property to have an owner during those gap of
time.

Ans: First, the person designated by the testator to distribute the


property. In the absence of that person, it can be the executor. In
default of the executor, it can be the metropolitan trial court judge,
mayor and municipal or city treasurer.

Atty. G: So sa kaning tulo, are they going to accept simultaneously


for the poor?

Ans: No.

Atty. G: How are they going to accept?

Ans: They will vote and majority wins. But even if majority wins, it is
still subject to court approval. The executor's decision is also subject
to court approval. Also, even if that person is designated by the
testator, his decision is also subject to the approval of the court.

Atty. G: I'm very rich, now I say, I donate all my free portion to the
rich. Can I do that?

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Ans: Yes, because the free portion depends on the will of the
testator. Exactly why it is called a free portion. He can give it to
anybody else, for as long as he don't touch the legitime.

Atty. G: When you say, I donate my free portion to the poor, how do
you determine who is that poor people?

Ans: The intent must be discovered first. If the testator will say that
the poor living under the vicinity of my residence, then we have to
follow that. But, if it is silent, that's when the domicile (refer to the
codal provision) applies.

Express acceptance

Ans: By their authorized representative. No court approval is needed.

Ans: It needs the approval of the government, not necessarily the


court.

Atty. G: How may a deaf-mute accept?

Ans: Acceptance does not need court approval, except, public official
establishments which needs approval from the head or executive of
the government.

Atty. G: What if I owe you 1 million and I am an heir, but I did not
accept my inheritance, I repudiate. What is your remedy?

Ans: Go to the court and petition that I will accept the inheritance in
your behalf.

Atty. G: What if I paid you? Can you still go to court?

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Atty. G: What if I just say, I renounce and just sell it to my co-heirs?

Ans: It's an implied acceptance.

Ans: It's not renunciation because you dispose of your property.


When we say renunciation, its an act of charity.

Clarification of Art 1050 :


(2) if the heir renounces the same, even through gratuitously, for
the benefit of one or more of his co-heirs;
Take note of the words, even through gratuitously . It could also be for a
price, because of the word even, so it actually contemplates two situations.
1. Gratuitous renunciation
2. Renunciation for a price
But it is only for the benefit of one or more of his co heirs.
(3)This contemplates of a situation where you have an heir who has
a very difficult personality.
I dont like to accept, Im richer than you. Kayo na ang bahala

Ans: No, because your obligation to me has already been


extinguished. Also, the law says that you can only go to court if you
are prejudiced.

Atty. G: How do we accept?

Ans: No, it is not acceptance.

June 25, 2016

Ans: Then, it should be through a guardian. His acceptance does not


court approval.

Atty. G: In so far as acceptance is concerned, can you give us a one


liner?

the capacity
I donate the
because the
habet - You

Atty. G: But is that even renunciation?

Ans: A deaf-mute can accept personally if he knows how to read and


write or through an agent.

Atty. G: What if the deaf-mute is illiterate?

Actions which one would have no right to do, except in


of an owner. Example: when I sell the property or when
same to my co-heirs. It is called an implied acceptance
heir disposes of the properties. nemo dat quod non
cannot give what you do not have.

Atty. G: What if you renounce gratuitously? Is that acceptance?

Atty. G: What about public official establishment?

made in a public or private document.

Implied acceptance

Atty. G: How does a corporation, association or institution accept?

Ans: Express, implied or presumed acceptance.

So if you renounce that for a price in favor of all co heirs indiscriminately,


that is renunciation for a price for all, that is still implied acceptance because
its not actually renunciation, it is a sale. It is still another act of disposal.
But this could be the problem, because that part there continues to

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this renunciation very specific, meaning if he renounces it for a price


in favor of all his co heirs, it does not in any way refer to the second
paragraph, ( very specific man).
So if you say, okay I refuse, I will not accept, kamo na bahala, inyo nana
tanan, indiscriminate, para sa tanan there is no implied acceptance there.
What the law said is that there is absolute repudiation.

Accretion

Who cannot succeed?

your share increases because somebody else renounced it in your


favor.

Those who are absolutely incapacitated..


Individuals, associations and corporations that are not allowed
o In other words, there is an express provision by law that
says you cannot be an heir, you cannot succeed. Now it
says individual, who is that individual?
Abortive infant

What could be the reasons why you can be relatively incapacitated?

Undue influence and unworthiness

What do you understand by unworthiness?


Acceptance - You cannot compel anybody to accept, in other words the law
does not say that you must accept. You can do it any time or you are not
required to accept.

Absolute repudiation has to be in writing because all repudiation


must be express

Acceptance

What about acts of preservation?

Meaning it has not been given to that person.


Or it has not yet been accepted. It could mean that way also.

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The priest who heard the confession of the testator during his last
illness, or minister of the gospel who executed spiritual aid to him
during the same period;
2. The relatives of such priest or minister of the gospel within the
fourth degree, the church, order, chapter, community, organization,
or institution to which such priest or minister may belong
3. A guardian with respect to testamentary dispositions given by a
ward in his favor before the final accounts of the guardianship have
been approved, even if the testator should die after the approval
thereof; nevertheless, any provision made by the ward in favor of
the guardian when the latter is his ascendant, descendant, brother,
sister, or spouse, shall be valid
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.

Why are they incapacitated?

The testator died leaving 5 children, 4 in abroad and 1 is in the


country who takes charge of the property such as paying for the
taxes and maintenance. Is that implied acceptance already?
o No sir, because mere acts of preservation or provisional ___is
not considered as acceptance if such act, the title or
capacity of an heir has not been assumed.

Otherwise stated, what do you mean there when you said has not
been assumed (title or capacity)?

In other words when you said something is to be done, what you


meant there was, it has to conform o the formalities under the law.
When you repudiate, it must comply to certain formalities.

Not deserving , (hindi karapatdapat)

Who are these incapable because of undue influence?

Express it should be in writing


2. Implied 3. Presumed
o if within 30days after the court has issued an order for the
distribution of the estate, the people concerned have not
signified their acceptance or repudiation.

Authentic document genuine and not forge

To safeguard the rights of the heirs

When you say last illness, what do you mean?

It is that which the testator died, or one immediately preceding it


(accident)
You might die of other causes provided you died immediately after
the last illness you are still disqualified because there is no
opportunity to revoke or to re-examine the wisdom of the institution.
But if it was long after, namatay ka out of accident, then it will not
disqualify because is the opportunity to change the mind.

Clarification regarding notary public in paragraph 4 the rule is this


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we need 3 witnesses you can be the witness and at the same time
the one who is supposed to be disqualified here, provided you are
the fourth. There must be the 3 witnesses first. Your presence is
redundant, the law has been applied with.
You cannot notarize a document if one of the parties there is related
to you within the 4th civil degree of consanguinity .
Insofar as formalities is concerned, it should be construed strictly
against the validity of the will.

Illustration on the board.


When you say fourth degree does that include by affinity?

No, it should only be by blood

Because it talks about the priest, and priest cannot marry.


(speculation only)

The reason why you are disqualified prior to the approval of the final
accounts is because there might be again that presumption of undue
influence because probably naka-utang pa ka. It actually talks about
liquidation.

It is conclusively presumed, meaning it exists without actual proof.


There is no need to prove. The burden of proof is on the other side.

Who are unworthy heirs;

Conclusive is harder to challenge than disputable presumption.

During the last illness

What about the last confession?

After the confession because it is during the confession where the


presumption exists wherein probably you took advantage of the fact
that you are with moral ascendancy over the testator.

Is there a specific timeline?

No specific timeline, because there could be no opportunity for the


testator to change his mind.

Does it apply to legitime?

No, because it is untouchable.

What will touch the legitime?

Disinheritance

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No, because there is still the possibility of undue influence.

Guardian prior to the approval of the final accounts is disqualified EXCEPT:


after the approval or is a relative because if you are a compulsory heir, the
disqualification by reason of undue influence is not applicable.

When should the will be made to disqualify?

The final financial responsibility.

UNWORTHY HEIRS

What could be the difference between conclusive presumption and


disputable presumption?

When you say undue influence is it presumed?

What do you mean by final accounts?

When you say guardian, does it matter of you are guardian of the
property or guardian of a person?

Why cant there be affinity?

Guardian is also disqualify if he took care of the ward/testator prior to the


approval of the final accounts.

Parents who have abandoned their children or induced their


daughters to lead a corrupt or immoral life, or attempted against
their virtue
o The provision is very specific, does it include the son?

Yes, both.

The mere inducement or attempt will suffice, even if


the son/daughter did not lead immoral life because
of moral perversity.
Any person who has been convicted of an attempt against the life of
the testator, his or her spouse, descendants, or ascendants.
o Does attempt here refers t attempted stage?

Could be frustrated, attempted or consummated


stage
o When should the person be convicted?

There is no timeline, if there is conviction it


retroacts.
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
o What do you understand about groundless, what
happens to the case?

Acquittal based on pure innocence. But if lack of


sufficient evidence or reasonable doubt, it still is not
groundless.
o When you say accused, does it have to be that you
file a case or mere witness?

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For as long as there is false accusation because the


law does not distinguished.
o Does the affidavit of the witness attached to the case
would still disqualify?

Yes, because it is still an act of accusing


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;
o When you say full age, is that 18 or 21?

18
o When you say violent death, what does that mean?
What caused the violent death?

Someone else with intent, or out of a crime.


o What if its a result of reckless imprudence?

No because there is no intent


o What of the testator killed himself?

No, because it should be done by someone else with


intent to kill
o Is there an exception for you to make an accusation?

Unless the authorities have already taken action

There is no obligation to report except you are an officer of the law.


But you have a moral obligation. you need conviction for adultery or
concubinage.
if there is adultery or concubinage it gives rise or cause to legal
separation, a ground for disinheritance. I exerted undue influence but
somebody else benefited, I still qualify as unworthy because the law does
not distinguish. As long as there is that undue influence that serves as
motivating act or moving act that changed the mind of testator.

Atty guji: you dont necessarily have to disinherit the heir in the same will.
You can do it in a separate one.
Requisites for a valid disinheritance
a. Must be made in a valid will
b. Must be made expressly
c. Must be for a legal cause
d. Must be for a true cause
e. Must be for an existing cause
f. Must be total or complete
g. The cause must be stated in the WILL itself
h. The heir disinherited must be clearly identified
i. The will must not have been revoked
Note: non compliance of one will render the disinheritance or the will
ineffective
Ineffective disinheritance: there are actually four cases
a. No cause stated
b. No true cause

Unworthiness applies to testate & intestate succession.

The other heirs allege unworthiness in intestate succession. These


heirs are compulsory heirs. The best time to allege unworthiness is
prior to possession. Allege unworthiness once the succession opens.
You can condone in writing. You can condone impliedly or expressly.
If you are disinherited, you can still claim for necessary expense,
useful expense if you are a possessor in good faith, debt against the
one who disinherited you.
Disinheritance is a way to deny you your legitime. The other ways to
deprive a person of legitime are predecease, incapacity and
repudiation. There is no prohibition for the testator to spend all his
property.
The purpose of disinheritance is retribution. Retribution is
punishment. There is higher consideration in vengeance.

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Only compulsory heirs can be disinherited. You cannot disinherit


voluntary heirs. Voluntary heirs after all do not have right to the
legitimes.

c. Not legal cause


d. Subsequent reconciliation between the offender and the offended
parties
Grounds or sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:
a.

b.

When a child or descendant has been found guilty of an attempt


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

even if the descendant is guilty of graver offense he is


still qualified under the above given ground
When a child or descendant has accused the testator of a crime
for which the law prescribes imprisonment for six years or more,
if the accusation has been found groundless

Elements:

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1. there is an act of accusation,


2. the imputed criminal act attaches with it a penalty of
imprisonment of 6 years or more,
3. The accusation is found to be groundless

Gujis phrase: Passive accusation


Answer: it depends on the circumstances. We have to contextualize
in order for us not to say things that are extraneous. There is still
accusation if, the descendant is in possession of facts which might
result in the testators acquittal and the heir-witness in the criminal
case deliberately fails to reveal said facts.

o
o

June 28, 2016


Causes for disinheritance
I.

Children and descendants

Art. 919 Par. 3


(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;

Can it be reversed? WHat if it's the parent that maltreats the


child by word or by deed?
o According to Paras,it's just an exercise of power. The reverse
is repugnant to the natural law.

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

Note: the material point is the ACT OF ACCUSING

When you say spouse of the testator? Does not refer to the
biological parent of the child?
o No. Not necessarily since the law does not distinguish.

(4)When a child or descendant by fraud, violence, intimidation, or undue


influence causes the testator to make a will or to change one already made;

What do you understand with dishonorable or disgraceful


life?
o The usual example is prostitution.
Who determines whether or not it causes dishonor or
contempt to the family?
o I think it's the testator
And when the testator says so , is it final? Or better yet, can
it be challenged? What if I'm the father and I disinherit you
and you say "I did not live a dishonorable life" but I"m dead
already ha! What's your remedy?
o When you deny that ground sir, the other heirs can
challenge that.
What does lead mean?
o it implies continuity sir and not just isolated.
When you say continuous acts? How long?
o It is a judicial question and it's the court that decides.

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

What do you understand by civil interdiction?


o it is an accessory penalty to a reclusion perpetua and
reclusion temporal

Parents or Ascendants
(5)A refusal without justifiable cause to support the parents or ascendant
who disinherit such child or descendant;

Are you saying that there is justified refusal?


o Yes.
Like when?
o When the father is cruel to the child.
What if the support was given but by force of the court
order?
o I think what the law is trying to say is to ascertain the intent
of the child / descendant so if it's under judicial compulsion
then it still took the judicial order to support.

(6) Maltreatment of the testator by word or deed, by the child or


descendant;

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o
o

May parents or ascendants be disinherited?


o YES
Regardless whether legitimate or illegitimate?
o YES

What causes their disinheritance?


(1) When the parents have abandoned their children or induced their
daughters to live a corrupt or immoral life, or attempted against their virtue;
o
o
o

What causes abandonment?


o
failure to give due care to the child which the child needs
in his lifetime.
Is that abandonment the same as in the context of the RPC?
o Not necessarily.
Why what does the RPC say about abandonment?

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By the RPC, I think it entails more on the physical


abandonment while in the Civil Code it's broad.
But there's something still ?
o So long as the parent or ascendant is negligent or careless
in taking care of the chil
o

Under the RPC , it contemplates 2 kinds of abandonment


1. Physical abandonment - when you expose your child into danger
2. Marginalized
o
o
o

o
o
o

What is a corrupt and immoral life?


o As given in the book, like Prostitution , when a mother or
father induces the child to commit prostitution.
What about promiscuity?
o YES sir. It doesn't stop only to prostitution but as considered
by our society as corrupt and immoral behavior.
Which perspective does this come from?
o It is the perspective of law /testator.
o The law says " do not induce your children to live a corrupt
and immoral life.
But what if the child says " I don't mind it, I don't find it
immoral.
o
It is an act of condonation.
What about the attempt against the virtue? Does it need
final conviction?
o Mere attempt would suffice.
What could be the reason why not final judgement?
o it is from the perspective of the testator

(2) When the parent or ascendant has been convicted of an attempt against
the life of the testator, his or her spouse, descendants, or ascendants;

o
o

o
o
o

(3) When the parent or ascendant has accused the testator of a crime for
which the law prescribes imprisonment for six years or more, if the
accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery or
concubinage with the spouse of the testator;
(5) When the parent or ascendant by fraud, violence, intimidation, or undue
influence causes the testator to make a will or to change one already made;
(6) The loss of parental authority for causes specified in this Code;
o

Suppose parental authority was lost but restored during the


lifetime of the child, would the disinheritance be valid?
o There are 2 views sir.
o One is by Sanchez Roman, The disinheritance continues to
be valid, because it is sufficient if at one time the parents

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have been deprived of such authority. (6 Sanchez Roman


1120). The reason given is that the disinheritance is made
not so much because of loss of parental authority but
because there had been a commission of an act resulting in
such loss of authority.
o Two is according to Manresa and Scaevola, The
disinheritance becomes ineffective and invalid because what
is important is the fact that upon the death of the childtestator, parental authority had been regained and
therefore, therecan exist no just cause for the
disinheritance.Disinheritancebeing a deprivation of a right to
the legitime must be strictly construed.
In that situation, is it contemplating a situation where the
child died and you don't know whether parental authority
was restored?
o According to Manresa and Scaevola, what is important at the
time of the death of the child testator what controls then
parental authority was restored or regained.
Does it contemplate where the child does not know the
parental authority has been regained or restored?
o I think no sir.
But what if prior to the death of the child, the child knew
about the restoration of parental authority, will that not
influence the execution of the will that disinherited the
parent?
o No answer -------So if the child knew about the restoration of parental
authority but did not do anything. What happens?
o It would be invalid according to Manresa and Scavola.
Sir: But according to Sanchez Roman, what is important is at one
point in time, there was loss of parental authority.
Which view do you think has more sense?
o I think the view of Manresa and Scaevola.
o That makes alot of sense but my point here is that, it would
seem that if we follow the view of Manresa and Scaevola, it
would seem that it is now the law that condones or restores
the cause of disinheritance.
how do we revoke a disinheritance?
o There is subsequent reconciliation or make another will
revoking the previous will.

(7) The refusal to support the children or descendants without justifiable


cause:
(8) An attempt by one of the parents against the life of the other, unless
there has been a reconciliation between them.
o
o

What do you understand by reconciliation?


o Reconciliation is the mutual restitution of the status quo.
What do you mean by status quo?

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o
o
o

o The conditions prior to the controversy.


Does it require conviction with finality?
o No sir.
o When there is reconciliation between the parents, it actually
removes the right of the child to disinherit because of
subsequent reconciliation.
In reconciliation, does it need formalities?
o No sir.
What if I say in my deathbed, I forgive you but I will never
forget what you did. I will bring you to my grave.
o (inaudible).... General Pardon
When it's a general pardon? Do you need to accept?
o Yes

**A ground for


disinheritance.

unworthiness

could

also

be

ground

for

Atty.: What is a will?


o

Atty.: Is that unlimited? Which part of the law does it say that it is
not unlimited?
o

o
o
o

What if the cause of unworthiness is not made the ground?


o Then he would still not be able to be capacitated.
But what if the testator know of that ground at the time of
the making of the will?
o
It's considered condoned.
Does it have to be in writing?
o It's presumed sir.
What if the testator knew about the unworthiness after the
making of the will?
o Then that's an expressed condonation.

o
o

Sir : Then that's the time that the condonation must be reduced into writing.
o
June 29, 2016
How Transmitted, Art. 778
Atty.: We said that what is transmitted upon death or even prior to
death is property, rights, and obligations. What are the modes by
which the testator transmit them (PRO)?
o

A: Testamentary, intestate or mixed succession

Atty.: How does testamentary succession work?


o

A: Institution of an heir by executing a will which must be within the


formalities required by law

Take note: Will is just the means by which one transmits by testamentary
succession.
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A: No. to control to a certain degree the disposition of his estate. In


other words, what the law is trying to say is there is intent. Intent
prevails. The limitation to intent is the law and public policy.

Atty.: What are the essential elements and characteristics of a will?

If there is subsequent reconciliation then there is no need for formalities.


o

A: A will is an act whereby a person is permitted, with the formalities


prescribed by law, to control to a certain degree the disposition of
his estate, to take effect after his death.

1) It is strictly personal act in matters that are essential


o Q1: Does it mean that it need not personal act if it
involves matters that are not essential?

A1: The drafting of a will can be delegated to


another person subject to certain conditions (intent
must be there and formalities prescribed by law
must be followed)
o Q2: Can we summon a third person to participate in
the will aside from the witnesses? How?

A2: Yes. General disposition in favour of certain


classes or certain cause.
2) It is a solemn or formal act- requires certain formalities that must
be followed.
3) There must be animus testandi (intent to make a will)
o
Reason: there are cases where there is a will but the intent
is negated by the fact that there was vitiated consent.
o
fabricated will
4) Unilateral act- no acceptance by the transferees is needed while
the testator is alive.
o Requisites for acceptance:

Certain of the death

Certain of the right to inherit


o If above requisites concur, you can accept. Acceptance can
be made any time after the death of the decedent. You dont
do anything, at one point in time, the LAW WILL ACCEPT IT
FOR YOU.
5) The testator must be capacitated to make a will
o
the testator must have sound mind in making the will.
o He must be at least 18 yrs. Old
o Q1: When should you possess these requirements so
that we can say that you are capacitated?

A: at the time of execution of the will.


6) It must be an individual act.
o Q1: Is a joint will not allowed? Regardless of where
you execute the will? What if it is executed abroad

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and the law of that nation allows the execution of a


joint will? Is prohibition of a joint will absolute?

A: ------Side-track: Compromised agreements are not allowed. A will cannot be


subject of a compromise agreement because it will defeat the purpose of the
law which is to respect the intent of the testator
o
o

7) The making of a will is a statutory right


o a law must grant you that right. It is not an inherent right.
8) It is effective mortis causa
o Q1: What if it takes effect inter vivos? Is it entirely
void?

It becomes a donation. Donation inter vivos is not


part of succession.
9) It is essentially revocable or ambulatory
o Q1: Can you revoke a will? Yes.
o
Ambulatory- it is still capable of being altered during the
lifetime of the testator

Intrinsic ambiguity
o
o
o

Atty.: Are oral declarations of the testator allowed as


extrinsic evidence? Why?
o

o
o
o

11) It disposes of the testators estate

o
o

that is why if it is a mere designation of an executor, it does


not dispose the estate of the testator
Q1: Does it have to be absolute disposition? Are you
required to transmit everything that you own? NO.
Q2: If you are allowed to transmit partially, what
happens?
o
there is mixed succession.

No because this can result in fraud, confusion and unfairness to


the dead man whose may be distorted or perjured.

Extrinsic ambiguity

10) It is free from vitiated consen

that which does not appear on the face of the will, and is discovered
only by extrinsic evidence.
At the face of the will, there is no ambiguity. But because of
evidence outside the will, it becomes ambiguous.
Atty.: How should we remedy the situation if there is
intrinsic ambiguity?
o A: first, we examine the will itself and then examine the extrinsic
evidence such as written documents of the testator

that which appears in the face of the will itself. By examining the
provision itself, it is evident that it is not clear.
On the face of the will itself, there is already ambiguity.
Atty.: How do we cure extrinsic ambiguity?
o A.: First, examine the will itself. If it is not sufficient, we
go to extrinsic aids/evidence.

Side track: There is presumption of regularity and clarity in employing the


help of a counsel.
o

Atty.: What are the conditions in employing the services of a


counsel?

Interpretation.

A: the mechanical act of drafting should only be passed to the counsel but
not the expression of the desire of the testator to dispose of his properties.

Atty.: How should testamentary disposition be interpreted in case


of ambiguity?

July 5, 2016

A: If there is a doubt, it must be ruled in favour of the fact that it


must be operative. Because if it is not going to be operative, it is
going to be intestate succession. Testate succession is preferred
over intestacy.

Atty.: When you interpret a will what should prevail? What are you
trying to discover when you interpret a will?
o

A: true intent of the testator

Atty.: What are the kinds of ambiguity?


o

A: Latent or intrinsic ambiguity and Patent or extrinsic ambiguity

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AMBIGUITY
Interpretation in case of ambiguity:
Art. 788. If a testamentary disposition admits of different interpretations, in
case of doubt, that by which the disposition is to be operative shall be
preferred.
Because testate succession is preferred to intestate.
As much as possible, the law the law does not like to replace the
intent/choice of the testator. So in case of ambiguity, that
interpretation which gives rise to its being operative is preferred.
The intent of the testator is the supreme law in succession.

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Art. 789. When there is an imperfect description, or when no person or


property exactly answers the description, mistakes and omissions must be
corrected, if the error appears from the context of the will or from extrinsic
evidence, excluding the oral declarations of the testator as to his intention;
and when an uncertainty arises upon the face of the will, as to the
application of any of its provisions, the testators intent is to be ascertained
from the words of the will, taking into consideration the circumstances under
which it was made, excluding such oral declarations.

Answer: We try to salvage the will as much as possible despite the


ambiguity and despite the failure of extrinsic evidence to explain the
intent.

FORMAL VALIDITY
Art. 795. The validity of a will as to its form depends upon the observance
of the law in force at the time it is made.
Observance

Kinds of ambiguity in a will:


a) Latent or intrinsic does not appear on the face of the will and is
discovered only by extrinsic evidence. This ambiguity arises:
1. When there is
heir/legatee/devisee;

an

imperfect

description

of

the

Kinds of validity:

2. When there is an imperfect description of the gift being


given;

1) Extrinsic Validity solemnities and forms of the will


a) From the viewpoint of TIME the law in force at the time the
will is made governs.

3. When only one recipient is designated but it turns out that


there are two or more who fit the description.

b) From the viewpoint of PLACE the law that governs depends if


testator is Viewpoint of place

Example: I give my property to my brother-in-law when the


testator have many brothers-in-law.

Filipino

b) Patent or Extrinsic appears on the will itself

o
o
o

Example: I give my property to some of my brothers. The


ambiguity is obvious from the face of the will because we cant
ascertain which brothers exactly.

Answer: No problem. We just take the provision of the will as a mere


surplusage because, after all, the person to whom the testator
intended to give his property can be clearly determined. A problem
only arises if there is actually a secret brother.
How ambiguity is cured:

o
o
o
o

b) By examining extrinsic evidence such as written declarations of


the testator which are relevant to the will; written declarations need
not be notarized.
Question: What if the intent of the testator remains unclear even
after examining extrinsic evidence?

Law of domicile (Art. 816)


Nationality law (Art. 816)
Philippine laws (Art. 816)
Law of the country where he executes the will (Art. 17)

Question: If hes an alien abroad, why do we care about his will?


o

a) By examining the will itself - if there is anything there that might


explain the intent of the testator, such intent prevails; if none, resort
to extrinsic evidence.

Philippine laws (Art. 804-814)


Law of the country where he may be (Art. 815)
Law of the country where he executes the will (Art. 17)

Alien Abroad

Question: What about typographical errors: I give my


property to my brothers and there is only one brother?

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implies/presupposes an element of discretion. The better way of


phrasing should be The validity of a will as to its form depends upon
the law in force at the time it is made.

Answer: Because maybe his properties are here in the Philippines.

Alien in PH
o
o

Nationality law (Art. 817)


Philippine laws (Art. 17)

Question: Can a Chinese national who is here in the Philippines


make a will observing Philippines laws insofar as solemnities are
concerned?
o

Answer: Yes, he can.

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2) Intrinsic Validity legality of the provisions; answers the question Who


receives and how much?

granted by law; and because 2) videotapes are easy to


tamper.

a) From the viewpoint of TIME the law in force at the time of the
decedents death governs because the death is the operative fact
that transfers the rights to the successors.

2) Must be executed in the language or dialect known to the


testator.

b) From the viewpoint of PLACE the national law of the


decedent governs, regardless of the place of execution or the place
of death; in other words: your nationality law follows you wherever
you are.
Question: What if an alien provides in his will that his properties be
distributed according to Philippine laws because maybe he just
really likes Philippine laws. Can it be done?
o

Answer: No. His national law governs.

Exceptions from the National Law rule (or when PH law may apply):
If the national law of the alien is silent as to which succession law
should govern
If the national law of the alien allows the law of his domicile to
govern, and he is domiciled in the Philippiens at the time of his
death

Rebuttable presumption: If the testator resides in a certain


locality, it is presumed that he knows the language in said locality,
BUT contrary may be proved.

3) Must be subscribed (signed) at the end by the testator himself


OR by the testators name written by another person (1) in
testators presence and (2) by testators express direction.
Subscription act of the hand; signing by the testator at the end
of the will
The function of the signature at the end is to lock the will and
prevent insertions.
If the will is not signed at the end but somewhere else, INVALID.
If after the signature there are additional clauses/provisions, the
whole will is VOID and shall be denied probate.
END of the will means the LOGICAL end, not physical.
Acceptable signatures PROVIDED that the testator intended it to
be his signature:

FORMALITY OF WILLS
Requirements for a Notarial/Ordinary Will (Art. 804-809):

First name without surname

1) Must be in writing

Misspelled, abbreviated, nickname, assumed name

The material (on which the will is written) is immaterial.

Thumbmark, rubber stamp, engraved dye

Question: Can you use a cloth? (saved for the exam)

Testators hand is guided by another in signing

Oral wills are not allowed as they are susceptible to


forgery.
Wills made at the point of death even if done in the presence of
witnesses are not allowed.
Videotaped wills are not allowed.
Question: Can we not argue that if the intent of the testator
is the supreme law of succession, then, shouldnt videotaped
wills be allowed since the intent is clear and the testator
himself declares it?
Answer: No, because 1) Intent may be supreme, but it
remains subject to the limits of the law because
testamentary disposition is not a right but a mere privilege

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Cross symbol
4) The will must be attested and subscribed by three or more
credible witnesses in the presence of testator and one another.
Attestation witnessing the testators execution of the will in
order to see and take note mentally those things are done which the
statute requires for the execution of a will and that the signature of
the testator exists as a fact; act of the senses.
Subscription signing of the witnesses names on the same
paper for the purpose of identifying such paper as the will which was
executed by the testator; act of the hand.

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Credible witness must be competent to testify during the


probate proceeding because the testator is no longer around and
their testimony will be made on his behalf.
There must be 4 persons (testator + 3 witnesses) at the same
place simultaneously when the attestation and subscription are
made. However, this requirement does not apply when
acknowledging the will before a notary public because, which the
testator and the three witnesses may do separately on different
days. It is wise, though, to do everything (attestation, subscription,
acknowledgment) at the same time/occasion.
5) The testator/person signing his name and the instrumental
witnesses shall sign each and every page of the will on the left
margin EXCEPT the last.

Absence of attestation clause is a fatal defect because the


omission negates the participation of said witnesses. Will is VOID.
Failure of the attestation clause to state the number of pages is a
fatal defect. BUT if the number of pages is put down somewhere else
in the will instead of in the attestation clause, as long as no extrinsic
evidence is required, law is substantially complied.
Attestation clause is an act of the witnesses so it need not contain
testators signature.
Witnesses are not required to know the language of the
attestation clause. It is sufficient that it be translated to them.
Purposes of the attestation clause:
1) To preserve in permanent form a record of the facts
attending the execution of the will in case of failure of
memory of the subscribing witnesses.

Purpose: to identify the pages used and thus prevent fraud. Thus,
if the signatures are on the right, top, or bottom margin, the purpose
is still served.

2) Available proof that there has been a compliance with the


statutory requisites for the execution of will.

Failure to have the marginal signatures of the testator and of the


witnesses is a fatal defect. The will cannot be admitted to probate.
The margin of the last page need not be signed because the page
itself already contains the signatures of the testator/person signing
his name and of the witnesses (attestation/ subscription).
6) All the pages shall be numbered correlatively in letters placed on
the upper part of each page.
Purpose: To guard against fraud and to afford means of
preventing substitution or of detecting the loss of any of its pages.
Acceptable page numberings:
One, two, three (provided by law)
A, B, C

3) Minimize the commission of fraud or undue influence.


Bottomline: The purpose is to document.

July 9, 2016
Succession, defined. (captures the entirety of succession)
It is a mode of acquisition by virtue of which the property, rights
and obligations to the extent of the value of inheritance, of a person
are transmitted through his death to another or others either by his
will or by operation of law.
It already talks about the elements:

Page 1, Page 2, Page 3

1. It is a mode of acquisition ownership

1, 2, 3

2. What are transmitted property, rights and obligations not


extinguished by death

7) The attestation clause shall provide:

3. Who will transmit decedent

a) Number of pages used


b) That the testator signed (or expressly caused another person to
sign) the will and every page thereof in the presence of the
instrumental witnesses;
c) That the instrumental witnesses witnessed and signed the will and
all the pages thereof in the presence of the testator and of one
another.
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4. When transmitted upon death, when succession opens


5. To another or others compulsory heirs, voluntary heirs, devisees,
legatees, representatives of intestate, municipal and provincial
corporations
6. Two ways by way of will or by operation of law meaning, testacy
and intestacy

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o Proper objects of bounty


o character of disposition

Elements of definition

Presumption of soundness of mind

Mode of acquisition
Transfer of property, rights &obligations to the extent of the value
of inheritance the extent of the value of the inheritance actually
pertains to the obligations.

Through death
Transmission to another

What about a married woman?

By will or by operation of law

Without consent of husband

Who is that person?

Without consent of court

Decedent whose estate is to be distributed. If there is a will


testator; without a will - intestate

Because it involves:
Her separate property

If by will, who qualifies as testator?

Her share in the conjugal partnership or absolute


community

Not expressly prohibited by law


Who are those expressly prohibited by law?

What about a person with disability?

o Under 18 years old

Deaf or deaf-mute

o Two persons executing a joint will

How do they do that?

You cannot execute a joint will anywhere in the country,


anywhere outside of the country for as long as youre a
Filipino. Reason for disallowing joint wills: because it will be
very hard to revoke the will and it violates the essential
characteristic of a will that is personal. So if theres
somebody else in the same will, it cannot be personal
anymore.

It is not expressly prohibited for in the law, but we realized


that in the annotation a person who is deaf, mute and blind
may not be able to qualify as testator because theres no
way that he can communicate his intentions, unless there is
some technology or some other means that person may be
able to articulate or communicate his intentions, then he can
make a will, he can be a testator

At least 18 years old


Of sound mind

If they can read personally; if not through their guardian

Blind as long as the blind is literate, able to read and write.


What about a person who is unable to read?
Considered blind
A Filipino abroad?

o Deaf, mute and blind

except _______ prior to the execution of the will the testator


is publicly known to be insane, in which case the one who
______ has the burden of proof to prove that the person was
of mind at the time he made the will. Because the general
rule is there is that presumption of soundness of mind.

Will may conform to formalities of the country where executed


We are talking here of the extrinsic validity, so in so far as
solemnities and formalities are concerned you can do that
ANYWHERE if you are a Filipino. Thats the bottomline, anywhere.
A foreigner in the Philippines?
Will may conform to formalities of country of origin or the country,
Philippines
A foreigner abroad?

o Nature of estate (you know the extent of your property)


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Will may conform to formalities of country of origin, country where


he resides, or Phils Why do we care about the foreigner abroad?
Because it might be that his properties are in the Philippines

Actual death
Presumed death
o Ordinary presumption

Will may conform to the country of origin, country where he


resides, or the Philippines

At the end of 10 or 5 years 5


years only if the decedent disappear
after the age of 75 (75 and 1 day)

What is transmitted?
Property

o Extraordinary presumption

Rights not extinguished by death

4 years at the time of


disappearance

circumstances:
there is danger of death; missing
vessel; missing airplane; a soldier
sent to war;

Obligations not extinguished by death


Accruals

Thats the natural course of things that enlarges the


property, like alluvium. Accretion again is different. What
about you say, its an income? Property was transmitted
upon death, but the property, to death, was being leased by
somebody else and the lease continued so monthly there
was this lease. Can it be considered an accrual? Not
necessarily because it is not in the definition of accrual, but
the effect is the same.

Difference
Date of presumptive death
If you talk about ordinary presumption, the death is
presumed at the end of ten or five years; whereas,
extraordinary presumption, you go back to the time
at the time of disappearance.
Similarity

What is NOT transmitted?

Provisional succession

After-acquired properties because the moment you sign a will


or you execute a will, all the properties at that time you make a will
is included in the sharing or in the disposition

Provisional in the sense that theres always that


possibility that the presumed dead may come back
to life, and we said that it is not necessary that
theres a physical reappearance. The fact of his
being alive still can be proved by other evidence. You
know its so eerie if you have that presumptive death
and suddenly he reappears.

Except?
Expressly intended but what if the testator did not intend that?
What happens to the after acquired properties? It results in mixed
succession. Theres a will disposing the properties and theres the
part of the properties that was not part of the will, the law will do it
for them
If will is republished or modified
Erroneous belief or ownership but realized example, he thought
he had 8 motor vehicles but he had 5 only at the time of the making
of the will, but at the time of his death he actually had 8. So there
was an erroneous belief that somehow realized.
Legacy of credit paningla siya and the proceeds are yours; but
when you say legacy of remission you owe me, forgiven, I write off,
thats yours.
When transmitted?

But, you know, in annulment cases now, some people would not like the
annulment anymore. They want the declaration of presumptive death for
purposes of remarriage. And some lawyers would like to do that because its
faster, its easier and probably cheaper for the client. But thats very
disturbing because you are actually being compelled there to lie that the
person disappeared under these circumstances. And what if the person
reappears, then the client would say, Okay ra, attorney, nagsabot naman
mi.. blah blah blah. Okay rana, nagsabot mo karon but what if later you win
the lottery. And the person you presumed dead reappears to get the share
from the property. Youre a millionaire now. Dont do that.
o Effect of return or appearance
Recovery of the property

Death

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You reappeared. Wheres my property? I can get back my property because


of my reappearance. In other words, the testate or intestate succession
there is voided because Im still alive. Remember that one of the essential
requisites for the opening succession is death. So, if theres no death in the
first place, I can take back my property and in the condition when it was
found. What if the property was sold already? I can take back the price, but
of course, thats very hard to do. What about if the heir was so enterprising,
iyang gipaabangan daun? The rents, can you get them back? The fruits? Not
anymore. What if the heir sold the property and iyang gihinay-hinayan, iyang
gigasto for subsistence? The book says that cannot be recovered anymore
because the fact that it was spent was done in good faith. I need to eat!

Q: Regarding provisional remedies, do we not qualify? What if the


heir did lie, and the presumptive death was petitioned in bad faith?
What if there was a collusion?

A: Well, that now becomes a judicial question. But then again, the
bottom line there is this: for as long as youre not yet dead, the
propertys yours.

Q: There was this US case where a person is presumed dead, but in


reality he was just hiding. So, when he reappeared in court, his
family members were able to receive pension, insurances, proceeds
and everything. But the court ruled that even though you are alive,
you are still dead in the eyes of the law. So, supposedly, the family
was to reimburse him everything that they received.

A: The question first: who declared that he was presumptively dead?


Who petitioned that he would be declared presumptively dead? It
was not him. Exactly because he disappeared. He cannot say, Im
going to disappear. Hes not gonna tell the court, Tomorrow Im
going to disappear. Somebody else did it for him. So whether or not
that was in bad faith, there could be a challenge there because he
did not participate in the declaration of his presumptive death. But
thats a good question.

What are the requisites for transmission?

Incapacity
Predecease
Renunciation
EXCEPT in cases provided for by law
What are we talking here? When you say incapacity, you can still actually
recover but through your representative, not recover. Predecease? Also,
through your representative. What about renunciation? We said that if you
renounce, you cannot be represented anymore. How do the other co-heirs
get that if you renounce? What is that process, that procedure? Accretion.
Example, three compulsory heirs called to the inheritance. One of them
repudiated and the effect is that the share of these two compulsory heirs will
enlarge or increase. Accretion.

INCAPACITY
Absolute incapacity
Abortive infants
First instinct when we say absolute incapacity: abortive
infants. Right away. Also, those who have an intra-uterine life of less
than seven months, delivered completely but did not survive within
24 hours.

Associations and corporations prohibited by law, their


charters or laws of creation

So, if the charter says theyre not allowed to succeed, they cannot
succeed. If the law says they cannot succeed, they cannot succeed. But I am
yet to see a corporation that does not say that it has no right to succeed.
Naa gyud na. The right to succeed, the right to sue and be sued, naa gyud
na pirme. But the other section says probably it means partnership. They
cannot succeed. Now, if we have absolute incapacity, we have relative
incapacity.

Death
Rights or properties are indeed transmissible

Relative incapacity undue influence

Transferee is still alive, willing or capacitated to inherit


*Otherwise known as, if youre not alive, you predeceased; if youre not
willing, you repudiated; or if you are not capacitated, that is, of course, you
are incapacitated.

There are a few reasons why you are relatively incapacitated. One is undue
influence, number two is unworthiness, and number three, public morality.
Probably, you can inherit from some other person, but not from this person.
Probably, you can inherit some of the properties, but not this kind of
property. Relative incapacity.

When nothing is transmitted?

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1.

Priest who heard confession or minister who extended


spiritual aid during last illness

Take note, when does the disqualification by undue influence


attach? If the will was made during the last illness, and after
confession or the spiritual aid was given. Because thats
when youre most vulnerable to probably undue influence.
o last illness causes of death or immediately preceding

If there was no opportunity for the testator to change his


mind, naayo sya, there is an opportunity, pwede. It does not
disqualify. In other words, during last illness or after
confession, I made a will, and I gave my vintage car to the
priest. Supposedly, the priest is already incapacitated. But
what if two years after, lapsed, the priest is no longer
incapacitated because there was an opportunity for me to
change my mind. Even if probably the priest exerted undue
influence, but I came back to my senses and said, Oops! I
dont want to give this vintage car. So if theres opportunity,
pwede ra. It does not attach.

o disqualification to attach during last illness and after confession

Again, the illness must be the cause of the death or there is


the great possibility of death. What about ang tawo nga
naghimo sa iyang last will and testament, he had this
premonition that Im going to die because Im sick. So, I
need to confess to the priest and confess all my sins. And
then the priest comes in, probably takes advantage, and
says, You will not go to heaven if you dont give me
something. Probably, were constrained to do that thats
why the law says conclusive presumption that there is undue
influence there.

But prior to that, you cannot. Kay basig imong giingnan nga
pwede ipakang nalang? Naa koy utang eh. I cannot liquidate
everything. Pwede pakang nalang? Can you give me
something?

EXCEPT if:
Guardian is ascendant, descendant, brother, sister or
spouse

Take note that the disqualification, insofar as the priest is


concerned, extends to his relatives but not to the guardian.
The relatives of the guardian are not disqualified.

Will was made after approval of final accounts

Given to guardians relative, EXCEPT if latter is made


intermediary

What did we say?


If its the guardians relatives, it is allowed. I can
make you my voluntary heir, for example. But if
there is a provision there that says since you are
disqualified as a guardian, I am going to give this to
your relative, but your relative is going to give it to
you. Thats an intermediate. That is not allowed. You
circumvent the prohibition.
4. Attesting witness to the will, including spouse, parents or
children or any one claiming under such witness, spouse,
parent or children

Except if there are three other witnesses

If no testamentary benefit but burdened with duty


5. Physician, surgeon, nurse, health officer or druggist who
took care of testator during last illness

During last illness and after continuing care commenced


6.
Individuals, associations and corporation not allowed by
law.

Conclusive presumption assailable?

o EXCEPT legitime, intestacy, dispositions without benefit

Dispositions without benefit, meaning, theres a will and I


said, Okay, Rocelli, you will be my executor. Theres no
testamentary disposition there. I give you the burden
instead.
2.
Relatives of such priest or minister within the fourth
degree, the church, order, chapter, community, organization,
or institution to which such priest or minister may belong

3.

Attesting witness to the will, including spouse, parents or children or any one
claiming under such witness, spouse, parent or children
who is that person claiming?
The creditor
o Except if there are three other witnesses

o By consanguinity

o If no testamentary benefit but burdened with duty

Guardian with respect to testamentary disposition given in


his favor prior to approval of final accounts of guardianship

Final accounts is your liquidation. In other words, there


is no financial clearance on your part. So after the final
accounts that we approved with the court, you can qualify.

Take note the relatives of the guardians are not disqualified only that of
the priest

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Physician, surgeon, nurse, health officer or druggist who took care


of testator during last illness

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Took care meaning there is continuance and not isolated case

Pardon if based on pure innocence

o During last illness and after continuing care commenced

Any heir of full age who knows violent death of testator, who fails to report
it to an officer of law within a month
o EXCEPT if authorities have already acted or there is no obligation
to accuse

Individuals, associations and corporation not allowed by law.


This part here is not relative incapacity but absolute incapacity

Conclusive presumption assailable?

Violent death- caused by crime and there must be intenbt to kill


and not reckless imprudence.

The law presumes that they exerted undue influence.


Can you now challenge and say I did not exert undue influence?
No, because the law says that is conclusive presumption. With or
without undue influence you are disqualified.
Relative incapacity unworthiness
Parents who abandoned their children or induced their daughters to lead a
corrupt or immoral life, or attempted against their virtue.

o Include granddaughters and sons

You dont care enough that is why you are disqualified.


There really is no obligation to accuse except the authorities of the
law

Any person convicted of adultery or concubinage with the spouse of


testator

o Failure to give due care and attention

Guilty spouse is not unworthy, but may be disinherited


For giving cause for legal separation. You dont need the decree for
legal separation just the cause. If the spouse is offended already,
that would be enough

How to Judge capacity of legacy, devise or heir?

o Attempt does not need conviction

Full age 18 yrs old

Abandonment here is not the kind of abandonment as contemplated


by the revised penal code. It means lack of attention and care. In the
viewpoint of the child. When the child felt that he was not given
attention and care probably he can disinherit the parents but the
parents can challenge, and will now become a judicial question.

General rule - Qualification at the time of the death of the decedent is the
criterion.

But it could also be suspended capacity

May unworthiness be condoned?


Implied condonation

Daughter - it actually include granddaughters and son and grandson.

Any person convicted of attempt against the life of testator, his or her
spouse, descendants or ascendants
o Effect of acquittal

o When testator knew about the cause of unworthiness but


nonetheless instituted the unworthy heir
But what if I made a will, I realize that something makes you
unworthy but still I am going to condone you it cannot be implied
anymore it must be expressly condoned.
Express condonation

o Effect of pardon

o When testator knew about the cause of unworthiness after


execution of the will, condonation must be in writing

o Date of conviction may be after death


Any person who accused testator of a crime with 6 years or more of
imprisonment, if found groundless

Express revocation is irrevocable provided consent is not vitiated


opinion in the book

Acquittal must be based on pure innocence and not based on lack of


evidence or reasonable doubt.

This line is within the context of condonation, - there is something


wrong there because it actually refers to express condonation and

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not express revocation because the right to revoke is absolute. And


even if it is express condonation it might not make any sense
again because still the property is yours.
Express revocation is irrevocable provided consent is not vitiated
Condonation applies only to relative incapacity by unworthiness,
not to relative incapacity by undue influence or public morality
You cannot condone somebody who is incapacitated because of
undue influence because its the law that says you are incapacitated
and its a conclusive legal presumption.
It is not also available if incapacitated because of public morality in
public morality the one that is offended is not you its the
public/state, so you cannot condone for the public/state

The privilege or the discretion to condone is applicable only to


relative incapacity by unworthiness

o Those made between persons found guilty of the same


criminal offense, inconsideration thereof
Given as reward (Co-conspirator)
o Those made to a public officer or his wife, descendants and
ascendants, by reason of his office
Give as bribe
o Read article 739
Discussion:
Sir: The reason why condonation does not apply to incapacity because of
public morality is because chances are if you do this you are actually equally
guilty, in pari delicto and you cannot extend condonation to somebody who
is equally guilty as you.
Relative incapacity- unworthiness, undue influence, and public
morality
Absolute incapacity gani automatic abortive infants, and tung intraunterine
life of less than seven months

You cannot even assail your incapacity because of undue


influence because the law says, even if indeed there was no
undue influence still to us there is undue influence and you
cannot argue with that.

Unworthy heir gets nothing?

When to declare incapacity?


Within 5 years from possession of the property
Must be coupled with recovery of inheritance, devise or legacy
Who files?

Discussion:

Anyone with interest in the succession

Sir: So if you are an unworthy heir, do you get nothing at all? Not
necessarily. Probably in your capacity as an unworthy heir, you get
nothing. But if you are a creditor you get something. And also
reimbursement for preservation of the property.
Note: Not in your capacity as an heir because you are unworthy.
Relative incapacity public morality
Prohibitions against donations inter vivos apply to testamentary
provisions:
o Those made between persons guilty of adultery
concubinage at the time of donation

or

No need for criminal conviction


The guilt there does not necessarily mean criminal
conviction, civil conviction is enough

Discussion:
Sir: What if the incapacitated heir never possess the property, how
can you declare incapacity? Even prior to possession, you can
declare incapacity. Because if you are going to declare incapacity
within 5 years from possession you are going to be locked or shut
out, you cannot do that if the incapacitated heir does not possess.
- You can declare incapacity even prior to possession but only
incapacity because the law requires incapacity and recovery of
possession. If theres no possession, theres nothing to recovery. In
other words, impliedly the law is saying that you can petition to
declare incapacity prior to possession but declaration of incapacity. If
you want both, then it must be within 5 years from possession.
(verbatim ni)
REPUDIATION
Nature of repudiation

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a purely voluntary and free act


- pure meaning not subject to conditions
irrevocable and cannot be impugned
- We said right to revoke is absolute insofar as the testator is
concerned. But if it is the heir that revokes or repudiate, you
cannot revoke it anymore.

Married woman without consent of husband


Deaf-mutes able to read and write- personally or through agent
Deaf-mutes unable to read and write- guardians with court approval

What evidences repudiation?


Public document
Authentic document

except:

Petition in court

o vitiated consent
o unknown will appears- a will executed after the original
will; it actually revokes, changes or alter the prior will.

Sir: it must be in writing. Is that absolute? (hanging question.


Mugawas guro ni kay makaloko ang katawa ni sir)
What if the person who repudiates owes creditor?

retroacts to the moment of death- why? Because we do not want


the possibility of a situation where there is suspended ownership or
there is uncertainty of ownership of the property.

Petition court to accept in the name of heir to the extent of the


value of inheritance
What is the effect of renunciation? (Way apil sa exam for advance
info ra)

When to repudiate?
There must be certainty of death. Except: Presumptive death

Share is added or incorporated to that of his co-heirs, co-devisees


or co-legatees (accretion)

Certainty of right to inheritance

In testamentary succession, accretion takes place when:

Who may and how to repudiate?

o 2 or more person called to the same inheritance or to the


same undivided share

Any person with free disposal


o Free disposal- you are free to dispose if you are of sound
mind. Otherwise, you are not free to dispose, you are
incapacitated by law.

o One of them predeceases, renounces or is incapacitated


In legal succession, share of person who repudiates always accrues
to his co-heirs

Minors or incapacitated person

Among compulsory heirs, right of accretion takes place only when


free portion is left to 2 or more of them, or to any one of them or to a
stranger

If the incapacitated person can repudiate, how can he


repudiate something he wasnt able to receive because he is
incapacitated?- When you say incapacitated there, it is not in
the context of incapacity to inherit. But incapacitated
because precisely you are a minor.

Parents or guardians- they will repudiate in favour of minors or


incapacitated persons need court approval

Discussion:

Lawful representatives of corporation- need court approval

Sir: what we are saying here if it concerns about the legitimes, you dont get
that by accretion, you get that in your right as compulsory heir.

Insofar as repudiation is concerned, if you do it personally, you are


of age, no need for court approval. But if a representative do it for
you, needs court approval.

Should it be the legitime, the other co-heirs succeed in their own


right, and not by right of accretion

Public official establishments (i.e UP, Red cross)- need government


approval, not court approval

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In order to be capacitated to inherit, the heir, devisee or legatee


must be

living at the moment the

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succession opens, except in cases of representation, when it is


proper.

Guji: "except in cases of representation, when it is proper" omit this when it


doesn't make sense and it will result to absurdity

A child already conceived at the time of the death of the decedent is


capable of succeeding provided it be born later under the conditions
prescribed in article 41.
Should have been written this way In case of representation, if
proper, the person represented need not be alive at the time the
succession opens.

Who are compulsory heirs?

Legitimate children and descendants, with repsect to their


legitimate parents and ascendants
In their default, legitimate parents and ascendants, with respect to
their legitimate children and descendants
The widow or widower
Acknowledged natural children, and natural children by legal fiction
Other illegitimate children referred to in article 287

Who are primary compulsory heirs?

Those who get legitime even in the presence of other primary and
secondary compulsory heirs:
o Legitimate children and descendants, with respect to their
legitimate parents and ascendants
o The widow or widower
o Acknowledged natural children, and natural children by legal
fiction

Who are secondary compulsory heirs?


o

Those who inherit in default of certain primary compulsory heirs:


o Legitimate parents and ascendants in default of legitimate
children and descendants
o If there are no other ascendants, illegitimate parents in
default of legitimate children and descendants and widow or
widower

Who is a devisee?

Personal property

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State, provinces, municipal corporations


Private corporations
o Cannot inherit in legal succession

Organizations or associations for religious, scientific, cultural,


educational or charitable purposes

Who may represent?

Capable of succeeding the decedent


Renouncer

Who cannot represent?

Adopted
Grand nephews and nieces

Who may be represented?

Compulsory heirs
Predecease
Incapacitated
Disinherited

Who cannot be represented?

Relatives in the ascending line In the collateral line, it takes place


only in favor of the children of brothers or sisters, whether they be
full r half blood. (972)
Heirs who repudiate their share may not be represented. (977)
Voluntary heirs

Guji: a renouncer can represent but can never be represented


ACCEPTANCE
Nature

Real property

Who is a legatee?

May juridical persons succeed?

purely voluntary and free


irrevocable
except:
o vitiated consent
o unknown will appears

When effective

retroacts to the moment of death

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When to accept

If the heir sells, donates, or assigns his right to a stranger, or to his co-heirs,
or to any of them;

certainty of death
certainty of right to the inheritance

o Acts of disposal
If the heir renounces the same, even though gratuitously the same,
for the benefit of one or more if his co-heirs

Who may accept

free disposal of property

o Renunciation for a price for one or more

Guji: those who are of sound mind

o Gratuitous renunciation for one or more & If he renounces it for a


price in favor of all his co-heirs indiscriminately

minors or incapacitated parent or guardians


the poor
o designated by the testator to determine
distribute property no need for court approval

beneficiaries and

o Renunciation for a price for all But if this renunciation should be


gratuitous, and the co-heirs in whose favor it is made are those who the
portion renounced should devolve by virtue of accretion, the inheritance
shall not be deemed accepted.

o executor subject to court approval

o Gratuitous renunciation for all absolute repudiation

o justice of the peace, mayor, municipal treasurer by majority vote


subject to court approval

Guji: does it have to be in writing in case of absolute repudiation?


Think about it

lawful representatives of corporations, associations, etc court


approval
persons with disability
deaf-mutes able to read and write personally or through agent
unable to read and write guardians
creditors
o petition to the court to accept in behalf of heir- creditor who
repudiates

DISINHERITANCE
Who may be disinherited

What causes disinheritance of children and descendants?

How to accept
Express

o Public or private document


Implied

o Disposal if heir sells, donates or assigns rights to others

o Renunciation

Presumed
o No acceptance or repudiation within 30 days after court order of
distribution of estate

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Found guilty of attempt against the lfie of testator, his or her


spouse, descendants or ascendants
Accused testator of a crime with 6 or more years of imprisonment
but found groundless
Convicted of adultery or concubinage with spouse of testator
By fraud, violence, intimidation, or undue influence causes testator
to make a will or change one already made
Refusal without justifiable cause to support parent or ascendant who
disinherits such child or descendant
Maltreatment of testator by word or deed
Leads a dishonorable or disgraceful life

Guji: you can question this ground & if you have a liberal judge he might
overturn the will in favor of you

For a price essentially sale


Gratuitously deemed not accepted

Article 1050. An inheritance s deemed accepted:

Compulsory heir

Conviction of crime which carries penalty of civil interdiction

What causes disinheritance of parents or ascendants?

When parent or ascendant is convicted of adultery or concubinage


with spouse of testator

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When parent or ascendant by fraud, violence, intimidation, or


undue influence causes testator to make a will or change one
already made
loss of parental authority
unjustified refusal to support children or descendants
attempt by one or parents against life of the other, unless they
reconciled

What causes disinheritance of a spouse?

Convicted of attempt against the life of testator, his or her


descendants or ascendants
Accused testator of a crime with 6 or more years of imprisonment if
found false
By fraud, violence, intimidation, or undue influence causes testator
to make a will or change one already made
Gives cause for legal separation
Guji: no need for decree of legal separation

Given grounds for loss of parental authority

Guji: loss of parental authority by reason of parent's/parents' fault

Unjustifiable refusal to support children or other spouse

What are requisites for valid disinheritance?

Expressly made in a valid will


Guji: you can do it in a separate will

Must be for legal, true and existing cause


Must be total or complete
Disinherited heir must be clearly identified
Must not have been revoked

What revokes?

Subsequent reconciliation
Making of a new will instituting disinherited heir

That which results from the designation of an heir, made in a will executed
in the form prescribed by law. (art 779)
There must be a designation of an heir. So even if its a will but you dont
designate an heir, but instead you designate an executor, thats not really a
will.
What is a will?
an act whereby a person is permitted, with the formalities prescribed by
law, to control a certain degree the disposition of his estate, to take effect
after his death. (Art. 783)
What are the essential elements and characteristics of a will?
A statutory right - not a natural right and the evidence there is because
the law itself says control to a certain degree. The property is yours. You
can dispose that any way you like, but there is a limit, and the limit is the
law in the form of the legitime and public policy/morality.
o Intent of the testator prevails - intent in interpretation is the
supreme law of succession.
o Subjects to limits of law and public policy
o Mouthpiece of the dead - Its actually the dead man talking. Thats
why your witnesses must be competent to testify because theyre
going to talk on your behalf after you have departed from this world.
A unilateral act
o No acceptance by the transferee is needed - no need for
acceptance because its premature. If you accept, its meaningless.
Dont accept something that is not yet given to you. Wait for the
death of the person.
It is a solemn or formal act
o In accordance with legal formalities
Animus testandi
o Intent to make a will - but then again you might argue that I am
already making a will, why are you still questioning my intent?
Thats because the will might not involve testamentary dispositions.
I might only appoint you as my executor with the burden and duty to
preserve my property. Thats not a will.
Testator must be capacitated to make a will

TESTAMENTARY SUCCESSION

o at least 18 years of age

What is testamentary succession?

o of sound mind (NPC)


know Nature of estate extent of property

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know Proper objects of bounty

It disposes of a testators estate

know Character of testamentary act is it really a will? Is it


revocable?
Striclty a personal act in all essential matters - cannot be a subject of
compromise agreement because it will defeat the purpose of a will being a
strictly personal act. It can be a subject of Certiorari, but who will bring the
action if everybodys happy with the compromise agreement? But
theoretically it cannot be a subject of a compromise agreement so stick to
that in the Bar exams.
o It cannot be left to the discretion of a 3rd person
o Duration or efficacy of designation and the portions they are to
take, when referred to by name, cannot be left to the discretion of a
3rd person in other words, if it is very specific, theres no need to
go to a third person.
o Testator may not make a testamentary disposition in such a
manner that another person has to determine whether or not it is to
be operative for example: I institute you as my heir provided that
somebody else agrees. That cannot be done.
EXCEPT:

o Recognizes a natural child


How to interpret a will?
Intent of testator prevail - intent is the supreme law of succession,
subject to limits of law and public policy
Interpreted as a whole context must be considered
Invalidity of one disposition does not infect the others except when
indivisible in nature and effect
In case of ambiguity, that which operates disposition is preferred
because testacy is preferred over intestacy
Words ordinary meaning and grammatical sense unless intended
otherwise
Technical words in their technical sense UNLESS:
o Context clearly indicates contrary intention
o Another sense is clearly intended

Drafting may be delegated


Third person theres actually no discretion on your part because
it is specified
Distributes specific proprety or sums of money he leaves in
general to specified classes or causes
Designates persons, institutions or establishments to which such
property or sums of money are to be given or applied
It is effective mortis causa

o Will was drawn solely by the testator unacquainted with such


technical sense
What are kinds of ambiguity in a will?
Extrinsic
o Does not appear on the face of a will - I institute my brother-inlaw. On the face of the will the provision is perfect, but the problem
arises when there are actually two brothers-in-law.
o Imperfect description

o It produces effect only after death of testator

o No person or property exactly matches description

it is essentially revocable or ambulatory

Intrinsic

o the right to revoke is absolute

o Appears on the face of the will I institute some of my brothers.


The ambiguity on the face of the will is obvious because how do you
determine some?

it is free from vitiated consent


o executed freely, knowingly and voluntarily

How to cure ambiguity?

o consent is not corrupted

Discover the intent of testator

It is an individual act
o Prohibition against a joint will is absolute even if executed in a
country where joint wills are allowed.
Gamayon | Ibarra | Rudas | Sibay | Singh | Torcal |Tunacao | Villalon

o Merely designates an executor

Examine the will itself

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Extrinsic evidence like written declarations written declarations


can be a memo or a letter perhaps that might explain the intent of
the testator; need not be notarized
What are the kinds of validity of a will?

The national law follows wherever you are ( just like the spouse I
didnt say the wife ha! ) the spouse follows wherever you are.
Requirement for a notarial will
Must be in writing

Extrinsic validity forms and solemnities

In a language or dialect known to the testator

Intrinsic validity legality of provisions; answers the question


Who gets how much?

Comment:
If witness : no need to know the language ; it may be
interpreted to the witness

Extrinsic validty from viewpoint of time


Law in force at the time the will is executed

If testator: must know the language (it is the best measure


that it is really yours!)

Extrinsic validity from viewpoint of place


Filipino

Signed at the end by the testator or by the testators name written


by another in his presence, and by his express direction

o Philippine laws
o Laws of the coutry where he may be

Attested and subscribed by 3 or more credible witness in the


presence of testator and of one another

o Law of the country where he executes the will

Comment :

Alien abroad

Attestation is the act of senses. Subscription is the act of


hand.

o Law of domicile law of the place of habitual residence

The testator or the person requested by him to write his name, and
the instrumental witnesses of the will signs each and every page,
except the last, in the left margin.

o Law of nationality
o Philippine laws

All the pages are numbered correlatively in letters placed on the


upper part of each page

o Law of place of execution


Question: Is the law of domicile and law of place of execution be
different?
Answer: Yes. Here, were probably talking about a jetsetter
millionaire guy who lives in Spain, for example, and executes a will
over dinner at Paris.
Alien in the country
o Philippine laws
o Law of nationality

The attestation clause provides:


o Number of pages used
o That testator signed or expressly caused another person to
sign the will and its every page in the presence of
instrumental witnesses
o That instrumental witnesses witnessed and signed the will
and all its pages in the presence of testator and of one
another.
Comment:

Intrinsic validity from viewpoint of place

National law of the decedent

Comment:

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All these three must appear on the


attestation clause.
Can we apply substantial compliance
doctrine?

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Yes but only in so far as the imperfection of


the language or the defect in the form is
concern but essentially they have to be there
especially the number of pages.

Acknowledged before a notary public by the testator and


witnesses.

We can delegate the drafting of the holographic or notarial


will to somebody else for as long as it embodies your
intention and it conforms to the formalities of the will.
Probate of holographic will
Uncontested
o One (1) identifying witness
o If none, handwriting expert

Formalities for a holographic will

Contested

Language must be known to the testator

o Three (3) identifying witnesses

Entirely written in the hand of the testator

o If none, handwriting expert

Must be dated
Must be signed by the testator himself

Effect if holographic will is lost or destroyed

There must be animus testandi

No other copy available

Made when holographic wills are allowed

o Can never be probated

Comment:
Even if at the time the holographic will is probated; it is
already allowed; it does not matter coz what matters is at
the time you made the holographic will. Is that allowed by
law?

Comment:
The best evidence is the Holographic will.
Photocopy
o May be probated

No witnesses are required

Disposition below signature

No marginal signatures are required

Must be both dated and signed

no acknowledgment is required
Comment:

If dated but not signed void

Becoz if theres an acknowledgement then it ceases to be a


holographic will since it now become a notarial will.

If signed but not dated void

In case of insertion, cancellation, erasure or alteration, testator


authenticates
May be made in and out of country

Except if at the end, the last disposition is signed and dated, it


validates dispositions preceding it
Codicil

May be made even by a blind testator ( provided he is literate)

A supplement executed like a will, to be effective. It explains, add air alters


original will.

Mechanical act of drafting may be delegated

In case of conflict, codicil prevails.

Comment :

Comment: Latest intent of the testator


Incorporation by reference

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Document must exist at the time of execution of will

o Voluminous books of account or inventories

Muse be clearly described and identified including number of


pages
Comment: Number of pages is essential even if voluminous

May be generally done in notarial wills


o Except:
o if holographic will have three (3) witnesses

Incorporation by reference
Must be identified by clear and satisfactory proof as the document being
referred to

o if holographic will refer to a document entirely written, dated and


signed by the hand of the testator

Must be signed by the testator and the witnesses on each and every page
o Except:

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