civil law 4 (succession)

7/28/2019 CIVIL LAW 4 (Succession)

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CIVIL LAW REVIEWER 42013 BAREXAMINATIONS

SUCCESSION

I. General Provisions

DEFINITION OF SUCCESSION

SUCCESION - Is a mode of acquisition by virtue of which the property, rights andobligations to the extent of the value of the inheritance, of a person are transmittedthrough his death to another or others either by his will or by operation of law (Art.774)1

ELEMENTS OF SUCCESSION

1. Death of the Decedent However, a person may be presumed dead for thepurpose of opening his succession (see rules on presumptive death). In this case,succession is only of provisional character because there is always the chance thatthe absentee may be alive.

2. Successors (subjective element)

a. Heirs those who are called to the whole or to an aliquot portion of theinheritance either by will or by operation on law

i. voluntaryii. compulsory or forcediii. legal or intestate

b. Devisees or Legatees persons to whom gifts of real or personal property arerespectively given by virtue of a will.

The distinctions between heirs and devisees/legatees are significant in these

cases:1. Preterition2. Imperfect disinheritance3. After-acquired properties4. Acceptance or non-repudiation of the successional rights.

3. Inheritance (objective element) is the subject matter of Succession it includes:

Property and transmissible rights and obligations

Existing at the time of his death

AND those which have accrued thereto since the opening of succession.

RIGHTS EXTINGUISHED BY DEATH

1. Support2. Usufruct

1 Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations tothe extent of the value of the inheritance, of a person are transmitted through his death to another or others

either by his will or by operation of law. (n)


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3. Those arising from personal consideration4. Personal easements5. Partnership rights6. Agency7. Life Annuity

Succession Inheritance

Refers to the legal mode by whichinheritance is transmitted to thepersons entitled to it.

Refers to the universality or entirety ofthe property, rights and obligations of aperson who died.

KINDS OF SUCCESSION

1. Testamentary or testacy (by will) that which results from the designation of anheir, made in a will executed in the form prescribed by law

2. Legal or Intestate that which takes place by operation of law in the absence ofa valid will

3. Mixed that which is effected partly by will and partly by operation of law

4. Partition inter vivos (to a certain degree).

KINDS OF HEIRS

1. Compulsory those who succeed by force of law to some portion of theinheritance, in an amount predetermined by law, of which they cannot be deprivedby the testator, except by a valid disinheritance

2. Voluntary or Testamentary those who are instituted by the testator in his will,to succeed to the portion of the inheritance of which the testator can freelydispose

3. Legal or Intestate those who succeed to the estate of the decedent who dieswithout a valid will, or to the portion of such estate not disposed of by will

II. Testamentary Succession

A. CONCEPT

DEFINITION OF WILL (Art. 7832

- It is an act, CC)

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

Characteristics of a will:1.Unilateral

2 Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to

control to a certain degree the disposition of this estate, to take effect after his death. (667a)


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2.Strictly personal act - The disposition of property is solely dependent upon thetestator.

The following acts may nota. duration or efficacy of the designation of heirs, devisees or legatees;

be left to the discretion of a third person:

b. determination of the portions which they are to take, when referred to byname; and

c. determination of whether or not the testamentary disposition is to beoperative.

However, the following acts maya. distribution of specific property or sums of money that he may leave in

general to specified classes or causes; and

be entrusted to a third person:

b. designation of the persons, institutions or establishments to which suchproperty or sums are to be given or applied.

3.Free and voluntary act Any vice affecting the testamentary freedom can causethe disallowance of the will.

4.Formal and solemn act The formalities are essential for the validity of the will.5.Act mortis causa

6.Ambulatory and revocable during the testators lifetime7.Individual act Two or more persons cannot make a single jointwill, either for

their reciprocal benefit or for another person. However, separate or individuallyexecuted wills, although containing reciprocal provisions (mutual wills), are notprohibited, subject to the rule on disposicion captatoria.

8.Disposition of property

B. INTERPRETATION OF WILLS

The testators intent (animus testandi), as well as giving effect to such intent, is primordial. It issometimes said that the supreme law in succession is the intent of the testator. All rules ofconstruction are designed to ascertain and give effect to that intention. It is only when the intentionof the testator is contrary to law, morals, or public policy that it cannot be given effect.

Follow the rules prescribed under Arts. 788 to 792.

C. TESTAMENTARY CAPACITY

The capacity must be present at the time of the execution of the will.

REQUISITE

1. All persons who are not expressly prohibited by law (Art. 796, CC)2. Eighteen (18) years old and above (Art. 797, CC)3. Of sound mind at the time of the execution of the will (Art. 798, CC)

Supervening capacity or incapacity does not affect the will. Of sound mind, i.e., the ability to know:

a. the nature of the estate to be disposed of;b. the proper objects of his bounty; andc. the character of the testamentary act.

The lawpresumes that the testator is of sound mind, unless:a. he, one month or less, before making his will, was publicly known to be

insane;b. was under guardianship at the time of making his will.

and


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D. FORMALITIES OF WILLS

KINDS OF WILLS1. Notarial an ordinary or attested will (Articles 804-808, CC)2. Holographic a handwritten will (Art. 810, CC)

COMMON REQUIREMENTS TO BOTH WILLS (Art. 804, CC)1. In writing2. In a language or dialect known to the testator

REQUISITES FOR A VALID NOTARIAL WILL

1. In writing (Art. 804, CC)2. In a language or dialect known to the testator (Art. 804, CC)3. Subscribed at the end by the testator himself or by the testators name written by

some other person in his presence, and by his express direction (Art. 805, CC)

*Requisite of a signature: satisfied by a thumbprint Matias vs. Salud. However, across does not. Garcia vs. Lacuesta

4. Attested and subscribed by three or more credible witnesses in the presence of the

testator and of one another (Art. 805, CC)

* Test of Presence: Not whether they actually saw each other sign, but whetherthey might have seen each other sign had they chosen to do so consideringtheir mental and physical condition and position with relation to each other atthe moment of inscription of each signature.Jaboneta vs. Gustilo, 5 Phil. 541

5. Each and every page, except the last, must be signed by the testator or by theperson requested by him to write his name, and by the instrumental witnesses ofthe will, on the left margin. (Art. 805, CC)

* Exceptions:

a. when the will consists of only one pageb. when the will consists of only two pages, the first of which contains all

dispositions and is signed at the bottom by the testator and the witnesses,and the second page contains only the attestation clause duly signed at thebottom by the witnesses.Abangan vs. Abangan

*Note: The inadvertent failure of one witness to affix his signature to onepage of a testament, due to the simultaneous lifting of two pages in thecourse of signing, is not per se sufficient to justify denial of probate.Icasiano vs. Icasiano, 11 SCRA 422

6. Each and every page of the will must be numbered correlatively in letters placed onthe upper part of each page. (Art. 805, CC) example, page one of five pages

7. It must contain an attestation clause, stating the following (Art. 805, CC)

a. The number of pages used upon which the will is written.b. The fact that the testator signed the will and every page, or caused some other

person to write his name, under his express direction, in the presence of theinstrumental witnesses.

c. All the instrumental witnesses witnessed and signed the will and all the pages inthe presence of the testator and of one another.


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8. It must be acknowledged before a notary public by the testator and the witnesses.(Art. 806, CC)

* Note: The notary public before whom the will was acknowledged cannot beconsidered as the third instrumental witness since he cannot acknowledgebefore himself his having signed the will. To allow such would have the effectof having only two attesting witnesses to the will which would be incontravention of Articles 805 and 806. Cruz vs. Villasor, 54 SCRA 31

ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BE DEAFOR A DEAF-MUTE (Art. 807, CC)

1. Testator must personally read the will, if able to do so.2. Otherwise, testator shall designate two persons to read the will and communicate

its contents to him in some practicable manner.

ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BEBLIND (Art . 808, CC)

The will shall be read to the testator twice

1. Once by one of the subscribing witnesses2. Once by the notary public before whom the will is acknowledged

REQUISITES FOR A HOLOGRAPHIC WILL

1. In writing (Art. 804, CC)2. In a language or dialect known to the testator (Art. 804, CC)3. Entirely written, dated, and signed by the hand of the testator himself (Art. 810,

CC)

AMENDING A WILL

1. Notarial only through a codicil

2. Holographic

a. Dispositions may be added below the signature, provided that said dispositionsare also dated and signed, and everything is written by the hand of thetestator himself

b. Certain dispositions or additional matter may be suppressed or insertedprovided that such is signed by the testator and written by the hand of thetestator himself

c. Through a codicil which may either be notarial or holographic

EFFECT OF INSERTION WRITTEN BY ANOTHER PERSON ON THE VALIDITY OFA HOLOGRAPHIC WILL WRITTEN BY THE TESTATOR

When Made EffectAfter the execution of the will,without the consent of thetestator

Insertion is considered not written.The validity of the will cannot bedefeated by the malice or caprice ofa third person.

After the execution of the will,with the consent of the testator

Will is valid.Insertion is void.

After the execution of the will,validated by the testator by hissignature

Insertion becomes part of the will.Entire will becomes void because itdid not comply with the


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requirement that it must be whollywritten by the testator.

Contemporaneous to theexecution of the will

Will is void because it is not writtenentirely by the testator.

RULES IN CASE OF SUBSEQUENT DISPOSITIONS

Subsequent Disposition Effect

Signed Not datedLast disposition is signed and dated

Valid

Not signed Dated Void

SignedNot dated

Void but it does not affect thevalidity of the other dispositionsor the will itself

QUALIFICATIONS OF WITNESSES TO A NOTARIAL WILL (A rts. 820 821, CC(SABRDC))

1. Of sound mind2. Of the age of 18 years or more3. Not blind, deaf or dumb4. Able to read and write5. Domiciled in the Philippines6. Have not been convicted of falsification of a document, perjury or false testimony

INTERESTED WITNESS (Art. 823, CC)- A witness who attests to the execution of a will which gives a legacy or devise to

that witness, or his spouse, or his parent or his child.

*Effect: The devise or legacy, insofar as it concerns that witness or his spouse or hisparent or his child, shall be void unless there are three other witnesses to

such will. His competence as a witness shall subsist.

GOVERNING LAW

As to time Governing Law Formal Validity Law in force at the time the will is made

Intrinsic Validity Law of decedents nationality at the time ofhis death (Art. 16, CC

As to Place

Testator Place of Execution of the Will Governing Law

FilipinoPhilippines (Art. 16, CC) Philippine LawOutside of the Philippines(Art. 815, CC)

1. Law of the country in which it is executed; or2. Philippine Law

Alien Philippines (Art. 817, CC) 1. Philippine Law; or2. Law of the Country of which testator is a citizen

or subject.Outside the Philippines (Art.816, CC)

1. Law of the place where the will is executed; or2. Law of the place where the testator resides; or3. Law of the testators country; or4. Philippine Law


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ASPECTS OF THE WILL GOVERNED BY THE NATIONAL LAW OF THE DECEDENT(Arts. 16 and 1039, CC)

1. Order of succession2. Capacity to succeed3. Amount of successional rights4. Intrinsic validity of testamentary provisions

JOINT WILL

- A single testamentary instrument- which contains the wills of two or more persons- jointly executed by them- either for their reciprocal benefit or for the benefit of a third person

MUTUAL WILLS

- Executed pursuant to an agreement between two or more persons- to dispose of their property in a particular manner- each in consideration of the other separate wills of two persons which are reciprocal

in their provisions

RECIPROCAL WILLS

- Testators name each other as beneficiaries- under similar testamentary plans

Note: A will that is both joint and mutual is one executed jointly by two or morepersons, the provisions of which are reciprocal and which shows on its face thatthe devises are made in consideration of the other. Such is prohibited underArt. 819, CC. Prohibition is applicable only to joint wills executed by Filipinos.

D. CODICIL AND INCORPORATION BY REFERENCE

DEFINITION OF A CODICIL (Arts. 825 826, CC)

- It is a supplement or addition to a will- made after the execution of a will- and annexed to be taken as a part of the will- by which any disposition made in the original will is explained, added to, or altered- It is executed as in the case of a will.

REQUISITES FOR INCORPORATION BY REFERENCE (Art. 827, CC)

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

2. The will must clearly describe and identify the same, stating among other things

the number of pages thereof.3. It must be identified by clear and satisfactory proof as the document or paperreferred to therein. And

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

E. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS

MODES OF REVOKING A WILL (Art. 830,CC)

1. By implication of law


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2. By the execution of a will, codicil or other writing executed as provided in the caseof wills

3. By burning, tearing, canceling, or obliterating the will with the intention of revokingit, by the testator himself, or by some other person in his presence, and by hisexpress direction*Note: It must be done any time before the death of the testator. The right of

revocation cannot be waived or restricted. (Art. 828, CC)

LAWS WHICH GOVERN REVOCATION (A rt. 829, CC)

PLACE OFREVOCATION

TESTATORSDOMICIL

GOVERNINGLAW

In the Philippines Philippines or in someother country

Philippine Law

Outside thePhilippines

Philippines Philippine LawForeign country 1. Law of the place where the will was made;

or2. Law of the place in which The testator had

his domicile at the time of revocation.

DOCTRINE OF DEPENDENT RELATIVE REVOCATION

- A revocation subject to a condition does not revoke a will unless and until thecondition occurs. Thus, where a testator revokes a will with the proven intentionthat he would execute another will, his failure to validly make a latter will wouldpermit the allowance of the earlier will.

- Where the act of destruction is connected with the making of another will so as tofairly raise the inference that the testator meant the revocation of the old todepend upon the efficacy of the new disposition intended to be substituted, therevocation will be conditional and dependent upon the efficacy of the newdisposition; and if for any reason, the new will intended to be made as a substitute

is inoperative, the revocation fails and the original will remain in full force. Molovs. Molo, 90 Phil. 37

F. ALLOWANCE AND DISALLOWANCE OF WILLS

PROBATE

- It is a special proceeding by which the validity of a will may be established.

- Probate court may pass upon the title thereto, but such determination is provisional,not conclusive, and is subject to the final decision in a separate action to resolvetitle. Pastor vs. CA 1983

- Probate of a will bars criminal prosecution of the alleged forger of the probated will.Mercado vs. Santos 1938

MATTERS TO BE PROVED IN A PROBATE

1. Whether the instrument which is offered for probate is the last will and testamentof the decedent

2. Whether the will has been executed in accordance with the formalities prescribedby law

3. Whether the testator had testamentary capacity at the time of the execution of thewill


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GROUNDS FOR DISALLOWANCE OF A WILL (Art. 839, CC) FIFU SM

1. If the Formalities required by law have not been complied with.

2. If the testator was Insane, or otherwise mentally incapable of making a will, at thetime of its execution.

3. If it was executed through Force or under duress, or the influence of fear, or

threats.

4. If it was procured by Undue and improper pressure and influence, on the part ofthe beneficiary or of some other person.

5. If the Signature of the testator was procured by fraud.

6. If the testator acted by Mistake or did not intend that the instrument he signedshould be his will at the time of affixing his signature thereto.

*This list is exclusive.

REVOCATION VS. DISALLOWANCE

REVOCATION DISALLOWANCEVoluntary act of the testator Given by judicial decree

With or without cause Must always be for a legal causeMay be partial or total Always total except when the ground of fraud or

influence for example affects onlycertain portions of the will

G. INSTITUTION OF HEIRS

DEFINITION OF INSTITUTION OF HEIRS (Art. 840, CC)

- It is an act by virtue of which a testator designates in his will- the person/s who are to succeed him in his property and transmissible rights and

obligations.

REQUISITES FOR A VALID INSTITUTION OF HEIR (DACCVP)

1. Designation in will of person/s to succeed2. Will specifically assigns to such person an inchoate share in the estate3. The person so named has capacity to succeed4. The will is formally valid5. No vice of consent is present6. No preterition results from the effect of such will

THREE PRINCIPLES IN THE INSTITUTION OF HEIRS

1. Equality heirs who are instituted without designation of shares shall inherit inequal parts. (Art. 846, CC)

2. Individuality heirs collectively instituted are deemed individually named unlessa contrary intent is proven. (Art. 847, CC)

3. Simultaneity when the testator calls to the succession a person and his children,they are all deemed to have been instituted simultaneously and not successively.(Art. 849, CC)i


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INSTITUTION BASED ON A FALSE CAUSE (Art. 850, CC)

- General Rule: The statement of a false cause for the institution of an heir shall beconsidered as not written.

- Exception: If it appears from the will that the testator would not have made suchinstitution if he had known the falsity of such cause. In this case, the institutionshall be annulled.

- Requisites of Annulment under 850:

1. cause for institution of heirs must be stated in the will

2. cause must be shown as false

3. it must appear form the face of the will that the testator would not have madesuch institution if he had known the falsity of the cause.Austria vs. Reyes 1970

RULES REGARDING A PERSONS RIGHT TO DISPOSE OF HIS ESTATE (Art.842, CC)

1. If testator has no compulsory heirs

a. He can give his estate to any person having capacity to succeed.b. He must respect restriction imposed by special laws.

2. If testator has compulsory heirs

a. He can give the disposable portion to strangers.b. Legitimes of compulsory heirs must be respected.

CONCEPT OF PRETERITION (Art . 854, CC)

1. There must be a total omission of one, some or all of the heir/s in the will.2. The omission must be that of a compulsory heir.

3. The compulsory heir omitted must be of the direct line.4. The omitted compulsory heir must be living at the time of the testators death or

must at least have been conceived before the testators death.

EFFECTS OF PRETERITION (Art . 854, CC)

1. The institution of the heir is annulled.2. Devises and legacies shall remain valid as long as they are not inofficious.3. If the omitted compulsory heir should die before the testator, the institution shall

be effectual, without prejudice to the right of representation.

PRETERITION VS. DISINHERITANCE

PRETERITION DISINHERITANCETacit deprivation of legitime Express deprivation of legitimePresumed to be involuntary as it is an omissionto mention an heir or though mentioned, is notinstituted as an heir. But it may also bevoluntary.

Always voluntary

Presumed by law to be a mere oversight ormistake

Legal cause is present

The omitted compulsory heir gets his legitimeplus his share in the free portion not disposed of

Even a compulsory heir may be totallyexcluded. If disinheritance is not


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by way of legacies and devises. lawfullymade, the compulsory heir is restoredto his legitime.

EFFECTS OF PREDECEASE, INCAPACITY, REPUDIATION

HEIR PREDECEASE INCAPACITY REPUDIATION

Voluntary No right transmitted tothe heirs of thevoluntary heir.

No right transmittedto the heirs of thevoluntary heir.

Voluntary heir whorepudiated cannottransmit any right to hisown heirs.

Compulsory Right to the legitimeand not to the freeportion transmitted tothe representatives ofthe compulsory heir.

Compulsory heir maybe represented butonly with respect tohis legitime.

Compulsory heir whorepudiated cannottransmit any right to hisown heirs.

KINDS OF INSTITUTIONS

1. Simple or Pure the rights to the succession are transmitted from the moment of

the death of the decedent. (Art. 777, CC)

2. Conditional may be potestative, causal or mixed. (See Arts. 871 884)

* Disposicion Captatoria disposition made upon the condition that the heirshall make some provision in his will in favor of the testator or of any otherperson. This is void. (Art. 875, CC)

3. With a Term designation of the day or time when the effects of the institution ofan heir shall commence or cease. (Art. 885, CC)

4. Modal institution where the testator states the following: (Art. 882, CC)

a. the object of the institution; orb. the purpose of the application of the property left by the testator; orc. the charge imposed by the creator upon the heir.

* Doctrine of Constructive Compliance When without the fault of the heir,the modal institution cannot take effect in the exact manner stated by thetestator, it shall be complied with in a manner most analogous to and inconformity with his wishes. (Art. 883, CC)

H. SUBSTITUTION OF HEIRS

DEFINITION OF SUBSITUTION (Ar t. 857, CC)- It is the appointment of another heir

- so that he may enter into the inheritance in default of the heir originally instituted.

CLASSES OF SUBSITITUTION

1. Vulgar or Simple the testator may designate one or more person/s to substitutethe heir/s instituted in case such heir/s should: (Art. 859, CC)

a. die before him (predecease)b. should not wish to accept the inheritance (renounce)c. should be incapacitated to accept the inheritance (incapacitated)


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2. Brief or Compendious (Art. 860, CC)

a. Brief - two or more persons designated by the testator to substitute for onlyone heir.

b. Compendious One person is designated to take the place of two or moreheirs.

3. Reciprocal If the heirs instituted in unequal shares should be reciprocallysubstituted, the substitute shall acquire the share of the heir who dies, renounces,or is incapacitated, unless it clearly appears that the intention of the testator wasotherwise. If there are more than one substitute, they shall have the same sharein the substitution as in the institution. (Art. 861, CC)

4. Fideicommissary if the testator institutes an heir with an obligation to preserveand to deliver to another the property so inherited. The heir instituted to suchcondition is called the first heir or the fiduciary heir, the one to receive theproperty is the fideicommissary or the second heir. (Art. 863, CC)

REQUISITES FOR A FIDEICOMMISSARY SUBSTITUTION (Arts. 863 865, CC)

1. A fiduciary or first heir instituted entrusted with the obligation to preserve and totransmit to a fideicommissary substitute or second heir the whole or part of theinheritance.

2. The substitution must not go beyond one degree from the heir originally instituted.3. The fiduciary heir and the fideicommissary are living at the time of the death of the

testator.4. The fideicommissary substitution must be expressly made.5. The fideicommissary substitution is imposed on the free portion of the estate and

never on the legitime.

I. LEGITIMES

DEFINITION OF LEGITIME (Art. 886, CC)

- It is that part of the testators property which he cannot dispose of

- because the law has reserved it for his compulsory heirs

CLASSES OF COMPULSORY HEIRS (Ar t. 887, CC)

1. Primary those who have precedence over and exclude other compulsory heirs

a. Legitimate children and legitimate descendants with respect to their legitimateparents and ascendants

2. Secondary those who succeed only in the absence of the primary compulsoryheirs

a. Legitimate parents and legitimate ascendants with respect to their legitimate

children and descendantsb. Illegitimate parents with respect to their illegitimate children

3. Concurring those who succeed together with the primary or the secondarycompulsory heirs

a. Widow or widower (legitimate)b. Illegitimate children and illegitimate descendants


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COMPULSORY HEIRS

If the testator is a LEGITIMATE CHILD If the testator is an ILLEGITIMATE CHILD1. LC and descendants 1. LC and descendants

2. In default of no. 1, LP and ascendants 2. ILC and descendants

3. SS 3. In default of nos. 1- 2, ILP only

4. IC and descendants 4. SS

Legitmate children- LCIllegitimate children- ILC

Surviving spouse- SSLegimate Parents- LPIllegitimate Parents- ILP

SPECIFIC RULES ON LEGITIMES

1. Direct Descending Line

a. Rule of preference between lines - Those in the direct descending line shallexclude those in the direct ascending and collateral lines, and those in thedirect ascending line shall, in turn, exclude those in the collateral line.

b. Rule of proximity the relative nearest in degree excludes the farther one

c. Right of representation ad infinitum in case of predecease, incapacity ordisinheritance. For decedents who are legitimate children, only the legitimatedescendants can represent. For decedents who are illegitimate children, boththe legitimate and illegitimate descendants can represent.

d. If all the legitimate children repudiate their legitime, the next generation oflegitimate descendants succeed in their own right.

2. Direct Ascending Line

a. Rule of division by linesb. Rule of equal division the relatives who are in the same degree shall inherit in

equal shares

3. Non-impairment of legitime

SUMMARY OF LEGITIMES OF COMPULSORY HEIRS

SURVIVINGREL.

LC &DESCENDANTS

SS ILCLP &

ASCENDANTSILP

LC alone (divided by# of children)

1 LC, SS

LC, SS (divided by# of children)

Same as theshare of 1 LC

LC, ILC of the share of1 LC

1 LC, SS, ILC (preferred) of the share of1 LC

2 or more LC,SS, ILC

(divided by# of children)

Same as theshare of 1 LC

of the share of1 LC

LP alone

LP, ILC

LP, SS

LP, SS, ILC 1/8

ILC alone (divided by # ofchildren)


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ILC, SS 1/3 1/3 (divided by #of children)

SS alone or 1/3 ifmarriage inarticulo mortis

ILP alone

ILP, SS

Adopter ILC,

SS

1/3 1/3 1/3 (adopter)

STEPS IN DETERMINING THE LEGITIME OF COMPULSORY HEIRS

1. Determine the gross value of the estate at the time of the death of the testator.2. Determine all debts and charges which are chargeable against the estate.3. Determine the net value of the estate by deducting all debts and charges from the

gross value of the estate.4. Collate or add the value of all donations inter vivos to the net value of the estate.5. Determine the amount of the legitime from the total thus found.6. Impute the value of all donations inter vivos made to compulsory heirs against

their legitime and of the value of all donations inter vivos made to strangersagainst the disposable free portion and restore it to the estate if the donation isinofficious.

7. Distribute the residue of the estate in accordance with the will of the testator.

REMEDY OF COMPULSORY HEIR IN CASE OF IMPAIRMENT OF LEGITIME

1. If the impairment is total, then there may be preterition if the compulsory heiromitted is either an ascendant or descendant.Art. 854, CCwould come in to play,i.e., there will be an annulment of the institution of heirs and a reduction ofdevises and legacies.

2. If the impairment is partial, then the compulsory heir is entitled to completion oflegitime underArt. 906, CC.

3. If the impairment is through donation, the remedy is collation.

CONCEPT OF RESERVA TRONCAL (Art . 891, CC)

- The ascendant who inherits from his descendant- any property which the latter may have acquired by gratuitous tile- from another ascendant, or a brother or sister, - is obliged to reserve such property- as he may have acquired by operation of law- for the benefit of relatives within the third degree- and who belong to the line from which said property came.

REQUISITES FOR RESERVA TRONCAL

Chua vs. CFI, 78 SCRA 406 and Gonzales vs. CFI, 104 SCRA 161

1. that the property was acquired by a descendant (prepositus) from an ascendant orfrom a brother or sister (source) by gratuitous title

2. that the prepositus died without an issue3. that the property is inherited by another ascendant (reservista) by operation of law4. that there are relatives within the 3rd degree (reservatarios) belonging to the line

from which said property came


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J. DISINHERITANCE

DEFINITION OF DISINHERITANCE (Ar t. 915, CC)

- It is the act by which the testator- for just cause- deprives a compulsory heir of his right to the legitime.

REQUISITES FOR A VALID DISINHERITANCE

1. Heir disinherited must be designated by name or in such a manner as to leave noroom for doubt as to who is intended to be disinherited.

2. It must be for a cause designated by law.3. It must be made in a valid will.4. It must be made expressly, stating the cause in the will itself.5. The cause must be certain and true, and must be proved by the interested heir if

the person disinherited should deny it.

6. It must be unconditional.7. It must be total.

SUMMARY OF CAUSES OF DISINHERITANCE

Art. 919- children/ descendantsArt. 920- parents/ ascendantsArt. 921- spouseArt. 1032- unworthiness

GROUNDS FOR DISINHERITANCE 919 920 921 1032

Guilty/convicted of attempt against life of

testator/spouse/ascendant/descendant

* * * *

Accused testator/decedent of crime punishable by imprisonment of6 years or more, found groundless, false

* * * *

Causes testator/decedent to make will or change one by fraud,violence, intimidation, or undue influence

* * * *

Unjustified refusal to support testator * * *Convicted of adultery or concubinage with spouse oftestator/decedent

* * *

Maltreatment of testator by word and deed *Leading a dishonorable or disgraceful life *

F

(Source)

(Reservatario)

(Prepositus)

(Reservista)

A

B

CD

H

F

G


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Conviction of crime which carries penalty of civil interdiction *Abandonment of children or inducing children to live corrupt andimmoral life or attempted against virtue

* *

Loss of parental authority * *Attempt by one parent against life of the other UNLESS there isreconciliation between parents

*

Spouses given cause for legal separation *

Failure to report violent death of decedent within one month, unlessauthorities have already taken action

*

Force, violence, intimidation or undue influence to prevent anotherfrom making a will or revoking one already made or who supplantsor alters the latters will

*

Falsifies or forges a supposed will of the decedent *

REVOCATION OF DISINHERITANCE

1. Reconciliation2. Subsequent institution of the disinherited heir3. Nullity of the will which contains the disinheritance

*Note: The moment the testator uses one of the acts of unworthiness as a cause fordisinheritance, he thereby submits it to the rules on disinheritance. Thus,reconciliation renders the disinheritance ineffective.

K. LEGACIES AND DEVISES

PERSONS CHARGED WITH LEGACIES AND DEVISES

1. Compulsory heir2. Voluntary heir3. Legatee or devisee4. Estate

VALIDITY AND EFFECT OF LEGACY OR DEVISE

STATUS OF PROPERTY GIVEN BY LEGACY/DEVISE EFFECT ON THE LEGACY/DEVISE1. Belonging to the testator at the time of the

execution of the will until his deathEffective

2. Belonging to the testator at the time of theexecution of the will but alienated in favor of a 3rdperson

Revoked

3. Belonging to the testator at the time of theexecution of the will but alienated in favor of thelegatee or devisee gratuitously

No revocation. There is a clearintention to comply with thelegacy/devise.

4. Belonging to the testator at the time of the

execution of the will but alienated in favor of thelegatee/devisee onerously

Legatee/devisee can demand

reimbursement from the heirs orthe estate.

5. Not belonging to the testator at the time the will isexecuted but he has ordered that the thing beacquired in order that it be given to thelegatee/devisee.

Effective

6. Not belonging to the testator at the time the will isexecuted and the testator erroneously believed thatthe thing pertained to him.

Void

7. Not belonging to the testator at the time the will is Effective


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executed but afterwards it becomes his by whatevertitle.

8. Already belonged to the legatee/devisee at the timeof the execution of the will even though anotherperson may have interest therein

Ineffective

9. Already belonged to the legatee/devisee at the timeof the execution of the will even though it may have

been subsequently alienated by him.

Ineffective

10. Testator had knowledge that the thing bequeathedbelonged to a third person and the legatee/deviseeacquired the property gratuitously after theexecution of the will.

Legatee/devisee can claimnothing by virtue of thelegacy/devise

11. Testator had knowledge that the thing bequeathedbelonged to a third person and the legatee/deviseeacquired the property by onerous title.

Legatee/devisee can demandreimbursement from the heir orestate.

ORDER OF PAYMENT IN CASE THE ESTATE IS INSUFFICIENT TO COVER ALL LEGACIES ANDDEVISES ART. 911, CC VS. ART. 950, CC

ART. 911 ART. 950Order of Preference Order of Preference

(LIPO) (RPSESO)1. Legitime of compulsory heirs2. Donations Inter vivos3. Preferential legacies or devises4. All Other legacies or devises pro rata

1. Remuneratory legacy/devise2. Preferential legacy/devise3. Legacy for Support4. Legacy for Education5. Legacy/devise of Specific, determinate

thing which forms a part of the estate6. All Others pro rata

Application: Application:

1. When the reduction is necessary topreserve the legitime of compulsory heirs

from impairment whether there aredonations inter vivos or not; or

2. When, although, the legitime has beenpreserved by the testator himself thereare donations inter vivos.

*Art. 911 governs when there is a conflictbetween compulsory heirs and thedevisees and legatees.

1. When there are no compulsory heirs andthe entire estate is distributed by the

testator as legacies or devises; or2. When there are compulsory heirs but

their legitime has already been providedfor by the testator and there are nodonations inter vivos.

*Art. 950 governs when the question ofreduction is exclusively among legateesand devisees themselves.

*Note: In case of reduction, the inverse order of payment should be followed.

GROUNDS FOR REVOCATION OF LEGACIES AND DEVISES (Ar t. 957, CC)

1. Testator transforms the thing bequeathed in such a manner that it does not retain

either the form or the denomination it had.

2. Testator by any title or for any cause alienates the thing bequeathed, or any partthereof, it being understood that in the latter case the legacy or devise shall bewithout effect only with respect to the part alienated. Except: When the thingshould again belong to the testator after alienation by virtue of the exercise of theright of repurchase.

3. Thing bequeathed is totally lost during the lifetime of the testator, or after hisdeath without the heirs fault.


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4. Other causes: nullity of the will; noncompliance with suspensive conditionsaffecting the bequests; sale of the thing to pay the debts of the deceased duringthe settlement of his estate.

*Note: List is not exclusive.

III. Legal or Intestate Succession

CAUSES OF VACANCY IN SUCCESSION

1. Disinheritance the testator creates it himself2. Repudiation the heir does something3. Incapacity or Predecease something happens to the heir

HOW VACANCIES ARE FILLED

1. Substitution (Art. 857, CC)2. Representation (Art. 970, CC)3. Accretion (Art. 1015, CC)4. Intestate Succession

CAUSES FOR LEGAL OR INTESTATE SUCCESSION (Art . 960, CC)

1. If a person dies without a will2. If a person dies with a void will3. If a person dies with a will which has subsequently lost its validity4. When the will does not institute an heir5. When the will does not dispose of all the property belonging to the testator. Legal

succession shall take place only with respect to the property which the testatorhas not disposed.

6. If the suspensive condition attached to the institution of the heir does not happenor is not fulfilled

7. If the heir dies before the testator8. If the heir repudiates the inheritance, there being no substitution, and no right of

accretion takes place 9. When the heir instituted is incapable of succeeding,except in cases provided in the Civil Code

FUNDAMENTAL UNDERLYING PRINCIPLES IN LEGAL OR INTESTATESUCCESSION

1. Rule of Preference Between Lines Those in the direct descending line shallexclude those in the direct ascending and collateral lines, and those in the directascending line shall, in turn, exclude those in the collateral line.

2. Rule of Proximity the relative nearest in degree excludes the farther one. (Art.962, CC)

3. Rule of Equal Division the relatives who are in the same degree shall inherit inequal shares. (Articles 987 and 1006, CC)

Exceptions:

a. Division in the ascending line (between paternal and maternal grandparents)

b. Division among brothers and sisters, some of whom are of the full and others ofhalf-blood

c. Division in cases where the right of representation takes place


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4. Rule of Barrier between the legitimate family and the illegitimate family theillegitimate family cannot inherit by intestate succession from the legitimate familyand vice-versa. (Art. 992, CC)

5. Rule of Double Share for full blood collaterals when full and half-blood brothers orsisters, nephews or nieces, survive, the full blood shall take a portion in theinheritance double that of the half-blood. (Articles 895 and 983, CC)

RELATIONSHIP (Articles 963 969, CC)

1. Number of generations determines proximity.2. Each generation forms a degree.3. A series of degrees forms a line.4. A line may either be direct or collateral.5. A direct line is that constituted by the series of degrees among ascendants and

descendants (ascending and descending).6. A collateral line is that constituted by the series of degrees among persons who are

not ascendants or descendants, but who come from a common ancestor.7. Full blood same father and mother.8. Half-blood only one of either parent is the same.

9. In adoption, the legal filiation is personal and exists only between the adopter andthe adopted. The adopted is deemed a legitimate child of the adopter, but stillremains as an intestate heir of his natural parents and other blood relatives.

DEFINITION OF THE RIGHT OF REPRESENTATION (Ar t. 970, CC)

- It is a right created by fiction of law- by virtue of which the representative is raised to the place and degree of the person

represented- and acquires the rights which the latter would have if he were living or if he would

have inherited.

*Notes:

- In the direct line, representation takes place ad infinitum in the direct descendingline, never in the ascending.

- In the collateral line, representation takes place only in favor of the children of thebrothers or sisters (i.e., nephews and nieces) whether of the full or half-blood andonly if they concur with at least one uncle or aunt.

RIGHT OF REPRESENTATION IN TESTAMENTARY SUCCESSION

1. When a compulsory heir in the direct descending line had predeceased the testatorand was survived by his children or descendants.

2. When a compulsory heir in the direct descending line is excluded from theinheritance due to incapacity or unworthiness and he has children or descendants.

3. When a compulsory heir in the direct descending line is disinherited and he haschildren or descendants; representation covers only the legitime.

4. A legatee or devisee who died afther the death of the testator may be representedby his heirs.

RIGHT OF REPRESENTATION IN INTESTATE SUCCESSION

1. When a legal heir in the direct descending line had predeceased the decedent andwas survived by his children or descendants.


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2. When a legal heir in the direct descending line is excluded from the inheritance dueto incapacity or unworthiness and he has children or descendants.

3. When brothers or sisters had predeceased the decedent and they had children ordescendants.

4. When illegitimate children represent their deceased illegitimate parents in theestate of their grandparents.

5. When nephews and nieces inherit together with their uncles and aunts in

representation of their deceased parents who are brothers or sisters of said unclesand aunts.

ORDER OF LEGAL OR INTESTATE SUCCESSION

DECEDENT IS A LEGITIMATECHILD

DECEDENT IS ANILLEGITIMATE CHILD

DECEDENT IS AN ADOPTEDCHILD

1 LC and Legitimatedescendants

LC and Legitimatedescendants

LC and Legitimatedescendants

2 LP and Legitimate ascendants ILC and Illegitimatedescendants

ILC and Illegitimatedescendants

3 ILC and Illegitimatedescendants

ILP LP or ILP and Legitimateascendants, Adoptive parents

4 SS SS SS5 Legitimate siblings, Nephews,

NiecesIllegitimate siblings,Nephews, Nieces

Siblings, Nephews, Nieces

6 Legitimate collateral relativeswithin the 5th degree

State State

7 State

CONCURRENCE IN LEGAL OR INTESTATE SUCCESSION

Intestate Heir EXCLUDES EXCLUDED BY CONCURS WITHLC and Legitimatedescendants

Ascendants,Collaterals and State

No one SS and ILC

ILC and Descendants ILP, Collaterals andState

No one SS LC and LP

LP and Legitimateascendants

Collaterals and State LC ILC and SS

ILP Collaterals and State LC and ILC SS

SS Collaterals otherthan siblings,nephews and nieces

No one LC, ILC, LP, ILPSiblings NephewsNieces

Siblings, NephewsNieces

All other collateralsAnd State

LC, ILC, LP, ILP SS

Other collateralswithin 5th degree

Collateral moreremote in degree

and State

LC, ILC, LP, ILP andSS

Collaterals in thesame degree

State No one Everyone No one

A MORE DETAILED SUMMARY OF INTESTATE SHARES1

LEGITIMATE CHILDREN AND LEGITIMATE DESCENDANTS ALONEIntestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHARELC 1TOTAL 1


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2ONE LEGITIMATE CHILD AND SURVIVING SPOUSE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHARELC

SS

TOTAL 1

3LEGITIMATE CHILDREN AND SURVIVING SPOUSE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHARELC Remaining portion of estate

after paying legitimesWhole estate dividedequally between total# of children plus the

SSSS Same as share of 1

LCLegitimes to be dividedequally between total # ofchildren plus the SS

# of children plus theSS (see above)

TOTAL Varies on no. ofchildren

Varies on no. of children 1

4LEGITIMATE CHILDREN AND ILLEGITIMATE CHILDREN


after paying legitimesWhole estate dividedby the ratio of 2:1 foreach LC as compared

to the ILCILC share of 1 LC Legitimes to be divided by

the ratio of 2 for each LC, 1for each ILC

1 for each ILC providedthat legitimes wouldntbe impaired

TOTAL Varies on # ofchildren

Varies on # of children 1

5ONE LEGITIMATE CHILD, ILLEGITIMATE CHILD, AND SURVIVING SPOUSE


after paying legitimes to bedivided by the ratio of 2:1for each LC and each ILC,respectively

Whole estate divided bythe ratio of 2 for eachLC

ILC share of 1 LC or

1 for each ILC (see above) 1 for each ILC

SS Same share as a LC Legitimes wouldnt beimpaired

TOTAL Varies dependingon # of ILC

Varies depending on # ofILC

1

6LEGITIMATE CHILDREN, ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHARELC Remaining portion of Whole estate divided by


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estate, if any after payinglegitimes to be divided bythe ratio of 2 for each LC

the ratio of 2:1 for eachLC and ILC respectively

ILC share of eachLC

1 for each ILC (see above) 1 for each ILC (seeabove)

SS Same share as oneLC

Same share as a LC,provided legitimes are not

impaired

Same share as a LC,provided legitimes are

not impairedTOTAL Varies depending

on # of ILCVaries depending on # ofILC

1

7LEGITIMATE PARENTS ALONE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHARELP 1

TOTAL 1

8LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHARELP

ILC

TOTAL 1

9LEGITIMATE PARENTS AND SURVIVING SPOUSE


SS

TOTAL 1

10LEGITIMATE PARENTS, SURVIVING SPOUSE AND ILLEGITIMATE CHILDREN


SS 1/8 1/8

ILC

TOTAL 7/8 1/8 1

11ILLEGITIMATE CHILDREN ALONE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHAREILC alone 1

TOTAL 1

12ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHAREILC 1/3 1/6 SS 1/3 1/6

TOTAL 2/3 1/3 1


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13SURVIVING SPOUSE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHARESS or 1/3 or 1/3 1TOTAL or 1/3 or 1/3 1

14ILLEGITIMATE PARENTS ALONE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHAREILP 1TOTAL 1

15ILLEGITIMATE PARENTS AND SURVIVING SPOUSE

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHAREILP SS

TOTAL 1

16SIBLINGS, NEPHEWS AND NIECES ALONE

(SPECIAL KIND OF COLLATERAL RELATIVES)Intestate Heir SHARE AS

LEGITIMESHARE AS FREE

DISPOSALTOTAL INTESTATE

SHARE

Siblings, nephews, nieces 1

TOTAL 1

17SURVIVING SPOUSE, SIBLINGS, NEPHEWS AND NIECES

Intestate Heir SHAREAS LEGITIME SHARE AS FREE DISPOSAL TOTAL INTESTATE SHARESS

Siblings, nephews,nieces

TOTAL 1

ORDER OF CONCURRENCE IN THE CASE OF AN ADOPTED CHILD (Art. 190, FC)SURVIVORS SHARE

LC, ILC, SS As in the case of ordinary intestate successionLP or ascendants orILP Adopter

LP or ascendants or ILP or AdopterSS

LP or ascendants AdopterILC or descendants

LP or ascendants AdopterSSILC or descendants

1/31/31/3

Adopter alone Entire estateCollateral blood relatives As in the case of ordinary intestate succession

IV. Provisions Common to Testate and Intestate Succession

Exclude: Executors and administrators (Arts. 1058-1060, Civil Code), which will be coveredunder Remedial Law


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A. ACCRETIONDEFINITION OF ACCRETION (Ar t. 1015, CC)

- It is a right by virtue of which- when two or more persons are called to the same inheritance, devise or legacy- the part assigned to one who renounces or cannot receive his share or who died

before the testator

- is added or incorporated to that of his co-heirs, co-devisees, or co-legatees.EFFECT OF PREDECEASE, INCAPACITY, DISINHERITANCE OR REPUDIATION IN

TESTAMENTARY AND INTESTATE SUCCESSION

CAUSE OF VACANCYTESTAMENTARY SUCCESSION INTESTATE

SUCCESSIONLEGITIME FREE PORTIONPredecease Representat'n

Intestate SuccessionAccretionIntestate Succession

Representat'nIntestate Succession

Incapacity Representat'nIntestate Succession

AccretionIntestate Succession

Representat'nIntestate Succession

Disinheritance Representat'nIntestate Succession

- -

Repudiation Intestate Succession Accretion Accretion

B. CAPACITY TO SUCCEED

REQUISITES FOR CAPACITY TO SUCCEED BY WILL OR BY INTESTACY (Art.1024 1025, CC)

1. The heir, legatee or devisee must be living or in existence at the moment thesuccession opens; and

2. He must not be incapacitated or disqualified by law to succeed.

WHO ARE INCAPABLE OF SUCCEEDING

1. BASED ON UNDUE INFLUENCE OR INTEREST (Art. 1027, CC) - PIGRAP

a. Priest who heard the last confession of the testator during his last illness, or theminister of the gospel who extended spiritual aid to him during the sameperiod;

b. Individuals, associations and corporations not permitted by law to inherit;

c. Guardian with respect to testamentary dispositions given by a ward in his favorbefore the final accounts of the guardianship have been approved, even if thetestator should die after the approval thereof; except if the guardian is hisascendant, descendant, brother, sister, or spouse;

d. Relatives of the priest or minister of the gospel within the fourth degree, thechurch, order, chapter, community, organization, or institution to which suchpriest or minister may belong;

e. Attesting witness to the execution of a will, the spouse, parents, or children, orany one claiming under such witness, spouse, parents, or children;

f. Physician, surgeon, nurse, health officer or druggist who took care of thetestator during his last illness.

2. BASED ON MORALITY OR PUBLIC POLICY (Art. 739, CC)


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a. Those made in favor of a person with whom the testator was guilty of adulteryor concubinage at the time of the making of the will.

b. Those made in consideration of a crime of which both the testator and thebeneficiary have been found guilty.

c. Those made in favor of a public officer or his spouse, descendants andascendants, by reason of his public office.

3. BASED ON ACTS OF UNWORTHINESS (Art. 1032, CC) See table underdisinheritance

PARDON OF ACTS OF UNWORTHINESSEXPRESS IMPLIED

Made by the execution of a document or anywriting in which the decedent condones thecause of incapacity

Effected when the testator makes a willinstituting the unworthy heir with knowledgeof the cause of incapacity

Cannot be revoked Revoked when the testator revokes the willor the institution

C. ACCEPTANCE AND REPUDIATION OF INHERITANCE

CHARACTERISTICS VIR(Articles 1041 1042, 1056, CC)

1. Voluntary and free2. Irrevocable except if there is vitiation of consent or an unknown will appears3. Retroactive

REQUISITES (Ar t. 1043, CC)

1. certainty of death of the decedent2. certainty of the right to the inheritance

ACCEPTANCE VS. REPUDIATION

1. Acceptance involves the confirmation of transmission of successional rights, whilerepudiation renders such transmission ineffective.

2. Repudiation is equivalent to an act of disposition and alienation.

3. The publicity required for repudiation is necessary for the protection of other heirsand also of creditors.

FORMS OF ACCEPTANCE (Articles 1049 1050, CC)

1. Express Acceptance one made in a public or private document.

2. Tacit Acceptance one resulting from acts by which the intention to accept isnecessarily implied or from acts which one would have no right to do except in the

capacity of an heir. Examples would be when the heir sells, donates or assigns hisright, when the heir demands partition of the inheritance, when the heir alienatessome objects of the inheritance, etc.

FORMS OF REPUDIATION (A rt. 1051, CC)

1. in a public instrument acknowledged before a notary public; or

2. in an authentic document equivalent of an indubitable writing or a writing whoseauthenticity is admitted or proved; or


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3. by petition presented to the court having jurisdiction over the testamentary orintestate proceeding

HEIRS IN TWO CAPACITIES (Art. 1055, CC)

- If a person is called to the same inheritance as an heir by will and by law and herepudiates the inheritance in his capacity as a testamentary heir, he will beconsidered to have also repudiated the inheritance as a legal heir.

- If he repudiates it as a legal heir, without his being a testamentary heir, he may stillaccept it in the latter capacity.

D. COLLATION (Articles 1061 1077, CC)

CONCEPT OF COLLATION

- To collate is to bring back or to return to the hereditary mass

- in fact or by fiction

- property which came from the estate of the decedent, during his lifetime by

donation or other gratuitous title

- but which the law considers as an advance from the inheritance.

- It is the act by virtue of which, the compulsory heir who concurs with othercompulsory heirs in the inheritance bring back to the common hereditary mass

- the property which they may have received from the testator

- so that a division may be effected according to law and the will of the testator.

OPERATIONS RELATED TO COLLATION

1. Collation adding to the mass of the hereditary estate the value of the donation

or gratuitous disposition.

2. Imputing or Charging crediting the donation as an advance on the legitime (ifthe donee is a compulsory heir) or on the free portion (if the donee is a stranger).

3. Reduction determining to what extent the donation will remain and to whatextent it is excessive or inofficious.

4. Restitution return or payment of the excess to the mass of hereditary estate.

PERSONS OBLIGED TO COLLATE

1. General Rule: compulsory heirs

Exceptions:a. when the testator should have so expressly providedb. when the compulsory heir should have repudiated his inheritance

2. Grandchildren who survive with their uncles, aunts, or first cousins and inherit byright of representation

*Note: Grandchildren may inherit from their grandparent in their own right, i.e., asheirs next in degree, and not by right of representation if their parent repudiatesthe inheritance of the grandparent, as no living person can be represented except


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in cases of disinheritance and incapacity in which case grandchildren are notobliged to bring to collation what their parent has received gratuitously from theirgrandparent.

WHAT TO COLLATE

1. Any property or right received by gratuitous title during the testators lifetime.2. All that they may have received from the decedent during his lifetime.3. All that their parents would have brought to collation if alive.

PROPERTIES NOT SUBJECT TO COLLATION

1. Absolutely no collation

a. Expenses for support, education (only elementary and secondary), medicalattendance, even in extraordinary illness, apprenticeship, ordinary equipment,or customary gifts. (Art. 1067, CC)

2. Generally not imputable to legitime

a. Expenses incurred by parents in giving their children professional, vocational or

other career unless the parents so provide, or unless they impair the legitime.

b. Wedding gifts by parents and ascendants consisting of jewelry, clothing, andoutfit except when they exceed 1/10 of the sum disposable by will.

E. PARTITION AND DISTRIBUITON OF ESTATE (Articles 1078 1105, CC)

CONCEPT OF PARTITION (Art . 1079, CC)

- It is the separation, division and assignment- of a thing held in common among those to whom it may belong.- The thing itself or its value may be divided.

WHO MAY EFFECT PARTITION1. decedent, during his lifetime by an act inter vivos or by will2. heirs3. competent court4. third person designated by the decedent

WHO CAN DEMAND PARTITION1. compulsory heir2. voluntary heir3. legatee or devisee4. any person who has acquired interest in the estate

WHEN PARTITION CANNOT BE DEMANDED PAPU

1. when expressly Prohibited by the testator for a period not exceeding 20 years2. when the co-heirs Agreed that the estate shall not be divided for a period not

exceeding 10 years, renewable for another 10 years3. when Prohibited by law4. when to partition the estate would render it Unserviceable for the use for which it is

intended

PROHIBITION TO PARTITION


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1. The prohibition to partition for a period not exceeding 20 years can be imposed onthe legitime.

2. If the prohibition to the partition is for more than 20 years, the excess is void.3. Even if a prohibition is imposed, the heirs by mutual agreement can still make the

partition.

PARTITION INTER VIVOS (Ar t. 1080, CC)

- It is one that merely allocates specific items or pieces of property on the basis of thepro-indiviso shares fixed by law or given under the will to heirs or successors.

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 to mistaken heir is

void3. Through error or mistake, share of true heir is allotted to mistaken heir partition

shall not be rescinded unless there is bad faith or fraud on the part of the otherpersons interested, but the latter shall be proportionately obliged to pay the trueheir of his share. The partition with respect to the mistaken heir is void.

A VOID WILL MAY BE A VALID PARTITION

1. If the will was in fact a partition2. If the beneficiaries of the void will were legal heirs

IMPORTANT PERIODS TO REMEMBER1 month or less before making a will Testator, if publicly known to be insane, burden of

proof is on the one claiming validity of the will

20 years Maximum period testator can prohibit alienation ofdispositions

5 years from delivery to the State To claim property escheated to the State

1 month To report knowledge of violent death of decedentlest he be considered unworthy

5 years from the time disqualifiedperson took possession

Action for declaration of incapacity & for recoveryof the inheritance, devise or legacy

30 days from issuance of order ofdistribution

Must signify acceptance/repudiation otherwise,deemed accepted

1 month from written notice of sale Right to repurchase hereditary rights sold to astranger by a co-heir

10 years To enforce warranty of title/quality of propertyadjudicated to co-heir from the time right of actionaccrues

5 years from partition To enforce warranty of solvency of debtor of the

estate at the time partition is made4 years from partition Action for rescission of partition on account oflesion

SAMPLE BAR QUESTIONS

1. Alfonso, a bachelor without any descendant or ascendant, wrote a last will and testamentin which he devised, all the properties of which I may be possessed at the time of mydeath to his favorite brother Manuel. At the time he wrote the will, he owned only oneparcel of land. But by the time he died, he owned 20 parcels of land. His other brothersand sisters insist that his will should pass only the parcel of land he owned at the time it


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was written, and did not cover his properties acquired, which should be by intestatesuccession. Manuel claims otherwise. Who is correct?

Explain.

Answer:

Manuel is correct because under Art. 793, NCC, property acquired after the making of a will

shall only pass thereby, as if the testator had possessed it at the time of making the will,should it expressly appear by the will that such was his intention. Since Alfonsos intention todevise all properties he owned at the time of his death expressly appears on the will, then allthe 20 parcels of land are included in the devise.

2. Cristina, the illegitimate daughter of Jose and Maria, died intestate, without anydescendant or ascendant. Her valuable estate is being claimed by Ana, the legitimatedaughter of Jose, and Eduardo, the legitimate son of Maria. Is either, both, or neither ofthem entitled to inherit? Explain.

Answer:

Neither Ana nor Eduardo is entitled to inherit ab intestate from Cristina. Both are legitimate

relatives of Cristinas illegitimate parents and therefore they fall under the prohibitionprescribed un Art. 992, NCC (Manuel vs. Ferrer, 242 SCA 477; Diaz vs. CA, 182 SCRA 427).

3. (a) Luis was survived by 2 legitimate children, 2 illegitimate children, his parents, and 2brothers. He left an estate of P1 million. Who are the compulsory heirs of Luis, how muchis the legitime of each, and how much is the free portion of his estate, if any?

(b) Suppose Luis, in the preceding question, died intestate. Who are his intestate heirs,and how much is the share of each in his estate?

Suggested Answer:

(a) The compulsory heirs are the 2 legitimate children and the 2 illegitimate children. The

parents are excluded by the legitimate children, while the brothers are not compulsoryheirs at all. Their respective legitimes are:

1. The legitime of the 2 legitimate children is of the estate (P500,000) to be dividedbetween them equally, or P250,000 each.

2. The legitime of each illegitimate child is the legitime of each legitimate child orP125,000. Since the total legitimes of the compulsory heirs is P750,000, the balanceof P250,000 is the free portion.

(b) The intestate heirs are the 2 legitimate children and the 2 illegitimate children. Inintestacy, the estate of the decedent is divided among the legitimate and illegitimatechildren such that the share of each illegitimate child is the share of each legitimate

child. Their shares are:

1. For each legitimate child: P333,333.33

2. For each illegitimate child: P166,666.66

civil law 4 (succession)

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