Succession
He also left a
SUCCESSION
I. GENERAL PROVISIONS
Article 774. Succession is a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value of the inheritance,
of a person are transmitted through his death to another or others either by
his will or by operation of law.
Q. What would be considered part of the inheritance?
A. It is the property, rights and obligations which are not extinguished by the
death of a person. Transmission happens upon death.
A. Nature : Governing Law
Article 1039. Capacity to succeed is governed by the law of the nation of
the decedent.
Q. What law shall govern?
A. The capacity of an heir to succeed shall be governed by the national law
of the person who died.
What is the basis of this?
Wrong way to answer is that the national law because Art. 16. provides that
the intrinsic validity of the will shall be governed by the national law. That is
absolutely wrong! Capacity of the heir is 100% different from the intrinsic
validity.
If the question is regarding the capacity, art. 16 is not the answer. The basis
is art 1039. The capacity of the heir shall be governed by the national law of
the decedent.
Article 16. Real property as well as personal property is subject to the law
of the country where it is situated.
However, intestate and testamentary successions, both with respect to the
order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the national
law of the person whose succession is under consideration, whatever may be
the nature of the property and regardless of the country wherein said
property may be found.
Application:
Juan is living in the Philippines acquired shared stocks worth 10M in a
manufacturing company. He died in Manila, leaving a legal wife, and a child
in Australia, and a live-in partner with two children in Manila.
will. According to Philippine laws, leaving all his properties to his live-in
partner and their children. What law will govern the validity of the
disposition in the will?
Tip: I would encourage everyone to read first the question. Actually if you
were able to read the question, with the first sentence you already know the
answer. You don’t have to read all the other statements, it’s a waste of time.
What law will govern the validity of the disposition in this will? If the
decedent is an Australian, then it will be the national law of the testator,
which means therefore it is the law of Australia which shall govern. The basis
this time is art. 16.
Among others, in art. 16 the law provides that the intrinsic validity of a will
shall be governed by the national law of the decedent. This time it’s clear the
validity of the disposition in the will it goes into the intrinsic validity.
But of course there are three other aspects of succession. Two other aspects
of succession are mentioned in art. 16 paragraph 2, aside from intrinsic
validity, the order of succession and the amount of successional
rights.
You must know the issue. If the issue is about the amount of shares, then it
is amount of successional rights. If the issue is who is going to succeed, then
it is the order of succession.
Q. Juan is a Filipino residing in Tokyo Japan, state what laws will
govern?
A. Governing laws can be
a. National law
b. Domiciliary law
c. Lex situs / Lex rei sitae
d. Lex loci celebrationis
Note: Of these, the most important is the national law.
Q. State what law shall govern the successional right of Juan with
his deceased Filipino father’s property in Texas? The law of the
place where the property is located, is it relevant in succession?
A. (Almost zero. In the Philippines, the law of the place where the property is
located is relevant only with regards to the venue of the action.) It is the
Philippine law that shall govern the successional rights of Juan because of
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art. 16 which provides that successional right shall be governed by the
national of the decedent.
Tip: There are questions that which do not require 3 paragraph rule. Only
one sentence will suffice.
Q. Juan is a testator was born a Filipino citizen but became
naturalized Japanese at the time of his death, what will law govern
his testamentary provisions if the will is executed in China and the
properties being disposed is located in Indonesia.
A. (The law of the place of the execution of the will is irrelevant because the
question is regarding the law governing the testamentary provisions. In
other words it goes into the intrinsic validity of the will.) A person sometimes
changes citizenship, but when it comes to intrinsic validity, even with order
of succession and amount of successional rights and capacity to succeed, it
is the nationality of the person at the time of his death. Therefore, it is
law of Japan that shall govern.
Article 17. The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are
executed.
Into form
Q. Juan is a Filipino citizen residing in Tokyo Japan, what laws shall
govern the extrinsic validity the last will and testament that Juan
executed while sojourning in Switzerland?
A. The law of Switzerland because he executed the will in Switzerland and
this is consistent with art. 17 which provides that the formalities of will shall
be governed by the law of the place where the will was executed.
Q. What if the will was not executed in accordance with the law of
Switzerland, may it be a valid will extrinsically under the Philippine
law?
A. Yes, it may nonetheless be a valid will extrinsically if it is in accordance
with Philippine law.
TN: Not expressly provided in the civil code but by analogy, if an alien under
art. 16 can execute his will abroad in accordance with his national law why
not a Filipino be allowed to execute his will abroad in accordance with
Philippine law.
Q. A Filipino executed a will in Hawaii while there as a contract
worker. Assume that under the laws of Hawaii, it is enough that the
testator affix his signature in the presence of two witnesses and
that the will needs to be acknowledged before a notary public. May
the will be probated?
A. Yes because of lex loci celebrationis as long as the will was executed in
accordance with the law of place of its execution under art. 17 then it is a
valid law under Philippine law.
Note: The word probate goes into the formalities, goes into the extrinsic
validity.
Q. If the testator of a will is a Filipino, what law will govern if the will is
executed in the Philippines? What will govern if executed in another country?
Explain your answer.
A. As to the intrinsic validity of this will, it shall be governed by Philippine law
because he is a Filipino citizen, the national law of the testator regardless of
where he executed the will, whether here in the Philippines or Japan or any
country it doesn’t matter.
But as to the extrinsic aspect of the will, what law will govern where the will
was executed in another country, either the Philippine law or the law of the
country where the will was executed.
Article 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place in
which he resides, or according to the formalities observed in his country, or
in conformity with those which this Code prescribes.
Article 817. A will made in the Philippines by a citizen or subject of another
country, which is executed in accordance with the law of the country of
which he is a citizen or subject, and which might be proved and allowed by
the law of his own country, shall have the same effect as if executed
according to the laws of the Philippines.
Q. If a will was executed by a foreigner who is a Japanese residing in the
Philippines, what law will govern if will was executed here in the Philippines?
What law will govern if the will was executed in Japan or some other country
or inside the USA?
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A. As to the intrinsic validity, the law of Japan as it is national law of the
testator. However, as to the extrinsic validity, this Japanese is a resident of
the Philippines and executed a will in the Philippines, the applicable provision
is art. 817 which provides that alien executing wills here in the Philippines
only has two choices either his national law or Philippine law which is
consistent with lex loci celebrationis.
2nd scenario: A Japanese executed a will in USA, what law will govern?
A. three choices: national law, law of USA and Philippine law.
Q. ___ was born a Filipino but was naturalized Canadian citizen at
the time of his death. He left behind a testament in which he
bequeath all his properties real and personal in the Philippines to
his acknowledged illegitimate Filipino daughter and nothing to his
true legitimate Filipino son. The son sought the annulment of the
last will testament on the ground that it deprived them of the
legitime. Was able to prove that were no compulsory heirs or
legitime under Canadian law. Who should prevail?
A. The daughter should prevail because the problem here points into the
intrinsic validity of the will which shall be governed by the national law of the
decedent. And since his national law which is the law of Canada does not
provide compulsory heirs, therefore there is no such concept in the law
known as legitime, no one can be deprived of legitime.
Q. An Englishman who had resided in the Philippines for a long
time, executed a will in France, disposing of his real and personal
property in the Philippines. What law governs the validity of the
will?
A. The intrinsic validity of the will shall be governed by the national law of
the decedent which is the law of England. But as far as the extrinsic validity,
the testator being an alien who executed the will in France, the law of
England his national law, the law of France where he executed the will, and
the Philippine law under art. 816 in relation to art. 17 will govern.
Q. A, a citizen of California but domiciled in the Philippines, then
testate in Manila, survived by two acknowledged natural children B
& C. In his will, he left more than 500 thousand to B and only three
thousand to C. It is admitted that under the civil law of California
that the domiciliary law of the decedent shall govern. Involving the
validity of the testamentary provisions, C who is contesting the
validity of the dispositions in favor of B now contends that the
Philippine law is applicable.
A. (Helen Kristensen case) Yes the Philippine law is applicable under what is
known as the renvoi doctrine. As far as the intrinsic validity is concerned, it
is the national law of the decedent that shall govern which is the law of
California. However the law of California provides that as to the validity of
the testamentary provision shall be governed by the law of the place where
the citizen was domiciled at the time of his death. The law of California
refers the matter back to the Philippines.
2nd scenario: if the decedent is domiciled in Japan: so this will be referred to
the law of Japan. This is not a case of renvoi doctrine but is known as
transmission theory which from one state is referred to a second state
and from the second state is referred to a third state.
B. Subjects of Succession. Who are the subjects? – decedent and
heirs
Into the subject
Subjects:
Legatees – if they succeed to particular personal properties (legacies)
Devisee – if they succeed to particular real properties (devises)
Kinds of heirs
1. Compulsory heirs – may inherit despite a will
2. Voluntary or testamentary heirs – may only inherit because of a valid
will
3. Legal or intestate heirs – may inherit with or without a will, heirs in
the collateral line within the fifth civil degree
May a person be a compulsory, voluntary or legal heir at the same time?
Spouse, father, children
Note: Always bear in mind in what capacity the heir is inheriting. The
principles may or may not apply to a kind of succession.
Right of representation – is not applicable to testamentary succession but
applicable to legitime.
Proximity rule – nearest exclude the remote
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Compulsory heirs: Must be in the direct line but subject to certain
qualification like the iron curtain rule. If the heir is not in the direct line but
in the collateral line, he is not a compulsory heir.
The SC tells us that there three compulsory heirs:
1. Primary compulsory heirs – legitimate children and descendants
2. Secondary compulsory heirs – only inherit in the absence of the
primary
eg. Parents, grandparents, great grandparents
3. Concurring compulsory heirs
eg. Spouse, illegitimate children, parents of the illegitimate children
Matrix – Legitimes & Shares in Intestate Succession
Q. Don died after executing a last will and testament leaving his
estate valued at 12M to his common law wife Rochelle, he is
survived by his brother Ronnie and his half-sister Michelle. Was
Don _____ his estate in accordance with the law of succession,
whether you agree or not explain your answer.
A. Yes, this is in accordance with law of succession because no compulsory
heirs survived Don and therefore his estate is 100% freely disposable. He
can give his estate to anyone who has the capacity to succeed.
2nd scenario: If Don did not execute a will during his lifetime with his
lawyer. How will you distribute his estate?
A. Since he died intestate therefore his intestate heirs shall inherit. His
common law spouse Rochelle will not inherit. His brother Ronnie being an
intestate heir will have a share twice that of the half-blood sister Michelle.
2/3 to Ronnie, and 1/3 to Michelle.
3rd scenario: Assuming he died intestate, survived by his brother Ronnie, his
half-sister Michelle and legitimate son Jason. How will you distribute his
estate?
A. The entire estate will be given to Jason excluding Ronnie and Michelle.
4th scenario: Don died intestate survived by his father Juan, brother Ronnie,
half-sister Michelle, legitimate son Jason. How will you distribute his estate?
A. The entire estate will given to Jason excluding the father because he is
just a secondary heir.
Q. Joan married Jim, a person with no known relatives, through Jim’s
hardwork, he and his wife Joan prospered. When he died his estate alone
amounted to 100M. If in his will, he designates Joan as his only heir. What
will be the free portion of his estate?
A. Half is the free portion.
Q. Emil, the testator has three legitimate children Tom, Henry and Lito, a
wife name Edith, parents name Pepe and Pilar, brother Mark, and sister
Naneth. Since his wife Edith is well off, he wants to leave to his illegitimate
child Ramon as much of his estate as he can legally do. His estate has an
average amount of 1.2 million. And all the above named relatives are still
living. Emil now comes to you for an advice in making a will. How will you
distribute his estate according to his wishes without violating the law on
testamentary succession?
Note: An illegitimate child cannot exclude legitimate parents. The one
excluding Pepe and Pilar are the legitimate parents. Mark and Naneth are not
compulsory heirs. Half of the estate is known as the free portion.But this
may not be under certain circumstances be freely disposable for the
legitimes of the concurring compulsory heirs are taken from this portion (for
spouse, illegitimate children). If there are many illegitimate children
compared to legitimate children, you cannot use the ratio of 2:1 this what
was given 2017 BAR exam.
1/2 of 1.2M = 600 (legitime of the children)
3 Children = 600K / 3 = 200K each
Spouse = 1 share of a legitimate child except if there is only 1 legitimate
child = 200K
Illegitimate child = 1/2 of the share of the legitimate child = 100K
Free portion = 300K may be given to his illegitimate child Ramon (total of
400K worth of the estate)
Q. A Filipino couple Mr. and Mrs. DM Jr. decided to adopt YT an orphan from
St. Claire orphanage in New York. They loved and treated her like a
legitimate child but they have none of their very own. However DM Jr died at
sea followed to the grave a year later by the father DM Sr. He left a sizable
estate consisting of bank deposits, lands and buildings in Manila. May the
adopted child YB inherit from DM Jr.? May she also inherit from DM Sr.? Is
there a difference? Why? Explain.
Yes, with adoption, the adopted child or adoptee will have the same
hereditary rights as a legitimate child as to the adopter. She may inherit as if
she is a legitimate child of DM Jr.
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She may inherit from DM Sr. only in testamentary succession because in
legal or intestate succession she is not an heir of DM Sr. Adoption creates a Intestate Succession table
legal relationship only between the adopter and the adoptee.

B. Mr. XT and Mrs. YT have been married for 20 years. Suppose the wife YT
was survived by her husband XT, what would be the share of XT from her
estate as inheritance. Why?
In the problem it appears that Mrs. YT died intestate, therefore the husband
gets everything. Although if there is a will, the legitime is only 1/2, the other
1/2 can given by the testator to anybody.

Note: In the order of intestate succession, the decedents if legitimate, who is

the last intestate heir who will inherit if all the heirs in the higher level are
disqualified to inherit – the state.

Table of legitimes:

1. Legitimate children or descendant (either children or grandchildren)

– basic legitime is 1/2, in total intestacy the whole estate will be
given to them, if there is a will the other 1/2 is the free portion
2. Difference between number 2 & 3 is the number of children, if there
are many legitimate children the legitime of the spouse is smaller
which is equivalent to 1 share of the legitimate child whereas if there
is only a legitimate child, the legitime of the spouse is 1/4.

Under our law, between 2 different compulsory heirs, and the

legitime of one heir is smaller than the legitime of the other, in total
intestacy, the legitime of the heir which has a smaller
legitime will get the freely disposable portion.

3. Under the Family code, with regards to succession there is no more

Note: The heir with smallest fraction of legitime will receive the free portion distinction as to what type of illegitimate children survived.
in case of intestacy.
If there are many illegitimate children do not use the 2:1 ratio.

Q. 2 legitimate children, 6 illegitimate children, 100K estate, in

intestate succession, what is the share of each?

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A. take note of the basic legitime of the legitimate children which is
1/2 of the estate. 50K / 2 = 25k each legitimate children. The free
portion which is 50K will be divided among the illegitimate children.
Q. (Bar exam 2018) Pedro had worked for 15 years in Saudi where
he finally decided to engage in farming in his home province, where
his 10 hectares of farm valued at 2M was located. He had already
3M savings from his long stay in Saudi. He was awaiting his arrival
in NAIA where is parents Modesto and Hacinta, his common law
spouse Veneranda, their 3 children, and Alex his child by Carol his
departed legal wife. Sadly for all of them, Pedro suffered stroke
because of his over excitement just as the plane was about to land
and died without seeing any of them. The farmland and the savings
were all the property he left.
a. State who are the legal heirs and the shares of each legal heir to
estate. Explain your answer.
A. In intestate succession, legitimate child exclude the parents thus
no share, common law spouse is not an heir will not have a share in
the estate. The total 5M estate
1 legitimate child – 2.5 M
3 illegitimate children – 2.5 M / 3
Parents – 0
Common law spouse – 0
b. Assuming that a will was discovered after his funeral, in the will
he disposed of half of his estate in favor of Veneranda, the other
half in favor of his children and his parents in equal shares.
Assuming also, that the will was admitted to probate by the
proper court. Are the testamentary dispositions valid under
testamentary succession?
A. No. the testamentary dispositions are invalid. The full
legitime of the illegitimate child is lacking. Nothing will be
given to the voluntary heirs, not to the parents and not to
the common law spouse. The 2.5M to the legitimate child
and the other 2.5M will be divided among the illegitimate
children.
Q. The decedent died intestate leaving an estate of 10M. He was
survived by the following heirs, Marlon the legitimate child, Cecilia
the legal spouse. Divide the estate.
A. Since this is an intestate succession, 1/2 of the estate will be
given to the legitimate child, the other half will be given to the legal
spouse thereby adding the free portion to the basic legitime of the
legal spouse which is 1/4.
Q.Juan survived by legitimate children, illegitimate children, and
spouse.
A. Compute first the legitime of the legitimate children which is 1/2
of the estate divided among the number of legitimate children. The
way to compute the legitime of the illegitimate children is not
collective. The legitime of illegitimate child is 1/2 of the legitime of
the legitimate child. The legitime of the spouse the same as the
legitime of one legitimate child.
If there are many illegitimate children and the estate is not enough
to satisfy the 2:1 ratio, protect the legitime of the legitimate children
and the spouse, then what is left will be divided among the
illegitimate children
4. Legitimate parents or ascendants – are secondary compulsory heirs.
5. Spouse and illegitimate children – 1/3 for spouse, 1/3 for illegitimate
children, for intestacy share from 1/3 will become 1/2. If a car is
given to a priest, both of them will suffer reduction but should not
impair their legitimes which is 1/3.
6. Last paragraph of art 887, illegitimate parents, under the code their
legitime is ½. They may get everything, but if the person who died
is a legitimate child, his illegitimate parents will be easily excluded by
any child of the decedent.
eg. X died, an illegitimate child, the illegitimate parents will be
excluded if X has a child whether legitimate or illegitimate. Unlike
legitimate parents, they can only be excluded by legitimate children
or descendant.
7. Illegitimate and surviving spouse – smallest fractional share of 2
different compulsory heirs which is 1/4, 1/4. In case of total
intestacy, their share will become 1/2, 1/2.
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8. Only the spouse cannot exclude the relatives in the collateral line.
Although only the spouse has a legitime, the brothers, sisters,
nephews and neices don’t have any legitime for they are not
compulsory heirs, but in intestate succession, the spouse can only
get his / her legitime which is 1/2, the other half will goes to the
brothers, sisters, nephews and nieces (legal heirs within the fifth civil
degree).
Q. Ramon Mayaman died intestate leaving a net estate of P10M.
Determine how much each heir will receive from the estate.
a. Ramon is survived by his wife, 3 full blood brothers, 2 half
brothers, 1 nephew which is the son of a deceased full blood
brother. Explain.
Note: 2 half blood is equals to 1 full blood
Spouse legitime is 1/2 of the estate which is 5M; the other 5M
will go to the brothers, sisters, nephews and nieces; nephews
and nieces will inherit by right of representation.
Spouse – 5M
3 full blood – 1M each
Nephew – 1M
2 half blood – 1M / 2 = 500K each
b. Ramon is survived by his wife, a half sister, 3 nephews who are
the sons of legitimate full blood brother
Spouse – 5M
Half sister – 1/3 of 5M
3 nephews – 2/3 of 5M
Q. Ernesto, an overseas Filipino worker, he was coming home to
the Philippines after working so many years in the Middle East.
He had saved 100K in his savings account in Manila which he
intended to use to start a business in his home country. On his
flight home, Ernesto had a fatal heart attack. He left behind
widowed mother, common law wife, and 3 sons. He left no will
and no debts,no other relatives and no other properties except
the money in his savings account. Who are the heirs entitled to
inherit from him? How much will each receive?
If you seriously consider the 100K, it can be validly argued that
that this is not the net estate. Eventhough Ernesto is not married
with his common law wife, this may fall under art 147. under the
family code. The common law spouse will have a share not
because she inherits it but its her share as a co-owner.
Art. 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as husband
and wife without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by them in
equal shares and the property acquired by both of them through
their work or industry shall be governed by the rules on co-
ownership.
But if we consider, that the 100K is the net estate which is to be
distributed to the heirs. In this situation, since Ernesto is only
living with a common law wife, then the 3 children are
illegitimate. Therefore they cannot exclude the mother. The
mother, as a secondary compulsory heir, will inherit the half of
the estate. The common law wife zero. The 3 sons their legitime
is actually 1/4 of the estate, in case of intestacy it becomes 1/2,
which will be divided among the three sons.
Note: Bar exam questions are a combination of PFR and
succession. If you wrongly appreciate PFR then your answer
with regards to succession will be wrong.
Q. Sep. 8, 1988, Kevin, a 26 years old businessman,
marriedCarlaa minor 18 years of age, without the knowledge of
their parents or legal guardian. Kevin and Carla entered into a
pre-nuptial contract a day before their marriage stipulating that
conjugal partnership of gain shall govern their marriage. At the
time of their marriage, Kevin’s estate cost worth 50M and Carla’s
was valued at 2M. A month after their marriage, Kevin died in a
helicopter accident. He left no will, no debts, no obligations.
Aside from Carla, he is survived by his own relatives his brother
Luis and 1st cousin Lilia.
a. What property regime governs the marriage settlement
between Kevin and Carla?
Note: If no date is mentioned in the problem, as to the
marriage, and death, you can presume that the incident
happened on the day of the exam. In other words, the law
effective on that time will apply, otherwise the examiner the
dates.
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Dates are important in succession. On September 10,
1988, the family code is already effective, but the RA.
6809 not yet in other words the age of majority is
still 21.
In the family code, if one of the spouses is a minor, for a
marriage settlement to be valid, parents of the minor must
be made parties to the marriage settlement. Not their
consent should be obtained or they should be present in the
institution.
Obviously from the facts, “without the knowledge of their
parents”, the marriage settlement is void. And in the family
code, the default property regime despite their stipulation
that is void is absolute community of property.
b. Determine the value of their estate?
Since this is an ACP, the rule is that the properties already
owned by the spouses before the marriage shall form part of
the community property. The 50M of Kevin and 2M of Carla
will form part of the community property with total of 52M.
Since Kevin died without a marriage settlement. Under the
code, they will share equally, therefore the estate of Kevin is
26M.
c. Who are Kevin’s heirs and how much will each inherit?
The heirs of Kevin aside from Carla are his brother Luis and
his 1st cousin Lilia. Lilia is actually a legal heir, but she will
be excluded under the proximity rule because she is 4
degrees removed compared to Luis who is only 2 degrees.
50% of the 26M to the spouse = 13M
50% of the 26M to Luis =13M
Presumptive legitime: In the sense that no one dies.
In what case must the parents deliver the legitime to their children?
What are the legal effects of each case?
1. Annulment of marriage
2. Declaration of nullity of marriage
For the couples whose marriage was annulled or declared nulled and void, in
able for them to be able to remarry validly they must, one of the
requirements is the delivery of the presumptive legitime to their common
children. If they were unable to deliver the said presumptive legitime, the
subsequent marriage will be void. But take note, the children of the
subsequent marriage are legitimate children.
This is one of the restrictions of legitimes.
Q. Crispin died testate, and was survived by Alex and Josing his children
from his first wife, Rene and Ruby his children from second wife,Allan, Bea
and Cheska his children from his third wife. One important provision of his
will reads as follows:
Ang lupa’t bahay sa lungsod ng Maynila ay ililipat at ilalagay sa pangalan nila
Allan at Rene. Hindi bilang pamana ko sa kanila kundi upang pamahalaan at
pangalagaan lamang nila at ng ang sino man sa aking mga anak, sampu ng
aking mga apo, at mga kaapo apohan ko sa habang panahon ay may
tutuluyan kung magnanais mag-aral sa Maynila o sa kalapit na lungsod.
Is the provision valid?
A. No. There can be no valid prohibition for the division of the estate
for more than 20 years.
Capacity to Succeed or Transmit Successional Rights
Who among them will inherit? Who may succeed?
Q. X died in 2005 and had 5 children, A B C D E, who will not inherit from
him?
Note: As to whom may inherit, the rule applicable is art. 1024.
Art. 1024. Persons not incapacitated by law may succeed by will or
ab intestato.
a. A because he is already a citizen of France at the time of death?
Since A is an heir, he can succeed. There is no law which
incapacitates the heir from succeeding because he is already a
citizen of another country.
b. B because he is already back in Canada at the time of death?
B can succeed. There is no law which incapacitates the heir from
succeeding.
c. C is suffering civil interdiction because he isimprisoned?
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 C can succeed. Ordinarily a convict can succeed unless there are
certain crimes which incapacitate them under certain circumstances.
d. D predeceased X?
For D to inherit he must be living at the time of the opening of
succession. Since D predeceased X he will not inherit.
e. E he died before the filing of the petition for the settlement of the
estate even if he died after the dead of X?
Relevant provisions: art. 1025 in relation to art. 777.
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.
Article 777. The rights to the succession are transmitted
from the moment of the death of the decedent.
E can inherit. Since the opening of succession happens at the time of
death, and at the time of death, if the heir is still living then the heir
will inherit.
Q. X died on January 15, 2005, survived by wife Y and paramour Z. A,
legitimate child of X, died on December 31, 2004. Y gave birth to B on
December 30, 2005. Z gave birth to C 5 months after the death of X.
However C died 5 hours after birth. Who may inherit from X?
Relevant provision:
Article 41. For civil purposes, the foetus is considered born if it is
alive at the time it is completely delivered from the mother's womb.
However, if the foetus 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.
A. C will succeed. Under the civil code, if the child has an intra uterine life of
at least 7 months as long as he was born alive even if he died a few seconds
or few minutes after, he already acquire civil personality. And under the code
he already succeed.
Q. Isidro and Erma, Filipinos both 18 years of age, were passengers of flight
317 of Oriental airlines. The plane they boarded was of Philippine origin, was
enroute from Manila to Greece, some passenger hijacked the plane. Held the
chief pilot hostage at the cockpit and ordered him to fly instead to Lybia.
During the hijacking, Isidro suffered a heart attack and was on the verge of
death. Since Erma was already 8 months pregnant by Isidro, she pleaded to
the hijackers to allow the assistant pilot to solemnize her marriage. Soon
after the marriage, Isidro expired. As the plane landed in Lybia, Erma give
birth. However, the baby died after a few minutes after complete delivery.
Back in the Philippines, Erma filed a claim for inheritance. The parents of
Isidro opposed her claim contending that their marriage was void because of
the following grounds: they had not given their consent to the marriage of
their son, there was no marriage license, the solemnizing officer has no
authority to perform the marriage, no filing application of marriage with the
proper civil registrar. Does Erma have any successional rights at all?
Have to consider two aspects here: as spouse and as a mother of the child.
Even if the marriage is void, the child is illegitimate child. Assuming the child
inherits and the child dies, the mother inherits.
A. A marriage contracted by persons of age between 18-21 needs only
parental consent, without parental consent, the marriage is not void
but merely voidable. Before the marriage is annulled, and one of
them dies, the marriage will never be dissolved for it was already
dissolved by death.
Secondly, there was no marriage license. This is one of the
exceptions to the requirement of a valid license since this is a
marriage in articulo mortis.
Third, the family court has two provisions on Pilot as solemnizing
officer. On one of the provision, the law only used the word pilot not
distinguishingas to chief or assistant pilot.
The fourth ground is an irregularity, solemnizing officer did not file
an affidavit. Under the family code, an irregularity does not affect
the validity of a marriage.
It is clear from the facts that the she was already 8 months
pregnant, obviously more than seven months. So even if the child
died minutes after birth, it doesn’t matter the child already acquired
civil personality, he already inherited. And whatever he inherited will
be inherited by the mother. But actually as to the share inherited by
the child, such share will be held by Erma in trust as reservista, but
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 when she dies the share will go back to parents of Isidro under the
principle of reserva troncal.
Iron Curtain Rule [Article 992]
Relevant provision:
Art. 992. An illegitimate child has no right to inherit abintestato
from the legitimate children and relatives of hisfather or mother;
nor shall such children or relatives inheritin the same manner from
the illegitimate child.
Q. In 1970, Ramon and Jessa got married. Prior to their marriage, Ramon
had a child Anna. In 1971, 1972, they legally adopted Cherry and Michelle
respectively. In 1973, Jessa died while giving birth to Larry. Anna had a child
Lilia. Anna never married. Cherry on the other hand legally adopted Shelly.
Larry have twins Hansel and Gretel with his girlfriend Fiona. In 2005, Anna,
Larry, and Cherry died in a car accident. In 2007, Ramon died. Who may
inherit from Ramon and who may not? Give your reasons.
A. Jessa, Anna, Larry, and Cherry will not inherit because they will not inherit
because they were no longer living at the time of the opening of succession
in 2007. Fiona is not an heir for she is only a girlfriend. Hansel and Gretel, In
intestate succession under the iron curtain rule under art. 992.
Shelly cannot inherit since she is only adopted by Cherry. The relationship of
Ramon to Cherry since she is also an adopted will not extend to Sherry.
Only Michelle can inherit, since an adopted child has the same hereditary
rights as the legitimate child of the adopter.
As to the issue whether Lilia will inherit is whether if Anna is a legitimate
child or not. Because if Anna is a legitimate child, Lilia cannot inherit under
the iron curtain rule, but if Anna is also an illegitimate child, then Lilia can
inherit under art. 990.
Art. 990. The hereditary rights granted by the two precedingarticles
to illegitimate children shall be transmitted upontheir death to their
descendants, who shall inherit by rightof representation from their
deceased grandparent.
Q. Is the wife of the minister who rendered Gospel to the testator during his
last illness?
Relevant provision:
Art. 1027. The following are incapable of succeeding:
(1) The priest who heard the confession of the testatorduring his
last illness, or minister of the gospel who extendedspiritual aid to
him during the same period;
(2) The relatives of such priest or minister of the gospelwithin the
fourth degree, the church, order, chapter, community,organization,
or institution to which such priest orminister may belong;
(3) A guardian with respect to testamentary dispositionsgiven by a
ward in his favor before the final accountsof the guardianship have
been approved, even if the testatorshould die after the approval
thereof; nevertheless, anyprovision made by the ward in favor of
the guardian whenthe latter is his ascendant, descendant, brother,
sister, orspouse, shall be valid;
(4) Any attesting witness to the execution of a will, thespouse,
parents, or children, or any one claiming under suchwitness,
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer ordruggist who
took care of the testator during his last illness;
(6) Individuals, associations and corporations not permittedby law
to inherit.
Q. In the will of X, a parcel of land is given to A B C and D. Who may
inherit from X as voluntary heir? All of them or none of them, if?
A is the priest who heard the confession of the testator 5 years before his
death.
- Priest to be incapacitated he must have heard the confession during the
last illness.
B was the guardian.
- B as a guardian does not necessarily incapacitate him to inherit. What if B
is the wife, relative or parents then B is not incapacitated.
C is one of the attesting witnesses to the execution of the will.
- As long as there are three other competent witnesses, C is capacitated to
inherit under Art. 823.
Art. 823. If a person attests the execution of a will, towhom or to
whose spouse, or parent, or child, a devise orlegacy is given by
such will, such devise or legacy shall, sofar only as concerns such
person, or spouse, or parent, orchild of such person, or any one
claiming under such personor spouse, or parent, or child, be void,
unless there arethree other competent witnesses to such will.
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However, suchperson so attesting shall be admitted as a witness as
if suchdevise or legacy had not been made or given.
D was convicted of adultery.
- Not all those convicted with adultery is incapacitated to inherit, only those
who committed adultery with the spouse of the testator or those who
committed adultery with the testator are incapacitated.
Relevant provision:
For acts of unworthiness under art. 1032.
Art. 1032. The following are incapable of succeeding byreason of
unworthiness:
(1) Parents who have abandoned their children or inducedtheir
daughters to lead a corrupt or immoral life, orattempted against
their virtue;
(2) Any person who has been convicted of an attemptagainst the
life of the testator, his or her spouse, descendants,or ascendants;
(3) Any person who has accused the testator of a crimefor which
the law prescribes imprisonment for six years ormore, if the
accusation has been found groundless;
(4) Any heir of full age who, having knowledge of theviolent death
of the testator, should fail to report it to an officer of the law within
a month, unless the authorities havealready taken action; this
prohibition shall not apply to caseswherein, according to law, there
is no obligation to make an
accusation;
(5) Any person convicted of adultery or concubinagewith the
spouse of the testator;
(6) Any person who by fraud, violence, intimidation,or undue
influence should cause the testator to make a willor to change one
already made;
(7) Any person who by the same means prevents anotherfrom
making a will, or from revoking one already made,or who
supplants, conceals, or alters the latter’s will;
(8) Any person who falsifies or forges a supposed will of the
decedent.
Q. Sol Devino, a widow passed away leaving 2 legitimate children, a 25 year
old son Santino whom she had not opened to 5 years prior to her death
since he attempted to kill her at that time, a 20 year old daughter Sarah. She
left an estate worth 8M and a will which only contained one provision that
1M should be given to the priest who officiated at my wedding to my
children’s late father. Sarah together with two of her friends acted as an
attesting witness to the will. On the assumption that the will is submitted for
probate and that there are no debts, divide the estate and indicate the heirs,
legatees entitled to inherit, the amount that each of them will inherit and
where should their shares be charged?
A. The freely disposable portion of the estate is 4M which the 1M to be given
to the priest be taken from.
As to Sarah, she acted as one of attesting witness. She will not be
disqualified for she will inherit as a compulsory heir not as a testamentary
heir.
Based on the facts, as to Santi, the attempt to kill the testator will not render
him incapacitated to inherit. To be incapacitated to inherit, there must be a
conviction.
As to the priest, to incapacitate him to inherit, he must be the one who
heard the confession of the testator during the last illness. Based on the
facts he only officiated the wedding.
Priest – 1M will be taken from the free portion
Sarah – 2M from the legitime and 1.5M from the free portion
Santino – 2M from the legitime and 1.5M from the free portion
Q. The husband was granted a decree of legal separation on the ground of
adultery on the part of wife. May the wife inherit from the husband by
intestate succession? By will?
A. No. By intestate succession, the family code is very clear that the guilty
spouse cannot inherit. One of the effect of the decree of legal separation,
the guilty spouse cannot inherit by intestate succession from the innocent
spouse.
If the will was executed prior to the decree, all the provisions in favor of the
guilty spouse are deemed revoked. But if the will was executed after the
decree of legal separation that amounts to condonation, therefore the guilty
spouse can inherit.
Q. Abraham died intestate on January 7, 1994, survived by his son Raullo.
His older son Carlos died on February 14, 1990. Danilo who claims to be an
adulterous child of Carlos intervened in the proceeding for the settlement of
the estate of Abraham in representation of Carlos. Danilo was legally
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adopted on March 17 with the consent of his beloved wife. Can Danilo inherit
from Abraham in representation of father?
A. No. Carlos, as an illegitimate child, he cannot inherit from his grandfather
under the iron curtain rule. But as an adopted child, he likewise cannot
inherit also for adoption creates a legal relationship only between him and
his father and does not go beyond.
Note: Iron curtain rule does not only bar an heir from inheriting by right of
representation, it bars the heir from inheriting.
Relevant provision:
Art. 990. The hereditary rights granted by the two precedingarticles
to illegitimate children shall be transmitted upontheir death to their
descendants, who shall inherit by rightof representation from their
deceased grandparent.
Q. A had 2 sons, one legitimate B, one illegitimate C, who both died in a car
accident. At the time of the accident B was not married but had an
illegitimate son D. C has also an illegitimate son E. Upon learning of the
death of his sons, A suffered a heart attack and died. Can D and E inherit
from A?
A. Yes they will inherit not by right of representation but in their own right.
But between D and E, only E can inherit. D is barred from inheriting by the
iron curtain rule. C being illegitimate and E also an illegitimate, the applicable
rule is art. 990.
Q. Arman died intestate, his full blood brother Patty, Conrad and half blood
brothers Danny, Eduard and Floro all predeceased him. The following are his
surviving relatives. Benny and Bonnie legitimate children of Patty, Cesar
legitimate child of Conrad, Dante illegitimate child of Danny, Ernieadopted
child of Eduard, Percy grandson of Floro. Left an estate of 1.2M. How much
is Dante’s share in the net estate.
A. Dante is the nephew of Arman, who is the illegitimate son of his brother
Danny, but he cannot inherit because of the iron curtain rule.
C. Object of Succession (not usually asked in the bar)
Into the object: Cana person dispose of his corpse through an act inter
vivos?
This is unbelievable for corpse presupposes death while inter vivos means
living so how can you dispose of something while you are living. The answer
here is negative.
D. Opening of Succession [Art. 777]
Succession opens upon death.
Relevant provision:
Art. 777. The rights to the succession are transmittedfrom the
moment of the death of the decedent.
Q. Does on A’s death last year (meaning the year before you take the bar
exam – asked in 1983 BAR exam).Is there a sub keen, where a legitimate
doctor is born in 1995, a spurious son born and recognized by A in 1949.
May the doctor oppose her brother’s claim to their father’s estate on the
ground that will impair her right under the old civil code to succeed to the
exclusion of spurious children?
A. No. It is not about the date of the birth that is relevant as far as the
governing law is concerned but it is the date of the death of the decedent of
the person whose succession is under consideration. A died in 1982, the civil
code is already applicable which considers spurious children as compulsory
heirs.
The requisites for transmission of successional rights are mentioned to
include acceptance of the inheritance, the express will of the testator, or the
provision of the law.
Presumption of death [Articles 390 & 391]
Article 43 / Survivorship Rule [Rule 131, Sec. 3(jj) par. 5
Relevant provisions:
Article 43. If there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first, whoever alleges
the death of one prior to the other, shall prove the same; in the absence of
proof, it is presumed that they died at the same time and there shall be no
transmission of rights from one to the other.
Rule 131. Sec 3
(jj) That except for purposes of succession, when two persons
perish in the same calamity, such as wreck, battle, or conflagration,
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and it is not shown who died first, and there are no particular
circumstances from which it can be inferred, the survivorship is
determined from the probabilities resulting from the strength and
the age of the sexes, according to the following rules:
5. If one be under fifteen or over sixty, and the other between
those ages, the latter is deemed to have survived.
Who survived whom?
Q. Jaime who is 65, and his son Willy who is 25, died in a plane crash.
There is no proof as to who died first. Jaime’s only surviving heir is his wife
Julia, who is also Willy’s mother. Willy’s surviving heirs are his mother, and
his wife Wilma.
a. In the settlement of Jaime’s estate, can Wilma successfully claim
that her late husband Willy had a hereditary share since he was
much younger than his father and therefore presumed to have
survived longer.
- Note: In laws are not legal heirs and not also a compulsory heir.
Wilma’s argument is based on survivorship rule under the rules of
court which has no application at all in settlement of estate.
The applicable rule is art. 43. It is clear from the facts that there is
no proof as to who died first so it will be presumed that they have
died at the same time, therefore Willy cannot inherit from his father,
since there shall be no transmission of rights from one to the other.
b. Suppose Jaime had a life insurance policy with his wife Julia, and his
son Willy as the beneficiary. Can Wilma successfully claim that 1/2 of
the proceeds should belong to Willy.
- Yes, Wilma can successfully claim. Under the survivorship rule,
Willy is deemed to have survived his father.
Note: Under the law of insurance, the beneficiary must survive the
insured so he will be able to claim the proceeds.
II. TESTAMENTARY SUCCESSION (WILLS)
Testamentary presupposes that there is a valid will. But legal or intestate
there may or may not be a will. The will may be void which will result in legal
succession. The will may be valid but not all the properties were disposed of
or maybe the heir to whom a share was given is incapacitated or has
renounced, there is no accretion, so that portion of the estate will have to be
distributed by legal succession.
It is important to know whether there is a will or none, because that will
even if void can be the basis of a claim of an illegitimate child as a
recognition of her being an illegitimate child.
A. Characteristics of Wills
Characteristics
a. Ambulatory act – means at any time can be revoked by the testator
during his lifetime. Dispositions of the will can only take effect upon
death.
b. Formal act–
c. Individual act
Q. Manuel, a Filipino, and his American wife Eleanor executed a
joint will in Boston, Massachusetts when they were residing in said
city. The law of Massachusetts allows the execution of joint will.
Shortly thereafter Eleanor died. Can the said will be probated in the
Philippines for the settlement of her estate?
- Yes, the will can be probated for Eleanor is not a Filipino citizen.
The prohibition in our laws with regards to joint wills applies only to
Filipino testators.
Q. Rick and Josie, Filipinos, have been sweethearts for 5 years while
working in a European country, where the execution of joint will is
allowed. The two of them executed a joint holographic will, where
they named each other as a sole heir of the other in case either of
them dies. Rick died a year later. Can Josie have the joint will
probated here in the Philippines?
- No. Even if the will was executed in a country which allows joint
wills, it cannot be considered as a valid will under the Philippine law
thus cannot be probated.
B. Solemnities of Wills – Kinds of Wills. Arts. 804. 810
As to validity of will, the requirements will includetestamentary capacity
which has 2 aspects - age not less than 18, soundness of the mind
2 kinds of Wills as to form
Page 13 of 28
 1. Ordinary willor notarial will (attested) – not required that it is
typewritten
2. Holographic will (handwritten)
Solemnities of the wills.
Q. Busalsal executed a will in his handwriting, signed by him at the end of
each page on the left marginal space of every page except the last page.
The document bore no date, however below Busalsal’s every signature were
the signatures of two witnesses, who later testified that the will was
executed in their presence on January 1, 1985, New Year’s day and that
Busalsal is in full possession of his faculties at that time and even explained
to them the details of the will. Is the will formally valid?
A. No. Whether this is considered as ordinary will or a holographic will, it is a
void will. As an ordinary will, it failed to comply with the 3 witness
requirement rule. But as a holographic will, it also failed to comply
with the requirement that it has to be dated.
General requirements
- Philippine law does not recognized to this day what is known as a
nuncupative will or orally declared wills.
Relevant provision:
Art. 804. Every will must be in writing and executed ina language or
dialect known to the testator.
Questions regarding specific requirements mostly on ordinary wills
Q. On his death bed, Vicente was executing a will in the room where Carissa,
Carmela, Cornelio and Atty. Cinco a notary public. Suddenly there was a
street brawl which caught Cornelio’s attention prompting him to look out the
window. Cornelio did not see Vicente signed a will. Is the will valid?
- There are large rooms, with posts, even if the witness is inside the same
room but he is not in the a position to see if he wanted to, consistent with
the requirement as discussed by the Supreme Court in the case of Nera vs.
Remando, then signingcannot be considered to have been made in
the presence of each other.
- (Best argument) In the first place the law requires only three witnesses, so
even if the signing by the other witnesses was not in the presence of
Cornelio, there were three other witnesses.
However, if the signing of Carmela, Clarissa and Atty. Cinco was not done in
the presence of Cornelio, Atty. Cinco must not be the notary public before
whom the will was acknowledged otherwise the Cruz vs Villasor
rulingwould apply. If one of the three attesting witnesses was the notary
public before whom the will was acknowledged effectively there would be
failure to comply with three witness requirement because this witness
who is also a notary public cannot act or be considered as a competent
witness because he cannot acknowledge before himself.
But even if Cornelio looked out the window, if he was in a position to see
even if he wanted to see the other side then still the signing by the others
can be considered to be made in his presence therefore the requirement of
the law was complied with.
Relevant provision:
Art. 805. Xxxxxx....... The attestation shall state the number of pages used
uponwhich the will is written, and the fact that the testator signedthe will
and every page thereof, or caused some other personto write his name,
under his express direction, in the presenceof the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in
the presenceof the testator and of one another .
Classic Cruz vs Villasor ruling
Q. The probate of the will of Nicandro is contested on the ground that the
notary public before whom the will was acknowledged was also one of the
three instrumental witnesses. If you are the probate judge how will you
decide the contest?
A. I will deny the probate of the since the notary public before whom the will
was acknowledges is one of the three instrumental witnesses therefore there
was a failure to comply with the three witness requirement.
Q. Then the attestation clause must contain the following, except: C.
a. The number of pages used,
b. Signed or caused another to sign
c. Notary public witnessed andsigned
d. Signed in the presence of each other
Relevant provision:
Art. 806 Every will must be acknowledged before anotary public by
the testator and the witnesses. The notarypublic shall not be
required to retain a copy of the will, orfile another with the office of
the Clerk of Court.
Page 14 of 28
Q. Pepito executed a will, that he and 3 attesting witnesses signed following
the formalities of law except the notary public failed to come. Two days
later, the notary public notarized the will in his law office. Where all the
signatories to the will acknowledged that the testator signed the will in the
presence of the witnesses and that the latter themselves signed the will in
the presence of each other. Was the will validly notarized?
A. Yes. The law does not require that the notary public to be present during
the signing the presence of the signing of the will by the testator and the
witnesses. The law only requires that the testator, and witnesses to
acknowledge before the notary public and it does not have to be done
immediately after the signing.
During the signing, the testator and the witness are of sound mind. But
during the acknowledgment of the will, one of them are of unsound mind.
Can the will be probated?
No. The will cannot be probated. There should be soundness of mind not
only during the signing but also the acknowledgement of the will.
29:10
Based on the case of Javellana:
…. But the notary public failed to sign while the testator and the witnesses
were still present at his office. When the testator was already outside, that
was the only time the notary public signed. Does this affect the validity of
the will?
A: No, the law does not require that the notary public should sign in the
presence of the testator and the witnesses under Article 806.
But, going further, although only an obiter dictum in Javellana, what if the
testator and the witnesses actually acknowledged before the notary public
that this is the will of the testator and decide freely but the notary public
failed to sign, and the documents were returned to the testator who did
notice the lack of signature of the notary public until his death. Would that
affect the validity of the will?
The Supreme Court said no because the law does not require a piece of
paper. What the law requires is that the testator and the witnesses to
acknowledge before the notary public which is an act. What is required is an
act, not a piece of paper or not the evidence of the acknowledgement. (The
correct title is certificate of acknowledgment.) Even if it was not signed, it
can be proven that the testator and the witnesses acknowledged before the
notary public.
HOLOGRAPHIC WILLS
REQUISITES:
̶ The fact that a will is entirely written by the hand is considered to be
the grand characteristic of holographic wills.
̶ Dated – Date is relevant because if it is not dated, we will never
know whether the testator had the testamentary capacity at the time of the
execution of the will. What is required is the month, date and year but the
Supreme Court ruled that month and year may already be enough for it to
be considered as a valid will and there is already substantial compliance.
̶ Signed
Q: What is the possible effect of insertions in holographic wills and may it be
given effect?
Bar Question: Vanessa died April 14, 1980, leaving behind a holographic will
which was entirely written, dated and signed. However, it contains insertions
and cancellations which were not authenticated by her signature. For this
reason, the probate of Vanessa’s will was opposed by her relatives who
stood to inherit by her intestacy. May Vanessa’s holographic will be
probated? Explain.
A: Yes, because the insertions and cancellations were not authenticated by
her signature therefore such insertions cannot be given effect. It is as if
there were no insertions, so it does not affect the validity of the will.
Q: But if there were insertions, is it possible that it will affect the validity of
the will?
A: Yes, the following are the requirements:
1. The insertions were made by a third person.
2. It was authenticated by the testator by his full signature.
Since it was authenticated by the testator’s signature, such insertions will
form part of the will and the will now is no longer written entirely by the
hand of the testator, therefore it will be a void will.
Q: Natividad’s holographic will which had only one substantial provision, as
first written, named Rosa as her sole heir. However, when Gregorio
presented it for probate, it only contained an alteration naming Gregorio as
sole heir but without authentication of Natividad’s signature. Rosa opposes
the probate alleging such lack of proper authentication; she claims that the
unaltered form of the will should be given effect. Whose claim should be
granted?
Can this insertion be given effect?
A: No. Therefore the claim of Gregorio cannot be given effect. Gregorio will
not inherit under the holographic will.
But the claim of Rosa that the unaltered form of the will should be given
effect is also not correct because there was a revocation by cancellation.
Upon cancellation of her name, the testator already revoked the disposition
Page 15 of 28
in her favor thus; the original intention of the testator cannot be given effect
as there was revocation.
In other words, none of them will inherit from the holographic will.
Q: Steve was born blind; he went to school for the blind, he learned to read
in blind language and can speak English fluently. Can he make a will?
A: Yes. The law even provides for a specific rule in relation to wills executed
by blind persons such that the will must be read to them twice, so they can
make a will.
Q: Can a blind person execute a holographic will?
A: Yes because not all blind persons were blind since birth. Some would be
blind only because of accidents so they know how to read and write. But
even those who were blind since birth, they still learn to write. If the will was
an ordinary will, it should be read to him twice but if it is a holographic will,
the law does not provide for such requirement since it was himself who
wrote such will.
Q: Can he act as a witness to a will?
A: No. Because one of the requirements for a witness or for one to be
considered as a competent witnessis that he must not be blind, deaf, mute,
etc.
Revocation presupposes a valid act or will. If the will is void, there is nothing
to revoke. But it is not necessarily an act of the testator because there is a
revocation by implication of law. Revocation does not only take place during
the lifetime of the testator. If it was the testator who revoked, thus it was
revoked during his lifetime. Revocation by implication of law can happen
after the death of the testator.
If an heir committed an act of unworthiness under Article 1032 which was
committed after the death of the testator, example, he concealed the will of
the testator, it would result in the revocation of the dispositions in his favor
because such was an act of unworthiness which would result in revocation
by implication of law.
MODES OF REVOCATION:
̶ Implication of law
̶ By the execution of a subsequent will, codicil or other writing
̶ Destruction – burning, tearing, cancelling, obliterating
A disposition in favor of an heir is revoked by implication of law if by fraud;
he prevented the decedent from revoking the will because this constitutes an
act of unworthiness.
If he was convicted of a crime, it will not necessarily be considered as act of
unworthiness, it depends upon the crime committed and the circumstances.
If he or she is guilty of adultery or concubinage, it will not also necessarily be
considered as an act of unworthiness because it would depend with whom
the act was committed.
If he accused the testator of a crime, it would not be considered as an act of
unworthiness if the requisites are not present such that the accusation is
groundless.
Q: In the will of X, he gave to A a credit in the amount of 1M, this legacy is
deemed revoked if X files an action against the debtor for the collection.
What is the legacy called in this case?
A: It depends if who has the debt. If the debtor is a third person and he
gives this to his heir or a legatee, this is called a legacy of credit. If the
debtor is the legatee, that is called legacy of waiver of credit which will take
effect upon death.
Q: Mr. Reyes executed a will completely valid as to form. A week later,
however, he executed another will which expressly revoked his first will,
following which, he tore his first will into pieces. Upon the death of Mr.
Reyes, his second will was presented for probate by his heirs but it was
denied probate due to formal defects. Assuming that a copy of a first will is
available, may it now be admitted to probate and be given effect?
Molo vs Molo: The revocation by the execution of a subsequent instrument
will only take effect if the second instrument is probated. If it is denied
probate, it is as if there is no revocation, therefore the first will may be given
effect.
A: But in the present situation, the first will cannot be admitted to probate
because there was a revocation by destruction. There was no revocation by
execution of a subsequent instrument here because the second instrument
was void as it was denied probate, but there is revocation by destruction as
the facts state that he tore his first will into pieces. The first will cannot be
given effect because of such mode of revocation.
For the presumption of revocation to arise, all of these requirements should
be present: upon the death of the testator, the will could not be found
despite diligent efforts and it was last seen in the hands of the testator.
However, this is only a disputable presumption.
DOCTRINE OF DEPENDENT RELATIVE REVOCATION
Q: Cindy, during her lifetime, was a successful lawyer. By her own choice,
she remained unmarried and devoted all her time to taking care of her
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nephew and 2 nieces, Socrates, Safina and Sofia. She wrote a will giving all
her properties remaining upon her death to the three of them. The will was
submitted to probate during her lifetime. Later, she decided to make new will
giving all her remaining properties only to the two girls. She then tore up the
previously probated will; the second will was presented for probate only after
her death however the probate court found the second will to be void for
failure to comply with the formal requirements. Will the doctrine of
dependent relative revocation apply?
Under this doctrine, it is said that the testator would not have revoked the
first will had he known the second will would be void. Thus if the second will
was considered as void, the first will should be given effect.
A: In this scenario, the doctrine of dependent relative revocation does not
apply. It is clear that the testator does not want Socrates to inherit, because
not only she executed another will, she also tore up the previously probated
will, and she never really intended that the original will be given effect even
if the second will be declared void. Therefore, the doctrine of dependent
relative revocation does not apply.
Q: But will your answer be the same if the second will was found to be valid,
but both the girls renounced their inheritance?
A: It will be the same answer. This is an expressed provision of the law,
Article 832, that the revocation of a prior will by a subsequent will will be
effective even if the heirs in the subsequent will will renounce or be
incapacited because renunciation does not affect the validity of the will. This
does not mean that the testator would want her first will to be given effect.
PURPOSE OF PROBATE OR ALLOWANCE OF WILL
The purpose is that because a voluntary heir will never inherit as such kind
of heir without the will having been probated. If you are given a car in the
will, you cannot inherit such car unless the will is probated and the basis is
Article 838, which provides that no will shall pass, either real or personal,
unless it proved and allowed in accordance with the Rules of Court. This is
the purpose of probate, unless you are a compulsory heir.
Q: What are the only questions which a probate court can determine?
A: When a probate court assumes jurisdiction, it should go to the
genuineness and authenticity of the will such as if it is the will of the
decedent. Thereafter, go to the testamentary capacity. Then, go into the
solemnities or formalities like if there is compliance with the requirements of
a holographic or ordinary will. After, go into the due execution like if there is
fraud, undue influence, etc. Then, you should go into the animus testandi or
the intent to dispose of his properties to take effect upon death. These are
the aspects which should be inquired by the probate court in relation to
allowance of wills. In other words, probate goes into the extrinsic validity of
the wills, not into the intrinsic validity or to its dispositions.
Q: Maria to spite his husband Jorge, whom she suspected of having an affair
with another woman, executed a will unknown to him; bequeathing all the
properties she inherited from her parents to her sister, Mikaela. Upon her
death, the will was presented for probate. Jorge opposed the probate of the
will on the ground that the will was executed by his wife without his
knowledge much less his consent and that deprived him of his legitime. After
all, he had given her no cost for disinheritance, added Jorge in his
opposition. How would you rule on Jorge’s opposition to the probate of
Maria’s will, if you were the judge?
A: I will rule against Jorge because his claim that he was deprived of his
legitime has no basis. It is clear from the facts that what Maria bequeathed
was only the properties she inherited from her parents. But since this is a
probate proceeding and as a rule, probate courts should inquire only into the
extrinsic validity, and this case goes into the intrinsic validity of the
disposition of the will, thus, this matter is not covered by the jurisdiction of a
probate court.
TN: Exceptionally, the trial court may be allowed to go into the intrinsic
validity of the will during a probate proceeding if the will on its face is void.
ALLOWANCE
MODES:
̶ Ante mortem Probate – even before death, the will may be
probated.
CONTESTED WILLS
Q: If a holographic will is contested because the genuineness of the
handwriting is being questioned, the Code requires 3 witnesses to testify as
to the handwriting. Is the requirement mandatory? If only 2witnesses who
know the handwriting were presented, can the will be probated?
A: In one case, the Supreme Court ruled that this is not mandatory but is
only a permissive requirement. If only one witness was presented, the will
can still be probated for example in case the witness presented was an
expert witness. Another reason why the 3-witness requirement is not
mandatory is because of the very nature of a probate proceeding such that
upon filing of the petition, most witnesses would already have died.
TN: If this is about the soundness of the mind, do not use the word
contested, here, you oppose the probate but not contest.
LOST OR DESTROYED WILLS
There is no issue if it is an ordinary will because if an ordinary will is lost or
destroyed, even an oral testimony would be sufficient to prove the due
execution and the contents of the will.
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Q: Johnny, with no known living relatives, executed a notarial will
giving all his estate to his sweetheart. One day, he had a serious
altercation with his sweetheart. A few days later, he was
introduced to a charming lady who later became a dear friend. Soon
after, he executed a holographic will expressly revoking the
notarial will and so designating his new friend as sole heir. One
day, when he was clearing up his desk, Johnny mistakenly burned,
along with other papers, the only copy of his holographic will. His
business associate, Eduardo, knew the contents of the will which
was shown to him by Johnny on the day it was executed. A few
days after the burning incident, Johnny died. Both wills were
sought to be probated in two separate petitions, will either or both
petitions prosper?
A: The second will or the holographic will was mistakenly burned and was
the only copy. Since it was only mistakenly burned, there was no revocation
by destruction because there was no intention to revoke. Since it was not
validly revoked, does it mean that the petition for the probate of the
holographic will will prosper? No, as far as holographic wills are concerned,
the will itself must be presented, because that is the only basis for the court
to determine whether it is exactly the handwriting of the testator.
TN: However, in one case, it was provided in its footnote that a photostatic
copy of the will will be sufficient for the probate of a holographic will. And in
a subsequent case, such footnote was applied and probate was allowed by
only presenting a photostatic copy of the will. This would open the gate for
fraud, but since there are no other decisions, this decision still stands.
In the present situation, since the revocatory clause in the holographic will
cannot be given effect as the holographic will cannot be probated, therefore,
the petition for the probate of the first will may prosper, as if there was no
revocation.
GROUNDS FOR THE DISALLOWANCE OF WILLS
Q: What are the grounds for disallowance? Is it exclusive? Or are there any
grounds for disallowance which is not mentioned in Article 839?
A: Article 839. Example: If the testator is a 15 year old, is it mentioned in
Article 839? No but it falls under the second paragraph under mentally
incapable.
Q: If the will had already been revoked by the testator, can it be probated?
A: No. Revocation is not mentioned in Article 839.
TN: The enumeration in Article 839 is exclusive. Revocation is not a ground
for the disallowance of wills; rather it is a ground for the dismissal of the
petition. In other words, there are jurisdictional requirements for the probate
court to assume jurisdiction, one of which is that the will was not revoked.
Other jurisdictional requirements are death certificate or proof of death if
post-mortem probate. If the court already assumes jurisdiction, the grounds
in Article 839 will be the only grounds for the disallowance of the wills,
including the formalities, mentally incapable, etc.
PRINCIPLES AFFECTING LEGITIME
Preterition- protects the legitime. If the heir is preterited, he will still inherit.
ReservaTrocal– qualifies the heir’s right or claim to his legitime. Qualifies
because ordinarily, if the property is owned by the decedent, it would be
given to his heir upon his death, but it would not happen if such property is
a reservable property.
Disinheritance – it deprives the heir’s share in the whole estate if the
disinheritance is valid.
PRETERITION
It is the omission in the testator’s will of one, some or all of the compulsory
heirs in the direct line whether living at the time of the execution of the will
or born after the death.
TN: Even if an heir was not mentioned in the will, he may not have been
preterited. Or even if he was mentioned in the will, he may have been
preterited.
Q: Even if he was not mentioned or omitted in the will, when will he not be
preterited?
̶ If not all the properties were disposed of. If there are still properties
left, such properties may have been intended for the preterited heir.
However, if the value of the property is still less than your legitime, the
available remedy is completion of the legitime but not preterition or
annulment of an institution of an heir.
̶ If the heir has already received so many during the lifetime of the
testator.
Therefore, preterition is the total omission of a compulsory heir in the direct
line from the inheritance. If there is no will or if the will is void, there is no
preterition. But if there was a valid will and the heir was omitted from such
will, it does not necessarily mean that there was preterition or such heir was
preterited.
“Compulsory heir in the direct line” – therefore, spouses cannot be preterited
because they are not heirs in the direct line.
Q: Can an illegitimate child be preterited?
A: Yes, because he is a compulsory heir in the direct line.
Q: What is the effect of preterition?
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̶ The effect of preterition under the Civil Code is that it would result in
the annulment of the institution of an heir respecting the legacies and
devisees as long as they are not inofficious.
Effect – annulment of the entire institution
̶ In preterition, may the preterited heir be entitled to a share in the
inheritance which is more than his legitime?
Yes. Example:Estate –
TN: However, in one case where there was preterition of an illegitimate
child, the Supreme Court ruled that the effect of preterition in this case is the
annulment of the institution of an heir but only to the extent of the legitime
of the illegitimate child.
̶ If his legitime is ¼ and the institution only pertains to 1/8 because
some portions of the estate were given by way of legacy and devise, there
will be an annulment of institution of a legacy and devise in order to
complete his ¼ legitime, to the extent that these legacies and devisees are
inofficious.
Q: What are the requisites of preterition?
1. There must be a valid will.
2. Must have disposed all the properties.
3. Heir is a compulsory heir in the direct line.
4. Did not receive a donation.
5. Heir must not have been disinherited. Because preterition and
disinheritance have different effect. Disinheritance is intentional while
preterition is supposed to be by omission.
Q: Because her eldest son Juan had been pestering her for capital to start a
business, Josefa gave him 100,000. 5 years later, Josefa died, leaving a last
will and testament instituting only her younger children as her sole heirs. At
the time of her death, her only property left was 900,000 in a bank. Juan
opposed the will on the ground of preterition. How should Josefa’s estate be
divided among the heirs? State briefly the reasons.
A: Address first the claim of Juan that he was preterited, because if he is
really preterited, the institution of the four younger children would be
annulled and therefore, the estate should be distributed by legal succession
or be divided equally among them.
Under the circumstances, Juan was not preterited because he already
received 100,000 during the lifetime of Josefa.
First, in order to determine the legitime, there should be collation, thus the
distributable estate is 1M. Since there was no preterition, you will only check
if what was given to Juan which is 100,000, already covers his legitime,
because if it already covers his legitime, there is no need to give him more.
But if it is less than his legitime, the remedy is completion of his legitime.
The legitime of each child is 100,000, thus what Juan received is already
sufficient to cover his legitime and there is no need to give him more. The
remaining estate of 900,000 must be divided equally among the four
younger children or 225,000 per child.
TN: Under the rules on institution of heirs, if there is no designation by the
testator as to their respective share, they will share equally.
RESERVA TRONCAL
Reservatroncal is also known as reserva lineal. The Code Commission, who
contracted the Civil Code of the Philippines, actually eliminated all the forms
of reservations, consistent with the philosophy which guided the Commission
which is socialization of ownership. But the Congress, who had to approve
the Code, deemed it wise to include back reservatroncal.
Q: What is the reason or rationale of reservatroncal?
A: This is to reserve or to entail a certain property within the family.
Q: May the reservor or reservista dispose of the reservable property by acts
inter vivos or by acts mortis causa?
A: By acts of inter vivos – Yes because the recent decision of the Supreme
Court would consider the reservista to have acquired ownership over the
reservable property and as the owner, he has the right to dispose of the
property but subject to the rights of the reservatarios to recover the property
if the buyer, for example, is a buyer in bad faith.
By acts mortis causa – Ordinarily no because such property will not form part
of the estate of the reservista because upon his or her death, it will go
directly to the reservatarios, unless there is no reservatarios who survived or
is alive or if they predeceased or is incapacitated or has renounced.
RULES IN RESERVA TRONCAL
TN:
̵ Origin – the origin or source of the property. The property should be
a determinate property.
̵ Prepositous
̵ Reservista or reservor
̵ Reservatarios or the reservees
Example:
X – Origin – Determinate property
The property was acquired by gratuitous title by a descendant or brother or
sister.
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TN: The law only requires by gratuitous title, thus the origin need not die
because it can be a donation.
Upon acquisition of the descendant or brother or sister, there is no
reservation yet. Such descendant or brother or sister becomes the absolute
owner thus he or she can do anything he or she wants. But the moment that
descendant or brother or sister dies, and the property was acquired by an
ascendant by operation of law, the reservation starts.
Upon the start of reservation, the descendant or brother or sister may now
be called the prepositous and the ascendant as reservista.
Q: If the descendant or brother or sister has children, can there still be
reservation?
A: Yes, because even if they have children, if such children were
incapacitated or has predeceased or has renounced, then the property will
still go to the ascendant by operation of law. So it is not necessary that the
descendant or brother or sister (prepositous) has no children; it is only
required that the property was acquired by an ascendant by operation of
law.
Ordinarily, if there are 2 persons who died one at a time or one after
another, and there is only 1 property involved which is passed upon, there is
about 65% possibility that there is reservation. But if there are already 3
persons who died, it is about 95% that there is reservation. So, from origin,
property goes to the descendant, and then upon descendant’s death, the
property will then go to the ascendant. Upon the ascendant’s death, the
issue will be who will be considered as reservatarios.
2016 Bar Question: Upon the death of the reservatarios, where did the
property go or who inherited the property?
Q: 2 qualifications or requirements in order for one to be considered as a
reservatario or reservee:
̵ He must be within 3 degrees from the prepositous, not from the
reservista.Because the reservista’s role is to only to reserve, it is the
prepositous who was the true owner or has the absolute ownership over the
property.
Although the reservista acquires ownership, such ownership is not absolute,
rather it is only a conditional ownership because upon his death, it will be
terminated and it will not form part of his estate but it will go to the
reservatarios.
̵ He must be within or from the direct line of the origin.
Q: Can there be 12 heirs who are all qualified as reservatarios, such that
they are within 3 degrees and from the direct line?
A: Yes, but can all of them be considered as reservatarios at the same time?
No, because we follow the rules on intestate succession such as the
proximity rule, etc. in order to determine who among the reservatarioswould
actually inherit.
Q: Reserva Integral - In ReservaTroncal, all reservatarios inherit as a class
and in equal shares regardless of their proximity. – FALSE
We do not adhere to the concept or principle of reservaintegral; rather, we
follow the rules on intestate succession.
Problem: Mr. Luna died leaving an estate ofPhp 10M, his widow gave birth to
a child four months after Mr. Luna’s death, but the child died five hours after
birth. Two days after the child’s death the widow of Mr. Luna also died
because she suffered from difficult child birth. The estate is now being
claimed by his (Mr. Luna) parents and the parents of his widow. Who is
entitled to Mr. Luna’s estate and why?
A common error in answering this question pertains to the claim that the
parents of the widow will not have a share in the estate of Mr. Luna because
they are not the parents of Mr. Luna. That is correct that they are not the
parents of Mr. Luna but you were not asked who will inherit from Mr. Luna.
The question is who is entitled to Mr. Luna’s estate.
In other words, someone may be entitled not because he inherited directly
from Mr. Luna but he may have inherited from a person who inherited from
Mr. Luna. So angpinagmanahanniya ay napagmanahanni Mr. Luna. That is
possible, okay?
If two have died, there may be reservatroncal. But if three died, there is 95
percent chance that there is reservatroncal. If there is reservatroncal, the
answer to the question it depends. The question who is entitled to Mr. Luna’s
estate, the answer is the same regardless of the circumstances.
The issue which you have to resolve first pertains to the fact that Mrs. Luna
gave birth to this child four months after Mr. Luna’s death and the child died
five hours after birth. In other words, we submit therefore that the child has
an intra-uterine life of less than 7 months, not necessarily, it depends on the
intra uterine life of the child if the child while born only four months after Mr.
Luna’s death, the child may have been five months old at the time of the
death. That is why at the time of his birth, he was nine months old, more
than 7 months ang intra-uterine life, it doesn’t matter if five hours after birth
he died. He would already be considered to have inherited.
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But the easy scenario is, he could have been six months old only, the child
would not inherit, not having a juridical personality. In that case, the spouse
and the parent will inherit. If you remember the legitime of the parent is
actually one-half, the legitime of the spouse is one-fourth, during intestate
succession that would be one-half:one-half.
But you don’t stop at that because the wife died. In that case, the share of
the wife goes to her parents. Effectively the sharing is: fifty percent goes to
the parents of Mr. Luna while the other fifty percent goes to the parents of
Mrs. Luna. The estate of Mr. Luna is being claimed by his parents and the
parents of his widow.
If the child had an intra-uterine life of at least7 months, since he had already
inherited, yung estate ni Mr. Luna would be inherited by the Mrs. and the
child, excluded the parents. That would be fifty percent Mrs. Luna and fifty
percent to the child.
But after the child died, naunanamatayyungbata, whatever the child
inherited, will be inherited by whom? By Mrs. Luna. By proximity rule, the
parents of Mr. Luna will be excluded by Mrs. Luna. So everything goes to
Mrs. Luna. When Mrs. Luna died, did 100% of the inherited property goes to
her parents? No. This time, the fifty percent inherited by Mrs. Luna is a
reservable property. The other fifty percent was really hers because she
inherited it as her legitime. There is no reservation there. So when she died,
fifty percent goes to her parents. But the one she inherited from the
childcame from the ascendant and it was acquired by ascendant through
gratuitous title. When the child died, it was acquired by ascendant by
operation of law. So the reservation started already.
That is why when the reservista died, it goes to the reservatario, not to her
own heirs okay? And the reservatarios under the circumstances are the
parents of Mr. Luna who are from the other line of Mr. Luna within three
degrees from the prepositous. That is why from the line of Mr. Luna, the fifty
percent he inherited from the child goes to the parents of Mr. Luna.
Whatever happens, fifty-fifty anglabanandyan.Pero for a few days,
napuntamunakay Mrs. Luna, dumaanmunakay Mrs. Luna. Answer to the
question is: 5 million; 5 million
Scenario: (Drawing)
The property came from H2. E and H2 are siblings. A and B are their
parents. H2 and R are husband and wife. H1 is the first wife of R. C and D
are R’s parents and F is R’s sibling. (Somewhere in the drawing has siblings
within the same line, grandchildren, great-grandchildren and so on;
somewhere in the scenario exists PX and L, N, E, Z, J, Q)
What if property of H2 was acquired PX by operation of law, let’s say, H2
predeceased so somehow the property was inherited by PX. But PX may
have died also thereafter, and the property was inherited by R. Perhaps PX
renounced, pretireted or disinherited, so the property went to R and the
reservation started.
Question: May L inherit as a reservatario from this reservable property?
L is within three degrees from the prepositousbecause he is a brother/sister
of PX, half-brother or half-sister ngalang. But is he a reservatario? No.
Because he does not come from the line of the origin. He is not in the line of
H2. He is a child of another person. That is why he cannot inherit because
he is not a reservatariio.
Can N inherit? The answer is no. Because inreservatroncal, only legitimate
relations are allowed. Highest preferred rule(?) applied in this scenario.
This time, what if E and Z only survived. E is the uncle or auntie of PX, so
three degrees from PX. Z is a niece of PX from a sibling. Both are three
degrees. Can both inherit? No. Both of them are from the line of H2. Both of
them are three degrees. But, as I said earlier, in reservatroncal, we follow
the rule on intestate succession.
In Article 100, the nephews and nieces would exclude the uncles and nieces,
collateral line. Before uncles and aunties can inherit, the inheritance would
go first to nephews and nieces. In the absence of nephews and nieces,
uncles and aunties could inherit. (Which I think has wisdom.
Sadalawasinoang mas nangangailangan? Feel koangmga nephews and
nieces. Angmga uncles and aunties kaya nanilangmabuhay mag-isa,
tumayosasarilingpaa. Kaya they will be excluded by nephews and nieces.)
However, on the other hand, J and Q only survived when R, the reservista,
died. Who will inherit?
One of them is in two degrees, the other one three degrees. But both of
them will inherit. Because Q could inherit by right of representation. J will
inherit in his own right since he is a sibling
Finally, if only Q and P survived, Q is three degrees, P is four degrees, the
two of them all came from the line of H2. Who will inherit? Si P is already
four degrees and the law says it must be within three degrees. Nevertheless,
he can claim that he can inherit by right of representation so he can be three
degrees. But is that tenable? No. Because in the intestate succession, in the
collateral line, right of representation extends only to the children of brothers
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and sisters. Only to that extent. The grandchildren of the sibling has no right
to representation in the collateral line. Only the child/children of the sibling
can claim the right to representation.
In the descending line or in the direct line, there is no limit on the right to
representation, as long as he/she was living at the time of opening of
succession, he can exercise right of representation.
Take note, to be a reservatario, does the law require that he should be living
at the time of death of prepositous? No. In the first place, when the
prepositous dies, it was the only time reservation would start. As long as
already living at the time of death of reservista, he is already a reservatario.
DISINHERITANCE
Problem: X’s only living relatives are his brothers A and B. X executed a will,
provided as follows:
I institute my brother A as my sole and universal heir and I am
disinheriting my brother B because he refused to support me when I
have nothing. After X’s demise, is B entitled to share in the
inheritance on the ground that the disinheritance was ineffective on
the fact that X was not able to prove that B refuse to support the
testator?
Question, if an heir is not a compulsory heir, can he be disinherited? The
answer is yes. If compulsory heirs can be disinherited, the more are those
who are not compulsory heirs. Of course the law would say that compulsory
heirs can be deprived of their right to their legitimebecause they are the
ones who has a legitime. But the brothers and sisters they can be deprived
in the share of the inheritance even though they do not havelegitime, if the
testator intends so.
The grounds for disinheritance pertains only to compulsory heirs, nothing in
the law pertains on way to disinherit brother and sisters. Only wife, parents
and ascendants, children and descendants. SO what are the grounds to
disinherit brothers? Answer: Anything. Even none. Because they are not
compulsory heirs.
The grounds mentioned in the law for disinheritance are meant to protect
compulsory heirs. They are exclusive grounds, you cannot invoke any other
grounds beised what was written in the law in order to disinherit a
compulsory heir.
Therefore is he is not a compulsory heir, he has no protection, so he can
simply not be given an inheritance.
Professor Tolentino is correct: even legal heirs or not compulsorycan be
validly disinherited.
In order to deprive an heir who is not a compulsory heir, the law does not
require a ground. As long as the testator does not want this heir not to
inherit then he cannot have a share.
(In the will of Termencita Madrigal, if you know her, she died about seven to
eight years ago and she probably is one of the richest who died in this
country. Example ng kayamananniya may bahaysyasa Forbes Park, dun
sabahaynya may napakalaking wall at dun sa wall nayun may painting
niBotong Francisco who is a national artist. Alamniyomagkano para linisinang
painting? Angpagbayadlangnamansapaglilinis ay Php 4M.
At any rate, in her will malinaw; no will beyond three degrees will have a
share in my inheritance. In other words hanggang pamangkin lang ang
pwedeng magmana sa kanya kasi wala syang sariling anak.)
When it comes to disinheritance, you have to remember that there can be no
valid disinheritance without a valid will.
But do not confuse. If the will is void, the disinheritance is void. Legal
succession.
If the will is valid, there can be two scenarios:
a. valid disinheritance
b. imperfect disinheritance.
(This time I will not advise you to use void disinheritance.
Kasinacoconfuseang void disinheritance sa void will.)
If valid disinheritance, zero, the heir would get nothing at all.
If imperfect disinheritance, the effect will be annulment of instiution of an
heir to the extent that the disinherited heir prejudiced respecting the legacies
and devices as long as they are not inofficious.
The difference of it to preterition is that inpreterition, the annulment is
always total. In here, the annulment was only to the extent that the
disinherited heir is prejudiced.
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What does it mean‘to the extent the heir is prejudiced’? Is it possible that the
heir can inherit more than his legitime? (Tolentino would claim Yes. Me, just
like other author, hanggang legitime langsiya. Buti nga makakakuha pa sya.
Ang intension ng testator zero sya, nagkataon lang na imperfect ang
disinheritance which will not give him more than his legitime. So
angnakalagaylang to the extent that the heir was prejudiced. So tingin ko
consistent dyan ang ibigay mo lang sa kanya yung kanyang legitime.)
Example: the institution is up to one-half but imperfectly disinherited and
you only give ¼ his legitimeand the other ¼ you give it to instituted heir. In
here, there is an imperfect disinheritance. The instituted heir can still inherit
whatever is left in the institution. Unlike in preterition, the instituted heir is
always zero.
When would there be Imperfect Disinheritance?
1. There was no ground mentioned in the will. Walalang trip langni
testator magdisinherit. Walang ground kungbakit. (Lololol)
2. There was a ground to disinherit but it was not among those allowed
by law
3. Testator mentioned the grounds or it was one of the grounds (under
the law) but when questioned by the heirs it was not proven to be
true.
In these three scenarios, it will be called an imperfect disinheritance. Without
specification of the cause, or if the cause specified in the will is not one of
those set forth or for a cause the truth of which is not proven.
Example: Arthur executed a will contained only a provision disinheriting his
daughter for running off with a married man. Was the disinheritance valid?
His ground was: for running off with a married man. Is this one of the
grounds provided by law? Anong masamasa ginawa ni daughter, nakipag
jogging lang naman sya sa may asawa (HAHAHAHAH) Actually, that appears
to be covered by living a dishonorable and disgraceful life. I think the
Supreme Court will consider that as covered by living a disgraceful life so this
is a valid disinheritance.
Another example: Mr. Palma, a widower, has three daughters. He executes a
will disinheriting DD because she married a man he did not like and
instituting D1 and D2 as heirs in his entire estate of 1M. Upon Mr. Palma’s
death how should his estate be divided?
This is a classic example of an imperfect disinheritance because the ground
relied upon to disinherit a compulsory heir is not one of the grounds
provided by law. Just because he did not like the man his daughter married,
it is not included in the grounds.
What is the effect?
Answer: It would result in the annulment of institution of an heir to the
extent that the heir is prejudiced. In here, there is only one. No other
disposition. Institution of an heir of two daughters to the entire estate.
Therefore the only thing that shall be done is for to give the daughter her
legitime. So 1M divided by 2, is 500k. But this 500k must be divided among
three daughters in order to get the legitime. Thus, the legitime of each f
them is 166,667k. That is why, out of the 1M, you subtract 166,167k and
give it to D who was imperfectly disinherited. The balance which is about
800k plus would have to be divided equally between D1 and D2. More or less
415k each. That will be the division of the estate.
Question: Jose and Ana are husband and wife. On January 10, 1980, Jose
learned that Ana was having illicit relationship with Juan. In fact, Jose
personally saw his wife and Juan leaving a motel on one occasion. Despite
the evidence he has at hand, Jose did not bring any action for legal
separation against Ana. Instead, Jose simply prepared a will wherein he
disinherited Ana for her acts of infidelity. The validity of the disinheritance
was questioned by Ana upon Jose’s death. If you are the judge how would
resolve this question?
In the first place, if the only proof of the illicit relation or alleged infidelity is
the fact that he saw these people leaving a motel, is that a sufficient proof?
The situation is telling us that meron illicit relationship. Do not anymore
question it. Go directly to the question: the validity of the disinheritance.
Take note that she did not file for petition for legal separation. So can there
be a valid disinheritance despite the fact she did not file a separate action for
legal separation?
Answer : Yes. One of the grounds for the disinheritance of a spouse is that
the spouse GIVE CAUSE for a legal separation. As long as she gave cause or
he gave cause, he/she can be disinherited. There is no need to file a case. If
there is a decree of legal separation, there is no need to disinherit because
the decree has an automatic effect which is: the guilty spouse cannot inherit
by intestate succession. In fact those wills which has a disposition/ provisions
in favor of a guilty spouse are revoked by operation of law. In this case, it
will be resolved in favor of the husband.
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(Advice: If there is disinheritance but the will is declared void, the heir who
was disinherited will not necessarily inherit. Because if you notice the
grounds to disinherit, most of them are acts of unworthiness and therefore
the heir will not inherit not because he was disinherited but because he was
incapacitated or because he committed an act of unworthiness. Medyo may
pagkaweird ang batas because hindi naman sya magmamana because he
already committed an act of ingratitude. Why would it still be included as
ground to disinherit? Parang double jeopardy naito. Pero I think there is
wisdom in the law kasi nga ang mga Pinoy medaling makalimot. Kaya kung
ikaw ayaw mo talagang magmana ang isang tao, ay idisinherit mo. Dahil if
even if everyone died ahead of you pagangnakasulat ay disinherited ay
walang magagawa kundi sundin ito. There are certain grounds, like to
disinherit parents, like lost parental authority. Hindi naman. Halimbawa, if a
child reaches the age of majority, sasabihin niya, dahil 18 na ako, I will
disinherit my parents, kasi my parents already lost parental authority. Hindi
ganun.)
PRINCIPLES TO DISPOSE FREE DISPOSABLE PORTION
Kinds of Institution
a. Simple/Pure
b. Conditional
c. Without term
d. Modal
If you remember in ObliCon, the only difference is in modal. Basically the
rules are the same.
Simple/Pure. Example. I give my car to A. That’s pure, no other stipulation
whatsoever.
Conditional. Common bar Exam question: I hereby give 100M to my wife if
she will not remarry. Example of Resolutory condition in a will.
Note: In conditional testamentary dispositions, even if at the time of the
opening of succession the heir still has capacity to succeed, but at the time
of fulfillment of condition he has no capacity to succeed, he cannot inherit
any more.
In other words, our law requires that they should not only have the capacity
to succeed at the time of the opening of succession, he should also have,
still have, the capacity to succeed at the time of fulfillment of condition. That
is why if at the time of fulfillment he is already dead, he cannot anymore
inherit. Subsequently, his heirs cannot inherit as well and will get nothing.
With a term. Common example: Until heir reaches the age of 18.
Question: Testator died andhis heir, A, is still 15 years old. A, the heir, died
at 16 years old. Would the heirs of A inherit what was given to A?
Answer: Yes. A was still alive at the time opening of succession which vested
him the rights following Article 606. This is a provision in usufruct. Unless it
is clear in the will that he should still be alive until he was 18. If the
condition is that clear that he must be alive until 18 and he did not make it
to 18 years old, he cannot inherit.
Modal. It would be a modal institution if there is a corpo, there is an object,
there is a charge to this disposition. In other words, there is something to be
done by the heir. Example: I will give you a rice field but every year you will
give 100 cavans of rice to my other heirs. That is modal.
Example: In his will the testator designated P to receive 2 million for the
purpose of buying an ambulance that the residents of his barangay can use.
What kind of institution is this? Modal. In a way, you were just commanded
to do something.
If there is doubt if the disposition is a mode or a condition, it should be
treated merely as a mode. In a way a condition is stricter than a mode. If
the condition is suspensive, the heir will not inherit if the condition is not
fulfilled. But in modal, when the testator dies, the heir will immediately
inherit.
In other words, in a modal institution, the mode does not suspend but it
obligates. But the condition, it does not obligate but it suspends. Until one
has fulfilled what was commanded by the testator, one cannot inherit.
SUBSTITUTION
Four kinds:
a. Simple/Common/Vulgar (i.e, if A dies, B will inherit)
b. Breave?/Compendious/Compendiosa
c. Reciprocal or Mutual
d. Fidei Commissary
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Other authors, practically, for them there are only two kinds: Simple and
Fidei Commissary. These bridge and reciprocal are just variations of simple.
Compendiosa. Example. If A is the instituted heir, si B ang substitute,
that’s simple. But let’s say A is the first heir but he has two substitutes, B
and C, this is what you call compendiosa. It is also the same when there are
two instituted heirs and one is substituted. That would also be compendious.
Mutual. There are two who are mutually instituted. Or there can be three
and reciprocally instituted.
But when would a substitute inherit? If the testator predecease, would the
substitute inherit? Not necessarily.
There are three possible reasons that a substitute can inherit.
a. Predeceased by the first heir
b. Incapacitated
c. Renounced
Say, the testator has written a specific ground or whatever reason he
wanted. If he only wanted the ground to be predeceased and the heir
renounced instead. Would the substitute inherit? No. Because the ground
that happened is not what was contemplated by the testator.
If the testator did not specify what ground of substation, any of the three
would be sufficient.
But of the four classes of substitution the most common asked in the bar is
the fidei commissary.
Now in fidei commissary substitution, if you remember the definition of
substitution, this is not covered by the substitution. Because in the definition,
in order to have substitution, the first heir must be in default. But in fidei
commissary substitution, the first heir will not be in default. The first heir
inherits. But the first heir only inherits as a usufructuary. He does not inherit
absolute ownership because it will be transferred to the second heir. The
second heir, third, fourth or fifth are the ones who will inherit absolutely.
Fideicommissary substitution, requisites:
Consider the nature, the characteristics and the different limitations imposed
by law
If you remember, in a fidei commissary, the first heir and the substitute,
must only be one degree remove from each other. (In other words, mag-
amasila o mag-ina. Hindi pwedenaang substitute ay apo. Hindi yan valid
substitution.)
The law also mandates that the first heir must be instructed to transfer the
property to the second heir. Question, when?
If the testator did not specify when, then upon his death. That is why it is
possible that the property stars with the first heir for a long time as a
usufructuary.
Can there be 3, 5, 7, 20 second heirs? Yes. As long as all of them are one
degree remove from the fiduciary. Only one heir inherits is not a limitation in
fidei commissary. There can be many heirs that will inherit in fidei
commissary.
Limitations:
a. That the second heir must only be one degree
b. That the first heir is charged with the obligation to transfer the
property to second heir.
c. Both the fiduciary and fidei commissary must survive the testator.
What is the effect if first heir predeceased the testator? The substitute will
get nothing. The substitution has no effect.
If the second heir predeceased, thefidei commissary predeceased the
testator, what will happen? The first heir will get it. As if there is no
substitution. He will get the property. He has no one to give something.
Question: What iffidei commissary predeceasedthe fiduciary? When he died,
later on the fiduciary subsequently died. Would the heirs of thefidei
commissary inherit what would have been inherited by the fiduciary if he
lived?
Answer: Yes. The fact that both of them survived, the right of thefidei
commissary is already vested. He was already waiting that the fiduciary dies.
But then he predeceased so the one who will benefit will be the fidei
commissary’s heirs since he already has vested right.
Fideicomminendiis just the testator. There has to be a will. The first heir is
the fiduciary. The fidei commissary is the substitute.
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One of the best questions in fidei commissary substitution: Raymond, single,
named his sister Ruffa in his will as a devisee of a parcel of land which he
owned. The will imposed upon Ruffa the obligation to preserve and
transferring it upon her death to her illegitimate daughter Scarlett who was
then only one-year-old. Raymond later died, leaving behind the widowed
mother Annabelle. Ruffa. Scarlett.
First question. Is the condition imposed upon Ruffa to preserve the property
and to transmit it upon her death to Scarlett valid?
Answer: Yes. This is a fidei commissary substitution. Does this apply to
illegitimate child? Yes. Iron-curtailed rule does not apply to testamentary
succession. That is why inArticle 992, the “ab intestato” part is very
important. Do not ever forget that phrase. If in testamentary and he wants
to give something to the illegitimate, he can do so. So this is a valid
condition.
If Scarlett predeceased Ruffa, who inherits the property? StillRuffa. Why?
Because when both the fiduciary and the fidei commissary survives, the right
of the fidei commissary was already vested: of Scarlett in this case. When
Scarlett died, her heir was her motherBut between Ruffa and the mother of
Ruffa, the one who will inherit will be Ruffa as the mother. Not because she
is the first heir but because she is the mother.
Second question: If Ruffa predeceases Raymond, can Scarlett inherit directly
from Raymond?
Answer: No. Not as a fidei commissary and not as intestate heir. Because as
a fidei commissary, she cannot inherit because the first heir predeceased.
Substitution will be useless because the law requires that both must survive
the testator in order for the substitute to be given effect. In intestate
succession Scarlett cannot also inherit from Raymond because iron-curtailed
rule. An illegitimate child cannot inherit ab intestato from the legitimate
relatives of his parents. Scarlett cannot inherit from Raymond, his uncle, who
is a legitimate relative of her mother Ruffa.
PROXIMITY RULE
Heirs nearer in degree excludes those in the remote.
If X has children, A, B and C, and C has a child named D, all of them are
compulsory heirs. However D will not inherit under the proximity rule
because he will be excluded by C.
Exceptions:
1. Right of Representation
2. Preference between the lines
- Descending, if legitimate, is preferred over ascending
- Direct line is preferred over collateral line
3. Iron-curtailed Rule (illegitimate will not inherit from legitimate
relatives of parents)
4. Article 1009, (nearer would exclude the remote, i.e, nephews and
nieces exclude uncles and aunties)
EQUAL DIVISION RULE
- If two or more heirs are of the same degree from the decedent
they will share equally because they are all in the same degree.
All of them are legitimate children, then they are all equal. All of
them are cousins, then all of them are equal.
Exceptions:
a. Example:B may have also predeceased but B has three children E,F
and G. These three will inherit by right of representation because
their uncles and aunties are still alive. But will they inherit equally
because they are all in the same degree? They will not. Because in
right to representation they will inherit PER STIRPES. Whatever is
inherited by the father that is what they will get.If estate is 1M, they
will inherit 1M divided equally.
b. Full-blood/Half-blood. Brothers, whether half/full-blood are all in the
same degree. Nonetheless, full blood gets twice the share of half-
blood in intestate succession. The rule only differs in testamentary
succession. Example. Testator says “I hereby give 1M to A and B and
A is full-blood while B half-blood. The twice rule will not apply.
c. In the ascending line, example if X has three grandparents who
survived, will they inherit equally? No. Because in intestate
succession, the estate will be divided equally between the two lines.
Half on the paternal. Half on the maternal. If there is still two
grandparents in the maternal, these two will share the half in two. If
in the paternal one grandparent is left, he will get the half all to
himself.
d. Legitimate Relationship of the children. (illegitimate child gets half of
the share of the legitimate child)
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RIGHT OF REPRESENTATION
- Where a person will be placed in a degree nearer to the
decedent so that he will not be excluded by the proximity rule.
Imbesna two degrees sya eh parangmapupuntanasyasa one
degree.
But to whom shall he inherit by right of representation? From his father? No.
He will just step into the shoes to inherit from his grandfather. He will inherit
from his grandfather. In other words, if the father who predeceased has
debts and creditors, can the latter go after the estate of the deceased which
shall be inherited by his son? No. Because it will go directly to the person,
not to his estate.
The law only requires this heir who will inherit by right of representation to
have the capacity to succeed to whom he shall inherit and not to that whom
he shall represent.
Unusual scenario: S has siblings, Y and Z. A, who is the child of Z, killed his
father. In here, will he inherit from his uncle or auntie by right of
representation?
Answer: He can inherit. Why? Killing a father is not an act of unworthiness.
He will not be incapacitated as to his uncle. In Article 1032, for this to be an
act of unworthiness it shall be an attempt against the life of the spouse or
ascendants and descendants. Siblings are not included
If one renounces his right to his inheritance from his father, the renouncer
can still represent his father to inherit in his grandfather’s estate.
C is still alive when X died but C renounced. If C renounced, can the child of
C inherit by right of representation? No. There is no right of representation in
cases of renunciation.
Right of representation may take place in the descending line, no limit in the
degrees. It can take place in the collateral line but only up to the children of
brothers and sisters. Only up until there in cases of collateral line. In the
ascending, none. There is no right of representation in the ascending line.
Question: Is there a right of representation in testamentary succession?
Example, A gave one heir a house and lot. A predeceased. Can A’s heirs
inherit the house and lot? Yes. If a portion or the entire house and lot is
covered by the legitime of that heir. A’s heirs can inherit only in so far as to
the extent of A’s legitime.
No right of representation to voluntary heirs in testamentary succession.
Problem: Enrique died leaving an estate of 1.2M, survived by his widow,
three legitimate children, 2 legitimate grandchildren who are sons of a
legitimate child who predeceased him and two recognized illegitimate
children. Distribute the estate in intestacy.
In intestacy, the share of the spouse is equivalent to that of one legitimate
child. Just divide the estate by 6.
Problem: P died intestate leaving an estate of 9M. He left as heirs three
legitimate children, A, B and C. A has two children, D and E. Before he died,
A irrevocably repudiated his inheritance from P in a public instrument filed
with the court. How, if any, will D and E as A’s children get from P’s estate?
At first glance, D and E will inherit by right of representation because there
are other heirs who are nearer in degree. But will they inherit by right of
representation, answer is no because their parent renounced. There is no
right of representation in repudiation.
Answer: D and E will get none because of the repudiation. B and C will get a
share by right of accretion.
Problem: P died intestate on September 1, 1907. He was survived by M his
mother, W his widow, A and B his legitimate children, C his grandson being
the legitimate son of B, D his other grandson being the son of E who is a
legitimate son and who predeceased P, F his grandson being the son of G, a
legitimate son who repudiated the inheritance from P. Presume that the
estate is 120K, how should this amount be shared in intestacy among the
surviving heirs.
Answer: C and D is excluded by A and B. E will not inherit because he was
no longer living at the time succession opened. C will not inherit under the
proximity rule. G will not inherit because he renounced. F will not inherit
because there is no right of representation in repudiation. LEFT: A,B, M and
W, divide the estate into four. 20K each of them.
Problem: Arman dies intestate. His full-blood brothers Bobby and Conrad and
half-blood brothers Danny, Edward and Roroall predeceased. Arman’s estate
values 1.2M. Benny and Bonnie are legitimate children of Bobby. Dante is the
illegitimate child of Danny. Ernie is an adopted child of Edward. How much
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Benny and Bonnie stand to inherit by right of representation? How about
Danny?
Answer: None. They will not inherit by right of representation, they will
inherit in their own right. No right of representation as far as Benny and
Bonnie are concerned. In so far as Danny, he will get nothing by reason of
the iron-curtain rule that he is an illegitimate child of a legitimate son. In
case of Ernie, he will also get nothing because while adoption gives the child
a legitimate status, it only creates legal relation between the adopter and the
adoptee. So he will not inherit from Arman.
ACCRETION (tinatanong in the bar more or less once every five to six
years)
- If the testator gave a house and lot to two or more heirs and
one of the heirs predeceased, incapacitated or renounced, or
otherwise cannot receive what was given to him, his share will
be added or incorporated to the other heirs by accretion
Do not apply accretion in compulsory heirs because example: Compulsory
heirs A, B and C, A predeceased, no accretion to B and C. A will simply not
inherit and the estate will only be divided between the remaining heirs B and
C.
But in testamentary succession, yes. Because it was given to the heirs and
one predeceased, etc. and his share will be added or incorporated in the
other heirs
Bars to Accretion
a. Testator bars accretion through a clear intention in his will (despite
the heir predeceased, incapacitated or renounced, or otherwise
cannot receive)
b. Substitution
c. Right of Representation (ex. Among many heirs, only A, B and C
were given a property which values 150M. Their legitime is only 25M
each. Testator gives them the house and lot which also includes
their legitime. B predeceased. Will his share, which is 1/3, in the
house and lot go to A and C by right of accretion? No. The value of
the property is 150M, so 50M shall be the sharing between the three
heirs. But each of their legitime is only up to 25M. So only 25M
worth of the property will be given to A and C by right of accretion
and the other 25M legitime of the predeceased B will go to his own
heirs.)
Debated scenario:
Testator says, “I hereby give my house and lot to A, B and C. But ½ to A, ¼
to B and ¼ to C. If A predeceased, will their share go to B and C by
accretion? Others say it’s a YES. But for Attorney Uribe, it’s a No. Because
the three heirs have their own aliquot portion. Otherwise, the provision of
law is useless. In other words, if the sharing is equal, (i.e., 1/3 to each of the
heir) accretion will take place. But if the heirs have varying aliquot portion,
just as in the instant case, the will of the testator will prevail and no
accretion.
Problem: Raul, Ester and Rufos inherited a hectare of land from their father.
Before the land could be partitioned, however, Raul sold his hereditary right
to Raffy, a stranger to the family for five years. Do Ester and Rufos have
remedy to keep the land in their family?
Answer: Can be answered by provisions either in the Law on Succession or
Law on Sales. Similar in a way. When two or more heirs will inherit, they
become co-owners. In the law on Succession, if one co-owner will alienate
his interest, the other co-owners will have the right of redemption. In
Succession the provision is very limited: sell. In Sales, it is broader because it
pertains to any alienation onerous in character.
In fact, Dation in Payment is specifically recognized. Dation in Payment is not
a sale but it will also give the co-owners the right of redemption. In
Succession, sell was specified. In the instant case, the other heirs have the
right of redemption. Yes, they may be subrogated to Raffy’s right by
reimbursing to him within the required time (30 days) what he paid to Raul.
30 days from the time notice of writing is given to the redemptioner.
PARTITION
Different ways of dividing the estate
1. testator himself divides the estate in his will
2. testator appoints somebody to make the partition with such partition
having the approval of the court
3. partition by extra-judicial settlement of the estate (if there is no will
and there are no debts)
4. the Court by itself will do the partition through court action (if there
is no will and nobody was appointed by the testator)
Question: What if during the lifetime of the testator he already divided his
estate to his heirs, will that be a valid partition?
Answer: The Supreme Court said “YES” as long as there is no impairment of
the legitime of the compulsory heirs.
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