SUCCESSION IN A NUTSHELL. Succession law. Juris doctor

S uccession I n a N utshell

1. Modes of transmitting ownership a.) Law b.) Donation c.) Testate and intestate succession d.) Tradition (Art. 712, New Civil Code)

2. Terms a.) Decedent – applies to a deceased person whose property is transmitted through succession, whether he left a will or not. b.) Testator – applies to a person who left a will. c.) Inheritance – all property, rights and obligations of a person which are not extinguished by his death (Art. 776, NCC).

( i ) The obligations of a deceased are only to the extent of the value of the inheritance left by him to his heirs (ii) In general, obligations are transmissible, unless purely personal like obligations between husband and wife, and those non- transferable by law or contract. (iii) Examples of rights extinguished by death: a) Personal rights like marital rights, parental authority, support, action for legal separation, partnership, agency. b) Right to recognition of a legitimate or an illegitimate child:

- Except when action has already been filed. (Art. 173, Family Code). - Also, action is transmitted to heirs if child dies during minority or in a state of insanity, Heirs have 5 years to file the action. (Art. 173, Family Code). - Action already commenced survives, notwithstanding death or either party. ( id.) - Action for adoption is not extinguished by death of adopter. (Sec. 13, RA 8552) c) Right to hold office or job, public or private. d) Right of a lawyer to represent his client.

3. When are rights to succession transmitted Rights to succession are transmitted from the moment of the death of the decedent. (Art. 777, NCC). a) Heirs become owners on date of decedent’s death, although properties are delivered to them later. b) Both acceptance and repudiation retroact to the moment of death.

4. Kinds of succession : Succession may be: a) testamentary (by will or codicil), b) legal or intestate (by law), c) mixed (partly by will and partly by operation of law) (Art. 778, NCC)

5. What inheritance includes: Not only transmissible rights and obligations at the time of death , but also those which accrued since the opening of the succession (Art. 781, NCC) Example: Alluvium, but not properties acquired after the will was made.

6. Heir, devisee, legatee distinguished (Art. 782, NCC) Heir – called to the succession by will or by operation of law; also one who succeeds by universal title or to all or a fraction or aliquot part of the estate. May be compulsory or voluntary. > Heir is compulsory as to legitime. > Heir is voluntary, as when a friend or a child is given part of the estate to be taken from the free portion. Devisee : One given a gift of real property in a will. Legatee : One given a gift of personal property in a will.

7. Importance of distinction between heir and legatee/devisee a) There are heirs in testate (compulsory heirs) and intestate (legal or intestate heirs) succession. > Legatees and devisees exist only in testamentary succession. b) In preterition, an instituted heir gets nothing, while a legatee or devisee gets the property given to him as long as the legitime is not impaired. (Art 854, NCC)

8. Dual status of heir: a) In a will, a compulsory heir may be given more than his legitime. b) He is a compulsory heir with respect to the legitime. He is a voluntary heir with respect to the excess. c) If a compulsory heir dies ahead of the testator, his legitime goes to his child by representation. The child of a voluntary heir who predeceases the testator gets nothing, because there is no representation among voluntary heirs nor in the free portion.

1. Definition of will 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, NCC). W I L L S

2. Characteristics of a will: a) Statutory b) Unilateral (Heirs can’t accept while testator is still alive) c) Solemn or formal d) There must be animus testandi e) Testator must have testamentary capacity f) Strictly personal g) Effective mortis causa h) Essentially revocable or ambulatory Meaning of strictly personal ( Art. 784, NCC) ( i ) Cannot be left in whole or in part to the discretion of a third person.

(ii) Duration or efficacy of designation of heirs, devisees, or legatees or the portions given to them, cannot be left to the discretion of a third person. (iii) But the testator may entrust to a third person the distribution of specific property or sums of money left to a specified class or cause and the designation of persons, institutions, and establishments to which property or money is to be given (Art.786, NCC). Ex.: Charitable institutions 2000 Law Class of San Sebastian College

3. Interpretation of wills: a) If it admits of different interpretation, in case of doubt, interpretation which will make the dispositions operative shall be preferred (Art.788, NCC), because testacy is preferred to intestacy. b) Ambiguities in a will: ( i ) Latent or intrinsic : Does not appear on the face of the will and is discovered only by extrinsic evidence. Ex.: I institute my sister. (But I have two sisters) I give my piano to Lisa. (But I have two pianos) (ii) Patent or extrinsic : Appears on the face of the will itself. Ex.: I institute one of my three nephews (but the nephew is not named) I give X one of my three cars (without stating which car).

c) How to resolve ambiguities: ( i ) Latent or intrinsic : From context of the will or extrinsic evidence, excluding the oral declarations of the testator (Art. 789, NCC) (ii) Patent or extrinsic : Consider the words of the will or the circumstances under which the will was made, but not the oral declarations of the testator ( id.) Why can’t the oral declarations of the testator be considered? > Because to do so can result in fraud, as the words of a dead man can be distorted or perjured.

d) Words are to be interpreted in their ordinary or grammatical sense, not in the technical sense (Art.790, NCC) Examples : Natural child means child by nature. Use and possession of property only means usufruct, not ownership. e) But technical words used are to be taken in their technical sense, unless ( i ) a contrary intention appears from the context, or

(ii) it satisfactorily appears that will was drawn solely by the testator, and he was unacquainted with such technical sense. (Art. 790, id). Example : “ Ampon ” means de facto adoption, not legal (judicial) adoption. f) After-acquired properties go to intestate heirs. g) Rules of interpretation apply to institution of heirs as well as of legatees and devisees.

4. Validity of wills: a) As to form ( extrinsic validity) : Depends on the law in force at the time of execution (Art. 795, NCC) b) Intrinsic validity : Governed by the law in force at the time of decedent’s death. ( i ) Legislature cannot pass a law validating a void will, like a holographic will executed before the New Civil Code, because the old Civil Code did not recognize holographic wills. (ii) Suppose the testator had no legitimate ascendants, descendants, or wife. He died in 1949. He has a recognized spurious child, but made a will leaving all his properties to a friend. His estate was settled in 1951.

Is the will valid? (aa) The will is valid because the intrinsic validity of a will is governed by the law at the time of the testator’s death. A spurious child had no hereditary rights under the old Civil Code. (bb) But if the testator had died in 1951, he spurious child would get his legitime even if born before the New Civil Code, because succession is determined at the time of death of the decedent.

5. Testamentary capacity: (Art. 796 and ff., NCC) Active – Capacity to make a will. Passive – Capacity to receive property under a will. Who can make a will: ( i ) Those not expressly prohibited by law. ( Art. 796, NCC) ( aa ) Juridical persons cannot make wills; this is evident from the requirement of soundness of mind. (bb) Convicts under civil interdiction can make wills. (cc) Spendthrifts can make wills. (ii) Must be 18 years of age. (Art. 797, NCC) (aa) Thus, those below 18 cannot make wills; (bb) But sex is immaterial.

(iii) Must be of sound mind at the time of the will’s execution. Meaning, the testator knows (aa) The nature of the estate to be distributed (bb) The proper objects of his bounty (cc) The character of the testamentary act. Old age alone (senility) is not enough. Must be senile dementia (decay of mental faculties due to old age). Presumption is sanity (Art.800, NCC) But there is also presumption of insanity, if one month or less before the making of the will, the testator was publicly known to be insane (Art. 800, id. ). Supervening incapacity does not invalidate a will; nor supervening capacity validate a will (Art. 801, NCC)

6. Forms of Wills : Notarial and Holographic a) Notarial Will ( i ) Must be in writing (Art. 804, NCC) (ii) Must be executed in a language or dialect known to the testator (Art. 804, id .) Witnesses do not have to know the dialect or language of the will, but the attestation clause (not the will) must be interpreted to them (Art. 804, id.) (iii) Must be signed at the end by the testator or another person in his presence and at his express direction (Art. 805, id. ). Person signing should not be one of the attesting witnesses, unless there are more than 3 such witnesses. (iv) Must be attested and subscribed by three or more credible witnesses in the presence of the testator one another (Art. 805, id. )

Credible means : - Of sound mind, - 18 years or more, - Not blind, deaf or dumb, - Able to read and write, - Domiciled in the Philippines (not necessarily a citizen) - Has not been convicted of falsification, perjury, or false testimony. (Art. 820, 821, NCC) - But witnesses do not have to know the language of the will except that the attestation clause must be interpreted to them. (Art 804). - Also, a blind or an illiterate can make a will, but he cannot be a witness to a will.

(v) The testator or person who signed for him and the witnesses must sign each and every page on the left margin of the will except the last page. The signatures may be on the right, top, or bottom of the margin of the will. ( Avena v. Garcia, Phil. 145; Nayue v. Mojal , 47 Phil. 152). But lack of marginal signatures is fatal (Estate of Tampoy v. Alberastine , L-14322, Feb. 25, 1960). (vi) All pages of the will must be correlatively numbered in letters placed on the upper part of each page (Art 805, id. ) (aa) Means “One, Two, Three”. But can be “1, 2, 3” or “A, B, C” or “I, II, III”. (bb) Purpose: To prevent fraud, substitution or to detect loss of any page. So, substantial compliance is enough.

(vii) Must have an attestation clause which must state (Art 805, id.) : (aa) The number of pages where the will is written; (bb) That the testator signed in the presence of the witnesses and the witnesses signed in the presence of the testator and of each other. Purposes: (aa) To preserve in permanent form the record of facts. (bb) To have proof of compliance. (cc) To minimize commission of fraud or undue influence. Failure to state number of pages in the attestation clause is fatal. ( Re Andrada , 42 Phil. 180) unless number of pages appears elsewhere in the will ( Singson v. Florentino , L-4603, Oct. 25, 1952; Gonzales v. Gonzales, L-3272, Nov. 29, 1951).

(viii) Must be notarized (Art 806): (aa) The following are not essential: date, place of execution, the reading of the will to witnesses. (bb) Only the attestation clause is interpreted to the witnesses if the language is not known to them, and not the will itself. (cc) The notary does not have to read the will except if the testator is blind (Art. 808). ( dd ) The notary need not be present at the time of the execution. ( ee ) Witnesses also need not appear before the notary at the same time. (ff) But notary cannot be a witness to the will.

KNOW ALL MEN BY THESE PRESENTS: I, _______________, of legal age, married to _____________, a citizen of the Philippines and at present residing at ___________, with sound and disposing mind and memory, and without having been coerced, intimidated or unduly influenced by anybody, has hereby voluntarily executed and proclaimed this instrument as my LAST WILL AND TESTAMENT, revoking and annulling all my former wills made by me heretofore. LAST WILL AND TESTAMENT

That should I finally rest in eternal peace it is my wish and desire that internment vigil and burial be made in accordance with the customs and traditions of the Roman Catholic Church; That my properties are as follows: Real Properties Personal or movable properties

That should the Lord Almighty finally summon this soul from its earthly abode, it is my wish and desire to be bequeath, a grant and devise my properties above-mentioned, as follows: To my beloved wife, _________, I hereby bequeath the properties numbers ______ and _____ above described; To my children, _____, _____, _____ and _____, I hereby bequeath in equal shares, the properties numbers _____, _____, _____, _____ above-described; To my niece _____, who has been my constant companion and nurse in my illness, I hereby devise the property described under Number _____ above; To my brother _____, I give the property known as No. _____ above.

IV. That should Divide Providence will it that I die ahead of my beloved wife, I hereby proclaim as my wish and desire which my heirs and legatees should respect, that the provisions of the foregoing Article III, paragraph B, C and D be rendered temporarily without force and effect, and my surviving wife and widow shall have full use and enjoyment of all the above-described properties; and only upon her demise shall the provisions of Article III, paragraphs B, C and D come into effect; V. That for the purpose of rendering this LAST WILL AND TESTAMENT effective thru the proper proceeding in Court, I hereby name and constitute _____ as my executor and administrator of this LAT WILL and TESTAMENT, and in that event of his incapacity, I hereby name as his substitute _____;

VI. That I direct that my nominated Executor and Administrator be exempt from the filing of bond. IN WITNESS WHEREOF, I have here unto set my hand on the ____day of _____, 2003 at the City of _____; Signature of Testator

ATTESTATION CLAUSE WE, the undersigned witnesses, do hereby affirm that the foregoing is the LAST WILL AND TESTAMENT of _____ and we hereby certify: That he executed the same while of sound and disposing mind and memory; That he signed the same in our presence, at the bottom of the last page and on the left hand margin of each and every page, and we, at his behest, have signed hereunder and on the left hand margin of each and every page, in his presence and in the presence of the Notary Public, this _____ day of _____, 2003 at the City of _____.

Signature of Witness Address Signature of Witness Address Signature of Witness Address (ACKNOWLEDGEMENT)

ACKNOWLEDGEMENT BEFORE ME, a Notary Public for and in the (Province/City/Municipality) of _____ this date personally appeared _____ with Community Tax Certificate No. ______ issued on ______ at ______ representing to be the position in the corporation of (name of corporation) with Community Tax Certificate No. _____ issued on _____ at _____ and Tax Identification No. ( T.I.N) _____, known to me and to me known to be the same person who executed the foregoing instrument for and in behalf of said corporation , and (he/she) acknowledged to me that the same is the free voluntary corporate act and deed of (name of corporation) . This Instrument consists of only _____ (_____) page/s, including this page in which this acknowledgement is written, duly signed by ____ and his instrumental witnesses on each and every page thereof. WITNESS MY HAND AND SEAL this _____ at _____, Philippines NOTARY PUBLIC Doc. No. _____ Page No. _____ Book No. _____ Series No. _____

(ix) If the testator is deaf or a deaf-mute, he must personally read the will, or he must designate two persons (need not be the attesting witnesses) to read or communicate the will to him, but they must know the sign language (Art. 807). (x) If the testator is blind, the will should be read to him twice: one, by one of the subscribing witnesses, and again, by the notary public, (Art. 808). But: (a) A blind, deaf, and dumb man cannot make a will because of difficulty of communication. (b) The notary public cannot be one of the attesting witnesses, because he cannot acknowledge his own act.

b) Holographic Will Requirements : ( i ) Language must be known to the testator. (Art. 804, NCC). (ii) It must be entirely written, dated, and signed by the testator. (Art. 810) (iii) Insertions, cancellations, erasures, or alterations must be authenticated by the full signature of the testator (Art.814); otherwise, the alterations, etc. are void, but not the will itself. (iv) If there are dispositions written below the signature, they must be dated and signed in order to be valid (Art. 812) (v) When there are dispositions that are signed but not dated, but the last disposition has a signature and a date, such date validates the dispositions preceding it (Art. 813).

Advantages of holographic wills: ( i ) More intimate and personal. (ii) Unlikely to be influenced by fraud or undue influence (iii) No witnesses, no marginal signatures, no notarization and acknowledgment needed. (iv) Subject to no other form. (Art. 810) (v) Can be made in or out of the Philippines ( id.) Probate of holographic wills: ( i ) If not contested, only the testimony of one witness who knows the handwriting and signature of the testator is needed. (Art. 811). (ii) If the will is contested, at least three of such witnesses are required. ( id.) . (iii) In the absence of said witnesses, expert testimony may be presented. ( id.).

7. Wills executed abroad: ( i ) If executed by a Filipino, it can be in any form established in the country where he may be at the time of execution (Art. 815). (ii) If executed by an alien, will may be executed in accordance with: ( aa ) Lex domicilii (Art. 816) (bb) Lex nationalii (id.). (cc) Philippine law (id.). ( dd ) Lex loci celebrationis (place where testator was at the time of execution) (Art. 17)

8. Joint will of Filipinos: a) Joint will defined: A will executed by two or more persons in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (Art. 818, NCC). Example: A and B executed a will in one instrument, making C their heir. b) Distinguished from reciprocal or mutual wills: Reciprocal or mutual wills provide that the survivor of the testators will succeed to all or some of the properties of each decedent; Example: A made a will making B his heir. B also made a will making A his heir. Mutual or reciprocal wills are valid, but if made in one instrument, they are void not because they are reciprocal, but because they are joint.

c) Joint wills, whether reciprocal or not, are void (Art. 818). d) Reasons why joint wills are void: ( i ) To allow as much as possible secrecy, a will being a purely personal act. (ii) To prevent undue influence by the more aggressive testator on each other. (iii) In case of death of the testators at different times, probate would be harder. (iv) It militates against the right of a testator to revoke his will at any time, like revocation by tearing or burning. (v) In case the testators are husband and wife, one may be tempted to kill the other.

e) Void even if executed by a Filipino in a foreign country where such will is allowed. (Art. 819) f) How about joint wills executed by foreigners? ( i ) If executed abroad and valid in the country of execution, valid also here ( lex loci celebrationis ) (ii) If executed in the Philippines, void because it is against our public policy.

9. Devise, legacy, etc., to attesting witnesses (Art. 823, NCC). a) The devise or legacy is void, but the will is valid. b) If given to the spouse, parent, or child of an attesting witness, the legacy or devise is also void (but the attesting witness can still act as such, if there are three other competent witnesses to the will) (Art. 823, id. ) c) But if the witness or his spouse, parent, or child is a compulsory heir, he will not lose his legitime. d) Can a compulsory heir be an attesting witness? Yes, but any property given to him out of the free portion is void. e) Can the notary who acknowledges the will be a witness? No, because he cannot acknowledge something before himself.

10. Codicil (or a small will): a) Meaning (Art. 825, NCC) ( i ) A supplement or addition to a will. (ii) Made after the execution of a will and annexed to it to be taken as part thereof. (iii) Explains, alters, or adds to the original will. b) How executed: ( i ) With the same formalities as a will (Art. 826) (ii) May be notarial or holographic. c) How revoked: ( i ) A notarial will may be revoked by a notarial or holographic codicil; a holographic will may be revoked by a holographic or notarial codicil; (ii) A valid will can never be revoked by an invalid codicil, whether expressly or impliedly.

11. Incorporation by reference: Means a will validly executed incorporates only by reference (without copying the whole thing) certain documents or papers, especially inventories and books of account, to save time and energy. Requisites (Art. 827): a) The document or paper referred to must be in existence at the time of the execution of the will. - Therefore, future papers cannot be incorporated by reference. b) The will must clearly describe and identify the document or paper, especially the number of pages thereof. c) The document or paper referred to must be identified by clear and satisfactory proof (by parol evidence or evidence aliunde ). d) The testator and the witnesses must sign each and every page of the paper or document, except voluminous books of account or inventories, but number of pages must be stated.

When is revocation valid; law applicable (Art.829, NCC): a) If done outside the Philippines – (ii) If by one not domiciled here: (aa) Apply the law at the place where the will was made; or (bb) Follow the law at the place where the testator was domiciled at the time the will was made; or (cc) Follow Philippine law. REVOCATION OF WILLS

(iii) If done by one domiciled in the Philippines: (aa) Follow Philippine law (since his domicile is here); or (bb) Follow the general rule of the lex loci celebrationis of the revocation (Art. 17) b) If done in the Philippines – Follow Philippine law whether the testator is domiciled in the Philippines or not; i.e., lex loci celebrationis of the revocation.

Ways of revocation (Art. 830, NCC): a) By implication or operation of law, total or partial. b) By an overt act (burning, tearing, cancelling, or obliterating). c) By a revoking will or codicil, totally or partially, expressly or impliedly.

2. Different ways of revocation explained a) By implication or operation of law: When after the execution of a will, certain acts or events take place rendering void the will totally or partially (presupposing a change of mind on the part of the testator), like – When the testator sells or donates the thing given as legacy or devise (Art. 957, NCC). In cases of legal separation, annulment of marriage, and declaration of nullity of marriage, with respect to the property given to the guilty spouse (Arts. 43, 50, Family Code). When an heir, legatee or devisee commits an act of unworthiness under Art. 1032, NCC. When a credit given as a legacy is judicially demanded by the testator (Art. 936, NCC). When one or some of the compulsory heirs are preterited or omitted in the will, the institution of heirs is void, but the legacies and devisees remain valid as long as the legitime is not impaired (Art. 854, id. )

b) By an overt act ( burning, tearing, cancelling or obliterating, or crumpling) (Art. 830, par. (3), (NCC): May be done by the testator or another upon his express direction. The subjective phase of the act must be completed (if, for example, even a small part of the will is burned). There must be capacity to make a will at the time of revocation. If the testator threw his will into a stove with the intent of revoking it so that it would be burned once someone lights the stove, but somebody removed the will from the stove before it was lighted, there is no revocation because there was never the overt act of burning.

(v) If a will is burned accidentally, there is no revocation in view of the lack of intention to revoke. (vi) Tearing of the will, even if slight or only into two pieces, is enough revocation as long as the subjective phase is passed. (vii) Obliteration is rendering the words illegible; cancelling is the drawing of lines across the text, but the words remain legible. (viii) Cancellation of the signature is sufficient revocation, but cancellation or obliteration of non-vital parts leaves the other parts of the will in force. (ix) If a will is mutilated by error or accident, there being no animo revocandi , there is no revocation. (x) If what was burned was only the envelope containing the will, there is no revocation.

c) By the execution of another will or by a codicil (Art. 832 and ff, NCC): Revoking will or codicil must be valid as to form; otherwise, revocation is void. Revocation by subsequent will or codicil takes effect even if the new will becomes inoperative because of the incapacity or renunciation of the heirs, legatees, or devisees (Art. 832, NCC). Implied revocation by subsequent will (Art. 831): If the subsequent will does not revoke the first will in an express manner, only those dispositions in the first will that are inconsistent or contrary to the second will are annulled. Reasons: (1) The law does not favor implied revocation. (2) Efforts to reconcile must be made.

(iv) Revocation based on a false or illegal cause is void (Art 833) Example of a false cause: T instituted A as heir. Then he learned that A was already dead, so he made another will instituting B. If A turns out to be still alive, he and not B inherits from T, because the revocation of the will in his favor was based on a false cause. (v) Note the difference between an invalid second will and an ineffective second will. If the second will is void, it cannot revoke. If it is only inoperative by reason of the incapacity or renunciation of the heir, legatee, or devisee, revocation takes place.

(vi) Doctrine of conditional revocation or dependent relative revocation; This refers to a revocation that is conditional; i.e., revocation takes place only if the condition is fulfilled. Example: T makes Will No. (1). After one week, he executes Will No. (2). Then he tore Will No. (1) to pieces. Upon his death, it was discovered that his Will No. (2) had not been validly executed. - Is Will No. (1) revoked, or should it be given effect? In one case, it was held that Will No. (1) was revoked because the tearing was accompanied by animo revocandi ( Diag v. De Leon, 43 Phil. 413).

Later, it was ruled that there was no revocation either by subsequent will or by overt act of tearing because the tearing was prompted by the false belief that the second will was validly executed (see Art. 833, NCC, which states that revocation of a will based on a false or illegal cause is null and void). Or, under the doctrine of dependent relative revocation, the revocation by destruction or overt act is good only if the condition is fulfilled, namely, that the revoking will is valid. Here, the condition was not fulfilled; therefore, the revocation by overt act did not materialize. (De Molo v. Molo , et al, L-2538, Sept. 21, 1951).

(vii) The second will referred to by the testator as his last will revokes his first will, especially if the provisions of the two wills are inconsistent, like as to who are being instituted as heirs. 4. Remember that the testator can revoke his will at anytime before his death. 5. Recognition of an illegitimate child in a will does not lose its effect even if the will is revoked (Art. 834, NCC).

Definition of Terms: Republication is the act of the testator of reestablishing a will which is void as to form (like there were only two attesting witnesses or there was no attestation clause) or which had been revoked (Art. 835, NCC). Revival is the restoration of validity to a previously revoked will by operation of law. REPUBLICATION AND REVIVAL OF WILLS

2. Modes of Republication: a) Re-execution of the original will (copying the original provisions thereof); b) Execution of a codicil referring to a previous will (also known as implied republication) (Art. 836, NCC)

3. Requisites and limitations of republication: a) If a will is void as to form (like if there were only two attesting witnesses or there was no attestation clause), the new will must reproduce or copy all the provisions of the first will.

( i ) But the effect of the will is the date of execution of the new will, not of the old will. (ii) If I gave all my cars to A in my first will which turned out to be void as to form, and I copied all its provisions in a second will, and I had only 3 cars when I executed the first will and 8 cars when I executed the second will, my heir A will get 8 cars, not 3 cars.

b) If a will is void to form, it cannot be republished by mere reference in a codicil. There must be a new will or codicil reproducing all the provisions of the first void will.

- But if the first will was valid but had later been revoked, a codicil merely referring to the revoked will revives said void will. There is no need to reproduce the provisions of the revoked will. The will is however, effective as of the date of the codicil. c) If a will is void due to fraud or undue influence, the execution of a codicil referring to the previous void will is sufficient republication. There is no need to reproduce its provisions. (Art. 836, NCC).

4. Rules on Revival (Art. 837, NCC): a) If the second will expressly revoked the first will, revocation of the second will does not revive the first will. b) If the second will only impliedly revoked the first will (like having inconsistent provisions), revocation of the second will revives the first will. c) If the second will revoking the first will is invalid, the first will is still effective because the revocation is void.

5. Another case of Revival: While the preterition of a compulsory heir annuls the institution of heirs, still, if the omitted heir dies ahead of the testator, the institution of heirs is revived, without prejudice to the right of representation (Art. 854, sec. par., NCC).

Study Rules 73 to 90 of the 1997 Rules of Civil Procedure on Settlement of Estate of Deceased Persons. Meaning of probate: The act of proving before a competent court the due execution of a will by a person with testamentary capacity, and the approval of the will by said court. Necessity of probate: No will shall pass real or personal property unless proved and allowed in accordance with the Rules of Court (Art. 838, NCC). PROBATE OF WILLS

4. Probate of a will is conclusive as to: a) due execution of the will b) testamentary capacity of the testator 5. Two kinds of probate: a) During the testator’s lifetime ( ante mortem probate) Reasons: ( i )To prevent or minimize fraud, intimidation, or undue influence in the execution of wills.

(ii) To enable the testator to correct at once any failure to comply with the legal requirements. ( Report of the Code of Commission, pp. 53-54 ) Note: But the testator can still revoke his will although already probated during his lifetime. b) After the testator’s death.

6. Grounds for disallowance of wills (Art. 839, NCC) a) Formalities required by law were not complied with. b) Testator had no testamentary capacity at the time of execution of the will. c) Will was executed through force, duress, or influence of fear or threats. d) Will was procured by undue and improper pressure and influence on the part of the beneficiary or some other person. e) Signature of the testator on the will was procured by fraud. f) Testator acted by mistake or did not intend that the instrument he signed should be his will when he signed it.

Remember: a) The grounds for disallowance of wills in Art. 839 are exclusive; no other grounds can serve to disallow a will ( Pecson v. Coronel, 45 Phil. 216). b) While the presence of force, duress, fear or threat in the execution of a contract renders it merely voidable (i.e., capable of ratification), their presence in a will renders the will void. c) There is undue influence when the testator does something because of fear or desire for peace or from any other feeling that he is unable to resist (Torres v. Lopez, 48 Phil. 772). But he who alleges undue influence must prove it ( Macapinlac v. Alimurong , 16 Phil. 41).

d) There is no undue influence if the testator gives the whole free portion to an illegitimate child or a mistress. Mere affection, although illegitimate, is not undue influence, as long as the giving was voluntary ( Coso v. Fernandez Dez , 42 Phil. 596). - However, a mistress is incapacitated to inherit, on the ground of public morality and public policy (Art. 1028 in relation to Art. 739, NCC). e) Fraud and undue influence are mutually repugnant and exclude each other, as that their joinder as grounds for opposing probate shows the absence of definite evidence against the validity of the will ( Icasiano v. Icasiano , L-18979, June 30, 1964).

Meaning of “Institution of Heirs”: It is “an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations”. (Art. 840, NCC) INSTITUTION OF HEIR

2. Requisites for a valid institution of heirs: a) Refers only to voluntary heirs; cannot affect the legitime. b) Applicable also to devisees and legatees. c) Exists only in testamentary succession. d) Even a conceived child can be instituted, subject to Arts. 40 and 41 of NCC. e) Heirs, legatees, and devisees must be certain or ascertainable. f) There must be no preterition, except that devises and legacies are valid as long as the legitime is not impaired. g) The institution must be effective; that is, there is no predecease, repudiation, or incapacity of heirs. (Art. 841) h) The will must be extrinsically and intrinsically valid. i ) If the institution is partial, the remainder of the estate goes to the intestate heirs (Art. 841).

3. Other rules to remember: a) An heir must be designated by his name and surname, and when two persons have the same name, the will must indicate circumstances to identify the heir (Art. 843, NCC) b) Even if the name of the heir is omitted, if there is no doubt as to his identity, the institution is valid. (Art. 843). Ex: “My only brother” (the testator has only one brother). c) Error in name, surname, or circumstances of the heir shall not vitiate the institution if he can be ascertained in any other manner (but not by the oral declaration of the testator) (Art. 844). d) If several persons have the same name and surname and similar circumstances, and even with the presentation of other proof, the heir cannot be identified, none shall be an heir. (Art. 844).

e) Institution of an unknown person is void. (Art. 845). Examples: “I institute my friend”. (But have many friends). “I institute my student in the 4 th year of the SSC College of Law”. (I have many such students). f) Special kinds of institution: ( i ) The poor in general (Apply Art. 1030, NCC) (ii) The relatives of the testator (meaning those nearest in degree) (Art. 959). (iii) “X and his children” (Art. 849) – they are instituted simultaneously. (iv) “My brothers and sisters” – equally, even if some are full and some half-blood (Art. 848).

g) Heirs instituted without designation of shares inherit in equal parts (Art. 848). But this does not apply to the legitime. h) “T instituted his son A and his friends X and Y to his P1M estate. Divide.” First, give A his legitime of P500,000.00. Then, divide the other P500,000.00 among A, X and Y equally. i ) “T instituted A and B and the three children of C to his estate of P100,000.00”. How should the estate be divided? Divide the estate into five (5) equal parts. j) “T instituted his two brothers and three half-sisters. Divide”. ( i ) They get equal shares (Art. 848) (ii) Remember, though, that in intestate succession, full-blood gets double share of the half-blood.

k) “T instituted A and the latter’s 2 children to his estate of P100,000.00. Divide.” Divide the estate into three (3) equal parts or shares; i.e., the heirs inherit simultaneously, not successively. (Art. 849). l) A statement of a false cause in the institution of heir is considered not written unless it appears from the will that the testator would not have made the institution had he known of the falsity of the cause (Art. 850). “I institute my student X for getting 100% in Civil Law in the last bar examinations” The institution is valid, even if the student did not get 100% in Civil Law. What is disregarded is the false cause, not the institution. m) “I institute my friend F to ½ of my P1M estate”. Who gets the other ½? The intestate heirs (Art. 851)

n) A voluntary heir who dies before the testator or who proves to be incapacitated transmits nothing to his heirs (Art. 856). ( i ) There is no representation among voluntary heirs. (ii) There is also no representation in legacies and devises. o) “T has children A and B. A has a child A-1. If T institutes his children A and B to his P1M estate, but A dies ahead of T, who gets his estate?”. > A-1 gets A’s legitime of P250,000 by representation. The remainder of the estate goes to B as compulsory and voluntary heir. p) Remember that a person who renounces cannot be represented (Art. 977)

Art. 854, NCC: “The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of execution of the will or born after the death of testator, shall annul the institution of heir; but the devises and legacies shall be valid in so far 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”. PRETERITION

2. Nature of Preterition: a) Total omission of one, some, or all of the compulsory heirs in the direct line. b) Omission may be intentional or unintentional c) Compulsory heirs must be in the direct line (ascendants and descendants) d) Compulsory heirs may be living or conceived at the time of the institution e) The institution of heir shall be annulled or voided, but legacies and devises remain if not inofficious . f) If the omitted heir predeceases the testator, the institution is effectual, without prejudice to the right of representation. g) Illegitimate ascendants or descendants are included.

h) If a compulsory heir is given a very small share, complete only his legitime. There is no preterition. i ) If a child has been given a donation inter vivos , there is no preterition because the donation is an advance on his legitime. So he is entitled only to the completion of his legitime. j) The omission of the surviving spouse in the will is not preterition because she is not a compulsory heir in the direct line. So, give her the legitime given to her by law. k) If brothers or sisters are omitted, there is no preterition because they are not compulsory heirs and not in the direct line. l) “T has three sons A, B, and C. He makes a will instituting A and B and his friend F. Who gets his estate?” Ans. : F gets nothing since he is a voluntary heir, not a legatee or devisee. The institution is annulled a legatee or devisee, the gift is valid if not inofficious . If inofficious , it is reducible.

Meaning of “substitution of heir”: It is the appointment of another heir in default of or after the heir originally instituted (Art. 857, NCC). 2. Purposes of substitution of heirs: a) To prevent the property from falling into the hands of people not desired by the testator. b) To prevent inestate succession. c) To allow the testator greater freedom to reward those more worthy of his affection and bounty than his intestate heirs. Note: There may also be substitution of legatees and devisees. SUBSTITUTION OF HEIRS

3. Kinds of substitution : (Art. 858, NCC) a) Simple, vulgar or common ( Art 859)(Without stating the reasons for substitution). > One or more persons substitute the instituted heirs in case of predecease, repudiation, or incapacity. Ex: T instituted A as his heir, but provided in his will that in case A cannot for any reason receive the inheritance, he shall be substituted by B. Or, simply, T designates B as his heir and C as B’s substitute. b) Brief (Art. 860): Ex: T institutes A as his heir, with B and C as substitutes (Art. 860). c) Compendious (Art. 860): Ex: A and B are instituted, with C as substitute.

d) Fideicommissary substitution (Art. 863) – See discussion below and next pages e) Reciprocal (Art. 861): Ex: A and B are instituted, with the provision that if A predeceases, renounces, or turns out to be incapacitated, B substitutes him, and vice versa. Even if the original shares given to A and B are not equal, like A was given 2/3 and B 1/3 of the testator’s estate, since the institution is reciprocal, if either A or B predeceases, renounces, or is incapacitated, the other gets the original share of the one originally instituted. f) Remember that the cause for the substitution need not be stated, in which case the substitution applies in predecease, renunciation, or incapacity.

4. Fideicommissary substitution (Art. 863, NCC). T institutes A as first heir or fiduciary, but he must preserve and transmit the estate to second heir B called fideicommissary or beneficiary, with the following conditions: a) The substitution does not apply to the legitime (Art. 864) b) The fideicommissary substitution must be express; i.e., the obligation to preserve and transmit the property to the second heir is clearly imposed . c) The second heir should not go beyond one degree or one transfer from the first heir. (Art. 863) d) Both heirs inherit from the testator. e) Both heirs must be living or at least conceived at the time of the testator’s death.

f) The second heir acquires his right from the time of the testator’s death. If he dies before the first heir or fiduciary dies, his (the second heir’s) right passes to his heirs. (Art. 866) g) The first heir enjoys the property almost like a usufructuary (Art.866). So: ( i ) He cannot alienate the property (ii) He is entitled to refund of useful improvements, legitimate expenses, and credits (Art. 865). h) One degree means one generation or one transfer (so, the second heir can be a juridical person).

i ) Since the substitute must be one degree from the first heir, he must be a parent or child of the first heir. He cannot be a brother, because brother is two degrees from the first heir. j) The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the first heir. The fideicommissary clause is simply deemed not written. (Art. 868).

Remember also: a) Suppose the fiduciary dies ahead of the testator, the second heir gets the property not as a fideicommissary but as a simple substitute, to give effect to the testator’s will. But if the second heir or fideicommissary dies ahead of the testator, there is no fideicommissary substitution because both heirs must be living at the time of the testator’s death, since both inherit from the testator. However, if after the testator’s death, the fideicommissary dies ahead of the fiduciary, the right of fideicommissary (or second heir) passes to his heirs (Art. 866).

b) If the fiduciary registers the property in his name without the fideicommissary substitution, innocent parties are protected. However, if the property is unregistered, the buyer acquires only the seller’s right; i.e., subject to the fideicommissary substitution.

c) The fideicommissary is a sort of naked owner; ownership is consolidated in him upon transmission of the property to him. d) The second heir can be, as stated above, a juridical person, provided there is only one transfer. e) The second heir, being an heir also of the testator, must be capacitated to succeed the testator, not the first heir or fiduciary. f) T instituted A as first heir and B as fideicommissary or second heir. A predeceases T. Will B inherit when T dies? Yes, not as a fideicommissary but as an ordinary substitute heir.

g) T instituted A as first heir and B, A’s brother, as fideicommissary or second heir. T died and his property passed on to A. Upon A’s death, will B get the property? No . The fideicommissary substitution is not valid because B is second degree from A. Property will go to A’s heirs, testate or intestate. h) T instituted A as first heir; A’s son A-1 as second heir; and A-1’s mother is third heir. Is this a valid fideicommissary substitution? As far as A and A-1 are concerned, yes. But as to A-1’s mother, no because she is not one degree from A; in fact, she may not even be related to A by blood. But she may still get the property from A-1 by testate or intestate succession.

Applies to the free portion; never to the legitime. Kinds of institution: a) With a condition : B is instituted provided he passes the 2004 bar exams b) With a term : B is instituted beginning 2003. c) For a certain purpose or cause ( Modal institution): A is given P30,000 to be spent for the interment of the testator. DISPOSITIONS WITH CONDITIONS OR TERMS

3. With Condition: a) Impossible or illegal conditions and those against good customs are deemed not imposed and do not prejudice the heir, even if the testator should provide otherwise (Art. 873). That is only the condition is void. b) An absolute condition not to marry is void for being against good morality and public policy. Hence, the disposition is deemed not subject to a condition and is valid. (Art. 874) c) Absolute condition not to remarry is also void as against morality and public policy, except: ( i ) When imposed on the widow and widower by a deceased spouse. If the condition is violated, the widow or widower gets only his/her legitime . Free portion goes to the intestate heirs of the deceased.( id.) (ii) When imposed on the widow/widower by the ascendants or descendants of the deceased spouse. ( id.)

d) Examples: ( i ) T instituted friend F provided he will never marry. F married after T’s death. F is still entitled to inherit from T because the condition is immoral. (ii) H instituted his wife as sole heir (there are no other compulsory heirs) on condition that when she becomes a widow, she would not remarry. Two years after H’s death, the widow remarried. The condition is valid as to the free portion. But the wife still gets her legitime. (iii) A instituted his friend B provided he does not marry C. The condition is valid because it is not an absolute prohibition.

e) Disposition captatoria : A disposition on condition that the heir shall make in his will a provision in favor of the testator or any other person. The disposition itself is void, not just the condition. So the heir gets nothing because the institution is a nullity. f) Potestative condition (Art. 876): The fulfillment depends solely on the heir and must be performed by him personally. ( i ) Must be fulfilled as soon as the heir learns of the testator’s death. (ii) When condition has already been complied with and cannot be complied with again, condition is deemed fulfilled (Art. 876). (iii) Substantial or constructive compliance is enough (that is, the heir tried his best).

g) Casual or mixed condition ( Art. 877): Casual – depends upon chance or the will of a third person. Mixed – depends partly on the will of the heir and partly upon chance or the will of a third person. Examples: That A becomes a lawyer. That C wins first prize in the lotto. That A wins the Miss Universe beauty contest. Rules: ( i ) Condition may be fulfilled before or after the death of the testator. (ii) If already complied with and testator was not aware of the compliance, already deemed fulfilled. (iii) If already complied with and testator was aware of the compliance, deemed fulfilled if cannot be complied with again. Ex: That B becomes a lawyer. (iv) Again, substantial or constructive compliance is sufficient.

h) Negative potestative condition: ( i ) A institutes B provided he stops smoking (ii) B gets the property upon giving security, and will have to return the property in case of contravention of condition, with fruits and interests. (Art. 879) i ) Positive potestative condition: ( i ) A institutes B provided the latter learns how to play the piano. (ii) Upon A’s death, the property is placed under administration until the condition is fulfilled (Art. 880).

4. With Term a) Distinguished from condition A term is sure to happen. It merely suspends the demandability of a right. Ex. I give this property to X upon his mother’s death. (The mother will surely die.) A condition not only suspends the demandability , but even the acquisition of the right itself. It may or may not happen. Ex. I give this property to X if his mother dies of cancer.

b) In a disposition with a term, the heir acquires the right pending arrival of the term, and transmits the right to his heirs even before the arrival of the term (Art. 878, NCC). This is because a term is sure to happen. But if the instituted heir under a suspensive condition dies before the condition is fulfilled, he transmits nothing to his heirs because he never inherited from the testator. c) Kinds of terms: ( i ) Suspensive : Beginning 2003 (ii) Resolutory : Effects cease on December 1, 2003 (iii) Ex die in diem : From a certain day to a certain day, like from year 2002 to 2010.

d) Rules to follow: ( i ) T institutes his brother A for 5 years after T’s death. - A enters possession at once, which will end after 5 years. (ii) T institutes his brother A 5 years from his (T’s) death. - This is a suspensive term. The legal heirs enter into possession of the property in the meantime before arrival of term after giving security (Art. 885). A gets the property only after 5 years from testator’s death. (iii) T institutes B subject to a suspensive condition: If T dies, the property shall be placed under administration until the condition is fulfilled (Art. 880). - In suspensive term, the legal heirs enter into the possession of the property before term arrives, subject to giving security (Art 885). - If the legal heirs do not give security, place the property under administration (Art. 880).

(iv) A institutes B upon the death of C. (aa) Legal heirs possess property until the term arrives after giving security. If security is not given, place the property under administration. (bb) Instituted heir who dies before the arrival of the term transmits his rights to his own heirs. This is because the term is sure to come.

5. Modal Institution May be a statement of the object of the institution, or the application of the property for a certain purpose, or a charge imposed on the heir or legatee/devisee. a) Examples: ( i ) I institute A to my estate for his legal education. (ii) I institute A as my heir provided he devotes 50% of the income of the property to the establishment of a professional chair in Civil Law at the San Sebastian College of Law. b) Rules to follow: ( i ) The inheritance can be immediately demanded provided the heir gives security for compliance with the wishes of testator. (Art. 882).

(ii) Heir must return property with fruits and interests if obligation is disregarded (Art.882) ( i ) Distinguished from suspensive condition in that if suspensive condition is not yet fulfilled, property is not demandable even if security is offered. In modal institution, property is immediately demandable provided heir gives security for compliance with wishes of testator.

Definition of legitime: That part of the testator’s estate which he cannot dispose of because the law has reserved it for his compulsory heirs (Art.886, NCC). 2. Who are compulsory heirs? a) Primary compulsory heirs ( i ) Legitimate children and their legitimate descendants (ii) Surviving spouse (iii) Illegitimate children and their descendants, whether legitimate or illegitimate. LEGITIME

b) Secondary compulsory heirs ( i ) Legitimate parents and other legitimate ascendants (they inherit only in default of legitimate children and their descendants). (ii) Illegitimate parents (other illegitimate ascendants not included). They inherit only in default of legitimate and illegitimate children and their respective descendants.

3. Remember: a) Purpose of legitime is to protect the surviving spouse and the children from the unjustified anger or thoughtlessness of the testator. b) If there are no compulsory heirs, there can be no legitime . c) The testator cannot deprive the compulsory heirs of their legitime except through valid disinheritance. d) The testator cannot impose any conditions, substitutions, or burdens on the legitime except the condition that the estate will not be divided for a period not exceeding 20 years (Art. 1083) e) Donations intervivos are to be reduced if found inofficious (i.e., if they exceed the free portion) f) Compulsory heirs are not compelled to accept their legitime .

4. Legitimes of compulsory heirs a) Legitimate children – ½ of estate divided by number of children b) One legitimate child – still ½ c) One legitimate child and surviving spouse – Child – ½ ; Surviving spouse – ¼ d) Two or more legitimate children and surviving spouse – Legitimate children – ½ ; Surviving spouse – same share as one legitimate child e) Two or more legitimate children, surviving spouse, illegitimate children – Legitimate children – ½ ; Surviving Spouse – same share as one legitimate child (to be taken from the free portion); Illegitimate children – Each gets ½ of share of one legitimate child (Also to be taken from the free portion).

f) Legitimate parents and surviving spouse – ½, ¼ g) Surviving spouse and illegitimate children – Surviving spouse -1/3 ; Illegitimate children – 1/3 h) Legitimate parents, surviving spouse, illegitimate children- Legitimate parents – ½ (even if there is only one parent) ; Surviving Spouse – 1/8 ; Illegitimate children – ¼ i ) Legitimate parents only – ½ j) Illegitimate children only – ½ k) Surviving spouse only – ½, but if marriage was in articulo mortis and testator died within 3 months from marriage, 1/3; if parties, however had lived together for more than 5years before their marriage, ½.

l) Legitimate parents and illegitimate children – Legitimate parents – ½ ; Illegitimate children – ¼ m) Illegitimate parents only – ½ n) Illegitimate parents and surviving spouse – Illegitimate parents – ¼; Surviving Spouse – ¼ o) Illegitimate children only – ½ p) Illegitimate parents and illegitimate children – Parents – none ; Illegitimate children – 1/2

Remember also: a) Legitimate children always get ½ of the estate as legitime. And this is true even if there is only one child. b) Legitimate parents as secondary compulsory heirs also always get ½ of the estate as their legitime, and this is true even if there is only one legitimate parent. c) There is no representation in the ascending line. d) The legitime of the surviving spouse must be paid first out of the free portion; then give the illegitimate children their legitime. Therefore, if there are many illegitimate children, each of them might not get ½ of the share of a legitimate child. e) There is also representation of illegitimate children f) Illegitimate children do not inherit abintestato from legitime children and relatives of their illegitime father and mother because of the barrier, and vice versa . (Art. 992)

g) Brothers and sisters are not compulsory heirs, but they are intestate heirs. So, a testator can give his entire estate to strangers in his will, excluding his brothers and sisters. h) To determine the legitime, get the value of the property, minus debts, plus the value of donations subject to collation (Art. 908) i ) Donations to children shall be charged to their legitime; donations to strangers shall be charged to the free portion; if they are inofficious , they shall be reduced (Art. 909) j) The legitime of legitimate parents shall be divided between them equally. If one parent is dead, the other gets the whole legitime. k) 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).

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

Example: MOTHER ( origin) FATHER ( Reservoir or reservista ) CHILD ( Propositus ) (Transmission by gratuitous title) (Transmission by operation of law, i.e., by legitime or by intestate succession)

Explanation: Mother gave land to child by donation or in her will; i.e., by gratuitous title. Child died with no descendant and no will, so father inherited land intestate. Or child gave land to father as the latter’s legitimate in a will. Father owns land only until he dies. Land is reserved by law in favor of the relatives of the mother within the 3 rd degree from the child, who are the reservees or reservatarios . The reservees or reservatarios within the 3 rd degree from the child are any of the following: ( i ) Maternal half-brothers and half-sisters (second degree) (ii) Maternal half-nephews and half-nieces (third degree) (iii) Maternal grandparents (second degree) (iv) Maternal great grandparents (third degree) (v) Maternal aunts and uncles (third degree)

Reservatarios or Reservees (Relatives of the propositus within the 3 rd degree in the maternal line.) MGGP MGP MA MU Mother (Origin) MHS MHB Child ( Propositus ) MHN MHN 3 3 3 3 3 2 2 2 1

e) Among the reservees , those in the direct line are preferred as against the collateral line. Thus, a grandparent is preferred to a half-brother or sister. Also, the nearer excludes the farther. f) Maternal half-nephews and half-nieces are preferred to maternal aunts and uncles because they are also intestate heirs of the propositus , while aunts and uncles are not. g) Children of first cousins are not reservees , because they are already the 6 th degree from the propositus .

Other rules to remember: Between the brother of the father and brother of the mother, the property goes to the latter by reserva troncal . Suppose the mother dies intestate, leaving a car to her child. Later, the child dies intestate with no wife and no children. The father inherits the car by intestate succession. This car is reservable . The propositus is the owner of the above car while alive, so he can defeat the reserva by selling the car. There is no reserva troncal if the child gives the property to his father in a will out of the free portion, because that is not by operation of law. The reservista is a full owner of the property subject to a resolutory condition; i.e., upon his death, the property goes to the reservees The property cannot be used to pay the debts of the reservista’s estate because it is not part of his estate after his death. The reservista must inventory the property and must furnish a bond, mortgage or any other security to secure the delivery of the property or its value to the reservees .

h) The reservista is liable for all deterioration imputable to his fault or negligence. i ) Land may be registered as subject to reserva troncal , and if there is such annotation in the title, security is not necessary. j) If the property is personal, the reservista may sell, donate, or pledge the property, but his estate must reimburse the reservees the value of the property. k) If the property is land, the reservista must annotate the reserva troncal within 90 days from the time he accepts the inheritance (when there is no case filed in court) or within 90 days from the time it is awarded to him by the court (Arts. 199 and 191, Spanish Mortgage Law). The reservees can judicially demand the annotation. l) The reservees inherit the property from the propositus , not from the reservista . They are conditional heirs of the propositus . m) There is representation in reserva troncal , but the representative must also be within the 3 rd degree from the propositus (like nephews and nieces)

n) Proceeds of insurance given to the beneficiary are not subject to reserva troncal because this is not a donation o) If the mother gives a sweepstakes ticket to her son and the ticket wins later, the prize is inherited by the father, there is no reserva troncal because the prize came from the PCSO, not from the mother. p) Prescription extinguishes the reserva troncal (30 years for real property, 8 years for personal property) q) If the property subject to reserva troncal is expropriated , the reserva continues on the indemnity. r) If the property is insured and later destroyed, the reserva continues on the insurance proceeds. s) The purpose of the reserva troncal is to keep the property in the family to which it belongs ( Velayo Bernardo v. Siojo , 58 Phil. 89) t) Reserve troncal exists only in the legitimate family; no reserva exists in favor of illegitimate relatives.

u) Reserva maxima and reserva minima : Explanation: A son received from his mother P20,000 under her will. He also had properties of his own worth P40,000. When the son died without a spouse and without children, he left all his estate (worth P60,000) to his father in his will. How much us the reservable property? The legitime of the father in his son’s estate is P30,000 (½ of P60,000). Under the principle of reserva maxima, since the P20,000 legitime of P30,000, received by the son from his mother can be included or contained in his legitime of P30,000, said P20,000 is reservable . But under the principle of reserva minima, only ½ of P20,000 is reservable , on the theory that only ½ of the P20,000 received by the son from his mother went to the father by operation of law.

The reserva maxima is more in consonance with the original objective of reserva troncal , because it subjects to the reservation the largest amount possible. But the reserva minima is more just and more equitable, more in line with the philosophy of the law of socialization of property, and favored by Manresa and Scaevola . v) How is the reserva extinguished? ( i ) Death of the reservor or reservista (ii) Death of all the would-be reservees ahead of the reservor (iii) Accidental loss of the reservable property (iv) Prescription (runs from the death of the reservor ) – 30 years for real property, 8 years for personal property .

Meaning of disinheritance: Art. 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. (NCC) 2. Purpose or object of disinheritance: a) To maintain good order and discipline within the family ( Castan ). b) To punish the ungrateful, the culpable, the cruel, the unworthy heir, the unfaithful spouse. DISINHERITANCE

3. Requisites of a valid disinheritance: a) Disinherited heir must be clearly identified. b) Must be for a cause provided for by law (Art.915). c) Must be express, stating the cause in the will. (Art. 916). d) Cause must be legal, true, and existing (Art. 916). e) Must be unconditional. f) Can’t be partial; must be total or complete. If partial, disinheritance is not valid, and the heir gets his or her legitime .

4. Remember also: a) Can be made only in a will. There is no disinheritance in legal succession. b) Includes not only the legitime, but also the free portion. c) If will is revoked, disinheritance becomes ineffective. d) Only compulsory heirs can be disinherited, so brothers and sisters cannot be the subject of disinheritance. e) Reconciliation renders disinheritance ineffective. f) In preterition, the whole institution of heirs is annulled. In invalid disinheritance, the disinherited heir still gets his legitime. g) Heirs of the disinherited heir represent the latter in the legitime, but the disinherited heir shall not have the usufruct of the property constituting the legitime. (Art. 923)

5. Problems: a) T has 5 children. He made a will with only one provision, i.e., disinheriting one of his children for living a disgraceful life. If T dies with an estate of P100,000, how would his estate be divided? The disinherited child is not entitled to his legitime and also a share in the estate as an intestate heir, since intestacy is only the presumed will of the deceased. Divide the estate among the other four children equally or P25,000 each. b) Suppose in Problem (a), T also instituted is 4 other children as heirs in his will. Divide the P100,000 estate. Since the disinherited heir loses not only his legitime but any share in the free portion, again divide the P100,000 estate equally among the 4 instituted children.

c) T has 3 daughters. He made a will disinheriting one of them for living a disgraceful life, and gave his entire estate of P300,000 to his two other daughters. Divide the estate. The disinheritance is valid, so just divide the entire estate equally between the two daughters who were instituted as heirs. d) Suppose in Problem (c), the ground for disinheritance is that the daughter married a man that the father does not like. Divide the estate. The disinheritance is not valid because the cause is not valid. So the disinherited daughter gets her legitime of P50,000 (1/3 of P150,000). Then divide the free daughters, which they get as instituted heirs in addition to their legitime of P50,00 each.

e) T’s will reads: “I disinherit my son A if he makes an attempt against my life.” Is the disinheritance valid” No, because it is conditional. And this is true even if A actually makes an attempt against his father’s life after the execution of the will. But if A is convicted, he will not also inherit from T, not because of the attempted disinheritance, but because he is incapacitated under Art. 1032 (2). f) T disinherited his child C in his will, providing that C would only get ½ of his rightful share in T’s estate. Is the disinheritance valid? No, because it is partial. So C still gets his legitime.

6. Grounds for disinheritance Of children, leg. or illegitimate (Art. 919) Of parents, leg. or illegitimate (Art. 920) Of spouse (Art. 921) 1. Conviction of attempt against life of testator, his spouse, descendant or ascendant 1. -Same- 1. -Same- 2. Has accused testator of a crime punishable by 6 yrs. Or more if found to be groundless 2. -Same- 2. -Same- 3. Conviction of adultery or concubinage with testator’s spouse 3. -Same- 3. When he/she has given around for legal separation (even if no case is filed).

4. Refusal to support testator w/o justifiable cause 4. Refusal to support children and descendants w/o justifiable cause 4. Unjustified refusal to support children or other spouse 5. Maltreatment of testator by word or deed (conviction not necessary) 5. Attempt against life of other parent, unless there is reconciliation 5. When spouse has given ground for loss of parental authority 6. Leading dishonorable or disgraceful life 6. Loss of parental authority for causes specified by law 6. Same as No. 7 in case of parents 7. Conviction of crime punishable by civil interdiction 7. Caused testator to make a will or to change one through fraud, intimidation, or undue influence 8. Abandonment of children and descendants and inducing daughters to live corrupt or immoral lives or attempted against their virtue. Note: Maltreatment of child by parent is not ground for disinheriting parent because it is part of parental discipline

7. Reconciliation between testator and disinherited heir: a) Subsequent reconciliation deprives the testator of the right to disinherit, and any disinheritance already made becomes ineffectual. b) Reconciliation needs no special form. It can be express or implied. c) If ground for disinheritance is also a ground for unworthiness, like abandonment of children or an attempt against the life of the testator, the heir cannot also inherit. But reconciliation extinguishes unworthiness as an incapacity, because incapacity is only the presumed will of the testator.

8. Ineffective disinheritance: a) No cause for disinheritance is stated b) The cause is false c) The cause is not legal d) Subsequent reconciliation between testator and disinherited heir results in ineffective disinheritance 9. How disinheritance is revoked: a) By subsequent reconciliation between testator and disinherited heir, b) By the making of a new will making the disinherited heir an instituted heir.

Legacy and devise distinguished a) A legacy is gift of personal property given in a will. A devise is a gift of real property given in a will. b) A legacy is “ bequeathed” ; while a devise is “ devised”. LEGACIES AND DEVISEES

2. Who has the duty to give the legacies and devises in a will. a) If no one is charged with this duty in the will, the estate must give them, as represented by the executor or administrator with a will annexed. b) Testator may impose the duty on the compulsory heirs as long as their legitimes are not impaired; i.e., legacies/devises cannot be beyond the free portion (Art. 925). Ex: “I institute my child C as heir, but he must give P10,000 to X”. c) A legatee or devisee can also be charged with the duty of giving a sub-legacy or sub-devise but only to the extent of the value of the legacy or devise given him (Art. 925). Ex: “I give my NISSAN car to X, but he must give Y P500.”

3. Indeterminate Legacy (Art. 928) a) Example is a legacy of an indeterminate or generic car. b) Heir bound to deliver is liable for eviction c) If legacy is a specific, determinate car, heir is not liable for eviction 4. Legacy or devise of a thing belonging to another. (Art. 930) a) Void, if the testator erroneously believed that he was the owner of the thing when in reality, he is not the owner. b) But if the thing subsequently becomes his, the disposition is valid. c) If the testator orders the heir, legatee, or devisee to acquire the property from another, the latter must do so; If the owner refuses to sell or demands an excessive price, he is obliged only to give the just value of the thing (Art. 931).

5. Legacy or devise of thing already belonging to the legatee or devisee (Art.932): a) If the thing already belongs to the legatee or devisee at the time of the execution of the will, the legacy or devise is ineffective. b) If the thing is subject to an encumbrance or interest of another person, the legacy or devise is valid only as to the interest or encumbrance. c) If thing bequeathed belonged to the legatee or devisee, legacy or devise is without effect even if legatee or devisee subsequently alienates the thing (Art. 933) d) If after alienating the thing, the legatee or devisee subsequently reacquires it gratuitously, the legacy or devise is still void. But if he reacquires it by onerous title, he is entitled to reimbursement of what he had paid (Art. 933)

6. Legacy of a thing pledged or mortgaged to secure a debt (Art. 934): a) If pledged or mortgaged before the execution of the will, the estate must pay the debt. b) If pledged or mortgaged after the execution of the will, still the estate must pay the debt c) Other charges like easements, usufructs, leases which are real rights, pass to the legatee or devisee.

7. Legacy of credit, or remission or release of a debt (Art. 935): a) Effective only as regards the credit or debt existing at the time of the testator’s death. b) The legacy comprises all interests due to the testator at the time of his death. c) Legacy lapses if the testator later brings action against the debtor. d) If generic, comprises all credits/debts existing at the time of execution of the will (Art. 937). 8. Legacy to the debtor of thing pledged by him (Art. 936) a) Only the pledge is extinguished; the debt remains. b) Can also be applied to mortgage, antichresis , or any other security.

9. Legacy or devise to a creditor (Art. 938): a) Shall not be applied to his credit, or to what the testator owes him, unless the testator so declares b) In the latter case, the creditor can still collect the excess, if any, of the credit or of the legacy or devise 10. If the testator orders the payment of a debt (Art. 939): a) If he does not really owe the alleged debt, the disposition is void. b) If the order is to pay more than the debt, the excess is not due c) This is without prejudice to the payment of natural obligations, like a prescribed debt

11. Alternative legacies and devises (Art. 940): a) The choice is with heir, or the executor or administrator b) If the heir, legatee, or devisee who is bound to give the gift dies, the right passes to the heirs c) The choice, once made, is irrevocable d) Apply rules on obligations in general

12. Legacy of generic personal property or indeterminate real property (Art. 941): a) Legacy of generic personal property is valid even if there are no things of the same kind in the estate b) But devise of indeterminate real property is valid only if there are immovable property of the same kind in the estate c) The right to choose the legacy belongs to the executor or administrator who shall deliver a thing which is neither of inferior or superior quality d) If the choice is given to the heir, legatee, or devisee, he may choose whatever he prefers (need not be of medium quality) (Art. 942) e) If the heir, legatee, or devisee cannot make the choice, the right passes to his heirs (Art. 943)

13. Legacy of education (Art. 944): a) Lasts until the legatee is of age, or beyond the age of majority in order that he may finish some professional, vocational, or general course, provided he pursues his course diligently. b) If the testator did not fix the amount, it is fixed in accordance with the social standing and circumstances of the legatee and the value of the estate. 14. Legacy of support (Art. 944): a) It lasts during the lifetime of the legatee b) If the testator used to give the legatee a sum of money for support, give same amount, unless it is markedly disproportionate to the estate c) If the testator did not fix the amount, consider the social standing and circumstances of the legatee and the value of the estate.

15. When does the legatee or devisee acquire ownership of the gift? (Art. 947): a) If the legacy or devise is pure and simple, from the death of the testator, and he transmits it to his heirs (Art. 947) b) If gift is specific or determinate, also upon the death of the testator, and gift includes growing fruits, unborn offsprings and uncollected income, but not income due before the testator’s death (Art. 948). c) If the gift is specific or determinate, the risk of loss or deterioration is on the legatee or devisee, as well as any increase or improvement d) If the gift is generic, fruits and interests from the time of death of the testator pertain to the legatee or devisee if the testator expressly ordered the same (Art. 949),

16. Order of preference if the estate is not sufficient to cover all legacies and devises (Art.950) : a) Remuneratory . ( i ) Those which testator gives because of his moral obligation to compensate certain persons for services which do not constitute recoverable debts, like legacy to one who saved the life of the testator. (ii) Entitled to preference because they are moral obligations of the testator. (iii) Remuneratory nature can be proven by extrinsic evidence b) Those declared by the testator as preferential c) For support d) For education e) Legacy or devise of specific, determinate thing in the estate f) Others, pro rata

17. How legacy or devise is delivered (Art. 951): a) With all accessions and accessories and in the condition it was at the time of the testator’s death b) Deliver the very thing given (if specific or determinate), not its value c) Legacies of money must be paid in cash d) Expenses of delivery are for the account of the heir or estate, but without affecting the heir’s legitime.

18. Acceptance of legacy or devise: a) Gift cannot be accepted in part if it is onerous. (Art. 954) b) Heirs of legatee or devisee can accept the gift if the legatee or devisee dies after the death of the testator, not before (id.) c) Legacy or devise not accepted shall be merged into the mass of the estate, except in substitution or accretion (Art. 956) d) If a compulsory heir is also a legatee or devisee, he can accept or waive his inheritance or the gift, or waive his inheritance or the gift, or waive both (Art. 955). When does legacy or devise become of no effect (Art. 957): a) If the testator transforms the thing such that it does not retain its original form or denomination b) If the testator alienates the thing by any title or for any cause. Reacquisition of the thing by the testator does not make the legacy or devise valid, unless it is effected by right of repurchase c) If the thing is totally lost during the lifetime or after the death of the testator

20. Mistake as to name of thing given (Art. 958): a) Of no consequence, if thing can be identified b) Ex: “I give X my only car, a NISSAN 93”. This is effective even if the car is a NISSAN 92 21. Disposition in favor of testator’s relatives (Art. 959): a) Limited to 5 th degree relatives of the testator b) Nearer excludes the farther c) No preference as to lines. Grandson and sister are both relatives within second degree. What is important is nearness of degree d) Does not apply to relatives of the wife

Legal succession defined: That kind of succession prescribed by law (and presumed by it to be the desire of the deceased) which takes place when the expressed will of the decedent has not been set down in a will. 2. Basis of legal succession : Because unexpected death may come to any person, the law presumes what would have been his last wishes had he executed a will while still alive, taking into consideration his love and affection for those closest to him LEGAL SUCCESSION

3. When does legal succession take place? (Art. 960, NCC): a) When a person dies without a will or a void will, or a will that has lost its validity (like a revoked will); b) When the will does not institute an heir or does not dispose of all the properties of the testator (partial intestacy); c) If a suspensive condition attached to the institution of heir in a will does not happen; d) If the heir predeceases the testator, or is incapacitated to inherit, or repudiates the inheritance, and there is no substitution or accretion; e) When the heir is incapable of succeeding’ f) Upon the expiration of a resolutory term attached to the institution of heir, g) Upon fulfillment a resolutory condition attached to the institution of heir, rendering the will ineffective.

Ex: A has brother B, his only relative. A makes a will giving a certain house to C provided he passes the 2002 bar examinations; and giving a certain car to D, with E as D’s substitute in case of predecease. D dies in 1997. A dies in 1998. C flunks the 2002 bar exams. - Who gets the house and the car? Ans. The house goes to the brother B as intestate heir; The car goes to E as the substitute of D.

4. Rules to remember in legal or intestate succession: a) An intestate heir is not necessarily a compulsory heir (like a brother or sister) b) Relatives nearer or nearest in degree exclude the more distant ones, saving the right of representation when proper (Art. 962) c) Relatives in the same degree inherit in equal shares, subject to the rule on full or half-blood brothers and sisters (Art. 1006), and the division between the paternal and maternal lines (Art. 987) d) Intestate shares are either equal or more than the legitime (like the case of the surviving spouse) e) There is no representation in the ascending line (Art. 972) f) There is representation in the descending line, whether full or half-blood descendants. (Art. 972) g) There is also representation in the illegitimate line (Art. 989)

h) In the collateral line, there is representation only in favor of children of brothers and sisters, whether full or half-blood (Art. 972). ( i ) Grandchildren of brothers and sisters cannot represent. (ii) Children of first cousins cannot represent; but first cousins represent because they are the children of brothers and sisters (iii) Representation in the collateral line is true only in legal succession, because collaterals are not compulsory heirs, and a voluntary heir cannot be represented.

i ) In partial intestacy, legacies and devisees are charged to the free portion proportionately against the heirs who are given more than their legitimes , but in no case shall the legitimes be impaired. j) Grandchildren always inherit by representation whether they concur with the children or not. They inherit in their own right only when all the children renounce, and they share equally or per capita. (Art. 982).

k) Nephews and nieces inherit either by representation or in their own right. (Art. 1005). ( i ) They inherit by right of representation when they concur with aunts and uncles, who divide per capita, while nephews/nieces divide per stirpes . ( Calisterio v. Calisterio , GR 136467, April 6, 2000) (ii) They inherit in their own right when they do not concur with aunts and uncles; in this case, they divide per capita or equally (Art. 975). l) Illegitimate children do not inherit abintestato from the legitimate children and relatives of his illegitimate father or mother; nor do said legitimate children and relatives inherit from the illegitimate child(Art. 992)

m) There is also reserva troncal in legal succession, because legal succession is by operation of law n) A renouncer can represent but cannot be represented (Arts. 976-977).

5. Other rules to remember: a) If a man dies survived by a brother and a cousin, the brother excludes the cousin. b) If the deceased has two brothers, they get equal shares (Art. 1004) c) If a man is survived by a grandfather and a brother (both 2 degrees), the grandfather inherits alone because the direct line is preferred to the collateral line. d) Half-sister excludes nephews and nieces.

e) An aunt is excluded by nephews and nieces although both are 4 th degrees relations, because nephews and nieces are 4 th in the order of legal succession, while an aunt is only 5 th . f) In giving the shares of illegitimate children, the shares of the legitimate children should not be impaired (1/2 of the estate). If there are many illegitimate children, give what corresponds to the legitime of the legitimate children first (1/2 of the estate), then divide the rest among the illegitimate children. g) If there are relatives of the same degree and some repudiate or are incapacitated, their shares accrue to the others of the same degree, save the right of representation (Art. 968)

A, B, C, and D are brothers. If their parents both died, leaving an estate of P100,000, and A repudiates his share while B turns out to be incapacitated, the share of A accrues to C and D, because there is no representation in repudiation, while the share of B goes to his child B-1 by representation. So B-1 gets P25,000, while C and D gets P37,500 each , because the share of A accrued to them. Example: Parents (Both dead) A B C D A-1 B-1

h) If in the above example, all the brothers and sisters repudiate, the next in line (nephews and nieces) get the estate in their own right per capita, not by representation because again, there is no representation in repudiation. So, if A, B, C, and D all repudiate, the P100,000 estate of their parents will go to A-1 and B-1, which they will divide per capita , or P50,000 each. i ) If nephews and nieces alone survive, they inherit in equal shares (Art. 975).

6. The Sharing in Intestate Succession: a) Legitimate children alone – All b) Legitimate children – Surviving spouse – SS gets the same share as one legitimate child. If there is only one child, they divide ½, ½. c) Legitimate children and illegitimate children – Proportion of 10-5, provided the legitimes of the legitimate children are not impaired. So, if there are only 2 legitimate children and 10 illegitimate children, since the legitime of the 2 legitimate children is ½ of the estate, they get ½ of the estate, while the illegitimate children will just have to divide the other half equally among themselves. Thus, if the parent’s estate is P100,000 the two legitimate children get P50,000 or P25,000 each, while the ten illegitimate children will divide the other P50,000 equally among themselves or only P5,000 each.

d) Legitimate children – illegitimate children – s urviving spouse: Legitimate children and illegitimate children – Proportion of 10-5. Surviving Spouse – Same share as one legitimate child, to be taken from the other half of the estate so that the share of the legitimate children of ½ of the estate will not be impaired. So, if there are many illegitimate children, they will again have to share what remains of the other half of the estate after giving the share of the surviving spouse, so that it can well happen that each illegitimate child cannot get ½ of the share of a legitimate child.

e) One legitimate child – surviving spouse – illegitimate children: One legitimate child – ½ Surviving spouse – ¼ Illegitimate children – ¼ f) Illegitimate children alone – All g) Illegitimate children and surviving spouse – ½, ½ h) Surviving spouse alone – All i ) Legitimate parents alone – All j) Legitimate parents, surviving spouse, illegitimate children – ½, ¼, ¼ Remember that when there are legitimate children, ascendants are excluded.

k) Legitimate parents and illegitimate children – ½, ½ l) Legitimate parents and surviving spouse – ½, ½ m) Surviving spouse and illegitimate parents – ½, ½ n) Illegitimate parents alone –All o) Surviving spouse, brothers and sisters – ½, ½ p) Brothers and sisters, nephews and nieces – All q) Other collaterals – All ( i ) Nearer excludes the farther (ii) Does not extend beyond 5 th degree (iii) A half-sister excludes all other relatives

7. Intestate succession in adoption: a) In the intestate succession of the adopter, “the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation ” (Art. 18, Rep. Act 8552) b) In the intestate succession of the adopted child: ( i ) Again apply Art. 18, Rep. Act. 8552. (ii) If the adopter dies ahead of the adopted child, the parents and relatives by consanguinity of the adopted child are his legal heirs. (Art.984, NCC) (iii) If only the parents by nature of the adopted child survive, they get all.

c) In the intestate succession of the parents by nature and other blood relatives of the adopted child, the adopted child remains an intestate heir (Art. 189, par. (3), Family Code). d) If the adopter predeceases the adopted child, the latter cannot represent the former in the inheritance from the legitimate relatives of the adopter, because the filiation created by fiction of law is exclusively between the adopter and the adopted.

Representation defined: 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 could have inherited.” (Art. 970, NCC) REPRESENTATION

2. When does representation exist: a) In testate succcession : ( i ) Exists in predecease, incapacity, and disinheritance (ii) Covers only the legitime, which goes to the representative by operation of law. (iii) There is no right to represent a voluntary heir. b) In intestate succession: ( i ) Exists also in predecease and incapacity (ii) Covers all that the person represented could have inherited.

3. Rules to remember: a) An adopted child cannot represent. Neither may an adopted child be represented. b) The representative succeeds not the person represented but the one whom the person represented would have succeeded (Art. 971) ( i ) Since the representative does not succeed the person represented, he is not liable for the debts of the latter. (ii) Because the property inherited by the representative does not come from the person represented, if under the will of the latter, the representative is given less than the other representatives, the representative still gets an equal share in the property of the person whom the person represented would have succeeded.

Ex: T has 2 children A and B. A has two children A-1 and A-2. If A dies giving 2/3 of his estate to A-1 and 1/3 to A-2, if later, T dies, A-1 and A-2 will get equal shares in A’s inheritance from T or as A’s representatives. c) The right of representation takes place only in the direct descending line: never in the ascending line (Art. 972) d) In the collateral line representation takes place only in favor of children of brothers and sisters, whether full or half-blood (Art. 972, sec par.). Hence, grandnephews and grandnieces do not represent.

e) The representative must himself be capable of succeeding the decedent (Art. 973). Ex: A has a child B who has a child B-1. If B disinherits B-1 in his will, B-1 can still represent B in the succession of A; because B-1 succeeds A, not B. f) The representative must at least be conceived at the time succession opens g) When there is representation, the heirs inherit per stirpes , not per capita . (Art. 974) That is, all those in a group inherit in equal shares, because per stirpes means inheritance by group.

h) A person may represent him whose inheritance he has renounced (Art. 976) i ) A renouncer may represent him whose inheritance he has renounced. (Art. 976,977) j) Illegitimate children of legitimate children cannot represent because of the barrier, but illegitimate children of illegitimates can represent. k) When nephews and nieces survive with uncles or aunts, they inherit by representation. If they alone survive, they inherit in equal portions or per capita (Art. 975) ( i ) A died intestate leaving an estate worth P24,000. He is survived by his wife W, his brother B, and nephews C-1 and C-2, sons of his deceased brother C. Divide A’s estate. W gets ½ or P12,000 B gets P6,000 (1/2 of the other P12,000) C-1 and C-2 get P3,000 each (They divide per stirpes the remaining P6,000)

(ii) Suppose in the above problem, B is also dead, survived by his son B-1. How should A’s estate be divided? W gets ½ or P12,000.00. Nephews B-1 and C-1, and C-2 divide the other P12,000 per capita because they alone survive, their parents being already dead and they have no surviving uncles or aunts.

Meaning of accretion: “A right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces, or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees”. (Art. 1015, NCC) ACCRETION

2. Reason for accretion: Based on the presumed will of the deceased that he prefers to give certain properties to certain individuals, rather than to his legal heirs. Thus, accretion is preferred to intestacy. 3. Requisites of accretion: a) Unity of object (the same inheritance, legacy, or devise) b) Plurality of subjects (two or more persons are called to the same property pro indiviso ) c) Vacant portion: Due to – ( i ) Repudiation (ii) Pre-decease (iii) Incapacity (iv) If a suspensive condition is not fulfilled (v) If a particular heir cannot be identified

4. Is there accretion in legal succession? - Yes. Art. 1018 provides that in legal succession, the share of the person who repudiates the inheritance always accrues to his co-heirs. - Art. 1018 applies to incapacity, without prejudice to representation (Manresa) - Art. 1018 does not speak of predecease, because here, there is no vacant portion; that is, the predeceased heir never had a chance to inherit. 5. Accretion among compulsory heirs takes place only when they are instituted to the free portion. If it is the legitime that is repudiated, other compulsory heirs take the share of the repudiating heir in their own right, not by accretion (Art.1021)

6. Accretion also takes place among devisees, legatees and usufructuaries under the same condition established for heirs. (Art. 1023) 7. Examples: a) A gives a particular car to X and Y in his will. If X repudiates, entire car goes to Y If X predeceases A, the car also goes to Y b) T gives the first floor of a house to X, and the second floor to Y. Accretion would not apply here, because the shares of X and Y have been earmarked. c) A gives ¼ of his money in the PNB to X and ¾ to Y. Accretion takes place even if the shares are not equal.

d) T left to his nephews A, B and C all his money at PNB at the time of his death. When T died, he had P30,000 at PNB. A, however, died before T, leaving a child A-1. Who gets the P30,000? - B and C get A’s share by accretion - A-1 does not inherit because there is no representation among voluntary heirs. e) T instituted his only cousin and the latter’s daughter as his only heirs. If the cousin turns out to be incapacitated, who gets his share, his daughter or T’s intestate heirs? - The daughter, by accretion.

f) A and B, brothers of T, are the latter’s only surviving relatives. T dies. ( i ) If A repudiates, B gets A’s share by accretion (ii) Suppose A has a child, his child cannot represent him because one who renounces cannot be represented (iii) If A is incapacitated instead of having repudiated his share, will his share accrue to B? - No, because A’s child gets A’s share by representation. In the collateral line, in intestacy, children of brothers or sisters represent. - If this is testacy, A’s child cannot represent because there is no representation among voluntary heirs, so A’s share will accrue to B.

8. Other cases: a) T institutes in his will his two legitimate children X and Y, and friend F, to his estate of P60,000. T dies. Divide his estate. X gets P15,000 (his legitime) plus P10,000 of the free portion. - Y gets the same share as X - F gets P10,000 b) T has two legitimate children A and B. In his will, he left his estate worth P100,000 to his two children A and B, ¼ each, and ½ to his friend F, who has a child F-1. - If F predeceases T, his child F-1 cannot represent him because he is a voluntary heir. So his share goes to A and B as intestate heirs (Art. 1022). - If B predeceases T, his share goes to A in the latter’s own right, not by accretion. So A gets his own legitime of P25,000 and B’s legitime of P25,000. F gets P50,000

c) T gave P10,000 deposited at PNB to friend F, and P10,000 deposited at PBC to friend F-1. No substitute was appointed. S, sister of T, was not given anything. If F repudiates, who gets his share? - There is no accretion here because the shares are earmarked. So S, sister, gets F’s share as sole intestate heir.

Applies to both testate and intestate succession Capacity to succeed is also called passive testamentary capacity: Kinds of incapacity: a) Absolute – cannot inherit from anybody b) Relative ( i ) Because of possible undue influence (Art. 1027) (ii) Because of public policy and morality (Art.1028 in relation to Art. 739) (iii) Because of unworthiness (Art. 1032) CAPACITY TO SUCCEED BY WILL OR BY INTESTACY

4. Absolute incapacity: a) Individuals, corporations, associations not permitted by law or their charter to inherit (Art. 1026, 1027 (6)). But all other corporations or entities (the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes) may inherit under a will (Art. 1026, first par.). b) A child not yet conceived, or abortive infants (Art. 1025)

5. Incapacity to succeed because of possible undue influence (Art. 1027): This incapacity does not include the legitime or intestacy , because heirs inherit by law. a) Priest who heard last confession or gave spiritual aid during last illness of decedent (Art. 1027, (1)). ( i ) Reason: To safeguard the heirs from the sinister and undue influence which may be exercised by a priest or minister over a dying man (ii) Undue influence is conclusively presumed, but can be cured by evidence that there was no undue influence (iii ) If the priest is a compulsory or intestate heir of the deceased, his legitime or intestate share is not included in the incapacity.

b) Relatives of the priest in (a) within the 4 th degree of consanguinity, or the church or organization to which such priest belongs (Art. 1027 (2)). c) Guardian with respect to testamentary dispositions of ward before approval of guardian’s final accounts (Art. 1027, (3)). ( i ) Except when guardian is an ascendant, descendant, brother, sister or spouse of the ward, in which case disposition is valid. (ii) Relatives of the guardian are not included in the incapacity

d) Attesting witness to decedent’s will or the spouse, parents or children of such witness, or anyone claiming under such witness, spouse, parents or children (Art. 1027 (4)). ( i ) Brother, sister, and grandchildren and other descendants are not included (ii) If there are more than three attesting witnesses, incapacity does not apply. (iii) The notary public who acknowledged the testator’s will is not disqualified. e) Physician, surgeon, nurse, health officer or druggist who took care of testator during his last illness (Art. 1027 (5)). ( i ) Relatives of the physician, etc. are not included (ii) The care of the testator must be continuing or regular, not an isolated service. (iii) Physician, etc. is not disqualified to inherit by intestacy because the law says “testator”, and intestacy because the law says “testator”, and intestacy takes place by operation of law. f) Individuals, associations and corporations not permitted by law to inherit (Art. 1027 (6)).

6. Incapacity by reason of public policy or morality (Art. 1028): This is the same as void donations in Art. 739 , NCC. a) Made between persons who were guilty of adultery or concubinage : ( i ) Criminal conviction not necessary; guilt can be proved civilly. (ii) Legacy or devise to a concubine of the testator in the latter’s will is void. b) Made between persons found guilty of the same criminal offense, in consideration thereof. Ex: A and B committed murder and were duly convicted. In A’s will, he gave B a legacy for cooperating with him in the murder. The murder is void.

c) Made to a public officer or his wife, descendants, and ascendants, by reason of his office ( i ) Example is a disposition in the will of an employee in favor of his superior so that he (the employee) can get a promotion. (ii) But if the disposition is made by a superior in favor of an employee, the disqualifications does not apply, unless morality is involved, like if the employee is the mistress of the superior officer.

7. Special dispositions: a) For prayers and pious works for the benefit of the soul of the testator, made in general terms (Art. 1029): ( i ) Application of disposition must not be specified; i.e., general (ii) Executor must deliver ½ to the church to which the testator belongs, and one-half to the State (iii) Action of executor must be with court approval. b) Disposition in favor of the poor in general (Art. 1030) ( i ) Limited to the poor in the domicile of the testator at the time of his death (ii) The following determines the distribution: (aa) Person appointed by the testator (bb) If no one is appointed by the testator, the executor determines;

(cc) If there is no executor, the municipal judge, mayor, and municipal treasurer, who shall decide by a majority of votes, subject to the approval by the RTC judge (iii) The above rules also apply even when the testator specifies the poor of a definite locality. c) Provision in favor of a disqualified person even in the guise of an onerous contract or made through an intermediary (Art. 1031) ( i ) Void (ii) Refers to absolute incapacity or incapacity by reason of possible undue influence or immorality (iii) Unworthiness is not included, since there can be condonation in unworthiness. Legacy in favor of a person disqualified by unworthiness is implied condonation .

8. Incapacity by reason of unworthiness (Art. 1032): a) Parents who have abandoned their children or induced them to lead immoral lives or attempted against their virtue (Art. 1032 (1)); ( i ) Applies to daughters and sons, and even grandchildren (ii) Attempt “against their virtue” does not need criminal conviction b) Any person convicted of an attempt against the life of the testator, his spouse, descendant, or ascendant (Art. 1032 (2)); ( i ) Since conviction is necessary, if testator dies before conviction, await final judgment (ii) An acquittal on reasonable doubt removes the incapacity. (iii) Heir not be convicted before testator’s death. If conviction comes after testator’s death, effect is retroactive. (iv) Pardon by the President does not erase the incapacity (v) If heir dies before final judgment, his heirs can still inherit because he ahs not been convicted, as long as testator dies ahead of him.

c) Any person who has accused the testator of a crime punishable by six years of imprisonment or more if accusation has been found groundless (Art. 1032, (3)): ( i ) Acquittal must be definite (ii) If acquittal is based on reasonable doubt, there is some ground for the accusation; hence, incapacity does not arise. d) Failure to report violent death of testator within one month (Art. 1032 (4)): ( i ) Of doubtful application now, since under present law, no one is really bound to make an accusation except the authorities concerned. (ii) Heir or legatee or devisee should be at least 21.

e) Conviction of adultery or concubinage with spouse of testator (Art. 1032 (5)): ( i ) Conviction by final judgment is necessary (ii) The guilty spouse is not included in this incapacity, but he or she cannot also inherit if there was already a decree of legal separation between testator and spouse (Art. 63 (4), Family Code).

f) Any person who causes testator to make a will or to change one by fraud, violence, intimidation, or undue influence (Art. 1032 (6)); g) Any person who by the same means mentioned in (f) prevents testator from making a will or from revoking one already made, or who supplants, conceals, or alters the latter’s will (Art. 1032 (7)); h) Any person who falsifies or forges a supposed will of the deceased (Art. 1032, (8)).

9. Condonation a) Cause of unworthiness is without effect if there is condonation (Art. 1033): ( i ) Implied condonation : If, having knowledge of the act of unworthiness, the testator gave the person concerned an inheritance, legacy, or devise (ii) Express condonation : If, not knowing of the act of unworthiness at the time of the execution of the will, but having known of the same subsequently, the testator condones it in writing, public or private. b) If implied condonation is made in a void will or revoked will, the incapacity remains.

10. When is capacity or incapacity to be judged (Art. 1034): a) Consider the same at the time of the death of the testator b) In the second, third and fifth paragraphs of Art. 1032, wait for final judgment. c) If the institution is conditional, consider the time of compliance or fulfillment of the condition. ( i ) Condition here is suspensive , not resolutory . (ii) If heir, legatee, or devisee disposition becomes inoperative d) Capacity to succeed is governed by the law of the nation of the decedent, whether succession is testate or intestate (Arts. 1039; 16, sec. par., NCC)

11. Prescriptive period for declaration of incapacity and recovery of property (Art. 1040): a) Within 5 years from the time incapacitated person took possession of property b) Anyone who has an interest in the succession (person who inherits in place of the incapacitated heir) may bring the action. 12. Representation in case of incapacity (Art. 1035): a) Representation of the incapacitated person by his children or descendants is only in the legitime because there is no right of representation with respect to the free portion b) But the incapacitated heir is excluded from the usufruct and administration of the property in question

13. Effects of acts of incapacitated heir, legatee, or devisee with respect to hereditary property: a) Alienations and acts of administration before the judicial order of exclusion are valid as to third persons who acted in good faith (Art. 1036) b) Co-heirs have, however, the right to recover damages from the incapacitated heir (id.). c) Incapacitated heir may demand indemnity for expenses for preservation of property, and may enforce credits due to him from the estate (Art. 1037) d) As to improvements introduced by incapacitated person, apply the rules on possession in good faith or bad faith e) Incapacitated person must return property together with its accessions (like the increase of the property by alluvium) (Art. 1038) f) Incapacitated person is liable for all fruits and rents received or could have been received through the exercise of due diligence (id.)

General Principles: a) Acceptance or repudiation is a purely voluntary and free act (Art. 1041, NCC) b) It is more usual to accept than to repudiate; hence, while acceptance may be presumed, repudiation requires formalities c) There can be partial acceptance and partial repudiation d) Even the legitime may be repudiated, because no one can be compelled to accept the generosity of another. e) The effects of acceptance or repudiation always retroact to the moment of death of the deceased (Art. 1042) f) No person may accept or repudiate an inheritance unless he is certain of: ( i ) The death of the testator (ii) His right to the inheritance (Art. 1043) g) If an heir dies without having accepted or repudiated, his right shall be transmitted to his heirs (Art. 1053) ACCEPTANCE AND REPUDIATION OF INHERITANCE

h) If several heirs are called to the same inheritance, some may accept and others may repudiate (Art. 1504) i ) If a person who is called to the same inheritance by will and ab intestato repudiates the inheritance in his capacity as testamentary heir, the repudiation includes his capacity as intestate heir (Art. 1055) - If the heir repudiates the inheritance as intestate heir without knowledge that he has been named as testamentary heir, he may still accept as testamentary heir (id.). j) Acceptance or repudiation, once made, is irrevocable and cannot be impugned except for causes that vitiate consent, or when an unknown will appears (Art. 1056)

2. Forms of acceptance: a) Express acceptance: Public or private document (Art. 1049) b) Implied acceptance ( i ) Results from acts by which intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir (Art. 1049) (ii) Acts of mere preservation or provisional administration do not imply acceptance (id.) (iii) Examples of implies acceptance (Art. 1050) (aa) If heir sells, donates, or assigns right to a stranger, or to his co-heirs or any of them (bb) If heir renounces right, even gratuitously, for the benefit of one or more of his co-heirs (cc) If heir renounces right for a price in favor of all his co-heirs indiscriminately; but if renunciation is gratuitous and co-heirs in whose favor renunciation is made would get right by accretion, inheritance is not deemed accepted.

3. Who may accept or repudiate: a) Any person who has free disposal of his property (Art. 1044) b) Minors and incapacitated persons: ( i ) Acceptance may be made by parents or guardians (id.). (ii) Repudiation by parents or guardian must be with judicial authorization (id) c) Deafmutes (Art. 1048); ( i ) If literate, he can accept or repudiate personally or through an agent (ii) If illiterate, acceptance must be by guardian, who can also repudiate but with judicial approval d) Inheritance left to the poor (Art. 1044) ( i ) Right to accept or repudiate belongs to person designated by testator (ii) In default of above, apply Art. 1030; i.e., majority vote of municipal judge, municipal mayor, and municipal treasurer, but with approval of RTC.

e) Corporations (Art. 1045): ( i ) Acceptance may be made by their lawful representatives qualified to acquire property in their behalf (ii) Repudiation may be made by the same representatives but only with court approval f) Public official establishments (those devoted to public purposes like charity and education and supported by public funds)(Art. 1046): - Approval of the proper government agency or department head is necessary.

4. Acceptance by creditors (Art. 1052): a) Creditors may accept if repudiation by heir prejudices them b) Creditors must petition the court to allow them to accept in name of heir c) Acceptance by creditors should be only to the extent of their credits d) Any excess after acceptance by creditors pertains to the proper testate or intestate heirs

5. Period for accepting or repudiating (Art. 1057): a) Thirty (30) days after court issues an order of distribution b) If there is no acceptance or repudiation within said period, inheritance is deemed accepted.

Meaning of collation: It has two meanings: First: Computing or adding certain values to the estate, and charging the same to the legitime (Arts. 1061, 1062, 1063, 1064, NCC) Second: Computing or adding certain values to the estate, and charging the same to the free portion (Arts. 1062, 1063) COLLATION

2. Meaning of “not collationable ”: First, property or value should be computed or added, but should be charged to the free portion (not to the legitime). Second, property should not be computed or charged to the estate at all, because it is not part of the estate. (Art. 1067), like expenses for support education, medical attendance, customary gifts. 3. As a general rule, all donations inter vivos , whether given to compulsory heirs or to strangers, must be reduced if found inofficious . 4. Only the value of the thing donated at the time of the donation should be collated (Art. 1071).

5. Collation by compulsory heirs: a) Compulsory heirs must bring to collation any property received as donation or by gratuitous title, in order to determine the legitime (Art. 1061). Reason: Every donation inter vivos to a legitimate child is generally considered an advance on his legitime. b) The surviving spouse is a compulsory heir, but she is not included in Art. 1061 because: ( i ) Donations during the marriage are null and void (ii) Donation propter nuptias to a future spouse is donation to a stranger and must be imputed to the free portion because at that time, the donee was not yet a spouse, hence, not a compulsory heir. c) Proceeds of life insurance are not collationable because they are not considered donations.

d) When collation does not take place among compulsory heirs (Art. 1062); ( i ) When donor expressly provided, i.e., he does not want donation to be charged to an heir’s legitime But it must still be imputed to the free portion in order to compute the legitime of the compulsory heirs (Art. 1062). (ii) If the donee repudiates the inheritance, the donation shall be charged to the free portion. Ex : D has two sons, A and B. He gave A a donation of P10,000 expressly stating in the donation that the same was not collationable . If D later dies intestate leaving an estate of P90,000, A and B will each get P45,000. Obviously, D wanted to give A a preference of P10,000. Anyway, the legitime of B has not been impaired.

6. Is a legacy or devise subject to collation? Art. 1063. Property left by will (like a legacy or devise) is not deemed subject to collation if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. a) This means that the legacy or devise should be imputed to the free portion, not to the legitime. b) Example: T has two legitimate children, A and B. In T’s will, he gave A a legacy of P10,000. There was no other provision in his will. If T dies with an estate of P100,000, how should this estate be divided? Answer : Give P10,000 legacy to A, and divide the P90,000 between A and B, or P45,000 each. The P10,000 legacy to A does not impair B’s legitime, which is P25,000 (1/2 of P50,000). c) Suppose in the above example, T gave the P10,000 to A as a donation inter vivos . No preference to A was clearly intended by T. So upon T’s death, leaving an estate of P90,000, add the P10,000 donation to A to the P90,000, and from the total estate of P100,000, give P40,000 to A (he already got P10,000 as advance legitime), and give B P50,000.

7. Grandchildren who inherit from their grandparents by representation of their parents must bring to collation all properties received by their parents from their grandparents (Art. 1064).

8.What donations are not collationable : a) Parents are not obliged to bring to collation in the inheritance of their own parents or ascendants properties which had been donated by the latter to their children (Art. 1065). Reason: The parents were not the ones who received the donations.

b) Donation to the spouse of a child should not be brought to collation (Art. 1066): ( i ) The donation here is not considered an advance on the child’s legitime because it was not given to him, but it must still be imputed to the free portion of the estate of his parent (ii) But if the donation was given to the spouses jointly, the ½ share pertaining to the child of the donor must be brought to collation.

c) Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation (Art. 1067). ( i ) Reason: These expenses are not donations but part of the moral, social, and legal obligations of the parents towards their children. (ii) Education here means only up to high school, because college education is covered by Art. 1068.

d) Expenses of parents in giving children professional, vocational, or other career shall not be brought to collation unless the parents so provide or unless they impair the legitime (like a Doctor of Philosophy degree obtained by a child abroad at the expense of the parents). But when collation is required, the sum that the child would have spent had he lived with the parents must be deducted (Art. 1068).

e) Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit are not chargeable to the legitime of the of the child or descendant. Note: Justice J.B.L. Reyes had believed that cash wedding gifts are not included in the above Article; while Justice Paras believed otherwise, the reason behind both gifts being the same, i.e., the sentimental value of the child’s wedding to the parents. f) But payment by parents of a child’s debts, election expenses, fines, and similar expenses are collationable (Art. 1069)

9. What should be brought to collation, the thing or its value? (Art. 1071) a) Only the value of the thing at the time of the donation, not the thing itself, shall be brought to collation (Art. 1071). The thing’s subsequent increase or deterioration and even its total loss or destruction, be it accidental or culpable, shall be for the account and risk of the donee (id.).

10. How to equalize shares of heirs if there is collation (Arts. 1073-1074): a) Co-heirs shall perceive properties of the same nature, class, and quality b) If donated property is immovable, co-heirs should receive the cash equivalent or in securities, or sell other properties at public auction. c) If donated property is movable, co-heirs can select an equivalent of other personal property in the estate at its just price.

11. Reimbursable expenses of the donee (Art. 1076) a) Necessary expenses for preservation. b) Improvements to immovables which have increased value of property. c) Works for mere pleasure of donee should be removed without injuring the estate.

12. Problems: a) T had two children X and Y. During his lifetime, T gave child X P10,000. Later, in his will, T distributed his estate of P90,000 as follows: X – P15,000 Y – P25,000 Friend F – P50,000 When T died, X complained, claiming that he was not given his legitime. Is X right? Answer: The P10,000 earlier given by T to X is collationable , so that T’s estate is actually valued at P100,000. The legitime of X and Y is ½ of P100,000 (P50,000) or P25,000 each. X had already received from T P10,000. Add to this the P15,000 that T gave him in the latter’s will, and he actually received his legitime of P25,000.

b) X has three children A, B, and C. During his lifetime, X gave A a donation of P60,000. When X died, he left an estate of P30,000. Divide X’s estate. Answer: X’s estate is actually P90,000 (the P60,000 donation to A and the remainder of his estate of P30,000). The legitime of A, B and C is, therefore P45,000. Divide this into three, and A, B and C each gets a legitime of P15,000. B and C should get the remaining P30,000 of X’s estate as their legitime. X gets his legitime of P15,000, and the free portion of P45,000 (imputing his donation to his legitime and the free portion). So X’s donation is not inofficious .

c) T has two legitimate children A and B. In his will, T gave A a legacy of P80,000. However, when T died, his estate minus A’s legacy would only be P20,000. Should A’s legacy be reduced? Answer: The total estate of T is P100,000 (P80,000 plus P20,000), so the legitime of A and B is P50,000 or P25,000 each. In order to complete B’s legitime of P25,000, reduce A’s legacy by P5,000 and add it to the remaining estate of P20,000. So both A and B would receive a legitime of P25,000 each, while the rest of A’s legacy would be taken from the free portion.