Revoking an inheritance prior to

death of parents
 Manila Times

 7 Feb 2011

Dear PAO,
I am considered the “ black sheep” of our family because I do not follow the desires of my
parents especially with matters involving our family business. My siblings are the ones managing
the business since my parents are already old. One of my siblings talked to me and pushed me to
waive all my rights to the properties of my parents since I am not helping with the business. Out
of anger, I executed the said waiver but it was not notarized. Later, I executed another waiver
and had it notarized by a notary public. If my parents die, can my siblings use the waiver to deny
me of my legal rights to the estate of my parents? Can I revoke the waiver which I previously
made?
Norberto III Dear Norberto III,
You may still claim your legal share to the estate of your parents as a compulsory heir after their
death. Renunciation or waiver presupposes an existing right over a matter which is the subject
thereof. You do not need to execute a revocation of the waiver because the waiver of rights to
your future inheritance is ineffective. It is ineffective since it was executed before the death of
your parents. It remains as such even if it was duly notarized since it was still made before the
death of your parents.
The owner of a property has the right to enjoy and dispose of a thing, without other limitations
than those established by law (Article 428, Civil Code). Even if he has children or heirs entitled
to inheritance upon his death, the owner can dispose all his properties if he desires since they
remain to be his until he dies. Hence, it is only upon the death of the owner that his heirs will
have a right to the former’s property. If there is a last will and testament, the estate shall be
distributed according to the provisions thereof after it is probated or allowed by the court. In the
absence of a last will and testament, the estate shall be distributed according to the intestate
succession.
An heir may accept or repudiate the inheritance, which decision retroacts to the moment of the
death of the owner. However, no person may accept or repudiate an inheritance unless he is
certain of the death of the person from whom he is to inherit, and of his right to the inheritance
(Article 1041, 1042, 1043 Civil Code). The repudiation of an inheritance shall be made in a
public or authentic instrument or by petition presented to the court having jurisdiction over the
testamentary or intestate proceeding ( Article 1050, Civil Code). However, if the heir repudiates
the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize
them to accept it in the name of the heir. But the acceptance of the creditor shall be only to the
extent sufficient to cover the amount of their credits (Article 1052, Civil Code). If an heir should
die without having accepted or repudiated the inheritance, his right shall be transmitted to his
heirs wherein the latter has the choice whether to accept or repudiate the same ( Article 1053,
1054, Civil Code). The repudiation, once made, is irrevocable and can- not be impugned, except
when it was made through any of the causes that vitiate consent, such as when the repudiation
was made through mistake, violence, intimidation, undue influence, or fraud (Articles 1056 and
1390, Civil Code).
As we have stated, the waiver that you executed prior to the death of your parents is ineffective,
thus, it does not need to be revoked for you to be entitled to the estate of your parents.
We wish to remind you that the above legal opinion is solely based on the facts you have
narrated and our appreciation of the same. The opinion may vary when other facts are changed or
elaborated. Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions
for Chief Acosta may be sent to dearpao@ manilatimes. net or via text message ( key in: Times
dearpao <YOUR QUESTION> and send to 2299).

Dear Atty. Karagdag,

As in the case of many Filipinos, not everyone in our family was able to
immigrate to the United States. Only my two siblings and I were able to come
with our parents on a petition filed by my aunt. Our eldest brother was left
behind because he was over 21 and already married. It was heartbreaking to
leave him in the Philippines and this feeling of sadness turned into guilt as years
went by. While my siblings and I were able to finish our studies and found good
jobs here in the U.S., our kuya and his family toiled hard in order to survive. At
first, we sent them money every month but we soon realized that it would be
better for them financially and emotionally if they have their own business. So,
when we were already financially established, we decided to put up a small
business for them. We bought a couple of brand new taxi units which we paid in
cash. Our kuya was supposed to drive one of the units himself and to rent out
the other to our cousin at a low boundary, so the units wouldn’t get dilapidated.
The plan worked out well during the first few months. We were hoping that the
income would be more than enough for our kuya and his family to live a
comfortable life.

What we didn’t know was that our kuya had been addicted to gambling. He
frequented the cockpits as well as the casinos. He incurred huge debts to sustain
his vices. He mortgaged the two taxi units and issued postdated checks to his
creditors. Because he was too busy with gambling, he was not able to drive the
taxi himself. He also imposed a very high boundary for the units that they soon
became dilapidated. He lost his taxi units when the creditors foreclosed on the
mortgage. But that was not the end of it. Since the taxi units were already
dilapidated, they commanded only a small price when they were auctioned. He
still has huge debts that remain unpaid. When one of his creditors threatened to
sue him for bouncing checks, he was forced to sign a certain document entitled
Waiver of Hereditary Rights and Interests Over a Real Property (Still
Undivided) pertaining to a waiver of his hereditary share over our parents’
property in Quezon City. This property is quite large and valued at no less than
10 million pesos. It is our parents’ only remaining property in the Philippines
and they really feel bad at the prospect of losing it since they plan to return to
the Philippines next year and live there. The creditor has threatened to subdivide
our parents’ property to get our kuya’s one-fourth share. Is there any way we
can fight the case and protect our parents’ property?

Worried brother

Dear Worried Brother,

There is a particular provision in Philippine law that addresses your concern.

Article 1347 of the Civil Code provides that no contract may be entered into
upon a future inheritance except in cases expressly authorized by law. For the
inheritance to be considered “future”, the succession must not have been opened
at the time of the contract. A contract may be classified as a contract upon future
inheritance, prohibited under the second paragraph of Article 1347, where the
following requisites concur:

That the succession has not yet been opened.

That the object of the contract forms part of the inheritance; and,

That the promissor has, with respect to the object, an expectancy of a right
which is purely hereditary in nature.
In your brother’s case, there is no question that when he signed the Waiver of
Hereditary Rights and Interest Over a Real Property (Still Undivided),
succession to either of her parent’s properties has not yet been opened since
both of them are still living. With respect to the other two requisites, both are
likewise present considering that the property subject matter of your brother’s
waiver concededly forms part of the properties that he expects to inherit from
your parents upon their death and, such expectancy of a right, as shown by the
facts, is undoubtedly purely hereditary in nature. It constitutes a part of your
brother’s future inheritance from your parents, which cannot be the source of
any right nor the creator of any obligation between him and his creditors.
(Philippine Supreme Court, Ferrer vs. Diaz, G.R. No, 165300, April 23, 2010).

So, in other words, the creditors cannot go after your parents’ property under the
Waiver of Hereditary Rights and Interest Over a Real Property (Still
Undivided). However, since your brother still owes them money, the creditors
have other ways of running after him, including carrying out their threat of
suing him for bouncing checks. Be also mindful that, God forbids, if your
parents die, your brother’s inheritance will be considered present inheritance. In
that case, his creditors may be able to run after his share in the Quezon City
property, not under the Waiver of Hereditary Rights and Interest Over a Real
Property (Still Undivided), but perhaps by way of attachment or execution of
judgment.

As we always advise those who write and call us, you and your brother should
consult with a competent attorney for proper legal advice.

Sincerely,

Atty. Karagdag