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Succession Quizzler (By Butch)

Succession Quizzler

Note: This is merely to review the basic principles before the test. Please use this to supplement the book and your other notes. It’s just to jog your memory

1. What is succession?

Succession is a mode of acquisition by virtue of which, the property, rights and obligations, to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (Art. 774)

2. Can a lessor who subsequently dies, transmit his obligations as lessor to his heirs?

Yes. This obligation is transmissible because it is not a strictly personal obligation.

3. What happens to the money debts of a testator?

Money debts are not transmitted to the heirs nor paid by them. The estate pays them and the heirs get only what is left.

4. What is the recourse of creditors?

Creditors must pursue their money claims in the settlement proceedings. They cannot go after the heirs once the estate has been settled (Py eng Chong v. Herrera)

5. What is the definition of inheritance?

The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.

6. When are the rights to succession vested?

The rights to succession are vested upon the decedent’s death (Art 777) It follows therefore that at the time of death, the heir already owns an aliquot share of the estate that he can dispose of already.

7. What are the three kinds of succession?

i. Testamentary: Results from:1) Designation of an heir2) Designation made in a will (holographic/attested)3) In the form prescribed by law

ii. Mixed Succession: Effected partly by will and partly by operation of law (e.g. testator owns house, lot and car and testator only wills his house, the heirs will inherit the lot and car by operation of law)

iii. Intestate Succession: That which takes place by operation of law in the absence of a will

iv. Compulsory Succession: When compulsory heirs succeed to the legitime

8. Define an heir, legatee and devisee (disregard Art 782)

Heir: One who succeeds to the whole or an aliquot part of the inheritance

Devisee (Personal) and Legatee (Real): Those who succeed to definite, specific and individual property

Notes:

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9. What is a will?

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 his estate, to take effect after his death. (Art 783)

10. What are the non-delegable acts concerning the making of a will?

i. Designation of heirs, devisees or legatees (Who will inherit?)ii. Conditions, Terms, Substitutions of designationiii. Determination of portions to be received iv. Power to decide whether or not a disposition should take place

11. What can be delegated to a third person?

i. The designation of persons, institutions or establishments within the class or causeii. Manner of distribution

PROVIDED:

i. The property or amount of money has been determined by testatorii. The class or cause to be benefitted has also been determined

12. What is the characteristic of a legacy/devise as set forth in Art 794?

The article provides that every devise/legacy shall convey the interest which the testator could devise or bequeath in the property disposed of unless it clearly appears from the will that he intended to convey a less interest. Basically, the testator gives exactly the interest he has in the thing.

13. What are the rules as regards the formal validity of a will?

Art 795 provides that the validity of the will as to its form depends upon the observance of the law at the time it is made.

There are two aspects as to the validity of wills: Extrinsic (requirement of form as will be discussed further) and Instrinsic (requirement as to the substantial validity0

Example:Extrinsic: Was the will made in accordance with Art 805? Intrinsic: Did the disposition impair the compulsory heir’s legitime?

For extrinsic validity:

Filipinos ForeignersAs to time Law in force at the time will was

executedSame, assuming it was probated here

As to place Art 815-817 provide:

Filipino’s Will Abroad: Authorized to make a will in any of the forms established by the law in the country where he is. It may be probated in the Philippines

Alien’s Will Abroad: Authorized to make a will abroad and will produce effect in the Philippines IF:

i.) Formalities prescribed by law of the place of his residence is complied withii.) Formalities prescribed by law of his country is complied with (e.g. Ukrainian making a will in US)iii.) Formalities prescribed by Philippine law (805) is complied with

Alien’s will in the Philippines: Alien may make a will in the Philippines and it will produce effect here IF:

i.) Will is executed according to the laws of his country ii.) Will might be probated and allowed in his country

For Intrinsic Validity

Filipinos ForeignersAs to time Law in force at the time of death Depends on their personal lawAs to place Philippine law Their national law

Notes:

Characteristics of wills:1. Purely personal2. Free and intelligent3. Solemn and formal4. Revocable5. Mortis Causa6. Individual7. Executed with Animus testandi8. Executed with testamentary

capacity9. Unilateral10. Dispositive of property11. Statutory

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14. What are the requirements for a person to be able to make a will?

i. Must not expressly be prohibited by lawii. Must be 18 and aboveiii. Must be of sound mind at the time of execution (must possess testamentary capacity)

15. What are the requirements for one to be of sound mind?

To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired or unshattered by decease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will:

i. To know the nature of the estate to be disposed of: Testator should have a fairly accurate idea of what he owns

ii. The proper objects of his bounty: Testator should know his relatives in the closest degrees

iii. The character of the testamentary act: Testator needs to know that the document he is signing disposes of his property after his death

16. What is the consequence of having an unsound mind?

The will cannot be probated.

17. Who has the burden of proof of showing that the testator is not of sound mind?

First, it must be remembered that a testator is presumed to have a sound mind, in the absence of contrary proof (Art 800 par. 1)

Rebuttable presumption of sanity:The burden of proof that the testator was not of sound mind at the time of making his disposition is on the person who opposes the probate of the will. Rebuttable presumption of insanity: However, this burden of proof will shift in the following cases:

i. if the testator was publicly known to be insane one month or less before he made his will.

ii. if the testator executed a will after being placed under guardianship or ordered committed for insanity and before said order has been lifted.

In both cases, the burden of proof will shift to the person maintaining its validity. He has to prove that the testator made the will during a lucid interval.

18. What is the effect of supervening incapacity or capacity?

Supervening capacity (e.g. Incapable when he made a will then he became capable afterwards) and Supervening incapacity (e.g. capable when he made the will but he became incapable afterwards) will not invalidate/validate an effective will.

19. What are the two common and mandatory requirements of wills (holographic and attested)?

It must be in writing and executed in a language or dialect known to the testator.

Notes:

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20. What are the formal requirements of a will? (memorize)

Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except on the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witness and signed the will and all the pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (Art 805)

Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the clerk of court. (Art 806)

In short, here are the formal requirements of attested wills:

i. Subscribed at the end by the testator OR by his agent in the testator’s presence and by his express direction in the presence of witnesses

ii. Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another

iii. The testator OR his agent in the testator’s presence, must sign each and every page on the left margin (except the last) in the presence of the witnesses

iv. The witnesses must sign each and every page on the left margin (except the last) in the presence of the testator and of one another

v. All pages must be numbered correlatively in letters on the upper part of each page

vi. Will must be acknowledged

Requirements of attestation clause:

i. State the number of pages of the willii. The fact that the testator or his agent under his express direction, signed the

will and its every page in the presence of the witnesses iii. The fact that the witnesses witnessed and signed the will and its every page

in the presence of the testator and of one anotherNote: AC does not have to state that an agent signed in the testator’s presence

DIFFERENTIATE subscription, attestation and the attestation clause (Caneda v. CA and Taboada v. Rosal)

“It will be noted that Art 805 requires that the witnesses should both attest and subscribe to the will in the presence of the testator and of one another.”

Subscription Attestation Attestation ClauseAct of the hand Act of senses (Act of

attesting)Refers to that part of the will whereby the attesting witnesses certify that there was compliance with the essential formalities required by law

Mechanical Mental Mandatory part of the will

Subscription is the signing of the witnesses’ names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator

Attestation consists in witnessing the testator’s execution of the will in order to see and take note mentally that those things are done which the law requires for the execution of a will and that the signature of the testator exists as a fact

Must state:

1. # of pages2. Fact that

testator/agent under his direction signed the will and its every page in presence of witnesses

3. Witnesses witnessed and signed the will and its every page in the presence of the testator and of one another

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Notes: Notes:

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21. What are the requirements for handicapped testators (holographic and attested)? Art 808

If deafIf deaf-mute

1. If he can read: Must read the will personally

2. If he cannot read: must designate two persons to read the will and communicate it to him, in some practical manner

If blind Requirements:

Will must be read to him twice:1. One reading by one of the subscribing witnesses2. One reading by the notary public acknowledging the will

22. What is the effect if Art 808 is not complied with?

The will cannot be probated

23. Who has the burden of proof that 808 has been complied with?

The proponent of the will.

24. Should compliance with 808 be stated in the will or the attestation clause?

No. There is no such requirement.

25. What is the effect if there are defects or imperfections in the form or language in the will or attestation clause?

The will would still be valid PROVIDED: 1. there is no bad faith, forgery or undue influence or pressure (Art 809)2. if such defects and imperfections can be supplied by an examination of the

will itself (JBL Reyes)

Notes:

26. What are the requirements of a holographic will? (Art 810, memorize)

1. Completely/Entirely handwritten by the testator2. Dated by the testator3. Signed by the testator

27. When is a complete date required?

General Rule: The Date shall include the day, month and year of its execution.

Liberal Interpretation: Only in cases of two competing holographic wills executed on the same day or of a testator becoming insane on the day on which the will was executed

Ex: “Feb/61” + no bad faith, fraud, undue influence + due authenticity is established = probate should still be allowed

28. What are the formal requirements for additional dispositions in a holographic will?

1. Signature and date under additional dispositions OR2. Each additional disposition signed and undated but the lat disposition signed

and dated

SITUATION 1: Additional disposition below signature signed but not dated

MAIN WILL: I leave my house to Hofi, my car to Cesar and my computer to Lily (July 17, 2011)

Sgd. Claro

ADDITIONAL: Oh, and I leave my beach house to Jeff (no date)

Sgd. Claro

Effect: Testamentary disposition of beach house is INVALID. Same goes if additional disposition is signed but not dated (Art 812)

SITUATION 2: Additional dispositions signed but undated but last is signed and dated

MAIN WILL: I leave my gold necklace to my wife. (July 17, 2011)

ADDITIONAL (a): Oh, and I leave my beach house to Pearl. (no date)

Sgd. Claro

LAST DISPOSITION: I leave my car to Beth (July 22, 2011)

Sgd. Claro

Effect: Additional disposition is VALID since last disposition is signed and dated (Art 813 : additional dispositions signed but w/o being dated, with last with both signature and date)

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SITUATION 3: Additional dispositions dated but not signed but last is signed and dated

MAIN WILL: I leave my stapler to Marien (July 24, 2011)

Sgd. Booch

ADDITIONAL: I leave my ballpens to Marien also (July 25, 2011)

(no signature)

LAST DISPOSITION: I leave my highlighters to Marien (July 27, 2011)

Sgd. Booch

Effect: Additional disposition will be invalid but last disposition is valid (Balane)

SITUATION 4: Additional dispositions neither signed nor dated but last disposition is signed and dated

Effect: IF made on the same occasion, signature and date on the last will validate the

preceding IF NOT made on the same occasion, only last disposition will be valid (Balane)

29. What does Art 811 prescribe in the probate of a holographic will as regards a witness requirement?

It is necessary that at least one witnesses who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator.

In the absence of any competent witness referred to and if the Court deems it necessary, expert testimony may be resorted to.

30. How is genuineness of handwriting proven?

i. Witness actually saw person writing the willii. Witness familiar with the handwriting who can give his opinion thereoniii. Comparison by the court of questioned handwriting and admitted

genuine specimeniv. Expert evidence

31. If the probate of a holographic will is contested, does the proponent have to produce at least 3 witnesses who know the testator’s handwriting?

No. 3 witness provision is directory. Azoala v. Singson held: “We are of the opinion that Art 811 of our CC cannot be interpreted as to require the compulsory presentation of 3 witnesses to identify the handwriting of the testator, under penalty of having the probate denied”

32. Can lost holographic will be probated?

No it cannot. The document itself must be produced. However, a photocopy of the holographic will can be admitted.

33. Why must the document itself be produced? In Court’s disposition in Gan v. Yap, it proceeded to differentiate the nature of attested/ordinary and holographic will as regards the admission of oral testimony

Attested HolographicIf attested will is lost, the subscribing witnesses are available to authenticate through oral testimony and it is hard to convince three witnesses to lie

The only guarantee is the handwriting itself. It is the only medium of proof. If oral testimony is admitted, it can engineer fraud.

34. Are joint wills void? Why?

Yes. Art 818 provides that “two or more persons cannot make a will jointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person”

VOID: Reciprocal wills in the same instrument and joint wills in the same instrument

Joint wills are void because:i. Limitation on modes of revocationii. Diminution of testamentary secrecyiii. Danger of undue influenceiv. Danger of one testator killing another.

35. If a Filipino executes a joint will with his German spouse in Germany (where a joint will is valid), can it be probated here in the Philippines?

The Filipino cannot have the will probated in the Philippines. Art 17 of the CC provides that “prohibitive laws xxx that have for their object xxx public policy shall not be rendered ineffective by laws xxx in a foreign country” Since joint wills are expressly declared void, it cannot be probated here. As to the German spouse, however, the will is still valid. (Art 819)

36. What are the ways to get around a joint will?

i. Survivorship agreementsii. Separate documents, each serving as one independent will (even if written

on the same sheet)iii. Reciprocal wills in separate instruments

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37. What are the 6 qualifications to be a witness to an ordinary/attested will? (Art. 820 and 821)

i. Sound mindii. At least 18 years of ageiii. Not blind, deaf or dumbiv. Able to read and writev. Domiciled in the Philippinesvi. Must not have been convicted of:

a. Falsification of a documentb. Perjuryc. False testimony

38. What is the effect of a witness’ supervening incapacity?

If the witnesses attesting the execution of the will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of a will. (Art 822)

39. Can a creditor of the testator be a witness to the will?

Yes. A mere charge on the estate of the testator for the payment of debts due at the time of the testator’s death does not prevent his creditors from being competent witnesses to his will (Art 824)

40. What is a codicil?

It is a supplement of addition to a will It is made after the execution of such will It is annexed to the will, to be taken as a part of such will It either:

o Adds to a disposition (e.g. Will: I leave my house to A. Codicil: I also leave the lot where the house is to A)

o Explains a disposition o Alters a disposition (e.g. Will: I leave 50 hectares of my 100 hectare

land to Y. Codicil: Oops. 25 hectares na lang pala)

A codicil is different from a subsequent will because a subsequent will makes independent and distinct dispositions

41. Must the codicil conform to the form of the original will?

No. An attested will may have a holographic codicil and vice versa.

42. What are the requirements in order to incorporate reference documents (e.g. inventories, books of accounts) to the will? (Art 827)

i. The document referred to in the will must be in existence at the time of the will’s execution [in existence at execution of will]

ii. The will must clearly describe and identify the same, stating among other things the pages thereof [will must identify]

iii. Document must be identified by clear and satisfactory proof as the document referred to in the will [doc must be clearly identified]

iv. Must be signed by the testator and the witnesses on every page except in the case of voluminous accounts/inventories [signed by witness+testator in every page]

v. It must NOT make any dispositionsvi. Will must be an attested will

Notes:

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43. When may a will be revoked?

Testator may revoke the will at any time before his death. Any waiver or restriction of this right to revoke is void. This is because a will is essentially revocable.

44. Differentiate revocation of wills and nullity of wills (Tolentino)

Revocation of a will Nullity of a willAn act of a testator Provided for by lawPresupposes a valid act Inherent in the testamentTakes place during testator’s lifetime Invoked after testator’s death by his heirsTestator cannot renounce his right to revoke

Heirs may disregard by still complying with the testamentary dispositions

45. What are the rules as regards a revocation of a will done outside the Philippines?

If testator is not domiciled in the Philippines + revocation made outside the Philippines

1. Follow the law of the place where the will was made

OR2. Follow the law of the place where the testator was domiciled at the time of revocation

If testator is domiciled in the Philippines + revocation made outside Philippines

1. Follow Philippine law2. Follow the law of place of revocation3. Follow law where will was made

46. What are the grounds for the revocation of a will? (memorize)

Art 830 provides: No will shall be revoked except in the following cases:

i. By operation of lawii. By some will, codicil, or other writing executed as provided in case of willsiii. By burning, tearing, cancelling or obliterating the will with intention of

revoking it, by the testator himself or by some other person in his presence and by his express direction. If burned, torn, cancelled or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith IF its contents and due execution and the fact of its unauthorized destruction, cancellation or obliteration are established according the rules of court

48. What are the requisites for valid revocation by a subsequent instrument?

i. Subsequent instrument must comply with formal requirements of a willii. Testator must possess testamentary capacityiii. Instrument must contain an express revocatory clause or must be

incompatible with the prior will

N.B. the subsequent will or codicil must be probated also. (naturally)

49. What are the four ways of physically destroying the will?

i. Burningii. Tearingiii. Cancellingiv. Obliterating

50. Who may destroy the will?

i. The testator personallyii. Another person acting in his presence and by his express direction

51. What are the elements of a valid revocation by physical destruction? (all must concur)

i. Physical destruction itselfii. Capacity to revokeiii. Intent to revokeiv. The testator must have completed everything he intended to do.

52. What is the effect of unauthorized destruction?

The will may still be proven as lost or destroyed. However, this is only possible in attested wills (subscribing witnesses’ oral testimony required to establish due execution)

53. What is the effect of a lost attested will?

Gago v. Mamuyac: “where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the will was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death”

54. May a revocation be implied?

Yes. Subsequent wills which do not revoke the previous wills in an express manner, annul only such dispositions in the prior wills as are inconsistent with those dispositions in the later wills (Art 831)

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55. Discuss 832

A revocation made in a subsequent will shall take effect even if the new will should become inoperative by reason of the incapacity or renunciation of the heirs, devisees or legatees designated in the will.

56. Is revocation dependent upon the acceptance or capacity of the new heirs?

GENERALLY, no. The efficacy of the revocatory clause does not depend on the testamentary dispositions of the revoking will, unless the testator provides (see example 2)

Example 1: (general rule)

B executes a will wherein D was instituted as the universal heir. The next day, B executes another will, instituting E as his universal heir. B then dies and E renounces the inheritance. The first (with D as universal heir) will remains revoked even if the new will became inoperative since E renounced.

The effect is the same if the E became incapacitated (insane)

Example 2: dependent relative revocation

B executes a will where he gives 1/8 of his estate to X and his Tagaytay lot to Y. The next day, B executes another will wherein Y was instituted as the universal heir and also providing that the revocation of the first will [express revocatory clause] is dependent on the capacity or acceptance of Y. if in this particular case, Y does not accept the institution, the revocation fails and the original will remains in force.

Notes:

56. Does a testator need to have a reason for revoking his will?

GR: No. This is because wills are essentially revocable.

Exception: Art 833: “A revocation of a will based on a false or illegal cause is null and void”

Elements:

i. The cause must be concrete and factual (not subjective)ii. Cause must be falseiii. Testator must not know the cause is falseiv. It must appear from the will (or must be stated) that the testator is revoking

it because of such false cause

57. What is the effect of a will’s revocation if the will recognizes an illegitimate child?

The recognition does not lose its legal effect. (Art 834)

58. What are the provisions governing republication of wills? (Art 835/836)

Art 835: “The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in the previous one which is void as to its form”

Art 836: “The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil”

59. When is a will void as to its form?

Non-compliance with the following:

i. Art 804: “must be in writing and executed in a language known to the testator”

ii. Art 805: “subscribed at the end thereof by the testator, etc etc”iii. Art 806: “every will must be acknowledged before a notary public by a

testator and the witnesses”iv. Art 807/808: deaf-mute or blindv. Art 809: bad faith, forgery, undue and improper pressure and influence in

connection with imperfections in the form/language in the attestation/willvi. Art 810: requirements of holographic willsvii. Art 811: one witness requirement for probate of holographic willviii. Art 812/813: additional dispositionsix. Art 818/819: Joint wills

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60. What does the testator have to do in order to republish a will that was previously void as to its form?

He has to execute a subsequent will and copy out the dispositions of the original will. Mere reference to the previous (void) will is not enough.

61. What if the testator wants to republish a will that is either

a) void for a reason other than a formal defect ORb) previously revoked

Testator must execute a subsequent will or codicil referring to the previous will (e.g. I revive the previous will)

62. Illustrate Art 837

Art 837 provides: “If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil”

In 1985, X executed Will 1In 1986, X executed Will 2, expressly revoking will 1In 1990, X executed Will 3, expressly revoking will 2

Effect: Revocation of will 2 by will 3 does not revive will 1 unless will 3 expressly revives will 1.

Note:

Art 837 applies IF revocation of will 1 is EXPRESS (revocatory clause) Will 2 must be submitted to probate for the purpose of revoking will 1

63. What happens when the revocation of will 1 is implied?

In 1990, X executed will 1, naming Z as universal heirIn 1991, X executed will 2, naming A as universal heir In 1992, X executed will 3, revoking will 2

Effect: The 1991 revocation of will 1 was implied (incompatible provisions) Hence, the revocation of will 2 by will 3 REVIVES the first will (unless will 3 is also incompatible with will 1)

Notes:

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63. What are the rules governing the allowance of wills?

Art 838 provides that no will shall pass any property unless it is proved and allowed in accordance with the rules of court. (basically, a will has to be probated for it to be able to pass property)

64. May a will be probated during the testator’s lifetime?

Yes. Art 838 provides that the testator may have his own will probated by filing a petition in the court having jurisdiction for the allowance of his will.

As compared to a post-mortem probate, probate during the lifetime of the testator is more advantageous because:

i. Mental condition of testator can be easily determinedii. Fraud, intimidation and undue influence are minimizediii. If a will does not comply with formalities, they can still be corrected

immediatelyiv. Opposition will be minimized

65. What is the nature of probate proceedings?

Guevara v. Guevara provides:

“The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known heirs, legatees and devisees of the testator xxx

The due execution of the will and the fact that the testator was of sound and disposing mind and not acting under duress, menace, undue influence or fraud must be proved to the satisfaction of the court and only then may the will be legalized and given effect by means of a certificate of its allowance signed by the judge and attested by the seal of the court xxx

It can be seen that the presentation of the will for probate is mandatory.

66. What is the effect of a will’s allowance?

An allowance of a will shall be conclusive as to its due execution (meaning the will is formally valid) The allowance is subject to the right of appeal. If the decree of probate becomes final, it is res judicata.

67. What encompasses formal validity?

i. Whether the will submitted is really is the testator’s last willii. Compliance with the prescribed formalitiesiii. Testamentary capacityiv. Due execution

a. Testator is of sound and disposing mind

b. Consent is not vitiatedc. Will is genuined. Testator is of agee. Testator is not expressly prohibited by law

68. Can a probate court pass upon the intrinsic validity of the dispositions?

Yes. When the intrinsic invalidity of the dispositions can readily be seen from the will, the court can pass upon such issue.

69. What are the grounds for disallowance of wills? Art 839 F-I-F-U-S-M

i. Formalities not complied with [formalities: 804-814, 818-819, 820-821]ii. If testator was insane or mentally incapable of making the will at the time of

its execution [insane]iii. If executed through force, duress, fear or threats [force]iv. If executed by undue and improper pressure and influence on the part of the

beneficiary of some other person [undue influence or pressure]v. If signature is procured by fraud [signature fraud]vi. If the testator acted by mistake and did not intend for the instrument he

signed to be his will [mistake]

Notes:

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70. What is does it mean when an heir is instituted?

Art 840: An heir is instituted when a testator designates him in his will. The heir succeeds the testator in his property, transmissible rights and obligations.

71. Art 841

A will is still valid even if:i. It does not contain an institution of an heir (even if the will does not contain

any disposition, it will still be formally valid as long as it complies with the requisites)

ii. Testator only institutes an heir to a part of the estate (if institution does not comprise the whole estate)

iii. Even if the instituted heir does not accept or is incapacitated

If this is the case, the effect would be that the valid testamentary dispositions shall be complied with and intestate succession will operate as regards the remaining portion (mixed succession)

72. How much can be disposed of by will?

If the testator has no compulsory heirs, he can dispose of his entire hereditary estate in favor of any part capable to succeed.

However, if he has compulsory heirs, he can only dispose of the free portion because the legitime cannot be impaired.

73. What are the rules concerning designation of an heir?

When institution valid:

Situation ExampleWhen heir is designated by his name and surname

I designate Michael Jose as heir to 1/18 of my estate

When there are two persons with the same name and the testator indicates some known circumstance to identify him

Testator has two relatives, both named Fernando Pe

“I designate Fernando Pe, my 3rd cousin, as heir to 1/24 of my estate”

When testator omits the name of an heir but still designates him in such a manner that there is no doubt that it’s still him

I designate my youngest second cousin in my mother’s side as heir to 1/32 of my estate

When there is an error in the name/surname of the heir if it is possible in any other manner to identify the heir

Heir’s name is Michael Johnston, testator’s best friend

“I designate Michael Johannson as heir to ¼ of my estate”

When heirs is designated without shares I designate A, B, C and D as my heirs.

They shall all inherit in equal shares [Art 846]

Disposition in favor of a definite class or group of persons

I designate all the mmda traffic enforcers working in Edsa to 1/8 of my estate

Initially unknown person but subsequently, his identity is known

When institution invalid

Situation ExampleWhen it cannot be identified among persons having the same name and circumstances

Testator had many relatives named Juan Cruz, all similarly situated and testator designates a Juan Cruz to 1/8 of estate

Designation of an unknown person I designate as heir to ¼ of my estate Batman

74. What happens when the testator institutes some heirs individually and others collectively? Art 847

Those collectively designated will be considered individually instituted, unless a contrary intention appears. Provision gave an example: “I designated as my heirs a and B and the children of C” In this case, children of C presumed individually designated.

75. What happens when the testator institutes his brothers and sisters, and he has half-siblings

The inheritance shall still be distributed equally unless a contrary intention appears. This only applies, however, to testamentary succession.

76. What is the effect when testator calls to the succession a person and his children?

Art 849: They are deemed to have been instituted simultaneously and not successively.

77. What is the effect of a statement of a false cause for the institution of an heir?

Art 850: The statement shall be considered as not written unless it appears from he will that the testator would not have made such institution had he known of the falsity of such cause.

Austria v. Reyes provides: Before the institution of heirs may be annulled under Art 850, three requisites must concur:

i. The cause for institution must be stated in the willii. Cause must be shown to be falseiii. It must appear on the face of the will that testator would not have made the

institution if he had known of the falsity of the cause

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78. Art 852 and 853

Art 852: “If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or to the whole free portion, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally”

Situation: There is more than one instituted heir and the testator intended them to either get the whole estate or the whole free portion, but the shares assigned to them do not complete the whole estate/free portion.

Art 853: “If each of the instituted heirs has been given an aliquot part of the inheritance and the parts together exceed the whole inheritance or the whole free portion, as the case may be, each part shall be reduced proportionally”

Situation: There is more than one instituted heir and their assigned shares together exceed the whole estate or free portion, their shares shall be proportionally decreased.

X/Value of estate = share of heir/wrong value that heir received; x = right share.

Notes:

Notes:

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79. What is preterition? (memorize) 854

The preterition or omission of one, some or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

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

80. Break down the provision:

Preterition or omission of one, some or all of the compulsory heirs in the direct line

Compulsory heirs in direct line: Children or other descendants (in default of them, parents or ascendants) This includes illegit/legit/adopted child

Surviving spouse not included. Surviving spouse can be preterited and the institution of heir would still be valid.

Whether living at the time of the execution of the will or born subsequently, even after the testator’s death (better definition)

Preterition applies w/n CH is:

1) Living at the time of execution of the will2) Born after the execution of the will3) Born after the execution of the will and even after testator’s death

Devises and legacies shall be valid insofar as they are not inofficious

Institution of heir may be annulled and testamentary succession may occur, but devises and legacies are valid insofar as they do not impair the legitime

81. When is there no preterition?

Situation ExampleIf the compulsory heir in question is instituted in the will but the portion given to him by the will is less than his legitime

X has one legitimate child (A) and a spouse (Y) In this case, A’s ½ of the X’s estate. If in X’s will, A is designated only to ¼ of the estate, there is still no preterition. His remedy is to compel the completion of his legitime.

If the compulsory heir is given a legacy or devise in the will

X has his child as his only compulsory heir. In his will, he devises her a lot in Tagaytay. There is no preterition. Child’s remedy is also completion of her legitime.

If the compulsory heir is omitted from the will but was previously given a donation inter vivos

There is no preterition because a donation inter vivos is treated as advance in the legitime

If the heir is omitted from the will and not given a donation inter vivos

There is still no preterition because omitted heir would still receive something through intestate succession.

Therefore, it follows that for there to be preterition, the heir must have received nothing by way of:

i. Testamentary succession ii. Legacy or deviseiii. Donation inter vivosiv. Intestacy

Therefore, preterition means being completely left out of the inheritance.

82. What if the preterited or omitted heir 1) dies before the testator 2) is unworthy to succeed the testator?

Issue of preterition becomes moot. However, should the heir have a descendant who is also preterited, the effects of preterition will arise.

Balane example: X has two legitimate children, A and B. X makes a will which totally omits A. A dies before X but leaves a legitimate child, A-1, who in this case, is entitled to succeed X by representation. The institution of heir will be annulled because A-1 was preterited.

83. Differentiate preterition from effective disinheritance

Disinheritance PreteritionExpress deprivation of legitime Implied deprivation of legitimeAlways voluntary May also be voluntary but is presumed to be

involuntary (as it’s an omission to mention as an heir or though mentioned, isn’t instituted as an heir)

Legal cause is present Presumed by law to be a mere oversightEven a compulsory heir may be totally excluded

Compulsory heir is merely restored to his legitime

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84. How to properly apply 855?

855 should be paraphrased as follows: “The share of the compulsory heir omitted in a a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, as much as may be necessary must be taken proportionally from the shares of the other heirs given to them by will”

This provision basically talks about completion of a CH’s legitime.

85. Explain Art 856 and 857

Art 856 provides:

“A voluntary heir who dies before the testator transmits nothing to his heirs.

A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance shall transmit no right to his own heirs except in cases expressly provided for”

Balane provides a complete statement of the rule (memorize): “An heir, whether compulsory, voluntary or legal, transmits nothing to his heirs in case of predecease, incapacity, renunciation or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply

TN – transmits nothing, R – representation rules apply, NR – no representation

Kind of heir If heir predeceases testator

If heir incapacitated

If heir renounces

If heir is disinherited

Compulsory

TN, R TN, R TN, NR TN, R

Voluntary TN, NR TN, NR TN, NR N/A (because DH is for CH/LH)

Legal TN, R TN, R TN, NR N/A

Notes:

86. What does substitution mean?

Substitution is the appointment of another heir so that he may enter into the inheritance in default of or subsequent to the heir originally instituted.

87. What are the types of substitution?

i. Simple or common (859) ii. Brief or compendious (860)iii. Reciprocal (861)iv. Fideicommissary (863)

88. Simple substitution: (A testator may designate one or more persons to substitute the heir or heirs instituted in case such heir predeceases the testator, is incapacitated or renounces the inheritance)

Causes for simple substitution:

Cause ExampleFirst heir predeceases testator I institute X as heir to ¼ of my estate. If he dies before me,

I institute Y in his place. First heir renounces I institute X as heir to ¼ of my estate. If he does not accept,

I institute Y in his placeFirst heir is incapacitated I institute X as heir to 2/3 of my estate. If he cannot accept,

I institute Y in his place. If testator does not provide for a cause, all causes will be covered (default)

I institute X as heir to 1/3 of my estate and Y as his substitute.

89. Brief or compendious

In a nutshell, this is a type of substitution wherein two or more persons are substituted for one (2> for 1: BRIEF) and one person for two or more heirs (1 for 2>: COMPENDIOUS)

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In cases of compendious substitutions, the 2 or more originally instituted heirs must all default. In this case, substitution can only take place when all the original heirs are disqualified. As an exception, the testator may provide that the death of one of the original heirs will make the substitution effective.

90. Reciprocal Substitutions

Art 861 provides: if heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces or is incapacitated unless it clearly appears that the intention of the testator was otherwise.

If there are more than one substitute, they shall have the same share in the substitution as in the institution.

1st sentence example: A instituted to 1/3 of the estate. B instituted to ¼ of the estate. Testator provides for their reciprocal substitution. If for example A predeceases the testator, B shall acquire A’s 1/3 share, in addition to his ¼ share.

2nd sentence example: A, B and C are instituted by D. A (1/2), B (1/5) C (1/10) the instituted heirs in the case are made substitutes of one another as provided for by the testator.

If A predeceases D, his ½ share will go to B and C in proportion to their current shares. Same goes if B/C predecease.

91. Art 862

The substitute shall be subject to the same charges and conditions imposed upon the instituted heir unless testator provides the contrary or the charges and conditions are personally applicable only to the instituted heir.

Notes:

92. What is a fideicommissary substitution? (memorize)

Art 863: A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator

93. What are the elements of a FC? (memorize)

i. A first heir who takes the property upon the testator’s deathii. A second heir (fideicommissary) who takes the property subsequently from

the fiduciaryiii. The second heir must be one degree from the first heiriv. The first heir is obliged to preserve the property and transmit it after the

lapse of the period to the fideicommissary heir [obligation must be absolute

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v. Both heirs (first and second) must be living and qualified to succeed at the time of the testator’s death

94. What is the mandatory requisite of the degree between first and second heir?

The second heir must be either a child or a parent of the first heir.

95. How long can the first heir hold the property?

The primary rule is that the fiduciary will hold the property as per the testator’s indicated period. The secondary rule is that if the testator did not indicate a period, the first heir can hold the property as long as he lives. However, as aforesaid, first heir cannot dispose of the held property as he has the absolute obligation to transmit it to the second heir.

96. How are FC’s given effect?

Every FC substitution must be expressly made in order that it may be valid (e.g. use the word fideicommissary or impose absolute obligation on first heir to preserve and transmit to a second heir). The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements unless the testator provides otherwise.

97. Does the second heir have to survive the first heir?No. The second heir does not have to live past the first heir for the substitution to be effective since his right vests from the time of the testator’s death. The second heir’s heirs take his place.

98. Prohibited instances under 867: The following shall not take effect:

i. FC substitutions which are not made expressly (not calling it FC or not imposing the absolute obligation to preserve and transmit)

ii. Provision which contains a perpetual prohibition to alienate, and even a temporary one beyond the limit set forth in 863 (beyond FH’s lifetime/ if there’s no FC: 20 years)

iii. Those which impose upon the heir the obligation of paying to various persons successively, beyond the limit prescribed in 863 (beyond FH’s lifetime), a certain income or pension there can only be two beneficiaries of the pension (FH then the SH)

iv. Those which leave to a person the whole or part of the hereditary property so that he may invest the property according to the secret instructions given to him by the testator

99. What is the effect of the nullity of the FC substitution?

The institution of the first heir simply becomes pure. However, if the institution of the FH is void, the FC substitute (SH), should still be considered instituted.

100. Art 869

A provision whereby the testator leaves to a person the whole or part of the inheritance and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of 863 apply.

This provision means that if the testator institutes successive usufructuaries (one after the other), there can only be two usufructs and as to the two of them, the requisites of Art 863 must be present.

Example:

A in his will, gave B the naked ownership of his land and gave C the usufruct over the same.

Successive usufructs:

A in his will, gave B naked ownership of his house to B. He also gave the usufruct of the house to C first, then to D afterwards. This would mean that C first gets the usufruct, then after C dies, usufruct goes to D. The disposition of the usufruct is valid IF: 1) D is a first degree relative of C (parent or child) and 2) both C and D are alive at the time A dies.

101. Can a testator prohibit the disposition of his estate?

Yes, but only for 20 years.

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102. What are the three kinds of dispositions?

i. Conditional dispositions (made to depend on a future and uncertain event)ii. Dispositions with a term(a day certain for its fulfillment)iii. Dispositions with a mode

103. Discuss conditional dispositions

i. FIRST RULE : Conditions can only be imposed on the free portion as it cannot burden the legitime.

ii. Basic Condition : “I hereby give X 1/5 of my estate if his father becomes a lawyer”

iii. Impossible/Illegal Conditions :

Example: “I hereby institute A as my universal heir if he can make my dead grandfather live again”

Effect: Considered void and unwritten. A still considered universal heir.

iv. Condition prohibiting marriage:

Who can impose an absolute condition against contracting a first marriage? (e.g. I hereby institute X as heir to 1/5 of my estate if she never gets married)

No one. Condition considered as not imposed.

Who can impose an absolute condition against contracting a subsequent marriage? (e.g. I hereby institute Y, my husband, to 1/8 of my estate as long as he does not re-marry forever)

1) The deceased spouse (on the surviving spouse)2) Ascendants or descendants of the decease spouse (on the surviving spouse)

Art 874 2nd paragraph: “Nevertheless, the right of usufruct, or an allowance, or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood”

This provision means that testator can provide that the moment the heir, legatee, devisee gets married or re-marries, the usufruct, allowance or prestation may be stopped.

This provision also means that a testator can give his heir the right to the usufruct/allowance/personal prestation as long as this heir remains unmarried. As soon as B marries, however, his right over the usufruct/allowance/personal prestation would cease to exist.

v. Condition dependent on a testamentary disposition:

Art 875 provides that any testamentary disposition made on the condition that the heir shall also make a provision in his will in favor of the testator or any other person is invalid.

Example: “I hereby institute Y, my best friend, as heir to 1/8 of my estate if he institutes his son as heir to his 1/9 of his estate”

vi. Potestative conditions (one the fulfillment of which depends purely upon the heir) Art 879

Rule 1: Any purely potestative condition imposed upon the heir must be fulfilled by him as soon as he learns of the testator’s death

Example: A instituted B as his heir on the condition that he learn basketball. Once A dies, B must learn how to play basketball.

Rule 2: Rule 1 does not apply if when he condition, already complied with, cannot be fulfilled again.

Example: From the example, it can be seen that if B already knew how to play basketball, his institution stands.

Rule 3: In case of a negative potestative condition, the heir must give a security to guarantee the return of the property in case he contravenes the condition

Example: X institutes Y as his heir as long as he does not go to Hong Kong. When X dies and Y still has not yet gone to Hong Kong, he gets instituted. However, if he goes to Hong Kong subsequently, he must return the value of the property he received by virtue of the institution

vii. Casual/Mixed Condition (one that depends on the will of a third person or on chance)

Casual: depends on chance and/or the will of a third person

Mixed: partly both upon the will of their himself and upon chance and/or the will of a third person

Rule 1: Art 877: If the condition is casual, it shall be sufficient if it happened or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise.

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Rule 2: 877: If the condition already existed or the condition has already been fulfilled at the time the will was executed and the testator did not know of the existence/fulfillment, the condition shall be deemed complied with.

Rule 3: 877: If the testator knew that the condition already existed or the condition had already been fulfilled, the condition shall be considered fulfilled ONLY when it is of such nature that it can no longer exist or be complied with again.

Example: Fez in his will, gave Donna a legacy of 20k provided that Foreman wins the lotto.

IF Fez was unaware, at the time of making the will, that Foreman already won the lotto, the condition is deemed fulfilled. (Rule 2)

IF Fez was aware at the time of making the will that Foreman already won the lotto, the condition is not fulfilled unless Foreman wins the lotto again. (Rule 3)

IF Fez was aware at the time of making the will that Foreman already won the lotto and the lotto becomes illegal, the condition is fulfilled because it can no longer be fulfilled. (Rule 3)

Applying rules to a mixed condition:

Example: A gives B a legacy in his will provided that B becomes a lawyer. This condition can be fulfilled either before or after A’s death.

If B is already a lawyer at the time of the making of the will and A did not know this, the condition is deemed complied with (Rule 2)

If B is already a lawyer and A knew this, condition is deemed complied with because it can no longer be complied with again as he was already a lawyer (Rule 3)

Rule on substantial compliance of mixed/casual conditions: If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed complied with.

Rule applicable only in mixed conditions wherein a third party interested in the condition’s fulfillment is involved.

viii. Suspensive Conditions (Condition must be fulfilled in order for the heir to be instituted and get the disposition)

Art 880 provides that if the heir is instituted under a suspensive condition, the estate shall be placed under the administration until:

i) The condition is fulfilledii) It becomes certain that the condition cannot be fulfilled.

Example: In 1995, A instituted B as heir provided B passes the bar in 2002.A dies on 1999. From 1999-2002, the estate shall be placed under administration.

When B passes the bar, he becomes entitled to the property.When it becomes certain that B won’t ever pass the bar (flunk rule), the intestate heir or a secondary heir if present, would be entitled to the property.

104. What is a caucion mauciana?

This is the bond or security required to be given in favor of those who would get the property if the condition is not complied with (intestate heir/substitute)

It is required in the following:i. Art 879: In negative potestative conditions (heir obliged not to do or give

something) property can be taken by heir provided he gives the securityii. Art 882: Modal Institutions modally instituted heir can get the property at

once provided he gives security that he will comply with testator’s wishesiii. Art 885: Institutions with a term legal heir can enter into possession of the

property before the term arrives provided he gives security

105. Dispositions with a term:

i. Rule 1 : (Art 878): In dispositions with a term, the heir’s right vests upon the testator’s death

ii. Rule 2 : The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered called to the succession until the arrival of the period or its expiration. But in the first case, he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir.

Suspensive Term: Effects begin from a certain day Before the arrival of the term, the property should first be delivered to the intestate heirs. They have to post sufficient security.

Resolutory term: Effect cease on a certain day Before the arrival of the term, the property should be delivered to the instituted heir. When term arrives, property should be turned back to instituted heirs (no security)

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Ex die in diem: From a certain day to a certain day

106. Modal dispositions:

Art 882 provides: The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered a condition unless it appears that such was his intention.

That which has been left in his manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregards this obligation.

In fine, a modal institution takes effect when:

i. Object of the institution is provided: I institute A as my heir to give him enough money to pursue his dreams of being an artist

ii. Application of the property left by the testator is provided: I institute B as my heir in order for him to apply the properties of my estate to the building of an apartment building

iii. The charge is imposed by the testator: I institute A as my heir. He will devote 10% of the annual income of my buildings for erecting a law school.

107. What is a mode?

A mode is an obligation placed upon an heir without suspending the effectivity of the institution.

108. Differentiate modal institution, conditional institution and institution with a term

Modal Conditional TermA mode imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession

The condition must happen or be fulfilled for the heir to be entitled to succeed

The period, which must necessarily arrive, should arrive for the heir to be entitled to succeed

Obligates the heir but inheritance is SURE

Suspends the inheritance BUT UNSURE

Suspends the inheritance but SURE

The inheritance can be immediately be demanded, provided a security is given

Even if the heir wants to give security, he will not be allowed to demand his inheritance as long as the condition has not been fulfilled.

The legal heir must give security in order to enter into possession of property before term arrives

109. What if the instituted heir does not follow the wishes of the testator?

The instituted heir is supposed to forfeit the inheritance and forthwith return anything he may have received together with these fruits.

Notes:

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110. What is the legitime (memorize)

Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are therefore called compulsory heirs

111. Who are compulsory heirs? (memorize)

i. Legitimate children and descendants, with respect to their legitimate parents and ascendants

ii. In default of the foregoing, legitimate parents and ascendants with respect to their legitimate children and descendants

iii. The widow or widoweriv. Acknowledged natural children and natural children by legal fictionv. Other illegitimate children

Compulsory heirs mentioned in 3,4,5 are not excluded by those in 1 and 2. Neither do they exclude one another.

In case of illegitimate children, their filiation must be duly proved.

112. Primary, secondary and concurring CH

Primary: Those in #1, (legit children and/or descendands)

Secondary: Those in #2 (legit parents and/or ascendants and illegitimate parents) Secondary because they receive legitimes if the testator has no legit

children and/or descendantsConcurring: Those in #3,4,5 (surviving spouse, illegitimate children and/or descendants)

Concurring because they succeed as compulsory heirs together with primary/secondary.

113. Notes on legitimes

i. Legitimate Children: Adopted children are considered legitimate childrenii. Legitimate Descendants: If all qualified, children will exclude decedent’s

grandchildren. Grandchildren become primary CH only when all the legit children are disqualified

iii. Legitimate parents: Adoptive parents considered as legitimate parents. Adoptive parent replaces the biological parents

iv. Legitimate ascendants: When testator’s parents are disqualified, legitimate ascendants (grandparents) will become CH

v. Surviving spouse: surviving spouse of decedent-testatorvi. Illegitimate children

vii. Illegitimate Descendants: If all qualified, illegitimate children will exclude decedent’s illegitimate grandchildren

viii. Illegitimate parents: The illegitimate ascending line includes ONLY illegitimate parents excluded by legitimate children and illegitimate children

Notes:

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114. Combinations

SURVIVING RELATIVES LEGITIMATE CHILDREN & DESCENDANTS

SURVIVING SPOUSE ILLEGITIMATE CHILDREN LEGITIMATE PARENTS & ASCENDANTS

ILLEGITIMATE PARENTS

Legitimate children alone ½ (divided by the # of children)

1 legitimate child surviving spouse

½ ¼

Legitimate children Surviving spouse

½ (divided by no. of children)

Same as the share @ legit child

Legitimate childrenIllegitimate children


½ of the share of @ legit child

1 legitimate child surviving spouse illegitimate children

½ ¼ ½ of the share of @ legit child

2 or more legitimate children surviving spouse Illegitimate children


Same as the share of @ legit child

½ of the share of @ legit child

Legitimate parents alone ½Legitimate parentsIllegitimate children

¼ ½

Legitimate parentsSurviving spouse

¼ ½

Legitimate parentsSurviving spouseIllegitimate children

1/8 ¼ ½

Illegitimate children alone ½ (divided by no. of children)

Illegitimate childrenSurviving spouse

1/3 1/3 (divided by no. of children)

Surviving spouse alone ½ or 1/3 if marriage in articulo mortis

Illegitimate parents alone ½Illegitimate parentsSurviving spouse

¼ ¼

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Notes on legitimes:

1. Legitimate children always get 1/2 of the estate as legitime. This is true even if there is only one child.

2. Legitimate parents as secondary compulsory heirs also always get 1/2 of the estate as their legitime, which is true even if only one legitmate parent survives.

3. There is no representation in the ascending line.4. The legitime of the surviving spouse must be paid first out of the free portion; then give the

illegitimate children their legitime. Ergo, if there are many illegitimate children, each of them might not get 1/2 of the share of a legitimate child.

5. There is also representation of illegitimate children.6. If the testator has no legitimate parents but is survived by ascendants of equal degree, the

legitime shall be divided equally between paternal and maternal lines. If the ascendants are of different degrees, the ones nearest in degree get the entire legitime [Art. 889].

Codal provisions on legitime:

Art. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.(808a)

Art. 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants.

The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (809a)

Art. 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor.

If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. (810)

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Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same.

If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants.

In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (834a)

Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate.

This fourth shall be taken from the free portion of the estate. (836a)

Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (n)

Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants.

The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child.

The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (840a)

Possibility of reduction

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Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a)

Art. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. (n)

Art. 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article. (n)

Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n)

Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (837a)

If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n)

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Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased.

The other half shall be at the free disposal of the testator. (842a)

Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a)

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

115. What is the reserva troncal? (memorize)

Art 891: The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of the relatives who are within the third degree and who belong to the line from which the said property came.

116. What are the requisites of the reserva troncal?

i. The property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous title [transmission by donation or succession by any kind]

ii. Descendant died without legitimate issue (single)iii. Property is inherited by a descendant by operation of law [transmission

limited succession by legitime or intestacy and not testamentary]iv. That there are relatives within the third degree [from Prepositus] belonging to

the line from which the said property came.

117. What are the three transfers that are involved in a reserva troncal

i. FIRST: by gratuitous title, from a person to his descendant, brother or sisterii. SECOND: by operation of law, from the transferee in the first transfer to

another ascendant. This creates the reservaiii. THIRD: From transferee in the second transfer to the relatives within the 3rd

degree

118. Who are the parties involved?

i. Origin: transferor in the first transferii. Prepositus: the first transferee (descendant, brother or sister of origin)iii. Reservor: ascendant obliged to reserveiv. Reservee: relatives benefited

119. What are the options of the prepositus to prevent the reserva?

i. Substitute or alienate the propertyii. Bequeath or devise it to the potential reservistaiii. Partitioning the property as assign it to parties other than the reservista

120. What are the rights of the reservor?

i. Ownership subject to a resolutory condition, which is the existence of reserves at the time of reservor’s death

ii. This right of ownership is alienable but subject to the same resolutory condition

iii. The right of reservoir is registrable

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121. What are the rights of the reservees?

i. Right of expectancyii. Right subject to suspensive condition (if reservees survive the reservoir)iii. Right is registrable

122. How is the reserva troncal extinguished?

i. Death of reservorii. Death of all reserveesiii. If all entitled reservees renounce and all parties in interest acceptiv. If reserved property is totally lost by fortuitous eventv. When reservees acquire the reservor’s right [merger/confusion]vi. By prescription, when reservor holds the property adversely against

reservee

123. Explain reserva maxima or reserva minima

A problem arises when two circumstances occur:i. Prep makes a will instituting the reservee-ascendant to a whole or a part of

the free portionii. There is left in prep’s estate, upon his death, in addition to the reserved

property, property not reservable

Reserva maxima: As much as potentially reservable property must be deemed included in the part that passes by operation of law

Reserva minima: Every single property in prep’s estate must be deemed to pass, partly by will and partly by operation of law

Example:

A son received from his mother 200,000 by virtue of a will. The son had properties amounting to 400,000. When the son died without issue, he left the will, giving all his estate [600k] to his father. How much is the reservable property?

In this case, father received 300k as his legitime and 300k as voluntary heir.

MAXIMA: reservable property is 100k, meaning the property includes all that can be included in the half constituting the legitime of the reservor [father]

MINIMA: the reservable property is only 200k. This is based on the fact that half of the 200k received from the origin [mother] was given to the father as legitime/operation of law.

MANRESA: Follow Minima

Notes:

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