Reviewer Succession

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San Beda College of Law53

MEMORY AID IN CIVIL LAW

SUCCESSION

SUCCESSION A mode of acquisition by virtueof which the property, rights andobligations to the extent of thevalue of the inheritance, of aperson are transmitted throughhis death to another or otherseither by his will or by operationof law. (Art. 774)

Kinds:1. Testamentary or Testacy (bywill);

2. Legal or intestacy (by operationof law based on the decedent’spresumed will);

3. Mixed (Partly Testamentary and

Legal); and4. Partition inter vivos (to a certaindegree).

Elements:1. DECEDENT (subjective element)2. SUCCESSORS (subjectiveelement)a. Heirs - those who are called to

the whole or to an aliquotportion of the inheritance eitherby will or by operation of law

1) Voluntary – those instituted

by the testator in his will, tosucceed to the inheritanceor the portion thereof of which the testator can freelydispose.

2) Compulsory or Forced – those

who succeed by force of lawto some portion of the

inheritance, in an amountpredetermined by law,known as the legitime.

3) Legal or Intestate – those

who succeed to the estate of the decedent who dieswithout a valid will, or tothe portion of such estatenot disposed of by will.

b. Devisees or legatees - persons towhom gifts of real or personal

property are respectively givenby virtue of a will

NOTE: The distinctions betweenheirs and devisees/legatees aresignificant in these cases:

1. Preterition (pretermission)2. Imperfect disinheritance3. After-acquired properties4. Acceptance or non-

repudiation of thesuccessional rights.

3. DEATH OF THE DECEDENT (casualelement) Moment when rights to succeed aretransmitted (Art 777) However, a person may be

“presumed” dead for the purpose of opening his succession (see rules onpresumptive death). In this case,succession is only of provisionalcharacter because there is alwaysthe chance that the absentee maystill be alive.4. Inheritance (objective element);

NOTE: Whatever may be the time whenactual transmission takes place,succession takes place in any event atthe moment of the decedent’s death.(Lorenzo vs. Posadas 64 Phil 353)

SUCCESSION INHERITANCERefers to the legalmode by whichinheritance istransmitted to thepersons entitled

to it

Refers to theuniversality orentirety of theproperty, rightsand obligations of a

person who died

Inheritance includes:

1. PROPERTY, RIGHTS AND

OBLIGATIONS NOT EXTINGUISHED BYDEATHGeneral rules on rights andobligations extinguished by hisdeath

a) Rights which are purely personal

are by their nature and purposeintransmissible for they are

CIVIL LAW COMMITTEE & CHAIRPERSON: Romuald Padilla & ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad & EDP : Alnaiza Hassiman, Dorothy Gayon

& SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma.RhodoraFerrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John StephenQuiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), AnthonyPurganan(LTD),Ma. Ricasion Tugadi (Conflicts of Law)





extinguished by death (e.g.those relating to civilpersonality, family rights,discharge of office).

b) Rights which are patrimonial orrelating to property aregenerally part of inheritance asthey are not extinguished by death.

c) Rights of obligations are by

nature transmissible and mayconstitute part of inheritanceboth with respect to the rightsof the creditor and as regards tothe obligations of the debtor.

2. ALL WHICH HAVE ACCRUED THERETOSINCE THE OPENING OF SUCCESSION( Article 781 Civil Code)

I.

TESTAMENTARY SUCCESSION

A. CONCEPT

WILL - an act whereby a person ispermitted, with the formalitiesprescribed by law, to control to a certaindegree the disposition of his estate totake effect after his death (Art. 783)

NOTE: Thus, a document that does notpurport to dispose of one’s estate eitherby the institution of heirs or designationof devisees/legatees or, indirectly, byeffecting a disinheritance, is not to begoverned by the law on testamentarysuccession but by some other applicablelaws.

Kinds of Wills:1. Notarial or ordinary2. Holographic

Characteristics of a Will:1. UNILATERAL2. STRICTLY PERSONAL ACT - The

disposition of property is solelydependent upon the testator.

NOTE: The following acts MAY NOT beleft to the discretion of a third person:( Article 785, 787 Civil Code)duration or efficacy of the designation of

heirs, devisees or legatees;

determination of the portions which theyare to take, when referred to byname; and

determination of whether or not the

testamentary disposition is to beoperative.

NOTE: However, the following acts MAYbe entrusted to a third person: ( Article786 Civil Code)

a. distribution of specific propertyor sums of money that he may leavein general to specified classes orcauses; and

b. designation of the persons,institutions or establishments towhich such property or sums are to

be given or applied.3. FREE AND VOLUNTARY ACT – Any viceaffecting the testamentary freedom cancause the disallowance of the will.4. FORMAL AND SOLEMN ACT – Theformalities are essential for the validityof the will.5. ACT MORTIS CAUSA6. AMBULATORY AND REVOCABLE

DURING THE TESTATOR’S LIFETIME7. INDIVIDUAL ACT – Two or morepersons cannot make a single joint will,either for their reciprocal benefit or for

another person. However, separate orindividually executed wills, althoughcontaining reciprocal provisions (mutualwills), are not prohibited, subject to therule on disposicion captatoria.DISPOSITION OF PROPERTY

B. INTERPRETATION OF WILLS (ARTS.788-792)The testator’s intent (animus testandi),as well as giving effect to such intent, isprimordial. It is sometimes said that thesupreme law in succession is the intentof the testator. All rules of constructionare designed to ascertain and give effectto that intention. It is only when theintention of the testator is contrary tolaw, morals, or public policy that itcannot be given effect.

In case of doubt, that interpretation bywhich the disposition is to be operativeshall be preferred. That construction isto be adopted which will sustain anduphold the will in all its parts, if it can







be done consistently with theestablished rules of law.

Kinds of Ambiguities: (Article 786)1. LATENT OR INTRINSIC AMBIGUITIES –that which does not appear on the faceof the will and is discovered only byextrinsic evidence.2. PATENT OR EXTRINSIC AMBIGUITIES –that which appears on the face of thewill itself

NOTES:

There is no distinction betweenpatent and latent ambiguities, in sofar as the admissibility of parol orextrinsic evidence to aidtestamentary disposition isconcerned.

Extrinsic evidence to explain

ambiguities in a will cannot includeoral declarations of the testator asto his intention.

The validity of a will as to its formdepends upon the observance of lawin force at the time it is made. (Art.795).

If a law different from the law in

force at the time of the execution of the will goes into effect before orafter the death of the testator, sucha law shall not affect the validity of the will, provided that such will wasduly executed In accordance withthe formalities prescribed by law inforce at the time it was made.

AFTER-ACQUIRED PROPERTY (Art. 793)Gen. Rule: Property acquired during theperiod between the execution of the will

and the death of the testator is NOTincluded among the property disposedof.Exception: When a contrary intentionexpressly appears in the will

NOTE: This rule applies only to legaciesand devises and not to institution of heirs.

C. TESTAMENTARY CAPACITY– refers to the ability as well as thepower to make a will.

- must be present at the time of theexecution of the will.

Requisites:

1. At least 18 years of age

2. Of sound mind, i.e., the ability toknow:a. the nature of the estate to be

disposed of;b. the proper objects of his bounty;

andc. the character of the

testamentary act.

NOTE: The law presumes that the

testator is of sound mind, UNLESS:a. he, one month or less, before makinghis will, was publicly known to beinsane; orb. was under guardianship at the time of making his will. (Torres and Lopez deBueno vs. Lopez 48 Phil 772)

In both cases, the burden of provingsanity is cast upon proponents of thewill.

Effect of Certain Infirmities:1. mere senility or infirmity of oldage does not necessarily imply that aperson lacks testamentary capacity;2. physical infirmity or disease isnot inconsistent with testamentarycapacity;3. persons suffering from idiocy(those congenitally deficient inintellect), imbecility (those who arementally deficient as a result of disease), and senile dementia(peculiar decay of the mentalfaculties whereby the person

afflicted is reduced to secondchildhood) do not possess thenecessary mental capacity to make awill;4. an insane delusion which willrender one incapable of making awill may be defined as a belief inthings which do not exist, and whichno rational mind would believe toexist;5. if the insane delusion touches tosubject matter of the will,testamentary disposition is void.







6. a deaf-mute and blind personcan make a will (i.e. Art. 807-808). Ablind man with a sound and disposingmind can make a holographic will.

7. an intoxicated person or personunder the influence of drugs maymake a will as there is no completeloss of understanding.

Exception: where the testator hasused intoxicating liquor or drugsexcessively to such an extent as toimpair his mind, so that at the timethe will is executed, he does notknow the extent and value of hisproperty, or the names of personswho are the natural objects of hisbounty, the instrument thus

executed will be denied probate forlack of testamentary capacity.

D. FORMALITIES OF WILLS(EXTRINSIC VALIDITY)

COMMON FORMALITIES

1. Every will must be in writing; and

2. Executed in a language or dialectknown to the testator.

SPECIAL FORMALITIESI. NOTARIAL OR ORDINARY WILLa. SUBSCRIPTION – made at the end

thereof by the testator himself or bythe testator's name written by someother person in his presence and byhis express direction; Subscription refers to the

manual act of testator and alsoof his instrumental witnesses of affixing their signature to theinstrument.

b. ATTESTATION AND SUBSCRIPTION -(evidenced by an “attestation

clause”) by 3 or more crediblewitnesses in the presence of thetestator and of one another; Attestation consists in the act of

witnesses of witnessing theexecution of the will in order tosee and take note mentally thatsuch will has been executed inaccordance with requirementsprescribed by law.

ATTESTATION SUBSCRIPTION

1. an act of thesenses

1. an act of thehand

2. mental act 2. mechanical act

3. purpose is torender availableproof duringprobate of will

3. purpose isidentification

c. MARGINAL SIGNATURES – affixed bythe testator or the person requestedby him to write his name and theinstrumental witnesses of the will oneach and every page thereof, exceptthe last, on the left margin;

Exceptions to the rule that all of thepages of the will shall have to be

signed on the left margin by thetestator and witnesses::(1) in the last page, when the willconsists of two or more pages;(2) when the will consists of only onepage;(3) when the will consists of twopages, the first of which contains allthe testamentary dispositions and issigned at the bottom by the testatorand the witnesses and the secondcontains only the attestation clauseduly signed at the bottom by the

witnesses.

The inadvertent failure of one

witness to affix his signature to onepage of a testament, due to thesimultaneous lifting of two pages inthe course of signing, is not per sesufficient to justify denial of probate(Icasiano vs. Icasiano II SCRA 422).

d. PAGE NUMBERINGS – Writtencorrelatively in letters placed on theupper part of each page;

NOTE: This is not necessary when all of the dispositive parts of a will are writtenon one sheet only.

e. ACKNOWLEDGMENT – Done before anotary public by the testator and theinstrumental witnesses.

NOTE: The notary public before whomthe will was acknowledged cannot beconsidered as the third instrumental







witness since he cannot acknowledgebefore himself his having signed the will.If the third witness were the notarypublic himself, he would have to avow,

assent, or admit his having signed thewill in front of himself. To allow suchwould have the effect of having only twoattesting witnesses to the will whichwould be in contravention of Arts. 805and 806. (Cruz vs. Villasor 54 SCRA 31) MANNER OF SIGNING: The use of any signature, marks

or design intended by the testator toauthenticate renders the willsufficiently signed by the testator. A signature by mark will be

sufficient even if at the time of placing it, the testator knew how towrite and is able to do so. It is sufficiently signed by writinghis initials, or his first name, or hemay use even an assumed name. A complete signature is notessential to the validity of a will,provided the part of the namewritten was affixed to theinstrument with intent to execute itas a will.

ATTESTATION CLAUSE- memorandum or record of factswherein the witnesses certify that thewill has been executed before them, andthat it has been executed in accordancewith the formalities prescribed by law. Absence of this clause will render

the will a nullity.

It must state the following ESSENTIALFACTS:

1. the number of pages

used upon which the will iswritten;

HOWEVER, even if number of pages isomitted in the AC BUT if there is anacknowledgment clause which states thenumber of pages or the will itself mentioned such number of pages, it maystill be considered valid applying theLiberal Interpretation of the law.(Tabuada vs. Rosal)

2. the fact that the

testator signed the will andevery page thereof, or causedsome other person to write his

name, under his expressdirection, in the presence of theinstrumental witnesses; When the testator expressly

caused another to sign the former’sname, this fact must be recited inthe attestation clause. Otherwise,the will is fatally defective. (Garciavs. Lacuesta 90 Phil 489)

3. that the witnesses

witnessed and signed the will

and all the pages thereof in the presence of the testator and of one another.

TEST OF PRESENCE: Not whetherthey actually saw each other sign,but whether they might have seeneach other sign had they chosen todo so considering their mental andphysical condition and position withrelation to each other at themoment of inscription of eachsignature. (Jaboneta vs. Gustilo)

In the case of an ordinary or attestedwill, its attestation clause need notbe written in a language or dialectknown to the testator since it doesnot form part of the testamentarydisposition.

The language used in the attestationclause likewise need not even beknown to the attesting witnesses.Art. 805 merely requires that, insuch a case, the attestation clause

shall be interpreted to saidwitnesses. (Caneda vs. CA 222 SCRA781)

Effects of defects or imperfections inthe Attestation Clause: If the defect of the attestation

clause goes into the very essence of the clause itself or consists in theomission of one, some, or all of theessential facts, and such omissioncannot be cured by an examination







of the will itself, the defect issubstantial in character, as aconsequence of which the will isinvalidated.

However, In the absence of badfaith, forgery, fraud, or undue andimproper pressure and influence,defects and imperfections in theform of attestation or in thelanguage used therein shall notrender the will invalid if it is provedthat the will was in fact executedand attested in substantialcompliance with Art. 805 ( formalrequirements). This is known as theDOCTRINE OF LIBERALINTERPRETATION (Art. 809)

Purposes of requiring witness to attestand to subscribe to a will:

1. identification of the instrument2. protection of the testator fromfraud and deception3. the ascertainment of thetestamentary capacity of thetestator.

NOTE: Certain points to consider (Tolentino)

1. Mere knowledge by testator that

another is signing, and acquiescing init, there being no expressdirection, is NOT sufficient.2. Not required that the name of the person who writes the testator’sname should also appear on the will;enough that testator’s name iswritten.3. If the required numbers of attesting witness are competent, the

fact that an additional witness, whowas incompetent also attested tothe will, cannot impair the validity.4. Immaterial in what order theacts are performed provided thesignature or acknowledgment by thetestator and the attestation of thewitnesses be accomplished in oneoccasion, and as part of onetransaction.

5. The law refers to page and not

to sheet or leaf or folio, so every

page used in the will should besigned on the left margin.6. An attestation clause need besigned ONLY by the witnesses and

not by the testator as it is adeclaration made by the witnesses.

7. date of will:

a. ordinary will: not an essential

part;

b. holographic will: an essential

part.

8. Failure or error to state the

place of execution will notinvalidate the will.9. Signing of a will by the testatorand witnesses and acknowledgment

before a notary public, need not bea single act.

10. Testamentary capacity must

also exist at the time of acknowledgment.

ADDITIONAL REQUIREMENTS FOR SPECIAL CASES1. Deaf or deaf-mute testator:

a) personal reading of the will, if able to do so; OR

b) if not possible, designation of 2persons to read the will andcommunicate to him, in some

practicable manner, thecontents thereof. (Article 807)

2. Blind testator: Double-reading requirement:

a. first, by one of the subscribing

witnesses, AND

b. second , by the notary public

before whom the will isacknowledged. (Article 808) Art. 808 applies not only to

blind testators but also to those

who, for one reason or another areincapable of reading their wills (e.g.poor, defective or blurred vision).

In a case where the testator

did not read the final draft of thewill, but the lawyer who drafted thedocument, read the same aloud inthe presence of the testator, 3witnesses, and notary public, theCourt held that the formalimperfections should be brushed







aside when the spirit behind the lawwas served though the letter wasnot. (Alvarado vs. Gaviola 226 SCRA347)

WITNESS TO NOTARIAL WILLS(ARTS. 820 & 821)Requirements:

1. of sound mind;

2. able to read and write;

3. not blind, deaf or dumb;

4. at least 18 years of age;

5. domiciled in the Philippines;

6. has not been convicted of falsification of a document, perjury,or false testimony

NOTE: A witness need not know thecontents of the will, and need not beshown to have had a good standing inthe community where he lives. Also, theacknowledging notary public cannot beone of the 3 minimum numbers of witnesses.Interested witness A witness to a will who is

incapacitated from succeeding fromthe testator by reason of adevise/legacy or other testamentary

disposition therein in his favor, or infavor of his spouse, parent, or child.However, his competence as awitness subsists.

2. HOLOGRAPHIC WILL (Article 810)

a. entirely written by

the hand of the testator;

b. entirely dated by the

hand of the testator; and

c. entirely signed by

the hand of the testator.

NOTE: The law exacts literalcompliance with these requirements.HENCE, THE DOCTRINE OF LIBERALINTERPRETATION CANNOT BE APPLIED.

Nevertheless, the Court held in a

case that as a general rule, the“date” in a holographic will shouldinclude the day, month, and year of its execution. However, when thereis no appearance of fraud, bad faith,

undue influence and pressure andthe authenticity of the will isestablished and the only issue iswhether or not the date “FEB./61”

appearing on the will is a validcompliance with Art. 810, probate of the holographic will should beallowed under the principle of substantial compliance. (In thematter of Intestate Estate of Andresde Jesus and Bibiana Roxas de Jesus,134 SCRA 245)

Rule in case of insertion, cancellation,erasure or alteration: Testator must authenticate the same

by his FULL SIGNATURE . ( Article 814)

NOTE: In the case of Kalaw vs. Relova(134 SCRA 241), the holographic will indispute had only one substantialprovision, which was altered bysubstituting the original heir withanother, but which alteration did notcarry the requisite of full authenticationby the full signature of the testator, theeffect must be that the entire will isvoided or revoked for the simple reasonthat nothing remains in the will afterthat which could remain valid.

Effects of words written by anotherand inserted in the words written bythe testator:a. If the insertion was made after the

execution of the will, but withoutthe consent of the testator, suchinsertion is considered as notwritten, because the validity of thewill cannot be defeated by themalice or caprice of third person.

b. If the insertion after the execution

of the will was with the consent of the testator, the will remains validbut the insertion is void.

c. If the insertion after the execution isvalidated by the testator by hissignature thereon, then the insertionbecomes part of the will, and theentire will becomes void, becauseof failure to comply with therequirement that it must be whollywritten by the testator.

d. If the insertion made by a thirdperson is made contemporaneous to







the execution of the will, then thewill is void because it is not writtenentirely by the testator.

Probate of Holographic Will1. If UNCONTESTED, requires that at

least 1 witness who knows thehandwriting and signature of thetestator explicitly declare that thewill and signature are in thehandwriting of the testator; if nowitness, expert testimony may beresorted to.

2. If CONTESTED, requires at least 3 of

such credible witnesses, if noneexpert witness.

NOTE: Where the testator himself petitions for the probate of hisholographic will and no contest is file,the fact that he affirms that theholographic will and the signature are inhis own handwriting, shall be sufficientevidence thereof. If the holographic willis contested, the burden of disprovingthe genuineness and due executionthereof shall be on the contestant.

A photostatic or xerox copy of a lost

or destroyed holographic will may beadmitted because the authenticity of the handwriting of the deceased canbe determined by the probate court,as comparison can be made with thestandard writings of the testator.(Rodelas vs. Aranza, 119 SCRA 16)

GOVERNING LAW ON FORMALITIES1. As to time: The validity of a will as to its form

depends upon the observance of thelaw in force at the time it is made.

Its intrinsic validity , however, isjudged at the time of thedecedent’s death by the law of hisnationality.

2. As to place: a. Filipino testator executing a will in

the Philippines: Philippine lawb. Filipino testator executing a will

outside of the Philippines: either

1) The law of the country in which

it is executed; or

2) The law of the Philippines.c. Alien testator executing a will in the

Philippines: either

1) The law of the Philippines; or

2) The law of the country of whichhe is a citizen or subject.

d. Alien testator executing a willoutside of the Philippines: either

1) The law of the place where it is

executed; or

2) The law of the place in which he

resides; or

3) The law of his country; or

4) The law of the Philippines.

Aspects of the will governed by

National Law of the Decedent (Article1039 and Article 16 Civil Code)a. Order of successionb. Amount of successional rightsc. Intrinsic validityd. Capacity to succeed

Joint will – a single testamentaryinstrument which contains the wills of two or more persons, jointly executed bythem, either for their reciprocal benefitor for the benefit of a third person--will of 2 or more persons is made in the

same instrument and is jointly signed bythem

Mutual wills – wills executed pursuant toan agreement between two or morepersons to dispose of their property in aparticular manner, each in considerationof the other--separate wills of 2 persons, which arereciprocal in their provisions.

Reciprocal wills- wills in which thetestators name each other as

beneficiaries under similar testamentaryplans

NOTE: A will that is both joint andmutual is one executed jointly by two ormore persons, the provisions of whichare reciprocal and which shows on itsface that the devises are made inconsideration of the other. Such isprohibited.

Reasons:







1. will is purely personal and unilateralact

2. contrary to the revocable characterof a will

3. may expose the testator to undueinfluence, and may even induce oneof the testators to kill the other.

NOTE: Joint wills executed by Filipinosin a foreign country shall not be valid inthe Philippines, even though authorizedby the foreign country in which they mayhave been executed ( Article 819 CivilCode).

This prohibition is applicableonly in joint wills executed by Filipinosin a foreign country; it does NOT APPLY

to joint wills executed by aliens.

E. CODICIL AND INCORPORATION BYREFERENCE

CODICIL A supplement or addition to a will,made after the execution of a willand annexed to be taken as a partthereof, by which any dispositionmade in the original will isexplained, added to, or altered.(Article 825)

NOTE: To be effective, it must beexecuted as in the case of a will. Itsexecution has the effect of republishingthe will as modified.

INCORPORATION BY REFERENCE (ART 827) Contemplates only lists of

properties, books of accounts, andinventories. Provisions which are in the nature of

testamentary dispositions must becontained in the will itself.

Requisites for a valid incorporation byreference: (ART 827)1. The document or paper referred to

in the will must be in existence atthe time of the execution of thewill;

2. The will must clearly describe andidentify the same, stating amongother things the number of pagesthereof;

3. It must be identified by clear andsatisfactory proof as the documentor paper referred to therein;

4. It must be signed by the testator and

the witnesses on each and everypage, except in case of voluminousbooks of account or inventories.

F. REVOCATION OF WILLS ANDTESTAMENTARY DISPOSITIONS

REVOCATION An act of the mind, terminating thepotential capacity of the will tooperate at the death of the testator,manifested by some outward or

visible act or sign, symbolic thereof.Such right to revoke a will cannot bewaived or restricted.

LAWS WHICH GOVERN REVOCATION(ART 829)

1. If the revocation takes place in the

Philippines, whether the testator isdomiciled in the Philippines or insome other country , it is valid whenit is in accordance with the laws of the Philippines

2. If the revocation takes place outside

the Philippines, by a testator who isdomiciled in the Philippines, it isvalid when it is in accordance withthe laws of the Philippines

3. Revocation done outside the

Philippines, by a testator who doesnot have his domicile in thiscountry , is valid when it is doneaccording to the:

a. laws of the place where thewill was made, or

b. laws of the place in which the

testator had his domicile at thetime of revocation;

MODES OF REVOCATION (ART 830)1. By implication of law:

a. legal separation revokestestamentary provisions in favorof the offending spouse;

b. preterition revokes theinstitution of heir;

c. judicial action for recovery of debt revokes a legacy of credit/remission of debt;







d. transformation, alienation, orloss of bequeathed propertyrevokes a legacy of suchproperty;

e. act of unworthiness by an heir,devisee/legatee revokestestamentary provisions in hisfavor;

f. if both spouses of thesubsequent marriage acted inbad faith, said marriage shall bevoid ab initio and testamentarydispositions made by one infavor of the other are revokedby operation of law (Art. 44,Family Code); and

g. void ab initio or annulled

marriages revoke testamentarydispositions made by one spousein favor of the other (Art. 50,Family Code).

2. By some will, codicil, or otherwriting, executed as provided incase of wills, which may either be:a. Express – when there is a

revocatory clause expresslyrevoking the previous will or apart thereof

b. Implied – when the provisionsthereof are partially or entirely

inconsistent with those of theprevious will

NOTE: While express revocation may beeffected by a subsequent will, or acodicil, or a nontestamentary writingexecuted as provided in case of wills,implied revocation may be effected onlyby either a subsequent will, or a codicil.

3. By burning, tearing, cancelling, orobliterating the will.Requisites:a. testamentary capacity at the

time of performing the act of destruction;

b. intent to revoke (animusrevocandi);

c. actual physical act of destruction;

d. completion of the subjectivephase; and

e. performed by the testatorhimself or by some other personin his presence and expressdirection

(THE LIST IS EXCLUSIVE.)

NOTE: The act of revocation is apersonal act of the testator. He cannot

delegate to an agent the authority to dothe act for him. Another person,however, may be selected by him as aninstrument and directed to do therevocatory acts in his presence. Adestruction not accomplished in thetestator’s presence is an ineffectiverevocation of the will.

DOCTRINE OF PRESUMED REVOCATION Whenever it is established that thetestator had in his possession or hadready access to the will, but uponhis death it cannot be found orlocated, the presumption arises thatit must have been revoked by him byan overt act. Where it is shown that the will wasin custody of the testator after itsexecution, and subsequently, it wasfound among the testator’s effectsafter his death in such a state of mutilation, cancellation orobliteration as represents asufficient act of revocation, it will

be presumed in the absence of evidence to the contrary, that suchact was performed by the testatorwith the intention of revoking thewill.

DOCTRINE OF DEPENDENT RELATIVEREVOCATION (ART 832) A revocation subject to a condition

does not revoke a will unless anduntil the condition occurs. Thus,where a testator “revokes” a willwith the proven intention that he

would execute another will, hisfailure to validly make a latter willwould permit the allowance of theearlier will.

Where the act of destruction isconnected with the making of another will so as fairly to raise theinference that the testator meantthe revocation of the old to dependupon the efficacy of the newdisposition intended to be







substituted, the revocation will beconditional and dependent upon theefficacy of the new disposition; andif for any reason, the new will

intended to be made as a substituteis inoperative, the revocation failsand the original will remains in fullforce (Vda. De Molo vs. Molo 90 Phil37).

Revocation by mistake A revocation of a will based on afalse cause or an illegal cause is nulland void. Thus, where a testator bya codicil or later will, expresslygrounding such revocation on theassumption of fact which turns out

to be false, as where it is stated thatthe legatees/devisees named thereinare dead, when in fact, they areliving, the revocation does not takeeffect.

G. REPUBLICATION AND REVIVAL OFWILLS

REPUBLICATION The act of the testator whereby he

reproduces in a subsequent will

(express) the dispositions containedin a previous will which is void as toits form, or he executes a codicil(constructive) to his will. Its purpose is to cure the will of itsformal defects.

NOTES:

To republish a will void as to its form, all the dispositions must bereproduced or copied in the new orsubsequent will;

To republish a will valid as to its form but already revoked theexecution of a codicil which makesreference to the revoked will issufficient.

Effects of Republication by virtue of aCodicil:1. Codicil revives the previous will2. The old will is republished as of the

date of the codicil— makes it speak,as it were, from the new and laterdate.

3. A will republished by a codicil isgoverned by a statute enacted to theexecution of the will, but which wasoperative when the codicil was

executed.

REPUBLICATION REVIVAL

1. Takes place byan act of thetestator

1. Takes place byoperation of law.

2. Corrects extrinsicand intrinsicdefects.

2. Restores arevoked will

REVIVALThe restoration to validity of a willpreviously revoked by operation of law (implied revocation).

PRINCIPLE OF INSTANTER The express revocation of the first

will renders it void because therevocatory clause of the second will,not being testamentary in character,operates to revoke the previous willinstantly upon the execution of thewill containing it.

NOTE: In implied revocation, the first

will is not instantly revoked by thesecond will because the inconsistenttestamentary dispositions of the latterdo not take effect immediately but onlyafter the death of the testator.H. ALLOWANCE AND DISALLOWANCE OFWILLS

PROBATE A special proceeding mandatorilyrequired for the purpose of establishing the validity of a will. The statute of limitations is notapplicable to probate of wills.

Questions determinable by the probatecourt: (ICE)

1. identity of the will;

2. testamentary capacity of the

testator at the time of the executionof the will; and

3. due execution of the will.







GENERAL RULE: In probateproceeding, the court’s area of inquiry islimited to an examination of, andresolution on the extrinsic validity if the

will, the due execution thereof, thetestatrix’s testamentary capacity andthe compliance with the requisites orsolemnities prescribed by law. Theprobate court cannot inquire into theintrinsic validity of testamentaryprovisions.

EXCEPTION: Practical considerations,e.g. when the will is intrinsically void onits face.

In Nuguid vs Nuguid (17 SCRA 449),the Supreme Court held that, if thecase were to be remanded forprobate of the will, nothing will begained. On the contrary, thislitigation would be protracted. Andfor aught that appears in the record,in the event of probate or if thecourt rejects the will, probabilityexists that the case will come uponce again before us on the sameissue of the intrinsic validity ornullity of the will. RESULT: waste of

time, effort, expense, plus addedanxiety.

In Nepomuceno vs CA (139 SCRA207), the Court ruled that “the courtcan inquire as to the intrinsicvalidity of the will because therewas an express statement that thebeneficiary was a mistress.

NOTES: Criminal action will not lie againstthe forger of a will which had beenduly admitted to probate by a courtof competent jurisdiction. (Mercadovs. Santos 66 Phil. 215)

The fact that the will has beenallowed without opposition and theorder allowing the same has becomefinal and executory is not a bar tothe presentation of a codicil,provided it complies with all theformalities for executing a will. It isnot necessary that the will andcodicil be probated together as the

codicil may be concealed by aninterested party. They may beprobated one after the other.(Macam vs. Gatmaitan 60 Phil 358)

When a will is declared void becauseit has not been executed inaccordance with the formalitiesrequired by law, but one of theintestate heirs, after the settlementof the debts of the deceased, pays alegacy in compliance with a clause inthe defective will, the payment iseffective and irrevocable ( Article1430, NCC; Natural Obligations).

Grounds for Disallowance of a Will (ART839)1. Formalities required by law have not

been complied with;2. Testator was insane, or otherwise

incapable of making a will, at thetime of its execution;

3. Will was executed through force orunder duress, or the influence of fear, or threats;

4. Will was procured by undue andimproper pressure and influence, onthe part of the beneficiary or of

some other person;5. Signature of the testator wasprocured by fraud;

6. Testator acted by mistake or did notintend that the instrument he signedshould be his will at the time of affixing his signature thereto.

NOTE: GROUNDS ARE EXCLUSIVE.

Fair arguments, persuasion, appealto emotions, and entreaties which,without fraud or deceit or actual

coercion, compulsion or restraint donot constitute undue influencesufficient to invalidate a will.(Barreto vs. Reyes 98 Phil 996) Burden is on the person challengingthe will to show that such influencewas exerted at the time of itsexecution. To make a case of UNDUEINFLUENCE, the free agency of thetestator must be shown to have beendestroyed; but to establish a ground







of contest based on FRAUD, freeagency of the testator need not beshown to have been destroyed. Allegations of fraud and undue

influence are mutually repugnantand exclude each other; their joiningas grounds for opposing probateshows absence of definite evidenceagainst the validity of the will(Icasiano vs. Icasiano 11 SCRA 422)

REVOCATION DISALLOWANCE 1. voluntary act of the testator.

1. given by judicialdecree.

2. with or without

cause.

2. must always be

for a legal cause.

3. may be partial ortotal.

3. always totalexcept: when theground of fraud orinfluence forexample affectsonly certainportions of thewill.

I. INSTITUTION OF HEIRS(ARTS. 840-856)

INSTITUTION An act by virtue of which a testatordesignates in his will the person orpersons who are to succeed him inhis property and transmissible rightsand obligations. (Art 840) The proper test in order todetermine the validity of aninstitution of heir is the possibility of finally ascertaining the identity of the instituted heir by intrinsic orextrinsic evidence.

PRESUMPTIONS

1. Presumption of Equality – Heirs

instituted without designation of shares shall inherit in equal parts.This is limited only to the casewhere all of the heirs are of thesame class or juridical condition, andwhere there are compulsory heirsamong the heirs instituted, it shouldbe applied only to the disposablefree portion.

2. Presumption of Individuality – When

the testator institutes some heirsindividually and others collectively,those collectively designated shall

be considered as individuallyinstituted, unless it clearly appearsthat the intention of the testatorwas otherwise.

3. Presumption of Simultaneity – when

the testator calls to the succession aperson and his children, they are alldeemed to have been institutedsimultaneously and not successively.

INSTITUTION BASED ON A FALSE CAUSE(Article 850)

GENERAL RULE: The statement of afalse cause for the institution of an heir

shall be considered as not written. Reason: Generosity of the testator isthe real cause of the testamentarydisposition.

EXCEPTION: If it appears from the faceof the will that the testator would nothave made the institution had he knownthe falsity of the cause. Example: Where the person

instituted is a total stranger to the

testator, it is obvious that the realcause of the testamentarydisposition is not the generosity of the testator but the fact itself whichturned out to be false.

REQUISITES FOR THE ANNULMENT OFINSTITUTION OF HEIRS:1. cause of institution of heirs must be

stated in will;2. cause must be shown to be false;3. it must appear from the face of the

will that the testator would not have

made the institution had he knownthe falsity of the cause.

Where the one-sentence willinstitutes the petitioner as the sole,universal heir and preterits theparents of the testatrix, and itcontains no specific legacies orbequests, such universal institutionof petitioner, by itself, is void.Intestate succession ensues.







(Nuguid vs. Nuguid, et al. 17 SCRA449)

PRETERITION (ART. 854)

Omission in the testator’s will of one, some, or all of the compulsoryheirs in the direct line, whetherliving at the time of the execution of the will or born after the death of the testator.

Requisites:1. The heir omitted must be a

compulsory heir in the direct line;

2. The omission must be complete and

total in character; and3. The compulsory heir omitted must

survive the testator.

There is no total omissionwhen:

a. A devise/legacy has been givento the heir by the testator

b. A donation inter vivos has been

previously given to the heir bythe testator; or

c. Anything is left from theinheritance which the heir mayget by way of intestacy.

NOTE: In the above cases, theremedy of the heir is completion of legitime under Art. 906, in case thevalue of the property received is lessthan the value of the legitime.

Effects of Preterition:1. It annuls the institution of heir;

2. The devises and legacies are valid

insofar as they are not inofficious;and

3. If the omitted compulsory heir

should die before the testator, theinstitution shall be effectual,without prejudice to the right of representation.

NOTE: In case of omission without preterition, the rule in Art. 855 shouldbe followed. The suggested alternatephrasing of Dr. Tolentino to the saidarticle is: “The share of the compulsory heir omitted in a will must be firsttaken from the part of the estate notdisposed of by the will, if any; if that is

not sufficient, so much as may benecessary must be taken proportionally

from the shares of the heirs given tothem by will.”

PRETERITION DISINHERITANCE

1. deprivation of acompulsory heir of his legitime is tacit

1. deprivation of acompulsory heir of his legitime isexpress.

2. may be voluntarybut the lawpresumes that it isinvoluntary

2. alwaysvoluntary.

3. law presumes

that there has beenmerely an oversightor mistake on thepart of the testator.

3. done with a

legal cause.

4. omitted heir getsnot only his legitimebut also his share inthe free portion notdisposed of by wayof legacies/ devises.

4. if disinheritanceis not lawful,compulsory heir ismerely restored tohis legitime.

Where the deceased left no

descendants, legitimate orillegitimate, but she left forced heirsin the direct ascending line—herparents, and her holographic willdoes not explicitly disinherit thembut simply omits them altogether,the case is one of preterition of parents, not a case of ineffectivedisinheritance. (Nuguid vs. Nuguid 17 SCRA 449)

NOTE: Preterition of the survivingspouse (SS) does not entirely annul the

institution of the heir since SS is not acompulsory heir in the direct line.However, since Article 842 protects thelegitime of the SS, the institution ispartially annulled by reducing the rightsof the instituted heir to the extentnecessary to cover the legitime of SS.(Tolentino)

EFFECT OF PREDECEASE--an heir who dies before the testatorshall transmit no right to his own heirs







(rule is absolute with respect to avoluntary heir)--what is transmitted to therepresentatives of compulsory heir is his

right to the legitime and not to the freeportionEFFECT OF INCAPACITY--A voluntary heir who is incapacitatedto succeed from testator shall transmitno right to his own heirs.--compulsory heir may be represented,but only with respect to his legitime

EFFECT OF REPUDIATION--whether voluntary or compulsory, theheir who repudiates his inheritancecannot transmit any right to his own

heirs.

J. SUBSTITUTION OF HEIRS(ARTS 857-870)

SUBSTITUTION The act by which the testatordesignates the person or persons totake the place of the heir or heirsfirst instituted (Tolentino). It may beconsidered as a subsidiary andconditional institution.

Kinds:

1. Simple or Common (that which

takes place when the testatordesignates one or more persons tosubstitute the heirs/s instituted incase such heir/s should die beforehim, or should not wish, or should beincapacitated to accept theinheritance)

2. Brief or Compendious: brief (there

are two or more persons designatedby the testator to substitute for only

one heir), compendious (one heir isdesignated to take the place of twoor more heirs)

Instances whensubstitution takes place:

a. instituted heir

predeceases the testator;

b. incapacity of the

instituted heir to succeed fromthe testator; and

c. repudiation of the

inheritance.

Effect of substitution:

General rule: once the substitutionhas taken place, the substitute shallnot only take over the share thatwould have passed to the institutedheir, but he shall be subject to thesame charges and conditionsimposed upon such instituted heir.Exceptions: (1) When the testator has expresslyto the contrary;(2) When the charges or conditionsare personally applicable only to theheir instituted.

3. FideicommissaryRequisites:

a. First heir ( fiduciary ) called to

the succession.b. An obligation clearly imposedupon such first heir to preserve theproperty and to transmit it to thesecond heir.

c. Second heir ( fideicommissary )to whom the property is transmittedby the first heir.

Without the obligation clearlyimposing upon the first heir thepreservation of the property and itstransmission to the second heir,there is no fideicommissarysubstitution (Rabadilla vs. CA 334SCRA 522)

NOTE: Pending transmission of property,the fiduciary is entitled to all the rightsof a usufructuary, although thefideicommissary is entitled to all therights of a naked owner.

Limitations:a. Substitution must not go beyondone degree from the heir originallyinstituted.

b. “Degree” means degree of

relationship.c. Fiduciary and fideicommissarymust be living at the time of thedeath of the testator.d. Substitution must not burden thelegitime of compulsory heirs.







e. Substitution must be madeexpressly. A fideicommissarysubstitution is void if the first heir is

not related in the 1st degree to thesecond heir (Ramirez vs. Vda. DeRamirez 111 SCRA 704)

K. CONDITIONAL, MODALTESTAMENTARY DISPOSITIONS, ANDTESTAMENTARY DISPOSITIONS WITH ATERM (ART 871-885)

GENERAL RULE: The institution of anheir may be made 1) conditionally, 2) fora term, or 3) for a certain purpose orcause (modal). Conditions, terms, andmodes however, are not presumed; theymust be clearly expressed in the will.The condition must fairly appear fromthe language of the will. Otherwise, it isnot binding.

LIMITATIONS:

1. The testator cannot impose any

charge, burden, encumbrance,condition, or substitutionwhatsoever upon the legitime of compulsory heirs.

2. Impossible conditions and thosecontrary to law or good customs arepresumed to have been imposederroneously or through oversight,thus, are considered as not imposed.

3. An absolute condition not to

contract a first marriage is alwaysvoid and will be considered as notwritten.

4. An absolute condition not to

contract a subsequent marriage isgenerally void, unless imposed upon

a widow or widower by the deceasedspouse or by the latter’s ascendantsor descendants. Even so, however,the legitime of the surviving spousecannot be impaired .

An absolute conditionnot to contract marriage whenvalidly imposed is resolutory incharacter. Consequently, if thetestator institutes his wife as heirsubject to the condition that she will

never marry again, she immediatelyacquires a right to the inheritanceupon the death of testator, but if she violates the condition by

contracting a 2nd

marriage, she losesher right to said inheritance.

NOTE: However, the following relativeconditions regarding marriage have beenconsidered as valid and binding:

a. generic condition to contractmarriage;

b. specific condition to contractmarriage with a determinateperson; and

c. specific condition not tocontract marriage with a

determinate person.

5. Any disposition made upon the

condition that the heir shall makesome provisions in his will in favor of the testator or of any other personshall be void ( disposicioncaptatoria).

6. Conditions imposed by the testatorupon the heirs shall be governed bythe rules established for conditionalobligations in all matters notprovided for by the law onsuccession.

Kinds of Conditions

1. Potestative Condition – depends

exclusively upon the will of the heir,devisee, or legatee, and must beperformed by him personally.

2. Causal Condition –depends upon the

will of the heir, devisee, or legatee,but upon the will of a third person.

3. Mixed – depends jointly upon the will

of the heir, devisee, or legatee and

upon chance and/or will of a thirdperson.

Fulfillment of Conditions:

1. Potestative Conditions must be

fulfilled after the death of thetestator (except when it has alreadybeen fulfilled and is of such naturethat it cannot be repeated);

2. Causal or mixed conditions may be

fulfilled either before or after such







death, unless the testator hasprovided otherwise.

MODAL INSTITUTION (INSTITUCION SUBMODO) Attachment by the testator to an

institution of heir, or to a devise orlegacy, of a statement of the:

a. object of the institution;

b. application of the property left

by testator; or

c. charge imposed by him.

NOTES:

When in doubt as to whether there isa condition or merely a mode,consider the same as mode.

When in doubt as to whether there isa mode or merely a suggestion,consider same only as a suggestion.

The ‘condition’ suspends but doesnot obligate; the ‘mode’ obligatesbut does not suspend (for he whoinherits with a mode is already anheir; one who inherits conditionallyis not yet an heir)

DOCTRINE of CONSTRUCTIVEFULFILLMENT: When without the faultof the fault of the heir, an institucionsub modo cannot take effect in theexact manner stated by the testator, itshall be complied with in a manner mostanalogous to and in conformity with hiswishes.

NOTE:

If the condition is casual, the

doctrine is not applicable since the

fulfillment of the event whichconstitutes the condition isindependent of the will of the heir,devisee/legatee. If the condition ispotestative or mixed, the doctrine isapplicable.

L.

LEGITIMES (ARTS 886 – 914)LEGITIME That part of the testator’s property

which he cannot dispose of becausethe law has reserved it for certain

heirs who are, therefore, calledcompulsory heirs.

The course of action to enforce alegitime accrues upon the death of the donor-decedent since it is onlythen that the net estate may beascertained and on which basis, thelegitime may be determined.(Imperial vs. CA 316 SCRA 313)

NOTE: One half of the estate is alwaysreserved for the primary or secondarycompulsory heirs. The other half is whatis termed under the NCC as the “freeportion” from which the legitime of theconcurring compulsory heirs are taken.This “free portion” is different from the“disposable free portion” over which thetestator has testamentary control. The“disposable free portion” is that whichremains after the legitime has beencovered.

COMPULSORY HEIRS (CH) Those for whom the legitime is

reserved by law, and who succeedwhether the testator likes it or not.They cannot be deprived by thetestator of their legitime except bydisinheritance properly effected.

Kinds of Compulsory Heirs:

1. Primary – those who have

precedence over and exclude otherCH. E.g. LCD.

2. Secondary – those who succeed only

in the absence of the primary CH.E.g. LPA or IP.

3. Concurring – those who succeed

together with the primary orsecondary CH. E.g. ICD and SS.

If the testator isa LEGITIMATE

person

If the testator isan ILLEGITIMATE

person

1. Legitimatechildren anddescendants(LCD)

1. Legitimatechildren anddescendants(LCD)







2. In default of the foregoing,legitimateparents and ascendants(LPA)

2. Illegitimatechildren anddescendants(ICD)

3. Survivingspouse (SS)

3. In default of the foregoing,illegitimate

parents only (IP)

4. Illegitimatechildren anddescendants(ICD)

4. Survivingspouse (SS)

NOTES:

See Sections 17 & 18 of R.A. 8552.

By force of the Family Code,

adopted children are deemedlegitimate children of the adopters.

By force of the Family Code, IC

without distinction and so long astheir filiation is duly established orproved in accordance with law, areeach entitled to 1/2 of the legitimeof a LC, thus abrogating the 5:4 ratiobetween “natural” and “non-natural” IC.

RULES:1. Direct descending line

a. Rule of preference between linesb. Rule of proximity

c. Right of representation ad

infinitum in case of predecease,incapacity, or disinheritance (LC:LD only; IC: both LD and ID)

d. If all the LC repudiate theirlegitime, the next generation of

LD succeed in their own right2. Direct ascending line

a. Rule of division by linesb. Rule of equal division

3. Non-impairment of legitime

TABLE OF LEGITIMESSURVIVOR LEGITIME NOTES

LC ½ Divide by the# of LC,whether theysurvive aloneor withconcurringCH.

1 LCSS

½¼

2 or moreLCSS

½equal to 1LC

LCIC

½½ of 1 LC

LCSSIC

½¼½ of 1 LC

All theconcurring CHget from thehalf freeportion, theshare of theSS havingpreferenceover that of the IC, whoseshare maysufferreduction prorata because

there is nopreferenceamongthemselves.

LPA ½ Whether theysurvive aloneor withconcurringCH.

LPAIC

½¼

IC succeed inthe ¼ inequal shares.

LPASS

½¼

LPASSIC

½1/8¼

IC ½ Divide equallyamong the IC.

SSIC

1/31/3







SS ½ 1/3 if marriage is inarticulomortis anddeceasedspouse dieswithin 3 mos.after themarriage.

IP ½

IPAny child

-excluded-It depends

Childreninherit in theamountsestablished inthe foregoing

rules.

IPSS

¼¼

Only theparents are of IC areincluded.Grandparentsand otherascendantsare excluded.

STEPS IN DETERMINING THE LEGITIMEOF COMPULSORY HEIRS:

1. Determination of the gross value of

the estate at the time of the deathof the testator;

2. Determination of all debts and charges which are chargeableagainst the estate;

3. Determination of the net value of the estate by deducting all the debtsand charges from the gross value of the estate;

4. Collation or addition of the value of all donations inter vivos to the netvalue of the estate;

5. Determination of the amount of the

legitime from the total thus found;

6. Imputation of the value of all

donations inter vivos made tocompulsory heirs against theirlegitime and of the value of alldonations inter vivos made tostrangers against the disposable freeportion and restoration to the

hereditary estate if the donation isinofficious; and

7. Distribution of the residue of the

estate in accordance with the will of

the testator

COLLATION1. Fictitious mathematical process of

adding the value of the thingdonated to the net value of thehereditary estate (Art. 908 and Arts.1061-1077).

2. Act of charging or imputing suchvalue against the legitime of thecompulsory heir to whom the thingwas donated (Arts. 1061-1077).

3. Actual act of restoring to the

hereditary estate that part of thedonation which is inofficious in ordernot to impair the legitime of compulsory heirs.

RESERVA TRONCAL (ART 891) The reservation by virtue of whichan ascendant who inherits from hisdescendant any property which thelatter may have acquired bygratuitous title from anotherascendant or a brother or sister, is

obliged to reserve such property forthe benefit of relatives who arewithin the 3rd degree and who belongto the line from which such propertycame. It constitutes as an exception toboth the system of legitime and theorder of intestate succession.

Purposes:1. To reserve certain property in favor

of certain persons;2. To prevent persons outside a family

from acquiring, by some chance or

accident, property which otherwisewould have remained with the saidfamily;

3. To maintain a separation betweenpaternal and maternal lines.

NOTE: Considering the rationale forreserva troncal which is to ultimatelyrevert ownership of property thatoriginally belongs to a line of relativesbut which by force of law passes to adifferent line, the reserva would have noreason to arise where the ascendants







who acquire the property themselvesbelong to the line of relatives fromwhich the property was, in turn,acquired by the descendant.

Requisites:

1. The property should have been

acquired by operation of law by anascendant (reservista) from hisdescendant ( propositus) upon thedeath of the latter.

2. The property should have been

previously acquired by gratuitoustitle by the descendant ( propositus)from another ascendant or from abrother or sister (originator ).

3. The descendant ( propositus) shouldhave died without any legitimateissue in the direct descending linewho could inherit from him.

Personal elements:1. Originator – the ascendant, or

brother or sister from whom thepropositus had acquired the propertyby gratuitous title (e.g. donation,remission, testate or intestatesuccession);

2. Propositus – the descendant who died

and from whose death the reservistain turn had acquired the property byoperation of law (e.g. by way of legitime or intestate succession). Theso-called “arbiter of the fate of thereserva troncal.”

3. Reservista – the ascendant, not

belonging to the line from which theproperty came (Justice Vitug) that isthe only compulsory heir and isobliged to reserve the property.

NOTE: Dr. Tolentino is of the view thateven if the reservista and the originator

belong to the same line, there is still anobligation to reserve.

4. Reservatarios – the relatives of the

propositus within the 3rd degree andwho belong to the line from whichthe property came and for whosebenefit the reservation isconstituted. They must be related byblood not only to the propositus butalso to the originator.

NOTE: All personal elements must be joined by bonds of legitimaterelationship.

NOTE: In determining the right of thereservatarios over the reservableproperty, there are 2 events to consider:

1. Death of propositus: all qualified

reservatarios acquire an inchoateright. Reservista owns the property subject to a resolutory condition.

2. Death of reservista: surviving

reservatarios acquire a perfect right.

NOTE: The NCC did not provide for therules on how the reservatarios wouldsucceed to the reservista. However, thefollowing rules on intestacy have beenconsistently applied:

a. Rule of preference between linesb. Rule of proximity

c. Right of representation

( provided that therepresentative is a relative of the descendant- proposituswithin 3rd degree, and that hebelongs to the line from whichthe reservable property came)

d. “Full blood/double share” rule

in Art. 1006

Propertysubject to reservation: must be thesame property which the reservistahad acquired by operation of lawfrom propositus upon the death of the latter and which the latter, inturn had acquired by gratuitous titleduring his lifetime from anotherascendant, brother/sister.

Obligations of Reservista:(1) To make an inventory of all

reservable property;(2) To appraise value of all

reservable movable property;(3) To annotate in Registry of

property the reservablecharacter of all reservableimmovable property;

(4) To secure by mortgage (a)restitution of movables notalienated, (b) payment of damages caused by his fault or







negligence, (c) return of pricereceived for movables alienatedand (d) payment of value of immovable alienated.

A reservatorio may dispose of hisexpentancy to the reservableproperty during pendency of thereserve in its uncertain andconditional form. If he dies beforethe reservista, he has nottransmitted anything, but if hesurvives such reservista, thetransmission shall become effective.

A will may prevent the constitution

of a reserva. In case of testatesuccession, only the legitime passesby operation of law. The propositusmay, by will, opt to give thelegitime of his ascendant withoutgiving to the latter properties he hadacquired by gratuitous title fromanother ascendant, or brother orsister. In such case, a reservatroncal is avoided .

However, if the ascendant wasnot disentitled in the will to receive suchproperties, the reserva minima rule

( proportional reserva) should befollowed. The rule holds that allproperty passing to the reservista mustbe considered as passing partly byoperation of law and partly by will of thepropositus. Thus, one half of theproperties acquired by gratuitous titleshould be reservable, and the other half should be free.

Causes for Extinguishment of ReservaTroncal:1. Death of reservatarios;

2. Death of all relatives of proposituswithin the 3rd degree who belong tothe line from which the propertycame;

3. Loss of the reservable property forcauses not due to the fault ornegligence of the reservista.

4. Waiver or renunciation by thereservatarios;

5. Prescription of the right of thereservatarios, when the reservistaholds the property adversely against

them in the concept of an absoluteowner;

6. Registration by the reservista of theproperty as free property under the

Land Registration Act

M. DISINHERITANCE (ART 915 – 923) A testamentary disposition by whicha person is deprived of, or excludedfrom, the inheritance to which hehas a right. A disinheritance properly effected

totally excludes the disinherited heirfrom the inheritance. Thedisinherited heir is deprived not onlyof the legitime but also of such partof the free portion that would havepassed to him by a previous will(which is revoked, as inconsistentwith, the subsequent disinheritance)or by intestate succession.

Requisites:1. Effected only through a valid

will;2. For a cause expressly stated by

law;3. Cause must be stated in the will

itself;4. Cause must be certain and true;5. Unconditional;

6. Total; and

7. The heir disinherited must bedesignated in such a manner thatthere can be no doubt as to hisidentity.

Effects of Disinheritance:

1. Deprivation of the compulsory heirwho is disinherited of anyparticipation in the inheritance

including the legitime.2. The children/descendants of the

person disinherited shall take his orher place and shall preserve therights of compulsory heirs withrespect to the legitime.

3. The disinherited parent shall nothave the usufruct or administrationof the property which constitutesthe legitime.

IMPERFECT DISINHERITANCE







A disinheritance which does not haveone or more of the essentialrequisites for its validity. Effects:

1. If testator had made disposition of the entire estate: annulment of thetestamentary dispositions only in sofar as they prejudice the legitime of the person disinherited; does notaffect the dispositions of thetestator with respect to the freeportion.

2. If testator did not dispose of the free

portion: compulsory heir is given allthat he is entitled to receive as if the disinheritance has not been

made, without prejudice to lawfuldispositions made by the testator infavor of others.

3. Devises, legacies and other

testamentary dispositions shall bevalid to such extent as will notimpair the legitime.

IMPERFECTDISINHERITANCE

PRETERITION

1. The persondisinherited may beany compulsory heir

1. The personomitted must be acompulsory heir inthe direct line

2. Always express 2. Always implied

3.Always intentional 3. May beintentional orunintentional

4. Effect: Partialannulment of institution of heirs

4. Effect: Totalannulment of institution of heirs

Common Causes for Disinheritance of children or descendants, parents orascendants, and spouse:1. When the heir has been found guilty

of an attempt against the life of thetestator, his/her descendants orascendants, and spouse in case of children and parents;

2. When the heir has accused thetestator of a crime for which the lawprescribes imprisonment for 6 years

or more, if the accusation has beenfound groundless;

3. When the heir by fraud, violence,intimidation, or undue influence

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

4. Refusal without justifiable cause tosupport the testator who disinheritssuch heir.

Peculiar Causes for Disinheritance1. Children/Descendants:

a. When the child/descendant hasbeen convicted of adultery orconcubinage with the spouse of the testator;

b. Maltreatment of the testator by

word or deed by thechild/descendant;

c. When the child/descendant leadsa dishonorable or disgracefullife; Conviction of a crime whichcarries with it a penalty of civilinterdiction.

2. Parents/Ascendants:a. When the parents have

abandoned their children orinduced their daughters to live acorrupt or immoral life, orattempted against their virtue;

b. When the parent/ascendant hasbeen convicted of adultery orconcubinage with the spouse of the testator;

c. Loss of parental authority forcauses specified in the Code; and

d. Attempt by one of the parentsagainst the life of the other,unless there has beenreconciliation between them.

3. Spouse:a. When the spouse has given cause

for legal separation; When thespouse has given grounds for theloss of parental authority.

Revocation of Disinheritance:1. Reconciliation;2. Subsequent institution of the

disinherited heir; and







3. Nullity of the will which contains thedisinheritance.

NOTE: Once disinheritance has been

revoked or rendered ineffectual, itcannot be renewed except for causessubsequent to the revocation or basedon new grounds.

RECONCILIATION It is the resumption of genuine

cordial relationship between thetestator and the disinherited heir,approximating that which prevailedbefore the testator learned of thecause for disinheritance, reciprocallymanifested by their actionssubsequent to the act of disinheritance. A subsequent reconciliation betweenthe offender and the offendedperson deprives the latter of theright to disinherit, and rendersineffectual any disinheritance thatmay have been made. (Art. 922)

NOTES:

Mere civility which may characterize

their relationship, a conduct that isnaturally expected of every decentperson, is not enough.

In order to be effective, the testator

must pardon the disinherited heir.Such pardon must specifically referto the heir and to the acts causingthe disinheritance. The heir mustaccept the pardon.

No particular form is required. Itmay be made expressly or tacitly.

NOTE: Where the cause for disinheritance is likewise a ground for unworthiness to succeed, what is theeffect of a subsequent reconciliationupon the heir’s capacity to succeed?

1. If disinheritance has been made:

Rule on reconciliation applies. Thedisinheritance becomes ineffective.

2. If disinheritance has not been

made: Rule on reconciliation doesnot apply. The heir continues to beincapacitated to succeed unless

pardoned by the testator under Art.1033. The law effects thedisinheritance.

N. LEGACIES AND DEVISES (ARTS. 924 –959)

Persons charged with legacies anddevises:(1) compulsory heir;(2) voluntary heir;(3) legatee or devisee;(4) estate

NOTES:

If the will is silent with regard to the

person who shall pay or deliver thelegacy/devise, there is apresumption that such legacy ordevise constitutes a charge againstthe decedent’s estate.

Since legacies and devises are to be

taken from the disposable freeportion of the estate, thus, theprovisions on institution of heirs are

generally applicable to them.

STATUS OFPROPERTY GIVEN BY

LEGACY/DEVISE

EFFECT ON THELEGACY/DEVISE

1. Belonging to thetestator at the time of the execution of thewill until his death

Effective

2. Belonging to thetestator at the time of the execution of thewill but alienated infavor of a 3rd person

Revoked

3. Belonging to thetestator at the time of the execution of thewill but alienated infavor of thelegatee/devisee

gratuitously

No revocation.There is a clearintention tocomply withlegacy or devise.







4. Belonging to thetestator at the time of the execution of thewill but alienated infavor of the legatee ordevisee onerously

Legatee/deviseecan demandreimbursementfrom the heir orestate

5. Not belonging to thetestator at the timethe will is executed buthe has ordered that thething be acquired inorder that it be givento the legatee/devisee

Effective

6. Not belonging to thetestator at the timethe will is executedand the testator

erroneously believedthat the thingpertained to him

Void

7. Not belonging to thetestator at the timethe will is executed butafterwards becomes hisby whatever title

Effective

8. Already belonged tothe legatee/devisee atthe time of theexecution of the will

even though anotherperson may haveinterest therein

Ineffective

9. Already belonged tothe legatee or deviseeat the time of theexecution of the willeven though it mayhave beensubsequently alienatedby him

Ineffective

10.Testator had

knowledge that thething bequeathedbelonged to a thirdperson and thelegatee/deviseeacquired the property

gratuitously after theexecution of the will

Legatee/devisee

can claim nothingby virtue of thelegacy/devise

11.Testator hadknowledge that thething bequeathedbelonged to a thirdperson and thelegatee/deviseeacquired the propertyby onerous title

Legatee/deviseecan demandreimbursementfrom the heir orestate

ART. 911 ART. 950

Order of preference:

(LIPO)

Order of preference:(RPSESO)

1. Legitime of

compulsoryheirs

2. Donations inter

vivos

3. Preferential

legacies ordevices

4. All other

legacies ordevices prorata

1. R emuneratory L/D

2. PreferentialL/D

3. L for support

4. L for

education

5. L/D of a

specific,determinate thingwhich forms a partof the estate

All others pro rata

Application: Application:

(1) When thereduction isnecessary topreserve thelegitime of compulsory heirsfrom impairmentwhether there are

(1) When there are nocompulsory heirs andthe entire estate isdistributed by thetestator as legaciesor devises; or

donations intervivos or not; or

(2) When,although, thelegitime has beenpreserved by thetestator himself there aredonations inter vivos.

(2) When there arecompulsory heirs but

their legitime hasalready beenprovided for by thetestator and thereare no donationsinter vivos.

NOTES:







In case of reduction in the above

cases, the inverse order of paymentshould be followed.

When the question of reduction is

exclusively among legatees anddevisees themselves, Article 950 governs; but when there is a conflictbetween compulsory heirs anddevisees and legatees, Article 911applies.

GROUNDS FOR REVOCATION OFLEGACIES AND DEVISES (ART 957)

1. Testator transforms the thing

bequeathed in such a manner that it

does not retain either the form orthe denomination it had.

2. Testator by any title or for any cause

alienates the thing bequeathed, orany part thereof, it being understoodthat in the latter case the legacy ordevise shall be without effect onlywith respect to the part alienated.Except: when the thing should againbelong to the testator afteralienation.

3. Thing bequeathed is totally lost

during the lifetime of the testator,or after his death without the heirsfault

4. Other causes: nullity of the will;noncompliance with suspensiveconditions affecting the bequests;sale of the thing to pay the debts of the deceased during the settlementof his estate.

NOTE: LIST IS NOT EXCLUSIVE

II. LEGAL OR INTESTATESUCCESSION

That which is effected by operationof law in the absence or default of awill.

CAUSES OF INTESTACY

1. If a person dies without a will, orwith a void will, or one which hassubsequently lost its validity;2. Absence of an institution of heir;

3. Partial institution of heir. In suchcase, intestacy takes place as to theundisposed portion (mixedsuccession);4. Non-fulfillment of suspensivecondition attached to the institutionof heir;5. Predecease of the institutedheir;6. Repudiation by the institutedheir;7. Incapacity of instituted heir;8. Preterition. Intestacy may be

total or partial depending onwhether or not there arelegacies/devises;9. Fulfillment of resolutorycondition;10. Expiration of term or period of institution;11. Non-compliance or impossibilityof compliance with the will.

NOTE: In all cases where there has beenan institution of heir, follow theI.S.R.A.I. order of Justice Paras. If the

I nstitution fails, Substitution occurs. If there is no substitute, the right of Representation applies in the directdescending line to the legitime if thevacancy is caused by predecease,incapacity, or disinheritance. The rightof Accretion applies to the free portionwhen the requisites in Art. 1016 arepresent. If there is no substitute, andthe right of Representation or Accretiondoes not apply, the rules on I ntestatesuccession shall take over.

A. RULES1. Rule of Preference between lines Those in the direct

descending line shall excludethose in the direct ascending andcollateral lines, and those in thedirect ascending line shall, inturn, exclude those in thecollateral line.

2. Rule of Proximity







The relative nearest in

degree excludes the moredistant ones, saving the right of representation when it properly

takes place. This rule is subject tothe rule of preference betweenlines.

3. Rule of Equal Division Relatives in the samedegree shall inherit in equalshares.

EXCEPTIONS:a) Division in the ascending line

(between paternal and maternalgrandparents);

b) Division among brothers andsisters, some of whom are of thefull and others of half blood; and

c) Division In cases where the rightof representation takes place.

NOTE: This rule is subject to therule of preference between lines.

4. Rule of Barrier between thelegitimate family and theillegitimate family The illegitimate family

cannot inherit by intestatesuccession from the legitimatefamily and vice-versa.

5. Rule of Double Share for fullblood collaterals When full and half-blood

brothers or sisters, nephews ornieces, survive, the full bloodshall take a portion in theinheritance double that of thehalf-blood.

NOTE: In case of a disposition made ingeneral terms under Article 959, only

the Rule of Proximity applies.

B. RELATIONSHIP (ARTS. 963 – 969)1. Number of generations determines

proximity.2. Each generation forms a degree.3. A series of degrees forms a line.4. A line may be direct or collateral. A

direct line is that constituted by theseries of degrees among ascendantsand descendants (ascending anddescending).

5. A collateral line is that constitutedby the series of degrees amongpersons who are not ascendants ordescendants, but who come from a

common ancestor.6. Full blood: same father and mother;

half blood: only one of either parentis the same.

7. In adoption, the legal filiation is

personal and exists only between theadopter and the adopted. Theadopted is deemed a legitimate childof the adopter (AP), but still remainsas an intestate heir of his naturalparents and other blood relatives.

C. RIGHT OF REPRESENTATION (RR)

(ARTS. 970 – 977) A right created by fiction of law, byvirtue of which the representative israised to the place and degree of theperson represented, and acquiresthe rights which the latter wouldhave if he were living or if he couldhave inherited. The representativeis called to the succession by the lawnot by the person represented. Hesucceeds the one whom the personrepresented would have succeeded.

NOTES:

In the direct line, representation

takes place ad infinitum in thedirect descending line, never in theascending.

In the collateral line, representation

takes place only in favor of thechildren of brothers or sisters(nephews and nieces), whether of the full or half-blood, and only if they concur with at least 1 uncle oraunt.

1. Testamentary Succession

a) When a compulsory heir in the

direct descending line had predeceased the testator andwas survived by his children ordescendants.

b) When a compulsory heir in the

direct descending line isexcluded from the inheritancedue to incapacity or







unworthiness and he haschildren or descendants.

c) When a compulsory heir in the

direct descending line is

disinherited and he has childrenor descendants; representationcovers only the legitime.

d) A legatee/devisee who diedafter the death of the testatormay be represented by his heirs.

2. Intestate Succession

a) When a legal heir in the

direct descending line had predeceased the decedent andwas survived by his children ordescendants.

b) When a legal heir in the

direct descending line isexcluded from the inheritancedue to incapacity orunworthiness and he haschildren or descendants.

c) When brothers or sisters

had predeceased the decedentand they had children ordescendants.

d) When illegitimate children

represent their illegitimate

parents who already died in theestate of their grandparents.

e) When nephews and nieces

inherit together with theiruncles and aunts inrepresentation of their deceasedparents who are the brothers orsisters of said uncles and aunts.

D.

INTESTATE OR LEGAL HEIRS Those who are called by law to thesuccession either in the absence of a

will or of qualified heirs, and whoare deemed called based on thepresumed will of the decedent.

REGULAR ORDER OF SUCCESSION(Decedent is a legitimate person):1. Legitimate children or descendants

(LCD)2. Legitimate parents or ascendants

(LPA)3. Illegitimate children or descendants

(ICD)4. Surviving spouse (SS)

5. Brothers and sisters, nephews andnieces (BS/NN)

6. Other collateral relatives within the5th degree (C5)

7. State

IRREGULAR ORDER OF SUCCESSION(Decedent is an illegitimate person):

1. Legitimate children ordescendants (LCD)

2. Illegitimate children ordescendants (ICD)

3. Illegitimate parents (IP)4. Surviving spouse (SS)

5. Brothers and sisters, nephews and

nieces (BS/NN)6. State

ORDER OF CONCURRENCE1. LCD, ICD, and SS2. LPA, ICD, and SS3. ICD and SS4. SS and IP5. BS/NN and SS6. C5 (alone)7. State (alone)

TABLE OF INTESTATE SHARES

SURVIVOR INTESTATE SHAREAny classalone

Entire estate

1 LCSS

1/21/2(Diongson vs. Cinco, 74SCRA 118)

2 or more LCSS

Consider SS as 1 LC,then divide estate bytotal number.

LPASS

1/21/2

LPASSIC

1/21/41/4

IPSS

1/21/2(The law is silent. Apply concurrence theory.)

SSBS/NN

1/21/2

1 LCSSIC

First, satisfy legitimes.Estate would beinsufficient. Reduction







must be made accordingto the rules onlegitimes. The legitimesof LCD and SS shallalways be first satisfiedin preference to the ICD.

2 or more LCSSIC

First, satisfy legitimes.There would be anexcess in the estate.Distribute such excess inthe proportion 1:2:2, inaccordance with theconcurrence theory .

ORDER OF CONCURRENCE IN THE CASEOF ADOPTED CHILD

SURVIVORS SHARE

1. LPA/IPAP

½½

2. LPA/IPAP

SS

½

½

3. LPA AP

ICD

½

½

4. LPAAP

SS

ICD

1/3

1/31/3

CARDINAL PRINCIPLES OF INTESTATESUCCESSION (Justice Paras)

1. Even if there is

an order of intestate succession, theCompulsory Heirs (CH) are neverexcluded. The Civil Code follows theconcurrence theory, not theexclusion theory.

2. Right of

Representation (RR ) in the collateralline occurs only in intestatesuccession, never in testamentarysuccession because a voluntary heircannot be represented (collateralrelatives are not CH).3. The intestateshares are either equal to or greaterthan the legitime.

4. GENERAL

RULE: Grandchildren always inheritby RR, provided representation isproper.

EXCEPTION: Whenever all thechildren repudiate, thegrandchildren inherit in their ownright because RR would not be

proper.5. Nephews and nieces inherit either by

RR or in their Own Right (OR ).a. RR: when they concur withaunts and uncles (provided thatRR is proper)

b. OR: when they do not concurwith aunts and uncles.

6. ICD of legitimates cannot represent

because of the barrier, but both theICD and LCD of illegitimates can.

7. There can be reserva troncal inintestate succession.

8. A renouncer can represent, butcannot be represented.

9. A person who cannot represent anear relative cannot also represent arelative farther in degree.

III. MIXED SUCCESSION OR PARTIAL INTESTACY

Succession that iseffected partly by will and partly byoperation of law.

RULES:1. The law of legitimes must bebrought into operation in partialintestacy, because the testamentarydispositions can affect only thedisposable free portion but never thelegitimes.2. If among the concurringintestate heirs there are compulsoryheirs, whose legal or intestateportions exceed their respectivelegitimes, then the amount of thetestamentary disposition must bededucted from the disposable freeportion, to be borne by all theintestate heirs in the proportionsthat they are entitled to receivefrom such disposable free portion asintestate heirs.







3. If the intestate share of acompulsory heir is equal to hislegitime, then the amount of thetestamentary disposition must be

deducted only from the intestateshares of the others, in theproportions stated above.4. If the testamentary dispositionsconsume the entire disposable freeportion, then the intestate heirs whoare compulsory heirs will get onlytheir legitime, and those who arenot compulsory heirs will getnothing.

IV. PROVISIONS COMMON TOTESTAMENTARY AND INTESTATESUCCESSIONS

A. RIGHT OF ACCRETION (A)(ARTS 1015 – 1023) A right by virtue of

which, when two or more personsare called to the same inheritance,devise or legacy, the part assignedto one who renounce or cannotreceive his share, or who died before

testator, is added or incorporated tothat of his co-heirs, co-devisees, orco-legatees. A right based on thepresumed will of the deceased thathe prefers to give certain propertiesto certain individuals, rather than tohis legal heirs.

Requisites:

1. 2 or more persons must have

been called to the same inheritance,legacy or devise, or to the same

portion thereof, pro indiviso; and2. there must be a vacancy in the

inheritance, legacy or devise(caused by predecease, incapacity,repudiation, nonfulfillment of suspensive condition or void orineffective testamentarydispositions.)

EFFECTS of PREDECEASE, INCAPACITY,DISINHERITANCE, or REPUDIATION in

both TESTAMENTARY and INTESTATESUCCESSIONCAUSE OFVACANCY

TESTAMENTARYSUCCESSION

INTESTATESUCCES-

SION

(IS)

Legitime Free

PortionPredecease 1. RR

2. IS1. A2. IS

1. RR2. IS

Incapacity RR2.IS

AIS

RRIS

Disinheri-tance

1.RR2.IS

_ _

Repudia-tion

IS A A

Summary:(A) Intestamentary succession:

(1) Legitime:

(a) In case of predecease of anheir, there isrepresentation if there arechildren or descendants; if none, the others inherit intheir own right.

(b) In case of incapacity,results are the same as inpredecease.

(c) In case of disinheritance,results are the same as inpredecease.

(d) In case of repudiation by an

heir, the others inherit intheir own right.

(2) Disposable free portion:Accretion takes place whenrequisites are present; but if such requisites are not present,the others inherit in their ownright.

(B) In intestate succession:(1) In case of predecease, there is

representation if there are childrenor descendants; if none, the othersinherit in their own right.

(2) In case of incapacity, results are thesame as in predecease.

(3) In case of repudiation, there isalways accretion.

B.

CAPACITY TO SUCCEED BY WILL OR BY INTESTACY (ARTS. 1024 – 1040)

Requisites:







1. The heir, legatee/devisee must beliving or in existence at the momentthe succession opens; and

2. He must not be incapacitated or

disqualified by law to succeed.

THE FOLLOWING ARE INCAPABLE OFSUCCEEDING:A. Based on Undue Influence orInterest: (PIGRAP)

1. Priest who heard the confessionof the testator during his last illness,or the minister of the gospel whoextended spiritual aid to him duringthe same period;2. Individuals, associations andcorporations not permitted by law to

inherit;3. Guardian with respect totestamentary dispositions given by award in his favor before the finalaccounts of the guardianship havebeen approved, even if the testatorshould die after the approvalthereof; nevertheless, any provisionmade by the ward in favor of theguardian when the latter is hisascendant, descendant, brother,sister, or spouse, shall be valid;4. R elatives of such priest or

minister of the gospel within the 4th

degree, the church, order, chapter,community, organization orinstitution to which such priest orminister may belong;5. Attesting witness to theexecution of a will, the spouse,parents or children, or any oneclaiming under such witness, spouse,parents or children; and6. Physician, surgeon, nurse, healthofficer or druggist who took care of the testator during his last illness.

B. Based on Morality or Public Policy(ART 739)1. Those made in favor of a person with

whom the testator was guilty of adultery or concubinage at the timeof the making of the will.

2. Those made in consideration of acrime of which both the testator andthe beneficiary have been foundguilty.

3. Those made in favor of a publicofficer or his spouse, descendants andascendants, by reason of his publicoffice

C. Based on Acts of Unworthiness(A4F3P)1. Parents who have abandoned their

children or induced their daughtersto lead a corrupt or immoral life, orattempted against their virtue;

2. Any person who has been convictedof an attempt against the life of thetestator, his/her spouse,descendants or ascendants;

3. Any person who has accused thetestator of a crime for which the law

prescribes imprisonment for 6 yearsor more, if the accusation has beenfound groundless;

4. Any person convicted of adultery orconcubinage with the spouse of thetestator;

5. Any heir of full age who, havingknowledge of the violent death of the testator, should f ail to report itto an officer of the law within amonth, unless the authorities havealready taken action; this prohibitionshall not apply to cases wherein,

according to law, there is noobligation to make an accusation;

6. Any person who by f raud, violence,intimidation, or undue influenceshould cause the testator to make awill or to change one already made;

7. Any person who f alsifies or forges asupposed will of the decedent; and

8. Any person who by the same meansprevents another from making a will,or from revoking one already made,or who supplants, conceals, or altersthe latter's will.

NOTE: The moment the testator usesone of the acts of unworthiness as acause for disinheritance, he therebysubmits it to the rules on disinheritance.Thus, reconciliation renders thedisinheritance ineffective.

PARDON OF ACTS OF UNWORTHINESSEXPRESS IMPLIED

1. made by theexecution of a

1. effected whentestator makes a







document or anywriting in which thedecedent condonesthe cause of incapacity

will instituting theunworthy heir withknowledge of thecause of incapacity

2. cannot berevoked

2. revoked whenthe testatorrevokes the will orthe institution

C. ACCEPTANCE AND REPUDIATION OFINHERITANCE (ARTS. 1041 – 1057)

Characteristics: (VIR)

1. Voluntary and free

2. Irrevocable, except if there is

vitiation of consent or an unknown

will appears3. R etroactive

Requisites:

1. certainty of the death of the

decedent

2. certainty of the right to the

inheritance

Acceptance vs. Repudiation:(1) Acceptance involves the confirmation of transmission of successional rights,while repudiation renders suchtransmission ineffective.(2) Repudiation is equivalent to an act of disposition and alienation.(3) Thepublicity required for repudiation isnecessary for the protection of otherheirs and also of creditors.

Form of Acceptance

1. Express Acceptance – one made in apublic or private document.2. Tacit Acceptance – one resulting from

acts by which the intention toaccept is necessarily implied orwhich one would have no right to doexcept in the capacity of an heir

Tacit acceptance is presumed fromcertain acts of the heir as:1. When heir sells, donates, or assigns

his right.

2. When heir renounces it for thebenefit of one or more heirs.

3. When renunciation is in favor of allheirs indiscriminately for

consideration4. Other acts of tacit acceptance

a. heir demands partition of theinheritance

b. heir alienates some objects of the inheritance

c. Under Art 1057, failure to signifyacceptance or repudiation within30 days after an order of distribution by the probatecourt.

REPUDIATION must be made in a

public instrument (acknowledgedbefore a notary public) or authenticdocument (equivalent of anindubitable writing or a writingwhose authenticity is admitted orproved) or by petition presented tothe court having jurisdiction over thetestamentary or intestateproceeding.

Reason for formality: Law considersthat the act of repudiation is moresolemn than the act of acceptanceand that repudiation produces amore violent and disturbingconsequences.

Heir in two capacities: An heir who

is such by will and by law, and herepudiates the inheritance as atestamentary heir, will beconsidered to have repudiated theinheritance as a legal heir. But whenan heir repudiates as a legal heir, hemay later on accept as atestamentary heir.

D. COLLATION (ARTS. 1061-1077) Every compulsory heir, who succeedswith other compulsory heirs mustbring into the mass of the estate anyproperty or right which he mayreceived from the decedent, duringthe lifetime of the latter, by way of donation, or any other gratuitous







title, in order that it may becomputed in the determination of the legitime of each heir, and in theaccount of partition. (Art. 1061)

An act of returning or restoring tothe common mass of the estate,either actually or fictitiously, anyproperty which a person may havereceived from the decedent duringthe latter’s lifetime, but which isunderstood for legal purposes as anadvance from inheritance.

OPERATIONS RELATED TO COLLATION1. Collation – adding to the mass of the

hereditary estate the value of thedonation or gratuitous disposition

2. Imputing or Charging – crediting thedonation as an advance on thelegitime (if the donee is acompulsory heir) or on the freeportion (if the donee is a stranger)

3. Reduction – determining to whatextent the donation will remain andto what extent it is excessive orinofficious.

4. Restitution – return or payment of the excess to the mass of hereditaryestate.

Persons obliged to collate

1. GENERAL RULE: compulsory heirs

EXCEPTIONS:a. When the testator should have

so expressly provided; andb. When the compulsory heir should

have repudiated his inheritance

2. Grandchildren who survive with their

uncles, aunts, or 1st cousins, andinherit by right of representation.

NOTE: Grandchildren may inherit fromgrandparent in their own right (i.e. heirsnext in degree) and not by right of representation if their parent repudiatesthe inheritance of the grandparent, asno living person can be representedexcept in cases of disinheritance andincapacity. In such case grandchildrenare not obliged to bring to collationwhat their parent has received

gratuitously from their grandparent)

What to collate:

1. Any property or right received by

gratuitous title during the testator’slifetime

2. All that they may have received fromthe decedent during his lifetime

3. All that their parents would havebrought to collation if alive

Properties not subject to collation (2nd

concept):1. Absolutely no collation (all

concepts):a. Expenses for support, education

(elementary and secondary only), medical attendance, evenin extraordinary illness,apprenticeship, ordinaryequipment, or customary gifts(Art. 1067).

2. Generally not imputable to legitime:a. Expenses incurred by parents in

giving their childrenprofessional, vocational or othercareer unless the parents soprovide, or unless they impairthe legitime.

b. Wedding gifts by parents andascendants consisting of

jewelry, clothing, and outfitexcept when they exceed 1/10of the sum disposable by will.

E.

PARTITION AND DISTRIBUTION OFESTATE (ARTS. 1078 – 1105) It is the separation, division and

assignment of a thing held incommon among those to whom itmay belong. It includes every actwhich is intended to put an end toindivision among co-heirs, andlegatees or devisees, although it

should purport to be a sale,exchange, compromise, or any othertransaction. It is not subject to anyform.

Who may effect partition:

1. decedent himself during his lifetime

by an act inter vivos or by will;2. heirs themselves;3. competent court;

4. 3rd person designated by the

decedent.







Who can demand partition:1. compulsory heir;2. voluntary heir;

3. legatee or devisee;4. any person who has acquiredinterest in the estate.

When partition cannot be demanded:(PAPU)

1. when expressly prohibited by the

testator himself for a period notexceeding 20 years;

2. when the co-heirs agreed that the

estate shall not be divided for aperiod not exceeding 10 years,renewable for another 10 years;

3. when prohibited by law;

4. when to partition the estate would

render it unserviceable for the usefor which it is intended.

Prohibition to Partition

1. The prohibition to partition for a

period not exceeding 20 years can beimposed on the legitime.

2. If the prohibition to partition is for

more than 20 years, the excess isvoid.

3. Even if a prohibition is imposed, theheirs by mutual agreement can stillmake the partition.

PARTITION INTER VIVOS (ART 1080) It is one that merely allocatesspecific items or pieces of propertyon the basis of the pro-indivisoshares fixed by law or given underthe will to heirs or successors.

NOTE: Partition is not itself a mode of acquiring ownership, nor a titletherefore. This partition, beingpredicated on succession, necessitatesrelationship to the decedent (in case of intestacy) or a will duly probated (incase of testacy). A partition inter vivosmade in favor of intestate heirs could beoperative. Dispositions, however, to non-intestate heirs may suffer animpediment unless based on a valid will,except perhaps when such dispositions

are intended to take effect during thelife of the testator and the formalities of donations are properly complied with.

EFFECTS OF INCLUSION OF INTRUDER IN PARTITION:

1. Between a true heir and several

mistaken heirs – partition is VOID.

2. Between several true heirs and a

mistaken heir – transmission tomistaken heir is VOID.

3. Through error or mistake, share of

true heir is allotted to mistakenheir – partition shall not berescinded unless there is bad faith orfraud on the part of the otherpersons interested, but the lattershall be proportionately obliged topay the true heir of his shareNOTE: partition with respect to themistaken heir is VOID.







A VOID WILL MAY BE A VALIDPARTITION:1. If the will was in fact a partition;

and2. If the beneficiaries in the void will

were legal heirs.



Documents

Reviewer Succession