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support; usufruct; those arising from personal consideration; personal easements; partnership rights; agency; and life annuity

ARTICLE 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. Talks of succession mortis causa Elements: Definition Mode of acquisition (ownership) Transfer of the property, rights and obligations to the extent of the value of the inheritance of a person Transmission thru death (not during life) Transmission to another By will or operation of law(testate or intestate/legal Human Corpse Not part of the inheritance because the latter refers only to the inheritance or universality of the property of the deceased transmitted to his successors mortis causa Without prejudice to RA 349 which allows the granting of organs after death Organs can be used for medical, surgical and scientific puposes. Although a person cannot dispose of his corpse as his property, he may provide for the manner in which it shall be disposed of by those who are called upon to do so ARTICLE 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.

WHEN DOES THE OPENING OF SUCCESSION OCCUR? ARTICLE 777. The rights to the succession are transmitted from the moment of the death of the decedent. Requisites of Succession: death of decedent 1. transmissible estate 2. existence (transferee is still alive) 3. capacity of successor 4. designated by decedent or by law; and 5. acceptance of successor (no repudiation) Death: Kinds Actual death successor becomes the owner at the time of death and not at the time of the delivery of the property Presumed death - Ordinary Death Shall be presumed dead for the purpose of opening his succession at the end of ten years (5 years in case he disappeared after the age of 75) Death is presumed at the end of ten or five years Extraordinary Death Death is presumed to have occurred at the time of loss and not at the end of four years Kinds of Succession:

Rights Extinguished by Death:

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1. Testamentary = decedent died with a valid will If in a will, a compulsory heir is given more than his legitime, he assumes a dual status Art. 783. A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. Essential Characteristics of Testamentary Act: Personal Act Animus testandi Solemn or formal act Statutory Right unilateral Capacity Free from vices of consent Individual Revocable Disposes of the testators estate mortis causa ARTICLE 786. The testator may entrust to a third person the distribution of specific property or sums of money that he may leave in general to specified classes or causes, and also the designation of the persons, institutions or establishments to which such property or sums are to be given or applied. allowable designation classes or causes must be specified Kinds of Ambiguities in wills: A. Intrinsic or Latent Ambiguity = ambiguity is hidden because it does not appear on the face of the will parol evidence is admissible

2. Legal or intestate = effected by operation of law in default of a will (note: this shd. be separated since legal means the legitime while intestate means there was no will) 3. Mixed = effected partly by will and partly by operation of law 4. Contractual Succession = future husband and future wife give to each other future property, effective mortis cause, by means of a marriage settlement Kinds of Will: 1. Notarial will = executed with the formalities of the law and is duly acknowledged and notarized by a notary public 2. Holographic will = entirely written in the handwriting of the testator and must be signed and dated also in his handwriting 3. Nuncupative will = oral will (not allowed)

1. Heir = what is given is whole or aliquot part Compulsory heir = succeeds by operation of law with recognized legitime the the Voluntary heir those instituted by testator in order to succeed to free portion legal or intestate heir = those who succeed to estate of the decedent if there is no will

2. devisee = what is given in an individualized or specific real property 3. legatee = individualized or specific personal property

B. Extrinsic or Patent Ambiguity = ambiguity appears on the face of the will; apparent and not hidden

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parol evidence admissible excluding testimonial evidence on the oral declarations of the testator as to his intention AFTER-ACQUIRED PROPERTIES Gen. Rule: the will only include those properties already possessed and owned by the testator at the time of his death, not those acquired after Exceptions: if expressly stated in the will to include afteracquired properties if will is republished or modified by a subsequent will or codicil ARTICLE 797. Persons of either sex under eighteen years of age cannot make a will. ARTICLE 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. a) WHAT ARE THE RULES GOVERNING THE EXTRINISIC VALIDITY OF A WILL? (Arts. 17, 815-817, 819) Testator Place of Exec. Rule governing extrinsic (formal) validity Filipino Phil CC Filipino foreign country execution: ARTICLE 796. All persons who are not expressly prohibited by law may make a will.

will erroneously stated properties unless after making the will, said properties will belong to the testator legacy of credit or remission ARTICLE 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. Extrinsic Validity form of the will viewpoint of time: law in force at the time the will was made viewpoint of place or country: Filipino = Phil law, law of the country where he may be or where he executes the will alien abroad = law of his domicile, his nationality or Phil laws alien in the Phil = law of his nationality, or Phil law national law of the decedent, regardless of the place of execution or the place of death Requisites for the testator at the time of the law in force at the time of the decedents death Intrinsic Validity substance of the will

1.law of the place where it was made 2.CC Foreigner Phil 1.CC 2.laws of his own country Foreigner Foreign country 1.law of the place where the will was made 2.law of his own country or nationality 3.law of the country where he resides or domiciled 4.CC A will executed in a foreign country according to the laws of that country may be probated in the Philippines without the necessity of previous probate in said foreign country In the absence of evidence, foreign laws on testamentary formalities are presumed to be the same as those of the Phil

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It will be seen that the witness Feliciano Maglaqui, instead of writing the name of the testatrix on the will, wrote his own. Probate of the will was refused in the court below on the ground that the name of the testatrix was not signed thereto In re: Will of Siason, 10 Phil 504 WHAT ARE THE LAWS GOVERNING THE INTRINSIC VALIDITY OF A WILL? (Arts.15, 16, 1039 of the NCC) National Law of the Deceased Governs: Order of succession Amount of successional rights Intrinsic validity of the provisions of the will Capacity to succeed c) WHAT OTHER FORMALITIES ARE REQUIRED IN MAKING A NOTARIAL OR ORDINARY WILL? Arts. 805-806 Requirements: Notarial or Ordinary Will 1. In writing 2. In a language or dialect known to the testator 3. subscribed at the end thereof by the testator himself or the testators name written by another person in his presence and by his express direction 4. Attested and subscribed by 3 or more credible witnesses in the presence of the testator and in the presence of each other 5. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin. 6. All pages shall be numbered correlatively in letters on the upper part of each page 7. The attestation clause shall . . . . 8. Acknowledged before a Notary Public Guison vs. Conception, 5 Phil The testatrix was not able to sign her name to the will, and she requested another person to sign it for her. While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the witnesses must sign "At the request of Seora Maria Siason. (followed by signature of) "CATALINO GEVA. And three witnesses "T. SILVERIO. FRUCTUOSO G. MORIN. "RAFAEL ESPINOS." Macapinlac vs. Alimurong, 16 Phil 41 It is shown by the evidence that the will was wholly written in the handwriting of the subscribing witness, Gregorio Sangil, and at the foot thereof the following words appear in a new paragraph and sufficiently apart: "At the request of the testatrix, Da. Simplicia de los Santos, I signed. "For Simplicia de los Santos. "Amando de Ocampo." Ex Parte Arcenas, 4 Phil 700 : "John Doe, by the testator, Richard Roe;" or in this form: "By the testator, John Doe, Richard Roe." Yap tua vs. Yap Ka Kuan, 27 Phil 579 There was but one room in which the will was executed One part of the room was one or two steps lower than the floor of the other, that the table on which the witnesses signed the will was located upon the lower floor of the room Testatrix was lying in bed, and from the bed it was possible for her to see the table on which the witnesses signed

In the absence of proof of the foreign laws of procedure in probate matter and that the foreign court which allowed the will is a probate court, it will be presumed that the proceedings in the matter of probating and allowing a will in that court are the same as those provided for in our laws on the subject.

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in the presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the actual seeing of the signature made is not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they so desire, to see the signatures placed upon the will. Jaboneta vs. Gustillo, 5 Phil 541 After one witness signed, he left the place where the will was signed but before leaving, he saw the last witness begin to sign but was not yet consummated when the first witness turned his back and left the room The fact that he was in the act of leaving, and that his back was turned while a portion of the name of the witness was being written, is of no importance. He, with the other witnesses and the testator, has assembled for the purpose of execution the testament, and were together in the same room for that purpose, and at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Javellana that he could see everything which took place by merely casting his eyes in the proper direction, and without any physical obstruction to prevent his doing so Testate Estate of A. Ledesma, G.R. No. L-7179, June 30, 1955 Whether or not the notary signed the certification of acknowledgment in the presence of the testatrix and the witnesses does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new Civil Code does not require that the signing of the testator, witnesses and notary should be accomplished in one single act. (ii) Special rules for handicapped testators (Arts. 807-808) WHAT IF THE TESTATOR BE DEAF OR DEAF-MUTE OR BLIND? Deaf or Deaf-Mute Testator (Art. 807) if testator is literate, must personally read the will Blind Testator (Art. 808) whether literate or not, the will must be read to him if illiterate, the will must be read by 2 persons designated by the testator whether literate or not, the will must be read twice reading is not enough; must communicate the contents to the testator reading is enough Witnesses to wills(Arts. 820-824) Qualifications of Witnesses: 1. 2. 3. 4. 5. 6. of sound mind at least 18 years of age able to read and write not be blind, deaf or dumb must be domiciled in the Phil not convicted of falsification of document, perjury or false testimony

CAN WITNESSES INHERIT IF DESIGNATED IN THE WILL? ARTICLE 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. disqualified to inherit but not to testify only the part pertaining to them is considered void disqualification extends to: - witness - spouse of witness - parent of witness

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- child of witness - any one claiming under such person or spouse, or parent, or child Holographic wills REQUIREMENTS: 1. must be entirely written by hand of testator himself (to prevent falsification & forgery); 2. must be dated by the hand of the testator himself; 3. must be signed by the hand of the testator himself; 4. must be executed in the language or dialect known to testator (language not just merely interpreted). 5. Animus testandi 6. executed at the time that such wills are allowed Witnesses required for probate (Art. 811) If uncontested at least one witness (ordinary or expert) If contested at least three WHAT SHOULD THE TESTATOR IF THERE ARE MORE DISPOSITIONS WRITTEN BELOW HIS SIGNATURE? Article talks of dispositions which are signed but undated and not the other way around Subsequent dispositions if dated not signed, the disposition is not validated by subsequent dispositions, although the latter are dated and signed If neither dated nor signed, the disposition is invalid if proved to be written on an occasion different from subsequent dispositions WHAT ARE THE EFFECTS OF INSERTIONS MADE BY A 3RD PERSON? When made Consent of Testator Effect After execution without Insertion is considered as not written Validity of the will cannot be defeated by the malice of the third person After the execution With Will is valid but insertion is void After the execution Validated by testators signature Insertion becomes part of the will entire will is void Contemporane ous with the execution with Entire will is void ARTICLE 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. ARTICLE 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. Joint will = will made on one instrument by 2 or more persons who jointly signed the same as their will (prohibited) A Filipino may validly make a holographic will anywhere (810)

ARTICLE 812. In holographic wills, the dispositions of the testator written below his signature must be dated and signed by him in order to make them valid as testamentary dispositions.

Undated and unsigned disposition below testators original signature are void. They are considered independent of the will itself. WHAT IS THE EFFECT IF THERE ARE SEVERL DISPOSITIONS WHICH ARE SIGNED BUT NOT DATED? ARTICLE 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.

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A Filipino may not validly make a joint will anywhere (818, 819) among other things the number of pages thereof; 3. It must be identified by clear and satisfactory proof as the document or paper referred to therein; and 4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories. GR: Incorporation can be done only in notarial wills bec. Art 827 speaks of witnesses EXCEPTION: 1. if a holographic will happen to have at least 3 credible and qualified witnesses 2. if a holographic will (with NO witnesses) refers to a document entirely written, dated, and signed in the handwriting of the testator Revocation A.] Revocation made outside the Phil: testator not domiciled in Phil: 1. law of the place where the will is made 2. law of the place where the testator was domiciled at the time the will was made (domiciliary law)

Mutual Wills = separate wills of 2 or more persons with reciprocal provisions (allowed) Exception to lex loci celebrationis (for Filipinos) If joint wills are executed by aliens abroad valid BQ Wills; Joint Wills (2000) Manuel, a Filipino, and his American wife Eleanor, executed a Joint Will in Boston, Massachusetts when they were residing in said city. The law of Massachusetts allows the execution of joint wills. Shortly thereafter, Eleanor died. Can the said Will be probated in the Philippines for the settlement of her estate? (3%) CODICIL Definition: ARTICLE 825. A codicil is a supplement or addition to a will, made after the execution of a will and annexed to be taken as a part thereof, by which any disposition made in the original will is explained, added to, or altered.

How is it executed: ARTICLE 826. In order that a codicil may be effective, it shall be executed as in the case of a will. Incorporation by reference : Requisites ARTICLE 827. If a will, executed as required by this Code, incorporates into itself by reference any document or paper, such document or paper shall not be considered a part of the will unless the following requisites are present: 1. The document or paper referred to in the will must be in existence at the time of the execution of the will; 2. The will must clearly describe and identify the same, stating

testator is domiciled in Phil: 1. law of the Phil 2. law of the place where the will was executed B.] Revocation made in the Phil: Civil Code = W or N testator is domiciled here Note: National Law does not apply in revocation HOW CAN A TESTATOR REVOKE A WILL? Three ways of revoking a will: 1. implication or operation of law 2. virtue of overt act 3. virtue of revoking will or codicil

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Overt act of Obliterating or Cancelling Instances: Revocation by implication of law 1. decree of legal separation; 2. preterition 3. legacy or credit against 3rd person or remission of debt was provided in will and subsequently, testator brings action against debtor; 4. substantial transformation of specific thing bequeathed; 5. when heir, devisee, or legatee commits any of the acts of unworthiness Revocation by an Overt Act overt act of destruction is executed act must be completed at least on its subjective phase these is an intent to revoke (animo revocandi) at the time of the revocation, the testator has capacity to make a will, that is, he is of sound mind revocation is personally done or effected by the testator himself, or by another person by the express direction of the former and in his presence Overt act of burning burning of small part is sufficient burned envelope thinking will was there but was removed = ineffectual (but the person who removed the will cannot inherit bec. of unworthiness) accidental burning = ineffectual envelope was burned but the will inside it is untouched - ineffectual 1. cancellation - running of lines but words remain legible - perforating 2. obliteration = to blot out or to render undecipherable 3. crumpling = not an overt act of destruction cancellation or obliteration revokes the will totally or partially if all parts or just the signature is cancelled or obliterated, the whole will is revoiked signature strikes the existence of the entire will Revocation by the Execution of Another Will or Codicil may be express or implied implied complete inconsistency between the wills a will may be revoked through a notarial or holographic will revoking will must be valid, otherwise there is no revocation a valid revocation is not affected by reason of incapacity or renunciation of hers, legatees or devisees revocation in the subsequent will must be definite and not based on false cause Invalid Will Ineffective Will

Overt act of tearing sufficient even if slight intention to revoke but was stopped and persuaded by others = not revoked tearing of signature = will is void tearing includes cutting

invalid revoking will cannot revoke a previous will inoperative or ineffective valid will can revoke a previous will valid but not operative because incapacity of heirs or renunciation CASE: Molo vs. Molo

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"This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old. "The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force." "This is the doctrine of dependent relative revocation. The failure of the new testamentary disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive condition Probate = authentication of the will - notarial wills = Art 804-806 - holographic wills = 810 2. Insanity or mental Incapacity to make a will 3. will executed through force or duress or fear or threats - force = violence = serious and irresistible force - intimidations = reasonable and well grounded fear of an - imminent and grave evil upon his perso prop or upon the - person or prop of his spouse, descendants or ascendants 4. undue and improper pressure - to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own 5. Signature of testator was procured by fraud - fraud or trick must be proved by evidence 6. testator acted by mistake or did not intend that the document be his will at the time of signing Effect of Fraud, force, duress, threats, undue influence, and mistake:

In contracts - process of proving before a competent court the due execution of a will by a person possessed of testamentary capacity and the compliance with the solemnities prescribed by law and its approval

In wills

vitiates consent and renders the contract voidable voidable contracts are susceptible of ratification these vices of consent render the will void not susceptible of ratification; in succession, there is no voidable will if wants to ratify = execute a codicil or a ratifying deed Testate Estate of Pilapil, 72 Phil 546 order by the testator to forego probate provision is void. Probate is mandatory and is required by public policy Tolentino vs. Francisco, 57 Phil 749

GR probates court area of inquiry: extrinsic validity of the will 1. due execution 2. testamentary capacity 3. compliance with solemnities ARTICLE 839. The will shall be disallowed in any of the following cases (exclusive): 1. Non-compliance with the formalities required by law

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repudiating witnesses a will may be admitted to probate notwithstanding the fact that one or more of the subscribing witnesses do no unite with the other, or others it is sufficient if the court is satisfied from all the proof that the will was executed and attested in the manner required by law Mercado vs. Santos, 66 Phil 215 probated will later turned out to be a forgery probate of a will is considered as conclusive as to its due execution and validity criminal action will not lie against the forger of the will that has been duly admitted to probate Coso vs. Fernandez Deza, 42 Phil 596 testator stated provisions in favor of a woman whom he had illicit affairs mere affection, even if illegitimate, is not undue influence and does not invalidate a will no imposition or fraud has been shown in the present case. Is probate still necessary even if decedent left no debts? none of the heirs may sue for the partition of the estate in accordance with a will without first securing its allowance or probate by the court Sps. Ricardo Pascual vs. Court of Appeals, G.R. No. 115925, August 15, 2003 there was a claim over a certain property subject of a will pending probate article 838 means that, "until admitted to probate, a will has no effect whatever and no right can be claimed thereunder." Reynoso vs. Tolentino., G.R. No. 46078. May 25, 1939.

Nepomuceno vs. Court of Appeals,G.R. No. L-62952. October 9, 1985 will contained provisions in favor of paramour the respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void. the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will. Guevara vs. Guevara, 74 Phil. 479 Will the statute of limitations find application in probate of wills? Reason and precedent reject the applicability of the Statute of Limitations to probate proceedings, because the same are established not exclusively in the interest of the heirs, but primarily for the protection of the testator's expressed wishes

Court granted the partition of conjugal property made in accordance with the will executed by the spouse even if such partition is disadvantageous to the other spouse The court should have substantiated the opposition of the widow and should have given her an opportunity to adduce evidence in its support. The will, in so far as the testator alone made therein a partition of the conjugal properties by assigning to himself those which he liked and to the wife those which she did not like, is illegal. Nuguid vs. Nuguid [G.R. No. L-23445. June 23, 1966.] testator omitted her parents in the will parties shunted aside the question of whether or not the will should be allowed probate these practical considerations induce this Court to meet head-on the issue of the nullity of the provisions of the will in question, there being a justiciable controversy awaiting solution. Martinez vs. Balanay [G.R. No. L-39247. June 27, 1975.

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wife disposed her husbands share as hers where the will contains unusual provisions which are of dubious legality, the trial court can pass upon the will's intrinsic validity even before its formal validity had been established. probate of a will might become an idle ceremony if on its face the will is intrinsically void. INSTITUTION OF HEIRS Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. absence or inoperativeness of institution leads to intestate succession Requisites of Institution: 3. Error in designation of name, surname or other circumstances does not invalidate, if the identity can be ascertained in any other manner (844) - if the identity is not ascertainable, the institution is void (844) - the mere fact that a legatee is referred to as a natural child does not make the legacy conditional Rules of interpretation of institution 1. collective institution (of class or group) is valid [845] 2. heirs instituted without designation inherit in equal parts (art. 846 principle of equality) 3. individual and collective institution made at the same time, means individual institution of all unless the intention is clearly otherwise (art. 847 principle of individuality) 4. the presumption is that institution is simultaneous and not successive (art. 849 principle of simultaneity) 5. collective institution of relatives of the testator is in favor of those nearest in degree (959) 6. institution of the poor (1030) Art. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. false cause = erroneous reason for the institution of an heir = cause contrary to law - deemed not written UNLESS illegal cause appears to be the sole reason for the institution Requisites of false cause to annul the will: 1. cause for the institution of heirs must be stated in the will 2. cause must be shown to be false 3. must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause

1. It must be made in a valid will; therefore, it requires - capacity of the testator - formalities must be observed - no vice of consent (error, fraud, duress, undue influence) -the will must be duly probated (except in marriage settlements and in partition inter vivos by the owner [1080]) 2. Made personally, not be an attorney in fact, nor subject to control by a third person (784; 785) 3. Within the authority granted by law: i.e. for property of free disposition (842) - Institution of forced heir to the legitime is valid but superfluous - Institution of non-forced heir to the legitime is void 4. The heir designated must be capable of succeeding (842) 5. The heir must be certain or ascertainable (845) 6. There should be no preterition (total omission) of a forced heir Manner of Designating Heir: 1. By name and surname or nickname 2. By other identifying circumstances (843)

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Inoperative Institution: 1. By predecease of the heir (856) 2. By repudiation of the heir (856) 3. By error of the testator (false cause) if it appears from the will that he would not have made the institution if he knew the truth (850) 4. By uncertainty of the heir where he is unknown or cannot be identified (845) 5. By preterition of a compulsory heir in the direct line (854) 6. By invalid disinheritance of a compulsory heir (918) Preterition in Institution: Effects

Get Xs legitime 50 300 50 = 250 250 will be divided by Y and Z Institution will be annulled only insofar as the legitime is impaired

What if a legacy of 10 is given to R? Legitime is 150 (50 each) Legacy is not inofficious effective Legacy must remain valid 300 less 10 = 290 Give the legitime to X of 50 290 50 = 240 Divide 240 between Y and Z

A has 3 kids- X, Y and Z. A, in his will, instituted X and Y only and his driver R. Z was omitted. Estate is 300. Institution is annulled because there is preterition Intestacy takes over X,Y and Z gets 100 each

Classes or groups who can be instituted as heirs: 1. (Art 848) Brothers and sisters, some of the full blood, others half blood 2. (Art 849) a person and his children 3. (Art 959) testators relatives (nearest in degree) 4. (Art 1030) the poor in general living in the domicile of the testator or the poor in a definite locality 5. the institution of descendants or relatives of a legatee (The rule of nearest excludes the farther will NOT apply here. Therefore, all descendants and relatives will inherit per capita) ARTICLE 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.

What if R was just merely given a legacy of 10?

Legitime is 150 Legacy is not inofficious effective Legacy must remain valid 300 less 10 = 290 Divide 290 among X, Y and Z Invalid or Ineffective Disinheritance in Institution: Effects A disinherited X and instituted Y and Z as heirs. X disinheritance is invalid. The estate is 300.

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At the time of her death, her only properly left was P900,000.00 in a bank. Juan opposed the will on the ground of preterition. How should Josefa's estate be divided among her heirs? State briefly the reason(s) for your answer. (5%) Substitution of Heirs

Requisites of Preterition: 1. total omission in the inheritance there is preterition if mentioned in the will but not given any share there is no preterition as long as heir is given something no matter how small (completion of legitime) there is no preterition if donations were given in advance as donations form part of inheritance does not disinherit the heir, but leaves nothing to him in the hereditary estate w/n the testator mentioned him in the will no total omission if heir already received something from the testator (donation inter vivos) 2. omitted person must be a compulsory heir 3. said compulsory heir must come from the direct line, whether ascending or descending EXCEPTION: an adopted child is deemed a legitimate child preterition of a spouse does not invalidate because not in the direct line 4. omitted compulsory heir must survive the testator Effects of Preterition: 1. annuls entirely the institution of heirs, 2. but the devisees and legacies shall be valid insofar as they are not inofficious 3. if the compulsory heirs would predecease the testator, the institution of heir shall be effectual, but the omitted heir would be represented by his heir, when representation is proper 4. if omitted heir is not in the direct line (like spouse), only the legitime is given to him/her and the institution of heir is annulled up to that extent only Preterition (2001) Because her eldest son Juan had been pestering her for capital to start a business, Josefa gave him P100,000. Five years later, Josefa died, leaving a last will and testament in which she instituted only her four younger children as her sole heirs.

Art. 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted.

Kinds ARTICLE 858. Substitution of heirs may be: (1) Simple or common (art. 858); (2) Brief or compendious (art. 860); (3) Reciprocal (art. 861); (4) Fideicommissary (art. 863); (5) Reciprocal (art. 861) SIMPLE, VULGAR OR COMMON SUBSTITUTION ARTICLE 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. A simple substitution, without a statement of the cases to which it refers, shall comprise the three mentioned in the preceding paragraph, unless the testator has otherwise provided. BRIEF OR COMPENDIOUS SUBSTITUION ARTICLE 860. Two or more persons may be substituted for one; and one person for two or more heirs. Brief or Compendious Substitution

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Brief two or more take the place of one There is plurality of substitutes Equal shares in absence of stipulation Compendious one takes the place of two or more One is appointed for all Requisites: FIDEICOMISSARY SUBSITUTION 1. First Heir Must be capacitated mad must accept May enjoy and use the fruits (not an agent) cannot alienate Bound to make inventory No bond required He must make an inventory of the trust property He must preserve the capital of the property He must deliver the inheritance to the Fideicommissary (or heirs of the latter) 2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole of part of the inheritance Must be given expressly by name or by specific obligation Suggestion is not allowed Not conditional 3. Second Heir Naked owner There is ownership upon transfer of property Inherits from the testator If he dies ahead of the Fiduciary, but after the testator, the rights of the fideicommissary pass to his own heirs (fideicommissary substitution is not extinguished) If the fideicommissary heir is disqualified to inherit or repudiates, the substitution is inoperative 4. the First and the Second Heirs must be only one degree apart one generation and not one transfer 5. Both heirs must be alive or at least conceived at the time of testators death Conditional Testamentary Dispositions and Testamentary Dispositions With a Term

RECIPROCAL SUBSTITUTION ARTICLE 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution. Effect: Only two heirs reciprocally substituted

the substitute acquires the whole share that the other heir left vacant, whether that share is larger or smaller than his own, unless it clearly appears that the intention of the testator was otherwise More than two heirs reciprocally substituted

the vacant share must be divided among the substitutes in the same relative proportion as the respective shares given to them by the testator ARTICLE 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

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ARTICLE 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. Classes of Institution of Heirs: 1. With a condition 2. With a term 3. For a purpose or cause 4. Simple institution 1) Simple or pure: = The heir or legatee acquires the inheritance from the death of the testator 2) Conditional Institution = (871-877) its effectivity is subordinated to the happening or non- happening of a fact or event which is both future & uncertain Condition is a future and uncertain event depending: upon chance (casual); or upon the exclusive will of the heir (potestative); or upon both 1 & 2 (mixed) No condition is imposable on the legitime (Art 872) EXCEPT: Payment of legitime in cash to other children where an industrial, agricultural or manufacturing establishment is allotted entirely to one heir by the parent (1080(2)) Imposition of indivision for not more than 20 years (1083(1)) Impossible, illegal and immoral conditions (precedent) are considered not imposed; therefore, the effect is that of pure institution The same rule applies in donations (727) The reverse rule is true in ordinary obligations (1183) where the obligation itself is void - If the condition is to do an impossible or illegal thing, both the condition and the obligation are void. - If the condition is negative, not to do the impossible, just disregard the condition but the obligation remains. - If the condition is negative, not to do an illegal thing, both the condition and the obligation are valid. Disposition Captatoria = condition that the heir make a will in favor of another, or in favor of the testator, is VOID (875) Condition (suspensive) not to contract a first marriage is illegal and void, if absolute (not to marry any person, at any time, in any place) Condition (suspensive) not to contract a second or subsequent marriage is valid if Imposed upon the surviving spouse; and By the deceased spouse or by descendants or ascendants of the deceased If violated, the spouse gets the legitime only and not the free portion PROVIDED it affects usufruct, an allowance or some personal prestation (not ownership) Time of fulfillment of potestative, casual, or mixed conditions (876, 877) POTESTATIVE CONDITION = must be fulfilled as soon as the death of the testator is learned, even if already fulfilled before UNLESS repetition is impossible CASUAL or MIXED CONDITION: must happen or be fulfilled before or after death of testator If already fulfilled at the time of the execution of will and testator is unaware - condition deemed complied with If testator had knowledge - condition considered fulfilled if it is of such nature that it can no longer be complied with NEGATIVE POTESTATIVE CONDITION = the heir must give security (caucion muciana) before entering into possession; that if the condition be not performed, he will return the property and fruits or interest (879). The estate is to be under administration until the bond is given (880(2)) Performance of conditions: Equivalent (constructive) performance is admitted only where the

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- Person interested in non-performance prevents the performance; or - the potestative condition is dependent upon the heir and he does all he possibly can to comply Institution with a period (or term) = (878, 880, 885) Effect of modo term is the day or time when the effect of an institution of heirs is to begin or cease suspensive or ex diem effects commence from a certain day or time does not prevent the instituted heir from acquiring rights and transmitting them to his heirs before arrival of the term (878) resolutory or in diem effects cease on a certain day or time Effect of suspensive or resolutory term BEFORE the day arrives: The legal (intestate) heir shall be considered as called until the arrival of period or upon its expiration (885) note: If the term be suspensive, the legal (intestate) heir shall not enter into possession until he gives sufficient security, with the intervention of the heir instituted Modal Institution = (871, 882, 883) institution of an heir is made, for a certain purpose or cause Modo (modus) may consist in either: A special object (purpose) of institution, stated in the will; or Application of property left by the testator; or A charge imposed on the heir The presumption is against a condition but in favor of modo 1. The heir may claim the property upon him or his heirs, giving security for compliance with the testators wishes or the return of what has been received with fruits or interest (882(2)) 2. Non compliance of modo operates as a negative resolutory condition (the property must be returned with fruits) 3. If exact compliance is not possible, it shall be complied in the manner most analogous to and conformable to the testators wishes (803) Institution of pious works and prayers (1029) to the church; to the State Classification of Compulsory Heirs: Primary compulsory heirs 1. legitimate children & their descendants 2. the widow or widower 3. illegitimate children secondary compulsory heirs 1. legitimate parents and ascendants (in default of legitimate children and descendants of the testator) 2. the father or mother (not other descendants) of deceased illegitimate children (in default of legitimate or illegitimate children and descendants of the deceased) NOTE that legitimate parents and ascendants are not excluded by illegitimate descendants; BUT the illegitimate parents are excluded by any descendants whatsoever, legitimate or illegitimate (903) ARTICLE 890.

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Formula: Property left - Debts & Charges + Value of Collationable Donations = NHE -legitime for the legitimate parents - shallbe divided between them equally -if one of the parents should have died, the whole shall pass to the survivor. -If testator leaves neither father nor mother, but is survived by ascendants: > equal degree of the paternal and maternal lines - the legitime shall be divided equally > of different degrees - the legitime goes to the ones nearest in degree of either line. No right of representation in the ascending line ARTICLE 898. widow or widower survives with legitimate children and with illegitimate children Satisfy first the legitime of legitimate children and spouse, then divide the remaining among the illegitimate children Hence, if there are many illegitimate children, they may not get share of that of the legitimate child ARTICLE 900. Surviving spouse as the only compulsory heir GR: spouse gets one-half EXC: spouse gets one-third if marriage was in articulo mortis and testator died within three months from celebration of marriage EXC: TO THE EXC: when they have been living as husband and wife for more than five years. ARTICLE 908. How to determine the legitime? Net Hereditary Estate (NHE)

ARTICLE 909. Donations to children and strangers Donations to children First be charged to legitime If legitime is insufficient, charge to free portion If donations cannot be covered by the free portion, donations must be reduced so as not to impair others legitime Donations to Strangers Should be charged to free portion Must be reduced if inofficious Must be collated not as advances of the legitime but advances of the free portion Art. 910 - Donations to illegitimate children Should be charged against their legitime Should not impair legitime of legitimate children Any donation in excess of legitime shall be charged to the free disposal ARTICLE 911. HOW REDUCTIONS SHOULD BE MADE? 1. Determine the NHE 2. Determine legitime of compulsory heirs based on the NHE 3. Add total values of legitimes of all compulsory heirs 4. deduct the value of the total legitimes from the NHE (1) to arrive at the free disposal (not free portion) 5. charge the donations to strangers to the free disposal 6. charge preferred legacies and devises to free disposal 7. charge all other legacies/devises to free disposal 8. in case free disposal is insufficient, reduce the legacies, donations, etc. in the order of priority Lenny passed away on December 2005 leaving five (5)

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legitimate children namely Bam, Bem, Bim, Bom, Bum. Reserva troncal On the day of the burial, the acknowledged illegitimate children of Lenny surfaced and introduced themselves as Pao and Poo. Prior to Lennys death, she incurred an indebtedness amounting to P100,000. Lenny also donated to her bestfriend an amount of P40,000 on 1999. Days before Lennys demise, she gave Bim, her favorite child, an amount of P120,000 which is double the amount she gave to Poo on 2001. Lenny has a total estate worth P180,000. Determine the Net Hereditary Estate of Lenny. Who are entitled to the estate of Lenny and how much are their respective share/s? Given: Leg ch 5; ill ch 2; debt 100; donation to friend 40 (1999); Bim 120 (2005), Poo 60 (2001); estate - 180 55 Total estate of 180 less debt of 100 = 80 80 + 40 (friend) + 120 (Bim) + 60 (Poo) = 300 Estate = 300 Hence, the legitime of leg. Children = 150 (30 each) Legitime of ill. Ch. is 15 (to be taken from the free portion) Free disposal = 120 Charge donation to Bim to legitime = excess of 90 Charge donation to Poo to legitime = excess of 45 Charge donation to friend to free disposal = 40 Total of 175 chargeable to free disposal 175 120 = 55 Since Bim received the latest donation, he must return the excess of Donations made to friend and Poo will remain Hence, 40 (friend) + 45 (Poo) + 35 (Bim) = 120 (free disposal) ARTICLE 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. Reserve troncal - It is the duty imposed by law upon ascendants who inherit from descendants to preserve certain properties of the estate for specified relatives belonging to the line from which the property came Parties in reserve troncal 1. Origin ascendant, brother or sister from whom the property came 2. Propositus the descendant who acquired the property gratuitously 3. Reservor or Reservista ascendant who in turn acquired the property from the descendant by operation of law 4. Reservees or Reservatarios relatives within the third degree belonging from the line from which the property came Transfer from origin to propsitus must be gratuitous (donation, remission, testamentary succession or legal succession) Transfer from propositus to reservoir must be by operation of law (legal succession or legitime in the case of testamentary succession) ORIGIN Must be an ascendant or brother or sister If brother or sister, must be half-brother or half- sister of propsitus Must be a legitimate relative (reserve troncal exists only in legitimate family) Transmission must be by gratuitous title PROPOSITUS Descendant who inherits from origin Death gives rise to reserva (no reserva during his lifetime)

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Must be legitimate descendant (half-brother or half-sister) of the origin from whom third degree is counted Descendant (prepositus) must leave 1. No legitimate descendants; or 2. No legitimate descendants qualified or willing to inherit. 3. Presence of illegitimates, without concurring legitimate descendants, does not bar ascendants from inheriting RESERVOR OR RESERVISTA Ascendant who inherits from the propositus by operation of law (by legal succession or by legitime) Must be legitimate, qualified and willing to inherit Has the obligation to reserve No reserva if he inherits free portion by virtue of a will Ownership is subject to a resolutory condition RESERVEES OR RESERVATARIOS Relatives within the third degree from the propositus There must be death of reservista and the Reservatorio must survive reservista They inherit from the propositus and not from reservor Must be a legitimate relative of the origin and propositus Right of representation is only admitted within the third degree; a cousin (4th degree) of the prepositus can not become reservatorio by representing his father First degree parents of propositus Second degree grandparents, full and half brothers and sisters of propositus Third degree uncles and aunts by blood; great grandparents; nephews and nieces of propositus Nearer excludes the farther HOW MUCH IS RESERVABLE? RESERVA MAXIMA vs. RESERVA MINIMA -fathers legitime is (30) Reserva Maxima entire 20 reservable property includes all that can be included in the half constituting the legitime of the reservista

Reserva Minima 10 only Half of the 20 (10) is given as a legitime or by operation of law Which is which? Reserva maxima is more in keeping with the spirit of the provision Reserva minima is more just, equitable and logical Disinheritance Requisites: Valid disinheritance 1. must be made in a will (or codicil) 2. must be made expressly (not presumed) 3. must be for a legal cause 4. must be for a true cause 5. must be for an existing cause 6. must be total or complete 7. must be stated in the will itself 8. heir must be clearly identified 9. will must not have been revoked Depriving in a will a compulsory heir of his legitime through true and lawful causes Retribution and not vengeance No disinheritance in legal succession Courts may inquire into the validity of the disinheritance Disinheritance also includes the free portion written evidence aliunde is allowed in determining the identity of disinherited heir a revoked will loses the effect of disinheritance partial disinheritance is no disinheritance disinheritance is ineffective if conditionally made and has not yet occurred at the time the will is made

A son received 20 from his mother gratuitously. Son has his own savings of 40. Son died without an issue and survived by his father. How much of the 60 is reservable?

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Descendant (919) (921) Ascendant (920) Spouse Unjustifiable refusal to support the children or the other spouse When the spouse has given cause for legal separation ARTICLE 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. Effect of reconciliation: - If it occurs before disinheritance is made - Right to disinherit is extinguished. - If it occurs after the disinheritance is made - Disinheritance is set aside How disinheritance is revoked: - Subsequent reconciliation - Nullification of the will of the testator - Subsequent institution of the disinherited heir in a subsequent will ARTICLE 923. The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime.

When the heir has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants When the heir has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made When the heir (legitimate or not) has been convicted of adultery or concubinage with the spouse of the testator (w/ or w/out incest) Loss of parental authority due to fault of the heir Refusal to support the testator without justifiable cause Maltreatment of the testator by word or deed, by the child or descendant (Maltreatment of child by parent is not ground for disinheriting parent because it is part of parental discipline) When a child or descendant leads a dishonorable or disgraceful life Conviction of a crime which carries with it the penalty of civil interdiction Refusal to support children and descendants without justifiable cause When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them

Effect of Disinheritance: (Right of Representation) The right of representation is granted only to descendants of disinherited descendants. Disinheritance is personal to the disinherited and affects him only > does not affect the children and descendants of the disinherited heir. ARTICLE 918. Disinheritance without a specification of the cause, or for a cause the truth of which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall annul the institution of heirs insofar as it may prejudice the person disinherited; but the devises

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and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. Effects: Ineffective Disinheritance 1. institution of heirs is annulled - only insofar as it may prejudice the person disinherited - insofar as the legitime of said heir is impaired 2. devises, legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime Distinction: Preterition vs. Valid Disinheritance Refers to all those cases where the disinheritance is not made in accordance with the requisite formalities required by law Results in PARTIAL ANNULMENT: Institution remains valid as long as the legitime of the defectively disinherited heir had not been impaired Disinherited heir may be any compulsory heir Institution of heirs is TOTALLY annulled Omitted heir must be a compulsory heir in the direct line Always express Always intentional Preterition Omission may be either intentional or unintentional Always intentional With or without cause Cause must always be stated in the will; must be true and legal Annuls the institution; omitted heir inherits Disinherited heir inherits nothing May exist with or without a will A will is always required Valid Disinheritance Legacies and Devises ARTICLE 924. All things and rights which are within the commerce of man may be bequeathed or devised. Legacy: (Bequeathed) Gift of personal property given in a will Testamentary disposition of personal property by particular title Devisee: (Devised) Gift of real property given in a will Testamentary disposition of real property by particular title Limitation - should not impair the legitime What cannot be bequeathed: - res communes - res nullius - property of public dominion - illicit things - public use - purely personal or intransmissible rights Persons who May be Charged by Testator with Payment or Delivery of Legacy or Devise (Art. 925): Always implied May or may not be intentional

Institution is always void except when preterited heir predeceases the testator May be valid when all the requirements of the law are followed Distinction: Preterition vs. Imperfect Disinheritance Imperfect Disinheritance Preterition

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1. 2. 3. 4. any compulsory heir; any voluntary heir; any legatee or devisee; or the estate, represented by the executor or administrator.

GR: If no one is charged with the duty of giving legacies and devisees, it is the estate which must give the legacies or devisees EXCEPTION: If the testator gives this duty to the compulsory heirs, or to legatees and devisees (Sub-Devisee or Sub-Legacy) LIABILITY OF HEIRS Heirs who take possession of the estate are solidarily liable Question of who is negligent is immaterial Does not include fortuitous events Generic or Indeterminate (art. 928): It is not particularly designated or physically segregated from all other things belonging to the same class. NOTE: If the thing lost is determinate, the obligation to deliver is extinguished provided the obligor is not guilty of fault, delay or fraud. If the legacy or devise is a burden on the estate itself, there is no warranty against eviction if there were court proceedings which ordered the giving of such legacy. Legacy/ Devise of a thing belonging to another: (930-931) Testator ordered the acquisition - Estate should try to acquire the part or interest owned by other parties OR - If the owner is unwilling to part with the thing, estate gives the monetary equivalent Testator erroneously believed that the thing belonged to him GR: legacy/ devise is void EXCEPTION: testator acquired the thing after making the disposition Legacy/ Devise of a thing already belonging to the legatee/ devisee or subsequently acquired by him: (932-933)

Thing already belongs to the legatee/ devisee at the time of the execution of the will - Legacy/ devise is void - Not validated by subsequent alienation by devisee/ legatee Thing is owned by stranger at the time of the execution of the will and acquired thereafter by legatee/ devisee - Testator erroneously believed that it belonged to him > legacy/ devise is void - Testator was not in error > legatee/ devisee is entitled to reimbursement if this was acquired onerously; BUT nothing more is due if it was acquired gratuitously LEGACY IS PLEDGED OR MORTGAGED GR: Estate should answer for the indebtedness such as pledges, mortgages, any other lien before or after the execution of the will. Exception: - Contrary intention - Testator expressly provide that the devisee or legatee shall pay - Easement - Usufructs - Leases of real rights Ex to the EX: -Devisee or legatee may be ordered to pay provided the amount does not exceed the value of the devise or legatee (925) Legacy of Credit (Art. 935) Novation of credit Legatee is subrogated in favor of the testator Executor or administrator - shall assign the actions to the legatee, or - deliver proceeds to the legatee legacy of credit shall comprise that part still existing at the testators death with the interest legacy of credit may be generic or specific all guarantees whether personal (guaranty or surety) or real

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(pledge or mortgage) are deemed included Legacy of Remission (Art. 935) donation mortis causa subject to rule of inofficious testamentary dispositions may be reduced if legitime is impaired amount remitted must be included in the computation of the NHE EFFECT OF ACTION AGAINST DEBTOR-LEGATEE (Art. 936) Legacy is revoked (credit or remission) Payment may come before or after testators death Revocation refers to the bringing of the action and not the payment Judicial demand is needed (action) If the principal obligation is remitted, the pledge is automatically remitted Also includes mortgage, antichresis or any other security Legacy or Devise to a creditor (Art. 938) GR: Will be treated like any other legacy/ devise and therefore will not be imputed to the debt EXCEPTION: Will be imputed to the debt if testator so provides, and if the debt exceeds the legacy/ devise, the excess may be demanded as an obligation of the estate - effective only as to what is due, unless the bigger amount specified constitutes a natural obligation Alternative Devise or Legacy (Art. 940): - One which provides that among several things mentioned, only one is to be given. Right of Choice: GR: Given to the person burdened (executor or administrator, heir, legatee or devisee) EXCEPTION: The legatee/ devisee, if the testator so provides Person who is to choose dies before choice is made: Choice belongs to executor or administrator - right is transmitted to his successor in office Choice belongs to an heir, legatee or devisee - right is transmitted to his own heirs > Once the choice is made, it is irrevocable. The alternative legacy is converted into pure obligation (1179) Rules on Validity: (Art. 941) Generic Legacy valid even if no such movables exist in the estate estate will simply acquire it Generic Devise valid only if there exists such an immovable in the testators estate at the time of his death

Testamentary Instruction to pay a debt (art. 939): This is not a testamentary disposition, but merely a direction to discharge a civil obligation Instruction to pay a non-existing debt - should be disregarded, because this would be solution indebiti Instruction to pay more than what is due

Right of Choice: (Art. 942) 1. person burdened 2. estate limitations > choice must neither be inferior or superior quality > for generic personal legacies = if there be some in the estate, person charged must select from them and not from outside the estate Legacy for Education Duration:

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1. Age of majority; or 2. Completion of professional, vocation, or general course (if legatee pursues his studies diligently Whichever comes later Legacy for Support Duration: Legatees lifetime, unless the testator has provided otherwise Legacy of a Periodical Pension Demandability: 1. Upon testators death 2. Succeeding ones = beginning of the period without duty to reimburse should the legatee die before the lapse of the period Legacy for Education Legacy for Support Legacy of a Periodical Pension Amount: 1. fixed by testator 2. proper as determined by legatees social standing and circumstances; & value of disposable estate Amount: 1. fixed by testator 2. testator during his lifetime used to give the legatee, unless markedly disproportionate to the value of disposable portion 3. reasonable as determined by legateess social standing & value of disposable estate Legatee must wait until an order for distribution has been issued. Date of effectivity retroacts to the decedents death if legacy not inofficious LEGACIES Demand- ability Ownership Fruits Pure & Determinate Pure & Generic Upon testators death Upon the happening of the condition, unless testator provides otherwise ARTICLE 950. If the estate should not be sufficient to cover all the legacies or devises, their payment shall be made in the following order: (1) Remuneratory legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; Upon testators death Upon testators death from testators estate = upon testators death acquired from 3rd person = upon acquisition Upon testators death Upon determination, unless testator provides otherwise (949) LEGACIES Demand- ability Ownership Fruits With a (suspensive) term Conditional (suspensive) Upon the arrival of the term Upon the happening of the condition Upon the arrival of the term, but the right to it vests upon the testators death (878) Upon testators death, if the condition is fulfilled Upon the arrival of the term (implied from 885)

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(5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata. (887a) Art 911 Art 950 When such reduction is necessary to preserve the legitime from impairment, whether there are donations inter vivos or not Donation and legacy = 64 Apply art. 911 donation IV concurs with legacy Donation inter vivos of 30 stands Remaining 10 less preferred legacy of 4 = 6 Proportionate reduction for Y and Z Y gets 2 Z gets 4

ARTICLE 911. HOW REDUCTIONS SHOULD BE MADE? When, although the legitime has been preserved by the testator himself, by giving the compulsory heirs sufficient to cover such legitime, there are donations inter vivos concurring with the legacies or devises within the free portion When the question of reduction is exclusively among the legatees themselves, either

- because there are no compulsory heirs, or

- because the legitime has already been provided among the compulsory heirs in his will or there are no donations inter vivos Article 911: Application

1. Determine the NHE 2. Determine legitime of compulsory heirs based on the NHE 3. Add total values of legitimes of all compulsory heirs 4. deduct the value of the total legitimes from the NHE (1) to arrive at the free disposal (not free portion) 5. charge the donations to strangers to the free disposal 6. charge preferred legacies and devises to free disposal 7. charge all other legacies/devises to free disposal 8. in case free disposal is insufficient, reduce the legacies, donations, etc. in the order of priority Article 950: Application Given: Estate = 80; legitime to children = 20 each; preferred legacy to X = 25; remuneratory legacy to Y = 30; legacy for education to Z = 15

Given: Estate = 50; Legitime of 2 children in the will = 20 (each); donation inter vivos to F = 30; preferred legacy to X = 4; legacy to Y for educ = 10; remuneratory legacy to Z = 20

Get NHE - 50 + 30 = 80 Legitime is of 80 = 40 40 for children is covered Free portion = 40

Legitime of 40 (20 each) is sufficient Free portion = 40 Legacies = 70 Apply 950 (RPSESA) reduction is exclusively among legacy Satisfy Ys legacy 30 (40-30) Remaining amount is 10 X gets 10

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X suffers a reduction of 15 Z gets nothing Rules on Acceptance and Repudiation of Legacies/ Devises (Art 954): - if the legacy/ devise is partly onerous and partly gratuitous, the recipient cannot accept the gratuitous part and renounce the onerous part - If the legatee/ devisee dies before accepting or renouncing, his heirs shall exercise such right (heirs exercise right as to their pro-indiviso share) Rules when 2 Legacies/ Devises to the Same Recipient (Art. 955) : Both gratuitous - may accept or repudiate either or both except if testator intended it to be inseparable Both onerous - may accept or repudiate either or both except if testator intended it to be inseparable One gratuitous & the other onerous - the recipient cannot accept the gratuitous part and renounce the onerous part

Par. 2 alienation - Alienation of property must be voluntary - There is an implied revocation as there is change of intention - Does not apply in foreclosure of mortgage - Repurchase of the property revives the legacy or devise - When a property has been alienated because of vitiated consent and was reacquired by the testator, the legacy or devisee is still effective > Exc: legacy or devise is ineffective if by reason of nullity of contract Par. 3 loss -Loss refers to both physical loss and legal or juridical loss (expropriation proceedings) - during the lifetime of the testator, or - after his death without the heir's fault.

> the person obliged to pay the legacy or devise shall be liable for eviction Legacy/ Devise to one who is also a compulsory heir: - Recipient may accept either or both ARTICLE 957. without effect: The legacy or devise shall be > if the thing bequeathed should not have been determinate as to its kind, in accordance with the provisions of article 928. ARTICLE 959. A disposition made in general terms in favor of the testator's relatives shall be understood to be in favor of those nearest in degree. Relatives must be within the fifth degree Relatives by affinity are excluded Nearer in degree excludes the father Right of representation does not exist No preference in line as what matters is the nearness of degree Applies only to testators relatives (e.g. not to wife)

Par. 1 transformation Form external appearance of the thing Denomination essential elements, species or genus

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Does not apply to those who are entitled thereto (goes to intestate heirs) Legal or Intestate Succession ARTICLE 960. Legal or intestate succession takes place: If intestate heirs are not compulsory heirs, they can only be excluded Rules: Exclusion of an Intestate Heir 1. Excluded heir must not be a compulsory heir 2. State must never be excluded 3. When a person is excluded, he alone is excluded and does not include his own descendants and other heirs 4. express exclusion of an intestate heir makes the property go to the heirs of the same degree, if any, otherwise to the next degree Intestate Heirs: 1. 2. 3. 4. 5. 6. 7. 8. Legitimate Children/ Descendants Illegitimate Children/ Descendants Legitimate Parents/ Ascendants Illegitimate Parents Surviving Spouse Brothers, Sisters, Nephews, Nieces Other Collateral to the 5th degree State

(1)If a person dies - without a will, or - with a void will, or - one which has subsequently lost its validity; (2)When the will - does not institute an heir to, or - does not dispose of all the property belonging to the testator. (3) - If the suspensive condition attached to the institution of heir > does not happen or >is not fulfilled, or - if the heir >dies before the testator, or > repudiates the inheritance, > there being no substitution, and > no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided in this Code. Other Causes of Intestacy: Happening of resolutory condition Expiration of resolutory term Preterition In cases of ineffective testamentary disposition Intestate heirs are not necessarily compulsory heirs Order of intestate succession is fixed by law and cannot be altered by agreement Intestate heirs cannot be disinherited unless they are also compulsory heirs

Direct Line: No legal limit to the number of degrees for entitlement to intestate succession Collateral Line: Computation of degrees is particularly important because intestate succession extends only to the 5th degree of collateral relationship (1010) Order of Intestate SuccessionDescending Direct Line Deceased is a Legitimate Child 1) Legitimate children and their legitimate descendants (992) - includes the legitimated, adopted children & descendants

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Succession to the Estate of an Adopted Child: (190 FC) 1 a. legitimate children b. illegitimate children c. surviving spouse

2) Legitimate parents and other legitimate ascendants (992) - no right of representation in ascending; - if there are no legitimate parents, the adopting parents will take their place but they will concur with the surviving spouse and the illegitimate children)[190 FC] 3) Illegitimate children and their descendants, whether legitimate or illegitimate [988, 990, 992) 4) Surviving spouse, without prejudice to the rights of brothers and sisters, nephews and nieces if there be any (995) 5) Brothers and sisters, nephews and nieces. Other collateral relatives up the 5th degree of relationship (1010)7State (1011) Deceased is an Illegitimate Child

2 a. biological parents (legitimate or illegitimate or legitimate ascendants, as the case may be) b. adopter/s 3 a. surviving spouse or illegitimate children b. adopter/s 4 a. surviving spouse b. illegitimate children c. adopter/s Rule on intestacy applies

1 Legitimate children and their legitimate descendants (979) 2 Illegitimate children and their descendants, whether legitimate or illegitimate (988, 989, 990) 3 Illegitimate parents or parents by nature (ascendants of illegitimate parents are not included) [993] 4 Surviving spouse (994); Illegitimate brothers and sisters, nephews and nieces if there be any (by inference from 994[2]) 5 6 Brothers and sisters, nephews and nieces State (1011)

1/3 1/3 1/3 5 6 Adopter/s alone -Whole estate Collateral blood relatives alone- Rules on intestacy applies

Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them should have died, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal portions.

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EXCEPTION: Grandchildren inherit in their own right when all heirs repudiates. Ascending Direct Line father and mother, if living, shall inherit in equal shares. should one only of them survive, he or she shall succeed to the entire estate of the child. no right of representation in the ascending line in default of the father and mother, the ascendants nearest in degree shall inherit. should there be more than one of equal degree belonging to the same line they shall divide the inheritance per capita should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants Nearer excludes the farther Illegitimate Children ARTICLE 991. Illegitimate children concurring with legitimate ascendants ( ill ch; - ascendants) Estate 100 - leg parent; 2 ill ch leg par 50; 2 ill ch 50 (25 each) Estate 100 - leg parent; 2 ill ch; legacy to F - 10 F 10 100 10 = 90 leg par 45 ; ill ch 45 (22.5 each) In case of partial intestacy, charge the part given to the stranger to the instate share of the illegitimate children without however impairing the legitime of the latter 100 50 = 50 (leg parents) 50 10 (F) = 40 40 ill ch ( 20 each) ARTICLE 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. Iron Curtain Rule / Barrier bet. Leg & Illeg Family REASON: the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize the blood tie and seeks to avoid further grounds of resentment. A / (leg) B / \ \ C (illeg) / E (illeg) \ F (illeg) G (illeg)

(leg) D

Question: If B and C predecease A, can their children inherit intestate from A?

illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother and vice versa D can inherit while E cannot F and G can inherit Can an illegitimate child inherit by representation? It depends If an illegitimate child represents a legitimate ascendant, NO (art. 992)

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If an illegitimate child represents an illegitimate descendant, YES Surviving Spouse Marriage must be legitimate Does not include common law marriages, bigamous marriages A guilty spouse in legal separation does not inherit as in intestate heir Share of surviving spouse concurring with legitimate parents or ascendants (50-50) Estate 20 = Leg parent 10; SS - 10 Estate 20 ; Legacy 2 20 -2 = 18 leg par 9; ss -9 impairs legitime of parents What should be done? Legitime of surviving spouse and legitimate children must be satisfied first before giving the shares of the illegitimate children Leg ch = 35 SS = 17.5 2 ill ch = 17.5 (1/2 each) Total of 70 ARTICLE 1000. Surviving spouse concurring with legitimate ascendants and illegitimate children Given: Estate 100 Leg asc = (50) SS = 1/ 4 (25) Ill ch = 1/ 4 (25)

- If there is legacy, charge it to the to the surviving spouse in order not to impair parents legacy (art. 997)

In case of partial intestacy, charge the legacy to the intestate share of the spouse but her legacy must be preserved.

Leg par -10 SS - 8 (10-2) Legacy - 2 ARTICLE 999. Surviving spouse concurring with legitimate as well as illegitimate children Estate = 70 (SS, 2 leg ch, 1 ill ch) 2 leg ch = 40 (20 each) SS = 20 (one share of a leg ch) ill ch = 10 (half of the leg child Estate 70 (SS, 1 leg ch, 2 ill ch) Applying the above principle, hence: leg ch = 35 SS = 35 2 ill ch = 35 (17.5 each) total 105 (in excess of 35)

Estate = 100; Legacy to F = 10 F = 10 Asc = 50 SS = 15 Ill Ch = 25 Collateral Relatives Nearer excludes the farther Right of representation only limited to nephews and nieces Brothers and sisters inherit per capita Nephews and nieces inherit per stirpes Full blood brothers and sisters shall be entitled to a share double to that of the half blood brothers and sisters Relatives nearest in degree excludes the more distant ones Between an aunt and nephews/nieces, the latter are preferred

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Children of first cousins are not entitled to represent. Cousins are preferred over them. The State - State inherits in default of relatives within the fifth degree When the State inherits, the Assignment and Disposition of Decedents Assets are the ff: 1) If decedent is a resident of the Philippines at any time : Personal Property = to municipality of last residence Real Property = where situated 1. Predecease in testate and intestate succession 2. Incapacity in testate and intestate succession 3. Disinheritance in testate succession Intestate Succession right of representation covers all that the person being represented would have inherited Testate Succession right of representation covers only the legitime, there being no right of representation in voluntary heirs Representation never operates when there is REPUDIATION

2) If decedent never a resident of the Philippines Personal and real property = where respectively situated How Property is to be used by the State: -For the benefit of public educational and charitable institutions in the respective municipalities/cities - Alternatively, at the instance of an interested party, or motu proprio, court may order creation of a permanent trust for the benefit of the institutions concerned > Heirs may recover property within 5 years from delivery to the State (1014) Right of Representation ARTICLE 970. Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited. Right of representation exists in

Kinds of Succession that representation operates: Legitime Intestacy (It takes place only with respect to rights or inheritance conferred by law) What lines does representation obtain Legitime - direct descending line only Intestacy - direct descending line; and collateral line in case of nephews and nieces representing brothers and sisters of the deceased The person representing inherits from the person whom the person represented would have succeeded Property received by representation cannot be made to answer for the debts of the person being represented Representative himself must be capable of succeeding the decedent Whenever there is succession by representation, the division of the estate shall be made per stirpes When nephews and nieces inherit without their uncles and aunts, they shall inherit in equal portions Grandchildren always inherit by representation whether they concur with the children or not

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They inherit in their own right only when all the children renounce, and they share equally or per capita An illegitimate child can be represented by a legitimate or illegitimate descendant A legitimate child can only be represented by a legitimate descendant ARTICLE 976. A person may represent him whose inheritance he has renounced. ARTICLE 977. Heirs who repudiate their share may not be represented. A renouncer may represent but may not be represented A (died on 2010) | B (died on 2006) | C (renouncer) | D If B dies and C renounces, D cannot represent C If later A dies, C can represent B and inherit from A Causes Legitime Intestacy Predecease Incapacity Representation Representation Representation Representation and the relatives of the adopter An adopted is an heir of the adopter but not of the relatives of the adopter. If the adopter predeceases the adopted child, the latter cannot represent the former in the inheritance from the legitimate relatives of the adopter Basic Principles of the law of INTESTATE SUCCESSION 1. Compulsory heirs are never excluded - Theory of Concurrence and not of Exclusion

2. Nearer excludes the farther - without prejudice to right of representation 3. Right of Representatin - the farther becomes just near as the nearer - does not exist in the ascending line - right of representation only exists in the ascending line - in the collateral line, such is only given to nephews and nieces - such is only true in legal succession - voluntary heirs cannot be represented 4. Intestate share are either equal to or greater than the legitime 5. In case of partial intestacy, the legacies and devises or institutions to the free portion must be charged proportionately against intestate heirs who receive intestate shares greater than their legitime - but should not impair legitime 6. 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 7. Nephews and nieces inherits by right of representation when they concur with aunts and uncles - parents should not have repudiated

Repudiation No Representation No Representation Dis- inheritance Representation ADOPTED CHILD An adopted child cannot represent An adopted child cannot be represented There is no filiation between the adopted child Not applicable

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8. Nephews inherit in their own right when they do not concur with aunts or uncles 9. An illegitimate child can be represented by a legitimate or illegitimate descendant 10. A legitimate child can only be represented by a legitimate descendant 11. There is reserva troncal in legal succession 12. A renouncer can represent but cannot be represented

- Accretion is a right - It is based on the presumed will of the deceased - decedent prefers to give certain properties to certain individuals, rather than to his legal heirs - Accretion may be avoided by - Expressly designating a substitute - Expressly providing that he does not want accretion to occur Requisites of Accretion:

13. A person who cannot represent a near relative cannot also represent a relative farther in degree 14. If decedent is survived by a grandfather and a brother, the former inherits alone - both are of the 2nd degrees - direct line is preferred over collateral line 15. An aunt or uncle is excluded by nephews and nieces - both are of the 3rd degrees - nephews and nieces are 4th in the order of leg succ - aunt or uncle are 5th in the order of leg succ Right of Accretion

1. Unity of object - the same inheritance, legacy or devise 2. Plurality of subjects - 2 or more persons are called to the same property pro indiviso 3. Vacant portion; DUE TO: - Repudiation - Predecease - Incapacity - If a suspensive condition is not fulfilled - If a particular heir cannot be identified 4. Acceptance Testator gave half of his house to A and another half to B - If A dies, half of the house goes to B by accretion Testator gave 1st floor of his house to A and the second floor to B - If A dies, the first floor will not go to B because the portion has been earmarked (art. 1017) If earmarked Accretion does NOT apply If not earmarked Accretion DOES apply ACCRETION IN TESTAMENTARY SUCCESSION As regards the Free Portion:

ARTICLE 1015. Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his coheirs, co-devisees, or co-legatees.

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Accretion applies only in free portion (1021) - Accretion is not applicable in legitime. Accretion takes place if all the requisites in Art 1016 are present. If not, other heirs will inherit in their own right As regards the Legitime: If there is predecease, incapacity or disinheritance in connection with the legitime, representation will operate. If there is repudiation or no representative, heirs will inherit in their own right ACCRETION IN LEGAL SUCCESSION > Accretion operates in case of - Repudiation (art. 1018 but also includes incapacity) - Incapacity (except if representation is proper) > There is no accretion in case of predecease - there is really no vacant portion in case of predecease in legal succession - this is based on the theory of intestate succession survival of the intestate heirs - survivors inherit in their own right except if representation is proper - effect is still the same ART 1021. Accretion Among Compulsory Heirs There is no accretion in legitime Accretion only concerns the free portion The legitime repudiated by an heir goes to the latters co-heirs in their own right EXAMPLE: Estate 600; Testator insituted 2 Leg Ch and a Friend. Q1: Distribute the Estate - Get the legitime first (600 / 2 = 300 @ 150 each) - Divide free portion (300) into three = C1-100; C2100; F-100 - Total = C1-250; C2 250; F - 100 Q2: What if C1 predecease the Testator? - Legitime of 150 goes to C2 in the latters own right - 100 given from the free portion is given by accretion to C2 and F

Estate 600; Testator gave 2 Leg Ch 300 and a Friend 300. F has a child F1. Q1: If F dies, can F1 get the 300 - No because a voluntary heir cannot be represented Q2: If F dies, will the Leg Ch get the 300? - Yes - Not by right of accretion because the Leg Ch were not given any free portion - Leg Ch get the 300 by intestacy ORDER of Preference (ISRAI) Institution Substitution Representation Accretion Intestacy

Capacity to Succeed by Will or by Intestacy Ability to inherit and retain property obtained mortis causa Passive testamentary capacity Persons not incapacitated by law may succeed by will or ab intestato (art. 1024)

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Requisites: Capacity to Inherit 1. Heir, devisee or legatee must be living or at least conceived at the moment the succession opens - a conceived child has the capacity to inherit provided in conforms with the requirements under arts. 40 and 41 of the NCC 2. Such heir, legatee or devisee must not be incapacitated or disqualified by law to succeed Juridical Persons Requirement for capacity to succeed: It must already exist as a juridical person when the decedent dies. Should not be prohibited by their charter or the laws of their creation But private juridical persons cannot inherit in legal succession. ARTICLE 1027. The following are incapable of succeeding due to POSSIBLE UNDUE INFLUENCE (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; Undue influence is a CONCLUSIVE PRESUMPTION Will must be made during the period of last illness No undue influence if a will made before or long after the said period Disqualification does not extend to - Legitime - Intestacy - Dispositions which do not extend to a testamentary benefit Illness must be the last and one which the testator died, or the one immediately preceding it. (2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; Priest refers to paragraph A Guardian may refer to the guardian of the person or of the property Guardians are conclusively presumed to have exercised undue influence Guardians are disqualified unless The will was made after the approval of the final accounts Final accounts are those which terminate the financial responsibility of the guardian Guardian is the ascendant, descendant, brother, sister or spouse (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children A witness is not qualified to inherit but still a valid witness Still qualified to inherit if there are more than three witnesses A witness can be burdened with a duty is valid provided that he is not given any testamentary disposition (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness Disposition must be made during the last illness and after the care by them has commenced Implies a continuing or regular caring and not isolated ones

(3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid

Disqualification extends only up to the fourth degree Relatives are those by consanguinity

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(6) Individuals, associations and corporations not permitted by law to inherit. Prohibitions not to inherit must imposed by law ARTICLE 1028. Incapacity by reason of public morality Art. 739. The following donations shall be void: Those made between persons who were guilty of adultery or concubinage at the time of the donation - Criminal conviction not necessary - Guilt can be proved civilly Those made between persons found guilty of the same criminal offense, in consideration thereof; - There must be conviction Those made to a public officer or his wife, descedants and ascendants, by reason of his office - applies only when an employee makes disposition in favor of a superior and not vice versa Special Dispositions 1) Art. 1029 Disposition is for prayers and pious works Disposition is for general terms Disposition does not specify its application Executor, with courts approval, shall deliver to the following: to the church or denomination to which the testator may belong (for prayers and pious works) to the State (for the purposes mentioned in article 1013) Dispositions in favor of the poor Poor in general Refers to the poor in the testators domicile at death Poor of a definite locality The poor is designated by The person appointed The executor The majority vote of the justice of the peace, mayor, municipal treasurer Approval of the CFI is necessary 3) Art. 1031 Dispositions made in favor of a disqualified person Purpose: To prohibit the testator from violating indirectly what he cannot violate directly. Interposition is made If the disposition is disguised as an onerous contract If fictitious dates are ordered paid If an intermediary is interposed The disposition is void hence ineffective both as to the intended beneficiary and the intermediary. The intestate heirs, to whom the property would go, have the right to claim the nullity. Refers to a person absolutely incapacitated to inherit or to a person incapacitated by reason of incapacity (1027) or by reason of public morality (1028) The term does not refer to those incapacitated by reason of unworthiness under 1032 because of 1033 since there can be condonation in unworthiness ARTICLE 1032. The following are incapable of succeeding by reason of unworthiness 2) Art. 1030

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institution of criminal action mere statement of the heir as witness in a case against the testator (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; Applies to granddaughters and sons includes failure to give due care and attention not limited to abandonment under the RPC includes other descendants and not just daughters no criminal conviction needed (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; there must be final judgment if appealed, effects will be held in abeyance there must be intent to kill refers to the spouse, descendants and ascendants of the testator applies to frustrated and consummated acts applies to accomplices applies even if pardoned If heir should die before final judgment, he is capacitated as long as he did not predecease testator Heir is still capacitated if he made the attempt or even the killing itself only after the death of the testator (heir is not incapacitated at the time of the testators death) (3)Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; accused crime is committed against anybody elements- 1) act of accusing; 2) accusation has been found to be groundless; 3) the crime charged carries a penalty of imprisonment for at least six years accusation includes: heir-witness is in possession of facts but deliberately fails to reveal said facts (4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month Requisites: 1. The heir has knowledge of violent death of the decedent; 2. The heir is of legal age; 3. The heir fails to report it to all officer of the law within a month (after learning of it); 4. The authorities have not yet taken action; 5. There is a legal obligation for the heir to make an accusation. (now: no one is bound to make an accusation except the authorities concerned) (5) Any person convicted of adultery or concubinage with the spouse of the testator; There must be conviction by final judgment (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. Effects of Acts of Unworthiness: Total Disqualification compulsory heir loses his right to the legitime. The unworthy compulsory heir FORFEITS EVERYTHING which he could have received mortis cause from the decedent. Donations inter vivos are not affected.

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- can be revoked by the decedent during his lifetime - If not revoked, they are subject to collation CONDONATION (Art. 1033) - does not apply to arts. 1027 and 1028 1. Implied - testator still instituted heir despite knowledge of the cause of unworthiness at the time of the execution of the will - will must be valid 2. Express - knowledge of the testator comes only after the execution of the will - condonation must be in writing ARTICLE 922. A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit, and renders ineffectual any disinheritance that may have been made. Effect of reconciliation: - If it occurs before disinheritance is made - Right to disinherit is extinguished. - If it occurs after the disinheritance is made - Disinheritance is set aside How disinheritance is revoked: - Subsequent reconciliation - Nullification of the will of the testator - Subsequent institution of the disinherited heir in a subsequent will Restoration of Capacity: Overlap of Rules on Unworthiness & Disinheritance 1st Situation: If the offended party does not make a will subsequent to the occurrence of the (common) cause > 1033 applies - written condonation is necessary to restore capacity > 922 cannot apply because disinheritance must be made in a will 2nd Situation: If the offended party makes a will subsequent to the occurrence of the (common) cause > If he knew of the cause - If he disinherits, apply 922 - If he institutes or pardons the offender Effect: offender restored to capacity > If will is silent Effect: disputed but better view is that the unworthiness stays > If he did not know of the cause Effect: unworthiness stays Kinds of Incapacity to Succeed: Absolute or Per Se = incapacity of a person, whether natural or juridical, to succeed any person in any form with regard to any property 1. Those not living at the moment the succession opened 2. Those who lack juridical capacity e.g. abortive infants, child not yet conceived 3. Uncertain persons 4. Individual, associations, and corporations not permitted by law or their charters to inherit Relative or Per Accidens = incapacity of a person, whether natural or juridical, to succeed by reason of a special relation which he has to the decedent or to other persons, or to the property disposed of 1. Incapacity due to undue influence, public policy, acts of unworthiness 2. Incapacity of the guilty spouse to inherit where there is a decree of legal separation 3. Incapacity of legitimate and illegitimate relatives to inherit from each other ab intestato ART 1034. How to Judge the Capacity of the Heir

GR: Capacity is determined at the time of the time

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of the decedents death (777) EXCEPTION: If institution is subject to a suspensive condition (Double Capacity) Time of decedents death; and Time of happening of condition If final judgment is a requisite of unworthiness time of final judgment (Nos. 2, 3, or 5 of article 1032 ) No. 4 of Article 1032, the expiration of the month allowed for the report. ARTICLE 1035 . Incapacitated Compulsory Heir Incapacitated compulsory heir can be represented The representative only gets the legitime and to whatever portion in the intestate succession the person represented may have been entitled to The free portion is distributed by accretion or by intestacy If the unworthy heir has no descendant, the property shall go back to the estate of the decedent for disposition in favor of the legal heirs For unworthy brother or sister, his/her children will represent ARTICLE 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir - acts were done before the judicial order of exclusion - valid as to the third persons who acted in good faith - co-heirs shall have a right to recover damages from the disqualified heir. ARTICLE 1037. Rights of an excluded of unworthy heir Collect credit (unworthy heir is still a creditor) Right to Reimbursement granted to the excluded heir is irrespective of his bad faith because the expenses incurred under this Article are necessary expenses ARTICLE 1038. Incapacitated Heir who disregards Prohibition If the land should increase by alluvium, he should return not only the land but also the accessions If he had built a house thereon, he is considered a possessor in bad faith and can lose the house Good faith or bad faith is immaterial Conclusive presumption is bad faith ARTICLE 1040. Prescriptive period for declaration of incapacity; and recovery of the inheritance (inheritance, devise or legacy) shall be brought within five years from the time the disqualified person took possession thereof action must be for both (declaration of incapacity does not amount to recovery) action for recovery of inheritance already includes declaration of incapacity action must include recovery of accessions, rentals and fruits It may be brought by anyone who may have an interest in the succession. Acceptance and Repudiation of the Inheritance it is an act which is purely voluntary and free (art. 1041) Legitime may also be repudiated effects always retroact to the moment of the death of the decedent (art. 1042) - To prevent any stage where the property will be without an owner and possessor The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except (art. 1056):

Collect the necessary expenses (for preservation)

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in case of vitiated consent an unknown will appears. Requisites: Acceptance and Repudiation (art. 1043) 1. Heir must be certain of the death of the person from whom he is to inherit - It is enough that there is a presumed death 2. Heir must be certain of his right to the inheritance Summary of who may accept or repudiate (Arts. 1044-1048) : GR: if the heir, legatee or devisee has the free disposal of his property, he himself may accept or repudiate his inheritance, legacy or devise SPECIAL LIMITATIONS: 1) If beneficiary is incapacitated (minor, deaf-mute who cannot read or write, insolvent judicially declared, under civil interdiction) - guardian or legal representative may accept - in case of repudiation, judicial authorization is necessary 2) If beneficiary is the poor - right to accept belongs to the person designated by testator, executor. - repudiation is only exercised by beneficiaries 3) If beneficiary is a corporation - legal representative shall accept or repudiate but judicial authorization is needed for repudiation 1) Express Kinds of Acceptance (Art. 1049): - Public document; or - Private writing 2) Tacit or implied (art. 1050) - acts by which the intention to accept is necessarily implies or which one would have no right to do except in the capacity of an heir (like taking possession) - If the heir sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them - If the heir renounces the same, even though gratuitously, f or the benefit of one or more of his co-heirs - If he renounces it for a price in favor of all his co-heirs indiscriminately > but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. 3) Presumed (art. 1057) - by operation of law, when the heir has not signified his acceptance or repudiation within 30 days - applies only if there are settlement or administration proceedings - Order of distribution is issued when there is already a final project of partition - The order of distribution is itself a writ of execution GR: Act of mere preservation or provisional administration is not acceptance EXCEPTION: If side by side with the acts of preservation, the heir has assumed the title or capacity of an heir (Exercising acts of dominion is implied acceptance) How Repudiation is made (art. 1051): 1. by public instrument 2. by an authentic instrument (not forged) 3. by petition to the court having jurisdiction over the proceeding in accordance with art 1067 Requisites of valid waiver of inheritance:

1. Existence of a right; 2. Knowledge of existence thereof; and 3. Intention to relinquish such right

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ARTICLE 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. Rights may be waived except if prejudicial to third parties with rights recognized by law such as creditors Creditors accept the inheritance in the name of the renouncer Creditors can only accept to the extent that they have been prejudiced Excess of the inheritance does not go to the renouncer but will be distributed in accordance with the rules The rule does not apply if renouncer has sufficient properties Creditors must be such at the time of the repudiation and not after repudiation ARTICLE 1053. If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. What is being transmitted is the latters right to accept or repudiate This is not the right of representation which operates in case of predecease, incapacity and disinheritance under 970 ARTICLE 1055. Heir is not allowed to repudiate the testamentary share and at the same time accept the intestate share This is one form of implied repudiation (intestate) based on express repudiation (testate) Repudiation as intestate heir not deemed to have renounced testamentary heir heir may still accept the portion in his character as testamentary heir Non-applicability of rule to legitime: Should the heir be simultaneously a compulsory heir and a testamentary heir, he can accept either or both Collation First Kind - Computing or adding certain values to the estate, and charging to the legitime Second Kind - Computing or adding certain values to the estate and charging the same to the free portion There can be collation both in testamentary and legal succession ARTICLE 1061. Collation by a Compulsory Heir Article is collation of the first kind Purpose: to produce EQUALITY among the compulsory heirs of the same class Donation inter vivos is considered as advanced legitime Spouse not included here since spouses are prohibited from donating to each other during their marriage Donations made before the marriage is considered as donation made to a stranger and charged against free portion Repudiation as testamentary heir Effect is that he is automatically disqualified from receiving the intestate share What should be included in the computation of net hereditary estate all donations inter vivos whether made to compulsory heirs or to strangers should be included

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Value to be computed value of the property at the time the donation was made ARTICLE 1062. When compulsory heirs are not required to collate Must be expressly provided by the donor PREFERENCE and not equality is obtained provided that the legitime is not impaired Donations are charged only to the free portion and not to the legitime If donee repudiates his inheritance, his donation intervivos should be charged to the free portion and not to the legitime

ARTICLE 1065. Donations to Granchildren Parent should not collate for he has not received the donation ARTICLE 1066. Donations to Spouse of a Child Donee is not a compulsory heir If given by the parent to the spouses jointly, the child shall bring to collation one-half of the donation ARTICLE 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts Such expenses are not advance legitime Their cause is not generosity but moral, social, and legal obligations Applies only up to high school ARTICLE 1068. Expenses for professional, vocational or other career unless parents so provide (advance to the FP), or unless they impair the legitime Donations by parents to children which are subject to Collation: ARTICLE 1069. Sums paid by a parent in satisfaction of : debts of his children election expenses fines, and similar expenses

Article 1063. Rule on Testamentary Dispositions to Compulsory Heirs (legitime or devise): GR: They should not be imputed to the legitime, but to the free portion (collation covers only donation inter vivos) EXCEPTION: If the testator provides otherwise ARTICLE 1064. Collation by Grandchildren When they survive with their uncles, aunts, or cousins, they shall bring to collation all that their parents, if alive, would have been obliged to bring an exception to the rule that only donees should collate applies only when the grandchild inherits by right of representation, not when he inherits in his own right Does not only apply in case of predecease but also in case of incapacity and disinheritance They shall also bring to collation all that they may have received from the decedent during his lifetime Donations to children which are not subject to Collation:

ARTICLE 1070. Wedding gifts by parents and ascendants consisting of jewelry clothing, and outfit, Exceeding one-tenth of the free disposal. - excess should be charged to the legitime

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Useful expenses = reimbursement to the full extent provided that the improvement is still in existence Ornamental expenses = no reimbursement but right of removal is granted if no injury to the estate will be caused

ARTICLE 1071. and partition?

What to bring into collation

only their value at the time of the donation at the time of the perfection of the donation subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. Equalization of Shares

If the thing to be returned only in part: Necessary and useful expenses = reimbursement is also partial, in proportion of the value to be returned Ornamental expenses = same rule in total return Properties or Rights received by Compulsory Heir not subject to Collation: 1. Property left by will 2. Property which may have been donated by an ascendant of the compulsory heir to the children of the latter; 3. Property donated to the spouse of the compulsory heir; 4. Expenses for support, education, medical attendance even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts; 5. Expenses incurred by parents in giving their children a professional, vocational, or other career; 6. Wedding gifts consisting of jewelry, clothing, and outfit, given by parents or ascendants, so long as they do not exceed 1/10 of the disposable portion Partition and Distribution of the Estate

ARTICLE 1073. donee's share of the estate shall be reduced by an amount equal to that already received by him co-heirs shall receive an equivalent property of the same nature, class and quality. ARTICLE 1074. Real or Personal Property Rights (if real property) Get property of same kind If none, get cash or securities If none, sell property to get cash

Rights (if personal property) Get property of same kind If none, get equivalent (in value) personal property (no right to demand cash or to demand a sale to get cash) Reimbursement by co-heirs for the donated property If the thing has to be returned in its entirety: Necessary expenses = reimbursement to the full extent

ARTICLE 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased.

immediate effect of death is the vesting of the successional rights

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upon transmission of successional law, the result is coownership of the heirs over the entire mass. Subsequent partition Extrajudicial Judicial If there is ONLY ONE HEIR, he can adjudicate himself the entire estate by means of an affidavit (Affidavit of Self-Adjudication) ARTICLE 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. Kinds of Partition: Actual Constructive Classes of Partition: Partition according to the forum where effected Judicial Partition Extrajudicial Partition Partition according to duration of existence Definite Partition Provisional Partition Partition according to extent Total Partition Partial Partition ARTICLE 1080. First paragraph - Partition by the Causante (decedent) Nature of partition by causante It takes effect only upon death It is revocable as long as the causante is alive (hence, causante can change, or modify it, or even rescind it during his lifetime) How causante may make the partition By will; or By act inter vivos (must at least be in a public instrument if real property is involved) Limitation: legitimes of the causantes compulsory heirs cannot be impaired A partition validly made by the testator CANNOT be set aside by another partition effected by the heirs Second paragraph is preservation of enterprise ARTICLE 1081. Partition by Mandatory Mandatory is the person entrusted to make the partition Mandatory cannot be a co-heir to ensure fairness and impartiality The power delegated refers only to the implementation of the physical division of the estate based on the dispositions already made by the decedent or testator. Delegation of the power can be done inter vivos or mortis causa If the co-heirs find the physical division made by the mandatary unacceptable, they could reject it. In which case, the intervention of the court will be necessary to resolve the controversy. The will must first be probated before there can be partition. ARTICLE 1082. Constructive Partition Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a: sale, an exchange, a compromise, or any other transaction.

ARTICLE 1083. Right and Limitations to demand Partition GR: Co-heir may demand the partition at any time (Partition is generally a matter of right) EXCEPTIONS:

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When forbidden by the testator for a period not exceeding 20 years. Heir instituted under a suspensive condition acquires no rights unless and until the condition happens The other heirs (pure heirs), however, should not be deprived of their right to demand partition by furnishing adequate security How to Effect Partition: ARTICLE 1085. EQUALITY equality shall be observed dividing the property into lots, or assigning to each of the co-heirs things of the same - nature - quality and - kind. ARTICLE 1086. the heirs INDIVISIBLE OBJECT may be adjudicated to one of

EXCEPTIONS: When any of the causes for the dissolution of partnership occurs When the court finds compelling reason for partition

When the co-heirs agree on indivision for a period not exceeding 10 years, renewable for like periods (494) Causes to dissolve a partnership (18301831) The business becomes unlawful Insolvency of one partner Civil interdiction of one partner Insanity of one partner It has become impractical to carry out the business Business can be carried out only at a loss ARTICLE 1084. When Voluntary Heirs can demand Partition

provided he shall pay the others the excess in cash. Sell it to public auction if any of the heirs should demand This must be done.

ARTICLE 1087. REIMBURSEMENT BY CO-HEIR Co-heirs must render mutual accounting upon partition as regards income and fruits useful and necessary expenses damage thereto through malice or neglect Reimbursement may be enforced through filing an action for reimbursement or as an incident in an action for judicial partition ARTICLE 1088. Legal Redemption of Co-heir 1. There must be at least two or more heirs - Does not apply if there is only one heir

Pure Heirs - those who will inherit without any condition to fulfill or to await for Conditional Heirs - those who will inherit only upon fulfillment of the condition/s imposed by testator

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- Include legatees and devisees 2. One heir must sell his hereditary rights - there must be an actual sale - sale must involve hereditary rights and not specific object - actual hereditary rights and not future inheritance 3. The buyer must be a stranger. If the buyer is a co-heir, there is no right of redemption. - Strangers include those who are not heirs and heirs who do not succeed - Legatees, devisees and creditors are strangers 4. The sale must be before the partition - Does not apply if sale happens after partition but even before approval by the court 5. At least one co-heir must demand the redemption 2 heirs may redeem in proportion to their shares in the inheritance After the agreement of partition is approved, Art 1088 does not apply anymore because the parties are no longer co-heirs but are now co- owners apply 1620 Who can Demand the Partition of the Decedents Estate after his Death: 1. 2. 3. 4. By By By By any any any any compulsory heir; voluntary heir; legatee or devisee; and person who has acquired an interest in the estate

It cannot however be demanded in the following cases: 1. When the partition has been expressly prohibited by the testator for a period which shall not exceed 20 years (1083) 2. When the co-heirs have agreed that the estate shall not be divided for a period which shall not exceed 10 years, renewable for another 10 years (494) 3. When the partition is prohibited by law (494) 4. When to partition the estate would render it unserviceable for the use for which it is intended (494) Effects of Partition ARTICLE 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him.

6. The demand must be made within a period of 1 month from the notice in writing of the sale by the vendor The period runs if the co-heirs knew the fact of sale even if there was no demand 7. Price to be paid by the redemptioner is the same price of the sale If several co-heirs want to redeem, they may redeem in proportion to their respective shares The right to redeem is personal and cannot be transferred to other persons who are strangers

Rights of third persons are not, however, affected by the partition If co-heir had sold his share before the partition is made, the purchaser acquires the property adjudicated to said heir. WARRANTY AMONG CO-HEIRS ARTICLE 1092. - co-heirs shall be reciprocally bound to warrant > title > quality of each property adjudicated Warranty against Eviction: (1548)

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There can be eviction even if the heir does not lose ownership --- as long as there is a lessening of his right to enjoy the same (eg: it was subject to usufruct or easement) Warranty on the Qualit If the object or property given turned out to be unfit for the use intended or diminishes its fitness for such use ARTICLE 1093. Reciprocal and proportionate warranty ARTICLE 1095. ASSIGNMENT OF COLLECTIBLE CREDIT co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate co-heirs are only for his insolvency at the time the partition is made. Warranty for good debts Warrants that the debtor is solvent at the time of partition Good for five years-following the date of partition There is no warranty for bad debts, so an heir accepts them at his own risk ARTICLE 1096. The obligation of warranty among co-heirs shall cease in the following cases:

RULE: Reciprocal and proportionate to hereditary shares - if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion - Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (1071)

Exception to the right of reimbursement from insolvent obligor: Insolvency judicially declared ARTICLE 1094. WHEN TO BRING ACTION TO ENFORCE WARRANTY

(1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired; (2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith; (3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. Rescission and Nullity of Partition ARTICLE 1097. A partition may be rescinded or annulled for the same causes as contracts. Rescission (1381) Contract is rescissible There is extrinsic defect like economic damage or lesion to the creditors or oblige

within ten years from the date the right of action accrues. Action Accrues: Warranty on the quality = heir discovers the hidden defect Warranty against eviction = heir learns of the burden which the coheirs had acknowledged or from the finality of judgment of eviction28

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Annulment (1390) Contract is voidable There is intrinsic defect like presence of vices of consent such as violence, intimidation, fraud, undue influence ARTICLE 1098. RESCISSION BASED ON LESION indemnify the plaintiff for the loss, or may be made by payment in cash or by the delivery of a thing of the same kind and quality consenting to a new partition. If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share. ARTICLE 1102. ALIENATED PART BY CO- HEIR; CONSEQUENCE

Partition, judicial or extra-judicial Lesion - Economic injury, where the party receives less than he is entitled to receive co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled consider the value of the things at the time they were adjudicated. Proper action of the prejudiced heir is for damages ARTICLE 1099. WHEN LESION CANNOT BE IMPUGNED The partition is made by the testator Applies whether the lesion is , more than 1/4 , or less than except when the legitime of the compulsory heirs is thereby prejudiced, or the intention of the testator was otherwise. ARTICLE 1100. PRESCRIPTIVE PERIOD FOR RESCISSION ON ACCOUNT OF LESION after four years from the time the partition was made. Exception: If the partition had been submitted to court for approval, the 4-year period shall be reckoned not from the time of the making of the partition but from the date of approval thereof by the court ARTICLE 1101. OPTION AVAILABLE TO AN HEIR WHO IS SUED

cannot maintain an action for rescission on the ground of lesion but he shall have a right to be indemnified in cash.

REASON: Rescission requires mutual restitution ARTICLE 1103. OMISSION IN THE PARTITION omission of one or more objects or securities of the inheritance Preterition, not in the institution, but in the partition, of one or more objects Effect: shall not cause the rescission of the partition : partition shall be completed by the distribution of the objects or securities which have been omitted (supplemental partition) ARTICLE 1104. HEIRS PARTITION WITH PRETERITION OF COMPULSORY

No rescission Except if it be proved that there was bad faith or fraud on the part of the other persons interested Persons at fault shall be proportionately obliged to pay to the person omitted the share which belongs to him.

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Preterition in the Partition Institution Preterition in the

The compulsory heir need not be in the direct line The heir must come in the direct line Partition will be maintained unless there was bad faith of fraud in its execution. The preterition of compulsory heir in the direct line will annul the institution of heir. However, if the preterited compulsory heir had predeceased the testator, the institution shall be effectual without prejudice to the right of representation

ARTICLE 1105.

INTRUSION OF NON-HEIR IN THE PARTITION

Partition is not completely void Only the part of non-heir is void