Codal Succession With Jurado.docx

CODAL PROVISIONS

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CHAPTER 1: GENERAL PROVISIONS

Art 774. Succession:  

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mode of acquisition by virtue of which the: o property; o rights; and o obligations to the extent of the value of the inheritance of a person are transmitted through his death to another or others either: o by his will; or o by operation of law.

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right to bring or continue an action for forcible entry right to compel execution of document necessary for convenience right to continue lease contract as lessor or lessee property right of beneficiary in an insurance policy

Art 777. The rights of succession are transmitted from the moment of his death.

Conditions for transmission of successional rights:   

actual or presumed death rights are transmissible or descendible transferee is alive and capacitated to inherit

Presumed death: Art 775. Decedent: a general term applied to the person whose property is transmitted through succession, whether or not he left a will.

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Testator, if he left a will.

Art 776. Inheritance includes:  

all property, rights and obligations of a person not extinguished by his death

Examples of rights extinguished by death: 

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personal rights intransmissible by nature o family and marital rights o parental authority o support o partnership o agency right to claim acknowledgment or recognition right to hold public or private office or job

Examples of rights NOT extinguished by death:

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ordinary presumption because of ordinary absence o disappearance without danger or idea of death o presumed dead at the END of ten years  5 years if over 75 Extraordinary presumption because of extraordinary absence o Great probability of death  On board a vessel lost at sea or a plane that crashed  Member of the armed forces who has taken part in war  In danger of death under other circumstances o Presumed dead at the BEGINNING of four years from such disappearance

Prior to a person’s death, heirs merely have inchoate right to the property, without any right of disposition or alienation over it.

Art 778. Succession may be:   

testamentary legal/intestate mixed

Art 779. Testamentary succession is that which results from:  

designation of an heir made in a will o executed in the form prescribed by law.

Art 780. Mixed succession: that which is effected partly by will and party by operation of law.

Art 781. Inheritance of a person, what it includes: 

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property and transmissible rights and obligations existing at the time of his death those which have accrued thereto since the opening of succession

Art 782. Heir: a person called to the succession either by provision of a will or by operation of law. Devisee: a person to whom gifts of real property are given by virtue of a will. Legatee: a person to whom gifts of personal property are given by virtue of a will.

GR: no difference between heirs, legatees and devisees in terms of capacity, effect and solemnity. EXC: Art 854 and 918 (preterition and disinheritance) provide for circumstances where the institution of heirs is void yet the legacies and devises remain unaffected.

Art 2263. The rights to the inheritance of a person who died, with or without a will, after the effectivity of the NCC, shall be governed by the NCC.

CHAPTER 2: TESTAMENTARY SUCCESSION

SECTION 1: WILLS

Art 788. If a testamentary disposition admits of different interpretations, IN CASE OF DOUBT, the interpretation by which disposition is operative shall be preferred.

SUBSECTION 1: WILLS IN GENERAL Art 783. Will: 

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act whereby a person is permitted (with the formalities prescribed by law) to control to a certain degree the disposition of his estate to take effect after his death

Art 784. The making of a will:   

strictly personal act cannot be left in whole or in part to the discretion of a third person cannot be accomplished through the instrumentality of an agent or attorney

Art 789. Imperfect description or when no person or property exactly answers the description; may be cured by:  

examining the will extrinsic evidence o EXC: oral declarations of the testator as to his intention

Uncertainty arises upon the face of the will, as to the application of its provisions; intention may be ascertained by:  

examining the words of the will circumstances under which it mas made o EXC: oral declarations of the accused as to his intention

Art 785. What cannot be left to the discretion of third persons:

Art 790. GR: The words of a will are to be taken in their ordinary and grammatical sense.

duration or efficacy of the designation of heirs, devises or legatees determination of the portions they are to take

EXC: clear intention to use them in another sense AND that other can be ascertained.

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Provided, that they were referred to by name.

Art 786. EXC to 784: What may be entrusted to third persons: 

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distribution of specific property or sums of money that he may leave to specified classes or causes the designation of the persons, institutions or establishments to which such property or sums are to be given or applied.

Art 787. Testamentary dispositions operative upon the discretion of another person cannot be made.

GR: Technical words in a will are to be taken in their technical sense. EXC:  

when the context clearly indicates a contrary intention; OR when the will was drawn solely by the testator, AND he was unacquainted with such technical sense

Art 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative. In two modes of interpreting a will, that which will prevent intestacy is preferred.

Art 792. GR: The invalidity of one of several dispositions does not result in the invalidity of other dispositions. EXC: testator would not have made such other dispositions if the first invalid disposition had not been made.

Art 793. GR: What are given in a will are only properties already possessed and owned by the testator at the time of the making of the will. EXC: If it expressly appears on the will that such was his intention.

Art 794. GR: Devise or legacy cover all interest which the testator could bequeath in the property disposed of. EXC: If it clearly appears that he intended to convey a less interest.

Art 795. The validity of the will as to its FORM: law in force at the time the will is made.

SUBSECTION 2. TESTAMENTARY CAPACITY AND INTENT Art 796. All persons may make a will. EXC: Persons expressly prohibited by law.

Art 797. Persons under eighteen cannot make a will.

Art 798. The testator needs to be of sound mind at the time of the execution of the will.

Art 799. Requisites of a sound mind: That the testator knows:   

the nature of the estate to be disposed of the proper objects of his bounty character of the testamentary act

It is not necessary that he be in full possession of his reasoning faculties or that his mind be wholly unbroken, impaired or unshattered by disease, injury or other cause.

Art 800. GR: The law presumes every person is of sound mind. EXC: Proof to the contrary. GR: Burden of proof is upon the person who is opposing the probate of the will. EXC: If the testator, one month or less from the making of his will, was publicly known to be insane, the person who maintains the validity of the will must prove that the same was made during the testator’s lucid interval.

Art 801. Supervening incapacity does not invalidate an effective will. Supervening capacity does not validate the will made by an incapable person.

Art 802. A married woman may make a will without the consent of her husband and without authority of the court.

SUBSECTION 3. FORMS OF WILLS Art 804. Every will must be:  

Art 803. A married woman may dispose by will of:  

all her separate property her share of the conjugal partnership or absolute community property

in writing executed in a language or dialect known to the testator.

NOTARIAL WILLS Art 805. Notarial wills must be: 

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subscribed AT THE END by the testator himself, or by the testator’s name written by some other person o in his presence, AND o by his express direction attested and subscribed by three or more credible witnesses in the presence of the testator and one another signed at every page, except the last page, on the left margin, by the testator and the instrumental witnesses numbered correlatively in letters in the upper part of the page

The attestation which must state: o o

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the number of pages that the testator signed the will and every page thereof in the presence of the witnesses that the witnesses witnessed and signed the will and all its pages in the presence of the testator and one another

If the attestation clause is not known to the witness, it must be interpreted to them.

Art 806. A notarial will must be acknowledged before a notary public by the testator and the witnesses.

Art 807. GR: If the testator is deaf or deaf-mute, he must personally read the will. EXC: If unable to do so, he shall designate two persons to read and communicate the same to him the contents of the will.

Art 808. If the testator is blind, the will shall be read to him twice.  

Once by one of the subscribing witnesses Again, by the notary public before whom the will is acknowledged

Art 809. Defects or imperfections in the form of the attestation or language thereof shall not render the will invalid, if the will is proved to be executed in substantial compliance with all the requirements of 805. EXC: In cases of:    

bad faith forgery fraud undue and influence

Art 813. In cases of dispositions signed without being dated, and the last disposition is with signature and date, such date validates the dispositions preceding it, whatever the time of prior dispositions.

Art 814. The testator must authenticate by his full signature any:    

insertion cancellation erasure alteration

--------------------------------------Art 815. Filipino making a will in a foreign county: will must follow the FORMALITIES established by the law of the country in which he may be.

improper

pressure

and

HOLOGRAPHIC WILLS Art 810. Holographic wills must be entirely written, dated and signed by the testator. It is:   

Art 812. Dispositions of the testator written below his signature must be dated and signed by him for them to be valid testamentary dispositions.

subject to no other form may be made in or out of the PH need not be witnessed

Art 811. In the probate of holographic wills: If uncontested: at least one witness who knows the handwriting and signature of the testator must explicitly declare that the will and signature are the handwriting of the testator.

Art 816. Alien who is abroad: must follow FORMALITIES prescribed by law:   

where he resides where he is a national in the New Civil Code.

Art 817. Citizen or subject of another country, making will in the PH: FORMALITIES:  

of law of his country that may be proved and allowed by the law of his country

Art 818. Two or more persons cannot make a will jointly, or in the same instrument, either for reciprocal benefit or benefit of a third person.

If contested: at least three of such witnesses. EXC: In the absence of witnesses, the court may resort to expert testimony.

Art 819. Wills in 818 executed by Filipinos in a foreign country shall not be valid in the PH even if authorized in such foreign country.

SUBSECTION 4: WITNESSES TO WILLS Art 820. Requisites of witnesses in notarial wills:    

of sound mind age of 18 years or more not blind, deaf or dumb able to read and write

SUBSECTION 5: CODICILS AND INCORPORATION BY REFERENCE Art 825. Codicil:    

supplement or addition to a will made after the execution of a will annexed to the same a part thereof by which disposition made in the original is explained, added to or altered.

Art 821. Who are disqualified from being witnesses:  

persons not domiciled in the PH convicted of : o falsification of a document o perjury o false testimony

Art 826. A codicil must be executed in the same case of a will.

Art 827. Requisites of a document or paper incorporated by a will into itself, to be considered part of the will:

Art 822. Subsequent incompetence of witnesses shall not prevent allowance of a will as long as they are competent at the time of witnessing.

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Art 823. A provision of the will is void if it gives legacy or devise to:

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a person attesting its execution his spouse his parent his child

EXC: If there are three other competent witnesses to such will. He shall still be admitted as witness, as if no such devise or legacy is given.

Art 824. A mere charge on the estate of the testator does not prevent his creditors from being competent witnesses to the will.

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document or paper must exist at the time of the execution of the will the will must clearly describe and identify it, stating among others the number of pages the document or paper must be identified by clear and satisfactory proof as that referred to in the will document or paper must be signed by the testator and the witnesses on each and every page o EXC: voluminous books or inventories

SUBSECTION 6: REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS Art 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void.

Art 829. Revocation of a will done outside the PH, by a person not domiciled in the PH: must be done in accordance with:  

law of the place where the will is made law of the place where the testator had his domicile at the time of revocation

If done in the PH, then it must follow the New Civil Code.

Art 830. How may a will be revoked (exclusive):   

by implication of law by some will, codicil or other writing executed in case of wills by burning, tearing, cancelling or obliterating the will o with intention of revoking it o by testator himself or some other person in his presence and by his express direction

If the burning, tearing, cancellation or obliteration was made without the express direction of the testator: the will may still be established and the estate distributed in accordance therewith if the following is established according to the Rules of Court:   

contents of the will its due execution the fact of its unauthorized destruction, cancellation or cancellation

Art 831. Subsequent wills which do not revoke previous ones in an express manner annul only such dispositions inconsistent with or contrary to it.

Art 832. Revocation by a new will is effective even if the new will be inoperative due to:  

incapacity of the heirs, devisees or legatees designated therein renunciation by the heirs

Art 833. Revocation based on a false cause or illegal cause: null and void.

Art 834. The recognition of an illegitimate child in a will shall remain effective even though the same will is revoked.

SUBSECTION 7: REPUBLICATION AND REVIVAL OF WILLS

SUBSECTION 8. ALLOWANCE DISALLOWANCE OF WILLS

Art 835. The testator cannot republish dispositions contained in a previous will which is void to its form.

Art 838. No will shall pass real or personal property unless proved in accordance with the Rules of Court.

It must be reproduced in a subsequent will.

The testator may petition the court for the allowance of the will. The same procedure as allowance of wills after the testator’s death shall govern.

Art 836. The execution of a codicil referring to a previous will shall have the effect of republishing the will as modified by the codicial.

Art 837. If a second will revoked the first, the revocation of the second does not revive the first. It can only be revived by another will or codicil.

AND

Allowance of a will shall be conclusive as to its due execution, subject to appeal.

Art 839. The will shall be disallowed when:  

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the formalities required by law are not complied with testator was insane or otherwise mentally incapable of making a will at the time of execution executed through force, duress, or under the influence of fear or threats procured by undue and improper pressure and influence on the part of the beneficiary or some other person signature of the testator was procured by fraud testator acted by mistake or did not intend that the instrument be his will at the time he affixed his signature thereto

SECTION 2. INSTITUTION OF HEIR Art 840. Institution of heir: an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations.

Art 844. An error in the name, surname or circumstances of the heir shall not vitiate institution when it is possible to know with certainty the person instituted. If two persons have the same name and circumstances in such a way that the person instituted cannot be identified, none of them shall be an heir.

Art 841. A will shall be valid even if:   

it does not contain an institution of an heir such institution did not comprise the entire estate the persons instituted did not accept the inheritance or are incapacitated to succeed

Testamentary disposition shall be complied with and the remainder shall pass to the legal heirs.

Art 842. One who has no compulsory heirs may dispose by will of all his estate. One who has compulsory heirs may dispose of his estate to the extent that it does not contravene the provisions of the Civil Code with regard to the legitime of the heirs.

Art 843. The testator shall designate the heir by name and surname. EXC: 

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two persons having the same names: the testator shall indicate some circumstance by which the instituted heir shall be known in the omission of the name of the heir, designation of the testator in such manner that there can be no doubt as to who is instituted shall be sufficient.

Art 845. GR: Every disposition in favor of an unknown person shall be void. EXC:  

by some event or circumstance his identity becomes certain disposition in favor of a definite class or group of persons is valid

Art 846. Heirs instituted without designation of shares shall inherit in equal parts.

Art 847. When the testators institute some heirs individually and some collectively, those collectively designated shall be considered as individually instituted. EXC: clear intention of the testator was otherwise.

Art 848. If the testator institutes his brothers and sisters, some full blood and some half blood, the inheritance shall be distributed equally. EXC: a different intention appears.

Art 849. When a testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively.

Art 850. GR: The statement of a false cause for the institution of the heir shall be considered not written. EXC: It appears from the will that the testator would not have made such institution had he known the falsity of such cause.

JURADO

Called to succeed by will

Inheritance is the totality of all RPOs of the decedent which are not extinguished by his death. Succession is the legal mode by which such RPOs are transmitted. Inheritance is merely the objective element of succession.

The estate of the decedent and not his heirs is charged with regard to rights and obligations of the decedent, as the continuation of the decedent’s personality.

GR: The heirs have no legal standing to sue for the recovery of the estate of administration proceedings. EXC:  

The rights to inheritance of a person who died, with or without will, after the effectivity of the NCC, shall be governed by the NCC.

An heir can sell his undivided share of the inheritance, but not any particular part of the estate (Flora v Prado).

May be called to succeed by will or by operation of law

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executor or administrator is unwilling or refuses to bring suit administrator is alleged to have participated in the act complained of and he is made party-defendant there is no appointed administrator

An heir does not have the right to dispose of the decedent’s property if the estate is under administration. EXC: court approval.

Characteristics of a will: Art 1042: The effects of acceptance or repudiation of an inheritance shall always retroact to the moment of the death of the decedent.

Fourth kind of succession: Contractual succession, when future spouses donate to each other in their marriage settlements their future property to take effect upon the death of the donor.

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What does “due execution” mean? It is a determination of: 

Devisee/Legatee Called to succeed to individual items of property

Heir Called to succeed to an indeterminate or aliquot portion of the estate

a strictly personal act unilateral and individual act free and voluntary act formal and solemn act disposition of property act mortis causa ambulatory and revocable

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sound and disposing mind of the testator at the time of the execution free execution of the will, without duress, fraud, menace or undue influence genuineness of the will and that it is not a forgery proper testamentary age of the testator and that he is not prohibited by law from making a will

Formalities required in the execution of a notarial will:    

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in writing in a language or dialect known to the testator subscribed at the end by the testator himself or by the testator’s name attested and subscribed to by 3 or more credible witnesses in the presence of the testator and one another testator must sign each and every page on the left margin, except the last numbered correlatively in letters placed on the upper part of each page attestation clause executed by the witnesses acknowledged before a notary public by the testator and the witnesses additional requirements in case the testator is deaf, deaf-mute or blind

A thumbmark is a valid signature if intended by the testator to be his signature (Garcia v La Cuesta).

It is not necessary that the testator or witnesses should actually see the others subscribe their names to the instrument, provided that he is in a position to see them sign if he chooses (Nera v Rimando).

The requirement of at least 3 witnesses in the probate of a holographic will is mandatory, given the word “shall”.

Attestation: witnessing of the execution of the will by the testator in order to see all acts done in compliance with the requisites for the execution of a will, and that the signature of the testator exists as a fact. PURPOSE: render available proof that there had been compliance with the statutory requirements in the execution of a will.

Subscription: manual act of the witnesses in affixing their signatures to the instrument. PURPOSE: Identification.

Attestation

Subscription

Act of the senses

Act of the hand

Mental

Mechanical

Purpose is to render available proof that the will was executed in accordance with the formalities prescribed by law

Purpose is for identification

Primordial ends of the formalities prescribed by law for the execution of laws:   

close the door against bad faith and fraud avoid substitution of wills guarantee the truth and authenticity

When an interpretation assures such ends, any other interpretation that adds nothing but demands requisites entirely unnecessary, useless and frustrative of the testator’s will must be disregarded (Avera v Garcia).

The attestation clause is a record of facts where the instrumental witnesses certify that the will had been executed before them and that it had been executed in accordance with the formalities prescribed by law. Purpose: preservation in permanent form of the record of facts so that in case of failure of memory by the witnesses or in case they are no longer available, such fact may still be proved.

An acknowledgment is the act of one who has executed a deed in going before some competent officer or court, declaring the deed to be his act. In involves an additional step of actual declaration to the notary that the executor attested to the notary that the same is his own free act and deed.

The notary public cannot be the third witness because he cannot acknowledge before himself his witnessing and signing of the will. To acknowledge is to assent and before means in front of. It is absurd to even argue that he could acknowledge his having signed the will in front of himself.

Rules on formal validity: Filipino testator, in the Philippines: 

Art 17, NCC

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Revocation by implication of law: 

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Filipino, foreign country:  

Law of the place where executed NCC

Foreigner, Philippines:  

NCC Law of his country

Foreigner, foreign country:    

Law of the place of execution Law of his own country Law of the country where he resides NCC

Rules on revocation: Domiciled in PH or not, in PH: 

NCC

Domiciled in PH, outside PH: 

NCC

Not domiciled in PH, outside PH: 

Laws of the place where will was made

Laws of the place where testator had his domicile at the time of revocation

Decree of legal separation, with regard to the provisions in favor of the offending spouse in the will of the innocent spouse Preterition, which annuls the institution of heirs Bringing of an action by the creditor for the payment of debt after the execution of a will where there is legacy of credit to the legatee or remission of debt of the legatee Transformation of the thing that it does not retain the form or denomination it had Alienation of the thing to be bequeathed Commission of acts of unworthiness, which incapacitates a person to succeed

Express revocation: when in a subsequent will or codicil or other writing as provided in the case of wills, there is a revocatory clause expressly revoking the will or a part thereof. Implied revocation: provisions of the subsequent will or codicil are partially or absolutely inconsistent with those of the previous will.

What are the questions which a probate court may determine?  

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Identity: won the instrument is the last will and testament of the decedent Due execution: won the instrument was executed in accordance with the formalities prescribed by law Capacity: won the testator had the necessary testamentary capacity at the time of the execution of the will

The probate court has no power to determine title to properties claimed to be part of the estate and claimed to belong to outside parties. All that the court may determine is whether the property should be included in the inventory of properties or not.