Notes And Cases On Wills.pdf

CIVIL LAW

NOTES ON

WILLS AND SUCCESSION Professor: DEAN AUGUSTO K. ALIGADA, JR.

University of Santo Tomas Faculty of Civil Law España, Manila

2017

Civil Code of the Philippines WILLS AND SUCCESSION These notes are meant to be a mere supplement to your study of Succession, and it is not meant to be a substitute for any law book. These were compiled for review purposes only, and this may serve as a guide as to how you can study Succession should you have the good fortune of studying this subject under Dean Aligada. This reviewer is based largely on the books of Justice Eduardo Caguioa and Atty. Ruben Balane, and the lectures and comments of Dean Aligada himself. May this reviewer be of help to you in your exams in law school and even in the Bar Exams. Feel free to share this material to others if you wish. May the Force be with you! Special thanks to our friends in 3B and 3AA for helping in producing this work. JG + KM 3rd Year, 2017-2018 x--------------------------------------------------------------------x

SUCCESSION GENERAL PROVISIONS Art. 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 other either by will or by operation of law. Succession; Definition and Concept.– Under the definition, the law refers to succession as a mode of acquisition. However, it is not always correct to say that it is such. It is a mode of acquisition depending on whose standpoint succession is viewed. If it is from the standpoint of the heir, then it is a mode of acquisition. On the other hand, if it is from the standpoint of the decedent, it is not a mode of acquisition, but a mode of transmission. This is because succession has a dual juridical nature. It is both a mode of acquisition and a mode of transmission. 1 It would depend always on the parties’ standpoint. “Extent of the value of the inheritance”.– Under Art. 1311 of the law on Obligations and Contracts, the law says that an heir is not liable beyond the value of the property he received from the decedent. Art. 1311 is intended to emphasize the definition of succession. An heir cannot be made liable beyond the value of the inheritance. This is because the heir is

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merely entitled to the residual portion of the estate. He will only get what remains of the estate after the payment of debts. Before inheritance is transmitted, all obligations and debts must be paid first. It means that the heir cannot be held liable for the debts of the deceased because the estate will be answerable to all debts of the deceased. Can creditors of a debtor-heir participate in the settlement of the estate of the deceased? The answer must be qualified. If the decedent left debts, the creditor cannot participate. The heirs cannot enter into the inheritance before the settlement of the estate. Debts must all be paid before the heirs can enter into the inheritance. This is to prevent a situation wherein there will be nothing left for the heir to inherit. (Litonjua v. Montilla, G.R. L-4170, January 31, 1952) If, however, the decedent left no debts, the heirs can immediately enter into the inheritance. Here, creditors can intervene. They may attach or ask for the sale of the share of the debtor-heir. (Heirs of Reganon v. Imperial, G.R. No. L-24434, January 17, 1968; Testate Estate of De Borja v. Vda. De Borja, G.R. No. L-28040, August 18, 1972) CASES: 1. 2. 3. 4. 5.

Litonjua v. Montilla, G.R. L-4170 (January 31, 1952) Heirs of Reganon v. Imperial, G.R. No. L-24434 (January 17, 1968) Testate Estate of De Borja v. Vda. De Borja, G.R. No. L-28040 (August 18, 1972) Uson v. Del Rosario, et. al, 92 Phil. 530, G. R. No. L-4963 (January 29, 1953) Bonilla v. Barcena, G.R. No. L-41715 (June 18, 1976)

Art. 775. In this Title, “decedent” is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. Parties in Succession.– To know the parties to succession, one must make a distinction between testate and intestate succession. In testate succession, the parties are: 1. 2.

Testator; and Heirs, Legatees and/or devisees.

3 Caguioa 4-5, citing 4 Castan 148

MEESEEKS NOTES ON SUCCESSION

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Civil Code of the Philippines WILLS AND SUCCESSION Art. 778. Succession may be:

NOTE: Legatees and devisees can exist only in testate succession, because under the law a legacy or devise can only be given through a will.

(1) Testamentary; (2) Legal or intestate; or

In intestate succession, the parties are: 1. 2.

Decedent; and Heirs.

Definition of Terms.– The testator is a person who dies in testate succession. He left a will. The heir is a person who succeeds by universal title, either by will or by law. The decedent is a person whose property is transmitted through succession, whether he left a will or not. Legatee or devisee is a person who succeeds by particular title. Can a person be an heir, legatee or devisee at the same time? YES, he can be. However, it is only possible in testate succession because, remember, legatees and devisees only exist in testate succession, never intestate succession. Art. 776. The inheritance includes all the property, rights, and obligations of a person which are not extinguished by death. Art. 777. The rights of the succession are transmitted from the moment of the death of the decedent. Inheritance; Concept.– Inheritance is the bulk of the property which is transmitted to the successor. 2 It is defined by law as all the property, rights, and obligations of a person which are not extinguished by death. It is not the same as patrimony. Inheritance; Extent of Patrimony.– Patrimony is the sum total or aggregate of all the juridical relations of a person susceptible to economic valuation, whereas inheritance is limited to that portion of the patrimony of a person which is not extinguished by death. 3 Not all patrimonial properties and relations of the deceased constitute inheritance. Inheritance involves only a portion of the patrimony because it involves those property, rights, and obligations of the decedent not extinguished by his death. Patrimony is a broader concept, while inheritance is more limited. 2 3

3 Caguioa 9 Ibid.

MEESEEKS NOTES ON SUCCESSION

(3) Mixed. Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. Art. 780. Mixed succession is that effected partly by will and partly by operation of law. Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. Definitions of Inheritance.– Under the law, there are two (2) provisions which define inheritance: one under Art. 776, and another under Art. 781. Some authors say that there are two definitions of inheritance, while some contend that there is only one. Some say Art. 781 provides for a broader definition, while some say that Art. 781 does not define inheritance like Art. 776. DEAN ALIGADA’S VIEW: Art. 776 is the true definition of inheritance because it tells us what inheritance is. Art. 781 merely speaks of accretion, what accrues to the inheritance after the opening of succession. Art. 781 is an elaboration of Art. 776. What is included under Art. 781 cannot even be considered inheritance, according to Justice Paras. Accretion under Art. 781 is secured or added to the inheritance after succession has already taken place. Inheritance then must not be limited to property, rights, and obligations not extinguished by the death of the decedent, but must also include those that have accrued thereto. Opening of succession.– Succession is opened by death. It begins at the exact moment of death. Death closes the door on life, but opens up succession. The moment of death is the determining point when the heirs acquire the right to the inheritance whether such rights be pure, conditional,, or with a term. 4 However, this does not mean to say that the heirs can now enter into succession. The estate must be settled first.

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3 Caguioa 17

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Civil Code of the Philippines WILLS AND SUCCESSION Death, Concept. – The law contemplates two (2) kinds of death: 1. 2.

Actual death; and Presumptive death.

Art. 390 of the NCC provides that when a person has been absent for 7 years, the absentee shall be presumed for all legal purposes as dead, except for the purposes of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten (10) years. If he disappeared after the age of 75 years, an absence of five (5) years shall be sufficient in order that his succession may be opened. Note: The law merely provides for a presumption of death, but no presumption as to the time when death shall have taken place. 5 TESTAMENTARY SUCCESSION WILLS IN GENERAL Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death. Will; Definition.– Under Art. 783, a will is defined as “an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death.” A will must be in writing. It must be borne in mind that the right to make a will is a statutory right and must be subordinate to law and public policy. (Herreros v. Gil Vda. de Murciano, G.R. L-3362, March 1, 1951) Disposition of Property.– A will, to be considered as such, must contain a disposition of property or to be more precise, a will to come under the requirement of a probate must contain a disposition of property. (Montinola v. Herbosa, 3 C.A. 377)

Characteristics of Wills.– Art. 784 states one of the characteristics of a will, and that it is a personal act. However, other characteristics may be found in the Civil Code, to wit: 1.

It is a juridical act mortis causa;

2.

Individual, being executed by a single person;

3.

Personal;

4.

Free, in that it must not be vitiated by any vice of consent;

5.

Formal, because it must comply with the formalities prescribed by law; and

6.

Revocable.

Note: Characteristics merely refer to form or are mere descriptions of what a will is. They are not requisites, since they do not pertain to matters essential to its validity. Statutory right.– The right to dispose of property by will is not natural but statutory, and statutory requirements should be satisfied. The formalities which the legislature has prescribed for the execution of a will are essential to its validity, and cannot be disregarded. (Herreros v. Gil Vda. de Murciano supra.) Meaning of purely personal.– As Art. 784 provides, a will is a strictly personal act and cannot be left in whole or in part to the discretion of third persons or through the instrumentality of an agent. Does this mean that making a will must always be done by the testator alone? No. So does this mean now that the execution of a will can be delegated? A distinction must be made. What the law refers to is the disposition of property, and not to the mechanical act of writing or drafting of the document.

This disposition of property may be made directly or indirectly. (Merza v. Porras, 93 Phil. 142)

Thus, execution can be delegated, while the disposition of property can never be delegated. As to who does the mechanical act of writing is a matter of indifference. (Castañeda v. Alemany, 3 Phil. 426)

Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney.

Note: This applies only to ordinary or notarial wills, and not to holographic wills. This is because Art. 810 specifically provides that a holographic will be written, dated, and signed by the testator himself.

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3 Tolentino 21-22

MEESEEKS NOTES ON SUCCESSION

Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take,

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Civil Code of the Philippines WILLS AND SUCCESSION when referred to by name, cannot be left to the discretion of a third person.

consideration the circumstances under which it was made, excluding such oral declarations.

Art. 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied.

Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained.

Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. Testamentary Act.– What are the things a testator cannot do? The following cannot be left to the discretion of third persons: 1.

The duration of the designation of heirs, devisees or legatees;

2.

The efficacy of the designation;

3.

The determination of the portions which they are to take when referred to by name.

These three acts are in the substance of the making of a will as distinguished from a mechanical act. The testator cannot substitute the mind or will of another for his own. He should make use of his own will and this power is not subject to delegation. What are the things a testator can do? 1.

Delegate the mechanical act of writing a will, in case of ordinary or notarial wills; and

2.

The simple act of delivery of the testamentary property, but not the designation as to who is to receive it.

Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into

Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that 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; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. Note: Dean Aligada no longer discussed these Articles as they were self-explanatory. Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. Amount of interest which is deemed conveyed.– A devise is a disposition by will of real property; while a legacy is a disposition by will of personal property. A devise or legacy shall include all the interest which the testator could devise or bequeath in the property disposed of by will, the presumption being that the testator wills the whole interest unless it clearly appears another interest is conveyed in the will itself. 6 Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made.

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MEESEEKS NOTES ON SUCCESSION

3 Caguioa 36

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Civil Code of the Philippines WILLS AND SUCCESSION Extrinsic validity of a will.– The extrinsic validity of a will concerns itself with the forms and solemnities which the law prescribes. Intrinsic validity of a will.– Intrinsic validity of a will concerns itself with the following: 1. 2. 3.

The order of succession; Amount of successional rights; and Validity of testamentary provisions.

Validity; Governing laws.– What law will govern the validity of wills? The answer must be qualified. One must first make a distinction between extrinsic validity and intrinsic validity. If it is extrinsic, the law in effect at the time of the execution of will shall govern (Art. 795; Enriquez v. Abadia, 95 Phil. 627).

Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n) Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) Qualifications of a testator.– Articles 796799 provide for the qualifications of a testator, to wit:

If it is intrinsic, the law in effect at the time of the death of the testator will govern. The subsequent enactment of a law invalidating an otherwise validly executed will before such enactment cannot affect the validity of that will. The same is true for the opposite. A subsequent enactment of law validating an otherwise invalid will cannot validate that will. Rule as to intention.– The rule which states that the intention of the testator governs the validity of the will applies only to interpretation, not to the form of the will because what governs the form is the law itself. Note: Always distinguish between an ordinary will and a notarial will. Ordinary wills are those executed during the effectivity of the Code of Civil Procedure.

TESTAMENTARY CAPACITY AND INTENT Art. 796. All persons who are not expressly prohibited by law may make a will. (662) Testamentary capacity and Testamentary power; Definition.– Testamentary capacity is the power of the testator to execute a will provided he complies with the formalities prescribed by the law. Testamentary power is the power of the testator to dispose of his property by acts mortis causa. When does testamentary capacity apply? It applies when one makes a will. When does testamentary power apply? It applies upon the death of the person who made a will.

MEESEEKS NOTES ON SUCCESSION

1.

Must not have been expressly disqualified by law (Art. 796);

2.

Must not be under 18 years of age (Art. 797);

3.

Must be of sound mind (Art. 798);

4.

Must be know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act (Art. 799); and

5.

Must be a natural person.

Testator; natural person.– A testator must be a natural person in order to be able to make a will, because juridical persons do not possess soundness of mind. However, juridical persons may be designated as legatees or devisees, but never as heirs. 7 Age requirement.– The law expressly provides that persons below the age of 18 cannot make a will. Does this mean that a minor cannot make a will? The answer must be qualified. If the will was made during the time when the age of majority was 21 years old, then yes, a minor may make a will so long as he is at least 18 years of age. Presently, minors cannot be allowed to make a will because the age of majority is now 18 years of age by virtue of R.A. 6809, or what Dean Aligada refers to as the “Lina Law.” Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. 7

3 Tolentino 46

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Civil Code of the Philippines WILLS AND SUCCESSION The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n) Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) Sound mind; definition.– When we speak of soundness of the mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. (Art. 799, par. 1) things:

Soundness of the mind comprehends 3 1. 2. 3.

The testator must know the nature of the estate to be disposed of; The proper objects of his bounty; and The character of the testamentary act.

If the above elements are present, the testator is of sound mind. Art. 800 makes a rebuttable presumption in favour of a sound mind. This presumption begins from the birth of a person. Presumption of unsoundness of the mind.– While Art. 800 generally presumes soundness of the mind, it also presumes unsoundness of the mind. (Art. 800, par. 2) When is unsoundness of mind presumed by law? Unsoundness of the mind is presumed in 2 instances: 1.

If the testator, one month, or less, before making his will was publicly known to be insane (Art. 800, par. 2); and

2.

Whenever a will has been executed by a person under guardianship for insanity (Torres v. Lopez, 48 Phil. 772).

Note: Mere guardianship does not give rise to this presumption. The reason for the guardianship must be insanity for this presumption to take effect. Supervening incapacity or capacity.– Although Art. 801 says that supervening incapacity does not affect the validity of a will, a further qualification must be made with respect to this topic.

MEESEEKS NOTES ON SUCCESSION

If the supervening incapacity is temporary in character, then it will have no effect on the validity of the will. If the supervening incapacity is permanent, then, in this instance, it will affect the validity of the will. Art. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. FORMS OF WILLS ORDINARY OR NOTARIAL WILLS Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. Form.– A will must be: 1. 2.

In writing; and In a language or dialect known to the testator. (Art. 804)

These requirements apply to both ordinary or notarial wills and holographic wills.

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Civil Code of the Philippines WILLS AND SUCCESSION This means that there can be no oral will, and that it cannot be in a language or dialect unknown to the testator. Note: Art. 805 must be memorized. If any of the requirements are missing, the will becomes null and void. Even a slight departure from Art. 805 could mean the disallowance of the will. (See Abangan v. Abangan, 40 Phil. 476, 1919) Language or dialect known to the testator.– Is a will translated from a language or dialect unknown to the testator be considered valid? No, because the law does not allow the translation of the will. Translations are only allowed in Attestation Clauses. (Art. 805, par. 4) The act of translating and/or interpreting the will for the testator will not cure the defect so as to make the will valid. Therefore, the answer must be qualified: Insofar as the translating of the body of the will is concerned, Art. 804 will apply. It will be void. Insofar as the attestation clause is concerned, Art. 805, par. 4 will apply. It will validate the will. The testator has nothing to do with the attestation clause. 8 Requisites of a valid will.– To know the requisites of a valid will, one must first make a distinction. It must be ascertained whether it is an ordinary or notarial will or a holographic will. Distinguish first because the requisites are not the same for both kinds of wills. Ordinary or Notarial Wills; Requisites.– The requisites are as follows:

Numbered correlatively in letters placed on the upper part of each page; (Art. 805, par. 2)

7.

Must contain an attestation clause (Art. 805, par. 3); and

8.

Acknowledged before a notary public by the testator and the attesting witnesses. (Art. 806)

Distinction between ordinary and notarial wills.– What sets an ordinary will apart from a notarial will is the absence of acknowledgment. An ordinary will does not require acknowledgment before a notary public, and is governed by the Code of Civil Procedure. A notarial will requires acknowledgment before a notary public, and is governed by the Civil Code. Holographic Wills; Requisites.– It must be written, dated, and signed by the testator himself. (Art. 810) It needs no further formalities. Subscription and Attestation.– When a testator subscribes his will, he should sign it in his usual way of signing, provided that he knows how to write. If the testator knows how to write, and he signs it with a mark which is not the usual way he signs, the will is considered invalid. (Matias v. Salud, 104 Phil. 1046, G.R. No. L-10751, June 23, 1958; Garcia v. La Cuesta, 90 Phil. 489, G.R. No. L-4067, November 29, 1951) If he does not know how to write, he may either:

1.

It must be in writing; (Art. 804)

1.

Sign by any mark; or

2.

It must be in a language or dialect known to the testator; (Art. 804)

2.

3.

Subscribed at the end by the testator himself or by the testator's name written by some other person in his presence, and by his express direction; (Art. 805, par. 1)

Ask a third person under his express direction to sign for him in his presence and in the presence of the witnesses.

4.

5.

8

6.

Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another; (Art. 805, par. 1) The testator or the person requested by him to write his name and the instrumental witnesses of the will shall sign each and every page thereof, except the last, on the left margin; (Art. 805, par. 2)

3 Caguioa 76

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Is the signature of the third person who signed for the testator necessary for the will to be valid? No, it is not. Only the signature of the testator is necessary. (Barut v. Cabacungan, 21 Phil. 461, 1912) Can a witness sign for the testator? Yes, a witness can be made to sign for the testator provided that there are 3 other remaining witnesses to the will. Signing every page.– The law requires that the will be signed by the testator or the person requested by him to write his name and the instrumental witnesses of the will each and every

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Civil Code of the Philippines WILLS AND SUCCESSION page thereof, except the last, on the left margin. It must be complied with.

The reason for this is that the testator is not a party to the attestation clause.

However, where one page of the original of the will was not signed by the testatrix and the duplicate copy contains such signature, it may be allowed. (Icasiano v. Icasiano, 11 SCRA 422, G.R. No. L18979, June 30, 1964)

Requirements of the Attestation Clause.– The attestation clause must state the following:

Witnesses.– The law requires at least three (3) credible witnesses. A witness’ credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. (Gonzales v. Court of Appeals, 90 SCRA 183, May 25, 1979) Simply put, a credible witness is one who is capable of being believed. Witnesses; Credible and Competent.– A credible witness is not the same as a competent witness. The credibility of a witness depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth, whereas his competency to be an instrumental witness is determined by the statute, Art. 820 and 821. (Ibid.) A credible witness is one who is capable of being believed by the court, while a competent witness is one who possesses the qualifications required by law. Being a competent witness does not automatically make one a credible witness, because it is still up to the court whether or not to believe his testimony. Attestation Clause.– By the attestation clause it is meant that clause wherein the witnesses certify that the instrument has been executed before them, and the manner of execution of the same. This is a mandatory requirement of the law. Lack of it will invalidate the will. Purpose of the Attestation Clause.– It is made to preserve in permanent form a record of facts attending the execution of the will, so that in case of failure of the memory of the subscribing witnesses or other casualty, they may still be proved. Where must the attestation clause be placed? It can be placed anywhere in the will. So long as the will has an attestation clause, the place where it is put is immaterial. The attestation clause may even be placed on a separate instrument, provided that it is attached to the will.

The number of pages upon which the will is written;

2.

The fact that the will and every page thereof was signed by the testator, or caused some other person to write his name under his express direction, in the present of the instrumental witnesses;

3.

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

It must be signed by the witnesses at the end of the attestation clause. Failure on the part of the witnesses to sign at the bottom of the attestation clause is a fatal defect, which will cause the disallowance of the will. (Cagro v. Cagro, 92 Phil. 1032) DEAN ALIGADA’S VIEW: There is more wisdom in the dissenting opinion of the Court in Cagro than in the majority decision. The dissenting opinion in Cagro submits that nowhere in the Civil Code is it stated that the witnesses must sign at the bottom or end of the attestation clause. In fact, the law does not say where the witnesses should sign the attestation clause. So it is not correct to say that the witnesses’ act of signing the attestation clause on the left margin is not good. Language of the Attestation Clause.– It need not be in a language or dialect known to the testator because, as mentioned before, the testator has nothing to do with the attestation clause since that is a statement of the witnesses. It is also submitted that it need not be in the same language or dialect of the will itself because the law does not impose such a requirement. 9 It also need not be in a language or dialect known to the attesting witnesses because the law allows its translation. Acknowledgement before a notary public.– The law requires that ordinary or notarial wills be acknowledged before a notary public. There is no such requirement for holographic wills. Who must acknowledge the will before a notary public? 1. 9

MEESEEKS NOTES ON SUCCESSION

1.

The testator;

3 Caguioa 76

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Civil Code of the Philippines WILLS AND SUCCESSION 2.

The person requested by the testator to sign for him in his presence and by his express direction (if any); and

Holographic Wills; Requisites.– It must be written, dated, and signed by the hand of the testator himself. (Art. 810)

3.

The witnesses.

It needs no further formalities and it may be made within or without of the Philippines.

Acknowledgement before a notary public is a mandatory requirement and must be complied with, or else the will shall be disallowed. Where no one made the acknowledgement, the will is invalid. (In Re: Testate Estate of Vicente G. Alberto, G.R. L-11948, 1959) The acknowledgement cannot be made by the testator alone. He must be accompanied by the instrumental witnesses. (Garcia v. Gatchalian, 21 SCRA 1056) A notary cannot be a witness to a will where he was the notary before whom the acknowledgement was made, because he cannot acknowledge himself. (Cruz v. Villasor, 54 SCRA 33) Art. 807. If the testator be deaf, or a deafmute, he must personally read the will, if able to do so; otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (n) Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (n)

While Art. 810 speaks of the requisites of a holographic will, it must be correlated with Art. 804, which imposes an additional requirement – that it is written in a language or dialect known to the testator. Notice that Art. 804 does not make a distinction between an ordinary or notarial will and a holographic will. It only speaks of a will. Writing of a holographic will.– It must be written by the testator himself. In holographic wills, even the mechanical act of writing cannot be delegate by the testator to a third person. Dating of a holographic will.– The date of a holographic will can be placed anywhere in the will. It must be noticed that dating is a requirement of holographic wills and not of ordinary or notarial wills. The reason for this is that holographic wills are not witnessed, so the date placed in the instrument would be material in determining whether or not the testator possesses testamentary capacity at the time the holographic will was made.

Reading of the Will.– As a general rule, the witnesses to a will need not read the will, however they must know that what they are signing is in fact a will.

No such requirement exists in ordinary or notarial wills because witnesses who can testify as to the testator’s testamentary capacity are available.

This rule admits 2 exceptions, namely Art. 807 and 808. These are the only instances where witnesses are required to read the will. It must also be done in compliance with the abovementioned Articles.

No, it need not be. However, it must be dated and signed on the same day in order to be in compliance with Art. 810.

Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Art. 805. (n) HOLOGRAPHIC WILLS Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed.

MEESEEKS NOTES ON SUCCESSION

Must a holographic will be completed in one sitting?

What is the status of a holographic will where the date was placed before the disposition? It is VOID. The dating and the signing must be made on the same day. What if the testamentary disposition was written down but the date was put in the will later? It will validate the will because of the express provision of Art. 813. All requisites must concur for the will to be valid. Absent one of these the will is not valid yet. How should it be dated.– As a general rule, the date in a holographic will should include the date, month, and year (dd/mm/yy) of the execution. However, the exception applies when there is absence of appearance of fraud, bad faith, undue influence, and pressure and the authenticity of the

9

Civil Code of the Philippines WILLS AND SUCCESSION will is established and the only issue is compliance with Art. 810. Here, the will should be allowed under the principle of substantial compliance. (Roxas v. De Jesus, 134 SCRA 245, 1985) The court here will be liberal to prevent intestacy. Note: The exception laid down in Roxas applies only when the will is not contested. Remember, the object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud. Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a) Probate of a holographic will.– To probate a will means to prove that the instrument offered is the last will and testament of a deceased person who testamentary capacity it is alleged to be and (a) that it has been executed in accordance with law and (b) that the testator was of sound and disposing mind. 10 It is concerned with the allowance or disallowance of a will. It settles once and for all the capacity of the testator and the compliance with the requisites of law. Suppose there was no evidence presented as to the soundness of the testator’s mind. Should the will be admitted for probate? Yes, because there need not be any evidence as to the soundness of the mind of the testator. The law presumes soundness of the mind. (Art. 800) Would the answer be the same if it was the due execution of the will which was not proven? No, because noncompliance with the requirements of law on the formalities of a will shall result in its disallowance. Probate of a lost holographic will.– Can a lost or destroyed holographic will be admitted for probate, where only testimonial evidence was offered? No. If no will is presented and only testimonies of those who have seen or read the said will are presented, then it cannot be admitted for probate. The execution and contents of a lost or destroyed holographic will may not be proved by the 10

bare testimony of the witnesses who have seen and/or read it. The law regards the document itself as material proof of authenticity. (Gan v. Yap, 104 Phil. 509, 1958) Note: In Gan, attention must be directed to Footnote 8 of the Decision. What if a xerox copy of the holographic will was submitted? Will it be admitted for probate? Yes. The photostatic or xerox copy of a lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. (Rodelas v. Aranza, 119 SCRA 16, 1982) Note: The basis of the Court’s decision in Rodelas was based on footnote 8 of Gan. However, it does not mean to say that this doctrine was laid down in Gan since the footnote is not part of the decision. It was only in Rodelas that this doctrine was laid down by the Supreme Court. Witnesses required.– They are as follows: If the holographic will is uncontested, at least one (1) witness is required. (Art. 811, par. 1) If the holographic will is contested, at least three (3) witnesses are required. (Art. 811, par. 1) In the absences of any competent witness, expert testimony may be resorted to. (Art. 811, par. 2) Number of witnesses; mandatory.– In the case of Azaola v. Singson (109 Phil. 102, 1960), the Supreme Court, speaking through Justice J.B.L. Reyes, said that Art. 811 is merely permissive if absurd results are to be avoided. This ruling was reversed in Codoy v. Calugay (312 SCRA 333, 1999). Here, the Supreme Court, speaking through Justice Pardo, said that Art. 811 is mandatory because it uses the word “shall,” may the holographic will be contested or uncontested. Art. 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions. (n) Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) Refer to the discussion under Art. 810. Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic

3 Caguioa 125

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10

Civil Code of the Philippines WILLS AND SUCCESSION will, the testator must authenticate the same by his full signature. (n) Changes in a holographic will.– If subsequent to the making of a holographic will, the testator should make insertion, cancellation, alteration, or erasure in the will, the same is not valid unless they are authenticated by the full signature of the testator. If insertions, cancellations, alterations, or erasures are not authenticated by the testator, does that make the will void? It depends. The will itself remains valid; what is void are the unauthenticated insertions, cancellations, erasures, or alterations. 11 However, should the alterations or insertions affect the essence of the will of the testator then the whole will is void. Likewise, should it affect the date or signature, the validity of the will is affected if the same is not authenticated. 12 Full signature.– Full signature does not mean that the testator must sign his full name. What is meant is customarily the full signature of the testator even though the first name may only be initial. Full signature precludes signing of mere initials. While a testatrix may have had a change of heart, the will must be disallowed because the alteration was not authenticated in accordance with law because she did not sign in the usual way she signs, instead she signed using mere initials. (Kalaw v. Relova, 132 SCRA 237, 1984) Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) Art. 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. (n) Art. 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. (n) 11 12

Will executed abroad; governing law.- To determine the law that must be followed in case of a will executed abroad, first distinguish who executed it. If he is a Filipino: 1.

The law of the place where the will was executed; and

2.

Philippine Law

If he is an alien: 1.

The law of the place where the will was executed;

2.

The law of the place where he resides;

3.

The law of his nationality; and

4.

If he is in the Philippines, in accordance with Philippine Law

If a Filipino executed his ordinary will abroad, must he comply with Philippine Law? No, he need not to, provided he executed it in accordance with the law of the place where it was executed. Thus, he need not comply with the domicile requirement of the 3 witnesses to his ordinary will. However, if he executed it in accordance with Philippine Laws, such law must be followed. NOTE: These rules are applicable only to the extrinsic or formal validity of a will. Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) Art. 819. Wills, prohibited by the preceding Article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a)

WITNESSES TO WILLS Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in article 805 of this Code. (n) Art. 821. The following are disqualified from being witnesses to a will: (1) Any person Philippines;

not

domiciled

in

the

3 Caguioa 90 Ibid.

MEESEEKS NOTES ON SUCCESSION

11

Civil Code of the Philippines WILLS AND SUCCESSION (2) Those who have been convicted of falsification of a document, perjury or false testimony. (n) Qualifications of witnesses.1.

Must be at least 18 years of age;

2.

Must be of sound mind;

3.

Must be able to read and write;

4.

Must not be blind, deaf or dumb;

devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n) Witnesses as legatees or devisees.– Can a legatee or devisee be a witness to a will?

Disqualifications of witnesses.-

Yes, but his legacy or device shall be void.

5.

Must not be convicted of falsification of a document, perjury or false testimony; and,

However, where such legatee or devisee is accompanied by 3 other credible witnesses, the legacy or devise shall be valid.

6.

Must be domiciled in the Philippines.

Nevertheless, the legacy or devise shall remain void if one those 3 other witnesses is the legatee’s or devisee’s spouse, parent, or child.

NOTE: It is not enough that the witness possesses all the qualifications. He must have none of the disqualifications. Can the testator execute an ordinary will abroad, despite the requirement of domicile of his 3 witnesses? He cannot do so because of that requirement of domicile. However, he can execute a holographic will instead because it can be validly executed anywhere in the world; and, it is not burdened by such requirement. 13 Is a competent witness the same as a credible witness? No, they are not the same. A competent witness is a witness that satisfies all the qualifications and none of the disqualifications set forth by law. A credible witness, on the other hand, is a witness capable of being believed. To be more precise, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art. 820 and 821 of the Civil Code, whereas his credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. (Gonzales v. CA, 90 SCRA 183) Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n) Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such

Therefore, the giving of a legacy to a witness or to the spouse, or parent or child of such witness does not disqualify the witness as such. What is only nullified is the devise or legacy. 14 NOTE: Remember: Devise - it is a gift of real property Legacy - it is a gift of personal property Will the same rule apply if the legatee or devisee was instituted as an heir? The rule still applies, disqualified from inheriting.

such

heir

is

Although the law provides no provision for such disqualification, the heir is nevertheless disqualified because the law does not make any distinction in the manner by which the one succeeds, succeeding as an heir, legacy, or devisee. 15 Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n) Creditor as heir.– The creditor in whose favour such devise or legacy is made may still be a competent witness to the will, and at the same time entitled to the legacy or devise since in reality it is not a legacy or devise but a mere payment of an obligation. 16 The law does not consider it a gift, but rather it is payment. 3 Caguioa 101 3 Tolentino 112,cited in 3 Caguioa 100 16 3 Caguioa, supra. Note 12 14 15

13

3 Caguioa 99

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12

Civil Code of the Philippines WILLS AND SUCCESSION CODICILS AND INCORPORATION BY REFERENCE

Requisites for Incorporation by reference.– Four (4) requisites must be complied with:

Art. 825. A codicil is supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which disposition made in the original will is explained, added to, or altered. (n) Art. 826. In order that a codicil may be effective, it shall be executed as in the case of a will. Codicil; Concept.- It is a supplement or addition to a will. It is some addition or qualification of one’s last will and testament.

1.

The document or paper referred to in the will must be in existence at the time of the execution of the will;

2.

The will must clearly describe and identify the same, stating among other things the number of pages thereof;

3.

It must be identified by clear and satisfactory proof as the document or paper referred to therein; and

4.

It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.

Is a codicil a will? Yes, only if it is executed as in the case of a will; otherwise, it is a mere supplement. Must a codicil be submitted to a probate to pass property? If it is executed as in the case of a will, it must pass through a probate.

NOTE: These requisites may either appear on the face of the will and some may be shown by extrinsic evidence. On the face of the will, it must appear: 18

Art. 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: (1) The document or paper referred to in the will must be in existence at the time of the execution of the will;

(3) It must be identified by clear and satisfactory proof as the document or paper referred to therein; and

Incorporation by reference.– The doctrine of incorporation by reference means the incorporation of an extrinsic document or paper into a will so as to become a part thereof. This is an exception to the rule that if an instrument is not executed with all the formalities of a will it cannot be admitted to probate. 17

A distinct reference to the writing or document incorporated;

2.

A clear description and identification of the writing or document; and

3.

The will must state the number of pages of the document or writing.

If through extrinsic evidence: 19

(2) The will must clearly describe and identify the same, stating among other things the number of pages thereof;

(4) It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. (n)

1.

1.

That the document was in existence at the time the will was made; and

2.

That the document or writing incorporated must be identified by clear and satisfactory proof as the document or paper referred to therein.

NOTE: It would seem that there can be no incorporation by reference in the case of holographic wills since it is required that each and every page of the document be signed by the testator and the witnesses. Such requirement are not necessary in holographic wills. 20

It is an independent, separate instrument made a part of the will or incorporated in the will. 3 Caguioa 102-103 Ibid. 20 3 Caguioa 106 18 19 17

3 Caguioa 102

MEESEEKS NOTES ON SUCCESSION

13

Civil Code of the Philippines WILLS AND SUCCESSION REVOCATIONS 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. (737a) Revocation of wills; concept.– It is an act of the mind terminating the potential capacity of the will to take effect after the death of the testator, manifested by a visible and outward act or sign, symbolic thereof. A will is entirely in operative and wholly ineffective for any purpose during the lifetime of the testator. This essentially makes the will revocable at any time before the testator dies. of paper.

direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (n) Ways of revoking a will.– The law provides for only 3 ways to revoke a will, namely: 1.

Illustration: Legal Separation There must be an issuance of a decree of legal separation in its finality for it to take effect.

It has not taken effect yet. It is but a mere scrap

Once there is finality, the guilty spouse becomes disqualified to succeed from the innocent spouse because of the former’s loss of worthiness to succeed.

NOTE: It is not the will which has been terminated, but the potential capacity of the will to operate, because a will has yet to take effect during the lifetime of the testator.

Should the innocent spouse condone the guilty spouse, does it entitle the latter to succeed the former again?

Suppose X executed a will containing a provision acknowledging Y as his child. Later on, the will was revoked during X’s lifetime. Is the acknowledgment of Y as a child of X likewise revoked?

It depends. If the loss of worthiness is based on the law of succession, the guilty spouse must be pardoned by the innocent spouse.

No, it is not. The act of acknowledgment immediately produces effect, so much so that it is not included in the revocation. It is not dependent upon the death of the testator to take effect. (See Art. 834) Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. (n) Art. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express

MEESEEKS NOTES ON SUCCESSION

By implication of law;

If the loss of worthiness is based on the law of legal separation, the there must be reconciliation 21 between the spouses. 2.

By a subsequent will or codicil; and,

3.

By an act of physical destruction coupled with the intention to revoke.

By jurisprudence, a will may be revoked by crumpling (Vda. De Roxas v. Roxas, 87 Phil. 692) Acts of Physical Destruction.– A will can b revoked by doing any of the following acts: 1. 2. 3. 4. 5.

Burning; Tearing; Canceling; Obliterating; (Art. 830 [3]) and Crumpling (Vda. De Roxas v. Roxas, supra.)

21The resumption of marital relations. One act considered as such resumption is enough to be considered as reconciliation.

14

Civil Code of the Philippines WILLS AND SUCCESSION Such acts must be coupled with the intention to revoke (animus revocandi) in order to effectively revoke a will. Such intention is only necessary in these acts of destruction. Why is animus revocandi not necessary in the first two cases? The will of the testator is immaterial in the first two (2) cases. In the first case, the revocation takes place by operation of law. In the second case, the manifestation of making another will constitutes animus revocandi. How much of the will must be torn or burned in order for the will to be considered as revoked? The law does not say how much of the will must be torn or burned. So long as it is done with the intent to revoke, it does not matter how much is torn or burned. It will still be revoked. It need not be totally destroyed. It is sufficient that on the face of the will or instrument, there is shown some sign of the physical act of destruction. Suppose the will was revoked by the testator by writing the word “cancelled” on the back of the will, is that a valid revocation? There is a difference in opinion. Nevertheless, it is submitted that it can be written in the back of the will and it must bear the date and signature of the testator. Here, the revocation can be considered revocation by subsequent instrument, may it be a holographic will or codicil. 22 DEAN ALIGADA’S VIEW: There is no law saying where the word “cancelled” must be written on the will. Who can destroy the will? It may be the testator himself; or, any other person, provided, the act of destruction is done in the presence of the testator at his (testator’s) express direction. Art. 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills. (n) Art. 832. A revocation made in a subsequent will shall take effect, even if the new will should 22

become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a) Doctrine of Dependent Relative Revocation.– To put it simply, the revocation is deemed conditional – its validity being conditioned on the effectivity of the revoking will. The revocation is subject to a suspensive condition. Thus, if the revoking will turns out ineffective, the revocation shall not take effect. If the new will is inoperative, the original will remains in full force and effect. Revoking will.– previously executed wills.

The will that revokes

The execution of the revoking will serves as proof that the testator had no intention of dying intestate; thus, the revoked will must still be probated despite the invalidity of the revoking will (Vda. De Molo v. Molo 90 Phil. 37, 1951) Revoked will.– The will that is revoked by a revoking will. If the testator executed a hundred wills which, among those, must be submitted for probate? It depends. If there is an express revocation, only the revoking will must be probated because all other will previously executed are deemed revoked. If there is an implied revocation, both the revoking will and the revoked will must be submitted because some dispositions in the latter might still be effective. Art. 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n) Revocation based on a false or illegal cause.– If the testator revokes a will on the basis of a false or illegal cause, the revocation is not automatically null and void. A distinction must be made as to the method of revocation used by the testator. If the revocation is done through a physical act of destruction, the revocation will be considered null and void. If the revocation was made through the execution of a subsequent instrument, the reason relied

3 Caguioa 114

MEESEEKS NOTES ON SUCCESSION

15

Civil Code of the Philippines WILLS AND SUCCESSION upon by the testator for revoking the will must appear on the face of the will for the revocation to take effect. 23

if the testamentary capacity of the testator is not proved, the will will be allowed.

Art. 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (714)

This is so because the law always presumes soundness of the mind. (Art. 800)

See discussion under Art. 828. REPUBLICATION AND REVIVAL OF WILLS Art. 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. (n) Art. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n) Art. 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. (739a)

ALLOWANCE AND DISALLOWANCE OF WILLS

Can the probate court inquire on the intrinsic validity of the will? As a general rule, the intrinsic validity of a will is touched by the court in a separate proceeding after its allowance or probate (Palacios v. Palacios, 1959) By way of exception, the probate court may inquire the intrinsic validity of the will based on practical considerations where no benefit would be gained in remanding the case to the lower court and such remanding would only result to waste of time, effort, expense, and added anxiety (Nuguid v. Nuguid, 17 SCRA 449, 1966) What kind of proceeding is a probate? It is a proceeding in rem because the findings thereof cannot be questioned by anyone; and, publication thereof is required for it is binding against the whole world. What is the nature of probate?

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

Probate is a necessary proceeding for the law expressly provides that no will shall pass any property, except through probate. (Art. 838)

The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern.

When must a probate of the will take place? Under the old law, probate only takes place after the testator’s death (post-mortem).

The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.

Under the new law, it may take place before death (ante-mortem) or after death of the testator. In this case, the testator has a right to initiate the proceedings during his lifetime.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. (n)

NOTE: Defects in the will can be corrected in antemortem probate, however it is not so in the case of postmortem probate.

Inquiries made in a probate.- The probate court must inquire on the following facts: 1.

The extrinsic or formal validity of the will; and

2.

The testamentary capacity of the testator at the time he executed the will.

If the due execution of the will was not proved, the will will be disallowed. On the other hand, 23

3 Caguioa 120, citing Am. Jur.

MEESEEKS NOTES ON SUCCESSION

Probate of a holographic will.– Please refer to the discussion under Art. 811. Probate; Mandatory.– Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance of probate by the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be

16

Civil Code of the Philippines WILLS AND SUCCESSION dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. (Guevara v. Guevara, 74 Phil. 479) Because of this nature of probate, the statute of limitations is not applicable to probate proceedings (Guevara v. Guevara, 8 Phil. 249), because these are not exclusively established for the interest of the surviving heirs, but primarily for the protection of the testator’s express wishes that are entitled to respect as an effect of the ownership and right of disposition. NOTE: There are two Guevara cases. The first speaks of necessity of probate, while the second speaks of its imprescriptibility. Furthermore, the principle likewise does not apply to probate (Testate Estate of Obispo v. Obispo, 50 would be non sequitur to allow public evaded on the pretext of estoppel.

of estoppel proceedings. O.G. 614) It policy to be

NOTE: Based on his discussion in 3B, Dean Aligada seemed to have switched the two cases – Guevara speaking of estoppel, while Obispo speaking of prescription. It should be the other way around. Probate of a revoked will.– To understand this concept better, a distinction between an expressly revoked will and an impliedly revoked will must first be made. An expressly revoked will cannot be admitted to probate and its testamentary dispositions become ineffective. An implied revocation will not affect the will itself but merely the particular devise or legacy. Hence, it can be admitted for probate.

Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n) Dean Aligada no longer discussed this part with us. INSTITUTION OF HEIRS Article 840. Institution of heir is 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. (n) Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764) Is it necessary that a will should contain an institution?

In other words, only total and absolute revocation can preclude probate of a revoked will. 24

No, it is not necessary. A will can be valid even though it contains no institution of an heir.

Foreign will probated abroad.– A will already probated abroad need not be probated in the Philippines again. However, another proceeding is still required for the purposes of establishing the fact that such will has been admitted for probate and allowed in the foreign country concerned.

If a will is executed without an institution of an heir, how can it pass property?

24

3 Caguioa 132

MEESEEKS NOTES ON SUCCESSION

In case of absence of institution of an heir in a will, the order of intestate succession shall be applied. Article 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.

17

Civil Code of the Philippines WILLS AND SUCCESSION One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a) Article 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772) How does one institute an heir? To institute an heir, the testator must designate him by his name and surname. If he is identical with another, some circumstance must be stated to make the designated heir known. Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir. (773a) Can an unknown person be instituted as an heir? GR: No, an unknown person cannot be instituted as an heir. XPN: If he can be identified by some other circumstance, an unknown person can be instituted as an heir.

Article 846. Heirs instituted without designation of shares shall inherit in equal parts. (765) In making an institution of an heir, is it enough that the heir be identified without stating therein the amount of disposition they should receive? Yes, in this case, the heirs are considered to inherit in equal amounts. NOTE: In order for the equal sharing to apply, the instituted heirs must belong to the same class; otherwise, they won’t be sharing anything. Article 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a) Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a) Article 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (771) Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a) Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate.

NOTE: It is essential that he must be identified; otherwise, he is an unknown heir incapable of succeeding.

The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n)

Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a)

Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)

MEESEEKS NOTES ON SUCCESSION

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Civil Code of the Philippines WILLS AND SUCCESSION Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n)

owner.

Under the new law: rights of an absolute

What may be the object of preterition? The object of preterition may be a person (real compulsory heir) or a property.

Article 854. The preterition or omission 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 of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

If it is preterited in the will, the rules governing intestate succession will apply as to the omitted parts.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a)

If it is preterited in partition, the omitted parts will be subjected to a collation first and will be subjected to a further division.

Preterition; definition.- As a term, it means omission. The law defines it as the total omission of a compulsory heir in the direct line.

Can there be preterition in case of a real compulsory heir predeceasing the testator?

Real Compulsory Heir.– A compulsory heir in the direct line.

What are the effects if a property is alienated?

Yes, only if there is a right to representation. Illustration:

NOTE: A mere omission of an heir does not amount to a preterition. In order for preterition to exist, the omitted heir must be a real compulsory heir.

TESTATOR

Can an adopted child be preterated? Under the old law, an adopted child cannot be preterited because preteration occurs only if a real compulsory is totally omitted. A real compulsory heir is related by blood to the testator; however, an adopted child’s relationship with his adopter is only by fiction of law. Under the new law on adoption (Domestic Adoption Act, RA 8552), an adopted child can be preterited. They can now be preterited because adopted children are now given the same rights as a legitimate child without discrimination (Akain v. Diokson, 239 Phil 96).

A

B

C

(married)

(married)

(single) (omitted)

In this case, in the event that C predeceases the Testator, there is no preterition because there is no right of representation. Illustration:

TESTATOR

NOTE: A surviving spouse cannot be preterated although a compulsory heir because she is not in the direct line (Akain v. Diokson, 239 Phil 96). What is the remedy of the surviving spouse if omitted from the will? Their remedy lies in Art. 906, they may demand for the completion of their legitime.

A

B

C

(married)

(married)

(married) (omitted)

Rights of a surviving spouse.Under the old law: rights of a usufructuary

C1 MEESEEKS NOTES ON SUCCESSION

19

Civil Code of the Philippines WILLS AND SUCCESSION

In this case, in the event that C predeceases the Testator, there is preterition because there is a right of representation on the part of C1. NOTE: Right of representation is a right by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

VOLUNTARY HEIR

COMPULSORY HEIR

In case of predecease, incapacity or repudiation, he transmits nothing to his heirs.

GR: In case of predecease, incapacity or repudiation, he also transmits nothing to his heir. However, when there is right of representation he may transmit his rights to his heirs.

It takes place in the direct descending line, and in the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood.

XPN: Right of representation does not apply in the case of repudiation.

Is preterition the same as disinheritance? No, they are not the same.

SUBSTITUTION OF HEIRS

PRETERITION

DISINHERITANCE

It is the total omission of an heir in the will because he is neither mentioned; or, he is mentioned but he is not instituted as an heir nor is he disinherited.

It is the deprivation of a legitime of a compulsory heir by virtue of a just cause provided by law.

It is always voluntary because it is expressly made.

It is presumed involuntary but may be voluntarily made.

It only applies to real compulsory heirs.

It applies only compulsory heirs.

Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (n) Article 858. Substitution of heirs may be: (1) Simple or common;

to

Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. (1080a) Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a) Rights of an heir. – Such rights depend upon the kind of heir involved, voluntary or compulsory.

MEESEEKS NOTES ON SUCCESSION

(2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary. (n) Substitution; ways of substitution – The law provides for four ways, namely: 1. 2. 3. 4.

Simple or common (vulgar); Brief or Compendious; Reciprocal; Fideicommisary

NOTE: In reality, there are only two kinds of substitution: simple (direct substitution) and fideicommisary (indirect substitution). Reciprocal, brief, and compendious are mere variations of simple substitution. What is the purpose of substitution? It is to prevent intestacy. NOTE: Substitution allows only the free portion to be its subject because legitimes cannot be subject to substitution (Art. 904).

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Civil Code of the Philippines WILLS AND SUCCESSION Article 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. (774) Simple Substitution.– The designation of the testator of a certain person or persons to substitute an heir or heirs in case the latter: (i) predeceases the testator (predecease); (ii) repudiates the inheritance (repudiation); or (iii) (incapacity).

becomes

incapacitated

to

succeed

NOTE: The above mentioned are the causes which allows substitution of heirs. Such grounds are not exclusive. Is it necessary for the testator to put the ground for substitution?

provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. (780) Reciprocal Substitution.- It is a kind of substitution where heirs are designated as substitutes of one another. Article 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (781a) Fideicommissary Substitution.- It is a kind of substitution where the testator designates two heirs: the first one called a fiduciary heir who is imposed with the obligation to preserve the thing inherited and transmit the same to the second heir called the fideicommissary heir. Illustration:

A

As a rule, he must specify the ground for substitution. However, if he fails to state the ground, substitution can still take place on any of the aforementioned causes. Article 860. Two or more persons may be substituted for one; and one person for two or more heirs. (778) Brief Substitution – a kind of substitution where two or more persons are substituted in the place of a single heir. Compendious Substitution - a kind of substitution where one person is substituted in the place of two or more heirs. Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution. (779a) Article 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless and testator has expressly

MEESEEKS NOTES ON SUCCESSION

B

C

First heir, son of A, ordered to preserve A’s property and transmit it to C.

Second heir, son of B, substitutes B in the property.

In the given illustration, if the estate amounts to 1,000,000 pesos, how much can the fideicommissary heir receive? The fideicommissary heir can only 500,000 pesos because the substitution only applies to the free portion. If there are compulsory heirs, remove the legitimes first. B being a legitimate child of A, he is entitled to ½ of A’s estate. In what capacity does the first heir hold the inheritance? He only holds it as a mere usufructuary because he has the obligation to preserve the property of the testator. In addition to this obligation, he is also

21

Civil Code of the Philippines WILLS AND SUCCESSION prohibited to alienate such property because of his corollary duty to transmit it to the second heir. Is the capacity of a fiduciary heir the same as a reservor? FIDUCIARY HEIR

RESERVOR

In this case, the father is one degree from the child. The grandfather, on the other hand, is 2 degrees from the child. Article 864. A fideicommissary substitution can never burden the legitime. (782a)

He is created by the will of the testator.

He is created by law.

Article 865. Every fideicommissary substitution must be expressly made in order that it may be valid.

He enjoys the property as a mere usufructuary.

He enjoys the property as an owner. He may alienate such property subject to its reservable nature.

The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise. (783)

Why is the first heir called a fiduciary heir? He is called a fiduciary heir because he holds in trust or he is obligated to preserve the propertry inherited from the testator until that moment of transmission. The law provides that the second heir must not go beyond “one degree from the first heir. What does “one degree” mean? In the case of Ramirez v. Ramirez, if the second heir pertains to a natural person, it means one degree of relationship. Consequently, only the parent or child of a fiduciary heir can be made a fideicommissary heir. However, if the second heir pertains to a juridical person, it means one degree of transfer. How is one degree counted? Always start counting from the progenitor. From there, subtract one degree.

Article 866. The second heir shall acquire a right to the succession from the time of the testator's death, even though he should die before the fiduciary. The right of the second heir shall pass to his heirs. (784) How long can a fiduciary hold the property? It depends. If the testator gave a period or term, such must be followed. Thus, the fiduciary holds the property up until its expiration. However, if there is no period or term given by the testator, the fiduciary can hold the property during his entire lifetime. Is it essential that a period be given by the testator? No, it is not necessary. It is presumed that the testator wanted the first heir to enjoy the property during his lifetime. effect:

Illustration:

3

Grandfather

minus 1 = 2 degrees

2

Father

minus 1 = 1 degree

1

Child (Progenitor)

MEESEEKS NOTES ON SUCCESSION

Article 867. The following shall not take

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in article 863; (3) Those which impose upon the heir the charge of paying to various persons successively, beyond the limit prescribed in article 863, a certain income or pension;

22

Civil Code of the Philippines WILLS AND SUCCESSION (4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. (785a) Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. (786) Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of article 863 shall apply. (787a) Can a testator, with respect to the property he leaves, give it (the ownership) to another and give the right to use (usufruct) to another? Yes, the law allows it under Art. 869. between: usufruct.

In the case of usufruct, make a distinction simultaneous usufruct and successive

In simultaneous usufruct, all the usufructuary can enter in the enjoyment of the property at the same time. In successive usufruct, the “one degree” rule will apply. Thus, the first usufructuary must not be beyond one degree of the second usufructuary. Article 870. The dispositions of the testator declaring all or part of the estate inalienable for more than twenty years are void. (n) CONDITIONAL TESTAMENTARY DISPOSITIONS AND TESTAMENTARY DISPOSITIONS WITH A TERM Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. (790a) Conditional Dispositions; Dispositions with a Term.– Institution of heirs may be subject to a condition, term, or a mode. What are the kinds of conditions a testator may impose? Any conditions may be imposed, such as: 1.

2. 3. 4. 5.

Resolutory; Potestative; Casual Mixed

NOTE: It is only the free portion that can be subjected to conditions for the legitime can never be burdened. By not complying with the conditions imposed by the testator, the compulsory heir merely loses his right to the legacy, devise or the free portion never the right to the legitime (Broce v. Marcellana, CA L-10896, 1954). Art. 872. The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed. (813a) Art. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. (792a) Art. 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter's ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. (793a) What is the rule on prohibitions to marry as a testamentary condition? If it is an absolute prohibition to marry, it shall be deemed void and considered not written. The institution or disposition remains valid. The reason for its nullity is the violation of the right of an individual to choose his own status. However, as an exception, such absolute prohibition to marry as a condition remains valid if made by: (i) the testator; (ii) their descendants; or, (iii) their ascendants, on the widow or widower. If it is a relative prohibition to marry, relative as to the person, time or place of marriage, it is considered valid.

Suspensive

MEESEEKS NOTES ON SUCCESSION

23

Civil Code of the Philippines WILLS AND SUCCESSION However, if such relative impositions would, in effect, absolutely prohibit a person to marry (i.e. a person residing in the rural area is prohibited from marrying anyone from the rural area and is required to marry a person in the urban area, when such person has no means to go to such a place), it will be considered as an absolute prohibition to marry, thus deemed void. If what is being bequeathed or devised is the right of usufruct, or an allowance or some personal prestation, regardless of an absolute or relative prohibition to marry, such condition is still deemed valid. NOTE: The prohibition to marry partakes of a nature of a resolutory condition.

security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. (800a) What is the difference between caucion muciana and caucion juratoria? CAUCION MUCIANA

CAUCION JURATORIA

It is the security required in lieu of a bond which answers for the failure to return the property subject to the potestative condition.

It is the security given in lieu of a usufruct.

What if the condition was to compel one to marry? It remains valid because what the law prohibits is the absolute prohibition to marry. Art. 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void. (794a) Art. 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator's death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again. (795a) Art. 877. If the condition is casual or mixed, it shall be sufficient if it happens or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. (796) Art. 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. (799a) Art. 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a

MEESEEKS NOTES ON SUCCESSION

What is the effect of a potestative condition? In the law on obligations, if such was imposed on the debtor, the whole obligation will be void. If it was, on the other hand, imposed on the creditor, the obligation will remain valid. In the law on succession, the institution or disposition subject to such condition remains valid because in succession, the testator cannot change the condition since it is an act mortis cause. Art. 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. (801a) When is the estate placed under administration? 1. 2.

During the pendency of fulfillment of a suspensive condition; If the heir does not give the required security.

NOTE: If the disposition is subject to a suspensive term, the legal heirs will enter into the enjoyment of the estate upon giving security and until the term has commenced (Art. 885, par. 2) Art. 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration

24

Civil Code of the Philippines WILLS AND SUCCESSION and the rights and obligations of the administrator shall be governed by the Rules of Court. (804a) Art. 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. (797a) When does an institution become a modal institution? It is considered a modal institution whenever the testator states: (i) the object or purpose of the institution; testator;

(ii) the application of the property left by the (iii) a charge imposed by the testator.

Art. 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to and in conformity with his wishes. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. (798a) Art. 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. (791a) Art. 885. The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. (805)

MEESEEKS NOTES ON SUCCESSION

LEGITIMES Art. 886. Legitime is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. (806) Legitime; definition - that part of the testator’s property which he cannot dispose of because the law reserves it in favor of certain heirs called compulsory heirs. NOTE: “cannot dispose of” means disposal in a gratuitous manner. Such disposal does not apply to onerous dispositions (i.e. sale, gambling) because in this case, the property is merely converted into another thing of value. Gratuitous disposition; 2 ways 1. 2.

Donations (Donations inter vivos); By way of succession (Donations mortis causa).

Purpose of legitimes - to protect the support which the heirs are entitled to as if the decedent was still alive. Kinds of Legitimes FIXED LEGITIMES

VARIABLE LEGITIMES

Its value does not change despite the presence of concurring heirs (i.e. surviving spouse and illegitimate children)

Its value changes depending on the concurring heirs.

What is the difference between legitimes and the free portion? LEGITIMES

FREE PORTION

Legitimes cannot be disposed of or imposed with conditions.

The free portion can be freely disposed of or imposed with conditions.

Only the compulsory heirs are entitled to the legitimes.

All kinds of heirs may be entitled to the free portion.

25

Civil Code of the Philippines WILLS AND SUCCESSION What is the difference between the free portion and the absolute free portion? FREE PORTION

ABSOLUTE FREE PORTION

That part of the testator’s estate which remains after the legitimes of the primary compulsory heirs have been taken out.

That part of the testator’s estate which remains after the legitimes of the surviving spouse and the illegitimate children have been taken out..

The legitimes of the surviving spouse and the illegitimate children must still be respected.

This can be given to anyone by the testator.

NOTE: In case the legitimes of the surviving spouse and the illegitimate children exceed the free portion, only the legitimes of the illegitimate children may be reduced but never that of the surviving spouse.

What are the 2 kinds of heirs? VOLUNTARY HEIRS

COMPULSORY HEIRS

Those heirs instituted in a will in order to succeed.

Those heirs who need not be instituted in a will because the law reserves for their favor a certain part of the testator’s estate.

They inherit only virtue of a will.

by

They inherit by operation of law.

What they receive is part of the free portion.

Primary compulsory heirs do not receive from the free portion. The law specifically reserves a part of the testator’s estate in their favor.

Compulsory heirs - in our present laws, the following are compulsory heirs:

Art. 887. The following are compulsory heirs:

1.

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

2.

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287. Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a)

Legitimate children and descendants of the testator; The adopted children of the testator;

NOTE: Adopted children now possess the same rights as that of a legitimate child (RA 8552, Domestic Adoption Act); 3.

4.

In the absence of the aforementioned heirs, the legitimate ascendants and descendants of the testator; Surviving spouse (widow or widower) of the testator, despite presence of the aforementioned heirs;

When does a spouse become a surviving spouse? When there is a valid marriage between that spouse and the testator. In the case of Enrico v. Heirs of Sps. Medinacelli, children of the deceased have no locus standi in the declaration of nullity or annulment of their parents’ marriage. Such right is exclusively given to the spouses by virtue of A.M. No. 02-11-10-SC, under the Family Code. Furthermore, such right can only be exercised during the spouses’ lifetime. In the case of Niñal v. Bayadog, on the other hand, children can question the validity of their parents’

MEESEEKS NOTES ON SUCCESSION

26

Civil Code of the Philippines WILLS AND SUCCESSION marriage. They can do so during the settlement of their parents’ estate, however, they cannot bring a primary action questioning such validity. NOTE: If the contested marriage was contracted during the effectivity of the New Civil Code, the Niñal doctrine applies. If it was contracted during the effectivity of the Family Code, the Enrico doctrine applies. Thus, it could be said presently, only the spouses may bring the action questioning their marriage’s validity. Not even the State can interfere. 5.

Illegitimate children, despite the presence of the aforementioned heirs.

NOTE: Under the Family Code, mere proof of filiation made by the illegitimate child entitles him to inherit from the testator (Art. 175, E.O. 209, Family Code). Under the present law (Family Code), only one kind of illegitimate child is recognized, that being a natural illegitimate child. Under the old law (New Civil Code), there are two kinds of illegitimate children: spurious illegitimate children and natural illegitimate children. The former pertains to those born outside of a valid wedlock whose parents are with a legal impediment to marry each other, while the latter pertains to those whose parent are not suffering from any legal impediment to marry each other. Art. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (808a) Art. 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants. The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (809a) Art. 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor.

If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. (810) Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. (871) Reserva Troncal; definition.– It is a special rule designed primarily to assure the return of a reservable property to the third degree relatives belonging to the line from which the property originally came, and avoid its being dissipated into and by the relatives of the inheriting ascendant. Purpose of Reserva Troncal.- Its purpose os to prevent the transfer of property to the other line. Parties - The following are the parties in a Reserva Troncal: 1. 2. 3. 4.

Origin; Praepositus; Reservista or Reservor; Reserva or Reservee

Same; Origin - these may be ascendants, brothers, or sisters of the propositus. The property subject of reserva troncal comes from them. They dispose of such property gratuitously in favor of the praepositus. Same; Praepositus - a descendant, or a sibling of the origin. He receives the property from the origin by a gratuitous title. NOTE: He is deemed an absolute owner of the property received from the origin, thus, he may alienate said property in any way he wants. For this matter, he is also known as the arbiter of Reserva Troncal because it is up to his acts if said property would be reservable or not. Is the manner of acquiring the property by the descendant (praepositus) from the ascendant (origin) and transmitting the property to the other ascendant (reservor) from the descendant (praepositus) the same? No, they are not the same.

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27

Civil Code of the Philippines WILLS AND SUCCESSION If the transfer is from the origin to the praepositus, the property must pass by gratuitous title. If the transfer is from the praepositus to the reservor, the property must pass by operation of law and without any issue. Same; Reservista or Reservor - Another ascendant of the praepositus. He receives the property from the praepositus and has the obligation to reserve it in favor of the praepositus’ relatives within the third degree.

nature. He cannot dispose of the property because of his obligations to the same.

He can dispose of the reservable property but it is subject to its reservable character.

NOTE: The fiduciary heir’s obligations are predicated or sourced upon the mandate of the testator not by law.

NOTE: In order for the property to be reservable, the reservista must receive such property by operation of law and without any issue.

Same; Reserva or Reservee.- These are relatives within the third degree of the praepositus, within the same line where the origin belongs to. They are the ones entitled to the reserved property.

What does “without issue” mean?

What is the Double Degree of Relationship Rule?

It means that the praepositus must not have any descendants, for in that case, the property will go down to the descendants. Thus, no Reserva Troncal has been created in this case.

This rule provides that the reservee must be related by consanguinity to the origin AND the praepositus. The reason for this rule is the very purpose of Reserva Troncal, that is, to prevent the transfer of the property from one line to another.

What is the reservor’s right over the reservable property? He only has the right of ownership. Can the reservor destroy, alienate, etc. the reservable property? Yes, but he will be liable to the reserves to the value of the property. Can the reservable property be used to satisfy the reservor’s debts? During the lifetime of the reservor, the reservable property falls under his assets; thus, it can be used to satisfy his debts. However, if the testator is already dead, it cannot be used to satisfy his debts because it automatically passes in favor of the reservees. What is the difference between a fiduciary heir and a reservor?

Can an adopted child be a reservee? DEAN ALIGADA’S VIEW: No, an adopted child cannot be a reservee because of the double degree of relationship rule. Despite Adoption Act), reservee is not virtue of such preterited.

the passing of RA 8552 (Domestic such rights of the adopted as a affected or granted. However, by law, the adopted child may be

When does the reservee acquire the right to the reservable property? The reservee acquires the actual right over the reservable property upon the death of the reservor. However, during the lifetime of the reservor, the reservee only has a mere inchoate right over the reservable property. May the reservees right to the reservable property be alienated?

FIDUCIARY HEIR

RESERVOR

He has the obligation to hold, preserve and deliver the property kept by him.

A reservor does not hold such obligations.

As held in the case of Edroso v. Sablan, such right cannot be alienated during the lifetime of the reservor for it is a mere inchoate right.

He enjoys the property as a mere usufructuary.

He enjoys the property as an owner. He may alienate such property subject to its reservable

However, in the case of Sienes v. Esparcia, the Supreme Court ruled that such right may be alienated by the reservee during the lifetime of the reservor; but, such alienation is neither absolutely valid or absolutely

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28

Civil Code of the Philippines WILLS AND SUCCESSION void - it is conditionally valid. It is regarded as such because it depends upon the reservee surviving the reservor. If the reservee instead predeceases the reservor, the alienation would be void. What must the reservees do to preserve the right over the reservable property? They may annotate on the title of the property its reservable character. The purpose of this annotation is to give notice to the whole world that the property is reservable. Is annotation essential to make the property reservable? No, it is not essential. It is deemed reservable at that moment it falls in the hands of the reservor by operation of law. Upon such annotation, is the reservor still deemed as the owner thereof? Yes, the reservor continues to be the owner of such reservable property despite such annotation. The annotation merely serves as notice to third persons the reservable character of such property. When must the annotation be placed? Under the Spanish Mortgage Law, it must be placed within 90 days from the praepositus death. However, under Act 496 (Land Registration Act, P.D. 1529), it did not specify the period for such annotation; thus, it can be made anytime.

What is the remedy of the reservees who lost the property to a purchaser in good faith and for value? They may acquire the value of the reservable property from the reservor. This may be answered by the reservor with his other properties. When does the reservees become entitle to the reservable property? Upon the death of the praepositus. What proceeding must the reservee commence to get the reservable property? No need for any proceedings, it is transferred to him by operation of law. How must all the parties to a reserva troncal be related to one another? The relationship existing between the parties must be legitimate (Nieva v. Alcala, 41 Phil. 915).

Does that mean that each party must be legitimately related to one another? No, it only means that the parties must be legitimately related to the praepositus. The focal point is the praepositus. Illustration:

Before such annotation, how will the property look like? It will appear as a free property. Thus, before such annotation, the reservor may still alienate such property and the purchaser in good faith and for value thereof may rely on what it appears to be. What is the difference before and after the annotation of its reservable character? Before such annotation, the buyer or purchaser thereof may still acquire it in good faith and for value. However, if there is an annotation, the buyer or purchaser thereof is bound by its reservable character.

Ascendant

Another ascendant

Origin

Reservor

Reservee Relative within third degree; same line as the origin; related by consanguinity to origin and praepositus

1st transfer: by gratuitous title

2nd transfer: by operation of law and without issue

Praepositus descendant

NOTE: The right of the reservees cannot defeat the right of a purchaser in good faith and for value. If placed in the hands of such purchaser, the reservees have deemed lost the property.

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29

Civil Code of the Philippines WILLS AND SUCCESSION Grounds for Extinguishing Reserva Troncal.1. 2. 3. 4. 5.

6.

Death of the reservor; Death of all the reservees; Loss of the reservable property without the reservor’s fault; Extraordinary Aquisitive Prescription Passing of reservable property into the hands of a buyer in good faith and for value; Renunciation or waiver of all reservees

NOTE: If the waiver is done after the reservor’s death, it releases the property from its reservable character if all the reservees renounce. However, if only some of the reservees renounces, there is still Reserva Troncal as to the remaining parts if the property is divisible. If the waiver is done before the reservor’s death, the renunciation is valid and terminates the Reserva Troncal provided no subsequent relatives are born within the third Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (834a) Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate. (836a) Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to onethird of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (n) Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-

MEESEEKS NOTES ON SUCCESSION

half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to fourfifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (840a) Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a) Art. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. (n) Art. 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article. (n) Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to onefourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n) Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (837a) If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving

30

Civil Code of the Philippines WILLS AND SUCCESSION spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n) Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to onehalf of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator. (842a) Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon

their death to their descendants, whether legitimate or illegitimate. (843a) Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is onefourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n)fa

COMBINATIONS OF LEGITIMES IN TESTATE SUCCESSION 25 Legitimate children alone ½ of the estate divided equally One legitimate child and surviving spouse

Legitimate children = ½ of the estate Surviving spouse = ¼ of the estate Note: If there has been legal separation, DISTINGUISH: a)

If the deceased is the guilty spouse, the surviving spouse gets his/her legitime;

b)

If the deceased is the innocent spouse, the surviving spouse, being the guilty spouse, is disqualified from inheriting;

c)

If after final decree of legal separation, there was reconciliation between the spouses, the reciprocal right to succeed is restored. 26

In case an action for legal separation has been filed and either spouse dies pendente lite, the surviving spouse inherits from the deceased spouse. (Lapuz-Sy v. Eufemio, 43 SCRA 177, 1972) 27 Legitimate children and surviving spouse

Legitimate children = ½ of the estate Surviving spouse = a share equal to that of one child

One legitimate child and surviving spouse

Legitimate children = ½ of the estate Surviving spouse = ¼ of the estate

Legitimate children and illegitimate children

Legitimate children = ½ of the estate Illegitimate children = ½ of the share of one legitimate child

Legitimate children, illegitimate children, and surviving spouse

Legitimate children = ½ of the estate Surviving spouse = a share equal to that of one child Illegitimate children = ½ of the share of one legitimate child Note: The share of the surviving spouse shall be preferred over those of the illegitimate children, which can be reduced if necessary. The legitime of the

Balane, 2016 ed., p. 346-348 Ibid., p. 357 27 Ibid., p. 358 25 26

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31

Civil Code of the Philippines WILLS AND SUCCESSION surviving spouse can never be reduced.

Legitimate parents alone

It is possible that the illegitimate child will not inherit anything by way of legitime if it is necessary to complete the legitime of the surviving spouse. Legitimate child = ½ of the estate Surviving spouse = ¼ of the estate Illegitimate children = ½ of the share of the legitimate child ½ of the estate

Legitimate parents and illegitimate children

Legitimate parents = ½ of the estate Illegitimate children = ¼ of the estate

Legitimate parents and surviving spouse

Legitimate parents = ½ of the estate Surviving spouse = ¼ of the estate

Legitimate parents, illegitimate children, and surviving spouse

Legitimate parents = ½ of the estate Illegitimate children = ¼ of the estate Surviving spouse = 1/8 of the estate

Surviving spouse alone Illegitimate children and surviving spouse

½ of the estate OR 1/3 of the estate if the marriage was celebrated in articulo mortis Surviving spouse = 1/3 of the estate Illegitimate children = 1/3 of the estate

Illegitimate parents and surviving spouse

Surviving spouse = ¼ of the estate Illegitimate children = ¼ of the estate

Illegitimate children alone

½ of the estate

Illegitimate parents alone

½ of the estate

One legitimate child, illegitimate children, and surviving spouse

DISINHERITANCE Article 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (848a) Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. (849) Disinheritance; Concept and Definition.– Disinheritance is the act of the testator in depriving a compulsory heir of his legitime. This implies that there can be no disinheritance in voluntary heirs, because they have no legitime. Also, there can be no disinheritance in the case of intestate succession because Art. 916 provides that disinheritance can only be made through a will. Thus, it only applies to testate succession.

compulsory heir is deprived of his legitime for causes expressly stated by law. 28 It must be remembered that disposition of property can be made directly or indirectly. (Merza v. Porras, supra.) So, if a will contains no disposition of property and only a provision on disinheritance, it will still be valid. Purpose of the law.– The objective of the law on Disinheritance is to soften the impact produced by the law on legitimes. The law on legitimes is a restriction on the property rights of a person. This is so because a person cannot dispose of a portion of his property to whoever he wants because it is reserved by law for the benefit of his compulsory heirs. Effects of disinheritance.– Disinheritance produces the following effects: 1.

Disinheritance has also been defined as the testamentary disposition by virtue of which a

28

MEESEEKS NOTES ON SUCCESSION

It deprives a compulsory heir of his legitime and is one of the cases where a compulsory heir may not be entitled to the legitime reserved to him by law;

3 Caguioa 293, citing Castan

32

Civil Code of the Philippines WILLS AND SUCCESSION 2.

It makes a compulsory heir lose all legacies in his favour because the grounds of disinheritance are also grounds of unworthiness; and

It need not be made in the same will where the dispositions of the testator’s property are made. It may be in a will or codicil whatsoever provided that it is validly executed.

3.

It deprives the disinherited heir the right to inherit by intestate succession.

with.

REASON: Intestate succession is merely presumed by law, and the implied cannot contradict the express will of the testator that that heir cannot inherit. Hence, disinheritance results in total disqualification of the heir from receiving anything from the testator. Article 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. (850) Article 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. (851a) Requisites of disinheritance.– following are the requisites: 1. 2. 3. 4.

The

It must be made in a will; It must be based on a cause that is legal, expressly stated in the will and certain and true; It must be total; and It must be unconditional.

An additional requisite is that the disinherited heir be identified or at least identifiable. 29 How disinheritance is carried out.– It is made by the testator in a will and he must state the grounds or causes relied upon for disinheriting a compulsory heir that is provided by law. The causes must be one of those provided by law because it cannot be left to the free will of the testator, so that the purpose of the law would not be rendered nugatory. The testator need not prove the truthfulness of the ground relied upon. It is sufficient for the testator to mention merely the act constituting the ground.

29

All the formal requisites must be complied

Total and unconditional.– There can be no partial disinheritance or partial pardon. It must be total. There can be no middle ground. Disinheritance, likewise, cannot be conditional. It cannot be made subject to a suspensive condition because the law contemplates that the cause for disinheritance has already been realized and is known to the testator. It provides that the cause must be certain and true. However, pardon by the testator may be conditional provided that the condition is related to the cause for disinheritance and not merely because of the whims of the testator. Hence, conditional pardon is allowed, but never conditional disinheritance. Burden of proof.– All the disinherited heir must do is to simply deny the statement of the cause for his disinheritance. The other heirs have the burden of proving the truth behind the statement of the cause of disinheritance. The ground must exist in reality so that the other heirs may be able to prove it if denied. The reason for this rule is because the other heirs are the ones who will benefit from the share of the disinherited heir. The burden of proof shifts to the disinherited heir to prove the falsity of the cause in case the other compulsory heirs succeed in proving the truth of the cause. If no denial is made do the other heirs carry the obligation to prove the truth? Yes, there is a need for the heirs to prove the truthfulness of the statement of the testator. Defective disinheritance.– A disinheritance, which is made without a specification of the cause or with a cause, the truth of which if contradicted, is not proven or which is not of those enumerated by the law as a ground for disinheritance, is fatally defective. The effect produced is the annulment of the institution of heirs insofar as it may prejudice the compulsory heir that is disinherited. However, the devises and legacies and other testamentary

3 Caguioa 296

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33

Civil Code of the Philippines WILLS AND SUCCESSION dispositions that do not impair the legitime are not affected and continue to be valid.

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

A defective disinheritance is not the same as preterition, since it does not totally annul the institution of heirs.

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

Defective disinheritance and preterition distinguished.– The following are the differences: 30 DEFECTIVE DISINHERITANCE There is a reason, however it is not proven, mentioned, or allowed by law.

PRETERITION There is no cause or reason for the omission.

Annuls the institution insofar as it may prejudice the disinherited heir

Annuls the entire institution, producing total intestacy or partial intestacy

Any compulsory heir though not in the direct line

Compulsory heir in the direct line is deprived

The defectively disinherited heir will only receive his legitime

The preterited heir may receive more than his legitime

Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate:

Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate: (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; (2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

(6) The loss of parental authority for causes specified in this Code;

(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

(8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. (756, 854, 674a)

(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; 30

(8) Conviction of a crime which carries with it the penalty of civil interdiction. (756, 853, 674a)

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

Article 921. The following shall be sufficient causes for disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false;

Ibid., p. 162

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Civil Code of the Philippines WILLS AND SUCCESSION (3) When the spouse by fraud, violence, intimidation, or undue influence cause the testator to make a will or to change one already made;

1.

The crime charged is punishable by imprisonment for 6 years or more; and

2.

The accusation groundless.

has

been

found

(4) When the spouse has given cause for legal separation;

“Groundless” means without any ground, or malicious.

(5) When the spouse has given grounds for the loss of parental authority;

Conviction of adultery or concubinage with the spouse of the testator.– A conviction of final judgment is required for this ground.

(6) Unjustifiable refusal to support the children or the other spouse. (756, 855, 674a) Persons that can be disinherited.– The following persons may be disinherited: 1. 2. 3.

Children or descendents; Parents or ascendants; and Surviving spouse.

Exclusive enumeration.– Articles 919 to 921 enumerate the grounds on which disinheritance may be based. This enumeration is exclusive. Aside from these, no other grounds are available to the testator. Common causes or grounds.– The common grounds are the following: 1.

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

2.

The person disinherited has accused the testator of a crime for which the law prescribes a penalty of 6 years or more if the accusation has been found groundless or false;

3.

The person disinherited causes the testator to make a will or to change one already made by fraud, violence, intimidation or undue influence; and

4.

A refusal to give support the testator, the children or descendants without just cause.

Children or Descendants The grounds for disinheriting children, whether legitimate or illegitimate, are based on acts of ingratitude and unworthiness. Attempt against the life of the testator.– This covers consummated, attempted, and frustrated parricide, murder or homicide, but requires final judgment or conviction Accusation of a crime.– Two requirements must concur here:

MEESEEKS NOTES ON SUCCESSION

Causing the testator to make or change a will by unlawful means.– So long as the heir to be disinherited causes the testator to make a will or change one already made by unlawful means, this ground can be used as basis of disinheritance. The change need not be in favour of the child or descendant. 31 Refusal without just cause to give support.– The refusal must be unjustified. In order that the refusal, being unjustified, may be a ground for inheritance, it is not necessary that there be judicial demand. Any refusal of a just demand for support is sufficient. 32 Maltreatment of testator by word or deed.– No need of a conviction by a court. The maltreatment by word or slander must be understood in its ordinary sense. Ordinary insults are included. Leading a dishonourable or disgraceful life.– As explicitly and repeatedly stated by Dean Aligada in his commentary, homosexuality is not in itself tantamount to living a shameful or disgraceful life. Hence, it cannot be made the basis of disinheritance. Civil interdiction.– There must be a judgment condemning the heir to civil interdiction before the disinheritance. Parents or Ascendants Abandonment of children.– What the law contemplates here is total forgetfulness of duties as parents. Mere failure to provide support is insufficient. Loss of parental authority.– There must be a judgment depriving the parents of parental authority. Mere existence of the ground is insufficient. There must be actual deprivation or loss of parental authority.

31 32

3 Caguioa 302 Ibid.

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Civil Code of the Philippines WILLS AND SUCCESSION If parental authority is restored, the effect is subject to debate. One view submits that it restores to the parents the right to succeed and any disinheritance already made shall be rendered void, because the ground relied upon for disinheritance no longer exists. 33 Another view submits that the disinheritance will remain in effect since the basis is not the loss of parental authority but the offense committed by the offender. 34 Attempt by one parent against the life of the other parent.– This covers consummated, attempted or frustrated parricide. The intent to kill must be present and there is no need of final judgment of conviction for this to be a ground for disinheritance. NOTE: The ground, however, may be extinguished by reconciliation of the parents. The pardon of the spouse is presumed to be the pardon of the children as well. Surviving Spouse Giving cause for legal separation or loss of parental authority.– The mere existence of a ground for either legal separation or loss of parental authority is sufficient. Loss of parental authority.– See discussion of the same topic in page 35. Article 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. (856)

incapacitated to succeed, not because he has been disinherited. 36 Article 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime. (857) Reason behind the law.– The deprivation of legitime is but just if it applies to the heir who is truly guilty, but where the consequence of the deprivation would likewise affect the children of the disinherited heir leaving them abandoned, the disinheritance is iniquitous. Such an effect must be avoided insofar as the descendants are concerned. Applicability of the provision.– This applies only where children or descendants are disinherited. The right of representation exists in the descending line and never in the ascending. The spouse has no right of representation. Hence, it only applies to children or descendants.

LEGACIES AND DEVISES Art. 924. All things and rights which are within the commerce of man be bequeathed or devised. (865a) Is a legacy the same as a devise? No, they are not the same. LEGACY

Effect of reconciliation.– If reconciliation was made before the disinheritance it deprives the testator of the right to disinherit. If it was made after the disinheritance, it renders the disinheritance ineffective. 35 Reconciliation and pardon are not the same. The former is bilateral because it requires the consent and acceptance by the disinherited heir, while the latter is unilateral. Incapacity to succeed.– When the testator makes a ground of unworthiness a cause of disinheritance, he converts the former into the latter, and it ceases to be a ground of unworthiness so that once reconciliation occurs the disinheritance becomes ineffectual. The heir will not inherit because he is

33 3 Jurado 339, citing Manresa; 3 Caguioa 306, citing Manresa 34 3 Jurado 339, citing Sanchez Roman 35 3 Caguioa 308

MEESEEKS NOTES ON SUCCESSION

It is a gift of personal property.

DEVISE It is a gift of real property.

Art. 925. A testator may charge with legacies and devises not only his compulsory heirs but also the legatees and devisees. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. (858a) Art. 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound.

36

3 Caguioa 309

36

Civil Code of the Philippines WILLS AND SUCCESSION Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit. (859) Art. 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent. (n) Art. 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind. (860) Art. 929. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declares that he gives the thing in its entirety. (864a) Art. 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a) Art. 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. (861a) Can a property not belonging to the testator be subject to a legacy? Yes, in the following instances:

Art. 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have some interest therein. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. (866a) Art. 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devise shall be without effect, even though it may have subsequently alienated by him. If the legatee or devisee acquires it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. (878a) Art. 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will. Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee. (867a) Art. 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the second case, by giving the legatee an acquittance, should he request one.

1. Property acquired by the testator by whatever title after bequeathing such as a legacy or devise.

In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death. (870a)

2. Those properties belonging to a third person which the legacy is charged to an heir, legatee or devisee.

Art. 936. The legacy referred to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death. The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. (871)

NOTE: Should the third person refuse to give such property or ask for an unreasonable price therefor the heir, legatee or devisee charged with such legacy or devise with the legacy must give the just value of the property.

MEESEEKS NOTES ON SUCCESSION

37

Civil Code of the Philippines WILLS AND SUCCESSION Art. 937. A generic legacy of release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones. (872)

Extent of Effectivity.- That part of the credit existing at the time of the testator’s death. It also extends to interests due and unpaid at the time of testator’s death.

Art. 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares.

How does the executor or administrator fulfill his duty in this kind of legacy? He fulfills it either by: (i) collecting the credit and deliver the proceeds to the legatee; and, (ii) by assigning all the rights to the legatee.

In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or of the legacy or devise. (837a) Art. 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. The foregoing provisions are without prejudice to the fulfillment of natural obligations. (n) Legacy of Remission; Legacy of Credit LEGACY OF REMISSION What is bequeathed: the condonation or remission of a debt. NOTE: Legatee, in this case, is also a debtor of the testator.

LEGACY OF CREDIT What is bequeathed: the right to enforce an outstanding credit against a third person. NOTE: To enable the legatee to collect the credit, an assignment of credit must be given to him.

Deed of Assignment of Credit the document evidencing the debt. Without such document, the legatee cannot enforce the credit because there would be no privity of contract. Revocation of Legacies of Credit or Remission - These legacies are deemed revoked if a judicial action is brought by the testator after the execution of his will for the recovery of the credit or debt. However, if it is an extra-judicial action or demand, there is no revocation.

Art. 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged. If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs. Once made, the choice is irrevocable. In the alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. (874a) What is an alternative legacy or devise? It involves the exercise of a right of choice. How does it take place? There is an alternative legacy or devise when the testator bequeathes to the legatee or devisee one or more things that he designates. Who holds this right to choose? It depends upon the person designated by the testator. If there is no such designation, such right is presumed to be in the executor or administrator of the estate. NOTE: Once the choice is made, it is deemed irrevocable. What would happen if such right was not exercised? It depends. If the reason why it wasn’t exercised is the death of the heir, legatee or devisee entitled to such right, it passes to their respective heirs. But if it was the executor or administrator who died, it is transferred to their successor-in-office.

MEESEEKS NOTES ON SUCCESSION

38

Civil Code of the Philippines WILLS AND SUCCESSION NOTE: Until the person with right to choose makes such choice, the object of the alternative legacy is yet to be known. Thus, the rules on generic legacies will apply. Art. 941. A legacy of generic personal property shall be valid even if there be no things of the same kind in the estate. A devise of indeterminate real property shall be valid only if there be immovable property of its kind in the estate. The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. (875a)

A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided. If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate. If the testator or during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be markedly disproportionate to the value of the estate. (879a)

What is the difference between a Legacy of Education and a Legacy for Support?

Generic Legacies; Definition - legacy of things undefined but compromised in a kind or specie determined by nature or by designation.

LEGACY OF EDUCATION

LEGACY OF SUPPORT

Rules 1. This kind of legacy should contain particulars to avoid impossibility in its fulfillment.

It may extend beyond the age of majority in order that the legatee may finish the course.

It lasts during the lifetime of the legatee, unless the testator provides otherwise.

2. If there is no such generic personal properties in the estate the legacy shall nonetheless be valid. However, if there is no indeterminate real property in the estate of the testator, such legacy is void. NOTE: In case of movables, the substitution of the same kind may be made because its genus is determined by its nature. In the case of immovables, such substitution is not possible because their limitations and individualizations are dependent upon the will of man. 3. The thing to be given must not be inferior or superior in quality. Art. 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. (876a) Art. 943. If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable. (877a) Art. 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently.

MEESEEKS NOTES ON SUCCESSION

Legacy of Education - To be entitled to this legacy, the legatee thereof has the primary duty to pursue the course diligently. Diligent Pursuit - it means the studying regularly as a normal student does in the pursuit of his course. NOTE: If despite such pursuit he fails, such fact does not affect the legacy provided he does not dissipate the funds/assets of the estate. But, if he continues to flunk despite such pursuits, the legacy is gone. Can the legatee shift courses? It depends. If the testator specifies which course he should take, he cannot shift courses. If it is not specified by the testator, he can shift courses. NOTE: Shifting is not prohibited, unless the testator prohibits it.

39

Civil Code of the Philippines WILLS AND SUCCESSION Amount of Legacy of Support - the following rules govern the amount: portion.

If it is stated, it must not exceed the free

If it is not stated, it will be fixed in accordance to: (i) the social standing of testator; (ii) circumstances surrounding the legatee; (iii) value of estate. NOTE: If the testator, during his lifetime, used to give support to the legatee, the same amount is deemed bequeathed, unless it is disproportionate to the free portion. Art. 945. If a periodical pension, or a certain annual, monthly, or weekly amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. (880a) What is the difference between a Legacy of Support and a Legacy of Pension? LEGACY OF SUPPORT It cannot be used on anything other than support.

LEGACY OF PENSION The pension fund can be used for any purpose.

Art. 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. (868a) Art. 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs. (881a) Art. 948. If the legacy or device is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter's death. From the moment of the testator's death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase

MEESEEKS NOTES ON SUCCESSION

or improvement, without prejudice to the responsibility of the executor or administrator. (882a) Art. 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has expressly so ordered. (884a) Art. 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata. (887a) Art. 951. The thing bequeathed shall be delivered with all its accessories and accessories and in the condition in which it may be upon the death of the testator. (883a) Art. 952. The heir, charged with a legacy or devise, or the executor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obligation by paying its value. Legacies of money must be paid in cash, even though the heir or the estate may not have any. The expenses necessary for the delivery of the thing bequeathed shall be for the account of the heir or the estate, but without prejudice to the legitime. (886a) Art. 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor or administrator of the estate should he be authorized by the court to deliver it. (885a) Art. 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)

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Civil Code of the Philippines WILLS AND SUCCESSION Art. 955. The legatee or devisee of two legacies or devises, one of which is onerous, cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devisee must either accept or renounce both. Any compulsory heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both. (890a) Art. 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. (888a) Art. 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had; (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir's fault. Nevertheless, the person obliged to pay the legacy or devise shall be liable for eviction if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of Article 928. (869a) Art. 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. (n) Art. 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree. (751)

MEESEEKS NOTES ON SUCCESSION

LEGAL OR INTESTATE SUCCESSION Article 960. Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. (912a) Legal or intestate succession; nature.– It is called such because it is established in the absence of a will, hence, intestate; and it is based on law, thus, legal. It is of a suppletory and exceptional nature. The law presumes that since love descends first then ascends and finally directed towards the sides, the law calls first the descendants, then the ascendants, then lastly the collaterals. Always those nearer in degree to those more remote as it is supposed that the same would have been done by the decedent had he been able to manifest his last will. It takes place when a person dies without a will. This includes presumptive death. Legal or intestate succession compulsory succession distinguished.– INTESTATE SUCCESSION

and

COMPULSORY SUCCESSION

Provides for presumed will of the deceased

Obligatory

Suppletory to testate succession and takes place only in default of the latter

Takes place whether the deceased has left a will or not and superior and independent of testamentary succession

Not every legal heir is a compulsory heir

They are legal heirs

Legal or intestate succession takes place.– It takes place in the following circumstances:

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Civil Code of the Philippines WILLS AND SUCCESSION 1. 2. 3.

If a person dies without a will; If a person dies with a void will; If a person dies with a will that has subsequently lost its validity;

NOTE: It is submitted that the term “validity” should be understood to mean “efficacy” because once a will is valid, it never ceases to be valid although it may be declared inefficacious. 37 4. 5. 6.

When the will does not institute an heir or when the institution is void; The will disposes of property only in part; Nonfulfillment of the suspensive condition; Exception to the rule: Where there is substitution; and where the right of accretion takes place.

7.

The heir repudiates or predeceases;

8.

Incapacity of the heir to succeed when there is no substitution and no accretion;

9.

Other causes, such as: a. Expiration of the term b. Happening of a resolutory condition; c. Noncompliance or impossibility of complying with the will of the testator; and d. Preterition.

2.

a.

Jus familiae, ties with ascendants, descendants or collaterals;

b.

Jus sanguinis, based on natural relationship;

c.

Jus conyugii, based on conjugal partnership; and

d.

Jus imperii, based on the ties of a citizen to the State;

Preference among lines; Direct line is preferred to the collateral line and the direct line, the descending line is preferred to the ascending. Relationship by affinity does not give rise to a right to be an intestate heir.

3.

Rule of proximity of degree; As a rule, the relative nearest in degree excludes the more remote. The exception is in case the rule of representation. The representation wipes out the exclusion by conferring a degree of relationship superior to that which would ordinarily correspond them in succession.

4.

Rule of equal division; Intestate heirs equal in degree receive equal shares, as a general rule.

Article 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. (913a)

The exceptions are: a. In the descending line where the heirs are not of the same class or kind;

Article 962. In every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.

b.

In the ascending line the rule of division by line applies;

c.

In the collateral line, those of full blood get double of the half blood; and

d.

The division is per stirpes, or in such a manner that the representatives, although in the same degree, shall not inherit more than what the person they represent would inherit.

Relatives in the same degree shall inherit in equal shares, subject to the provisions of article 1006 with respect to relatives of the full and half blood, and of article 987, paragraph 2, concerning division between the paternal and maternal lines. (912a) Basic rules of intestate succession.– The following are the rules: 1.

37

An intestate heir must be in some way related to the deceased, which may be:

3 Caguioa 347

MEESEEKS NOTES ON SUCCESSION

42

Civil Code of the Philippines WILLS AND SUCCESSION RELATIONSHIP Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915) Article 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a) Article 965. The direct line is either descending or ascending.

Basis of the right to succeed.– The basis of the right to succeed differs. One must first distinguish between testate succession and intestate succession. In testate succession, the basis of the right is the institution of a person as an heir. In intestate succession, the basis is relationship subject to the rules of proximity. Blood relationship and the law allows only up to the 5th civil degree. Hence, in intestate succession the degree of relationship must be determined in order to find out who is to receive the inheritance. Computation of Degrees.– The rules may be illustrated by the following example for the book of Justice Jurado:

The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends.(917) Article 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a) Article 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. (920a) Relationship.– It is the tie that binds several persons owing to their coming from a common line. They come from the same common tree or progenitor, and the relationship is by consanguinity, regardless of whether it is legitimate or illegitimate. Double tie or single tie relationship depend as to whether they proceed form the same father and mother or from only the same mother or same father. See Illustration in Caguioa, p. 354.

MEESEEKS NOTES ON SUCCESSION

In computing the degree of relationship, start counting from the progenitor up to the heir whose degree of relationship to the progenitor is desired to be known then subtract one (1). In the direct descending line, suppose B is the progenitor and F is the heir, descent is made from B to F, counting the number of persons from B to F, then subtract 1. Hence, B is one degree from his son, F. If in the direct ascending line, suppose E is the progenitor and A is the heir, ascent is made from A to E, counting the number of persons from A to E then subtract 1. Hence, E is two degrees away from A. If in the collateral line, suppose G is the progenitor, how many degrees is he related to his sister,

43

Civil Code of the Philippines WILLS AND SUCCESSION H? Ascent is made to the common ancestor, D, then descent to H, counting the number of persons between G and H, then subtract 1. Hence, G is two degrees away from H. NOTE: To count degrees in the collateral line, ascend to the common ancestor first, then descend to the person involved in each generation in case of siblings, cousins, uncles or aunts. Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. (922) Relatives unwilling or incapacitated to succeed.– In these cases, their share shall not be given to those nearest in degree but shall be given by accretion to other heirs of the same degree, excluding those in the next degree unless in cases of representation. When there is a right of representation, it shall take place instead of the right to accretion. NOTE: There is no right of representation in repudiation. It is only in case of predecease. Accretion occurs in case of predecease, repudiation, or incapacity. Article 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the following degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. (923) Repudiation of one or all in the same degree.– It is clear that this applies only in repudiation and not in case of incapacity. The nearest in degree shall inherit in their own right because there is no right of representation in repudiation. NOTE: In incapacity, there may or may not be representation, hence, one must first make a distinction as to whether or not there is a right of representation in order to determine if the heirs succeed in their own right to not.

RIGHT OF REPRESENTATION Article 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. (942a) Article 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (n) Article 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. (925) Article 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent. (n) Article 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (926a) Article 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the latter by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. (927) Article 976. A person may represent him whose inheritance he has renounced. (928a) Article 977. Heirs who repudiate their share may not be represented. (929a) Representation; Definition, Concept, and Nature.– Representation is a subrogation or substitution as a result of which the descendant is placed in the position and degree of the ascendant who would have inherited in the first place. Legal heirs are fall under two (2) groups:

If the right exists, the succeed by right of representation.

1.

If no such right exists, the nearest in degree shall succeed in their own right.

2.

Those who inherit in their own right; and Those who inherit by the right of representation.

Effects of representation.– It produces two (2) effects:

MEESEEKS NOTES ON SUCCESSION

44

Civil Code of the Philippines WILLS AND SUCCESSION 1.

It places a relative, of a degree farther than the one with the right to succeed, in the degree necessary to inherit. It makes him advance to a nearer degree necessary in order that he may have the right to the inheritance; and

2.

The lone representative or all of the representatives occupy the place of the represented so that all of them inherit only the portion which the person they represent would have received had he lived or been able to inherit.

The representative/s are called to succession by law and not by the person represented and succeed not the person represented but the one whom the person represented would have succeeded. (Art. 971) Is there right of representation in intestacy? It depends. If it is in the direct descending line or in the collateral line, such a right exists. No such right exists in the ascending line. NOTE: There is no right of representation in case of repudiation. One who repudiates his inheritance can never be represented. However, the one who has repudiated his inheritance is not barred from being a representative. In other words, one who repudiates cannot be represented, but one who repudiates can represent. Iron Curtain Rule.– As a rule, representation takes place only in favour of legitimate descendants. However, the Civil Code has modified this rule. The rule now is that representation by illegitimates is allowed if the person who is to be represented is himself an illegitimate. The law has placed an iron curtain between the legitimate and illegitimate members of the family. Can an illegitimate child succeed the legitimate relatives of his father? It depends. If the matter involves Intestate succession, the prohibition applies pursuant to Art. 992.

Representation in adoption.– There is no right of representation in adoption because the relationship created between the adopter and the adopted is limited to them alone and does not extend to the other relatives. The relatives of the adopter and the adopted are not relatives, and the relatives of the adopter are not the relatives of the adopter. The relationship is purely personal between the adopted and the adopter. (Teotico v. Del Val, L-18753, March 25, 1965) DEAN ALIGADA’S VIEW: Authorities say the pronouncement in the case of Teotico no longer holds true because under the present Domestic Adoption laws, it is now provided that the adopted child will have the same rights and obligations as that of a legitimate chid and without discrimination. Although there is no jurisprudence as of the moment, the consensus of authorities is that the adopted child can now represent. Can an adopted child be preterited? Yes, the adopted child can now be subject of preterition but not the surviving spouse because the latter is not a compulsory heir in the direct line. (Acain v. Diongson, 239 Phil. 96, 1987) Representation in the collateral line.– There can be representation in the collateral line if the nephews and/or nieces are concurred with their uncles and aunts. However, if the nephews and/or nieces succeed with concurring with their uncles and aunts, they are inheriting not as a representative, but in their own right. Always remember to make this distinction. One of the grounds for losing one’s worthiness to succeed under the Family Code is a final decree of legal separation, where the guilty spouse is disqualified to succeed the innocent spouse. Can it happen that the guilty spouse succeeds the innocent spouse despite the judicial declaration of legal separation? Yes, remember our discussion above about reconciliation. When there has been reconciliation between the spouse, it has the effect of restoring the guilty spouse’s worthiness to succeed, making him eligible or entitled to succeed the innocent spouse.

If the matter in involves testate succession, the prohibition does not apply, so the illegitimate child can succeed. An illegitimate child cannot succeed the legitimate relatives of his father ab intestato.

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Civil Code of the Philippines WILLS AND SUCCESSION TABLE OF INTESTATE SHARES 38 Legitimate children alone

The whole estate divided equally

Legitimate children and illegitimate children

The whole estate, each illegitimate child getting ½ share of one legitimate child

Legitimate children and surviving spouse

The whole estate, divided equally

Legitimate children, surviving spouse, and illegitimate children

The whole estate, each illegitimate child getting ½ share of one legitimate child

Legitimate parents alone

The whole estate, divided equally

Legitimate ascendants other than parents alone

The whole estate, observing in the proper case, division by line rule

Legitimate parents and illegitimate children

Legitimate parents

Legitimate parents and surviving spouse

Legitimate parents

= ½ of the estate

Surviving spouse

= ½ of the estate

Legitimate parents, surviving spouse and illegitimate children

Legitimate parents

= ½ of the estate

Surviving spouse

= ½ of the estate

= ½ of the estate

Illegitimate children = ½ of the estate

Illegitimate children = ¼ of the estate Illegitimate children alone

The whole estate, divided equally

Illegitimate children and surviving spouse

Surviving spouse

Surviving spouse alone

The whole estate

Surviving spouse and illegitimate parents

Surviving spouse

= ½ of the estate

Illegitimate children = ½ of the estate = ½ of the estate

Illegitimate parents = ½ of the estate NOTE: No article in the Civil Code provides for this. Art. 997 is applied only by analogy.

Surviving spouse and legitimate brothers and sisters, nephews and nieces

Surviving spouse

Surviving spouse and illegitimate brothers and sisters, nephews and nieces

Surviving spouse

Illegitimate parents alone

The whole estate

Illegitimate parents and children of any kind

Illegitimate parents = Excluded

= ½ of the estate

Legitimate brothers and sisters, nephews and nieces = ½ of the estate = ½ of the estate

Illegitimate brothers and sisters, nephews and nieces = ½ of the estate

One child alone = the whole estate Legitimate and illegitimate children = The whole estate, each illegitimate child getting ½ share of one legitimate child

Legitimate brothers and sisters alone

The whole estate, with a brother/sister of half-blood inheriting ½ the share of a brother/sister in full blood

Legitimate brothers and sisters, nephews, nieces

The whole estate, observing 2:1 proportion of full and half-blood fraternity and the nephews and nieces inheriting by right of representation in proper cases

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Last Minute Tips, UST Law Academics Committee, A.Y. 2017-2018

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Civil Code of the Philippines WILLS AND SUCCESSION Nephews and nieces with uncles and aunts

Uncles and Aunts = Excluded

Illegitimate brothers and sisters alone

The whole estate, observing 2:1 proportion of full and half-blood fraternity

Illegitimate brothers and sisters, nephews, nieces

The whole estate, applying Arts. 1005 and 1008 by analogy

Nephews and nieces alone

The whole estate, observing 2:1 proportion of full and half-blood fraternity

Other collateral relatives

The whole estate per capita, the nearer in degree excluding the more remote

State

The whole estate

Nephews and nieces = the whole estate per capita, but observing 2:1 proportion for full and half-blood

Assignment and disposition 1.

2.

If decedent was a resident of the Philippines at any time: a.

Personal property goes to the municipality of last residence; and

b.

Real property goes to the municipality where it is situated

If decedent was never a resident: a.

Personal and real property go to the municipality where it is situated

How property is to be used 1.

For the benefit of public educational and charitable institutions in the respective municipalities and cities

2.

At the instance of an interested party, or motu proprio, the court may order the creation of a permanent trust for the benefit of the institutions concerned

ACCRETION Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (n) Accretion; definition, concept and purpose.– When the testator gives a single thing or a portion of the inheritance to two or more persons without express designation of parts, he grants to these persons preference to the right over the thing or the portion granted and the law respecting the will of the testator maintains such preference by assigning part of the thing or portion left vacant by the death of one of the co-participants to the others called by the decedent. All the persons jointly represent a single entity which does not disappear while one of them is living.

MEESEEKS NOTES ON SUCCESSION

It takes place in the substitution takes place, that is, person called to the inheritance, renounces, is incapacitated or testator.

same cases her when the other devise or legacy predeceases the

Article 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. (928a) Article 1017. The words "one-half for each" or "in equal shares" or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion.

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Civil Code of the Philippines WILLS AND SUCCESSION In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (983a) Requisites of accretion.– The following are the requisites: 1. 2. 3.

Unity in the object; Plurality in the subject; and Absence of any special designation.

There is more than one individual to whim the inheritance is given. causes:

Causes of Accretion.– The following are the 1. 2. 3. 4.

Predecease; Repudiation of the inheritance; or Incapacity to inherit. Other causes: a. Non-fulfillment of the condition imposed upon the instituted heir; b.

Inefficacy of disposition.

the

testamentary

Article 1018. In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. (981) Whether accretion will result or not, the result will be the same in the case of intestate succession Article 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (n) Article 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (984) May the right of accretion be repudiated? It depends. As a rule, it is a right and not an obligation, so it can be repudiated. However, in case of legacies, where the part to be renounced is onerous while the part received is by gratuitous title, it cannot be repudiated. 39 This is because of the All-or-Nothing Rule. Article 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger.

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Accretion in compulsory succession.– Accretion will only take place with regard to the free portion and only when the requisites in Art. 1016 are present. This is because the law already provides for the shares of the compulsory heirs. Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (985) Article 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (986) Article 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. (987a)

COLLATION Collation; definition, concept and purpose.– Collation is the act by virtue of which the heirs who concur in the inheritance return to the common mass the properties which they have received in order that division may be effected in accordance with law and the will of the testator. To collate is to restore, to aggregate or to return to the mass of inheritance, actually or fictitiously, properties which have left the estate of the decedent during his lifetime but which the law understands that it has left the same only as an advance of the same inheritance. It is the brining back or returning of properties acquired by gratuitous title to the mass of the estate. NOTE: What is brought back to the mass of the estate is not the specific property disposed of by gratuitous title but only its value. Is collation necessary? It depends. If it is for the purpose of determining how much the legitime of the compulsory heirs will be, then it is necessary. If, however, there are no compulsory heirs, collation is not necessary. Are all properties disposed of required to be collated? No, only those disposed of by gratuitous title. It does not apply to properties disposed of by onerous title.

3 Caguioa 416

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Civil Code of the Philippines WILLS AND SUCCESSION PARTITION Under what condition can you have Extrajudicial partition of an estate? There can be extrajudicial partition when there are no existing debts, because you can never have extrajudicial partition when there are existing debts. They must be satisfied first. Who can ask for partition of estate? 1. 2. 3. 4.

Anyone of the heirs; Testator in his will can make the partition; Testator in his lifetime can partition the estate; and Anyone who can be designated by the testator to effect partition.

When can there be no partition? 1.

When the testator has provided in his will that there shall be no partition provided that the term does not exceed the period of 20 years;

2.

If the heirs themselves so agree. But the agreement cannot go beyond 10 years;

3.

When one to be partitioned is the family home unless the court finds valid reason to allow partition;

4.

There can be no partition when the law does not allow it as in the case of a parity wall; and

5.

There can be no partition when the property subject to partition is not susceptible of division. ----- GODSPEED ----

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