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Q: Is succession synonymous to inheritance?

NO, Succession is a mode of acquisition of 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.
WHILE Inheritance pertains to all the property, rights and obligations of a person
which are not extinguished by his death.

Q: Given that succession is defined as mode of acquisition, would you


consider that succession is an original mode of acquisition or a derivative
mode of acquisition?

It is a derivative mode because the property is already owned by another before it


passes to the successor unlike in occupation or in other original modes of acquisition;
the property is owned by no one before the taking.

Q: Can a compulsory heir at the same time be a voluntary heir? By


definition a voluntary heir is one who is given any share of the free portion.

Yes, if the compulsory heir is instituted to the free portion of the estate, the heir
inherits in two capacities. One as a compulsory heir with respect to his legitime and
second as a voluntary heir with respect to his share in the free portion.

So it does not mean that if you’re the compulsory heir, you’re limited to the legitime.
You may also be entitled to the free portion and in that capacity, you are considered as
a voluntary heir.

Q: Are all intestate heirs, compulsory heirs?

No, These are the list of intestate heirs. So not all intestate heirs are compulsory heirs
because these last three are not compulsory heirs. When we say compulsory heirs, they
are entitled to a legitime. So you’re collateral relatives in the persons of your brothers
and sisters, nephew and nieces, as well as other collateral in the persons of your uncles
and aunts, cousins, are not your compulsory heirs
although they are intestate heirs. They are considered intestate heirs provided the first
in the enumeration are absent but they are not compulsory heirs

So heirs, as well as the decedent is the personal element of succession. The last
element is acceptance or non-repudiation by the heirs.
Q: What are the characteristics of a will?

1.) Unilateral
It does not require for its validity the concurrence of the instituted heirs,
although after death they are free to accept or reject it.

2.) Mortis Causa


It takes effect after the death of the testator.

3.) Free and Solemn Act


The attendance of any vices of consent will render the will void.

4.) Individual
Only one person is allowed in a single will.

5.) Ambulatory
It is revocable any time before the testator dies. Even if a will contains a
waiver of the testator’s right to revoke that will have no effect at all, meaning
to say he is still free to revoke despite such limiting provision.

6.) Strictly personal act, it cannot be left to the discretion of the third persons, or left to
an instrumentality like an agent or an attorney.
This, however, does not prohibit a lawyer from drafting a will for a client.

Q: What governs the extrinsic validity in the view point of place?

The mother provision is Art. 17 of the CC, Lex Loci provides that the forms and
solemnities of contracts, wills and other public instruments shall be governed by the law
of the place where they are executed. That is the mother provision, Art. 17 which is
supplemented by Arts. 815-819 correlate that with Art. 795.

Q: Now what about intrinsic validity of the will?

The national law of the decedent. Under Art. 16, which is our conflicts rule, Par. 2 of
Art. 16 is the exception to the Lex Situs rule, in testate and intestate succession both
with respect to orders of succession and successional rights, intrinsic validity as well as
capacity to succeed shall be governed by the national law of the person whose
succession is under consideration.

So, when we are talking of intrinsic validity, Art. 16 governs, which provides for the
national law of the decedent.
Q: What is the doctrine of renvoi?

Under the doctrine of renvoi, when the Philippine laws throws the issue to the other
country and the other country has no conflict of law machinery, it will throw back the
issue to the Philippines, then the Philippine law will now govern under the doctrine. So,
it will not be the national law of the decedent that will govern, if the national law or the
conflicts rule of the foreigner also throws the question back to Philippine law, in this
case we have to accept the referring back, otherwise, the question will forever remain
unresolved, if we will keep the question tossing back and forth between the States.

Q: Who may make a will?

Any person of sound mind and of legal age (18 yrs old).

Q: May a person convicted of murder sentenced to reclusion perpetua


execute a will?

Yes. Because what is prohibited by civil interdiction as an accessory penalty are


donation inter vivos and not donations mortis causa. Since civil interdiction prohibits the
convict from conveying his properties by act inter vivos, he is not prohibited from
making a will, because a will is a disposition mortis causa.

Q: When do you say that a person is of sound mind?

A person is of sound mind if he is aware of the extent of his properties, the object of his
bounty and the nature of the transaction / transmission of his properties upon death.
So, he must be aware of these things, it is not necessary that a person is in full
possession of his reasoning faculties or that his mind may wholly unbroken or
unshattered by any disease or other cause. It is sufficient that at the time of the
making of the will, he is aware of the nature of the property to be disposed of, in other
words he has the knowledge of what properties belong to him and what do not.

Q: What is the true test of presence in the execution of the Will?

It is not that the witnesses actually saw the execution or the attesting of the other
witnesses but the true test is that had they chose to do so to the see the other
witnesses in the execution of the Will taking into consideration of the place or their
position or condition at the time…

So the true test of presence is not whether the witnesses actually saw each other sign
but whether they might have seen each other sign had they chose to do so considering
their mental and physical condition in relation to each other at the moment of
subscription.

Q: May a blind person make a holographic will?


Yes because the requirement merely states that every will must be written and
executed in a language known to the testator. So long as the blind knows hoe to write,
he can make a valid holographic will.

Q: What are the requisites for preterition?

1. The heir must be totally deprived of his share in the estate.


2. There must be nothing in the estate that the heir may inherit.
3. The omitted heir must be a compulsory heir in the direct line.

Q: What happens if the omitted compulsory heir predeceases the testator?


Will we still annul the institution of heirs in this case?

If the omitted compulsory heir predeceases the testator, the institution shall be
effectual without prejudice to the right of representation. So the preterition of the
compulsory heir in the direct line whether living at the time of the execution of the will
or born after the death of the testator, the effect of that is to annul the institution of
heirs such that total intestacy results except legacies and devisees but if the omitted
compulsory heir predeceases the testator, that is an example of revival of institution.
The institution shall not be annulled, it shall be effectual, total intestacy will not result
but without prejudice to the right of representation.

VIADO NON CASE - preterition of a compulsory heir in the extrajudicial settlement of


the estate or partition, not in the will; right to demand share, not nullification of the
partition.

Q: What are the requisites for a valid fideicommissary substitution?


(1)Fideicommissary substitution must be express
(2)There must be a first heir, and this first heir must be obliged to preserve the
property and later on pass the whole or a part of it to the second heir
(3)Presence of a second heir
(4) Both the first heir and the second heir must be alive at the time of the death
of the testator
(5)The relationship of both heirs must not be beyond one degree.

Q: Why are compulsory heirs also called forced heirs? Because the law mandates
that upon the death of a person, he shall reserve a portion of his property to his legal
heirs or compulsory heirs. The deceased portion has no other option but to reserve
such property.
It is not by his will, it is also not by intestacy, but by law, that the heirs get the legitime.