Edited Succession (Yang-yang)j

WILLS AND SUCCESSION Lectures of Atty. Lielanie C. Yangyang, C.P.A Art 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. Art 775. In this Title, “decedent” is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. Art 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death.  RIGHTS 1. Purely Personal Rights GENERAL RULE: Not Transmissible; extinguished by death. EXCEPTION: Transmissible; Art 173 FC – The action to claim legitimacy may be brought by the child during his lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. (Conde v. Abaya 13 P240) Examples: Rt. to Parental Authority Marital Rights Rt. of a Chinese Merchant (Hu Nio v Collector 34 P 433) Rt. to vote 2. Rights which are Patrimonial in character Q: What is a Patrimonial Right? A: Rights which are referring to property. GENERAL RULE: TRANSMISSIBLE Examples: Action for forcible/unlawful detainer Action to compel the execution of document (NB Art 1357) Action to recover property Action to enforce civil liability arising from crime. EXCEPTIONS: 1. Those rights even if Patrimonial but are extinguished by death as provided by law or agreement by the parties. As Provided by law: 1. Art 603 NCC 2. Agency (Art 1919 NCC) 3. Rt to be a partner (art 1830-5 NCC) 4. Commodatum (art 1959 NCC) 5. Right to claim annuity (art 2027 NCC) 6. Rt to Guardianship either by property/ward 7. Rt to revoke donation 8. Rt to continue a contract of lease 9. Rt. to Tenancy – not extinguished by death (Robles v. Batacan 154 S 644) – RA #3844 – prevailing rule; In order for right to tenancy to be enforced, there must be election as to who should succeed in such right. If no selection is made, then right to tenancy is NOT transmissible. SAN AGUSTIN v. CA Dec 4, 20001 Ruling: Obligations arising from sale is transmissible. ALVARZ v. IAC May 7, 1990

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Facts: parcel of land sold to: Yanes – Rufino – Alvarez – Siason Issue: Are the heirs of Siason and Alvarez oblige to deliver the property back to the Yanes’? Ruling: Yes. If the property itself could not be delivered then the monetary value thereof.  OBLIGATIONS GENERAL RULE: TRANSMISSIBLE EXCEPTIONS: 1. PURELY PERSONAL ; 2. NON-TRANSFERRABLE BY LAW; 3. NON TRANSFERRABLE BY CONTRACT OR AGREEMENT BETWEEN THE PARTIES. Examples of obligations extinguished by death: 1. Obligation to pay taxes 2. criminal liability 3. Rt to give support Q: What about obligation to pay debts? A: 2 views: 1. Debts are NOT transmissible. It is actually the estate of the deceased which pays the debts and the remainder is just distributed among the heirs. Another argument to support this is that, for example, if the debts are worth P150T and the estate is only worth P100T, so the remaining P50T should no longer be shouldered by the heirs. 2. Debts ARE transmissible. It is because the shares of the heirs are diminished or reduced by virtue of the payment of the debts. In our example, if the estate is worth P150T and the debts are worth P200T, so how come that the debts are transmissible when in fact, the heirs can no longer be obliged to pay the remaining P50T? It is explained by the article itself, the transmission is only TO THE EXTENT OF THE VALUE OF THE INHERITANCE. You can subscribe to either view but cases and authors prefer the 2nd view. LEDESMA v. MCLACHLIN 66 P547 Facts: Lorenzo Mclachlin is indebted to 3rd person. But Lorenzo before he was able to pay the debt, he died. But when he died, he had no property. Theoretically, there should have been succession between Lorenzo and Anna. So Anna should have inherited from Lorenzo. But because Lorenzo had no properties, Anna did not inherit anything from Lorenzo. Issue: Can the 3rd person claim from Anna? Ruling: No. He cannot because Lorenzo did not transmit anything to Anna and the inheritance is only to the extent of the value. So, for example, Lorenzo had debts. The value of the inheritance should only be to the value of the debts. But there was no property left. So the value of the inheritance is zero. The debts cannot be enforced against Anna because Anna inherited nothing. Now, when Mclachlin died, Lorenzo already predeceased him. So there was no succession between Lorenzo and Mclachlin precisely because Lorenzo died ahead of Mclachlin. So, Anna being the child of Lorenzo, represented Lorenzo. She was the one who inherited from Mclachlin. In this case, what was being settled was not the estate of Lorenzo. It was the estate of Mclachlin. Mclachlin had no debts to the 3 rd person. So during the settlement of his estate, no debts from this 3rd person could possibly be enforced from the estate of Mclachlin. So from the time Mclachlin died, Lorenzo was already out of the picture. No property of Lorenzo was transmitted to his heirs because he had no property and he died ahead. So the 3 rd person cannot claim either from the estate of Mclachlin neither it would claim any from Anna.

Art 777. The rights to the succession are transmitted from the moment of the death of the decedent. This article talks about the moment when the rights to the succession are transmitted. Actually, the word “transmission” is not the proper word. The proper word should have been “made effective.” Because the decedent

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had no rights to the succession. So there is no right to succession which he could possibly pass on to his heirs. The proper term here is, the rights to the succession are MADE EFFECTIVE from the moment of death of the decedent. Q: Prior to the decedent’s death, can the future heirs claim any thing from the property of the decedent? Can you claim the properties of your parents while your parents are still alive? A: No. While your parents are still alive, their properties are owned by them. What you have over the properties is merely an INCHOATE RIGHT or an EXPECTANCY. So, it is not an absolute right. It is merely an expectancy. You expect to receive these properties if your parents die ahead of you. If you die ahead of your parents, then you do not get anything from your parents. FELIPE v. HEIRS OF ALDON Feb 16, 1983 Issue: if the father was still alive, do the heirs may asked for the annulment of the contract? Ruling: No. During the lifetime of their father, the heirs merely have an inchoate rights over the properties.  CONDITION for the transmission of Successional rights: 1. 2. 3. There should be DEATH. It is either Actual and Presumed. That rights/properties are indeed TRANSMISSIBLE/DESCENDIBLE. The transferee is still ALIVE. Alive because if you die ahead of your parents then you would not inherit anything from your parents. It should be the parents who should inherit from you, if you had no children. You should also be WILLING to accept because generosity cannot be imposed. The heirs must accept the inheritance before it is transmitted to them. If the heirs repudiate the inheritance, then they are deemed not to have received the properties which are in the inheritance. You must also be CAPACITATED to inherit. EFFICIENT CAUSE FOR TRANSMISSION OF SUCCESSIONAL RIGHTS If there is a will then it is the will which is the efficient cause of succession. It is the cause why you succeed the will. However, if the person dies without a will, then it is the presumed will of the decedent which is the efficient cause of succession. Presumed will because there is no will. But the law presumes that if the decedent had a will, then he would have dispose of the properties in the manner which the State provides for. Thus, for example, the State assumes that the decedent had a will then he would really provide for his children and wife/husband.

CONDITIONS FOR TRANCMISSION OF SUCCESSIONAL RIGHTS There must be death, transmission, acceptance, the transferee must be alive, willing and capacitated to inherit.

Q: We talked about death, what is Actual death? A: All of us know what it is, physical death. When you are physically out of this world, you are physically dead. Q: What is Presumed Death? A: It is discussed in article 390 and 391 of the NCC. Under Ordinary Circumstances (OC), 10 years. But if he disappeared after the age of 75 then, after 5 years. Under Extraordinary Circumstances (EC), 4 years. Q: When should you reckon the moment of death? A: In case of OC, it IS AFTER 5 years or 10 years. In case of EC, it is from the moment of disappearance. Q What if the father and his son died in the same accident and you do not know which of the two died first? A: Art 43. NCC – If there is doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. Under that circumstance, it cannot be determined who died ahead and there is a rule that no one should inherit from one another. If you alleged that the father died ahead of the son or the son died ahead of the father, you must PROVE which of them died ahead. The law does not presume which of the two died ahead. Q: If a father who is 77 years old and a son who is 5 years old go together on a trip and afterwards they were not seen anymore, after 12 years still no news about them. Who died first? A: The son is presumed to have died later and the father is presumed to have died first. Because the father was over 75 years old when he disappeared and the son was below 75 years old.

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In articles 390 and 391, there’s merely absence. There is no proof of death. So in that case, you can presume that after 5 years the father died and the son died after 10 years. But if they died in a plane crash and you have before your eyes their dead bodies, all you have to do is to determine which of the two who died first, then you must have to prove which of them died first because in that case, there is no presumption which of them died first. Note that art 391 provides for certain circumstances by which you will conclude whether or not a person dies already. But art 391 provides only for presumptions. If there are circumstances which point to the time of the actual death of the person then that time wherein there is proof should be followed and not the presumptions. Anyway, art 390 and 391 provide for presumption. Being presumptions, they are rebuttable by presentation of evidence to the contrary. EMNACE v. CA November 23, 2004 Facts: Tabanao was a partner in the partnership. He and his partners decided to dissolve the partnership. So with the dissolution of the partnership, should come the accounting of the assets, income, liabilities and properties as well as the distribution of these assets to the partners. Throughout the existence of the partnership, Tabanao was never provided with any copy of the statement of assets and liabilities of the partnership. He was never given any share in the partnership and there was no liquidation/accounting of the partnership. After they agree to dissolve the partnership but before the actual liquidation & distribution of the partnership, Tabanao died. Because he died, his partners were not able to deliver to him his share in the assets and the partners were not able to render accounting to Tabanao. The wife of Tabanao brought an action for accounting, payment of shares, etc. the partners contended that the wife had no legal capacity to sue because she was never appointed as administratrix of the property. Issue: Did the wife have legal capacity to bring action for accounting, payment of shares and damages? Ruling: Yes. Under art. 777, from the moment of death of Tabanoa, his rights in the partnership especially the right to partition, accounting and delivery, liquidation of properties pass on to his heirs, his wife and children. These rights are not personal rights, just like the right to be partner. It is different. When you say the right to become a partner is transmitted, that involves the qualification of the person. But when you say the right to the partnership with respect to distribution of properties or income that is not a personal right. In fact, that is an obligation of partners who remained. So the wife has legal capacity to sue from the moment of Tabanao’s death. Supreme Court said, “The surviving spouse and children became owners of their respective hereditary shares from the moment of death of Tabanao and can commence an action originally pertaining to the decedent. Prior settlement of his estate as well as the appointment of administrator is not a prerequisite before the wife may bring an action against the partners.” Q: Can the heirs immediately dispose of their properties when the testator/decedent dies? A: In theory, they can. Because as provided under art 777 the rights to succession are transmitted from the moment of death of the decedent. But in reality, you cannot. Why? For example, the decedent dies with a will, his will has to be probated first. If there is a will, it is a MUST that the will should be probated. After the court declare that the will has been validly and duly executed then the estate will pay estate taxes. Afterwards, you go to the Register of Deeds where you secure proof of payment of estate taxes and later on you can have the title cancelled and a new title issued un your name. So, there are requisites. Q: What is the decedent dies without a will? A: If you are the only/sole heir, all you have to do is to execute an Affidavit of Self Adjudication and afterwards follow the procedure above-stated. If there are many heirs, the heirs may execute an Extrajudicial settlement among themselves and again follow the process. BIR, RD and follow the rules on publication. If the heirs do not agree among themselves to Extra-judicially settle the properties, the heirs may file an action before the courts an Action for Partition. Then the court will decide the respective shares of the heirs and go to the same process. Q: What about cash in banks? What are the procedures before heirs can distribute to themselves cash in banks of the decedent? A: Follow the process: 1. Pay taxes

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2. present proof that estate was settled judicially and extra-judicially settled. 3. comply with the rules on publication. So even if theoretically the rights to succession are transmitted from the moment of death of the decedent, in reality there are steps the heirs must first comply with before they can actually enjoy the properties of deceased person. LAVIDES v. CITY COURT OF LUCENA May 31, 1982 Ruling: The value of the property should not be based on the totality which is P35T but on the individual value of P5T per minor child. Q: How about the “Totality Rule” in your Rules of Civil Procedure? A: The Totality Rule does not apply here because there is no same transaction or occurrence. So, the property of each child and the guardianship over each child is different from the property and the guardianship over another child. But this is an old case so the amount is not the same anymore. Effective April 2004, the jurisdiction of the Municipal Trial Court as provided in BP 129 and RA 7169 is already up to P300T. Before April 2004, for the MTC it is P200T. For the RTC it is over P200T. Now for the RTC it is over P300T. BORROMEO-HERRERA v. BORROMEO 152 S 172 Ruling: Even if the heirs were not sure about the date of death or whether the person died and even if there was no prior declaration of heirship and they were not certain as to their actual share of the inheritance, they may still validly waive their inheritance provided their predecessor already died. Because prior to the death of the decedent, what you have is only future inheritance and that is merely an inchoate right, merely expectancy. It cannot be the subject of a valid waiver. But after the decedent died then there could be a valid waiver because at that time there was already a transmission from the decedent to the heirs. So the property belonged to the heirs. They could validly waive the property which they already own. But in this case, there was no valid waiver because certain requisites were not complied with. BONILLA v. BARCENA 71 S 270 Facts: There was an action to quiet title over a property. It was brought by the mother. During the pendency of the action, the mother died. So, the children asked the court to be substituted. Issue: Whether or not the children may validly substitute their mother in the action title. Ruling: Yes. When the mother filed the petition to quite title, the court already acquired over her person. As you learned in your Rules in Civil Procedure, an action to quite title is an action that survived. So there is a need for substitution. Anyway, the properties which are the subject of the action are already transmitted to the children. So the children may legally continue that case because they have legal personality in that case. From the moment of death of the mother, whatever rights she had in that case were transmitted to her children. So the children could logically continue the action filed by the mother.

DELA MERCED v. DELA MERCED Feb25, 1999 Ruling: Evarista died first. Naturally upon her death, her properties were transmitted to her son Francisco. When Francisco died his properties were transmitted to his children. His children will inherit from him whether legitimate or illegitimate. Because there is no bar in the civil code between illegitimate children inheriting from their illegitimate parents. From the moment of death of Evarista, properties where transmitted to Francisco then from Francisco to Joselito. Joselito, illegitimate son of Francisco did not inherit from Evarista but from Francisco. According to art 992, if the parent (Francisco) of an illegitimate child (Joselito) died ahead of Evarista, Joselito cannot inherit from Evarist because there is a bar in the NCC between the legitimate and illegitimate. Because of the illegitimate relationship, Joselito cannot inherit from Evarista.

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LOCSIN v. CA February 19, 1992 Ruling: Because Catalina did not have compulsory heirs during her lifetime she may just donate, sell, transmit her properties to any person she likes. That donation, sale or transmission could not be impugned. That donation etc. could only be impugned by her compulsory heirs. So from the moment of death of Catalina, her estate was ended. Whatever was the value of her estate when she died, that was ALL her nephews and nieces could inherit. They cannot claim the properties before she died because before she died, those people do not have any right on the properties of Catalina. Only when Catalina died did her nephews and nieces require any right over her properties. Whatever remained during that time was all her nephews and nieces could get from her. VDA. DE REYES v. CA July 26, 1991 Ruling: Partition is not required for the transmission of successional rights but death. Before partition you are already the owner of the property and even if there were many of you, you owned the property in-common but still you are the owner of the property upon death. SUAREZ v. CA September 2, 1992 Q: What is the reason why one-half belongs to the heirs? A: Art 777, rights to the succession are transmitted from the moment of death of the decedent. So one-half belongs to the mother and the other to the heirs. Q: From whom did the children derived their ownership of the land? A: The children derived ownership over the land as heirs of their deceased father. PAULMITAN v. CA November 25, 1992 Issue: What was the effect of sale by Donato to his daughter Fanesa? Ruling: The sale of Donato of the land in question to his daughter did not give to the latter ownership over the entire land but merely transferred to her the one-half undivided share of her father, thus making her the co-owner of the land with the respondents, her cousins. GAYON v. GAYON November 26, 1970 Q: When the heirs are sued, in what capacity they may be sued? A: If the heirs were included as defendants in this case, they would be sued not as representatives of the decedent but as OWNERS of an aliquot interest in the property in question, even if the precise extent of their interest may still be undetermined. Hence, they may be sued even without previous declaration of heirship. Q: How about if there’s already a settlement proceeding, could the heirs sue or be sued? A: Art 777 NCC provides that rights to the succession are transmitted from the moment of death of the decedent. So once the decedent died, his heirs may be sued or may sue in their own capacity as owners, not as representatives. But there is a qualification. THERE MUST NOT BE A PENDING SPECIAL PROCEEDING. Because if there is a special proceeding, the one who sues or who may be sued is the executor if there is a will or the administrator if there is no will. But the heirs may still be sued if there is a declaration of heirship. That is a matter of procedure. But as a matter of substantive law, under art 777 you have the legal capacity or personality to sue and be sued from the moment of death of the decedent. Art 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed. Article 778 talks about the three kinds of succession. Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. When you say testamentary succession (a.k.a voluntary succession), there should be a will and it must be executed in accordance with law. Q: What are the conditions for Testamentary succession?

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A:

1. There MUST be a will; 2. There should be a designation of heir;

In a will, there must be an heir named. You cannot just provide in your will “I hereby leave all my properties.” So to whom are you leaving all your properties? There must be a recipient. 3. There must be observance of the formalities required by law. As we go on with our study, we will learn that there are certain formalities and requirement that have to be observed in order that a will may become valid. What will happen if you do not observe these formalities? The will becomes VOID. Being void, the will is not followed. The effect is, as if there is no will (testate/legal succession). For Testamentary succession also takes place when there is a codicil. It is not exactly a will but it has the effect of a will. There are certain formalities also to be observed.  PRINCIPLES IN TESTAMENTARY SUCCESSION: 1. TESTAMENTARY SUCCESSION IS PREFERRED OVER INTESTATE SUCCESSION.

When there is a will, the will has to undergo probate. Probate is a proceeding wherein you determine whether or not the will was validly executed and whether or not the will was executed by person who has testamentary capacity. RODRIGUEZ v BORJA 17 S 41 Facts: In this case, there were 2 proceedings. First was an intestate proceeding instituted. Meaning, a proceeding to settle the estate of a deceased person who died without a will. But subsequently, a will was found and again another proceeding was instituted, this time, testate proceeding wherein the estate of the deceased person is settled if that person has left a will. We are confronted here of 2 proceedings, one was instituted ahead of the other. Which proceeding should be preferred? The one which was instituted ahead? Ruling: No. As long as there is a will, even if that Will is found later and even if the proceeding for the settlement of the estate of a person with a will is filed later, that should be preferred. The will should be probated. The will should be given effect as much as possible in order to give effect to the wishes of the testator. The wishes of the testator must be given such preference first. Probate of the will is needed in order to determine whether or not the will was indeed valid, whether or not the will was executed in observance with the formalities required by law and whether or not the testator executed it with a sound mind. If later on in the probate proceeding, the will is found not to have validly executed, then you go to intestate proceeding. But first you go to testate.  NB: THERE IS NO PRESCRIPTIVE PERIOD IN THE PROBATE OF WILLS, AS LONG AS THERE IS A WILL. Even if the testator died much earlier than the presentation of the will. The will has to be probated. That is tackled in your special proceedings. (BAR QUESTION) 2. DOUBTS MUST BE RESOLVED IN FAVOR OF TESTACY.

If there is doubt whether or not the will is valid, the interpretation being you give effect to the will and the second interpretation is you may not be able to give effect to the will, the first interpretation wherein the will is given effect should be preferred. This principle is discussed in the case of Balanay v. Martinez. BALANAY JR. v. MARTINEZ 64 S 452 Ruling: Even if in a will, there are certain dispositions which are not valid, that fact will not invalidate the WHOLE will. The will here remains valid, but what should be followed are those dispositions which are valid. The reason for this is testacy is favored over intestacy. And the policy of the State is to give effect to the wishes of the testator as much as possible. We also have in your Rules of Court Rule 73 Section 3. The moment that a copy of the will is delivered to the court, the court already acquired jurisdiction. So even if no one really files formally a petition for testate proceedings, no payment of docket fees, no filing of petition, no bidding, if only a will is delivered to the court, the court automatically acquires jurisdiction That illustrate how important it is to give effect to the wishes of the testator. Q: What if there is no will, what happens?

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A: So that is legal or intestate succession. Legal succession is not directly defined under the civil code. But there are 2 instances where legal or intestate succession occurs: (1) there is no will; or (2) the will is not valid at all. Art. 780. Mixed succession is that effected partly by will and partly by operation of law. Under 780, there is a will but the will does not provides for the disposition of the entire property or the will disposes of the entire property but the dispositions are NOT VALID. Q: When does mixed succession occur? A: 1. when the testator fails to dispose all of his properties in a will. For example, a testator has 10 hectares of land but in his will, he merely provides, “I hereby give 6 hectares to my heirs.” So what happens to the 4 hectares? The 6 hectares will be disposed in accordance with the will and the 4 hectares will be disposed in accordance with the provision of the law. So in effect there is mixed succession. Another example, the testator has 3 children and 1 wife and 1 concubine, still the testator has 10 hectares but in his will he merely provides, “I hereby give my wife 2 hectares, my 3 children 2 hectares each, and my concubine 2 hectares. Under the law, a disposition in favor of a concubine is VOID. So what happens to the 2 hectares disposed in favor of the concubine? That 2 hectares should not be given effect. So the 2 hectares given to the concubine should be disposed not in accordance with the will of the testator even if it is his express wishes. So that, the 2 hectares will be disposed in accordance with intestate or legal succession, not testate. So if that is the provision in the will, then the 2 hectares should be divided equally between the 1 wife and the 3 children. 2. When the will does not validly disposed of all the property of the testator. The same example, the 2 hectares are given to the concubine then that is not a valid disposition. That portion should be disposed of by operation of law, by intestacy and only those valid dispositions in the will should be effected. BALANAY JR. v. MARTINEZ 64 S 452 Issue: Before the invalid dispositions can be separated from the valid dispositions, in order for mixed succession to occur, what should be the condition? Ruling: In order for mixed succession to occur, the invalid disposition MUST BE SEPARABLE from the valid disposition. The invalid disposition must not be a condition for the valid disposition. Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. 1. 2. As discussed in your Paras book, what does the inheritance include? The property, the transmissible rights and the transmissible obligations of the decedent to the extent of the value of the inheritance; and Those properties, or rights or obligations, if any, which have accrued since the opening of the succession. ILLUSTRATION: 1982------------- 1985 ------------ 1990 ------------ 1995 ------------ 1998 A bought a A executed A rent out A died settlement of Building of B will in favor the bldg the estate In 1982, A bought a building. In 1985, A executed a will wherein he disposed of the building in favor of B, “I hereby devised my building to B.” In 1990, A decided to rent out the building for an amount of P10T monthly. In 1995, A died. In 1995, the building goes to B because the building was given to B by virtue of the will. However, the settlement of the estate of A was not immediately settled. It was settled in 1998. From the moment of death of A in 1995 up to 1998, there were income derived from the rent of the building. From 1990 up to 1995, there were also unpaid rents of P!00T. Under art 781, the properties which in this case the building is transmitted to B from the moment of death of A in 1995. How about the rents from 1995 to 1998? Those income/properties which have accrued thereto since the opening of the succession, so in this case the succession opens in 1995. So all income, or accessions, fruits of the property accruing from the moment of death will ALL pertain to the person to whom the property has been given. What is the reason for this? When A died in 1995, B became the owner and in your Property subject, the accessions, fruits or income of the property pertains to the owner. How about from 1990 to 1995 who will own the P100T? The estate of A but upon A’s death, it would be the compulsory heirs of A. If B happens to be a

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compulsory heir then he could participate in the P100T. If he is not then he has the right to participate in the P100T. Art 781 speaks only of properties from 1995 to 1998. Art. 782. An heir is a person called to the succession either by the provision of a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal property are respectively given by virtue of a will. Q: What is an heir? A: Is one who succeeds by Universal title. That is to ALL or FRACTION or ALIQUOT PART of the properties, rights or obligations. So the entirety of the properties of transmissible rights and obligations. Q: What about a Legatee? A: Is one who succeeds to personal properties. Q: How about a Devisee? A: Is one who succeeds to real properties or immovable properties of the decedent.  Kinds of heirs: 1. COMPULSORY HEIRS OR FORCED HEIRS – those heirs who cannot be deprived of their inheritance unless there are causes to disinherit them and the causes are provided by law. For example, the surviving spouse, children. They are entitled to what is called the LEGITIME. LEGITIME - is that portion of the property, rights and obligations of the decedent which you cannot just dispose of because the law reserved it for the compulsory heirs. 2. LEGAL OR INTESTATE HEIRS – when a person dies without a will then his heirs are called legal or intestate heirs. 3. VOLUNTARY HEIRS – those heirs named by virtue of the will. Q: What are voluntary, testamentary or testate heirs? A: They can be compulsory or forced heirs. For example, your friends, your family members, or strangers, or those who received property, rights or obligation by way of a devise or legatee. As long as they are named in the will. Q: What is the importance of distinguishing heirs from legatees and devisees? A: 1. There is what we call Preterition (art 854). When there is preterition, the instituted voluntary heirs do not get anything. But the legatees/devisees, they retain the properties given to them as long as the legitime is not impaired. 2.When there is invalid disinheritance, again the instituted voluntary heir gets nothing while the one who received properties by way of legatee or devise retain the property given to them as long as the legitimes of the compulsory heirs are not impaired. Q: What other distinctions are there between an heir in one hand and legatee or devisee on the other hand? A. 1. Heirs succeed by general right or universal title to all or fraction or aliquot part of the properties. While devisee/legatee succeeds by special or particular title. 2. The term Heir exists in both testamentary succession and intestate succession. While in legacy or devise the term devisee/legatee exits only in testamentary succession. 3. The heir if they are compulsory, they succeed to the inheritance regardless of the will of the decedent. So even if the decedent does not want to give anything to that particular heir but that heir is a compulsory heir and there is no ground to disinherit him then that compulsory heir can get the properties which should pertain to him/her. While legatees/devises, they get only the property by reason of the will of the testator. So if the testator has no will then legatees/devisees do not get anything. For example, If you have a friend, you can institute him as a legatee/devisee. But if you do not like him then you can omit him and give nothing to him because he is a compulsory heir. He succeeds only if you provide something in your will. 4. With respect to the heirs, the properties that are given to them cannot be determined until after the liquidation of the properties of the estate of the decedent. Because they succeed by universal title to all the properties, rights and obligations. So how much would the properties, rights and obligations that would pertain to each of the heir cannot be determined without partition, without liquidation of the estate of the decedent.

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Whereas, with respect to legatee/devisee they can be determined because legacy is given as personal property. “I hereby give my ring to A.” We know that A can get the ring. “I hereby give my house & lot in ma-a to B.” So B knows that he is getting the house & lot in ma-a. B can determine what or how much he would get from the testator. 5. Heir represents the juridical personality of the deceased because the heir acquires the properties, his rights and his obligation. So juridical personality is the continuation of the personality of the deceased. While, the legatee/devisee do not succeed to the juridical personality of the decedent because they only succeeds to particular properties of the decedent. 6. Heir succeeds to the remaining properties of the decedent if there are remaining properties. So after all the properties have been distributed to the persons entitled thereto, if there are still properties that remain so the heirs may participate in the remaining properties. Whereas, the legatees/devisees cannot participate in the remaining properties because again they succeed to particular properties. So they only get what are specifically given to them. As to the remainder they have no right anymore to participate.  Exercises: 1.“I give to A one-half of my lot in Claveria.” - A is a devisee because the lot had been specified, in Claveria. 2. “I hereby give to A my lot.” – A is an heir because the property given to him is not specified. What kind of lot? Where is it located? 3. “I give to B all my cash.” – Can you determine the cash to be given to B? or where it is located? So B is an heir. He has a universal title to all my cash. 4. “I give to B all my cash in Metrobank.” – B now is a legatee. Because the amount can now be specified as to the location of the cash or the source is Metrobank.

NB: All compulsory heirs are legal heirs. But not all legal heirs are compulsory heirs. Why? Because when a person dies without a will then compulsory heirs succeeds by operation of law. Or, if there is a will but the will is not valid then compulsory heirs succeed by operation of law, the will is disregarded. Q: How about legal heirs or intestate heirs? A: They succeed by operation of law. But some of them cannot impose upon the testator to provide something for them in the will. Examples of legal heirs who are not compulsory heirs are the brothers/sisters. When a person dies without a will, they may participate in the estate of the deceased person. But if a person provides for a will, they cannot impose upon the person to give them something in the will.

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Chapter 2: TESTAMENTARY SUCCESSION Subsection 1: WILLS IN GENERAL 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.  ELEMENTS OF A WILL: 1. THE MAKING OF A WILL IS A STATUTORY NOT A NATURAL RIGHT.

Meaning, if the country does not provide for the right to make a will, then the person who dies in that country cannot validly make a will. Because the right to make a will is provided for by law. It is not an inherent right like the right to life, to liberty, and to property which are inherent rights. That is evident in the will itself, a will is an act whereby a person is PERMITTED. You cannot do so against the will of the State. ”With the formalities prescribed by law, to control to a certain degree,” so his right to make a will is not absolute because there are limitations imposed by law. You cannot just disposed your properties to any person you like. You have to follow the rules provided for by law. 2. IT IS A UNILATERAL ACT.

It is the sole act of the testator unlike a donation or sale or any other contract, a will needs only the sole wishes of the testator. It does need the acceptance to whom the will is given. It does not require the consent of the other party. 3. IT IS A SOLEMN OR FORMAL ACT.

There are certain requirements that have to be complied with when making a will. So you have to observe those formalities and requirements in order for the will to be valid. Otherwise, the will is defective and it would not be given effect. 4. THERE MUST BE ANIMUS TESTANDI (INTENT TO MAKE A WILL)

For example, A and B were playing, A addressing to B, “Ok, I will give to you all my properties.” Is there an intent to make a will? No because there were just playing. So later on, B cannot enforce the will made by A while they were playing. There was no intent to make a will. 5. THE TESTATOR MUST BE CAPACITATED TO MAKE A WILL.

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Meaning the testator must be of sound mind and he should know the nature of what he was doing. An insane person cannot make a will. If an insane person gives you everything that he has and even if it turns out that that insane person is a millionaire still, you cannot get his properties by virtue of the will which he executed in your favor because the insane person does not know what he was doing. 6. 7. IT IS STRICLTY A PERSONAL ACT IN ALL MATTERS THAT ARE ESSENTIAL. IT IS ESSENTIALLY REVOCABLE AND AMBULATORY

Again, it is the sole act of the testator and it is connected to the other requisites that the will is essentially revocable and ambulatory. Because the will is his OWN act, OWN desires and OWN wishes. You cannot impose upon a person to make a will for you. The initiative must come from the testator himself to provide for you. 8. IT IS EFFECTIVE MORTIS CAUSE.

The will takes effect only upon death. Like we have discuss, when the person is still alive then you cannot get anything from him because your right is merely an inchoate right, merely an expectancy. You cannot demand that he gives his properties to you or that the will be enforced while he is still alive. 9. IT IS FREE FROM VITIATED CONSENT.

It must be voluntary on the part of the testator, it cannot be imposed, it is a personal act. 10. IT IS AN INDIVIDUAL ACT AS DISTINGISHED FROM A JOINT ACT. The making of the will must be the SOLE ACT of one person. You cannot make a joint will. Only one person one will. 11. IT DISPOSES OF THE TESTATORS ESATATE IN ACCORDANCE WITH HIS WISHES. It must be the wishes of the testator and not according to the wishes of anyone. HERREROS v. GIL 88 P 260 Ruling: Will-making is not an inherent act, not an inherent right. It is merely a privilege as evident by the clause “Permitted xxx to control to certain degree the disposition of his estate.” A will is not only an act. It is also an instrument because a will has to be in writing. There is no such thing as an Oral will. The will must be embodied in the document, it must be in writing. WILL It disposes of REAL PROPERTIES LAST TESTAMENT It disposes of PERSONAL PROPERTIES MONTINOLA v. HERBOSA Issue: Is the poem “Mi Ultimo Adios” a will? Ruling: The poem by Rizal is not a will. Because when he made that poem, he did not think of making a will. There was no animus testandi. It was merely an expression of parting. Actually, he was not giving anything to anybody because at the time when he was executed he has no properties. So what was there to give? Another thing, there was an erroneous translation. It was not actually “To give.” “I give all my parents, my relatives.” Can you give your parents, your relatives? Are they properties? No. So the poem is not a will. Q: What if a will does not contain any disposition of properties? Is that a valid will? For example, it merely contains an acknowledgement of an illegitimate child or an appointment of an executor? A: Under American law, the prevailing rule is that, even if the will does not contain any disposition of properties it is still a valid will. For them, it does not have to contain a disposition of properties. But in that case, the will need not be probated because there are no properties to be disposed of. Our law apparently requires disposition of properties before a will can be considered a valid will. So there has to be a disposition of properties either directly or indirectly. MERZA v. PORRAS 93 P 142

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Facts: This case illustrates an indirect disposition of properties. disinheritance. Issue: Is a will containing only disinheritance, a valid will?

So there was only a

Ruling: Yes. When you disinherit a person you actually disposed of your property by not letting that person participate in your property. Still, it you who will determine who will get your property and who will not get your property by the act of disinheritance. The will must deliver properties to another person. So there must be separate properties. One’s owned personal property to be given to another person who does not own the property you are giving to him. That is in the case of Vitug v. CA. VITUG v. CA 183 S 755 Ruling: Because the account was a joint account and they made a will while they were married, so naturally the cash would be their absolute community or conjugal property. The cash is owned incommon by them. When the spouses opened savings account, they merely put what rightly belonged to them in a money-making venture. They did not disposed of it favor of the other. Since the wife predeceased her husband, the latter acquired upon her death a vested right over the amount under the savings account. Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part to the discretion of a third person, or accomplished through the instrumentality of an agent or attorney. This article talks about the essential characteristic of a will. That is, will-making is strictly a personal act. The will must contain the wishes of a testator and not the wishes of any other person because what is under consideration is his will. Ideally, it should be the testator who should write his own will. He must draft his own will. Q: Can the testator entrust the drafting of his will to any other person? A: Yes, he can entrust the mechanical of drafting the will to other persons. For example, you engage the services of a lawyer to draft your will. But the contents of the will must be the wishes of the testator. The lawyer cannot dictate the testator to whom the properties of the testator are to be given. That is only true when you talk about notarial will. As you will learn later, there are kinds of wills, the notarial will and the holographic will. In Holographic will, the mechanical act of drafting the will cannot be left to a third person because a holographic will must be in the own handwriting of the testator. As to notarial will, even if the will is not drafted by the testator, it must still contain the signature of the testator. So the fact that the will contains the signature of the testator means that the contents of the will are his own wishes. CASTAŇEDA v. ALEMANY 3 P 426 Ruling: The mechanical act of drafting the will can be left to a third person. What is important is the testator signs the will or he let another person to sign but under his direction. Art 785. The duration or efficacy of the designation of the heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. This article enforces the principle that will-making is strictly a personal act. Q: What matters cannot be delegated under art 785? A: (1) The duration of the designation of the heirs, devisees or legatees; EXAMPLE: “I hereby give my car to B and C and they will use the car alternately but the duration of the use of each shall be subject to the will of X.” – So X determines the duration of the designation of B and C as heirs. This cannot be delegated because when that happens, it is not actually the will of the testator that is being followed. It is already the will of X. (2) The efficacy of the designation of the heirs, devisees or legatees; EXAMPLE: “I hereby institute B as heir to all my properties but this shall be subject to the approval of Y.” – So Y will actually decide whether or not the efficacy of the designation shall be valid. Again, this is not

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allowed because what is being followed here is not the will of the testator but the will of the person who determines whether or not the designation or efficacy shall be valid (3) the determination of the portions which the heir, or legatee or devisee shall take, when referred to by name. You should remember, when referred to by name. That is not valid. EXAMPLE: “I leave my properties to X, Y and Z and A will determine how much will be the share of each.” – So the recipient are named X, Y and Z. A will determine how much will be the respective share of each. Again, this is not valid, this cannot be delegated. As I said, will-making is strictly a personal act and any act which prefers to negate the fact that it should be the testator himself who should his will then that act will not be considered to be as valid. Art. 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 of money are to be given or applied. Article 786-792 are rules for the interpretation of wills. So art 786 provides for a delegation which is valid.  REQUISITES: 1. 2. 3. 4. The testator entrust to a third person; The distribution of specific property or sums of money; These specific property or sums of money are left in general to specific classes or causes; There is the designation of the persons, institutions or establishments to whom such property or sums of money are to be given or applied. Art. 785 The heirs, legatees or devisees are named. There is NO specific property or sums of money. What is delegated is the determination of the portion which shall go to the named heir, legatee or devisee.

Art. 786 There is NO such heir, legatee or devisee that is named There is specific property or sums of money. There is a determination of the persons, establishments or institution or to whom the specific property or sums of money is to be given or applied. 1.

EXAMPLE: “I leave my properties in Davao City to the winners of Star Circle Quest and X will determine how much will be the share of each winner.” – This delegation is valid. Q: Is there naming of heirs, legatees or devisees? A: None Q: Is there specific property or sums of money being designated or left? A: “All my properties in Davao City” is not specific. Q: Is there a determination of the persons who will receive? A: Yes. The winners of Star Circle Quest. “I leave all my properties in Davao City to Sandara, Hero, Melissa, Joross, and Roxanne, the Fab 5 Star Circle Questers winners and X will determine how much will be the share of each.” – Q: Is it a valid delegation or not? A: This is not a valid delegation because the heirs, legatees or devisees are named, Sandara, Hero, Melissa, Joross and Roxanne. Q: What about the phrase, “the Fab 5 Star Circle Questers winner.”? A: This is a class but actually this phrase is merely a description of the 5 persons named. This is merely a qualifier. This delegation is prohibited under art 785. “I leave such sums of money as C shall determine to support the Fab 5 Star Circle Quest winners.” Q: Is it a valid delegation? A: This is not a valid delegation because there is no specific property or sums of money that is being left in general. “I leave P1 million to support the fab 5 Star Circle Quest winners to be apportioned to the winners in such amount as B shall determine.” Q: Is this a valid delegation? A: Yes. Q: How about the delegation to B as to the amount that shall be given?

2.

3.

4.

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A: What is being delegated to B is merely the manner of distribution or apportionment of the amount which was previously determined by the testator. The testator determined that the amount shall be P1 million and the B shall only determine how much will be applied or given to each of the winners. Art 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. Again, this article only mirrors the principle that will-making is strictly a personal act. In essence, article 787 is similar to article 785. But strictly speaking, there is a very little difference between the 2 articles. Art 785 Refers more to the institution of the heirs. For example, “I hereby institute B as heir to all my properties but this institution shall be subject to the approval of Y.” Art 787 Refers more on the designation or disposition of the properties. For example, “I hereby leave my house in Ma-a to Y but Z shall determine if this is valid because Z can also provide that a car instead shall be given.” So, this is not valid because the disposition is subject to the will of a 3 rd person. Whether or not a disposition shall be valid cannot be left to the will of a 3rd person. You have to remember that in both article 785 and 787 only the specific designation or disposition is not valid. Because even if there are specific designation or disposition which are void, the will itself in its entirety is valid. It will not affect the validity of the will. Only the specific disposition or designation is not considered as not written. Q: In summary, what matters cannot be delegated? A: Under article 785: : (1) The duration of the designation of the heirs, devisees or legatees; (2) The efficacy of the designation of the heirs, devisees or legatees; (1) the determination of the portions which the heir, or legatee or devisee shall take, when referred to by name; and (2) The determination of whether or not the disposition shall be operative. (art 787) To determine whether or not the delegation is valid, none of the things mentioned in article 785 and 787 must occur. And all of the things mentioned in article 786 must be present. With respect to the determination of portion, the fact that the determination is given or delegated to a 3 rd person is not per se invalid. What makes it invalid is when there is no determination of the specific cause or specific class and there is no specific property or sums of money. The determination of portion only. That is invalid. But if it is accompanied by the determination of specific property or sums of money and there is a class or cause then that becomes valid under article 786. Art 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. In simple language the will must be construed in favor of its validity. So when there are 2 dispositions in a will. Between 2 dispositions one of which will make the will valid and the other one will make the will invalid, then that disposition which shall make the will valid shall be given effect and shall be preferred. You have to remember that in interpretation of wills, THE WISHES OF THE TESTATOR IS THE FIRST AND PRINCIPAL LAW. DIZON-RIVERA v. DIZON 33 S 554 Facts: The testatrix distributed her properties to her heirs. It turns out that some of the heirs were prejudiced of their legitime because the property actually given to them were not approximate to their correct legitime. So these heirs wanted that to complete their rightful share certain other properties should be given to them. Ruling: But it is very clear in the will of the testatrix that she wanted to give certain properties to certain persons and those dispositions or those persons should be respected. If the legitime or the rightful shares of the other heirs are prejudiced then that should be completed by the delivery of cash in accordance with the wishes of the testator. In the interpretation of wills you have to consider the intent of the testator. Just like in your statutory construction, in the interpretation of laws you have to consider the intent of the legislature. Why? Because the presumption is that the testator when he made his will really intended that his will should be valid. For why would the testator make a will when he knows that his wishes would not become valid? It is proved that his wishes should be followed. VDA. DE VILLANUEVA v. JUICO 4 S 550

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Issue: What should be the proper interpretation of the disposition in favor of the wife? Ruling: The intention of the testator here was to merely give usufructuary right to his wife Doňa Fausta because in his will he provided that Doňa Fausta shall forfeit the properties if she fails to bear a child and because she died without having begotten any children with the deceased then it means that Doňa Fausta never acquired ownership over the property. Upon her death because she never acquired ownership over the property, the said properties are not included in her estate. Those properties actually belong to Villaflor. That was the intention of the testator. Otherwise, if the testator wanted to give the properties to Doňa Fausta then he should have specifically stated in his will that ownership should belong to Doňa Fausta without mentioning any condition. As long as the will is capable of reasonable interpretation then the will should be given effect. For example, “I hereby give to B, my illegitimate child, my house and lot in Claveria.” However, it turns out that B is not an illegitimate child. So should the house and lot in Claveria be given to B since B is not an illegitimate child? The property should still be given to B. The fact that the testator provided that B is my illegitimate child, the word illegitimate is not considered as a condition for B to be able to receive the properties. The testator merely intended the word illegitimate as a description of B but NOT a condition. If we interpret the word illegitimate as a description, the will could be given effect. However, if we interpret it as a condition, the will could not be given effect because B is not illegitimate. The rule in succession is testacy is favored than intestacy, then that interpretation wherein the word illegitimate is a description should be given effect. So the house and lot should be given to B even if it turns out that B is not an illegitimate child. You have to remember that article 788 applies only IN CASE OF DOUBT. When the terms of the will are not clear and are ambiguous. But when there are no doubts, when the provisions in the will are clear then there is no room for interpretation. You have to dispose of the will according to the wishes of the testator as provided therein. Even if the provisions in the will may be favorable only to some persons and are unfair to some of the heir as long as this disposition do not impair the legitime of the compulsory heirs and they are in accordance with law then the provisions of the will must be given effect if the provisions are clear and unambiguous. In the same manner that if the provisions in a will are clearly illegal so do not interpret it in such a manner as to give it any semblance of legality. In that case, there is no room for interpretation. The will is clearly invalid then disregarding the rule that testacy is favored than intestacy because the will is invalid then do not interpret it, do not give effect to the will. Art 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator unto his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations.  2 kinds of Ambiguity: (1) LATENT OR INTRINSIC AMBIGUITY – does not appear on the face of the will. By examining the will alone, you do not see that there is some ambiguity or imperfections or mistakes in the will. Q: How do you discover this kind of ambiguity? A: You only discover latent or intrinsic ambiguity when you go beyond the will. When you start investigating, you look for the heirs or you look for the properties dispose of in the will then you discover that actually the will contains some ambiguity. Q: What are these latent or intrinsic ambiguities? A: 1. Imperfect description of the heirs, legatees or devisees. EXAMPLE: B provides in his will, “I hereby give my television to John Doe.” - By just looking at the will you do not know that there is something wrong. There is nothing wrong with giving the television to John Doe. But it turns out that B actually does not know anybody named John Doe, friends or family, but actually he has a friend named Jane Doe. So there occurs the latent or intrinsic ambiguity because you are not sure to whom the television is to be given whether to John Doe or Jane Doe. 2. Imperfection description of the property to be given; EXAMPLE: B provided in his will, “I hereby give my colored television to Z.” There seems to be nothing wrong in that disposition. However, it turns out that B does not have any colored TV, she only has a black and white TV. So here lies the ambiguity. What kind of television is being given, is it a colored TV or just a black and white TV?

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3. When 2 or more persons meets the description. EXAMPLE: Kristine Mosa provided in her will, “I hereby give to Diet Po my television.” There seems to be nothing wrong with that provision, Kristine giving to Diet Po the television. The problem is if it turns out that Kristine actually has many boyfriends and out of these many boyfriends, 2 are named Diet Po. One is in Davao City and the other in General Santos City. So here lies the latent or intrinsic ambiguity, is it Diet Po in Davao City or that one in General Santos City. 4. When 2 or more things/properties meets the description. EXAMPLE: GMA provided in her will, “I hereby give my land in Calinan to FPJ.” – There is nothing wrong here. When it turns out that GMA has 2 lands in Calinan, so there lies the ambiguity. You do not know which of the 2 lands is being given. (2) PATENT OR EXTRINSIC AMBIGUITY – appears on the face of the will itself. By just looking at the will you know that there is an imperfection, or mistakes or an ambiguity. EXAMPLE: “I hereby give to A some of my properties.” – What are those properties being given? By just looking at the will you know that there is something wrong with this disposition. “I hereby give to some of my friends my house and lot in Ma-a.” – There is an ambiguity because although the property is specified the recipient is not designated. Q: How do you cure this ambiguity? A: 1. Intrinsic Evidence – You cure the ambiguity by examining the will. You examine the words used in the will. In the example given, John Doe but actually it refers to Jane Doe, a female. 2. Extrinsic Evidence – those evidence which you get when you go beyond the will, you investigate, you look for documents, for persons. Example, in the case of Kristine Mosa, actually through her lifetime, Kristine only knew only one person named Diet Po in Davao City. The one in General Santos City never introduced himself as Diet Po to Kristine Mosa. He did not introduce himself as Diet but instead Jerico. So as far as Kristine is concerned, she only had one Diet Po boyfriend in Davao City. The one in Gensan is Jerico. By that, you know that the property is being given to Diet Po in Davao City. Another example as to documents and letters. There are 2 lots in Calinan. One lot is 1,000 sq m. and the other is 500 sq. m. When the testator during his lifetime state in his letter that what actually I am giving is the 500 sq. m. so that would clear up the ambiguity thru the documents or letters given out by the testator during his lifetime. Q: How about Oral or Parol Evidence? Is it allowed to clear up ambiguity? A: No. Because this will open the door to fraud. Anybody would just appear and say that the property was really intended to him or her. You are not sure if this person is telling the truth. It is very easy to fabricate statement because the testator is no longer alive to dispute the claim. ESTATE OF RIGOR v. RIGOR 89 S 493 Issue: How should you interpret the statement in the will, should it refer only to the nearest male relative at the time when the testator died or should it be construed to mean all nearest male relative who would study for priesthood and you have to wait forever until that male relative occurs? Ruling: It should be construed to refer to the nearest male relative living at the moment of death of the decedent because that is the time when transmission occurs. You cannot wait until the nearest male relative who would study for the priesthood occurs long after the priest died. The most reasonable construction is the nearest male relative living at the time of the death of the testator. DEL ROSARIO v. DEL ROSARIO 2 P 321 Ruling: The child even if he is not a natural child would still get the property. The fact that he is designated as the natural child is not a condition but merely a description.

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Art 790. The words of the will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. Article 790 talks about 2 terms, the Ordinary term and the Technical Term. Ordinary term, you know what it is, it is what it is. Technical Terms are used by persons engaged in specialized activities in certain fields or profession. For example, in accounting, debit and credit are technical terms. Q: What is the rule with respect to Ordinary Term? A: GENERAL RULE: give it an ordinary or literal meaning. EXCEPTION: If there is an intention to give it another meaning. For example, during his lifetime a testator has a long antique table but he never really used that a table instead, he used it as a bed. In his will he provided, “I hereby give to Z my bed.” Now, the testator does not really have a bed but he has a table use as a bed. So what is his intention, is it the bed and give the same to Z, or is it the table? It is very clear by Extrinsic evidence that the testator intended that word bed to be the table which he used as a bed. Although the word bed is an ordinary word it is interpreted as table because the intention was really to give the table which has always been used by the testator as a bed. This is a case where an ordinary term is given another meaning because of the intention of the testator. Q: How about Technical Term? A: GENERAL RULE: Give it Technical meaning. EXCEPTION: 1) If the testator himself made the will and it is very clear that he is unacquainted or unfamiliar with the term. For example, the word Adopted. It is a technical term. When you say adopted child, it means a child that has been adopted by virtue of a court order after undergoing all the necessary steps before the decree of adoption. If the testator provides in his will, “I hereby give my properties in Calinan to my adopted children.” So that means that the testator is giving his properties to his legally adopted children. You interpret it as the legally adopted children. However, if the testator was not assisted by a lawyer, he himself drafted the will, He does not have any children. He only has one legally adopted child and one not legally adopted. So when the testator said, “I hereby give my properties in Calinan to my adopted children,” what did the testator mean? Is it the legally adopted child or the other child not legally adopted but nevertheless live with him during his lifetime? This is another exception because the testator is an ordinary person and he made the will by himself without the assistance of the lawyer and it is very clear that he is not familiar with the legal terms. So even if the word adopted is a technical word then you have to give it an ordinary meaning (2) If it is really the intention of the testator to give the technical word an ordinary meaning. Like the example I gave you, one legally adopted child and one not legally adopted but the testator provides in his will, “I hereby give my house and lot in Calinan to my 2 legally adopted children.” Clearly he intended that the word adopted should refer to his 2 children. Even if he is assisted by a lawyer he says in his will, “I hereby give my house and lot in Calinan to my 2 adopted children. 2 adopted children meaning all the 2 children. Because when you say legally adopted, there is only 1. But he says 2. So he means the 2 children, the legally adopted child and the one not legally adopted. So as we have always been discussing, give paramount importance to the desire of the testator. In order to interpret the provisions in a will especially the ambiguities, you have to consider the situation of the testator when he was living and the surrounding circumstances when he executed the will. If after using all the legally feasible means of interpretation, the rules of interpretation, the rules on construction, but still you cannot determine, what really is the intention of the testator with respect to his doubtful or ambiguous provision. What do you do? In that case, then you have to discard the provision. Do not give it effect. It is invalidated by reason of its ambiguity which can never be interpreted reasonably. That provision which is ambiguous is void. Art 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative, and of two modes of interpreting a will, that is to be presented which will prevent intestacy. Article 791 is consists of 2 parts: (1) the will must be interpreted as a whole; and (2) testacy is favored over intestacy. Actually this article is the same as article 788.

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Q: What if intestate proceedings have commenced already and a will is presented, so what will happen? A: Testacy will always be favored than intestacy. YAMBAO v. GONZALES 1 S 1157 Q: What word/s preceded PAHIHINTULUTAN? A: It is May Dapat tungkulin o gampanan. Q: How does the word Pahihintulutan construed? A: The word Pinahihintulutan was construed to have a mandatory meaning because the words may dapat tungkulin o gampanan preceded the word pahihintulutan. That is why the obligation of Maria Pablo and her sister to institute as tenant the person named in the will becomes mandatory. So you should interpret the will as a whole not merely by piece or word by word. You have to take all the words into consideration. From these words you determine what really is the intention of the testator. Art 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid dispositions had not been made. This provision of law is based on the policy to give effect whenever legally possible to the intention of the testator. So if one provision of the will is invalid that does not mean that the entire will itself becomes invalid. If there are valid provisions then those valid provisions or dispositions must be given effect. For as long as the valid and invalid dispositions in a will can exist separately or independently of each other. However, there is an exception, if the various dispositions in a will CANNOT BE SEPARATED BY INTENT OR NATURE. So if one provision is invalid then the whole dispositions in a will are invalid because the several dispositions in a will are not separable by intent or by nature. For example, B has a concubine X. During his lifetime, he made a will saying, “I hereby give to X my building in Claveria and by reason of my love for her and I want her to be safe and protected all day and all night so I hereby give to C her security guard a 9 mm gun.” So if the disposition in favor of the concubine is invalid as contrary to law, what will happen to the disposition in favor of C? You may answer, if it was really the intention of the testator to provide for the security guard by reason of the disposition in favor of the concubine, to such extent that the building was not given to the concubine then the testator would not give anything to the security guard then the 2 provisions are invalid because they are INDIVISIBLE BY INTENT. But if the testator really intended to give to C the gun regardless whether the disposition in favor of the concubine is valid, so that disposition in favor of C still remains to be valid. Art 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. This article speaks of properties acquired AFTER the time that the will is made but before the moment of death of the testator.  GENERAL RULE: Only those properties owned by the testator at the time of the execution of the will are included. So those acquired after the execution of the will are excluded.  EXCEPTION: If the testator expressly provides in his will that properties acquired AFTER the execution of the will are included. Some other exceptions under articles 836, 930 and 935 of the NCC but we will discussed these provisions later. Example: 1980 ------------- 1985 -------------- 1987 -------------1995 bldg in Jacinto executed bldg in A died will in favor of X Ponciano In 1980, A acquired a building in Jacinto. In 1985, A executed a will leaving to X the building in Jacinto. In 1987, A again acquired another building in Ponciano. In 1995, A died. Q: Upon A’s death in 1995, what property of A was given to X? A: Under article 793, all properties acquired at the time of the execution of the will or before NOT AFTER. So in this case X only had a right over the building in Jacinto which was given to him in 1980. But not the building in Ponciano which was given to him in 1987. Because this building in Ponciano was acquired after the execution of the will in 1985. So it is not being included.

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1980 -------------- 1985 -------------- 1987 --------------- 1995 -------------- 1998 bldg in Jacinto executed a leased bldg to A died settlement will in favor of X several persons proceeding P50T/month In 1980, A acquired a building in Jacinto. In 1985, A executed a will leaving to X the building in Jacinto. In 1987, A begun leasing the building in Jacinto to several persons P50T a month. In 1995, A died. Q: What will X get upon the death of A? A: X will get the building in Jacinto because of article 793. Q: How about the rent from 1987 to 1995? Can X get the proceeds of the lease? A: No, again under article 793 because this rental income is acquired after the execution of the will. Another thing, from the time A gave the building in favor of X in 1985 by virtue of a will, X still does not have any right over the building because A was still alive. So whatever rights he has over the rent is purely inchoate. But after 1995 during the settlement of the estate of A, X gets the monthly rental UNDER ART 781 of the NCC. From the moment of death of A, the building becomes owned by X. So the right of X to the building has ripened and as owner of the building, all the income, the accessories and accessions over the building accrued in favor of X who is now the owner. But again before A’s death, the income is not owned by X. Q: Does this article apply only to heirs, to legatees or devisees, or to all? A: Strictly speaking the article does not make any distinction. So you may assume that this article apply to heirs, legatees and devisees. But if you analyze, you will learn that it would be absurd if you apply this article to heirs. For example, A in his will, “I hereby give all my properties to my heir X.” in 1985 A executed a will. In 1987, A acquired some other property. In 1995, A died. So what properties belong to X, only the properties before the execution of the will or also those properties after the execution of the will? Heirs succeed to ALL the rights, properties and obligations of the testator. So he inherits the mass of the properties, rights and obligations of the testator. Therefore, if X is an heir and A acquires properties after the execution of the will still upon A’s death, X as heir will get all the properties of A because A said, “I hereby give all my properties to X.” So as heir there is no distinction whether before or after the execution of the will. So this article applies only to legatees and devisees NOT TO HEIRS. Art 794. Every devise or legacy shall convey all the interest which the testator could devise or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. This article speaks only of legacy or devise. Does this mean that this article is not applicable to heirs? For example, “I hereby give to A my car.” Does it mean that I am not giving to A the entirety of my car? That I am not giving the tires or the seats? If you analyze, this article this will also apply to heirs even if the law speaks only of the legatee or devisee.  GENERAL RULE: All of the testator’s rights in a property are transmitted. Because it is presumed that the testator intended to dispose his whole interest in the property. For example: “I hereby give to A my car.” It means that I am giving my car in its entirety to A. “I hereby give to A my house and lot in Jacinto.” So the house and lot with the ceiling, the floor, the entire house.  EXCEPTIONS: 1. If it clearly appears in the will that the testator merely intend to convey a less interest. For example, J Lo owns a house and lot in Jacinto. She merely provided in her will, “I hereby give to Mark Anthony the usufruct over my house.” Usufruct is a lesser right than ownership. Clearly, J Lo did not intend to give the ownership over the house to Mark Anthony. What she merely gives is the usufruct, the enjoyment or possession of the house. 2. If the testator clearly provided that he conveys a greater interest.

For example, the testator X only owns one-fourth of a 4-hectare lot in Calinan. In his will, X provides, “I hereby give to Y a 4-hectare lot which is located in Calinan. The one-fourth being owned by me, but the threefourth is to be acquired by the estate to be given to Y.” So even if X only owns one-fourth of the 4 hectare lot in Calinan, he can provide in his will the entire 4 hectares by just providing that the estate will acquire the three-fourth hectares. 3. The testator can also give property which he knows is not owned by him.

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For example, Gretchen leases a house in Jacinto. She is merely the lessee not the owner. In her will she provides, “I hereby give to Claudine the house in Jacinto where I live now.” How can she give a house when she is merely a lessee of the house? She can do so by providing in her will “I hereby give to Claudine the house in Jacinto and my estate will acquire this house from the owner.” That is allowed, as long as the testator at the time when she executed the will knew that the property that she is giving is not owned by her. Art 795. The validity of a will as to its form depends upon the observations of the law in force at the time it is made. This article is a very short article but the discussion is very lengthy. It talks about validity of wills. Take note that article 795 talks about EXTRINSIC VALIDITY and from the viewpoint of TIME.  KINDS OF VALIDITY OF WILLS: I. EXTRINSIC VALIDITY – refers to the forms and solemnities and the formalities that have to be conformed and complied with in the execution of the will. Example: whether notarial or holographic; the number of witnesses; the qualifications of witnesses; the attestation in the will; the signature of the testator; the capacity of the testator, age etc. Extrinsic Validity can be viewed from 2 points. We have from the viewpoint of time and from the view point of place or country. A. Viewpoint of TIME – the extrinsic validity of a will depends upon the observance of the law enforced at the time the will is made not at the time of death and not at the time of probate. This is because the testator cannot possibly and is not expected to know what laws will govern in the future. So it is enough that at the time he made the will, he made his will in compliance with the laws enforced at that time. Example: In 1805 only 2 witnesses are required in the execution of the will but now it is at least 3. Even if the testator dies now, that will, with respect to its extrinsic validity will still be regarded as valid. Because compliance is measured in 1805 at the time when he made his will, not in year 2004. IN RE WILL OF RIOSA 39 P 23 Facts: The year was 1908. The testator executed a will in accordance with the laws enforced at that time wherein there was no requirement of signing and attestation of the will. Now, it is required that the will must be signed by the testator and attested. In 1917 wherein the laws enforced at that time already required signing and attestation, the testator died. Issue: Should his will be regarded as valid extrinsically because it was not signed and attested but when he died the will should be signed and attested? Ruling: When the testator made his will, there was no requirement of signing and attestation. It does not matter that when he died, the laws required signing and attestation because the extrinsic validity of his will should be measured by the laws enforced at the time of the execution of the will not at the time of the death of the testator. So the legislature by providing certain formalities CANNOT INVALIDATE A WILL VALIDLY MADE at the time when the testator executed his will. Q: Can the legislature VALIDATE A VOID WILL? A: That is answered in the case of Enriquez v. Abadia. ENRIQUEZ v, ABADIA 95 P 627 Facts: When the testator made his holographic will, holographic wills are not allowed. But when he died, holographic wills are already allowed. Issue: Is the holographic will valid by reason of the new law which allows holographic wills? Ruling: The legislature CANNOT VALIDATE A VOID WILL because the extrinsic validity of wills is measured at the time of the execution of the will. So at the time the testator executed a will holographic wills are not allowed. So no amount of amendment of the law can cure the defect. B. Viewpoint of PLACE/COUNTRYQ: When the testator who is a Filipino citizen and who executes will in the Philippines, what law shall govern the execution? What country should govern?

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A Article 17 NCC – The forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippines laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determination or conventions agreed upon in a foreign country. This article was taken up in your persons and family relations. This article is very important in your study of succession because it deals with the extrinsic validity of wills from the viewpoint of place/country. Under article 17, if a Filipino citizen executes will in the Philippines, the law that should be observed is the Philippine law, the law of the country in which they are executed. Q: What if the testator is a Filipino and he executes abroad before the diplomatic or consular officials of the Philippines, what law shall govern? A: Again under article 17, it should be governed by Philippine law. Q: If the testator is a Filipino and executes a will in a foreign country, what law should govern? A: Now you have article 815 of the NCC. Article 815 NCC – When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. Under art 815, it says “he is authorized to make a will in any of the forms established .” So authorized meaning he is permitted. This is not the primary law that should govern but he is nevertheless permitted to execute his will in accordance with the law of the country where he may be. So, if the Filipino is in a foreign country and he executed his will in that country, his will shall be governed by: (1) the law of the state where he may be (art 815); (2) the law of the place where he may be (art 17). {Actually 1 & 2 are just the same.} (3) The laws of the Philippines. Q: If the testator is a foreigner/alien and he executes his will abroad, what law should govern the extrinsic validity of the will of the foreigner? A: Article 816 NCC – The will of an alien who is abroad produces effect in the Philippines is made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. 1. 2. So if the testator is a foreigner and who executes his will abroad, he can choose from 4 laws: The law of the place of his domicile/residence (art 816); The law of his own country/nationality (art 816);

So even if the testator is an American and he executes his will in Japan, he may execute his will in accordance with the law of America. 3. 4. Philippine law; and The law of the place where the will is executed (art 17)

So if the testator is an American citizen who has his residence in Japan and who executes his will in Germany, he may executes his will in accordance with the formalities prescribed by the laws of America (the law of his country or nationality), or in Japan (the law of his residence/domicile), or in Germany (the place where he executes his will), or Philippine laws. Q: A testator who is an alien executed a will in the Philippines, what law shall govern? A: Art. 817 NCC – A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. Under this article, a testator who is a foreigner and who executes his will in the Philippines may observed the: (1) laws established by his country/nationality. And again, (2) by the law of the place where the will is executed, so in this case the Philippine law.

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IN RE ESTATE OF JOHNSON 39 P 156 Facts: Johnson was a native of Sweden but a citizen of America. He executed a will in the Philippines but with the formalities prescribed by the laws of Illinois, in which 2 witnesses are allowed. The Philippine laws require 3 witnesses. Issue: Is the will extrinsically valid from the viewpoint of place/country? Ruling: This case is an example of an alien testator who executed his will in the Philippines. Under 817 he may observed the laws enforced in his country/ nationality. Or, under art 17, the laws of the place where he executes his will, which in this case is the Philippines. So with respect to the formalities of his will Johnson has 2 choices. So whether Johnson executed his will with 2 witnesses or with 3 witnesses, his will may still be valid because he may choose. So this is the reason why the will of Johnson was admitted to probate because even if it did not conform with the laws of the Philippines still it conform with the laws of his nationality. II. INTRINSIC VALIDITY – refers to the legalities of the provisions of wills. Example: whether or not the disposition in favor of the concubine is valid; whether or not there is preterition; whether or not there is invalid disinheritance; whether or not there has been payment of the legitime, or whether or not there is omission of compulsory heirs etc. A. Viewpoint of TIME - are governed by the laws enforced at the time of the opening of the succession which is the moment of death of the testator. This is because upon the death of the testator the rights of his heirs, legates or devisees become vested. And intrinsic validity refers to the disposition of the provisions of the will. It is also provided under article 2263 of the Civil Code. Art 2263 NCC – Right to the inheritance of a person who dies, with or without a will, before the effectivity of this Code, shall be governed by the Civil Code of 1889, by other previous laws, and by the Rules of Court. The inheritance of those who, with or without a will, die after the beginning of the effectivity of this Code, shall be adjudicated and distributed in accordance with this new body of laws and by the Rules of Court; but the testamentary provisions shall be carried out insofar as they may be permitted by this Code. Therefore, legitimes, betterments, legacies and bequests shall be respected; however, their amount shall be reduced if in no other manner can every compulsory heir be given his full share according to this Code. Under this article, when the testator dies PRIOR to the effectivity of the Civil Code, then his rights to the succession over his estate shall be governed by the laws enforced at that time, which was the Civil Code of 1889. When the testator dies DURING the effectivity of the Civil Code, that means the intrinsic validity of his will shall be governed by the provision of the Civil Code. For example, the testator had an illegitimate child named Y with X. So this child was born when the testator had an existing marriage with Z. In 1940, when the Civil Code was not yet effective, the testator made a will instituting his wife Z as the sole heir of all his estate. The testator died without children. Q: If the testator died in 1939 before the effectivity of the Civil Code, will the provision in his will instituting the wife as the sole heir and omitting the illegitimate child to the inheritance valid? Is the will intrinsically valid? A: Under the old Civil Code 1889, illegitimate children who are not natural meaning they were born when their parents had legal impediments to marry each other, they are not entitled to inherit. Y here is an illegitimate who is not natural. So his father, the testator, died before the effectivity of the Civil Code, the law that should govern the intrinsic validity of the will of the testator instituting his wife as the sole heir would be governed by the law enforced at the time when the New Civil Code was not effective. In as much as before the effectivity of the Civil Code the illegitimate child who is not natural has no right to inherit then the will of the testator becomes intrinsically valid. There is no impairment of the right of the illegitimate child because he had no right to succeed. But if the testator died after the effectivity of the Civil Code, let us say 1960, the will would not be intrinsically valid. Because the Civil Code provides for certain rights of illegitimate children even if they are not natural children, they are entitled to succeed to one-half of the share of the legitimate children. B. Viewpoint of PLACE/COUNTRYArt 16 NCC – Real property as well as personal property is subject to the law of the country where it is situated.

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However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. Article 16 is a very important provision in your persons and family relations, in succession and in conflict of laws when you go to 4th year. Under article 16, intestate and testamentary successions, both with respect to the (1) order of succession; (2) to the amount of successional rights; and (3) to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration. So the intrinsic validity of testamentary provision should be governed by the national law of the person whose succession is under consideration. BELLIS v. BELLIS June 8, 1967 Ruling: Since Amos Bellis was not a Filipino, his succession more particularly the intrinsic validity of his disposition of his will should be governed not by the Philippine law but the law of his own nationality, which is the law of Texas. Even if in the Philippines, illegitimate children cannot be deprived of their legitime, if the national law of the person whose succession is under consideration allows deprivation of any inheritance of illegitimate children then that Will is still intrinsically valid because the will is measured not by Philippine law but by the national law of the decedent. Q: Can a testator control what law should govern the succession of his estate? A: That is answered in the case of Miciano v. Brimo. MICIANO v. BRIMO 50 P 867 Issue: Can a will of an American testator here can provide that his estate should be disposed of in accordance with the Philippine law? We discussed before that the will of the testator should be given paramount importance and as much as possible we should give effect to the express wishes of the testator, so how come in this case we cannot give effect to the wishes of the testator here to dispose of his estate in accordance with Philippine law? Ruling: Even if the testator’s wishes must be given paramount importance, if the wishes of the testator contravene a specific provision of law, then that provision in a will should not be given effect. Because as we also learned, a person’s will is merely an instrument which is PERMITTED, so his right is not absolute. It should be subject to the provisions of the Philippine laws. CAYETANO v. LEONIDAS May 30, 1984 Ruling: Even if in this case, the Philippine laws would make the will invalid because there seems to be an omission of a compulsory heir, still the will was considered to be valid because it was measured in accordance with law of the United States wherein no legitimes are recognized. So if there are no legitmes, there could be no case of preterition. So the Will in this case is valid. Q: Article 16 talks about the national law of the person whose succession is under consideration. What do you mean here by National law? In certain countries like the Philippines, we have what we call internal law and conflict law. Under our internal law, the Civil Code for example in succession, that is basically the internal law governing succession. But Article 16 of the Civil Code is our Conflict Law. We know what laws govern in the Philippines but we do not know what laws govern abroad. So what is national law, is it the Internal law or the Conflict of law of a country? A: That is discussed in the case of Testate Estate of Christensen. TESTATE ESTATE OF CHRISTENSEN January 31, 1963 In this case, you are confronted here with the Philippines which has the 2 sets of laws, the Conflict law and the Internal law and the California which has also the Internal law and Conflict law. Ordinarily under the Philippine law, legitimes are provided. But when the decedent is an ALIEN so you have to apply his national law in order to determine the intrinsic validity of the testamentary dispositions. So you should not apply the internal law but article 16. Because article 16 simply states that with respect to the estate or succession of persons who are alien. So we apply

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Conflict law. Now article 16 provides that it should be the national law of the person whose succession is under consideration. There would be no problem if the national law of the person whose succession is under consideration is simple, just one law internal law so you would refer it to the country’s internal law and there based whether or not the dispositions in the will is valid. But the problem is California has a Conflict law. And that is, the case again should be referred to the Philippines. So article 16 national law. What law are you referring, the internal law or the conflict law? It is the CONFLICT LAW. You refer to the Conflict law of California. Not the Internal law because there is also a specific provision in their law that if the testator is domiciled in other country, so the law of the place of his domicile shall govern. So first, you go to the Conflict law of California and determine what is provided. Now, the Conflict of law of California provides that it should be the law of decedent’s domicile. So you go back to the Philippine law. That is called the DOCTRINE OF RENVOI, referring back. If you are going to refer back the problem, what provision of law, the conflict law or the internal law? It should be the INTERNAL LAW. Because if you again apply the conflict law, there would be international football and there would be no end to the case. So you have to refer to the INTERNAL LAW. Pagadto sa California, Conflict law. Pagbalik sa Philippines, internal law. This is the proper application of the doctrine of renvoi. In article 16, you have to consider not only internal laws but also conflict law if there is any. Q: When the testator is a foreigner, how do you prove what are the laws of his country? A: That is answered in the case of PCIB v. Escolin. PCIB v. ESCOLIN 56 S 266 Issue: How do you prove the laws of foreign countries? Ruling: When we say that the national laws of the person whose succession is under consideration should be applied, the court does not take judicial notice of the laws of foreign countries and there is NO presumption as to what are their laws. If you allege that this certain provision is what is provided in the national law of the decedent then you must prove that law as a fact like you prove any other fact in dispute. Exception: 1. If the foreign laws are within the actual knowledge of the court; or 2. When these laws have been considered before by the court in a previous case and the parties do not oppose as to the consideration of the court as to the existence of the foreign law. MALANG v. MOSON August 22, 2000 Ruling: In this case the right to succession is governed by the laws at the time of the death of Hadji Abdullah. If the Muslim died before the effectivity of the Muslim Code (took effect February 4, 1977), then the disposition of his property with respect to the order of succession and the shares of the heirs should be govern by the Civil Code. But during the effectivity of the Muslim Code, it should be the Muslim Code. As to the rights of the spouses to inherit, it should be govern by the laws enforced at the celebration of the marriage because the time of the celebration of the marriage will determine whether or not there has been a valid marriage. If the Muslim marriage during the effectivity of the Civil Code and before the effectivity of the Muslim Code, he cannot marry again. Because under the Civil Code only one. But when the marriage took place when the Muslim Code has taken effect, subsequent marriages are allowed and valid. So the right of the spouses to inherit will depend on whether or not they have been validly married. If you are not validly married then you do not have successional rights over your partner. As to the children, it is the time of conception because the time of conception will determine whether or not they are legitimate or illegitimate. That will affect their successional rights as the children.

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Subsection 2: TESTAMENTARY CAPACITY AND INTENT TESTAMENTARY CAPACITY The Capacity of the person to make a will. Whether or not he is of sound mind, whether or not he is 18 years old or below etc. TESTAMENTARY POWER It is the power given by the State to a person to make a will.

Take note that even if there is testamentary power that does not mean that there is already testamentary capacity. Although the State may give its citizen the power to execute his will if the person who is about to execute a will is insane or below 18 then he does not have testamentary capacity to execute a will. In the same manner that the person is of sound mind, or above 18 but if the State does not provide him with testamentary power then he cannot execute. The Civil Code uses only testamentary capacity. It is understood that the Civil Code uses testamentary capacity and testamentary power as the same. They are synonymous because there is no mention of testamentary power. Art 796. All persons who are not expressly prohibited by law may make a will. Art 797. Persons of either sex under eighteen years of age cannot make a will. Art 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. Articles 796, 797 and 798 all speak about who are allowed to make wills, testamentary capacity. As you may see from these provisions of law, the general rule is all persons who are not expressly prohibited by law may make a will unless there are prohibitions by law. So incapacity to make a will becomes the exception. General Rule is capacity, exception is incapacity. GENERAL QUALIFICATION: 1. 18 years old or over; and 2. soundness of mind. • • Persons who are suffering from Civil Interdiction may make wills because they are only prohibited from disposing their properties inter vivos, during their lifetime. They may execute will because wills dispose of properties mortis causa, after death. Spendthrifts/Prodigals – they are not disqualified from executing wills provided they are at least 18 years old.

Q: How do you compute 18 years? A: 1. Spanish law – your 18th birthday shall have commenced or shall have passed before you are considered 18 years old. (we follow Spanish concept) 2. American law – he can make a will on the day just before his 18 th birthday, on the ground that by that time, 18 years shall have passed. Take note that an individual though a minor (less than 21), may still make a will and the consent of his parents is not required. BUT if he is less than 18, his will is VOID whether or not parental consent had been obtained. Art 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

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This article describes what it is to be of sound mind. The 1 st paragraph defines testamentary capacity in a negative point of view. The 2nd paragraph defines testamentary capacity or soundness of mind in an affirmative point of view. The negative definition is discussed in the case of Bagtas v. Paguio. BAGTAS v. PAGUIO 22 P 227 Ruling: It is not necessary that a person must be in full possession of his mental and reasoning faculties to be able to be considered of sound mind. It is not necessary that his mind be unbroken, unshattered by disease, injury or other cause. BUGNAO v. UBAG September 18, 1909 Ruling: This case discusses testamentary capacity or soundness of mind in an affirmative point of view. The following requisite must be present for one to be able to be considered as having soundness of mind or having testamentary capacity: 1. 2. 3. know the nature of the estate to be disposed of; - this would mean he must have sufficient recollection of his property, he should know what properties she owned at that time or what properties she does not own. The proper objects of his bounty; - he must know who are the person by virtue of law who may he is oblige to provide for, like his children, his spouse. He must know the character of the testamentary act . – At the time of the execution of his will he must know the consequences of the execution of his will, he should know what he was doing. If the testator believed that the document he is signing is merely a Deed of Sale or a Deed of Donation, then that document turns out to a will, it cannot be considered a valid because at the time when he signed the document he did not know the nature of the testamentary act. Or, if the testator knows what he is signing is a will but as far as he is concerned the will is supposed to dispose of his property during his lifetime. Again by that belief it is obvious that the testator does not know the nature of the testamentary act.

 DEGREES OF MENTAL CAPACITY OR INCAPACITY: For a person to be considered of sound mind it is not required that he has a perfectly balanced mind. For example is weakness of mind or partial imbecility from disease of body or age. This is discussed in the case of Alsua-Betts v. CA. ALSUA-BETTS v. CA July 30, 1979 Ruling: If you are IMBECILE, you are still considered to be of sound mind. AVELINO v. DELA CRUZ 21P 521 Ruling: No presumption of incapacity can arise from the mere fact that the testator is BLIND. Article 820 NCC prohibits blind persons from acting as witnesses. But no limitation is placed on testamentary capacity except age and soundness of mind. GALVEZ v. GALVEZ 26 P 243 Ruling: Although the testator was ill with CHOLERA, since he demonstrated that he had sufficient energy and clear intelligence to execute his last will in accordance with the requirements of the law, his case must been an exception the general rule that cholera patients in majority of cases become incapacitated. CARRILLO v. JAOCOCO March 24, 1924 Ruling: The fact that the vendor having been declared mentally incapacitated after the execution of the document of sale does not prove conclusively hat she was incapacitated when the contract was executed. HERNAEZ v. HERNAEZ 1 P 718

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Ruling: OLD AGE is not sufficient to establish lack of testamentary capacity. NEYRA v. NEYRA 76 P 333 Ruling: The mental faculties of persons suffering from ADDISON’S DISEASE remain unimpaired, partly due to the fact that on account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. Like patients suffering from TUBERCULOSIS, INSOMNIA or DIABETES, they preserve their mental faculties until the moment of their death.  INSANITY – to be considered of unsound mind, it is not required that you should be actually or totally insane. PARTIAL INSANITY is enough to constitute unsoundness of mind.  COMATOSE STAGE – he is of unsound mind because in the first place he cannot execute his will being unconscious. Therefore, to be considered of sound mind you only have the 3 requisites. If any of the requisites is missing then, you are not considered to be of sound mind. All 3 must concur. Q: What happens if there is Testamentary Incapacity? A: General Rule: Testamentary Incapacity invalidates the whole will. Exception: if the incapacity proceeds from a delusion on a particular subject and the product of such delusion might be declared invalid without affecting other portions of the will. For example, Lancelot believes that Arthur is Jesus Christ. By reason of that belief, Lancelot gives to Arthur all of his land. So that, Arthur may give his land to the poor, to charity. This belief that Arthur is Jesus Christ, is a RELIGIOUS DELUSION and the disposition in favor of Arthur by reason of this delusion becomes invalid. If there are other disposition in the will in favor of the children, the wife, that will not be affected. Only the portion which arises out of the belief that Arthur is Jesus Christ. Art 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The Burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. Under this article, the presumption is that the testator is of sound mind. Just like in the Rules of Court the presumption is sanity. Because there is a presumption that the testator is of sound mind, the burden of proving otherwise, rest upon the person who opposes the probate of the will. Q: What proof is required to discharge the burden of soundness of mind? A: The Burden of Clear and Convincing Evidence. Q: When is the testator considered to be of unsound mind? A: Under article 800: (1) When the testator, one month, or less, before making his will was publicly known to be insane; (2) When the testator was judicially declared insane before making his will; (3) When the testator has Insanity of a general or permanent nature shown to have existed at one time. When it is presumed that the testator is of unsound mind or insane, the burden lies upon the proponent of the will, the persons who seeks the probate of the will. Q: How do you establish evidence of soundness of mind? A: 1. You may use the testimony of the notary public. In notarial wills, notary public intervenes in the acknowledgement of the will. So as a general rule, the testimony of the notary public is entitled to great weight. But exception is in the case of Ramirez v. Ramirez. RAMIREZ v. RAMIREZ 39 S 147 Ruling: Where the statements of the notary public were far from satisfactory, vague, evasive and tend to beg the very issue, as where he could not say, but merely supposed that the testatrix had a recollection of her properties, or of the relatives who would logically inherit from her and when asked to explain his answer to the question concerning her mental state, he simply referred to the certification in the will on that point, and so declined to fully commit himself, such testimony fails to establish testamentary capacity. 2. The testimony of the attesting witnesses.

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In notarial wills there are at least 3 attesting witnesses. They attest the testator’s signing the will and they attest that the testator was of sound mind at the time of executing the will. So if the attesting witnesses testify that the testator is of sound mind then this testimony is entitled to great weight. But it is just required that this testimony must be reasonable and unbiased. And this testimony may be overcome by other competent evidence. 3. The testimony of the attending physician.

This testimony should be given the highest regard but subject to the condition that the physician was present at the time of the execution of the will. The testimony of the physician who is absent at that time of the execution may be overcome by the testimony of the attesting/subscribing witnesses. Q: How about the testimony of other people who know the testator but who are not present at the time of execution? A: The testimony of other witnesses may be received in evidence also provided that their testimony proceeds from particular fact upon which their conclusions are based. EXAMPLE: A did not witnessed the execution of the will, but right before and after the execution of the will A had a conversation with the testator and the testator said. “I will execute a Will and I will provide therein that I will give all my money to C.” After the execution the testator stated to A, “I already executed a will I really gave all my money to C.” As far as C is concerned the testator appears to be of sound mind. You do not have to be a doctor to be able to testify that the testator is of sound mind because you will learn in your Evidence that a person may testify as to the mental sanity of a person with whom he is sufficiently acquainted. That is provided in the Rules of Evidence. Art 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. The testator must be of sound mind AT THE TIME of the execution of the will. So even if just one hour or one month or less before the execution of the will you are insane and after you are insane but on the very time you executed, you are sane, then you may validly execute a will although as we discussed if you are publicly known to be insane one month or less before the execution, you are presumed to be insane. But if you are actually sane or you are actually in your lucid interval, so they are of sound mind then they may execute a will although there is a presumption of insanity. Even after the execution you become insane, as long as at the time of the execution of the will you are sane then the will is valid because at the time of the execution you have testamentary capacity. Art 802. A married woman may make will without the consent of her husband, and without the authority of the court. Art 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. Articles 802 and 803 speak of married women. Q: How about married men can they dispose of their will without the consent of their wife or dispose of his share of the conjugal partnership? A: Article 97 of the Family Code – Either spouse may dispose by will of his or her interest in the community property. Q: Why is it in articles 802 & 802, what is stated is only married woman? A: This is because the purpose of the law is to make clear the right of a married woman to make a will without the consent of her husband and without court authority. Q: What can the married woman or man disposed of in a will? A: 1. He/she may dispose of his/her separate property; or 2. He/she may dispose of his/her share in the conjugal/community property. Q: What happens if either spouse disposes of the entire community property, is the disposition valid? A: The disposition is only valid with respect to the portion pertaining to the share of the spouse who is the testator. The remaining portion becomes invalid. But if the spouse knows that he or she has no right to dispose of the share or his or her spouse but still he or she provides in the will that such portion or the entire portion be given to a certain person, in that case, you will learn later on that it is valid. What is to be done is for the estate to acquire the other portion. But the spouse should know that the other half is not owned by her/him and despite such knowledge he or she still gives the property to the person in its entirety.

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Subsection 3. FORMS OF WILLS Q: What is the purpose of the law in providing these forms of Wills? A: According to the Report of the Code Commission, “the underlying and fundamental objectives permeating the provision on the law on wills in this Project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of wills.”  2 KINDS OF WILLS: 1. ORDINARY OR NOTARIAL WILL – that which requires, among other things, an attestation clause and acknowledgement before a notary public. This will is ordinarily executed with the aid of a lawyer. There are witnesses and attestation clause. HOLOGRAPH OR HOLOGRAPHIC WILL – wills which are ENTIRELY written, dated and signed in the handwriting of the testator. Everything should be in the handwriting of the testator. Not typewritten, handwritten. This also requires NO attestation clause or witnesses or acknowledgment.

2.

Art 804. Every will must be in writing and executed in a language or dialect known to the testator. This article refers both to notarial and holographic wills. Q: Who should write the will or who should do the mechanical act of writing the will? A: Ideally, it should be the testator himself. But in notarial wills, the mechanical act of writing the will may be delegated to a 3rd person or to a lawyer as long as the will is signed by the testator himself or by some other person under his express direction and in the presence of the testator. If the testator is going to execute a holographic will then the mechanical act of writing the will cannot be delegated to any other person. It must be the testator himself who should write his own will. Q: What form of writing is required? A: With respect to the medium, you can write in a paper, in piece of wood, anything that admits of writing. It could be a ball pen, signing pen, the ink may be yellow, black, blue, red etc. It may be embodied in a single sheet of paper or several sheets. As to number of copies, the testator may produce only a single copy because notary public is not required to keep copies of wills. Or the testator may want to give copies to his friends or family, the testator may also do so. Q: It is evident in article 804 that Oral Wills are not allowed. But what is a Nuncupative wills? A: A Nuncupative Wills are wills orally made by testator in contemplation of death and before competent witnesses. Because article 804 provides that wills should be in writing, then nuncupative wills are not recognized in the Philippines. Q: In what language should the testator execute his will? A: Again under article 804, it must be in am language or dialect known to the testator. The will itself may contain several languages, as long as all of the languages/dialect are known and understood by the testator. So the testator need not be proficient in the language used. He need not know the correct grammar as long as he understands the language. The presumption is that the testator knew the language used in writing the will. This presumption may be rebutted by contrary evidence. Because of this presumption: 1. There is no statutory requirement that the will should allege that the language used therein is understood by the testator; 2. No need to state in the Attestation clause that the will is in the language or dialect known to the testator; 3. That the will is in a language known to the testator can be proved by Extrinsic evidence or even by Parol or oral evidence. Take note that Ambiguities cannot be proved by oral evidence but here knowledge of the language can be proved by parol or oral evidence. 4. If the will is executed in the locality where the testator lives, it is presumed that indeed the testator during his lifetime knew or understood the language or dialect in that locality. Q: What if the testator did not know the language or dialect in which the will was written but it was subsequently interpreted or explained to him? Will it cure the lack of previous knowledge or understanding of the language or dialect as written on the will? A: Interpretation or explanation will not cure the defect. The testator must know the language or dialect. No amount of interpretation or explanation will cure the defect.

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Q: How about with respect to the attesting witnesses because notarial will are attested by at least 3 witnesses. Should these witnesses know the language or dialect in which the will is written? A: No. They are not required to know the language used in the body of the will. Q: How about the attestation clause? A: It is not required even that these witnesses know or understand because there is a requirement that if they do not know the language or dialect in the attestation clause, it shall be explained to them. Primarily, hey should know but if they do not know, it is enough that the language or dialect is explained or interpreted to the witnesses. In the same manner that the testator need not know the language or dialect in the attestation clause because the attestation clause is the declaration made by at least 3 witnesses. The testator has no concern whatsoever with this attestation clause. Q: Is it important to place in the will the date of the execution? A: With respect to notarial or ordinary will, the date is not an important requirement for as long as it is made during the lifetime of the testator. But the date becomes material when there are 2 or more wills. So that you will know which of the wills was executed ahead and which was executed later because in the law on succession, there is revocation. The date in NOTARIAL WILL which do not bear date and there are 2 or more of them, the date may be established by EXTRINSIC EVIDENCE or EVIDENCE ALIUNDE By just investigating, for example a document to determine which of the wills or documents was executed ahead and which one was executed later. Q: How about holographic will? A: In holographic will the date is very important. Because holographic wills are written, dated and signed in the hand of the testator. Any disposition after the date becomes invalid unless that other disposition again bears another date, another signature. Q: How about electronic document? Are wills covered by electronic evidence law? A: No. First, the electronic evidence refers to contract, instruments, a will is not a contract. Second, wills must be handwritten, for example in holographic wills. E-documents are not hand-written, they are produced by means of computers. REYES v. VIDAL April 12, 1951 Facts: The deceased was a mestiza espaňola, was married to a Spaniard, Recaredo Pando, made several trips to Spain and had written letters in Spanish in her own handwriting. The trial court rendered its decision disallowing the will on the ground that it was not proven that the deceased knew the Spanish language in which the will was written. According to the lower court, the law requires that the will should be written in the dialect or language known to the testator and this fact not having been proven, the probate must fail. Ruling: There is no need to state in the Will that it is written in the language or dialect known or understood to the testator because there is a presumption that the will is in the language or dialect known to the testator. Only when it is disputed that the will is in the language or dialect known to the testator then you may present proof to rebut the opposition. Otherwise if you do not prove that the will is in the language or dialect known to the testator then the oppositors may prosper and the will may be invalidated. ABANGAN v. ABANGAN 40 P 476 Facts: In 1917, the CFI of Cebu admitted to probate Ana Abangan’s will executed in July 1916. From this decision the opponents appealed alleging among others that the records do not show that the testatrix knew the dialect in which the will is written. However, it was shown that the testatrix at the time of the execution of the will resides in the City of Cebu and she executed the will in the language or dialect in that locality, which is Cebuano-Visayan dialect. Ruling: Actually the testatrix here line in a neighboring place not in Cebu. But still there is a presumption that she knew the language of Cebu, the locality she live near thereto. ACOP v. PIRASO January 16, 1929 Facts: The CFI of Benguet denied the probate of the instrument, as the last will and testament of the deceased Piraso. The deceased Piraso lived and executed the alleged will in the City of Baguio. Records contain positive proof that said Piraso knew no other language than the Igorrote dialect, with a smattering of Ilocano. But the will was drawn in English.

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Evidence shows that Piraso knew how to speak the Ilocano dialect, although imperfectly and could make himself understood in that dialect and the court is of the opinion that his will should have been written in that dialect. Ruling: Because it was not proven that English was the language spoken in Baguio and it was proven that the testator only knew Igorrote dialect so the presumption here was rebutted. More so, that the fact that Baguio City speaks the English language was not proven. TESTATE ESTATE OF JAVELLANA v. JAVELLANA January 30, 1960 Facts: Jose Javellana, a Visayan and a resident of San Juan, Rizal died. A petition to probate his alleged last will and testament, written in Spanish, was presented by the widow and brother of the deceased. To this petition, Jose Azaola and Jose Javellana Jr. filed separate oppositions, both claiming that the alleged will of Jose Javellana deposited by petitioners with the clerk of court was null and void alleging among others that the language requirement of the law on wills has not been satisfactorily complied with. Ruling: There is no need to state in the Will that the testator knew the language or dialect in which the will is written. In the absence of such statement what you have to do is to present proofs that will in is the language or dialect known to the testator. But when you have no proof, this absence of proof will not automatically invalidate the will because there is a presumption that the testator knew the language or dialect in which the will is written especially when the will was executed in a language or dialect of the locality where the testator live. But if the testator never lives in the locality in which the language or dialect the will is written, so there is no such presumption. Art 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. This article talks about the requirements of Notarial Will. These requirements are all of equal importance. So the court cannot add or diminish the requirements written in Article 805. Q: How do you construe this article, liberally or strictly construed? A: The requirements stated in article 805, as ruled by the Supreme Court in the case of Abangan v. Abangan are strictly construed. Q: What is the purpose of these strict requirements? A: According to the Supreme Court, the purpose is to close the door against fraud, to avoid substitution and to insure the authenticity of wills. In article 788of the NCC, it talks about liberal construction or interpretation. But what is in question in article 788 are doubts or ambiguities in a will. These doubts must be liberally construed in favor of the validity of wills. Testacy is favored over intestacy. Article 805 talks about the extrinsic validity of wills. No concern about the dispositions or ambiguities but all about formalities/solemnities. When you go to the extrinsic validity of wills, these are strictly construed. In the case of Icasiano v. Icasiano, talks about certain leniency because this strict construction should not be followed which will result to absurdity. You will not penalize the testator for the mistake of some witnesses who, for example, the will composed of 5 pages and because the witness was in a hurry so she lifted 2 pages, the 2 nd page was not signed, that will not be construed against the testator because it was not the testator who was at fault, it was the witness.  FORMAL REQUIREMENTS UNDER ART. 805:

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1. Subscribed at the end by the testator himself or the testator’s name is written by some other person in the presence and under the express direction of the testator. Q: What do you mean by Subscribe? A: Subscribe means sign. Q: Who will sign? A: The testator himself or some other person in the presence and under the express direction of the testator. Q: The testator is of course the person whose will is under consideration. But who are these some other person? A: Anybody may sign. Q: How about subscribing witness? Can a subscribing witness sign a will not as a subscribing witness but in behalf of the testator? A: That was discussed in the case of Barut v. Cabacungan. BARUT v. CABACUNGAN 21 P 261 Issue: Can a subscribing witness also sign in behalf of the testator? Ruling: Even a subscribing witness can also sign in behalf of the testator. This was the ruling in this case because there were 4 subscribing witnesses. This was clarified also in the case of In re will of Tan Duico 45 P 807. IN RE WILL OF TAN DUICO 45 P 807 Ruling: When there are 4 subscribing witnesses and one will sign in behalf of the testator so it is as if there are 3 witnesses, one signing in behalf of the testator and the 3 as subscribing witnesses. So there is still compliance with the requirement of law that there must be at least 3 subscribing witnesses. But if there are only 3 subscribing witnesses, one of them cannot sign in behalf of the testator. Because in effect there would only be 2 subscribing witnesses and the law says that 3. Q: What do you mean by in the presence? Is it necessary that testator actually see the signing? A: It is not necessary that the testator actually sees the signing as long as he can do so if he wants to without physical obstruction. Or, if the testator is blind, it is enough that he could have felt it. JABONETA v. GUSTILO 55 P 541 Ruling: The 4 generally accepted test of presence: 1. Test of VISION – when you actually see the testator signing. 2. Test of POSITION – when you are placed in such a position that if you want to see the testator you may do so without any physical obstruction. 3. Test of APPREHENSION – it is within his knowledge that the testator signs the will. For example, the testator is at your back but you know that he is signing. 4. Test of AVAILABLE SENSES – the use of the senses, sense of hearing, touch, sight, smell. So if the testator is blind, there are still other senses available to him. Q: What do you mean by “under the express direction of the testator?” A: It means that the person who signs the will in behalf of the testator must be EXPRESSLY authorized. Express not implied. So by word of mouth or by action, the testator merely indicates to the proxy a desire to have his name signed to the instrument. The testator’s mere knowledge or consent that his name was being signed for him or his acquiescence in such an act or a mere implied assent to the signing of another person is NOT sufficient to meet the requirement of express direction. . So by word of mouth, “Please sign in my behalf.” Or by action, he can signal. But if another person is signing in behalf of the testator and the testator will not his head, so that is an express direction. What about smile? Smile is implied because when you smile, it is subject to many interpretations. If he consented then it is not enough because consent is not an express direction. Q: What is being signed or subscribed or affixed by the testator or by the person signing in his behalf? A: What should be signed is the customary signature or the testator or any mark actually intended as a signature. So any mark, thumb mark, even a rubber stamp according to the Supreme Court or a mere cross. LEANO v. LEANO 30 P 612

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Ruling: A cross is sufficient to be considered as signature or mark as long as it is customary. GARCIA v. LACUESTA 90 P 612 Facts: There was a will and the lawyer signed Antero Mercado. Antero added a cross after the name: ANTERO MERCADO +. There is a requirement that if the will is signed in behalf of the testator by another person then the attestation clause must state that it is signed in behalf of the testator. Issue: Is the will signed in behalf of the testator or signed by the testator himself? Ruling: If it is signed in behalf of the testator then the attestation clause becomes defective because it did not state that it is written in behalf of the testator. But if it signed by the testator, then the attestation clause is not defective because it is not necessary to state in the attestation clause because it was the testator himself who signed the cross. Issue: Is the cross valid signature of Antero Mercado? Ruling: The cross is not the customary signature of the testator. Therefore, the will is not considered to have been signed by Antero. This cross is a mere surplusage. It was actually signed by the lawyer therefore it should state in the attestation clause that it is signed by the lawyer. Since it was not stated in the attestation clause then the will becomes defective. Q: What if the testator’s name is misspelled? Is it a valid signature? A: It is valid. Q: How about initials or abbreviations? A: Both are valid. Q: How about assumed name? A: Valid if the testator customarily used that assumed name in her transactions. Q: What if the writing is illegible? A: It is valid as long as it is the signature of the testator. Q: How about E-signature as what you discussed in your E-Commerce Act? A: E-signature is supposed to be attached to or logically associated with the e-data message or e-document or any methodology or signatures employed, adopted or executed by such a person with the intention of authenticating or approving an e-message or an e-document. So it is for the purpose of authenticating an e-document or an e-message (e-message is an information sent or generated by means of computer or whatever technology.) Q: Can you consider a will an e-message or e-document? A: A will cannot be considered an e-message or an e-document then you cannot affix an e-signature in the will. Under E-commerce Act, e-signatures are affixed or stamped to transactions or contracts. A will is not a transaction or contract. Moreover, if a will should be signed by the testator, handwritten, especially if it is a holographic will, esignature is not handwritten mark. Q: How should the signature may be affixed? Should it be the testator himself without any guide by anybody? A: The testator’s hand my be guided or steadied in the act of signing if the testator for example is suffering from physical weakness, as long as it is the testator’s own volition to affix his signature in the will. Q: What if another person writes the signature of the testator in the will? Whose signature should that person affixed in the will, should be his signature (the person guiding the testator) or the testator’s signature? A: That is answered in the case of Balonan v. Abellana. BALONAN v. ABELLANA 360 P 359 Facts: The last will and testament of Anacleta Abellana, which is sought to be probated was written in Spanish and consist of 2 typewritten pages. The 1st page is signed by Juan Bello and under his name appears typewritten “Por la testadora Anacleta Abellana … Ciudad de Zamboanga,” On the 2nd page appears the signature of the 3 instrumental witnesses. Ruling: When another person writes the signature for and in behalf of the testator then the signature to be affixed should be that of the testator, the name of the testator because in the first

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place it is the testators will. It is not even required that the name of the person signing in behalf of the testator should be affixed in the will. ABAYA v. GALAMERO 10 P 357 Issue: Is it necessary to write, “for the testator or at the request of the testator?” Ruling: It is not necessary as long as the testators name is in the will. Q: Where should the signature appear? A: The law says “at the end.” When you say at the end it means the logical end and not the physical end. That portion after the last dispositions but before the acknowledgement and the attestation clause. So if there are 5 pages and the last pages contains only of the attestation clause and the 4 th page contains the final disposition, the logical end is the 4th page. Q: What is the purpose of affixing the signature at the logical end? A: The purpose here is to prevent any insertion. Any other insertion after the signature of the testator will be considered as unauthorized insertion and it will invalidate the ENTIRE will not only the additional disposition after the signature. Therefore, after the signature, there should be no more dispositions unless another signature appears. 2. Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. Q: What do you mean by Attested by 3 or more credible witnesses? A: Meaning the 3 or more credible witnesses must be able to see the act of the testator in signing in the will. ATTESTATION Consists in witnessing the testators execution of the will in order to see and take note mentally that those things are done which the statutes require for the execution of the will and that the signature of the testator exist as a fact. Is the mental act of the senses. You see, smell, feel etc. The purpose is to render available proof of the authenticity of the will and its due execution. Is the act of the witnesses. To attest a will is to know that it was published as such and to certify the fact required to constitute an actual or legal publication. SUBSCRIPTION The signing of the witnesses name upon the same paper for the purpose of identification of such paper as a will executed by the testator.

Mechanical act of the hand. The purpose is identification. May be the act of the testator when the testator signs the will or the witnesses if the witnesses affixed their signature in the will. To subscribe a paper published as a will is only to write on the same paper then names of the witnesses for the sole purpose of identification.

Q: How should the witnesses subscribed the will? A: You should remember that subscription by the witnesses must be in the presence of the testator and of one another. Q: What do you mean by “in the presence of the testator and of one another?” A: Again, the same meaning as we discussed before. Not actually seeing but you in a position to see if you want to see without any physical obstruction. And again the 4 test will also apply. Cases relative to “in the presence”: JABONETA v. GUSTILO 5 P 541 Ruling: It is not necessary that you actually see act of signing. The Supreme Court here applied the Test of Position and Mental Apprehension. Even if you did not see the actual signing of the will but you had you back turned, you could easily turn your head and see if indeed the witnesses signed. In this case, one of the witnesses was in a position to see and there was no physical obstruction. Mental Apprehension because he saw one holding pen, so what else could be the proper interpretation if the witness was holding a pen. NERA v. RIMANDO 18 P 540

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Facts: There was a curtain separating the testator from the other witnesses. Ruling: Because there was a curtain, an obstruction or impediment, separating the testator from the other witnesses then it was not signed in the presence of the testator because the testator was not in a position to see. Assuming that the curtain was transparent or if it’s a glass sliding door, the testator could see. So even if there is really an impediment but it is a transparent impediment then it will not negate the compliance with the phrase “in the presence.” MARAVILLA v. MARAVILLA 37 S 672 Facts: The testator, the lawyer and the witnesses sat next to each other at a round table when the will was signed. However, Mansueto he was positive that the testator signed but he was not positive if the signature as presented to him was the signature of the testator. Ruling: It is not required that you should be acquainted with the signature of the testator because you cannot be familiar with each others signature. What is important is that you actually saw or you were in a position to see the act of signing. Q: If there are 4 witnesses, what is the order of signing should the testator sign ahead, next are the witnesses or the witnesses first then the testator? A: GABRIEL v. MATEO 51 P 216 Ruling: There is no order of signing. The witness may sign ahead of the testator or vice-versa as long as the signing is done in one single act, ONE contemporaneous or continuous act. So this day all of them must sign regardless of who signs first as long as it should be ONE SINGLE TRANSACTION. Q: What is the purpose of requiring the presence of the testator and the witnesses in signing the will? A: According to the Supreme Court the purpose is to prevent substitution of the will or fraud and to make it more difficult the circumvention of the testimony of the witnesses because all of them are witnesses of one another so if I say, “I witness the signing of the will.” So you are not alone in that declaration because the other 2 or 3 witnesses know that you are there. So if there are no other witnesses there are no other who would corroborate the signing of the will. 3. The testator or the person requested by him to write his name and the credible witnesses of the will shall sign each and every page of the will, on the left margin, except the last page. Q: What do you mean by Credible Witnesses? A: In the case of: GONZALES v. CA 90 S 183 Ruling: Credible witnesses are those who have all the qualifications required by law. As to what are these qualifications, these are provided in article 820 and 821 of the Civil Code. These credible witnesses must be able to testify and they must be competent to testify. These credible witnesses are the subscribing witnesses or the subscribing witnesses. There is a requirement that they are able to testify because later on when the will is contested, these witnesses will be called upon to testify. For as long as they have the capacity of telling the truth, they are credible witnesses. There is no need to present proof that they are of good standing in the community. So, Credible means Competent witnesses. Strictly speaking, are those qualified under article 820 and 821 of the Civil Code while Credible witnesses are those who has the capacity to tell the truth. Q: What do we call witnesses who signed on the left hand margin of each and every page? A: They are called the Marginal witnesses. But these marginal witnesses are also the subscribing witnesses. Because they sign the attestation clause and in addition they sign the left hand margin of each and very page of the will. These witnesses are also the credible witnesses because they must have the qualifications describe by law in order for them to be a witnesses in the will. They are also called instrumental witnesses because they are witnesses to the instrument. So, the Attesting witnesses must be the same person who should sign the left hand margin. The attesting witnesses are the

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subscribing, marginal, instrumental witnesses. Otherwise, if you have different witnesses for each purpose, the will is void. Q: What is the purpose of the signing the left-hand margin of the will? A: The purpose is identification of the pages used and to prevent fraud. Q: The law says “on the left-hand margin of each page.” What is the signature appears of the top, or at the bottom, is the will valid? A: Again, the purpose is served if the signature appears on the top or at the bottom. The authenticity of the will is not affected whether the signature appears on the left, right, top or bottom. AVERA v. GARCIA 42 P 145 Ruling: The will is still valid because so far as the authentication of the will and of every page thereof there is no possible difference whether the name appears on the left or on the right. Q: What do you mean by “each and every page?” A: Meaning, the page itself. A paper has 2 pages, the front page and the back page. So, if you have one sheet of paper and it has dispositions in front and dispositions at the back, each side must signed (front and back). The law says page not sheet. A one sheet of paper has two pages. Q: The law says, “except on the last.” What is the reason why the last page is exempted? A: Usually the last page contains the Attestation clause or may be it contains the end of the disposition of the will. At the end of the disposition of the will appears the signature of the testator and in the Attestation clause appears the signature of the witnesses. So this is the reason why the last page is exempted because all the signatures, that of the testator and of the witnesses appear on the last page. FERNANDEZ v. DE DIOS Ruling: If the last page contains only the attestation clause, then the testator need not sign on the margin of the last page. Q: What if there is no signature on the first page of the will? A: GENERAL RULE: absence of signature on the first page of the Will, invalidates the will. EXCEPTION: 1. If the will contains only one page, then logically that one page already has the signature of the testator because he is required to sign at the end of the disposition and that also contains the signatures of the witnesses in the attestation clause. 2. Inadvertent lifting pages. (Icasiano v. Icasiano) ESTATE OF TAMPOY v. ALBERASTINE February 25, 1960 Ruling: If there is more than one page then it is mandatory that the first page of the will should contain the marginal signatures. (general rule) This is reiterated in the case of Nayve v. Mojal. It is very important that each and every page of the will should contain the marginal signatures except when the will contains only one page. Again, the effect of absence of the marginal signatures becomes a fatal defect. It will invalidate the will. This defect is a defect on the Extrinsic validity of wills because this defect goes into the formalities or solemnities to be observed in the execution of wills. ICASIANO v. ICASIANO 11 S 422 Ruling: In this case, the failure to sign one of the pages was inadvertent and unintentional (inadvertent lifting of 2 pages). This inadvertence by one of the witnesses should not be attributed to the testator because as far as the testator was concerned he complied with all the formalities. Mistake by one of the witnesses should not be attributed to the testator. Otherwise, the witnesses may muddle the attestation clause and in effect invalidate the will. 4. All the pages shall be numbered correlatively in letters placed on the upper part of each page. Q: What is the purpose of numbering the pages of the will? A:

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1. 2. 3. 4.

To guard against fraud; To forestall any attempt to suppress or substitute any of the pages; To afford means of detecting the loss of any of its pages; To prevent any increase or decrease in the pages.

Q: The law says “in letters.” How about Roman Numerals? A: According to the Supreme Court in the case of Unson v. Abella 43 P 494 , “the use of Roman or Arabic Numerals is allowed.” Q: What about numbers? A: According to the case of Nayve v. Mojal, “the use of numbers 1, 2, 3, is also allowed.” Q: What about A, B or C? Is it allowed? A: In the case of Aldaba v. Roque 43 P 378, “the use of letters A, B, or C is allowed because the purpose of the law is still served. Q: What about partly in letters and partly in numbers, Page 1, Page 2, Page 3? A: Allowed because the number of pages are identified Q: How about “pass on the 2nd page, pass on to the 3rd page? A: IN RE: PILAPIL 72 P 546 Facts: At the bottom of the 1 st page of the will appears the clause “pass on to the 2 nd page,” at the bottom of the 2nd page also appears “pass on to the 3rd page,” and on the third page, which is the last, there appears after the testamentary dispositions, “consisting of 2 articles, contain 16 dispositions and written on 3 pages.” Issue; WON the numbering of pages is sufficiently complied with. Ruling: Yes. The requirement of the law as to the numbering of pages is sufficiently complied with. What is important is that you can identify based on the will itself how many pages comprise the will. Q: How about if the first page contains 1, 2 nd page 2, 3rd page contains 3, but the 4 th page has no number or letters or Arabic numeral, but it has the attestation clause which says “this will comprises of 3 pages excluding this attestation clause.” Will the absence of page, or number or letter in the 4th page, INVALIDATE the will. A: FERNANDEZ v. DE DIOS Ruling: The number of pages is sufficeiently stated in the attestation clause. The attestation clause provides “this will comprises of 3 pages excluding this attestation clause.” Meaning there are four pages. First 3 the will itself and the 4th page the attestation clause. Q: What if the 1st page is unnumbered? A: LOPEZ v. LIBORO 81 P 429 Ruling: This fact will not invalidate the will because the first page contains the caption “Last Will and Testament,” you will easily know from looking at the face of the will itself that it is the first page. The rule is different when you go to marginal signature because absence of marginal signature in the first page invalidates the will. Q: What if there is only one page and it is unnumbered? A: The will is valid because if there is only one page you can easily detect whether there is loss of pages because if the one page is lost then there is no will to speak of. Let us go to Attestation Clause. What is the proof of the fact that the witnesses attested he will? So the proof here is the Attestation Clause because attesting is a mental act. You cannot preserve that in a permanent form. So when the tome comes that the testator dies, the only proof you have that the witnesses witnessed/attested the will is the attestation clause.

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Q: What is the legal definition of Attestation Clause? A: Attestation Clause is that clause of an ordinary or notarial will wherein the witnesses certify that the instrument has been executed before them and the manner of the execution of the same. It is a separate memorandum or records of the facts surrounding the conduct of execution and once signed by the witnesses it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. Q: What is the nature of the Attestation Clause? A: The Attestation Clause is a declaration by the witnesses. It is not a declaration of the testator. (Penafrancia v. Abaja 87 P 139). Because it is the declaration of the witnesses then there is no requirement that the signature of the testator should appear in the attestation clause. Because the Attestation Clause is the declaration of the witnesses, then it is necessary that the witnesses should know the recitals in the Attestation Clause. It is not required that the witnesses should know the recitals of the will. Strictly speaking, the Attestation Clause is not part of the will because the Attestation Clause contains no dispositions. As we discussed before, a will should dispose directly or indirectly of properties. Q: What is the purpose of Attestation Clause? A: To preserve in permanent form a record of the fact attending the execution of the will. So that in case of death, absence, or failure of memory of the subscribing witnesses or casualties, the due execution of the will may still be proved. Q: What do the subscribing witnesses attest to? A: 1. They attest to the genuineness of the signature of the testator – because these witnesses should be present when the testator signed the will; 2 They attest to the due execution of the will – meaning they know or see that when he testator executed the will, the testator was of sound mind, legal age etc It is important that the attesting witnesses know that what the testator is signing is a will. Because if they believed that the testator is merely signing a contract of sale or a deed of donation then the attestation becomes defective, because the witnesses are not competent witnesses. Take note that Attestation Clause is Mandatory in Notarial or ordinary wills. So the absence of Attestation Clauses in Notarial Will makes the will void. But in Holographic will there is no requirement that it should contain an Attestation Clause. Q: What should the Attestation Clause states? A: 1. the number of pages used upon which the will is written; 2. the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction; 3. the signing by the testator or by the person requested by him in the presence of the instrumental witnesses; and 4. that the instrumental witnesses witnessed and signed the will and all he pages thereof in the presence of the testator and of one another. Q: The last portion of article 805 talks about the language used in the Attestation Clause. Should the witnesses know or understand the language used in the Attestation Clause? A: Primarily, they should know or understand the language used in the Attestation Clause. But what happen if the witnesses do not understand or do not know the language used in the Attestation Clause? Then it is enough that the language or dialect is interpreted to the witnesses. And because the Attestation Clause is the declaration by the witnesses then the testator is not required to know the language in the Attestation Clause. Art 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court. This article talks about the requirement of acknowledging the will by the testator and the attestation clause by the witnesses before the notary public. The law says “every will must be acknowledged.” We know that there are 2 kinds of wills allowed in the Philippines. We have the notarial or ordinary will and the holographic will. Article 806, although it states “every will,” it should be construed to be limited only to notarial or ordinary wills because in holographic wills, there are no witnesses and article 806 talks about witnesses, only notarial wills have to be witnessed. Q: In the last portion of the will you have the acknowledgment. What do you mean by “To Acknowledge?” A: Means to admit, to avow, to own as genuine.

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Q: Who acknowledges? A: The notary public id the person before whom the will is acknowledged. The testator is the one who acknowledges. The witnesses are the persons who acknowledged the Attestation clause. Q: What is an Acknowledgment? A: It is statement made by the notary public that the testator and the witnesses have personally come before him and that they affirm that the will or the attestation clause is voluntarily signed by them and that they understood what the will or the attestation clause is all about. The acknowledgment is not signed by the testator and the witnesses. It is only signed by the notary public who signs the same. Q: When the notary public signs the acknowledgment, is it required that it is signed in the presence of the testator and of the witnesses? A: Actually article 806 says that the testator and the witnesses must acknowledge before a notary public. There is no requirement that the notary public should sign in the presence of the testator and of the witnesses. The testator and the witnesses may acknowledge the will before the notary public today and the notary public may just affix his signature tomorrow and without the presence of the testator and of the witnesses. Q: How about the acknowledgment made by the testator or by the witnesses, should be in the presence of the testator and of one another? All of them must present during the acknowledgment? A: Again there is no such requirement. The acknowledgment may be done on this day by the testator alone then tomorrow one witness, next day another witness, as long as the acknowledgment is personally done before the notary public. Also, proxy is not allowed. The testator and the witnesses must personally appear before the notary public. Otherwise, the notary public will be held liable under the notarial law. Because it is not required that the acknowledgment is done in the presence of the testator and of each and every witness then acknowledgment need not be done in a single day like the signing of the will. It could be on separate occasion. There is NO requirement that acknowledgment must be a single act or must be contemporaneous (Javellana v. Ledesma 97 P 258). Q: Is it required that the notary public before whom the will is acknowledged must be present during the execution of the will? A: No only the testator and at least 3 witnesses. CRUZ v. VILLASOR November 26, 1976. Issue: How about if the notary public is one of the attesting witnesses? Is it allowed for a notary public to participate as an instrumental or attesting witness? Ruling: No for the following reasons: 1. Acknowledgment means to admit, to avow, before the notary public. If the notary public is one of the attesting witnesses, in as much as he notarizes the document then he cannot acknowledge the document before himself. He cannot split his personality; 2. The function of a notary public in participating the acknowledgment of wills is guard against fraud, or any illegal or immoral arrangement. If the notary public becomes one of the instrumental or attesting witnesses then, the notary public is interested in sustaining the validity of the will because he is a party to the will as a witness. He is interested in sustaining the validity of his own act. Q: What if the notary public is related to the testator or to any of the 3 witnesses? Is the notary public qualified? A: There is no such requirement under the law that you should be related to any of the party under the Civil Code. But under the new Notarial law which will take effect in August 2004, you cannot be a party within the 4 th civil degree by affinity or consanguinity to document which you are going to notarize. Q: Is it required for the notary public to read the will and explain the content of the will to the testator and to the witnesses? A: There is no such requirement. The notary public will just ask, “Is this will voluntarily executed by you?” “Did you understand the content of this will?” If the answer is yes, then that would be sufficient. Q: What is the purpose of this Acknowledgment? A: The purpose is to guard against fraud. First, by making sure that the testator and the witnesses voluntarily signed the will free from any intimidation, undue influence. Second, by making sure that the testator and the witnesses understand what they are doing. If the document has been notarized, it is presumed that it is regularly done. That is why if the will is acknowledge before the notary public then it is presumed that the will was regularly executed and because there is

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such presumption and this presumption is found in the Rules of Court, that official function shave been regularly performed, it need clear and convincing evidence to dispute this Presumption of Regularity. Q: What if there is no acknowledgment in the notarial will? A: Because the acknowledgment is to safeguard against fraud then its absence is a fatal defect. Absence of acknowledgement will invalidate the will. GABUCAN v. MANTA 95 S 752 Ruling: Absence of documentary stamp is not a fatal defect and will not invalidate the will. Q: Documents acknowledged before a notary public are public documents. Notarial wills specifically should be acknowledged before a notary public. Do you consider wills public document? A: No because wills are supposed to be personal to the testator. He is not supposed to declare to the public the content of his will. In fact article 806 provides that “the notary public shall not be required to retain a copy of the will, or file another with the office of the Clerk of Court.” Another is under Rule 132 Section 19 of the Rules of Court which defines public documents. Paragraph-b thereof says, “Documents acknowledged before a notary public except last wills and testaments.” Art 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so, otherwise, he shall designate two persons to read it and communicated to him, in some practicable manner, the contents thereof. If the testator is deaf or deaf-mute BUT he can read the will, he is literate then he must read the will. But if he is unable to do so, he is illiterate. Then he shall designate persons to read to him the contents of the will or to communicate to him the contents of the will in some practicable manner, may be by sign language or charades, as long as it is done in a practicable manner. Q: The law says, “he shall designate 2 persons.” Meaning the choice of who will read the will belong to the testator. What if the testator does not know anybody who can communicate to him the contents of the will? But his family and friends know somebody? A: It is enough that the 2 persons are approved by the testator. He consents that these 2 persons will read to him the contents of the will. Further, the law does not require that these 2 persons who will read the will must be the attesting witnesses, so anybody. Q: As we discussed it is not required to state in the Attestation Clause that the contents of the will have been read or communicated to a testator if he is deaf or deaf-mute. If it is not stated in the attestation clause then how do you prove that fact during the probate of the will? A: In the absence of the statement in the attestation clause, during the probate you can use Extrinsic evidence, evidence aliunde. Like the testimony of witnesses or documents. But you can also prove that thru Intrinsic Evidence, if for example it is stated in the body of the will itself. But it is advisable that you should provide such statement in the attestation clause although it is not required by law. Art 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. Article 808 talks about the requirement that should be complied with if the testator is blind. Q: Who should read? A: 1. once by one of the subscribing witnesses; and 2. once by the notary public. ALVARADO v. GAVIOLA 226 S 317 Issue: Is it required that the testator must be blind for article 808 to apply? Ruling: No. As long as the testator cannot see or have difficulty of seeing. The requirement of the law of reading the will once by the subscribing witnesses and again by the notary public should be complied, otherwise the will becomes void. Art 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was not in fact executed and attested in substantial compliance with all the requirements of Article 805.

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This article is the last of the formal requisites to be complied with in the execution of notarial wills. The Rule on Substantial Compliance. Q: What is Substantial Compliance? A: There is substantial compliance when there has been an HONEST ATTEMPT on the part of the testator to comply with the formal requisites provided by law but the compliance is only substantial and not literal but the purpose of the law is substantially accomplished although not strictly followed. Q: What is the purpose of Substantial Compliance? A: This is designed to attain the objective of liberalization in the execution of wills. Although the law provides for certain requirements that have to be complied with in the execution of wills, such legal requirements should not extend to such an extent that will negate the freedom of the testator in executing his will, or will create undue or unnecessary curtailment of testamentary privilege. Q: What defects or imperfections are excused under article 809? A: 1. defects/imperfections in the form of attestation clause; 2. defects/imperfections in the language used in the attestation clause. These 2 kinds of defects/imperfections are formal defects. They are not defects of substance. EXAMPLE OF FORMAL DEFECTS: 1. Ordinarily attestation clause is signed at the bottom. But if the witnesses sign on the side of the will, that is just a formal defect. (Cagro v. Cagro 92 P 1032) 2. Another, if the 1st page has dispositions which occupy only one-fourth of the 1st page then the attestation clause is on the 2nd page so there is a very wide space in the 1st page, but the attestation clause is on the 2nd page when it could still be accommodated in the 1 st page. May be some would say that the attestation is not part of the execution because it is just an afterthought, but that kind of defect is merely formal not on substance. Even if the signatures are on the left not at the bottom of the attestation clause. (Taboada v. Rosal November 5, 1983)  1. 2. 3. 4. REQUISITES OF ARTICLE 809: The defects/imperfections refer to the form of the attestation or the language used therein; There is no bad faith, forgery or fraud, or undue or improper pressure and influence; The will was executed and attested in substantial compliance with all the requirements; and The fact of such execution and attestation is proved.

Q: What evidence should we use incurring the defects/imperfections in the form of the attestation clause and of the language? Should only intrinsic evidence be used or also extrinsic evidence? A: Justice JBL Reyes said, “if the law is so broad as to admit the introduction of extrinsic and intrinsic evidence then the purpose of attestation clause would be of no avail because you can easily supply defects in the attestation clause by means of extrinsic or intrinsic evidence.” So the Attestation clause would be of no value in protecting the authenticity of wills. So according to JBL Reyes, Extrinsic evidence or Evidence Aliunde are NOT allowed in curing defects and imperfections in article 809. It should be INTRINSIC EVIDENCE or evidence derived from the examination of the will itself. However, take note that In both formal and substantial defects, you cure these defects by means of Intrinsic Evidence not by Extrinsic Evidence or Evidence Aliunde. So no distinction. CANEDA v. CA May 28, 1993 Facts: The attestation clause says, “three pages and HE has signed the same and every page thereof on the spaces provide for his signature and on the left-hand margin in the presence of said testator and in the presence of each and all us.” Ruling: The word HE refers only to the testator. There is no mention that the witnesses sign in the presence of the testator and each and every one of them. This defect is a formal defect because it omits an essential requirement as stated in article 805 of the Civil Code. This defect can be cured as supplied in the text of the will itself. Q: What are the formal requisites to be observed in the execution of Notarial Wills? A: 1. The will must be in writing (804); 2. It must be in the language or dialect known to the testator; 3. The will must be signed by the testator or by another person in his presence or under his express direction (805); 4. That the signing by the testator or by the person under his express direction and in his presence must be done in the presence of at least 3 instrumental witnesses;

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5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

That the will is attested and subscribed by at least 3 credible witnesses in the presence of the testator and of each and every one of them; That the will must be signed by the testator and by at least 3 credible witnesses on the left hand margin on each and every page; That the will must be numbered correlatively in letters; That the signing by the 3 witnesses must be done in the presence of the testator and each and every one of them; There must be an Attestation clause stating therein the number of pages upon which the will is written, a statement that the testator signed the will or another person signed the will under the express direction of the testator; The will is signed at the left margin by the testator and the 3 instrumental witnesses in the presence of the testator and of one another; The will must be acknowledged before a notary public (806); The will must be read twice by 2 persons designated by the testator if the testator is deaf or deaf-mute (807); If the testator is blind the will must be read to him once, by one of the subscribing witnesses, and again, by the notary public (808); and There must be substantial compliance with all the requirements of the law (809).

ABANGAN CASE Facts: A will consisted of 2 pages. The 1 st page is the disposition signed by the testator at the bottom. Second page is the attestation signed by the witnesses. Issue: There were no signatures on the left margin. According to the oppositors the signatures should also appear on the left margin. Ruling: It is enough that the signatures appear on each and every page of the will. The purpose here is to identify that indeed the testator and the witnesses signed the will. • No dissenting opinion

CAGRO CASE Facts: The signatures instead at the bottom, the signatures were on the margin. Issue: the signatures should be at the bottom so that there were signatures on the left and at the bottom. The main text of Cagro v. Cagro, it was considered a Fatal defect by the Supreme Court. According to the SC, these signatures in order to be in compliance with requirement of the law, aside from signatures on the left margin, you should still sign at the bottom. However, there were strong dissenting opinions to the effect that to require that the signatures of the witnesses aside from the left margin should also appear at the bottom is TOO TECHNICAL. It will not serve the purpose of the law because what is important is that the signature should appear on each and every page and this purpose is accomplished by affixing the signature on the left.

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In Taboada v. Rosal, the SC mentions the purpose of the signatures appearing on the left hand margin: “the signatures of the instrumental witnesses on the left hand margin on the first page of the will attested not only to the genuineness of the signatures of the testatrix but also to the due execution of the will as embodied in the attestation clause.” According to the late Dean Estrellado, that is also a formal defect only because it can be cured by examination of the will. So the fact that there are no signatures appearing at the bottom of the attestation clause is supplied by the signatures on the left margin.

Art 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnesses. Q: What are holographic wills?

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A: Based on Article 810, Holographic wills are wills entirely written, dated and signed in the handwriting of the testator.  1. 2. 3. Advantages of Holographic wills: easier to make; - no need for a notary public to draft a will for you. easier to revise; easier to keep secret – because only you alone makes your will.

 Disadvantages: 1. easier to forge; 2. easier to misunderstand; - the testator may have difficulty expressing his wishes because if the testator may be a layman, or grammatical errors. 3. No guarantee that no fraud, no intimidation exerted upon the testator or as to the soundness of mind of the testator. HISTORY of Holographic Wills: 1. Spanish Civil Code – permitted the execution of holographic wills. But on August 7, 1901, the Code of Civil Procedure or Act # 119 took effect. The Code of Civil Procedure adopted only Notarial Wills. So holographic wills and all other kind of wills were repealed. 2. Civil Code – took effect in 1950, holographic wills are revived.  1. 2. 3. 4. REQUISITES of Holographic Wills: It must be ENTIRELY written by the testator; It must be dated in the hand writing of the testator; It must be signed in the hand writing of the testator; and It must be with animus testandi.

Q: What is the purpose of the requirement that holographic wills must be entirely in the hand writing of the testator? A: In order to guard against all forms of forgery and falsification because it is easier to forge a single signature of the testator than to forge the entire text of the will. The law says ENTIRELY written in the hand writing of the testator then no part of the will should be type written, or computerized and no part of the will should be written by another person. Everything must be in the handwriting of the testator. Q: What if the testator has no hand? A: If the testator has no hand but he knows how to write in his mouth, or foot as long as it is the writing of the testator and not of any body else. Q: Article 810 requires no attestation clause for holographic wills. What if the holographic will contain an attestation clause will it invalidate the Will? A: The attestation clause will be considered merely as a surplusage. Q: What if the attestation clause is typewritten attached to the holographic will? A: Strictly speaking, in notarial will, attestation clause is not part of the will because it contains no dispositions. So the same principle apply in holographic will, the attestation clause is not part of the will. The fact that it is typewritten will not invalidate the will. Q: In holographic will the date is very important, why? A: 1. The purpose is to provide against contingencies when the testator 2 or more wills. Again you have to know which is the later will because the later Will, will be considered as the last wishes of the testator; 2. To provide against contingencies when the testator becomes insane. For example, the testator is insane but he has a lucid interval. This is to know WHEN he executed a will whether during lucid interval because again there are no witnesses and no notary public in holographic wills who will witnessed and acknowledged the will; 3. To determine whether the holographic will was executed during point in time when holographic wills are really allowed. Q: How should the date of the will be written? A: Although date should be the day, month and the year. However as long as the date can be determined. Even if by implication like Christmas day, which we know is December 25 or Valentine’s Day is February 14. ROXAS v. DE JESUS JR. 134 S 247 Facts: Opposition is interposed on the ground that the holographic will is fatly defective because the date “FEB/61” appearing on the holographic will is not sufficient compliance with article 810.

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Ruling: The contingencies safeguarded by the law were not present in this case. Moreover, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established. However, if for example the testatrix has its lucid interval and the date is Feb/61, there will be difficulty of identifying whether at the time of execution the testatrix is sane because the date is incomplete. Q: What if the date is erroneous? For example, today is July 23, 2004, the day I executed my will but I stated in the will, August 20, 2004. What is the effect? A: If the mistake/error is intentional, there was bad faith or fraud on the part of the testator then the will becomes void. Because for example, the testator is 17 years and 6 months old but he dated in his will 1 year after, he executes his will today at the age of 17 but the date is next year, so there is bad faith. In this case, the Will, will be invalidated. However, if the mistake is inadvertent and the true date can be determine then the Will will not be invalidated because the true date can be determined. Let us go to signatures. The law says the full signature of the testator meaning, if the testator is Jennifer Lopez, the signature should contain Jennifer Lopez. What if Jennifer Lopez customarily affixes her signature as J Lopez. According to the Supreme Court, that will be allowed as long as the full customary signature. So if you customarily affix your signature as J Lopez then it should be the full J Lopez, not Lopez alone. Also, if you customarily affix your signature in your nickname or pseudo name or aliases then it is allowed as long as it is the full customary signature. Q: What if initials, JL? A: In this case, it would be very easy to forge the signature. So the authenticity of the will is not guaranteed. Q: How about thumb mark? A: Thumb mark is not allowed because it is not the writing of the testator. Although in notarial will thumb marks are allowed. Q: When should the signature be affix, on the day itself of the execution of the will or the day after? A: There is no requirement that the signature should be affixed on the very same day of the execution. It may be affixed later on. Q: Can a blind testator execute a holographic will? A: There is no prohibition. Art 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. This article talks about probate of the will. Q: What do you mean by Probate? A: Probate is the allowance of the will by the court after its due execution is proved. In the probate of holographic wills, the only issue here is the genuineness of the signature of the testator, whether the will is in the hand writing of the testator, whether it is in the signature of the testator. What about sanity or voluntariness? These matters are presumed. So no need to prove in the probate of holographic wills. Q: What do you mean by Contested? A: That is answered in the case of Rivera v. CA RIVERA v. CA 182 S 322 Ruling: When you say contested, the person contesting must have personality. Either they tend to receive something by reason of the will or they tend to be prejudiced by reason of the probate of the will. If the persons contesting are not the one who have the personality to contest then it is as if the will is not contested. So in this case, you do not need to present 3 witnesses who know the hand writing of the testator. It is enough that there is alt least one.  RULE:  If probate is UNCONTESTED – one witness who knows the hand writing of the testator must be presented and who must explicitly declare that the will and the signature are in the handwriting of the testator. EXPLICIT meaning you must possibly and unconditionally declare.  If probate is CONTESTED – at least 3 of such witnesses should be presented.

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Q: Why is there a need to present a witness if the will is not contested? A: If there is no need to present any witness then fraud could be easily committed because after all no witness is required to testify. Under the Rules of Court, probate may also be made during the lifetime of the testator. If that happen still the same requirement one witness if not contested. If it should be the testator should testify as to his own handwriting then it is better. Q: What kinds of witnesses are qualified to testify the hand writing of the testator? A: 1. A witness who has SEEN the testator write; 2. Even if the witness has not seen the testator but that witness is FAMILIAR with the handwriting of the testator; If there are no such witnesses may be because they are dead or the witnesses presented are not so convincing then the court may allow the presentation of EXPERT witnesses (hand writing expert). But expert testimonies are allowed even if the will is not contested. So contested or uncontested, expert testimonies are allowed. GENERAL RULE: The requirement of presenting an expert witness is discretionary on the part of the court. Especially when after the testimony of the witnesses who know the handwriting of the testator, the court is convinced as to the authenticity of those wills. So there is no requirement to present expert witnesses. EXCEPTION: It is mandatory when after the presenting witnesses who allegedly know the hand writing of the testator, the court still is not convince as to the authenticity and genuineness of the will then the court should require expert testimony. Why? This was discussed in the case of Codoy v. Calugay. But before that let us discuss the case of Azaola v. Singson. AZAOLA v. SINGSON Ruling: In this case, the presentation of expert witnesses are not really mandatory. During the execution of holographic wills there were no witnesses. So it is really possible that during the probate of the holographic will, there were no such witnesses who know the handwriting of the testator. So it was not mandatory to present expert witnesses. CODOY v. CALUGAY 312 S 333 Ruling: After all the witnesses have been presented, the court is not convinced as to the authenticity and genuineness of the holographic will, it is mandatory. Because the law says it SHALL be necessary. Shall connotes imperativeness as distinguished from May. The second reason is to prevent the possibility that some individual who for their benefit will employ fraud just to defeat the wishes of the testator. Q: Is there a need to present the holographic will in court? A: Yes. In the first place, how will you determine whether the will is really in the handwriting and signature of the testator when there is no will to examine. So the testimony of the witnesses will be useless if there is no will presented in court. For how can the court make the proper comparison as to what is testified by the witnesses and as to the existence of the will itself. So there is a need to present the will itself. The will itself is its own safeguard as to its genuineness and authenticity. From the document itself it could be demonstrated whether or not it is in the hand of the testator himself. Witnesses may be mistaken in their opinion as to the hand writing of the testator or they may lie deliberately. So the oppositors may present contradictory evidence and the proponent may also present their own evidence and the Will, will determine which of the 2 are to be believed. Q: Do you have to present the Original copy of the Holographic will? A: In the case of Rodelas v. Aranza, photocopy or carbon copy is allowed. It is not required that the original is presented because from the photocopy, you can see the stroke of the hand writing and signature of the testator. So by visual examination of the photocopy of the will, then the court may determine whether the will is in the handwriting and signature of the testator. Q: Under the Best Evidence Rule on the Law of Evidence, where the subject of inquiry is the content of the document, no evidence shall be admissible other than the original document itself. So what is the reason why photocopy or carbon copy is allowed? A: In Succession, there is no question as to the existence of the will because the will must be presented itself. When there is no will there is no probate. The proof of existence is the will itself. In the Law of Evidence, there are exceptions, when the original of the document is lost or destroyed and cannot be presented in court, then that would be an exceptions to the Best Evidence Rule.

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Art 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 disposition. When the testator drafts the holographic will, it is not required that it has everything in a single provision. Even after he had drafted his will, written a date thereon and affixed his signature, the testator may later on realize that he has sill other provisions which he wants to be included in his will, so in that case, the testator may still add some more dispositions under his signature. Provided that those dispositions are in his hand writing, dated and signed by him. Q: What is the purpose of this requirement? A: To forestall fraud through the insertions of dispositions by some other person and it is necessary that there should be a signature and a date because this signature and date reveal testamentary intent. If there is no signature and date then it is presumed that the testator has no testamentary intent as to his additional dispositions.  If dated without signature – void as to the disposition  If signed only without date – void as to the disposition In article 812 only the dispositions which do not contain a signature and date will be void, the will itself will not be affected. Art 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the time of prior dispositions.  Signed but not dated and the last dispositions is signed and dated – validated  date only and the last disposition is dated and signed – only the last disposition is valid, all the previous dispositions are void because the law says signed not dated. Only the disposition unsigned is invalid.  Not signed and not dated even if the last disposition is signed and dated – void Q: Is it necessary to date each and every disposition in a will? A: No, as long as the last dispositions contain the date and the signature and the preceding disposition has signature even without a date. Example, there are additional dispositions. These additional dispositions are written and signed by another person without the consent by the testator. What is the effect of these additional dispositions? These additional dispositions are VOID because they are not signed and written by the testator. The effect is only the additional dispositions not written and signed by the testator are void but the will itself is valid. Q: What if written and signed by another person but with the consent of the testator? A: As long as the testator does not affix his signature and date then it is presumed that these dispositions are not authenticated by the testator. The signature of the testator and the date written must be by him to make them the testator’s own dispositions. Q: What if these additional dispositions are written by another person but signed and dated by the testator? What happens to these additional dispositions? A: The WHOLE WILL becomes VOID. By affixing the testator’s signature and the date, it is as if the additional dispositions become part of the will because they bear the authentication by the testator. So they become part of the will so the will becomes void because as we know holographic wills must be ENTIRELY written, dated and signed in the hand of the testator. In this example, the will is not entirely written in the hand of the testator. As we learned, when any part of the holographic will contains writings which are not in the handwriting of the testator, typewritten, computerized, the whole will becomes void by reason of the signature and the date written by the testator. Art 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. We have to clarify that the insertion, cancellation erasure or alteration mentioned in article 814 are once written in the hand writing of the testator. Because again if any part of the will is not written in the hand writing of the testator then the whole will is void. In this article insertion, cancellation erasure or alteration, is not per se prohibited as long as they are authenticated by the full signature of the testator. As to what is full signature, we have previously discussed the same in previous article. Again, the purpose here is to forestall fraud because the execution of the will is a personal act and so the signature must be that of the testator and he alone can authenticate whatever corrections that may be found in the will.

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Q: What happens id this insertions, erasure or cancellation does not bear the signature of the testator? A: GENERAL RULE: Only the erasure or insertion is void. The entire will itself is valid. Only the unauthorized insertion or erasure is void. EXCEPTION: When this insertion, cancellation, erasure or alteration is made in an essential part of the will. When this insertion, cancellation, erasure or alteration will affect the essence of the will then not only the insertion, cancellation, erasure or alteration is void but the entire will itself. This is illustrated in the case of Kalaw v. Relova. KALAW v. RELOVA 132 S 237 Facts: The first disposition was in favor of Rosa Kalaw. But the testatrix later on changed her mind so she changed the heir and it was substituted by Gregorio Kalaw. However, the change was not authenticated by the full signature of the testator. Issue: What happens with the alteration? What happens with the will? Ruling: Because there is only one essential provision then the entire will itself is invalidated because the new disposition does not bear the full signature of the testatrix. What about giving effect to the previous disposition in favor of Rosa? Again, that could not be given effect because as we reached the Law on Revocation, the intent of the testatrix was really to revoke the previous disposition. So in this case, the whole will itself becomes void. AJERO v. CA September 15, 1994 Ruling: If the insertion, cancellation, erasure or alteration is made on the signature or on the date of the will then the whole will becomes void. Because the signature and the date go into the essence of the will. Articles 815, 816 and 817 were previously discussed under Extrinsic validity of wills from the viewpoint of Place or Country. Example: If a Japanese resides in the Philippines, executed a will in Japan and follows the formalities in Japan, if that Japanese has properties in the Philippines and he died his will may be probated in the Philippines, it may also be probated abroad. But if that will probated abroad contains certain dispositions involving the properties found in the Philippines then that will again may be probated here in the Philippines that is called REPROBATE of will. When the will is probated abroad of course they follow their own Rules of Court. When it is probated again in the Philippines, we follow our own Rules of Court. Although with respect to determining whether the will complied with the formal requisite imposed by Japanese law, the Court will not take judicial notice of Japanese laws. Q: What happens if they fail to prove these Japanese laws? Should the will be denied probate? A: We apply the DOCTRINE OF PROCESSUAL PRESUMPTION, wherein it is presumed that Japanese Laws are the same as Philippine laws. But if the will was already probated in Japan and it has again pass probate in the Philippines, in that case you do not only prove the existence of Japanese laws with respect to the formalities of wills but also you have to prove the Procedural law on allowance and probate of wills in Japan (Rules of Court in Japan). Q: What happens if the proponent of the will fails to prove the Procedural Laws of Japan? A: In this case the Doctrine of Processual Presumption will not apply. The will should be denied probate. You have to make distinction between the Extrinsic Law and the law of a foreign country as to its procedure of probate. Art 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. JOINT WILL - is one wherein the same testamentary instrument is made as the will of 2 or more persons and it is jointly executed and signed by them. MUTUAL WILL or RECIPROCAL WILL

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wills of 2 persons wherein the disposition of one is made in favor of the other and the other also makes dispositions in favor of the other. A makes disposition in favor of B and B makes dispositions in favor of A. This is also called TWIN WILLS. The Mutual or reciprocal wills are embodied in separate instrument. The will of A is embodied in a separate instrument and the will of B is embodied in another separate instrument. Although they give to each other certain properties in exchange, that mutual or reciprocal will is allowed and valid. However, when the 2 dispositions are made in the same will, it becomes a joint will. Now we have a Joint and Mutual will. When you have a Joint and Mutual will, it is prohibited under article 818.

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Article 818 may cover a joint and mutual will or joint will wherein the benefit is not for the 2 parties who execute the will but for a third person. Not all mutual and reciprocal wills are Joint wills. Q; What if dispositions made by A are on the upper part and on the lower part are the dispositions made by B? Is this a joint will? A: No. This is not a joint will. These 2 dispositions are independent from each other. Q: What if one sheet of paper. First/Front page, dispositions by A signed by A and the second/back page dispositions by B signed by B? Is it a joint will? A: No because in this case, the front page dispositions by A and the 2 nd page dispositions made by B are again treated independently of each other. Under article 819, wills executed by Filipinos in a foreign country shall NOT be valid in the Philippines. So even if a Filipino executes a will in China and for example in China joint wills are allowed, as a general rule when it comes to Extrinsic validity of wills, e may follow the laws enforced at the place of execution. But if you execute a joint will, that will is void. So that is an exception. This is because article 818 and 819 are expressions of public policy. As provided under article 17, 3rd paragraph: “Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. “ ` So those expressions of public order, public policy cannot be defeated by promulgations, determinations by foreign country. So even if the law of foreign country allows Joint wills, joint wills are not allowed in the Philippines. Q: What are the reasons why joint wills are not allowed? A: 1. It destroys the character of wills as a strictly personal act; 2. It tends to convert a will into a contract; In joint wills usually you provide something for the other in consideration of its giving something in return. Instead of mere liberality, the execution of wills is transformed into somewhat like a contract. 3. 4. 5. It runs counter to the idea that wills are essentially revocable or ambulatory; It may subject one to undue influence. It induces Parricide. It makes probate much difficult especially if the testators dies at different times.

However, there are exceptional circumstances and that is in the case of: DE LA CERNA v. POTOT 12 S 576 Facts: A couple executed a Joint will. The husband died. The Joint will was introduced probate. By error of the Judge, the will was admitted to probate although that admission to probate was erroneous. The decision of the Judge was not appealed so the decision became final. Because of the finality, the estate of the husband was distributed in accordance with the provisions in the Joint will in as far as the estate of the husband is concerned. Subsequently, the wife died. The same Joint will was introduced into probate. The court denied probate because Joint wills are prohibited. The proponent of the will contended that the prior probate of this will, after the husband died is conclusive as to the due execution of the Joint will. Therefore being conclusive, the estate the wife should also be distributed in accordance with the Joint will which due execution thereof had already been determined. Issue: Should the Joint will be allowed in probate when the wife died?

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Ruling: No because Joint wills are prohibited. That Joint will was allowed only when the husband died because the decision became final. As we know decisions no matter how erroneous if it attain a status of finality then it should be executed. So the formalities of that first decision as to probate of the Joint will are not conclusive as to the provisions of the estate of the wife. This is because provisions in Joint will are considered separate although they are embodied in Joint will. The estate of the husband is separate from the estate of the wife. Therefore, the judgment in the first case should not extend to the second probate with respect to the estate of the wife. The Supreme Court denied probate of the will. The due execution of the will should be adjudicated and examined de novo in the second probate. Art 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 he laws of the country where they may have been executed. Again, if Joint Wills are executed by Filipinos abroad, even if it is considered valid abroad Joint wills are not allowed in the Philippines. This is an exception to the rule embodied under article 815 and 819 of the NCC, the rule on Lex loci celebrationis. Q: What if a foreigner executes a Joint will? A: If the foreigner executes a Joint will ABROAD under article 17 and 816 of the NCC it is allowed if he observes the formalities allowed in the place where: (a) he resides; or (b) he may be (art 17); or (c) of his nationality (art 816) If the foreigner executes a joint will in the Philippines, it seems that under article 817 it is valid. But, the rule of public policy must prevail. So if he executes a joint will in the Philippines that should NOT be ALLOWED in the Philippines.

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Subsection 4 WITNESSES TO WILLS Article 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write; may be a witness to the execution of a will mentioned in Article 805 of this Code. Article 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. Article 820 talks about the qualification of witnesses, to become attesting witnesses in wills. Article 821 talks about the disqualification of persons to become witnesses in wills. This refers only to Notarial or Ordinary Will. But when you are asked, what are the qualifications of witnesses to notarial will, you answer 820 and 821. You might have observed that the qualifications of witnesses to wills are more than the qualifications required of a testator. A. SOUND MIND - When talked about testators we learned that to be of sound mind he must know the nature of the estate to be disposed of, the proper objects of his bounty, the character of his testamentary act. But in witnesses, there are no standards as long as you can prove that you are not insane then you are considered as sound mind. Again, we have the presumption that a person is sane. B. 18 YEARS OR MORE – Spanish law

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C. NOT BLIND, DEAF OR DUMB, ABLE TO READ & WRITE – Their function is to see. Why would you choose somebody who is blind? Although a testator although he is blind it should not negate his privilege to make a will. - a deaf person cannot hear. The problem comes when he is presented in court to testify, if he cannot hear so it is very difficult during the court proceedings. - dumb/illiterate person can see and can hear but they cannot give intelligent testimony. D.DOMICILED IN THE PHILIPPINES – this requirement is imposed so that they may be readily available when their testimonies are to be presented in court during the probate of wills. Also, they are more or less acquainted with the age and mental sanity of the testator. - This requirement applies only when the will is executed here in the Philippines. Of course when you execute a will abroad it would be very difficult for you to find a person who is domiciled in the Philippines. The will is valid when you observed the laws of that country with respect to witnesses. When you speak of Domicile, it is defined in article 50 of the Civil Code: Art 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence. There are 2 essential elements of domicile: 1. The fact of residing or physical presence in a fixed place; and 2. The intention of remaining there (animus manendi or intent to remain) The concept of domicile in Civil law is different from the concept of domicile in Election law. In election laws, when you say domicile and residence, they are synonymous. But in Civil law, residence is different from domicile. In election law, residence or domicile, the fact of physical presence in a fixed place and intention to remain. But in Civil law, residence refers only to the fact of physical presence in the place. So a person may be resident of 2 or more places. As long as he is present in all those places. But to be considered as a domiciliary of a place, the presence must be coupled with the intention to remain. And when you say domicile, it is not really necessary that all throughout your life you are in that place. For example, you were born in General Santos City, but you go to Davao City because of your study. Davao City is your residence but you have your intention to return to General Santos City when you finish law school and practice there. General Santos City is your domicile. So when we apply this in succession, when you are living abroad but merely because of your work still, if you have your intention to return to the Philippines and previous to your working abroad you have your place here in the Philippines, so you are domiciled in the Philippines. F. NOT CONVICTED OF FALSIFICATION OF PUBLIC DOCUMENT, PERJURY OR FALSE TESTIMONY – Q: Why limit to these crimes? Why not murder? A: When you are conviction of falsification of documents, perjury or false testimony, your trustworthiness is in issue. Whether you are worthy of belief. It is very important because when you are witness to a will, your capacity to tell the truth is important. Your credibility is important. The conviction must be Final because for all you know, you are convicted in the trial court but when you go to the Supreme Court you are acquitted. Falsification of documents covered private or public documents. Q: What if you have been pardon? A: If you are pardon and the pardon is by reason that you are innocent then you become qualified again to become a witness to a will because when you are acquitted because of innocence that means you are trustworthy as witness. So the conviction against you was erroneous. All these time, you are honest, you are credible and you are trustworthy. Q: What if the pardon is by reason of an Act of Executive clemency? A: You are disqualified. The disqualification subsists because the pardon here erases only the penalty or the civil consequences of the conviction but it does not change the fact that you are dishonest and untrustworthy. In fact in article 805, we mentioned Competent witness. A competent witness, when applied to witnesses to will, we mean those who are qualified under article 820 and not disqualified in 821. We also mentioned about Credible witness, who is one whose testimony is worthy of belief as he appears to be telling the truth and he testify not from hearsay but from perusal knowledge. But again, as applied under article 805, a credible witness aside from the fact that his testimony are worthy of belief and he testify form personal knowledge, he must also be competent. Q: How about a notary public before whom the will is acknowledged? A: We discussed before that a notary public cannot be one of the attesting witnesses. Again, as discussed in the case of Cruz v. Villasor, a notary public cannot acknowledge the will before himself and it would negate the purpose of acknowledgement which is to prevent fraud. For that reason, a notary public cannot an attesting witness to a will. That is another disqualification although it is not mentioned in article 821.

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Article 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. This is like the principle of Supervening Incapacity. It talks about the capacity of the testator. A testator needs to be of sound mind during the execution of the will disregarding the fact that he became insane right before or right after. This is also the same rule regarding witnesses. So the witness must be competent at the time of attesting the will. Afterwards we no longer care because as long as they have finished attesting the will, their duties are already finished. Q: What happens if the witness really became insane right after he attested the will? A: That witness may be disqualified to testify when the will is sought to be probated. But with respect to the validity of the will, the validity remains. It is not affected by the supervening incapacity of the witness. You must remember that the witness under the Rules of Court, court witnesses their qualifications are different from the witnesses in notarial or ordinary wills. Under Section 20 Rule 130 of the Rules of Court: “xxx, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. “ So, as a witness in court as long as you can communicate your perceptions then you are qualified. In the probate of holographic wills, all you have to know is the handwriting and the signature of the testator. In court, even if a witness is not qualified as one of the subscribing or attesting witnesses, may still testify as to the due execution of a notarial will but subject on the condition that the attesting or the subscribing witnesses are not insane, they are dead and all of them resides outside the Philippines. 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 a 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 witness as if such devise or legacy had not been made or given. Q: For example, if A is one of the attesting witnesses, but in the will that he attests, he is also a given a gift of devise or legacy, a car of a land. Is he disqualified to become an attesting witness? A: No. Only the legacy or devise is void. As far as his qualifications to become a witness he is still qualified to witness the execution of the will. The same rule applies when the gift is given to the spouse, child, parent of that attesting witness. So only the legacy of devise is void. However, this rule will not apply if there are more than 3 attesting witnesses aside from the witness whom the gift of legacy or devise is given. So if there are 4, even if A is one of the attesting witnesses and a car is also given to him then he may still get the car because the law only requires 3. The presence of A as additional witness becomes surplusage as if he is not counted. Even if A is not around the will is still valid because there are still 3 witnesses. So in this case, the gift of legacy or devise is valid. Q: The law says, “anyone claiming under such person or spouse, or parent, or child.” For example A is an attesting witness, a car is also given to him. There are 3 witnesses only, A is the 3 rd witness. As the law provides, the legacy of car is void but A may still be a witness. What if B is a creditor of A who claims the car because according to him A owes me P200T and the car is enough to satisfy the payment of debt? A: The creditor CANNOT claim the car because the legacy is void with respect to the attesting witness or to the spouse, parent, or child, if for example the car is given to the spouse of A. In this case, the car will not be given to the spouse and if the spouse has a creditor still the creditor will not get the car. Q: What if the car is given to the creditor of A in the will and A is a witness, can the creditor get the car? A: The creditor gets the car. The law says, if a person attests the execution of the will to whom or to whose spouse, parent or child a legacy or devise is given… so it is not mentioned here or to persons claiming under them. If the law says if a person attests the execution of the will to whom or to whose spouse, parent or child or any persons claiming under them, a legacy or devise is given , then that will disqualify the creditor from getting the car. But it is not mentioned here, it just mentioned in the later paragraph. So the creditor in that case even if he is claiming under the attesting witness, but he is the direct recipient of the legacy or devise then there is no effect as to the legacy and A may still be a witness. Article 823 speaks only of legacy or devise. How about an heir? Because we mentioned before that there are legacies, devises and heirs. Q: Is article 823 applies only to heir? A: Yes. What is the veil sought to be prevented in article 823? When you are a witness to a will, you attest to the due execution of the will. If you receive something in the will naturally you are interested in sustaining the validity of

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the will. So the same applies when you are an heir because when you are an heir, you are a recipient of the property mentioned in the will. When we talk about heir, we have the voluntary and compulsory heir. In voluntary heirs, the inheritance which they are to receive under the will is void. Voluntary heirs are those who receive by virtue of the liberality by the testator but they do not receive something if the testator does not provide for them. How about compulsory heirs? Compulsory heirs have what we called the legitimes, that portion of the estate of the testator that he should give to the compulsory heirs and which the compulsory heirs cannot be deprived of without cause. For example, the children of the testator. The legitime of the testator comprise one-half of the entire estate of the testator. If the children are witnesses to the will and they are also given their legitime, of course they MAY STILL GET THEIR LEGITIME because even if the testator will not provide for them in his will the law will give them the one-half. The heir gets it as a matter of right. What if the testator gives to the compulsory heirs three-fourth? Applying article 823, the one-half would still be valid, but with respect to the one-fourth (free portion the testator could give it to anyone he wants except to those persons who are prohibited like the concubine) it is void. So if one-fourth or one-half of the free portion is given it is void because with respect to the free portion, they are voluntary heirs. Article 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator’s death does not prevent his creditors from being competent witnesses to his will. Q: For example, a testator has a creditor C. The testator owes C 100T. In his will, he provides, “I give P100T to C.” If C will become an attesting witness, Is C disqualified? A: No as long as he does not have the disqualifications mentioned in article 821 and as long as he has all the qualifications mentioned in article 820. Q: How about the P100T given to C by reason of the debt? Will this be invalidated because C now becomes an attesting witness? Will this be covered under article 823? A: No under article 824. A mere charge on the estate of the testator for the payment of debts does not prevent his creditors from being competent witnesses to his will. In the same manner if money is given under the will to the creditor as payment for the debt, this will not be invalidated for the reason alone that the creditor becomes an attesting witness. (Caluya v. Domingo 67 P 313) If the P100T is not given to the creditor by reason of the debt but because the testator really loves the creditor, in this case, the consideration is not the debt. Therefore, if the creditor becomes an attesting witness, he will be disqualified from receiving the P100 given to him although he may also becomes the attesting witness if not disqualified.

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SUBSECTION 5. CODICILS AND INCORPORATION BY REFERENCE 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. Article 825 gives you the definition of a codicil. A codicil in latin term is called CODEX, which means a little will or a little code. Although the dispositions or the contents of the codicil may be longer than the contents or dispositions in the will to which the codicil is made part of. Under this article it says, “annexed to be taken as a part thereof.” So a codicil is part of the will. And because it is considered as part of the will to which it is annexed, a codicil cannot exist on its own. When you do not have the original will, you do not have a codicil. The original will can exists by itself but the codicil cannot exists by itself. If you say that a codicil is not part of the will but it is a will by itself, then you do not call it a codicil anymore. You call it a will. This is the reason why there is such a difference of term. It existed after the will but still it is part of the will. Also, under this article “ a codicil is executed after the will.” After the codicil, can there be any other disposition? No, after you execute a codicil you may still execute another codicil or may also execute another will and as we say it is part of the original will. Q: If the original will is a notarial will, should the codicil be also in the form of a notarial codicil? A: No. When you executed first a notarial will, you may execute a notarial codicil or holographic codicil and still it is taken a part of the original will regardless of the form. Q: What is a Holographic Codicil? A: Like a holographic will, it is written, dated, signed in the handwriting of the testator. When you say a Notarial Codicil, on the other hand, it is attested by at least 3 witnesses, has an attestation clause, signed on the left hand margin in each and every page. So all the requirements for a notarial will should also be followed in the execution of a notarial codicil. Q: Because a codicil is executed after the will, when the dispositions in the will are different from the dispositions in the codicil, which of the 2 should prevail? Should it be the will or the codicil? A: Because the codicil is executed AFTER the will then it is considered the later expression of the wishes of the testator. For that reason the codicil should prevail. CODICIL When you execute a codicil after you execute a will, the codicil is taken as a part of the will. The codicil explains, add to, supplement, alters the provisions in the original will. The codicil may revoke only a PART of the original will. Because a codicil is taken as a part of the original will, then the original will and the codicil are taken as one. NEW WILL When you say after executing the first will, you again execute another will then the new will exists independently of the original will and without reference to the original will. Has no regard to the previous will, it does not explain, or add to, or supplement the original will. . When you execute a new will, the ENTIRE previous will is revoke as a general rule. When you execute a new will, they are separate. The one revoking the other.

Q: Why do you execute codicil? A: Because after executing your will you may find some discrepancies or ambiguities in your will that you want to explain or there are supplement you want to make. This explanation or supplement is valid. Article 826. In order that a codicil may be effective, it shall be executed as in the case of a will.  2 kinds of Codicil: 1. NOTARIAL CODICIL – it follow the rules required by law for notarial will. 2. HOLOGRAPHIC CODICIL – it follow the rules required by law for holographic will. Q: What if the codicil does not follow the requirements of the law? So you execute a notarial will but you only have 2 witnesses instead of 3, what happened to the codicil and to the will?

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A: The codicil is void because it does not comply with the requirement of the law. This invalidity of the codicil will not affect the validity of the will. As long as the will is executed in compliance with all the requirements required by law then the will is valid notwithstanding the invalidity of the codicil. Q: What could be the effect if the codicil is invalid? A: If the codicil is intended for example to alter some provisions in the will then because the codicil is invalid by reason of non-compliance with the requirements as prescribed under article 826 then the codicil cannot alter, cannot modify or revoke the provisions of the original will. So the original will stand as if it is unaffected by the codicil. Article 827. if a will, executed as required by this Code, incorporation 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 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. This is the Rule on Incorporation by Reference. Why do we have this rule? When the testator executes the will, there are certain other documents which the testator wants to be part or incorporated in his will. For example, the testator has an inventory of his property and it consists of 10 pages. So when the testator executes his will and he wants his inventory of properties to form part of his will, the testator need not copy the provisions or the contents of the 10-page inventory because if he should not be allowed to just incorporate by reference he inventory then it would be very exhausting for the testator to execute his will. So he can just refer to his inventory and he has to follow article 827. Q: What is the Rule of Incorporation by Reference? A: It is incorporation of an intrinsic or separate document or paper into a will by reference so as to become a part thereof and probated as such. As we stated before that in order for the will or the codicil to be probated, this document must be executed in compliance with the requirements prescribed by law. How about in article 827 because article 827 refers to documents or papers and this documents or papers will also be probated because they are incorporated into the will? Article 827 provides for an exception as to the rule that only documents executed in compliance with the requirements of law should be allowed probate. In this article, even if the requirements prescribe by law for documents to be admitted to probate are not followed, still the document may be admitted to probate. The inventory need not be attested by subscribing witnesses or contain an attestation clause etc. 1st requirement: The document or paper referred to in the will must be in existence at the time of the execution of the will. When you execute the will and you want to incorporate for example the inventory, then the inventory has to be already in existence AT THE TIME of the execution of the will because when you incorporate an inventory which is yet to be prepared then that is not a valid incorporation by reference. For example, I say in my will, “My property referred to in page 7 of my inventory to be executed tomorrow.” It is clear that the inventory will still have to be executed. So, it is not valid as provided under article 827. Q: What happens to the will which incorporate into itself the document which is not yet executed? Is the will invalidated? A: No, only the incorporation is invalid. So the inventory is deemed not incorporated because it is not inexistence but the will remains valid. It is required under the 1st requirement that in the face of the will itself the reference is stated So “I refer to page 7 of my inventory..” So the facts of the reference must be stated. But it need not be stated that the document being referred to is inexistence at the time of the execution of the will. It is not required. The fact that it exists at the time of the execution of the will can be proved by Extrinsic evidence. 2nd requirement: The will must clearly describe and identify the same, stating among other things the number of pages thereof; So the number of pages of the document to be incorporated must be stated in the will.

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Q: What about if the document is voluminous, 1000 + pages? A: Still there is a need to state the number of pages because the law does not give any exception. The description of the document to be incorporated, the general appearance must be stated in the will. The description may be the inventory, as to the general appearance, say for example book bound, long bond paper, location, where it is kept. 3rd requirement: It must be identified by clear and satisfactory proof as the document or paper referred to therein. So have to prove that the document you are presenting is the same document that being referred to in the will. This comes only during the probate of the will. How do you prove that the documents are indeed the same documents referred to in a will? It can be proved by Extrinsic Evidence and by that it is not required to state in the will because this is only a matter of proving, it does not have to be stated in the face of the will. 4th requirement: 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. For example, the inventory. The inventory must be signed on each and every page by the testator and the witnesses. Q: What if the inventory consists of P10T pages does it have to be signed on each and every page by the testator and the witnesses? A: It has to be signed but not on each and every page. At least a sufficient number of pages are signed not all the pages. That is what is meant by the statement “except in case of voluminous books of account or inventories.” Because the purpose here is for identification. So if you do not sign anything then how can you identify that the document being referred to in the will are indeed the same document that are being presented in the probate. So sufficient number only. Based in our discussion we can categorize these items stated here in article 827: A. What requirements have to be stated in the face of the will. 1. The fact that you are referring to the document or paper; 2. The clear description and identification of the document; 3. The number of pages.  If these things are not stated in the face of the will then there is no valid incorporation by reference.

B. What requirements have to appear on the face of the document to be incorporated or being referred to; 1. The signature of the testator; 2. The signature of the witnesses Exception: Voluminous books of account or inventories. C. Which of these requirements can be proved by Extrinsic Evidence. 1. That the document is inexistence at the time of the execution of the will; 2. That the document is the one being referred to in the will. When you say incorporation by reference, you are incorporating certain document into the will. So that these documents may form part of the will. Q: Which kind of Will shall have incorporation by reference? A: GENERAL RULE: Only Notarial Wills. Why? Because: 1. When you incorporate by reference documents, these documents under article 827 has to be signed by the testator and the witnesses. In Notarial wills there are witnesses. In Holographic Wills there are no witnesses. 2. In Notarial Will, the contents can either be in the handwriting of the testator, typewritten or a combination. And, when you say documents to be incorporated into the will these documents may either be typewritten or in the hand of the testator. EXCEPTION: Holographic will, for the following reasons: 1. When the holographic will has at least 3 witnesses, so there can be incorporation by reference because by then the subscribing witnesses in the holographic will although a surplusage, can sign the document to be incorporated.

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2.

Even if there are no witnesses but the document to be incorporated are entirely written, signed and dated in the hand of the testator. Because in this case, what we have is a purely holographic will. Still you may have a valid incorporation by reference.

Q: If you incorporate by reference certain documents in the will, is it required to add in the Attestation Clause the fact that certain documents are incorporated into the will by reference? A: This was discussed in the case of Unson v. Abella. UNSON v. ABELLA Ruling: Article 805 is very clear on what matters should be stated in the Attestation Clause. What is not included there is deemed excluded. This fact that there has been incorporation by reference is not provided under article 805. Therefore, there is no need to state in article 805 that there has been incorporation by reference. In the earlier example I gave you, you want o incorporate the inventory because it would be very impractical to copy the contents of the inventory in your will. Now another situation, what if now I execute a will. But because I failed to comply with certain legal requirements, my will becomes void. What if the next day I execute another will and because it would be very time consuming for me to reproduce in toto the contents in my first will, I just incorporate in my 2nd will by reference the 1st will which is void. Q: Can this be done? Can there be a valid incorporation by reference of a void will? A: This is related to article 835 of the NCC. When you incorporate by reference a void will you have to make a distinction as to what make the will void. FIRST: If my will was void because there were only 2 witnesses or there was no attestation clause then my will is considered to be void as to FORM. When the will is void as to form, suppose to be under article 835, if I want to reproduce or republish or I want to give effect to the will that is void I have to execute a new will. So I just copy all the provisions of the will and then this time is should have the will attested by 3 witnesses and comply the other requisites required by law. Because of that there can be NO VALID incorporation by reference of a void will which is VOID AS TO ITS FORM because if I really want to give effect to that will I have to re-execute the will. SECOND: What if the will is void because I was insane or I was 17 years old. In this case, you have to make a distinction. In so far as this article and article 835 are concern. When you say void as to form, it lacks the requisites under article 805 or it is not in writing. But if I say Extrinsically void, wide ang coverage. Again, it is void as to form and in addition the testator lacks testamentary capacity, so not 18, not of sound mind. When you say Extrinsically void, the effects consist only in the testamentary capacity of the testator. Under article 835 there is no requirement of re-executing the will. So you do not have to copy all the provisions in your 1st will in order to give effect to the previously void will. So if an insane person executes a will the will is void. After he attains sanity he wants to give effect to that void will, his solution is, he does not have to re-execute the void will. All he has to do is, he can incorporate by reference into his new will the void will; Because even if the void will was Extrinsically void, it was no void as to form. As long as the will executed during insanity complies with all the requisites required by law as to form. So he can incorporate by reference a void will when the defect consists only of the Testamentary Incapacity of the testator. This is also discussed under article 835.

‫ﺉ‬

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SUBSECTION 6. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS Article 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. Article 828 speaks REVOCATION. Q: What is Revocation? A: Revocation is an act of the mind terminating the potential capacity of a will to operate at the death of the testator manifested by some outward and visible act or sign symbolic thereof.  An act of the mind – There must be an Intent to Revoke. The mind wants to revoke.  A will which has potential capacity – Potential because during the lifetime of the testator is not yet in effect, it only ripens into a valid disposition or property upon the death of the testator.  Manifested by some outward and visible at or sign – Even if it is your intention to revoke if there is no physical or outward act that manifest the intent to revoke then there is no revocation. Formula: INTENT TO REVOKE + OUTWARD ACT As long as the testator is alive he can revoke his will. That is the essence of the will being ambulatory and essentially revocable. So you cannot prevent the testator from revoking his will. If the testator aggrees in writing that, “Yes, I waive my right to revoke my will,” that is void. You cannot give effect to that. And because it is ambulatory or revocable during the lifetime of the testator, this is the reason why during the lifetime of the testator, the heirs have no right over the property of the testator but only inchoate right or expectancy. MACAM v. GATMAITAN 60 P 358 Facts: The will was probated. The will was admitted to probate, decision became final. However after his will was admitted to probate, a codicil was presented. Take note that a codicil like the will has to be probated. Issue: Should the codicil be admitted to probate or should it be denied probate because a will was already previously probated? Ruling: Yes the codicil must be probated. A codicil may revoke a will. You do not know if the codicil revokes the will which was probated. So you have to admit the codicil into probate to determine what are the contents of the codicil, whether or not the codicil really revokes the previous will. So there is a necessity. For all you know, you are probating a revoke will. In fact there is no requirement that the will and the codicil must be probated together as long as all of them must be probated. Q: Is there an exception to the rule under article 828? Is there an instance that the testator is prevented from revoking his will during his lifetime? A: The answer here is the Principle of Supervening Incapacity. If the testator is sane and executes his will and complied with all the formalities of the law, then the will is valid. However, if the testator subsequently becomes insane, he wants to revoke his will during his insanity, can he do that? NO. The testator cannot revoke a will while he is insane because when you revoke a will you have to possess testamentary capacity. The act or revocation requires testamentary capacity in the same manner that the act of execution of will require testamentary capacity. So if the testator is insane then he cannot revoke his will even if he is alive. This is the only exception. Article 829. A revocation done outside of the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. This article talks about the laws governing revocation.  RULES:

I. With respect to wills revoke OUTSIDE the Philippines by a non-resident whether Filipino or foreigner. – govern by: a. the law of the place where the will was MADE (not where the will is revoke). b. The law of the place of the place of DOMICILE of the testator.

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

The Reason for specifying the laws of these places is it is presumed that the testator is more familiar with laws of these places with respect to revocation of his will.

II. If made by RESIDENT whether a Filipino or foreigner – govern by: a. b. The law of the place of REVOCATION – This is provided under article 17 NCC, the Rule of lex loci celebrationis. The law of the place of execution and the execution in that case is the revocation. So the law of the place of revocation. The law of the place of DOMICILE – in this case, the Philippines because he is a resident of the Philippines.

So when the revocation is made in the Philippines, what applies is the law of the Philippines regardless of the nationality or domicile because the Philippines is the Place of celebration, in this case the celebration of revocation. You have to remember that in laws governing revocation, the national law of the testator has NO RELEVANCE. So omit the national law of the testator. Article 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of will; or (3) By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. Article 830 talks about how to revoke a will. Item 1 is without the participation of the testator. Items 2 and 3 are the acts of testator. I. By implication of law –

Q: Why is it that there is an implication of law? A: Because there are certain circumstances or instances wherein logically, these acts are done only by a person who wants to revoke his will. That is why the law presumes that if these acts are done by the testator then the testator has revoked his will. It is presumed by law because it is presumably the intention of the testator. Q: What happened if despite the execution of the act which the law considers as the act of revocation, the testator really has no intention of revoking his will? A: The law shall prevail. If testator wants to give effect to his will then he has to re-execute his will and refrain from doing those acts which the law considers to be an implication that he has revoke his will. Q: What are these acts considered by law as an act of revocation? A: There are 5 Implied Revocation provided by law: 1. Article 957 of the NCC. – When after the testator has made a will he sells, donate the legacy or devise.

Example, Prince gives a car to Julia. Prince after giving the car by virtue of the will sells the car to Ella. In this case, it is presumed that Prince has revoked the legacy of the car to Julia. 2. Article 106 of the FC – Provisions in the will in favor of the spouse who has given cause to legal separation, these provisions are considered revoked by operation of law. The moment the decree of legal separation has been rendered.

Example, Assunta and Jules are spouses and because Jules committed an act of infidelity, that is a ground for legal separation. Assunta files a case for legal separation against Jules. But before Assunta discovered the act of infidelity committed by Jules, Assunta executed a will giving house and lot to Jules. If it is proven that indeed Jules committed acts of infidelity thereby the decree of legal of separation is issued, this provision in the will in favor of Jules is revoke by operation of law. Even if Assunta will not expressly revoke the will or disinherit Jules still the law considers that disposition to be validly revoked by implication of law. 3. Under article 1032 - When an heir, legatee or devisee commits an act of unworthiness So that is an act of

Example, a house is given to Luis, but Luis attempts the life of Edu, his father. unworthiness. In that case, the disposition in favor of Luis is revoked by operation of law.

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4.

Article 936 – When a credit has been given as a legacy is judicially demanded by the testator.

Example, the Vicky has receivables from Osanna. But in her will Vicky is giving the credit from Osang to Lolit. One month after the execution of the will giving the legacy of credit Vicky judicially demand or filed a case against Osanna for the collection of the amount. In that case, the legacy of credit is deemed to have been revoked by operation of law. 5. Article 854 – Preterition

Example, a son is supposed to a compulsory heir. So he cannot be denied of his legitime or his rightful share without valid cause. If the father executes will omitting in the will any disposition in favor of his son but instead gives the properties to his friends, there is Preterition. In that case, the will is revoked. The dispositions in favor of the friends are revoked by operation of law. II. By some will, codicil, or other writing executed as provided in case of will

This is revocation by a Subsequent Instrument. Example, after the testator has executed a will, one month later he executes a will whether a notarial will or a holographic will or a codicil, and in that will or codicil he expressly revoked the dispositions made in the previous will or in that new will or codicil the dispositions are completely inconsistent with the dispositions in the previous will then there is revocation by a subsequent instrument. In order for revocation to validly take place the new will or codicil MUST BE VALID. Meaning, the new will or codicil was executed in observance with all the formalities required by law. So if the subsequent will or codicil is not valid then there is no valid.  Kinds of Revocation by Subsequent Instrument: 1. EXPRESS REVOCATION – When the new will or codicil contains a Revocatory Clause.

So in the will there are dispositions, in the end it is stated “this will revokes my previous will.” This is a revocatory clause. Further, the dispositions need not be completely inconsistent with the previous will as long as there is a revocatory clause then there is express revocation. 2. IMPLIED REVOCATION – When the provisions in the subsequent wills or codicil are completely inconsistent with the provisions in the previous will.

Example, the testator instated A as heir to all his properties. But in the subsequent will the disposition is now in favor of X. So the dispositions in the 1 st will are different from the disposition in the 2 nd will. The 2 wills are completely inconsistent because the properties given to A cannot be given to X. So there is complete inconsistency. Implied Revocation is further discussed under article 831 and article 832.  REQUISITES in order for the subsequent instruments to revoke the previous will: 1. There must be testamentary capacity AT THE TIME of revocation – as to what is testamentary capacity, the testamentary required in the execution of wills: • Must be of sound mind • Must able to know the character of testamentary act • The proper of object of his bounty • The nature of the estate to be disposed of. The subsequent instrument must be valid; The subsequent will or instrument must contain a revocatory clause or be incompatible with the former will thereby showing intent to revoke; and The subsequent will or instrument must be admitted to probate. – this admission to probate is merely a consequence of executing the subsequent will or codicil in observance with all the forms prescribe by law and with the testator having testamentary capacity.

2. 3. 4.

Q: What happen if there are 2 wills, but the 2 nd will was discovered ahead of the first will The 1 st will was executed in 1989 and the 2nd will was executed in 1990. When the testator died only the 2 nd will was discovered and admitted to probate. After the probate of the will executed in 1990, the will executed in 1989 was discovered. So it was sought to be probated. Will this will executed in 1989 be allowed probate? A: No because the will executed in 1990 is presumed to have revoked the will in 1989. It is the new will. It is presumed that all the dispositions in 1990 superseded the dispositions in 1989.

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Q: What if the will in 1989 was first discovered and admitted to probate. After admitting the will in 1989 to probate, the heirs discovered the will executed in 1990. Because there is a will the heirs again file a petition for probate of the will in 1990. May the will in 1990 be allowed probate? A: The answer is Qualified. If after examination of the 2 wills it is found that there are no inconsistencies between the 2 wills, so they can stand together therefore in that case there is no more need to admit into probate the will which is found later. But if the dispositions in these 2 wills are completely inconsistent with each other then there is a need to allow probate of the will executed in 1990. This will executed in 1990 revokes the will in 1989. Under the Law on Succession the later will is presumed to be the latest expression of the will of the testator. So the probate of the previous will in 1989 is void and the 1990 will, will now be probated. MACAM v. GATMAITAN Ruling: In this case, what was found is a codicil. When you say codicil, it is executed after the original will. When a codicil is probated there is no more need again to probate the previous will. III. By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.

This is Revocation By Overt Act. The following are the requisites: A. The testator has testamentary capacity AT THE TIME of performing the act the same capacity in the execution of wills. B. The act must be any of the overt act mentioned under article 830; ] a. b. BURNING – the act of burning is an act of revocation. However, it is not required that the whole instrument is completely burned. Even if only a portion of the document is burned then it is considered to be an act of revocation. What is important is that the testator burns the will. TEARING – either you tear or cut by means of your hands or scissors. Again like the act of burning even if slight cut or slight tear, that is sufficient to be considered an act of revocation. The greater the cut the greater is the presumption that there is animu revocandi on the part of the testator.

Q: What if the will consists of 10 pages and it was held by a fastener, what if you removed the fastener and you tear the pages out of the fastened will. Will that be considered tearing? A: That is not considered tearing, no act of revocation. Q: What if the will consists of 5 pages and you tear 1 page only of the will, is there revocation? A: That is considered a revocation because even if you tear only 1 page, that act is considered directed against the whole instrument. Q: Example, there is a will and there is also a codicil supplementing the will. The will is not torn but the codicil is torn, is there an act of revocation? A: Yes because there is an act of tearing. In this case, both the will and the codicil are revoked because the codicil is part of the will, it is supplementing the will and because the will and the codicil are treated as one. c. CANCELING – when you place mark or line across the writings. If you place mark or line on the spaces there is no cancellation.

Q: What happen if you put a line but the word still remains legible, is there revocation? A: Yes, the important thing is you have the intention to cancel it and you execute the act by putting a line across the word. If what is cancelled is merely a word or some dispositions, only those words or dispositions are revoked. But if you write a line across the will, in that case the whole will is considered to be revoked. Q: What if you only place the word “cancelled” on the will? A: There is cancellation because there is an intention and there is the act of cancellation if you write the word cancel or other words to cancel the will.

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d.

OBLITERATING – it is when you erase thru eraser or like you blot out.

Q: What happens if despite blotting out the word, it remained legible? Is there obliteration? A: You apply the case of cancellation so still there is revocation as long as there is an act of obliteration or blotting out the word. Q: What happens if you obliterate or cancel or tear some word or some provisions? A: These provisions are considered to be revoked but the will remains valid. Q: What if the cancellation or the obliteration is effected in the signature? A: In this case, it is the will that is revoked because the signature goes into the heart of the will. Meaning when you place your signature you own the disposition written in the will. So there is revocation of the entire will. Q: When you crumple or when you eat the will, is there an act of revocation? A: That is an open question. Other authors say that there is an act of revocation because the law does not really strictly limit the act as mentioned in article 830 as long as there is physical act of destruction. But other books say the law only limits to the 4 overt acts under article 830. There is a case wherein the Supreme Court ruled that the act of crumpling is an act or revocation (Roxas v. Roxas). But according to some books that is merely an obiter dictum. It is not really the main ruling in that case it was just mentioned in passing. C. The act must be a completed act Q: What do you mean by there must be a completed act? A: At least a completion of the subjective phase of the overt act. Q: What do you remember when you are confronted with the word subjective phase, where did you meet that word? A: In criminal law, stages of execution: attempted, frustrated, consummated. I think they have the same meaning. That portion of the act wherein you still have control over your act and when you pass the subjective phase there is already a crime whether attempted, frustrated or consummated. When we apply this in the Law of Succession, you have an intent to revoke and it is within your power to give effect to that intent. As long as you have not given any effect or manifestation over outward act to that intent then there is no revocation. But as long as you have done something in execution of your intent so there is a completed act. For example, you like to burn the will, once you put the will into fire, the subjective phase is completed. So there is already an act of revocation. Even if you do not really complete the burning as long as you complete the outward act of setting the will on fire there is a completed act, so there is revocation. GENERAL RULE: Even if the tearing is not complete or the burning is not complete then there is an act of revocation. EXCEPTION: When the testator starts burning his will but he realize that he really does not want to revoke his will. So before the will is completely burned, he desists from burning and that is voluntary desistance on his part. In this case, even if the will contains a slight burn or slight tear there is NO ACT OF REVOCATION because of the voluntary desistance by the testator. D. There must be intent to revoke or animus revocandi Even if there are overt act but there is no intent to revoke then there is no revocation. So when the testator accidentally tears the will or is under intimidation, there is no revocation. In same manner, intent to revoke alone is insufficient to constitute sufficient revocation of the will. So if the testator with all the intention to revoke his will places the will above the stove but without the testator’s knowledge another person takes the will therefore preventing the will from being burned, in that case, there is no revocation because even though there is an intent to revoke there is no overt act that has passed the subjective phase. At least there must be a slight burn. There is an exceptional circumstance where there is no overt act only an intent to revoke but the will is considered to have been revoke. What is that circumstance? If the testator directs an heir to revoke a will but the heir instead of revoking for example, he directs the heir to burn the will, the heir instead of burning the will keeps the will. So there is no overt act, in that case, the will is deemed to have been revoke in so far as the heir is concern, the heir only because if he does that he is considered to have committed an act of ingratitude. Therefore, he is disqualified from receiving the will. E. The revocation must be done by the testator himself or by some other persons in his presence and under his express direction

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The same requirement that when another person signs the name of the testator in behalf of the testator it must be done in his presence and under his express direction. So if the will is revoke by another person it should also be done in the presence and under the express direction of the testator. You must have remembered under article 814 when we discussed holographic will that insertions, cancellation, alteration must be authenticated with the full signature of the testator. Otherwise such insertion or cancellation is considered unauthorized. Article 814 applies to holographic wills. Under article 830 if the cancellation is on the signature of the testator and it is done by another person without the direction and without the presence of the testator, you can argue under article 830 that the will is not revoke because for revocation to be effective it must be in the presence and under the express direction of the testator. But if the will is holographic you can argue that the will is invalid because there is an unauthorized cancellation of the signature of the testator. So you have to remember that revocation NEED NOT bear the full signature of the testator unlike article 814.  PRESUMPTIONS: Under article 830 it is presumed that a duly executed will has not been revoke. So the burden of proof that the will is revoked lie upon the one who opposes the probate of the will which that person alleges has been revoke. There are circumstances that the will has been revoke. These are discussed in the case of Gago v. Mamuyac 49 P 902: 1. 2. 3. If a will cannot be found and it is shown to have been in the possession of the testator when last seen, the presumption is, in the absence of competent evidence, the will was revoke with animus revocandi. When it is shown that during his lifetime the testator has ready access to the will and it cannot be found after his death so again the presumption here is that the will was revoke by the testator because only the testator knew where the will is located and it cannot be found. When it is shown that the testator during his lifetime had possession of or had ready access of the will and after his death the will is found under the condition of being obliterated, cancelled, torn or mutilated, in that case, there is also a presumption that will was revoke.

Q: What if the testator executed a will in 1990. Later on he executed another will in 1995. What if after the testator’s death the will executed in 1995 is NOT found but only the will in 1990? Is there a presumption that the will in 1990 is revoke? A: When after the death of the testator the subsequent will cannot be found there is NO presumption that the first will has been revoke. Because it is not presumed that the subsequent will was executed with the intent to revoke the earlier one. Further, you cannot find the 2 nd will so you cannot make any presumption as to what are the contents of the 2nd will. In the earlier example I gave you on probate of 2 wills. First will executed in 1990 and the 2 nd will executed in 1995. But what was probated was the will made in 1995. Subsequently the will made in 1990 is found and it is sought to be probated. So the answer here is the 1990 will subsequently found need not be admitted to probate because the presumption here is that the will in 1995 revokes the previous will. This applies when the 2 wills are found. This rule will not apply in the first example I gave you where the will executed in 1995 is NOT found. So there is nothing to be admitted to probate. You cannot find the subsequent will so in that case there is no presumption that the earlier will was revoke. But if the 2 wills ARE FOUND and the will made in 1995 is already probated there is no need to probate the previous will because here there is a presumption that the previous will was revoke. Why? Because you are confronted here with 2 wills and you can compare the provisions of the 2 wills. Another example, same will 1990 and 1995. After the testator’s death, the 1995 will cannot be found because it was destroyed (burned, torn etc.) by another person . In this case, there is now a presumption that the 2nd will revokes the 1st will. Otherwise, that person would not have obliterated or destroyed the 2 nd will. Especially when that person would tend to be benefited by the 1 st will. So there is now a presumption that the 1 st will was revoke by the 2nd will because the only motivation for that person to cancel or destroy the 2 nd will is he wants to give effect to the first will. Why? Because the 2 nd will must have contained an express revocatory clause or it must have revoke the 1st will, so there is now a presumption that the 2 nd will revokes the 1st will, unless of course if there are competent evidence to show the contrary then this presumption may be rebutted. Q: What if the testator executed a will and reproduced it for example 100 copies? What if the testator tears the original will. Is there revocation of all the other copies? A: Yes because the original copy is the root of all copies. So there is sufficient revocation.  LOST OR DESTROYED WILLS

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Article 830 also talks about probate of LOST or DESTROYED wills. “the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.” We discussed before in the case of Rodelas v. Aranza that a holographic carbon copy of the will can be probated. But if the no copy of the holographic will is produced in court then it cannot be allowed probate because again the handwriting of the testator is the only safeguard as to the authenticity of the holographic will. But in case of notarial wills, lost or destroyed notarial wills may still be probated provided that there were not lost or destroyed because the testator revokes them. How would you prove th contents of notarial will? You can prove the same by: a. When there is a copy or when there is recital of the contents in some authentic document.

For example, there is no will but there are some other documents like a deed of sale or a deed of donation or acknowledgment that bears a recital of the contents of the will, so that is allowed b. Testimony of witnesses Q: During the probate of a lost or destroyed notarial wills, what should be proved? A: 1. Established compliance with the formalities required by law under articles 804-809 NCC. 2. You must prove that the will was inexistence at the time of the death of the testator or that it was fraudulently destroyed or lost without the knowledge of the testator or it was accidentally lost or destroyed by the testator without intent to revoke. 3. You have to prove the contents clearly and distinctly by copies or without copy by recital of content by some document or the testimony of the witnesses. Article 831. Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the later wills. Article 831 talks about Implied Revocation made in a subsequent instrument. Again there is revocation by operation of law, revocation by subsequent instrument and revocation by overt act. Q: When is there Implied Revocation? A: When the testator after having executed a will executes another will or codicil which the will or codicil does not contain a revocatory clause but its contents are inconsistent with the former will then there is implied revocation. You have to remember that the court do not favor revocation. As much as possible, if there is ant means of reconciling the contents of the 2 wills then the 2 wills must be reconciled so that the wills can stand together so that both wills should be admitted to probate because they are considered as one. But if the inconsistency in the 2 nd will is complete then the 1st will is deemed to have been revoke like when the 1 st will institutes the brother as heir and the 2nd will institutes a friend as an heir and these dispositions are the only one provided in the will, so there is a complete inconsistency. So the 1st will is deemed to have been revoke by the 2nd will. Only the 2nd will is admitted to probate. This is implied revocation. Article 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designed therein, or by their renunciation. Again under article 832, we have here revocation by a subsequent instrument. For example, the testator executes a will in 1990 and in 1995 he executes another will. The will is valid because it complied with all the formalities required by law but the will becomes ineffective because some of the heirs renounced their inheritance or repudiated or some of them becomes unworthy. Even if the will is valid, the will here is ineffective. When you say valid, it complied with all the requisites required by law under 804-809. When you say ineffective, the provisions of the will cannot be given effect because of incapacity, repudiation or renunciation by the heir, legatee or devisee. So that is ineffective. So even if the will becomes ineffective the will is still valid and because it is valid it deemed to have revoked the previous will. This is what is called as the DOCTRINE OF ABSOLUTE REVOCATION. So article 832 is the doctrine of Absolute Revocation. Q: How about the DOCTRINE OF DEPENDENT RELATIVE REVOCATION? A: Where the act or destruction is connected to the making of a will so as squarely to raise the inference that the testator meant the revocation of the old would depend 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 is in full force and effect. This doctrine was sufficiently discussed in the case of: MOLO v. MOLO

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Facts: A testator has a will but he wants to revoke his will. So he executes another will. Now during the signing of the 2 nd will, one of the witnesses was not around because he went to the comfort room, so the requirement that the will must be signed in the presence of the testator and the witnesses was not complied with therefore, the will becomes void. But the testator destroyed the 1st will believing that the 2nd will is valid. Issue: Was there revocation of the 1st will considering that the testator destroyed it and he even executed another will? Ruling: There was no revocation because the subsequent will was not validly executed because one of the witnesses was not present during the signing. There was no revocation by a subsequent instrument. Take note that in revocation by subsequent instrument there is a requirement that the subsequent instrument must be valid. Issue: How about revocation by overt act because he destroyed the will? Ruling: There was no revocation by overt act because the destruction was prompted by a false belief that the subsequent will executed was valid. So there was no revocation. This is now the controlling doctrine. In the same manner even if there was no overt act like you execute the 2nd will but the 2nd will does not turn to be valid for failure to observe with some of the requisites then there is no revocation because the condition that the subsequent will must be valid has not been complied with. Q: What if the 1st will was executed in 1980 and after 2 days the testator destroyed the will with intent to revoke. In 1990 another will was executed but the 2nd will is not valid because only 2 witnesses attested. Is the 1 st will revoke? Is the Doctrine of Dependent Relative Revocation applies? A: Obviously no because long before the 2 nd will was executed the testator had already revoked the 1 st will by an overt act in 1980 (2 days after he executed the 1980 will). At the time of destroying the 1 st will you should not say that probably the testator intended to execute another will and he intend really to condition the validity of the revocation to the execution of the subsequent will. You cannot say that the destruction made in 1980 is dependent on the execution of another will in 1990 because it would be very illogical to assume. You cannot apply here the doctrine of Dependent Relative Revocation. • Point of distinction:  If the destruction is AFTER the execution of the subsequent will, the Doctrine of Dependent Relative Revocation applied. He destroyed the 1st will after having executed the 2nd will.  But if he destroyed the 1st will LONG BEFORE the execution of the subsequent will, you can no longer apply the doctrine. The will here was destroyed by an overt act so it is absolute.

Article 833. A revocation of a will based on a false cause or an illegal cause is null and void. Article 833 is also another aspect of the Doctrine of Dependent Relative Revocation. You revoke the will base of a false belief. Example, the testator instituted Ella as heir. But the testator receives news that Ella died. So the testator believing that Ella died, made another will instituting Char. In that case, the revocation by subsequent instrument is prompted by a false belief on the part of the testator that Ella was already dead. That is the reason why executed another will. Or, upon knowing that Ella died the testator burn the will but it turns out that Ella is alive, in that case there is no revocation because the destruction or the execution of another instrument is prompted by a false belief that Ella died. But you must remember under article 833, when the revocation is made by a subsequent instrument the false cause must be stated in the face of the will . In the example given, in the 2 nd will the testator should write, “Because Ella died, I am now executing another will and now instituting Char as my heir in lieu of Ella.” So here the false cause is stated in the new will. Q: What is the reason why you have to state the false cause in the will? A: Because if the false cause is not stated in the will, the 2 nd will is just silent, you are now altering the provision of the 2nd will by mere oral declaration. So the false cause should be stated in the will. Q: What if the testator says, “I receive news that Ella is dead, I don’t think that is true but nevertheless I am now executing another will instituting Char as my heir.” Is this a case of revocation based on a false cause or illegal cause?

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A: No, it is not base on a false cause or illegal cause because even if the testator entertains doubts whether the new he receives where true or not still he executed another will. Here, the intention to revoke is present regardless of whether or not Ella is dead or alive. So there is an intent to revoke, there is no false cause or belief. If the revocation id by Overt act like burning, tearing etc. there is no requirement of stating the false cause in a subsequent will because in a revocation by overt act you cannot really say that there would be a subsequent will. So the fact that the revocation by an overt act if prompted by a false belief may be proved by Oral Evidence. If the testator receives news that Ella is dead and he burns his will because he believes that Ells is dead then the fact that the burning was prompted by a false belief, it can be proved by Parol evidence. Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. Article 834 talks about the recognition of an illegitimate child which is embodied in he will. Here, even if the will containing the revocation is revoke still the recognition subsists. Why? Because of the following reasons: 1. Recognition takes place immediately upon the execution of the will. You need not wait for the testator to die before you can give effect to this revocation; 2. Recognition is not disposition of property. Even if the will is revoke the recognition subsists. Anyway the recognition need not even be embodied in the will. As provided in article 175 and 172 of the Family Code, Recognition of an illegitimate child may be done in a record or birth appearing in the civil registry, in a public document or in a private document in the handwriting of the parent concerned or by any other means allowed by the Rules of Court. So there is even no requirement that the recognition should be embodied in a will. Q: What if the recognition was made because of undue influence or intimidation? A: In this case, the recognition could not be given effect if the testator revokes his will because if a testator revokes a will that was executed when he was under undue influence or intimidation then there is no intention to give effect to the provisions in the will, to the recognition. The consent is vitiated, in that case, you could say that the recognition was revoked by the revocation of the will.

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SUBSECTION 7: REPUBLICATION AND REVIVAL OF WILLS REPUBLICATION It is the re-establishment by the testator of previously revoked will or one invalid for want of proper execution as to form or for other reasons so as to give validity to said will It involves the act of the testator. There is a will previously revoked or a will valid as to form or a will invalid for any other cause REVIVAL It is the re-establishment to validity by operation of law of a previously revoked will. It involves the act of law, operation of law. A will previously revoked.

Article 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. This article talks about Express republication/republication by re-execution.  2 kinds of Republication: 1. – EXPRESS REPUBLICATION/REPUBLICATION BY RE-EXECUTION Is a republication in a subsequent will a previous one which is void as to form. This is the one mentioned in article 835.

Example, Vic executed a will in 1990. The will 1990 was attested only by 2 witnesses, so void, the defect is as to form. If the testator really wanted to give effect to his will he should republish. How? He has to re-execute his will. This is express republication or republication by re-execution. This is what is provided under article 835, void as to form but you have to re-execute all the contents. 2. IMPLIED REPUBLICATION/ REPUBLICATION BY REFERENCE Is the execution by a codicil referring to a previously revoked will or a will valid as to form but void because of some extrinsic defects like lack of testamentary capacity.

Example, if the will in 1990 is void because the testator was insane. During sanity, if the testator wants to give effect to his will in 1990 executed when he was insane, what should the testator do? The will is not void as to form but it is extrinsically void because of lack of testamentary capacity. So when the will is extrinsically void but valid as to form, if he wants to give effect to the will, the testator here need NOT re-execute the entire provisions of the will. Instead, he can execute a codicil wherein in that codicil he may just refer the will he made in 1990. In that case, still there is a valid republication. Here, the republication is Implied Republication or Republication by reference. Q: What if I don’t want to execute a will but I really want to execute a will which was revoke or extrinsically void but valid as to form? A: Yes, there is no prohibition. But the law says he may re-establish his will by reference. Q: What is the effect of Republication? A: 1. In express republication, you have to observe the formalities required by law when you execute the new will. Example, I executed a will in 1990 which is void as to form, I re-establish it in 2000. So what is now the effect? The will which was executed in 1990 which is void as to form deemed have been executed in 2000. So if in 1990, for example, only 2 witnesses are required but in 2000 3 witnesses are required and the will in 1990 was void because it was not signed, when you re-establish the will in 1990 it is deemed to have been executed in 2000. And because it is deemed to have been re-executed or re-establish in 2000, you have to observe the laws enforced in 2000. So here, you have to have 3 witnesses otherwise the will is still void. 2. If there is republication, Properties deemed included in the legatee, devise or inheritance shall be reckoned from the day of republication because the will is deemed to have been executed at the time of republication.

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Example, the testator Marlin in 1990 provides in her will, “I hereby give my building in Claveria to Dory.” Under the laws of succession, only those properties existing at the time of the execution of the will shall be included. So here, because there are 2 floors so the 2-story building. In 1995, marlin added a 3 rd floor. Marlin discovered that the will made in 1990 was void because only 2 witnesses were present during the execution of the will, so void as to form. But Marlin wants to give effect to this void will, so he must re-execute. So she re-execute the will in 2000 with the same provision or disposition, “I hereby give to Dory my building in Claveria.” In 2000 the building has a 3rd floor. So if Marlin executes her will in 2000, what property is included? ALL are included in the disposition in 2000. In 2000 Marlin is deemed to have given to Dory the 3-story building not only the 2-story building. So this is another effect of republication. If no republication the 3 rd floor is considered after-acquired property. But if there is republication it would no longer be after acquired property because the will is deemed to have been executed in 2000. So you have to comply the laws required in 2000. Properties deemed included in the legatee, devise or inheritance shall be reckoned from the day of republication. This is also the effect with respect to republication by reference. Example, if the testator executes a will but because he does not like the provisions in his will, he tears his will into 4. The testator later on changed his mind, he wants to give effect to the destroyed will, can the testator just paste the will? No. These methods of republication, express and implied republication are the only means allowed by law to give effect to a will which was void because void as to form or because extrinsically void or which was revoked. You cannot just paste the will. Article 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. Article 836 talks about Implied Republication/Republication by Reference. Article 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. Republication – by the act of the testator Revival – by operation of law Example: 1st will is revoked by the 2nd will 2nd will is again revoked by the 3rd will. Q: Is the 1st will revived? A: If the 3rd Will will revoked the 2 nd will, the 1st Will will not be revived as long as the 1 st will is expressly revoked by the 2nd will. This is what is provided in article 837. This is called the THEORY OF INSTANTER. Q: What is the Theory of Instanter? A: When the will is EXPRESSLY revoked by a 2 nd will, the revocation of the 2nd will by the 3rd will, will not revived the 1st will. This is because revocation takes effect immediately. It does not wait for the death of the testator to become effective because revocation does not take the form of testamentary disposition. Q: If you want to give effect to the 1st will, what should you do? A: You have to Republish. You may do so by implied republication or republication by reference because it is already a revoked will. Or, if you want to re-execute you may do so.  Express revocation – there has to be a revocatory clause  Implied revocation – the provisions between the 2 wills are completely inconsistent. However, in the example given, if the 1st will is merely impliedly revoked by the 2 nd will and the 2nd will is revoked by a 3rd will or by an overt act. The 1 st will is revived because the revocation was only implied. This time we have to apply again the principle of Dependent Relative Revocation. The testator really wants to give effect to the 1st will so that he revokes the 2nd will. So the revocation of the 1 st will is dependent upon giving effect to the 2 nd will. This is also an example of revival/ by operation of law. Another example of Revival is under article 854 on Preterition, when a compulsory heir is omitted in the institution. When a father makes a will and in that will he omit to mention his son who is supposed to be a compulsory heir. In that case, the institution in the will with respect to legatees or devisees remains as long as the legitime of the other heirs are not impaired. But in Preterition there is revocation because the institution of heirs is annulled. If the compulsory heir omitted died ahead of the testator and he has no representative, in that case the will is Revived. Why? Because there is no longer preterition. No heir is omitted because the heir who is supposed to be omitted has died ahead of the testator. So this is another example of revival.

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SUBSECTION 8 ALLOWANCE AND DISALLOWANCE OF WILLS Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will, in such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator’s death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. Q: What do you mean by PROBATE? A: Probate is the act or process of proving before a competent court the due execution of an instrument purported to be the last will and testament of a deceased for its allowance by the said court, that is, for its official recognition and the carrying out of its provision in so far as they are in accordance with law. Probate, in simple terms, is proving before a competent court the due execution of the will purported to be the last will and testament of a deceased person or even a person whom is alive. Why? Because Probate generally can be done after the death of the testator. So his will is presented in court to determine whether his will was really duly executed and whether or not the will complied with all the requirements prescribed by law. But Probate may be done during the lifetime of the testator. So executes a will and he go to court to have his will probated. So that is allowed. Q: What is the Nature of a Probate proceeding? A: 3. Probate proceeding is a SPECIAL PROCEEDING as distinguished from an ordinary civil action or a special civil action. Being a special proceeding, it is a proceeding IN REM. In rem meaning it is directed against the whole world and the judgment that will be rendered in a probate proceeding is binding against the whole world. And because it is a proceeding in rem, it requires publication and notice. In Probate Proceeding the inquiry as a General Rule is limited only to the EXTRINSIC VALIDITY of the will. Extrinsic validity meaning: 1. whether or not the testator he was of sound mind when he executed the will; 2. whether or not he is 18 years or above; 3. whether or not the will complied with the formalities under article 804-809 with respect to notarial will ; 4. whether or not the will is entirely written, dated and signed in the handwriting of the testator with respect to holographic will. 4. Probate proceeding is required by PUBLIC POLICY.

This is because it is the policy of the State and it is the public interest to give effect as much as possible to the last wishes of the testator. Because this proceeding is a matter of Public policy, the rule on ESTOPPEL and the STATUTE OF LIMITATION do not apply in probate. Kahit na how many years have passed if there is a will then that will may still be probated. Only that, there is a period of limitation to those who would oppose but not to the proponent of the will. Under article 838, No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. So probate is MANDATORY because of the word shall. So if there is a will, it has to be probated. So even if intestate proceeding have already commenced or pending, if there is a will then that intestate proceeding shall be held in abeyance and shall proceed with the probate of the will. Probate is also very important even if there is only one heir, even if the estate has no debts, still the will should be probated. Under the Rules of Special Proceeding, we have the Extra-judicial settlement of estate of deceased person and Summary Settlement of Estate of Small Value. Extrajudicial Settlement is NOT allowed when there is a will. On the other hand, Summary Settlement of Small Value is allowed in both testate and intestate.

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In the book of Paras there are other names of Probate: Probation, Protocolization, Legalization, Authentication. But you just stick with Probate. But if you are confronted with these words it also mean probate.  ANTE MORTEM PROBATE – Probate done during the lifetime of the testator  POST MORTEM PROBATE – Probate done after the death of the testator. Q: What law allows probate during the lifetime? In other countries probate during the lifetime of the testator is not allowed. A: It is provided under article 838 of the NCC and the also under the Rules of Court. Q: What is the reason why probate during the lifetime of the testator is allowed? A: When the testator himself petitions for the probate of his will: 1. the court can already see the mental sanity of the testator; 2. the court can easily verify if the testator executed the will without fraud, intimidation or undue influence, imposed upon his person. 3. if the will contains some defects, it would be easy for the testator to correct the imperfections in his will. If the will of the testator who is alive is admitted to probate, it does not mean that the testator can no longer revoke his will. This is because wills are essentially revocable and ambulatory during the lifetime whether or not they have been admitted to probate. There should be no impediment on the testator from revoking his will.  2 aspects of Post Mortem Probate: 1. PROBATE PROPER – only concerned on the due execution of the will and the testamentary capacity of the testator.

GENERAL RULE: During probate proper, the probate court HAS NO JURISDICTION to entertain other issues except on issues on whether or not the will was duly probated in compliance with the formalities required by law and whether or not the testator has testamentary capacity at the time he executed the will. So probate court has no jurisdiction to pass upon matters of intrinsic validity of wills. They cannot pass upon questions on ownership, filiation, or the legality of the dispositions in the will, or whether or not the person instituted as heir is disqualified to inherit. These are matter beyond the jurisdiction of the probate court. This principle is discussed in the cases of: 1. 2. 3. 4. Dorotheo v. CA 320 S 12 Nuguid v. Nuguid 17 S 449 Pastor Jr. v. CA June 24, 1983 Coronado v. CA December 3, 1990 PASTOR JR. v COURT OF APPEALS June 24, 1983 Ruling: In probate proceedings Extrinsic Validity only. As a general rule, no jurisdiction on other matters beyond the due execution of the will and testamentary capacity of the testator. EXCEPTION: Matters which are ordinarily beyond the jurisdiction of the probate court may be passed upon by the probate court. These exceptions are discussed in the cases of: 1. 2. 3. 4. 5. Cayetano v. Leonidas May 30, 1989 Solivio v. CA February 12, 1990 Ajero v. CA 236 S 488 Magallanes v. Cayanan January 20, 1976 Balanay Jr. v. Martinez 64 S 452 CAYETANO v. LEONIDAS May 30, 1989 Ruling: When there are practical considerations which will dictate that the intrinsic validity of the will has to be passed upon by the court otherwise the court will just be wasting time in going upon the extrinsic validity of the will and later on it is still not allowed because the will is void, so the court has to pass upon the questions like ownership, filiation. With respect to the question of ownership although beyond the jurisdiction of the probate court but when for example on its face the testator disposes in his will property which is not his. So on its face, there is a defect on the will. That matter has to pass upon by the court. In that case, the intrinsic validity which is the ownership of the property may be passed upon because it would be useless going into the extrinsic validity of the will when later on it would just be nullified. So that is one practical consideration. MAGALLANES v. CAYANAN January 20, 1976

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Ruling; The question of ownership may be passed upon by a probate court IF ALL THE PARTIES ARE HEIRS AND THEY VOLUNATRILY submit the matter to the probate court and the ownership is passed upon to determine whether or not a certain property is part of the estate. BALANAY JR. v. MARTINEZ supra Facts: The testatrix appears to have disposed of a property which is not owned by her. Ruling: The question of ownership or the intrinsic validity was passed upon. Generally the probate of a will is mandatory and it is the duty of the court to pass first upon its formal validity except in extreme cases where the will is on its face is intrinsically void. This case falls under the exception. When practical considerations demand that intrinsic validity be passed upon even before the will is probated, the will could do so since the probate of the will might become an idle ceremony if on its face the will is intrinsically void. Another example, filiation. One of the oppositors or intervenors alleges that he has been preterited or omitted in the will. So the court has to determine his filiation in order to determine whether or not he has personality to intervene in the probate proceedings. So that is another practical consideration. Or, to determine whether or not the will has been revoked. Still you need to pass upon the matters or filiation. Summary on issues that may be passed upon by the probate court (intrinsic validity): 1. Ownership a. when the testator has disposed of property which is not his; or b. whether or not a certain property is included in the estate. 2. Filiation a. whether or not the oppositor has personality to intervene; or b. whether or not the will has been revoked 2. DETERMINATION OF THE LEGALITY OF THE PROVISION AND THE DISTRIBUTION OF THE ESTATE.

Cases on the NATURE of Probate Proceedings: MANINANG v. COURT OF APPEALS 114 S 478 Issue: Why is probate mandatory? Ruling: Public Policy requires wills must be probated otherwise the rights of persons to dispose of their properties by virtue of the will may be rendered nugatory if probate is dispensed with. MERCADO v. SANTOS 66 P 215 Issue: May the Petitioner be convicted, after the will was duly probated, granting that he really forged the duly probated will? Ruling: No. The ruling of the probate court is binding on the complainant even if that person was not actually a party to the probate proceeding. Probate proceedings are proceedings in rem as dinstinguised from in personam. Because there is publication, there is constructive notice to the whole world and judgment or a decree in a probate proceeding is deemed to be binding upon the entire world even against the State. So you cannot put up the defense that I was not a participant in that proceeding because that proceeding is binding on you. ALSUA-BETTS v. COURT OF APPEALS July 30, 1979 Ruling: The principle of ESTOPPEL does not apply in probate proceedings because public interest is at stake therefore private persons through their negligence cannot defeat the mandate which public policy or public interest upholds. (it is the probate itself that which cannot be barred by estoppel. In special proceedings, the oppositors are given certain period within which to file their claim.)  RULES on Probate Proceedings:

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Probate Proceedings are governed by Rule 76 of the Rules of Court. You will take this up in your study of Special Proceedings. What we are studying now are the substantive aspect of probate proceedings while in your special proceedings you will learn the procedural aspects. You must remember that a Petition for probate is not really required for a probate court to acquire jurisdiction. It is enough that a Will is delivered to the court and when a will is delivered to the court, the court automatically acquires jurisdiction even in the absence of a petition. Q: Distinguished probate of holographic will and probate of notarial will with respect to the witnesses to be presented? A: PROBATE OF HOLOGRAPHIC WILL PROBATE OF NOTARIAL WILL In the probate of Holographic wills, if there is In Notarial will, when there is no contest at least no contest, it is enough that at least one witness one subscribing witness should testify as to the explicitly declare that the will is in the handwriting execution of the will. When there is contest, ALL and signature of the testator. When the will is of the subscribing witnesses plus the notary public contested, at least 3 of such witnesses and in the must testify. If all of the subscribing witnesses and absence of such witnesses, expert testimony may be the notary public are: resorted to or even if there is no contest, still expert 1.dead; testimony may be resorted to. 2.insane; or 3.they are all absent in the Philippines or 4.testify against the due execution of the will; or 5.they do not remember having attested the execution of the will; or 6.they are of doubtful credibility Then in that case other witnesses may be resorted to. In order that a person may intervene in a probate proceeding, that person must have an INTEREST in the estate, or in the will or in the property subject of the proceedings. He must be real party in interest, meaning, he stands to be benefited by the will or he claims an interest over the estate such as a creditor. Without an interest a person may not intervene in a probate proceeding. Example, an Adopted Child has no interest over the estate of the relative of his or her adoptive parents, but only with respect to the adoptive parents. So he cannot intervene in the probate proceeding with respect to the relative of the adoptive parent. In the same manner, that an illegitimate child has no interest over the property of his or her illegitimate parents. If what is under consideration is the probate of the relative of the illegitimate parents then the illegitimate child has no legal personality to intervene. Another example, nephews and nieces or brother or sister, although they are legal heir, in intestate succession they have personality but when it comes to testate succession, these persons MAY NOT legally intervene. Q: We discussed before that a Lost or Destroyed will may be probated. What is the difference between a lost/destroyed holographic will and a lost/destroyed notarial will? A: LOST/DESTROYED HOLOGRAPHIC WILL LOST/DESTROYED NOTARIAL WILL When it comes to a holographic will, there must In Notarial will even if there is no copy still the be a photocopy or carbon copy of the holographic notarial will may be probated. Again because the will. If there is no copy of the holographic will, contents of a notarial will may be proved by the even if the reason why the holographic will was lost testimonies of at least 2 witnesses to clearly and or destroyed was due to the act of another person distinctly proved the contents of the notarial will. without intent to revoke on the part of the testator still no probate of the holographic will may be NB: As long as there is no animus revocandi on the allowed because there is no copy. part of the testator. BARETTO v. BARETTO January 31, 1956 Ruling: When the issue involved is revocation, it is the function of the court to examine the words of the will. Article 839. The will shall be disallowed in any of the following cases; (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats;

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(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. This article talks about the grounds for the disallowance of a will. These grounds are exclusive. However, despite the exclusivity given, it seems that there are other grounds. Q: What are the other grounds? A: 1. Minority 2. Revocation 3. Forgery 1ST GROUND: 1. on the formalities under 804-809 in case of notarial wills; and 2. in case of holographic wills it must be: a. entirely written, signed and dated in the handwriting of the testator, b. in the language known to the testator c. must be executed at the time when holographic wills are allowed. 2ND GROUND is INSANITY which is covered by article 779. - refers to the soundness of mind of the testator at the time of execution of the will. Art 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. 3RD GROUND: FORCE, DURESS, FEAR or THREAT - These grounds connotes the idea of coercion, mental or physical. Article 1335. There is violence when in order to wrest consent, serious or irresistible force is employed. There is intimidation when one of the contracting parties is compelled by a reasonable and well grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind. A threat to enforce one’s claim through competent authority, if the claim is just or legal, does not vitiate consent. Q: When is there violence? A: There is violence when in order to wrest consent, serious or irresistible force is employed. The presence of Force, Duress, Fear or Threat in a contract renders the contract voidable therefore, susceptible of revocation. However, their presence in Will renders the will VOID. 4TH GROUND: UNDUE AND IMPROPER INFLUENCE Q: What is UNDUE INFLUENCE? A: Undue Influence connotes the idea of coercion by virtue of which the judgment of the testator is displaced, and he is induced to do that which he otherwise would not have done. Article 1337. There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress. 5TH GROUND: SIGNATURE IS OBTAINED BY FRAUD Article 1338. There is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to.

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Q: What is Fraud? A: Fraud is the use of insidious words or machinations to convince a person to do what ordinarily he would not have done. Fraud in a contract renders it voidable. But in a will, the same is cause for disallowance because the will is void. Take note that Fraud and Undue Influence are mutually repugnant and exclude each other. In one case, their joining as grounds for opposing probate shows the absence of definite evidence against the validity of the will. 6TH GROUND: MISTAKE The testator is acting because of his mistake and the testator has no intent to make a will. Q: What is the difference between the 5th and the 6th ground? A: In ground 5, there is intent to make a will. While in ground 6, there is no intent to make a will. Q: Distinguished Revocation from Disallowance? A: REVOCATION Is a voluntary act of the testator. May be with or without cause. May be partial or total.

DISALLOWANCE Is given by judicial order. Must always be for legal a cause. Is always total.

‫ﺉ‬

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SECTION 2 INSTITUTION OF HEIR Article 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. We are now in subsection 2. When asked what is Institution, it is defined under article 840 NCC. Article 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. 1. A will is valid even though it does not contain an institution of an heir.

For example, there is only a disinheritance or there is only an appointment of an executor to pay the debts of the estate. Even if there is no heir still, that is valid because indirectly there is still disposition of property. 2. Such institution should not comprise the entire estate.

For example, the testator institutes A as heir to 3 hectares of his 10-hectare land. So here the institution comprises only of 3 hectares. How about the remaining 7 hectares? You know that there is what we call Mixed Succession. So with respect to the 3 hectares we have Testate Succession because of the institution. With respect to the remaining 7 hectares that shall go by intestate or legal succession. Still valid. 3. Even though the person so instituted should not accept the inheritance or should be incapacitated to succeed.

The person instituted repudiates the inheritance or incapacitated, he becomes unworthy by some acts. Here the institution is INEFFECTIVE because there is refusal to accept or repudiation and there is incapacity but the will itself remains VALID. Article 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. This article is called the FREEDOM OF DISPOSITION. The testator has freedom to dispose of his properties by will generally to anybody as long as that person to whom the properties is given is capacitated to inherit. But this Freedom of Disposition is not absolute because when there are compulsory heirs, the testator has to observe the portion pertaining to the compulsory heirs. So he cannot just dispose of his properties to anybody thereby depriving the compulsory heir of what we call their legitime. For example, the testator has 10 hectares. He has a son and he wants to give something to his friend. The testator here cannot just dispose the entire 10-hectare to his friend because under the law, the legitime of a son or a child is one-half of the estate. So 5 hectares is reserved for your son. The remaining 5n hectares the testator can give it to anybody he wants as long as the recipient is capacitated to inherit because there are persons who are also disqualified to inherit. So you observe the capacity of the person to inherit and you also observe the legitme of the compulsory heirs. If the testator has no compulsory heir then there is no problem. The testator can just dispose of the property to anybody capacitated to succeed. Article 843. The testator shall designate the heir by his name and surname, and when there are 2 persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such a manner that there can be no doubt as to who has been instituted, the institution shall be void. RULE as to how should an heir be instituted - The best way to designate the heir is by name or surname.

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EXAMPLE: “I give my 10-hectare land to Halle Berry.” - So that is the best way to designate the heir. “To Jennifer Anniston, the wife of Brad Pitt.” - If there are 2 persons having the same name, you should at least distinguished the heir is being given. There should be some description. In this example, it is an appropriate designation because by stating the wife of Brad Pitt, you will know who is instituted even if the 2 persons have the same name and surname. Q: What if the name of the heir is omitted? Example, “to my sister?” A: Well if you only have one sister then the heir could be determined. In this case, the institution is valid. But if you have many sisters, in this case, you have a problem. There must at least some description of that sister. If no description which will identify which of the 5 sisters is being instituted then the institution is not valid. Q: How about if only a nickname mentioned? For example, “To honey,” is that valid? A: Well it is valid if the name is omitted so how much more if only a nickname as long as the person referred to by the nickname can be identified. Q: Under this article, 2 or more persons have been instituted and these persons have the same name or 2 or more persons corresponds to the description, how would you solve the ambiguity here? A: You can apply article 789: Art 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator unto his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. This refers to Patent and Latent Ambiguity. So you can solve the problem by using Extrinsic (by going beyond the will) or Intrinsic Evidence ( by just looking at the will) and applying article 789, excluding Oral declarations by the testator. In the previous example, “To Jennifer Anniston.” 2 persons have the name Jennifer Anniston. Even if you have exhausted all the rules under article 789 still you cannot determine which of the 2 Jennifer Anniston has been instituted as the heir. So to whom will you give the property? Can you divide the property to both? No because if you will divide the property between the 2 you are defeating the wishes of the testator. You are giving something to whom the testator did not intend to give something. The rule is, wala na lang kaysa half-half. Article 844. An error in the name, surname or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir. In article 843 mentions omissions. Article 844 mentions error. There is a name, there is a surname or there are circumstances mentioned but there are only errors. 1. Error in the spelling of the name or surname. Error in the spelling of the name or surname. So spelling in the name or surname, they are negligible as long as the heir can be determined with certainty, just disregard the error. 2. Error in the circumstance. Example: “To my sister Kennu Reeves.” But actually you don’t have a sister named Keannu Reeves, but you have a brother. So even if there is error in the circumstance, the institution is still valid kasi ma-determine that the testator have only one brother named Keannu Reeves and no sister. “To Juan Dela Cruz, my natural child.” - Even if Juan Dela Cruz is not really your natural child still Juan Dela Cruz will inherit because there is merely a mistake in the circumstance and as long as it was not the condition of the testator that Jual Dela Cruz should be a natural child before he could inherit. If merely a description not a condition then the institution is valid.

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Again, in case of doubt, ambiguities, imperfections, you can apply article 789. Patent or Latent Ambiguity curable by Intrinsic or Extrinsic Evidence. Q: How about Parol Evidence? Because the article says, “An error in the name, surname or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted.” IN ANY OTHER MANNER. Will this include oral declaration? A: Paras said, NO, still you are limited by article 789 of the NCC excluding the oral declaration by the testator. Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. Article 845 talks about a disposition in favor of an UNKNOWN PERSON. Q: Who is this Unknown Person? A: Under article 845, an Unknown Person is one that can be identified. Even if that person was actually known to the testator during the lifetime of the testator but by examination of the will the heir cannot be identified so he is an Unknown Person. So an unknown person is not necessarily a stranger. He is an unknown person if he cannot be identified, that is the only criteria. Under article 845, a disposition in favor of an unknown person who cannot be identified cannot be given effect, as if not written. Why? Because under the law, an unknown person is considered to be one not existing. So you cannot give something to one who does not exist. EXAMPLE: 1. “To my student I give my 10-hectare land in Calinan.” Q: Can you identify who is that student? A: Some of you may claim because you are my student. But you cannot really prove because there are no other circumstances which will point to you as the heir instituted. 2. “To my student who will get the highest grade in the 2006 Bar examination.” - This can be identified because sooner or later all of you will take the bar examination. So that may be identified but only in 2006. There is no problem because the identifying circumstance may occur during the lifetime of the testator or after the death of the testator as long as the person is living at the time of death of the testator because transmission happens at the time of death. 3.“To my students.” Q: Is that valid? A: This is valid because this is an institution of a class. So tanang students, you can identify. Institution of a class or group is allowed. Another example of a class or group: 1. To my relatives (article 959) – in this case those who are nearest to the testator will inherit. 2. The poor in general (article 1030) 3. In favor of a certain class or cause (article 786) 4. A person and his children (article 849) 5. Brothers and sisters of the full and half blood (article 848) Article 846. Heirs instituted without designation of shares shall inherit in equal parts. Article 846 is the PRINCIPLE OF EQUALITY. Q: What is the rationale for this article? A: It is presumed that the testator intended to give equal shares to the heirs instituted otherwise, he would have specifically mentioned the shares of the heirs had he intended that each heir shall get different portion or unequal portions. GENERAL RULE: Heirs instituted without designation of shares shall inherit in equal parts. EXAMPLE: 1. “I hereby institute A, B, C, and D to my 10-hectare land.” Q: How much will A, B, C and D get? A: 10 hectares is divided by 4. So 2.5 hectares each. Because again it is presumed to have an equal share.

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EXCEPTION: Article 846 cannot apply when there are compulsory heirs. EXAMPLE: 1. 10 hectares owned by the testator, it is the only property of the testator. He institutes A, B, C, and D as heirs. A happens to be the son of the testator. Q: How will you divide the 10 hectares? A: First because there is compulsory heir, the principle of Equality is somewhat qualified. Firt give the share of the compulsory heir. That share which pertains to his legitime. So 10-hectare, the legitime of the son is one-half. So out of 10 hectares, A will get 5. Q: How about the remaining 5 hectares? Who will get the remaining 5 hectares? A: A, B, C and D. Because A was also instituted as the heir. The principle is, Institution refers to the Free Portion. So in the Free Portion of 5 hectares, A was instituted as an heir. So wala man mention sa share so divide equally. So the remaining 5 hectares is divided by 4, 1.25 hectares. In this case, A will get the legitime of 5 hectares plus the 1.25 hectares, a total of 6.25 hectares. B, C and D will each get 1.25. This is what will happen when there is a compulsory heir. 2. The testator has an estate worth P300T. “I hereby institute A, B, C, D and E as heirs to my estate worth P300T but my car worth P20T will go to A, jewelry worth P50T will go to B and House worth P50T will go to C.” Q: How will you divide P300T? A: Because there are 5 heirs, under the principle of equality, it is divided by 5 (300T / 5 = 60T). So each will get P60T. Take note that the car is specific so hindi puede na bawasan. For A: P20T + 40T P60T B: P50T C: P50T D: P60T + 10T + 10T P60T P60T E: P60T

 This is an illustration of the principle of equality when specific properties are given to different heirs. DE BELEN v. BPI October 31, 1960 Facts: The provision “to Filomena OR her legitimate descendants” was found in the will of the testator. Filomena is the daughter of the testator. Filomena has 2 children Ferdinand and Luisa. Ferdinand has 3 children, namely Paige, Phoebe and Ivy. The testator died in 1960 and Filomena died in 1975. Issue: Upon the death of the testator to whom the properties go? Ruling: There is what we called Substitution. This is the case of Substitution. So there is no problem if the testator died ahead of the heirs. Upon the testator’s death, Filomena will now succeed to the property of the testator. Issue: What if Filomena died, who will get the properties? Ruling: The provisions says, “to Filomena or her legitimate descendants.” Applying the Principle of Equality, equal sila. Why not the nearer to Filomena her children? The principle the nearer excludes the farther apply to the relatives of the testator. Here, the legitimate descendants are not the relatives of the testator. They are the relatives of the heir (Filomena). In this case, do not apply that rule, you apply the principle of equality. “Or her legitimate descendants,” so tanan na descendants. Who are the descendants of Filomena? Ferdinand, Luisa, the grandchildren Paige, Phoebe and Ivy. So if the estate is P200T, P40T (P200T / 5 = P40T). Issue: What if “to Filomena AND her legitimate descendants? Ruling: Meaning upon the death of testator, ALL of them Filomena and the legitimate descendants will inherit. All at the same time, you do not have to wait for Filomena to die. It will be divided into 6: Filomena, Ferdinand, Luisa, 3 grandchildren. (P200T / 6 = 33, 333.33). This example will be discussed in the next article. Article 847. When the testator institutes some heirs individually and others collectively as when he says, “I designate as my heirs A and B and the children of C,” those collectively designated shall be considered as individually instituted, unless clearly appears that the intention of the testator was otherwise.

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Article 847 is an another aspect of Principle of Equality. PRINCIPLE OF INDIVIDUALITY.

But more specifically this is called the

“I designate as my heirs A and B and the children of C,” example, Britney, Cristina and Shakira are the children of C and the estate is worth P500T, under article 847 those collectively designated are deemed individually instituted. Children of C collective because they are locked in one category as children of C. They are Individually instituted, so it is A, B, Britney, Cristina and Shakira. That is the proper interpretation. In this case, P500 shall be divided equally between A, B, Britney, Cristina and Shakira (P500T / 5 = P100T each). When you say collectively, and if this is to be construed as collective institution, different amount will be given to A, B and the children of C. In this case you have to divide the P500T into 3. 1/3 for A, 1/3 for B and Britney, Cristina and Shakira all in all will get 1/3, if they are deemed to be collectively instituted. But the law says individually instituted, so you consider them as one individual standing in the same category as A and B, so divide by 5. So this is the same case as “Filomena AND her legitimate descendants.” Collectively instituted but they should be instituted individually instituted (P200T divided by 6). So when you say AND apply article 847. Article 847 is based on the presumption that the testator intended to give equal share to the heirs. For example, I designate as my heirs A and B and the children of C. If the testator really intended to give the children of C only 1/3, or if he really intended a collective institution, he would have said, “I designate as my heirs A and B and 1/3 to the children of C.” Since it is silent the presumption is individual institution. NABLE v. USON 27 P 73 Facts: The testator provided in his will, “I leave my property to my husband and after my husband died to my sisters and nieces.” After the husband died the property shall go to the sisters and nieces. So these are the sisters and the nieces: A – deceased – 2 daughters B - deceased – 3 daughters C – widow (alive) – no children D – alive – no children E – alive – no children F – alive – no children Issue: How would you divide the properties? For example, P600T, divided by 6 or 9? Ruling: The lower court divided the estate into 6. For A’s share it is divided into 2, B’s share divided into 3, C 100T, D 100T, E 100T and F 100T. But this was overruled by the Supreme Court applying again article 847, those collectively designated shall be considered individually instituted. Applying article 847 because there are no words in the will which would point out that collective institution was intended. Absent of those intention it is presumed that it should be equally or individually instituted. Therefore, applying article 847 you have to count each person individually: • 2 daughters Therefore, the proper division would be: • 3 daughters P600T / 9 = P66, 666. 66 • C (All get equal share) • D • E • F As long as the intention to have the estate collectively distributed does not appear in the will, the presumption is individual institution. Article 847 says, “unless clearly appears that the intention of the testator was otherwise.” The intention must appear in the will. Article 847 is another species of institution. So this example will apply only to the FREE PORTION. So when there are compulsory heirs, you have to first satisfy the portion pertaining to the legitime of the compulsory heirs. So take note when you say INSTITUTION refers to FREE PORTION. Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally, unless a different intention appears. Article 848 talks about the institution of brothers and sisters whether of the full blood or half blood. You have to remember that brothers and sisters are not compulsory heirs although they are legal heirs. Meaning, they are not compulsory heirs if the testator does not want to give anything to his brothers and sisters in the will, the testator

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can do so because there is no legitime of brothers and sisters. But in Legal Succession, the brothers and sisters, if there are no descendants or ascendants, they inherit. When the testator institutes his brothers and sisters whether or full blood or half blood they are deemed to have been instituted equally. Meaning, they get equal shares. No preference as to the blood relationship. There is no presumption that the affection for those of the full blood is greater of those of the half blood. Under the Old Civil Code - there was a distinction. Before the shares of the brothers and sisters of the full blood is twice as much as the half blood. New Civil Code – the distinction has been erased. They are now the same. So if all the brothers and sisters are of full blood, no problem. All of half blood, still no problem. But you have to note that in Intestate Succession or Legal Succession, this rule does not apply. INTESTATE SUCCESSION The shares of the brothers or sisters of the full blood, is twice as much as those of the half blood. So here there is a presumption that the affection of the testator for the brothers and sisters of the full blood is greater than those of the half blood TESTATE SUCCESSION There is NO such presumption.

Q: In testamentary succession there is no presumption that the affection of the testator for the brothers and sisters of the full blood is greater than those of the half blood? A: Because had the testator intended to give more to his brothers and sisters of the full blood, then he would have provided so in his will. If the institution is silent, then it is presumed equal. Q: The testator provides in his will, “I institute as heirs to my estate worth P100T, A my full brother, B my half sister, C my illegitimate brother, D a friend. How much will each get? A: Under article 848, the full brother and half sister will inherit in equal shares. Under article 846, when there is silence as to the number of shares they are presumed to have inherited equally. Unless a different intention appears, so when a different intention appears then of course the presumption will apply. So this article will only apply when there is silence as to the shares. When a contrary intention appears this presumption will give way to the intention of the testator. Where should that intention be gathered? From the will because if you give a different meaning to the institution from other some evidence, you are varying the provision of the will by means of Oral or Extrinsic Evidence. Article 849. When the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. This article is known as the Principle of SIMULTANEITY. Simultaneously meaning at the same time. Not successively or one after the other. When you say and his children this phrase refers to the person instituted not to the testator. Example, the testator institutes as heir B and the 3 children of B to an estate of P100T. Under article 849, they are deemed to have been instituted simultaneously, meaning they will all inherit at the same time upon the death of the testator. So B + the 3 children of B = 4 (P100T /4 = P25T each). Again article 849 says they are all deemed so meaning there is only a presumption. So there is nothing which can prevent the testator from providing in his will that the institution shall be successive not simultaneously. So when the testator provides that the institution shall be successive meaning one after the other, so that may be a case of Substitution, this is perfectly valid. Moreover, that statement that they all inherit successively must appear in the will or the intention must appear in the will not by some oral declaration or some extrinsic evidence. Article 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. GENERAL RULE: The statement of a false cause for the institution of an heir shall not vitiate the institution. The false cause shall always be considered as not written. Q: What is the reason for this rule why is it that the false cause is deemed not written? A: Because the law presumes that in giving a legacy or devise or inheritance the real motivation or the real cause is the liberality or generosity of the testator not he false cause.

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If the testator would says, “for taking care of me while I was insane, I hereby institutes Cris as heir to my house and lot in Davao City.” If it turns out that Cris really did not take care of the testator that statement becomes a false cause. But should Cris inherit? YES. Because the statement for taking care of me shall be considered as not written. So here the institution is valid. Cris would still get the inheritance because the law presumes that the real cause for giving Cris the house and lot is the liberality or generosity of the testator not the false cause. EXCEPTION: unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. Unless it appears in the will , so the will itself must reveal the intention that the testator really did not want to give the property to the heir instituted were it not for his belief of false cause. Example, “I was about to institute my friend Luke as heir to my house and lot in Davao City but I am morally indebted to Julia for having taken care of me while I was insane therefore I give my house and lot in Davao City to Julia instead of Luke.” Here it clearly appears that the testator really wanted to give the property to another person Luke but because of the phrase Julia took care of the testator while the testator was insane , so the testator give the property to Julia. But if it turns out that Julia really did not take care of the testator during the testator’s insanity, the cause for giving Julia the house and lot becomes a false cause and because it clearly appears in the will that had the testator not believe in the false cause he would not have given the house and lot to Julia then in this case the institution of Julia is invalidated. Julia will not ger the property. Q: How about Luke because the testator really intended to give the property to him? Will Luke gets the property? A: NO because Luke was not instituted. It was Julia. Julia will not inherit because there was a false cause and the false cause was the reason why the testator gave the property to Julia and that reason appears in the will. So the institution of Julia is invalidated but Luke will also not get the property because he was not instituted. AUSTRIA v. REYES 31 S 754 Facts: The testator said, “I hereby give my property to 5 adopted children.” But it turned out that the adoption was not legal. Issue: Will the institution of these 5 adopted children be invalidated because of phrase adopted children is a false cause? Ruling: Yes, applying article 850 NCC, the statement of a false cause for the institution of an heir shall be considered as not written. Another reason, there was no intention or no provision in the will that the testator did not really want to give the property to the children were it not for his belief that the children were adopted. You cannot gather from the will that the testator would not have made the institution if he had known the falsity of the cause. In this case, the Supreme Court said, you apply the general rule. Q: How about ILLEGAL CAUSE? A: According to some authorities in succession, almost the same rule. The statement of Illegal cause for the institution will not invalidate the institution, the illegal cause is deemed not written. Example, if the testator will provide “I give my car to B because B helped me rape C.” So here as a general rule the statement of the illegal cause will not invalidate the institution, it is just deemed not written. The testator can give the property to the instituted heir because the presumption is it is not really the illegal cause which motivated the testator to give the property but his liberality or generosity. But like article 850, when the illegal cause is the sole and primary motivation for the institution then the illegal cause will invalidate the institution. Q: How will you know that it was really the illegal cause which motivated the testator to institute the heir? A: In my previous example, if B was the brother or friend of the testator then you can say that the reason really is affection or liberality. But if B is a total stranger to the testator such that there could have been no other reason for the testator to give the property to B other the illegal cause which is raping C here, the institution is invalid because the sole motivation for the institution was the illegal cause. When you say Illegal cause the reason, motivation or intention NEED NOT appear on the will itself. It can just be gathered from the circumstances of the testator and the instituted heir. Article 851. If the testator had instituted only one heir, and the institution is limited to n aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies, if the testator had instituted several heirs each being limited to an aliquot part, and all the parts do not cover the whole inheritance. Q: What do you mean by an Aliquot part?

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A: Fraction or undivided interest. Example: 1. 2. Testator says, “I hereby institutes A to ¼ of my estate.” - In this case, ¼ shall go to A. The other ¾ shall descend to the heir by legal or intestate succession. “I hereby give to A ¼, B 1/3 of my estate.” – the same rule when there are may heirs. So ¼ + 1/3 do not amount to one whole. The rest shall descend to legal heirs.

Article 851 should be applied when there is NO INTENTION on the part of the testator to give the remaining part of the estate. So only the specific portions mentioned. Q: How about if it is really the intention of the testator to give the entire to the instituted heir or heirs, what will apply? A: Let’s proceed with Article 852. Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionately. So here the shares given to the instituted heirs when added do not comprise the entirety of the estate. ILLUSTRATION: 1. The estate is worth P120T but the testator merely provides “I hereby institutes A, B and C to my estate worth P120T, each receiving ¼. So ¼ multiplied by 3 is ¾. What will now happen to the remaining ¼? You just increase the share of A, B and C proportionately so that the total share of A, B and C will all amount to P120T. The ratio here is 1:1:1 A, B and C: ¼ of P120T is P30T. P30T + P30T + P30T = P90T P120T – 90T = P30T (remaining estate) P30T / 3 = P10T (remaining estate divided proportionately) P30T + P10T = P40T (total share of A, B and C) 2. The testator institutes A, B and C to an estate of P120T. A: 1/6, B: 1/8, C: 2/3. Will those fractions amount to one whole? No. 1st step: get the least common denominator. Pinagamay na number na maka-divide sa 6, 8 and 3. It is 24. 1/6 = 24 divided by 6 multiplied by 1= 4 so 4/24 1/8 = 24 divided by 8 multiplied by 1 = 3 so 3/24 2/3 = 24 divided by 3 multiplied by 2 = 16 so 16/24 2nd step: Add 4 + 3+ 16 = 23. Amounts to 23/24 (so wala kaabot ug one whole, it should be 24/24. so kulang) 3rd step:: A 1/6 = (120T divided by 6 multiplied by 1) P20T 20T/115T (5T times 20 divided by 115) 869.565 B 1/8= (120T divided by 8 multiplied by 1) P15T 15T/115T (5T times 15 divided by 115) 652.179 C 2/3= (120T divided by 3 multiplied by 2) P80T 80T/115T (5T times 80 divided by 115) 3478.826 P115T P5000 The estate is worth P120T: = 1/24 to be divided into 3 (P120 T divided by 24 multiplied by 1)= P5T = add to 23/24 (120T divided By 24 multiplied by 23) = P115T = 5T + 115T = 120T Total share of: A P20T + 869.565 = P20, 869.565 B P15T + 652.179 = P15, 652.179 C P80T + 3478.862 =P83, 478.862 P120T

So you have to remember that when there are compulsory heirs article 852 will now be subject to the rule on legitime. First, you have to satisfy the legitime of the compulsory heirs then you proceed with the procedure provided under article 852.

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Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. Article 853 is the exact opposite of article 852. The instituted heirs are given more than the whole of the entire inheritance. So to arrive at the exact amount of the whole inheritance you just have to reduced the share. ILLUSTRATION: The testator institutes A, B and C to an estate worth P120T : A 1/4 , B 1/8 and C 2/3. A ¼ = 6/24 (120T divided by 4 times 1=P30T) 30/125 (5T times 30 divided by 125 =1200) 28800 B 1/8 =3/24 (120T divided by 8 times 1=P15T) 15/125 (5T times 15 divided by 125 = 600) 14, 400 C 2/3 =16/24 (120T divided by 3 times 2 =P80T) 80/ 125 (5T times 80 divided by 125 = 3200) 76800 P125T P120T • The excess is P5T therefore their total share must be reduced by P5T. The P5T shall be apportioned this way: A5T times 30 divided by 125 =1200 B 5T times 15 divided by 125 = 600 C 5T times 80 divided by 125 = 3200 P5T Total share of A, B and C: A P30T – 1200 = 28,800 B P15T – 600 = 14, 400 C P80T – 3200 = 76, 800 P120T 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. PRETERITION – it is the total omission generally due to mistake or oversight by the testator in his will of 0ne, some or all of the compulsory heirs in the direct line living at the time of the testator’s death. 1. 2. Here in Preterition, the omission may be voluntary or involuntary. Involuntary- by oversight, by inadvertence or by mistake. Wala gituyo Voluntary – The heir omitted from the inheritance without providing causes for disinheritance. Gituyo.

•

Although even if the omission is Voluntary the law presumes that it is by mistake or oversight but still there is preterition.  REQUISITES of Preterition: 1. THE OMISSION FROM THE INHERITANCE MUST BE TOTAL OR COMPLETE.

 The compulsory heir is not mentioned in the will; or  Even if mentioned, he is not given anything in the will. Q: What if he is not mentioned in the will or he is mentioned but nothing is given to him in the will but during the lifetime of testator he was given something by virtue of a donation, is there preterition? A: NO because the omission must be omission FROM THE INHERITANCE not merely from the will. The donations made to compulsory heirs during the lifetime of the testator, upon the death of the testator the values of this donations are brought back to the value of the estate. We have what we call COLLATION, so if the testator had donated a property worth P10T during his lifetime, upon the testator’s death if the estate is worth P20T, the P10T worth of donation shall be added to the estate. So all donations are brought back to the inheritance. So in this case, there is no preterition. There is no preterition in the following situations:

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1. 2.

3.

If the compulsory heir is given a devise or a legacy, he is not considered preterited even if the legacy or devise is worth less than the legitime of the compulsory heirs. If the estate is worth P100T but the testator says, “I hereby institute my heir to one-half of my estate.” That is the only provision in the will. For example, A is a son, an heir. There is no preterition even if A is not mentioned because something is being left for A in the inheritance. So P100T meaning P50T. The other P50T can go to A and P50T is the amount of the legitime of A. Still no preterition. As long as there is still a balance after all the provisions in the will have been given effect, there are still undisposed properties which the omitted compulsory heir may partake so there is no preterition. Sa bisaya pa, bisag na-dispose na tanang mga kabutangan sa will kung naa pay mabilin properties kay wala nya gidispose tanang properties, naa pay mabilin sa compulsory heirs so walay preterition because there is no omission in the inheritance. THE OMISSION MUST BE THE COMPULSORY HEIR IN THE DIRECT LINE.

2.

The law defines who are compulsory heirs: 1. The children whether legitimate or illegitimate; 2. the parents in the absence of the children; The spouse is a compulsory heir but the law says, IN THE DIRECT LINE meaning descending or ascending, either the testator came from the compulsory or the compulsory heir came from the testator, so the parents or the children. Q: How about adopted children if they are omitted in the inheritance, is there preterition? A: YES because under the Family Code, the adopted shall be deemed to be the legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child. By fiction of law he is considered as compulsory in the direct line. 3. THE OMITTED COMPULSORY HEIR MUST SURVIVE THE TESTATOR.

Meaning, the omitted compulsory heir must be living or at least conceived at the time of death of the testator. Q: What if the omitted compulsory heir died ahead of the testator, will there be preterition? A: No because in that case you cannot say that he is omitted. In the first place, by reason of his early death he is deemed not to have inherited from the testator. Again, the rights to the succession are transmitted from the moment of death. So if the compulsory heir died ahead of the testator there is no right transmitted to the compulsory heir. EXCEPTION: if the compulsory heir who dies ahead of the testator has children who can represent him. We have in succession the term Representation wherein the representative is exalted to the position of the one they are representing. In this case there is preterition. Q: What is the effect of Preterition? A: 1. It shall annul the institution of heir (article 854) 2. The legacy or devise shall be valid in so far as they are not inofficious. Meaning the institution will be annulled, it shall not be given effect anymore but if there are legacies or devises they shall be given effect. ILLUSTRATION: 1.The heir is entitled to one-half of the estate. If the estate is worth P100T then the testator has children A, B and C. In his will the testator provides “I hereby institutes A as heir to P20T worth of my estate, to B P50T and to C a car valued at P30T. Q: So how much will be the total? A: It is P100T. So omit na wala na si B who is suppose to be the compulsory heir of the testator. In this case, there is preterition. The effect of the preterition is that it will annul the institution of heir. So the will is disregarded but respect the legacy or devise which are not inofficoius. Not inofficious meaning they do not impair the legitime of the compulsory heirs. So the legacy of C is P30T. In this case, the children are supposed to be entitled to one-half of the hereditary estate. Q: How much should be the legitime of the children? A: P50T (divided by 3), so wala na-impair ang legitime kay P30T lang wala nakaabot ug P50T. Therefore: • Give the car to C • The rest will go by legal or intestate succession. 2. The estate is worth P300T. The testator has 3 children A, B and C and a friend D. The testator institutes A and B as his heirs and D to a legacy of P100T and omits C. Q: What is the effect of the omission of C?

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A: There is preterition because C is omitted, assuming that no donation was given to C. In effect, it shall annul the institution of heirs but the legacy or devise insofar as they are not inofficious, meaning they do not impair the legitime shall be respected. Q: How will you divide the estate? A: The estate is P300T and the legacy is P100T. A, B and C are the compulsory heirs. When there is a will, they are entitled to one-half of the hereditary estate as their legitime so the legitime of A, B and C is P150T. Meaning, the testator will just dispose of the other P150 to anybody he wants, as Free Portion. Since the legacy is P100T wala nya nalampas or naapektuhan ang legitime sa compulsory heirs. Q: How about institution? A: Because there is preterition the institution is annulled. So in that case, you just divide the remaining P200T between A, B and C anyway the amount 1/3 of P200T is more than the legitime of each compulsory heir. A: 1/3 of P200T B: 1/3 of P200T C: 1/3 of P200T D: legacy of P100T P300T Q: What if the legacy is P200T? A: in that case, the legacy is inofficious to the extent of P50T because the legitime is P150T therefore the Free portion is only P150T. Q: Because the legacy is inofficious should it be annulled in its entirety? A: No it should only be decreased. The remaining balance would be legitmes of A, B and C. So the proper way to compute is: 1st: Compute first the legitime. P150T / 3 = P50T (each legitime of A. B and C) 2nd: The legacy should be decreased being inofficous. P200T – legacy less 50T P150T – the legacy is given effect to the extent of P150T. + P150T – legitime of A, B and C P300T Q: What if instead of giving a legacy to D, the testator will say, “I hereby institute as sole heir A, B and D to my estate worth P300T.” What will be the effect? A: The law says legacy or devises shall be respected. In this case, is there a legacy or a devise? No, D is instituted as heir. Meaning, the whole institution shall be annulled. Nothing will be given to D because there is no legacy or devise, therefore, the whole estate shall be disposed of by way of intestacy. So P300 shall be divided equally to A, B and C. So each will get P100T. So here, you have to distinguish an heir from because the answer will vary. When you say heir, annulled. When you say legacy or devise respected as long as not inofficious. Q: What if the testator says, “I hereby institute D (friend) as an heir to an amount of P100T and the estate is worth P300T” That is the only provision in the will. (A, B and C are heirs). Is there Preterition? A: There is NO preterition because although A, B and C the compulsory heirs are omitted in the will, they are not omitted in the inheritance. If P100T is given to D, the remaining is P200T which is more sufficient to cover the legitimes of A, B and C. In fact this is a case of Mixed Succession, the P100T by will and A, B and C shall succeed by intestacy. Q: What if what is given to D is P200T? A: In this case, there is preterition because P200T impairs the legitime of P150T. What will happen is, the institution shall be annulled then divide among compulsory heirs. It would be a different story if a devise or legacy is given to D P200T. In this case, the legacy shall only be reduced and the rest shall be disposed of by way of intestacy. Q: What if a donation is given to C during the lifetime of the testator and he is omitted in the will, is there preterition? A: No, even if C is omitted still there is no preterition because he is not omitted from the inheritance. Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs. Article 855 talks about the share of a child or descendant omitted in the will. But this article can also be applied when what is at hand is merely an impairment of the legitime so you just have to complete the legitime. ILLUSTRATION:

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1. Estate is worth P300T. A, B and C are the children. D is a friend and was given a legacy of P60T. A and B are he only heirs instituted. C again is omitted. In this case there is preterition. So first determine the legitime (1/2 of P300=P150T). A, B and C P50T each. Q: Who is the omitted heir here? A: C. So C should be given his legitime. Q: Where would you get the amount to be given to C? A: When there is preterition the institution is annulled. But still you have to consider the legacy: The legacy of P60T shall be taken from the Free Portion (P150 – P60T = P90T). The share of the one omitted shall be taken from the amount not disposed of by will. So in this case from the Free Portion, you should not immediately get from D. First from the portion not disposed of by will. Therefore: Estate P300T Free Portion P150T Legitime P150 A P50T B P50T C (omitted) P50T –taken from the amount not disposed of by will D legacy P60T This is only with respect to the legitime because article 855 merely provides the share of the child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will. So article 855 talks only of the legitime. It has no concern of the Free Portion. 2. Estate P300T. A, B and C are children and D is a friend. A P80T B P80T C P10T D P100T P270T only; remaining P30T Q: What is the problem with this disposition? A: The legitime of A, B and C should be P50T each. But C here is only given P10T. So there is an impairment of the legitime of C. Q: Where will you get the remaining balance to complete the legitime of C. A: You cannot immediately get from D. You first get from the portion not disposed of by will. The estate is worth P300T, the will is disposed only of P270T. So there is a remaining balance P30T. So you add P30T to C (P10T + 30T = P40T). Kulang lang gihapon. The law says “so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.” Q: Can you get from D? A: No because he is not a compulsory heir. Proportionally meaning 1 is to 1. So P80T pareho, equal lang. Q: How much should be the deficiency? A: P10T because C’s legitime should be P50T. C P10T + P30T (remaining balance) = P40T P10T taken from A and B proportionally P50T Therefore: A P80T – 5T = P75T B P80T – 5T = P75T C P10T + 30T + 10 T = P50T (complete the legitime) D friend P100 P300T Q: What if the estate is still P300T: A P70T B P90T C P10T D P100T (friend) P270T; remaining P30T P65, 625 P84, 375 P50T (complete the legiime) P100T

A:

A P70T (10T * 70/160= 4375) 70T – 4375 = B P90T (10T * 90/160=5625) 90T- 5625 = C P10T + 30T (remaining balance) + 4375 + 5625 = D friend

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P300T

Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated tom succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. 1st paragraph: A voluntary heir who dies before the testator transmits nothing to his heirs. Meaning, the heirs of the voluntary heirs. For example, D is the voluntary heir. D is instituted is not a relative, or a son but D is instituted as heir. So if D died ahead of the testator the children of D will not get anything by virtue of the disposition in favor of D. The term voluntary heir here covers also legacies or devises. So if a legacy or devise is given it transmits nothing to the heir of the voluntary heir. 2nd paragraph: A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. 3 1. 2. 3. instances: predecease incapacity renunciation or repudiation

GENERAL RULE: If a compulsory heir predecease, incapacitated or renounce or repudiates the inheritance, they transmit nothing to their own heirs. EXCEPTION : Right of Representation If A died ahead of his father, the testator and A has his own children. The children now will be exalted to the position of A. So instead of A who has died, it will now be the children of A who will inherit from the testator. Although when you really analyze it there is actually no transmission because when A died ahead of the testator he does not inherit anything. The children of A will inherit not from A but from the testator. There is no transmission form A to his children but there is transmission from the testator to the children of A. But still you have to observe the right of representation because it is provided for by law. A compulsory heir can both be a voluntary heir and a compulsory heir. EXAMPLE: The testator has a children X and Y. X has children A and B. The estate is worth P100T. So the legitime is P50T, 25T each to X and Y But in the will the testator gave X P75T but to Y only P25T. Q: If X died ahead of the testator, what will his children inherit? A: By Right of Representation under article 856. X was given 75T, with respect to P25T X is a compulsory heir and with respect to P50T X is a voluntary heir. So the law provides that when you are a voluntary heir you transmit nothing to your heir. But when you are compulsory heir you transmit nothing except when for example there is representation. So only with respect to P25T there shall be representation but with respect to the P50T there shall be no representation. Therefore: Estate P100T Legitme P50T (25T each for X and Y) Free Portion P50T In the will: X 75T (25T CH; 50T VH) So, 25T there is right representation between A and B Y 25T

Q: What will happen to the P50T? A: Later on we will learn that there is accretion or substitution, so that will be applied if representation is not possible. This article applies to a compulsory heir with respect for example if the compulsory heir is an instituted heir to the Free Portion then this article apply to him. With respect to the Right of Representation pertaining to the legitime this article does not apply because as provided under the last paragraph of article 856 except in cases

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expressly provided for in this Code. Although you may say that the Right of Representation is not really a real exception but still you can apply it under article 856 as an exception. This article speaks of an heir who predeceased the testator, incapacity and one who renounces the inheritance. But this article applies by analogy to DISINHERITANCE. A compulsory heir who is disinherited shall transmit no right to his own heirs except when there is Right of Representation. SECTION 3 SUBSTITUTION OF HEIRS Article 857. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. Article 857 speaks of substitution. So here the appointment of another heir in default of another heir instituted. So if the first heir cannot inherit for reasons provided for by law then the testator may appoint a substitute in place of the original heir the substitute will instead get the inheritance which should have pertained to the original heir. From a reading of this article, you may think that substitution is only limited to a case wherein the original heir does not inherit and then it should be the substitute that should inherit. There is only one that should inherit either the original heir or the substitute. But this is not the only case of substitution because in substitution there are also instances wherein both heirs, the original heir and the substitute, they all inherit. That is covered by the case of what we call the fideicommissary substitution. So that article 857 should be modified: Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted or AFTER SUCH HEIR either one after the other or all at the same time.  2 Concepts of Substitution; 1. Direct Substitution – only one inherit. So if the original heir defaults then the substitutes inherit. So this is what is defined under article 857. 2. Indirect Substitution – the inheritance is assumed by 2 heirs so one after the other. One inherits after the other. This is covered by the rule on fideicommissary substitution under article 863. Q: What is the purpose of Substitution? A: 1. In order to avoid intestate succession. So that if the heir originally instituted defaults then there is another heir who will succeed so intestacy is prevented because as we learned testacy is favored over intestacy. 2. To prevent the descent of the estate of the testator to whom the testator does not want to succeed him in his property whether by right of representation, or by right of accretion or by right of intestate succession. If the testator will not appoint substitute, if the original defaults the property might go to persons to whom the testator does not want to give anything. 3. To allow the testator greater freedom to help or reward those who by reasons of services rendered are more worthy of his affection and deserving of his bounty than intestate heirs. 4. To enable the testator to make arrangements for his succession in the manner most convenient for him. So it is the testator who will decide who will inherit and in what order. 5. To realize some honorable purpose of the testator like the maintenance of the property within his property because in substitution the testator to some extent may preserve the property within the confines of his own immediate family and prevent the estate from descending to the other legal heirs like the brothers or sisters. Q: Can you have a substitute for a legatee or devisee? A: Yes, you can apply article 857 because this article applies to the Free Portion not to the legitime so that Free Portion to the legatee or devisee. Article 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or (4) Fideicommisary. 1. 2. 3. 4. Simple or common - article 859 Brief or compendious –article 860 Reciprocal – article 861 Fideicommissary – article 863

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 wish, or should be incapacitated to accept the inheritance

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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. In substitution at least 2 heirs are involved either in default of one then the other or one after another. Q: In substitution from whom does the substitutes inherits? A: The substitute inherits from testator not from the person substituted. In substitution under article 859, the original heir should die before the testator, or renounce the inheritance or should be incapacitated to accept the inheritance. So that if the testator will provide that the substitute should inherit AFTER the testator died then that is not a case of simple substitution. So when the disposition is silent, the testator provides in his will “I give my car to A and I also appoint B as the substitute of A.” That is the only disposition, no mention of the cause for the substitution. So when should the substitution takes place because article 859 provides, should die (predecease), should not wish (renounciation), should be incapacitated. So if the original heir dies ahead of the testator or renounces the inheritance or becomes incapacitated then the substitution shall be effective even if the disposition is silent as to the cause of the substitution. You must note under the last phrase of article 859 second paragraph unless the testator has otherwise provided. So the testator here is not precluded from providing other causes. So not only limited to predecease, renounciation, incapacity, the testator can provide for other causes but if the disposition is silent then it is presumed that the 3 causes mentioned under article 859 are the ones being referred to by the testator. Q: So you can presume the grounds but can you presume that there is substitution? For example the testator institutes A and B as heirs, if B dies, is A considered he substitutes of B? A: In this case there is no substitution because the fact that B or another heir is being constituted as a substitute must be EXPRESSLY provided for by the testator. No presumption that there is substitution. Article 860. Two or more persons may be substituted for one, and one person for two or more heirs. Article 860 talks about Brief and Compendious Substitution. BRIEF SUBSTITUTION – 2 or more persons may be substituted for one. So one heir the substitutes are 2 or more heirs. In brief substitution, we have Plurality of substitutes. Illustration: The testator provides in his will, “I hereby institute A as heir to my estate of P30T.” So the substitutes are B, C and D. A died ahead of the testator or renounces or incapacitated, B, C and D will now inherit. Q: How much will be the share of B, C and D? A: In the absence of any provision, so equal. B – P10T A C- P10T D- P10T COMPENDIOUS SUBSTITUTION – 2 or more heirs are instituted and one is appointed as substitutes for all heirs originally instituted. So we have Plurality of persons substituted. ILLUSTRATION: The original heirs are B, C and D and the substitute is A. So if none of B, C and D dies ahead, renounces or becomes incapacitated, each shall get P10T. Q: What if B dies ahead of the testator, where should the share of B go? A: The share of B will accrue to the shares of C and D. You must remember that in compendious substitution, A is a substitute for all of B, C and D. The condition here is A inherits if all of B, C and D die ahead of the testator, renounce the inheritance or become incapacitated. But if only one dies, renounces or incapacitated, here later on you will the concept of Accretion unless there are representatives so the share of B will accrue to the share of C and D. Comply first with Accretion. But if you say that A is the substitute of B then A will get the share of B if B dies ahead, renounces/repudiates or incapacitated. B C D A

Article 861. If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall

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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. Article 861 talks about RECIPROCAL SUBSTITUTION. So all the heirs are constituted as the substitutes of one another. ILLUSTRATION: 1. The testator A institutes A and B as his heirs. In case A dies ahead, renounces or becomes incapacitated, B will be the substitutes of A or in case B dies, renounces or incapacitated A will be the shall be the substitutes of B. Each heir is the substitute of each other. Q: What if the share of A is P30T and the share of B is P10T. If A dies ahead of the testator, how much will go to B? A: In this case, the share of A which is P30T will still go to B even if the share of A is actually greater than the share of B because the law says 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. So under the last phrase if the testator will provide that B will be the substitute of A but only to the extent of the amount originally given to B. So in this case the testator EXPRESSLY provides that the substitution of B to the share of A is only to the extent of the inheritance by B. So if A dies ahead and that is provided by the testator then B will only get P10T not P30T because the testator expressly provided so. 2. If there are more than 2 persons instituted. The estate is worth P300T, so A, B and C are the heirs, so each heir is the substitute of one another. Q: What if A dies ahead of the testator, how much shall be the share of B and C? According to the Civil Code they’ll have the same share in substitution as in the institution. So whatever share they get from the institution shall be the basis for their share in the substitution. So how will you get the value of the inheritance of B and C? A: First as to the institution. A dies ahead so wala na labot si A. The share of A should had been P100T had A not died ahead of the testator. A – 1/3 (predecease) B – 1/6 C – 1/2 Institution (100T) P50T P150T Substitution 50/200 * 100T = P25T 150/200 * 100T = P75T P75T P225T

Article 862. The substitute shall be subject to the same charges and conditions imposed upon the instituted heir, unless the testator has expressly provided the contrary, or the charges or conditions are personally applicable only to the heir instituted. GENERAL RULE: The substitute shall be subject to the same charges and conditions imposed upon the instituted heir. This is the rule because it is presumed that the testator intended that the subject to the same charges and conditions with originally instituted. So the substitute and the person substituted are presumed to have been placed in the same position, whatever charges or burden imposed on the original heir are also assumed by the substitute. EXCEPTION: 1. When the testator has expressly provided the contrary. Example, the original heir is subject to the condition that he should first pass the bar examination. “I hereby institute Tommy as my heir and he will only get his inheritance only if he passes the bar, in default of Tommy in case he dies ahead, then Hilfiger shall be the substitute.” If the testator expressly provides that even if Tommy will not pass the bar he will still get the inheritance so this is an express provision by the testator. 2. When the charges or conditions are only personally applicable to the person instituted.

Example, “I hereby give to Louis Vuitton my car subject to the condition that he should marry Donatella Versace. In case Louis becomes incapacitated then Georgio Armani shall be the substitute.” Q: Can you presume here that Georgio Armani should also marry Donatella in order for Gerorgio to get the inheritance? A: As a general rule, this condition is personal to Louis unless Donatella would want to marry Georgio. It cannot be imposed on the substitute. 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 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 863 defines Fideicommissary substitution (FS). So if you are asked to define what is FS you can just cite article 863 or the substance thereof.

 REQUISITES OF FS: (absence of any of the requisites will invalidated the FS) 1. The FS must be EXPRESSLY made. (article 865 1st paragraph)

Article 865 1st paragraph: Every Fideicommissary substitution must be expressly made in order that it may be valid. Q: How should you expressly made the FS? A: 1.By providing the name of the Fideicommissary substitute or that this is a FS. Example, “I hereby appoint Miuccia Prada as the Fideicommissary substitute of Caroline Calvin.” 2. By providing the obligation to preserve and obligation to transmit.

Example, “I hereby appoint Donna Karan as the substitute of Aerin Lauder with the obligation of preserving the property involved and of transmitting property in favor of Aerin Lauder.” So remember that if the term FS is not mentioned at least you must mentioned that there is an obligation to preserve and transmit, expressly made. You can also use the word, with the obligation that my poerties remain unimpaired. So similar words used. To transmit or deliver, words of similar imports. Q: What if there is merely a suggestion or an advise? “I hereby appoint A as my heir but I suggest to A that he shall preserve and transmit the property to B after A’s lifetime.” Is there FS? A: No, because it is merely a suggestion. The obligation to preserve and transmit must be IMPOSED. 2. There must be a FIRST HEIR. The first heir is called fiduciary, fiduciaro, heredero or trustee. Because the first heir here is also an heir therefore an heir must also have the capacity to inherit. He must not die ahead of the testator, he must not be unworthy, must not renounce or repudiates the inheritance. The first heir has the obligation to preserve and transmit the estate in whole or in part. A (First Heir) Obligation to PRESERVE AND TRANSMIT ______________________ B (Second heir)

Just an overview of what is a FS. The testator has 2 heirs A and B but A here first succeeds to the property, first acquired or enjoyed the property. But the enjoyment of A is subject to the condition that he should preserve the property and later on upon conditions given by the testator either upon death or repudiation or upon certain period, A will now transmit the property to B the second heir. So both A and B enjoy the property. Although A here merely enjoy uses of the property, so he is like a usufructuary because he cannot own the property because of his obligation to transmit the property to B. So B here aside from enjoying the property B also owns the property with all the rights pertaining to an owner. Because of the obligation of A to preserve and transmit, A: 1. cannot absolutely alienate the property inter vivos or mortis causa. 2. cannot make a will providing that the properties is given to another person I have mentioned that the first heir is also a trustee. But there is a distinction. TRUSTEE (TRUST) FIDUCIARY (FIRST HEIR) A trustee or a trust has no right to enjoy the property a fiduciary although he has the obligation pertaining to a trustee in a trust, he can enjoy the property USUFRUCTUARY Required to furnish a bond Not entitled to refund. FIDUCIARY Unlike a usufructuary in a usufruct, the fiduciary is not required to furnish a bond or security. Entitled to refund for expenses and for the increase in the value of the property by reason of its improvements

3.

There must be a SECOND HEIR.

The second heir is also called fideicommissary or fideicomisario or beneficiary or cestui que trust.

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Q: From whom does the 2nd heir receives the property? A: From the first heir because the 1 st heir is the one who delivers therefore the 2 nd heir receives the property from the 1st heir. Q: From whom does the 2nd heir inherits? A: In this case, even if the 2nd heir receives the property from the 1st heir, the 2nd heir actually inherits from the testator. So the 2nd heir is the heir not of the 1st heir but is the heir of the testator therefore the 2 nd heir must be capacitated to inherit from the testator, he must not die ahead of the testator, must not be unworthy, and must not repudiates the inheritance from the testator. 4. The second heir must not be beyond one degree from the first heir or the heir originally instituted.

Q: What do you mean by one degree? A: There are actually 2 views: 1. When we say degree, we mean GENERATION because under the law on succession later on you will learn that generation is derived from degree. So when you say degree, generation. Meaning, one generation apart. So the 1st heir and the 2nd heir must not be beyond one degree or one generation apart. So you count one generation from the first heir not from the testator. Meaning, the 2 nd heir must either be child or a parent of the first heir. 2. One degree may also mean ONE TRANSFER. From A to B. From B to C, no longer allowed because 2 transfer na. But you have to remember that when you say one transfer that is only contemplated when we talk of Juridical person because the main rule here is that under the Civil Code on Succession degree mean generation. When we say generation only natural person have generation.  There can be FS when the 2nd heir is a corporation provided that there is only one transfer. But when it comes to natural person only generation. 5. Both of the 1st heir and the 2nd heir must be living at the time of the death of the testator or at least conceived. Article 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. So you have to comply article 41. Any of the 1 st heir or the 2nd heir is conceived pa lang. If conceived, at least pag born na yong conceived child, pag 9 months ok land, born alive so he inherits. If less than 7 seven months must live for at least 24 hours. If died 2 hours or 23 hours after, then that child is deemed not to have inherited from the testator because he does not acquire Civil personality. Q: What if the testator institutes A as the 1 st heir with the obligation to preserve and transmit the property to B. However, before the testator dies, B dies also. Upon the death of the testator later on, will there be FS? Will the heirs of B will now inherit instead of B? A: Again you must apply the rule, they must be living at the time of the testator’s death. Even if B has its own heirs, the heirs of B will not inherit because B died ahead of the testator. So A will still inherit but there is no longer FS. Article 864. A fideicommissary substitution can never burden the legitime. Example, A is the only child of the testator and the testator has only one property, a house and lot (100T). If the testator will institute A as the first heir with the obligation to preserve and deliver the property to B who is also the child of A after 10 years. Q: Is the FS valid? A: The legitime of A is only one-half. Here, the substitution cannot burden the legitime of A, the legitime of A is only P100T. Therefore, what cannot be impaired should only be the P100T. So with respect to the other P100T worth of the property, A is the sole owner not only the usufructuary or the trustee but the owner so he can enjoy the property as to the one-half. But with respect to the other half there is FS because it is a Free Portion not part of the legitme. The FS is only limited to the Free Portion. Article 865. Every fideicommissary substitution must be expressly made in order that it may be valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements, save in the case where the testator has provided otherwise.

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As we discussed FS must be express in order to be valid. Why? Because FS is not favored by law because this kind of substitution limits the disposition of the property. Under the Civil Code on Succession socialization of ownership is one of the objectives of succession and in FS it does not really socialize ownership because the ownership of the property is limited to certain persons only or within the confines of certain family.

Q: Under article 865, what are the obligations are the fiduciary? A: 1. obligation to preserve the property; The obligation to preserve is just corollary to the obligation to deliver because how can you deliver something that you have not preserved. Moreover, preservation also implies that you are prohibited from alienating the property so you cannot sell, donate or dispose either during your lifetime or by virtue of a will. 2. obligation to deliver the property to the 2nd heir;

Q: When should the fiduciary deliver the property? A: If the institution is SILENT the date of when the delivery should be made, it should be MADE AT THE TIME OF DEATH OF THE FIDUCIARY/ 1ST HEIR. If there is a period stated by the testator then you follow such period. 3. obligation to make an inventory of the property.

This is implied from the duty of the fiduciary to make an account. So under the 2 nd paragraph, it is how the fiduciary makes an inventory of the property. Q: What are the deductions the fiduciary make out of the property? A: 1. Legitimate expenses - These expenses are limited only to NECESSARY EXPENSES for acquisition and preservation. 2. credits – refer to the advances made by the fiduciary in the nature of expenses which are necessary. So if the fiduciary has the obligation to preserve the property naturally the fiduciary has to incur expenses in order to preserve the property. Sometimes the fiduciary may advance the necessary expenses so these are the credits deductible by the fiduciary from the property. 3. improvements – refer to necessary and useful improvements. You have to remember that the amount of improvement is not the one deductible, it’s the increase of the value of the property by reason of the improvement. For example, if the property is worth P100T, the improvements are worth P50T but by reason of the improvement the property only increase by P20T, so the property is now worth P120T. What you can deduct is not P50T but only P20T, only the increase in the value of the property. If the property deteriorates by reasons beyond the control of the fiduciary naturally the fiduciary is not liable for this deterioration or destruction. Article 866. The second heir shall acquire a right to the succession from the time of the testator’s death, even though he should die before the fiduciary. The right of the second heirs shall pass to his heirs. Both the 1st heir and the 2nd heir must be alive at the time of the death of the testator. Whether the 2 nd heir dies ahead or after the 1st heir, still this would not defeat the right of the 2nd heir to inherit. Example, if the testator died in 1990 and in the will of the testator it is provided “A (1 st heir) shall deliver the property after 10 years to B (2nd heir). But in 1991, B died. So wala niabot ug 10 years. Q: Can the heirs of B get the property even before 10 years? A: You have to observe 10 years. Q: But after 10 years, can A refused to deliver the property to the heirs of B because B dies before the expiration of 10 years? A: No because B acquires right to the inheritance from the time of the testator’s death even though he should die before the fiduciary. So B’s right shall pass to his own heirs (art 866). So you still have to observe the period, but after the period A will now deliver the property instead of to B because B is already dead then to the heirs of B. Why? Because the right of B are transmitted to him from the moment of death of the decedent. He acquires right from the testator not from the fiduciary even if B predeceases the fiduciary he still get the property as long as he does not predecease the testator Q: If after 2 years B (2 nd heir) sells the property to another, prior to the actual delivery of the property to him, can he validly do that?

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A: Yes because in FS, B acquires right from the testator. So A here is the usufruct, B is the naked owner. A naked owner can sell the property although for 10 years he cannot enjoy the property. So the buyer is also subject to the right of B because B is the naked owner, but after 10 years usufruct and naked ownership are consolidated into one.

Article 867. The following shall not take effect: (1)Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in Article 863; (3) those which impose upon the heir the charge of paying the various persons successively, beyond the limit prescribed in Article 863, a certain income or pension; (4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. 1)Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; Q: Mary Kate Olsen is the 1st heir and Ashley Olsen is the 2nd heir but there is no express obligation on the part of Mary Kate to preserve the property, wala lang silent lang. “I hereby institute Mary Kate as heir to my property and then later on Ashley succeeds also to my property.” Is there FS? A: No because there is no obligation to preserve and deliver although it may be another kind of institution but not fideicommissary substitution. If Ashley was intended to inherit then she would inherit in simple substitution but not FS. (2) Provisions which contain a perpetual prohibition to alienate, and even a temporary one, beyond the limit fixed in Article 863; This refers to Perpetual prohibition, so forever. This paragraph actually applies not to FS but to institutions. Why? Because in FS, the 1st heir or the fiduciary has the obligation to preserve therefore, he has no right to dispose or alienate the property. Therefore any perpetual prohibition on the fiduciary to alienate the property is just okay because in the first place he is prohibited from alienating the property. So this is Perpetual.  If temporary still it could not be because the fiduciary if the substitution is silent meaning he is prohibited from disposing of the property as long as he lives.  If only for a period example 10 years, he is prohibited from disposing the property for 10 years but after 10 years he can alienate BUT ONLY to the 2ND HEIR. Q: What if the right to inherit is Successive? Example, “I hereby institute Gucci Westman as heir to my house and lot and all those who may inherit from Gucci are prohibited from alienating my property forever.” Is the institution of Gucci valid? A: Under 867 paragraph 2 the institution is valid but the period (perpetual prohibition) is not valid. But later on you will learn that prohibition to alienate is only allowed up to 20 years. In this case, if forever meaning it should only be up to 20 years. Q: What if the testator died and A has a child B and B has a child C. So A inherits the property after the death of the testator. After 15 years A died, naturally B inherits the property. During the lifetime of A he cannot dispose because it is prohibited for 20 years but A died after 15 years so B will now succeeds to the property. The testator provides that “A and all those who may inherit from A are prohibited from disposing the property forever.” Is B prohibited from disposing of the property? A: Yes because the testator expressly provides that A and those who may inherit from A are all prohibited from alienating the property forever but it shall only be interpreted as 20 years because the law allows prohibition up to 20 years. So B cannot dispose of the property for 5 years but after 5 years B can now dispose the property to anybody. Q: What if B died after 3 years? So may 2 years pa. So C will now inherit, is C prohibited from alienating the property for 2 years? A: No more because under article 863, it cannot go beyond one degree. Even if allowable not to alienate for 20 years but if it would entail going up to the 2nd degree than hat could no longer be allowed. Points to remember: (limitations under paragraph 2)  Only up to 20 years; and  Only up to the 1st degree.

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(3) Those which impose upon the heir the charge of paying the various persons successively, beyond the limit prescribed in Article 863, a certain income or pension; This paragraph says Successively meaning one after the other. Example, the testator institutes A as heir and A has the obligation of paying to B pension of P10T a month. After B, C the child of B P10T, and D the child of C P10T a month. Q: This institution which obliges A to pay pension or income to B monthly, is this allowed? A: Yes as long as the inheritance is sufficient to cover the same and as long as it should not cover the legitime of A if A is a compulsory heir. Q: How about to C? If B dies, A will now pay the pension to C the child of B, is this allowed? A: The 3rd paragraph says paying various persons successively is allowed but when beyond the limit it is not allowed. So allowed pa sya. So to C ok lang because C is the child of B, so you should count from B. From B there is only one degree. So under paragraph 3, you should not consider A as the 1 st heir. It should be B so that there is one degree to C. If it comes from A there is no successive payment. Heir man so bayaran nya si B dili sya counted, otherwise walay successive payment. But when you say from A as heir bayad sya to B and after B died bayad sya to C so it is successive. Q: How about to D? A: No longer allowed because this is beyond the limit prescribed under article 863 which is one degree. Q: How about simultaneously can that be allowed? A is instituted as heir and he has the obligation to pay P10T monthly pension to B, C and D, all at the same time. Is this allowed? A: Yes because there is no prohibition. The limitation under article 863 does not apply because this is not successive, it is simultaneous. So he can pay to as many persons as the testator would want as long as the inheritance is sufficient and if the instituted heir is a compulsory heir as long as the legitime is not affected. So under this patagraph, what shall not take effect here is the payment of pension or income beyond the limit prescribed under article 863 (4) Those which leave to a person the whole or part of the hereditary property in order that he may apply or invest the same according to secret instructions communicated to him by the testator. Example, the testator institutes Coco Chanel as heir to an amount of P10M so that Coco may give P1M to a certain person according to the SECRET INSTRUCTION of the testator. “I hereby institutes Coco Chanel as my heir for the sole purpose of giving to some person the P10M, the identity of such person was already revealed by me to Coco.” So only the 2 of them know the identity of the person and the purpose. Q: Is this allowed? A: No. The institution is not valid as well as the acquisition of the property. Coco cannot also get the P10M. Both the institution and the disposition are void. The following are the reason: 1. Not all person are capacitated to inherit. As in the case of a concubine. What if the instruction was to give to the concubine so it cannot be allowed. 2. If the instruction is merely secret how would we know that the heir really dispose of the property according to the instruction of the testator. He can just dispose of the property for his own benefit and just alleged that it is according to the secret instruction of the testator. Article 868. The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written. Example, I hereby institute Lancome as my 1 st heir in a FS and after 10 years Lancome will deliver the property to Iman who is a friend of Lancome. Q: Is this valid as a FS? A: Not valid as a FS, Iman is a friend not qualified as one degree. Q: What happens now, is Lancome disallowed to inherit? A: No, It is considered as not written lang. It shall not prejudice the validity of the institution of the heirs first designated. Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to

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another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply. Examples: 1. “I hereby give to Dolce a usufruct over my house and lot and to Gabbana the naked ownership.” This is valid. – This is valid 2. “I hereby give to Dolce the naked ownership over my house and lot and to Gabbana and Dior the usufruct.” – if you go back to your laws on Property, usufruct in favor of as many persons who will claim successively, hindi puede. 3. “I hereby give to Dolce the naked ownership over my house and lot then the usufruct to Gabbana and when Gabbana died then Christian will succeed to the usufruct and when Christian died, Dior will succeed to the usufruct.” – From Gabbana to Christian it is valid. But from Christian to Dior is no longer valid because it is beyond the limit under article 863. If Gabanna, Christian and Dior are just bestfriends, from Gabanna to Christian and from Christian to Dior, all are not valid because they are not one degree. It should be measured under article 863. Article 870. The disposition of the testator declaring all or part of the estate inalienable for more than twenty years are void. Article 870 provides the period within which the testator may limit the disposition of his property, so up to 20 years lang.  If 20 years valid.  If MORE than 20 years, what is void is merely the excess.  If the prohibition silent still it is considered as 20 years. Same is true if the prohibition is forever. Examples: 1. “I hereby give my property to A and A cannot alienate the property AS LONG AS HE LIVES.” If A lives for 50 years for how long would be the prohibition? – For 20 years lang. Q: What if A dies after 5 years? Should the heirs of A be prohibited for an additional 15 years? A: No because as long he lives meaning limited only to the lifetime of A.

‫ﺉ‬

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SECTION 4. Conditional Testamentary Dispositions And Testamentary Dispositions With a Term Article 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. So article 871 talks about Conditional Institution or for a certain purpose or cause. But actually there are 4 kinds of institutions: 1. Simple or Pure – that which is absolute not subject to any condition. 2. Conditional – that which is subject to a condition. 3. Institution with a Term – that which is subject to a term 4. Modal Institution – that which is for a certain purpose or cause or that which is provided under article 882 and 883. So the institution of an heir may be made conditionally. CONDITION (Obligations and Contracts) - a future or uncertain event or a past event unknown to the parties. CONDITION (Succession) – a future or uncertain event or a past event unknown to the parties upon which the acquisition or extinguishment of a right under a testamentary disposition is made subject. Q: What is a TERM? A: A day or time which necessarily comes although it may not be known when. In succession, It is also the day or time upon which the acquisition or extinguishment or a right under a testamentary disposition is made subject. In Modal Institution we learn that later under article 882 and 883. But one aspect of Modal Institution when the institution of an heir is made for a certain purpose or cause. Examples: “I hereby institute Versace as my heir.” – so simple no condition. “I hereby institute Versace as my heir to my house and lot if he passes the bar.” – conditional institution “I hereby institute Versace as my heir so that when Lacoste died, Versace will get my car.” – so the death of Lacoste is a term because although you do not know when will Lacoste die but of course Lacoste will really die. The happening is not yet certain when. “I give to Versace P1M so that he may used it in the bar operations for the Ateneo bar aspirants this September.” – This is an institution for a certain cause or purpose. When you say condition, the condition must be EXPRESS. For example, “I hereby give to X my house and lot but X must take the bar exam.” This is a condition. Q: What if X will not take the bar exam, should X get the property? A: In the case of: MORENTE v. DE LA SANTA 9 P 387 Facts: In her will, a wife provided as follows: 1. I hereby order that all real estate which may belong to me shall pass to my husband, Gumersindo de la Santa; 2. That my said husband shall not leave my sisters after my death, and that he shall not marry anyone; should my husband have children by anyone, he shall not convey any portion of the property left by me, except the one-third part thereof and the two remaining thirds shall be and remain for my brother Vicente or his children should he have any; 3. After my death, I direct my husband to dwell in the camarin in which bakery is located, which is one of the properties belonging to me. Issue: Which of these dispositions contain a condition such that if these stipulations will not followed then the husband will not get the property given? Ruling:

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1. 2.

“That my said husband shall not leave my sisters after my death, and that he shall not marry anyone.” It appears na parang condition but there is no forfeiture clause. Walang stipulation na if he does not do these things, he will forfeit the inheritance. “should my husband have children by anyone, he shall not convey any portion of the property left by me.” Here there is a forfeiture clause. a. Should my husband have children by anyone – this is a condition. b. He shall not convey any portion – this is the clause stating the forfeiture of the property should the husband have children by anyone.

So you have to distinguish. Even if it appears to be a condition but there is no statement that he should forfeit the inheritance should he not do the condition then it should not be construed as a condition. There should be statement expressly stating that the heir forfeits the inheritance if the condition is not complied with because conditions are not presumed, it must be expressly provided for. Article 872. The testator cannot impose any charge, condition or substitution whatsoever upon the legitime prescribed in this Code. Should he do so, the same shall be considered as not imposed. No burden, no substitution, no condition, no charge should be imposed upon the legitime because the legitime should not be impaired. If there is such burden, substitution, condition or charge then these burden, substitution, condition or charge are considered as not written. But as you may learn later also there is only one prohibition which can be imposed upon the legitime and that is, the testator can validly provide that the legitme should not be partitioned/divided for a period not exceeding 20 years. Although it is not really considered an impairment because the properties are still properties of the compulsory heirs although they shall not divide the properties for more than 20 years. Article 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. This article is refers to IMPOSSIBLE CONDITION. Q: In your Obligations and Contracts when impossible or illegal condition is impose what is the effect? A: The effect is that BOTH the condition and obligations are void. Q: What about in Succession? A: When there is impossible or illegal condition then the institution is still valid just disregard the impossible or illegal condition. Why? Because we are presuming here that in succession the underlying reason for the institution is the liberality of the testator not really the illegal or impossible condition. Example, “I hereby institute A as my heir provided that he should kill B.” – this is an illegal condition but still A will get the property just disregard the illegal condition. MICIAMO v. BRIMO supra Facts: Brimo here was a national of Turkey. According to the Civil Code with respect to the Intrinsic validity of the will, the order of succession, the amount of successional rights and the capacity to succeed are governed by the national law by the person whose succession is under consideration. Brimo provided in his will that his estate should be disposed of in accordance with Philippine law and he also provided in his will that should any of his brothers opposed this provision then his brother will forfeit his inheritance. Brimo here gave a legacy to his brother and that brother of Brimo opposed the provision in Brimo’s will. Issue: Should the brother of Brimo lose the legacy because he opposed the provision wherein Brimo wanted to dispose his property according to Philippine law? Ruling: The brother will not lose the legacy because the stipulation in the will of Brimo that the estate shall be disposed of in accordance with Philippine law is illegal. Therefore, his condition that should anyone opposed the provision in the Will shall forfeit the inheritance is also void. So it is as if no condition is imposed upon the brothers. The legacy is considered unconditional because the condition is void. Q: When do you consider the condition legal or illegal? A: The legality or illegality of the condition is to be determined at the time when the condition is to be performed.

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In the case of Miciamo, If upon the death of the Miciamo (upon the death since this is the time when the condition is to be performed), if for example upon his death the law really says that the property should be disposed of in accordance with Philippine Laws, then the brother opposed because he wanted to dispose the property according to the national law, in this case, the condition is valid because it is measured according to the time when the condition is to be performed. Article 874. An absolute condition not to contract a first or subsequent marriage shall be considered as not written unless such condition has been imposed on the widow or widower by the deceased spouse, or by the latter’s ascendants or descendants. Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. Prohibition to Marry/Re-Marry 1. RELATIVE PROHIBITION – This is allowed. But if this would amount to an absolute prohibition like to marry for 60 years then it is not allowed

Examples: prohibited to marry or re-marry a particular person or prohibited to marry a particular time. 2. ABSOLUTE PROHIBITION – Not allowed.

Example: prohibited to marry or re-marry anybody or prohibited to marry at all. “I hereby institute X as my heir provided she will not marry at all otherwise she will forfeit the inheritance.” EXCEPTION OF ABSOLUTE CONDITION: 1. When the condition is imposed upon the spouse by a deceased spouse. Example, A and B are married. B provided in his will “Should my wife A re-marry she shall forfeit her inheritance.” – this is valid. . 2. If imposed by the ascendants or descendants of a deceased spouse to the spouse of a deceased spouse. Example, C and D are parents of B. A and B are husband and wife. B is now dead. C provided in his will “I institute A as my heir but if A will re-marry then she will forfeit her inheritance.” – The condition is valid. But you have to remember that even if it is the deceased spouse who provides for the prohibition still that prohibition will not apply to the legitime of the spouse. The spouse will still get her legitime but only that which pertains to her as a voluntary heir (free portion) is forfeited. Q: What is the effect of absolute condition? A: The effect is the same as the illegal condition it is considered a not written. So it shall be disregarded. 2nd paragraph: Nevertheless, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood Example, “I hereby institute my friend Jennifer Garner as heir to my properties and because she is an heir she will enjoy the use and possession of my properties. But if she will marry she will forfeit the property.” – This is allowed. But you remember 2nd paragraph the heir already enjoys the property. But when she marry/re-marry then forfeited. Sa 1st paragraph the property is not yet enjoyed. Here 2nd paragraph enjoyed na meron syang usufruct or allowance or some personal prestation like free service to parlor ng testator. That is allowed and to provide that the heir will forfeit the usufruct, allowance or personal prestation that may be valid. So limited lang ha to usufruct, allowance or personal prestation. If hindi mag-fall among these three it is not considered valid ang prohibition. Q: What is the reason for article 874? A: It is public policy and the law provides that marriage is an invariable social institution. So the law really looks at marriage as sacred and it should be preserve as much as possible. So when you preserve a person from marrying or re-marrying then you are going against that policy. That is why it is prohibited.

Article 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or any other person shall as he learn of the testator or of any other person shall be void.

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So article 875 is what we call DISPOSITION CAPTATORIA. Example, “I hereby institute Calvin as my heir provided that he will also institute me as his heir.” Or, “provided that he will institute my son or my friend or anybody as his own heir.” This is what we call Disposition Captatoria. Q: Why is it prohibited? A: Because the controlling motive or the main consideration in Succession is the liberality of the testator. If you make that kind of provision then you are making testamentary privilege as a contractual privilege. You are turning your will into a contract. Q: In my example, “I hereby institute Calvin as my heir provided that he will also institute me as his heir.” Here obviously the condition that the Calvin will also institute the testator as his own heir is NOT valid, not disregarded. How about the institution of Calvin is it still valid? It should be given effect? A: Both the institution and the condition are VOID. No effect at all. So as if Calvin is not instituted. Q: What if not in the Will but the heir just execute a Deed of Donation in favor of the testator or some of other person. Can you call that Disposition Captatoria in analogous? A: No because the law says WILL. So if it is in a Deed of Donation then there is no Disposition Captatoria. Article 876. Any purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator’s death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again. Q: What do you understand by POTESTATIVE CONDITION? A: Is the condition the fulfillment of which depends upon the sole will of the debtor (in obligations and contracts) of the heir (succession). Example, “I hereby institute X as my heir provided that X shall learn how to dance.” – this is purely dependent on the will of the heir. Potestative Condition in Obligations and Contract • Valid. • But when it is Suspensive at the same time on the part of the debtor, it is not valid. Meaning, the obligation will arise if subject to a condition which is to be fulfilled by the debtor. That is what is potestative and suspensive. It is not valid because naturally the debtor would not fulfill the condition because if the condition is fulfilled then he is obligesd already. Kay debtor man sya. • Potestative Condition in Succession Valid because the heir is naturally interested in fulfilling the condition. So even if potestative and suspensive still the condition is valid.

Q: Why is it that a potestative condition must be fulfilled with only after the death of the testator or as soon as he learns of the testator’s death? Obviously at the time of death or after the death of the testator, why? A: Because as we learned will-making is ambulatory. So these institutions or substitutions are essentially revocable. So if you require an institutyed heir to comply a condition during the lifetime of the testator, you do not know if the testator will later on revoke the institution so useless lang ang pag-comply. That is why after the death of the testator. Example, the testator provides, “I hereby institute Julianne Moore as my heir to my farm but subject to the condition that she shall paint of portrait otherwise she shall forfeit.” – This condition is Potestative because it depends upon the sole will of the heir. So after the heir learns of the death of the testator as soon as possible she shall comply with the condition. 2nd paragraph: This rule shall not apply when the condition, already complied with, cannot be fulfilled again. Q: Example, during the lifetime of the testator Julianne Moore painted portrait of the testator. So after she learns of the death of the testator, should Julianne again paint a portrait? Is she required to paint again? A: Yes, this is of such nature that it can be complied again. So even if Julianne had already painted a portrait of the testator during the tesator’s lifetime. After she learns of the tesator’s death, she is still oblige to paint the portrait unless if her hands are cut-off and unless she learns to paint by her mount.☺ Article 877. If the condition is casual or mixed, it shall be sufficient if it happen or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and the testator

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was unaware thereof, it shall be deemed as complied with. If he had knowledge thereof, the condition shall be considered fulfilled only when it is of such a nature that it can no longer exist or be complied with again. This article talks about CASUAL or MIXED condition. CASUAL CONDITION – if it depends upon chance and/or upon the will of 3rd person. MIXED CONDITION – if it depends: a. Upon the will of the heir AND upon chance; or b. Upon the will of the heir AND upon the will of a 3rd person. Q: Under article 877, it should be fulfilled at any time before or after the death of the testator. In Potestative, AFTER the death of the testator. Why is there a distinction? A: Because when you say casual or mixed, naturally it does not depend upon the will of the heir. So the heir really cannot control whether or not the condition may be fulfilled. So here the law treats compliance before or after as sufficient because it is more liberal or with much liberality precisely because it is not dependent ONLY on the will of the heir. Example, “I hereby give to A my jewelry provided that A will bear a child.” – This is a mixed and also a casual condition because it does not depend solely upon the will of the heir. When you bear a child you need a partner and you still have to consider whether or not he is not impotent. So if during the lifetime of testator A already had bore a child without the knowledge of the testator then after the death of the testator it can be considered as sufficient compliance. But if during the lifetime of the testator, the testator knew that A already has a child then after the death of the testator A again shall bear another child because it can be complied with again unless of course if ligated so it cannot be complied with. ☺ Article 878. A disposition with a suspensive term does not prevent the instituted heir from acquiring his rights and transmitting them to his heirs even before the arrival of the term. Article 878 talks about SUSPENSIVE TERM. As distinguished from a Condition a Term is a day certain which must necessarily come although it may not be known when. When the disposition is subject to a Suspensive Term, meaning the term will arise so the heir is sure to inherit but the demandability of the inheritance is just suspended. So under this article, the heir is not prevented from acquiring his right when the institution is subject to a suspensive term. From the death of the testator the heir instituted under suspensive term already acquired rights in the inheritance although he cannot immediately demand. Example, A has children B and X. The testator said, “I hereby give to A my house and lot provided that A will get the house and lot upon the death of C.” So C (3 rd person) will surely die sooner or later. So death, it is a term. Q: What if before the death of C and after the death of the testator A died? What happens now, can B and X demand inheritance when C dies? A: Yes because the institution is merely subject to a Term which is the death of C. From the time of death of the testator A already acquires his rights to the inheritance although suspended ang demandability until after the death of C. If A dies ahead of C because A already acquired the inheritance then upon the death of A, B and X (children of A) can now demand the inheritance because by that time the right to demand inheritance has already ripened upon the arrival of the term. But if the institution is subject not to a Suspensive Term but to a SUSPENSIVE CONDITION, “I hereby institute A as my heir but A will get the inheritance only if C passes the bar examination otherwise he shall not receive the inheritance.” – This is a condition, passing the bar by C will determine whether or not A will get the inheritance. So upon the death of the testator, A still has no right to the inheritance because the institution is subject to a suspensive condition. It is the happening of the condition which gives rise to the acquisition of A of his right to inheritance. Q: If A dies before C passes the bar exam, can the children of A demand the inheritance when C passes the bar? A: No because A now has died without the condition having been fulfilled. Therefore, ang rights ni A to inherit did not arise prior to his death. So no rights are transmitted to the heirs of A because it is the suspensive condition which determine whether or not the inheritance will be given to the heir.  In TERM the rights will pass  In CONDITION until after the condition is fulfilled then the heir instituted has no right to demand. And as we said when institution is subject to a Condition, the acquisition of rights must be determined AT THE TIME OF THE FULFILLMENT OF THE CONDITION. So at the time of the fulfillment of the condition when the heir is already dead then there is no right to speak of.

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Q: Article 878 talks about a Suspensive Term. How about a Resolutory Term? Can the testator institute an heir subject to a resolutory term? A: The law does not prohibit it. Example, “I hereby institute A as my heir, A will get the inheritance (house & lot) but upon the death of C, A will now forfeit the inheritance.” So this is a Resolutory Term. It becomes effective at once but upon the arrival of the term the right is extinguished. So A will get the inheritance immediately prior to the death of C because the death of C is the resolutory term. Q: What if A died before C dies, what happens to the inheritance? A: The house will pass to B and X as the heirs of A. Q: What if later on C will die can B and X retained the inheritance or they will forfeit the inheritance because of the arrival of the resolutory term? A: Because the institution is subject to a resolutory term, if A dies, B and X will inherit from A the same property inherited by A. The inheritance of B and X is also subject to the resolutory term imposed upon the institution of A. So B and X upon the death of C will also forfeit the house and lot. Like the Spring cannot rise higher from its source, kung unsa ang right sa imong predecessor mura to ang ma-inherit sa imong mga successors. Article 879. If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests. Article 879 talks about NEGATIVE POTESTATIVE CONDITION, consists of not doing or not giving something. Example, “I hereby institute Shania as my heir provided that Shania for five years do not wear mini-skirt.” – This is a negative potestative condition because the hier is subject to the condition that the heir should not wear mini-skirt. Q: Can the heir immediately demand the inheritance under article 879? A: Yes. Kay kung mu-ingon ka nga dili sa, hulaton sa nato nga dili nya ma-break ang condition. What if will not wear mini-skirt forever so maghulat ka kung kanus-a makuha. So immediate demandability. Q: What do you mean by CAUCON MUCIANA? A: This is the security given by an heir who is subject to a potestative condition which is negative or who is subject to the condition which consist in not doing or not giving something. So the heir will now immediately get the property although he should first give a security, so he can enjoy the inheritance. If he contravenes the condition then naturally because he forfeits the heir will now return what he or she receives by way of inheritance and all the fruits and interest. In your book there is an example of a legatee of a monthly allowance. There is no requirement of giving a security and there is no requirement of returning the income and the fruits, so you just have to remember in our examples (monthly allowance, monthly pension, monthly income, usufruct, personal prestation) when these things are given by way of inheritance and the heir is prohibited from doing something otherwise he shall forfeit the inheritance, when this is the kind of inheritance being given there is no requirement of giving a security. If the heir contravenes the condition the heir is not oblige to return the fruits and interest because in this example we apply by analogy article 874 wherein no security is required and the heir is not required to return the fruits and interest. So pag this is the kind of legacy or devise being given you apply by analogy article 874. Article 880. If the heir be instituted under a suspensive condition or term, the estate shall be placed under administration until the condition is fulfilled, or until it becomes certain that it cannot be fulfilled, or until the arrival of the term. The same shall be done if the heir does not give the security required in the preceding article. When the institution is subject to a Suspensive Term or a Suspensive Condition, the heir instituted will NOT get the inheritance right away. The heir instituted still will have to wait for the arrival of the term or for the happening of the condition. So pending the arrival of the arrival of the term or the happening of the condition, who will enjoy the property? The Legal heirs enjoy the property but shall be placed under administration. As to who will be selected as the administrator then you will comply the provisions of the Rules of Court in your Special Proceedings. Anyway, those who are preferred in the appointment as administrators are also the legal heirs.

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So if A is instituted as heir subject to the condition that he will first passed the bar exams so until after A pass the bar exam the property shall be administered and enjoyed by the legal heirs of the testator. If it becomes clear that A will not really pass the bar exams di ba 5 times lamg noh? So after taking the bar 5 times, still A does not pass then clearly A will never pass the bar because A is barred from taking the bar exam. In this case, the property shall go to the legal heirs or in case there is substitution then to the substitute. Same there is Cucion Muciana, as long as the heir instituted does not yet furnished the security so the property shall be placed under administration. Article 881. The appointment of the administrator of the estate mentioned in the preceding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. This article speaks for the appointment of administrator. You will discuss this in your Special Proceedings but for purposes of definition, when do we have an administrator? For example, the testator dies but he has a will and his will he provides that a certain person will takes care of his property pending settlement, that person who will takes care of his property pending settlement is called an EXECUTOR because there is a will. If he dies without a will therefore, he has not appointed a person to take care of his property pending settlement, if a person is appointed by the court to take care of the properties of the testator who died without a will then that person is called an ADMINISTRATOR. Article 882. The statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregard this obligation. Article 882 talks about MODAL INSTITUTION. This came out during the 2001 Bar examination. Q: What is a Modal Institution? A: It is the institution wherein the statement of the object of the institution, or the application of the property left by the testator, or the charge imposed by him, shall not be considered as a condition unless it appears that such was his intention. 1. 2. 3. Example, “I give to A P1M so that A may use the same for his plastic surgery.” This is a Modal institution because the object of the institution which is for A to have a plastic surgery is provided. “I hereby give to A P1M so that A may apportion the P1M to the 2003 bar candidates of the Ateneo de Davao University.” “I hereby give to A my commercial building in Claveria provided A will give ½ of the monthly rental to the Scholars of the Ateneo Law School.

Q: What happens if the heir does not comply with the object or the attestation and the purpose of the institution? A: When you say there is the statement of the object, the application of the property, the charge, but the heir does not comply with it, then the heir forfeits the inheritance. Parang condition na rin because if a condition is not fulfilled the heir forfeits. But this is also distinguished from a condition because the heir does not have to comply first with the object, with the application of the property or the charge before the heir can enjoy the property. The heir immediately enjoys the property and it is when the heir does not comply with the object or the application of the property then it is the time when the heir forfeits the inheritance. So Modal Institution obligates but does not suspend. Obligates the heir to comply with the object, with the application of the property or with the charge but it does not suspend the enjoyment by the heir of the property. In the 2nd paragraph, when there is Modal Institution, the object of the institution is mentioned, the heir can immediately enjoy the property but still in negative potestative the heir must give a security. So if the heir does not comply with the object of the institution and other requirement so the heir should return the inheritance and return also the fruits and interests derived from the inheritance. Q: How do you know whether or not a provision is a mode or a condition? A: MODE CONDITION This refers to: Other things, you can say that they are condition. a. the object of the institution; b. the application of the property; and c. charge

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When you are in doubt treat the same as mode because when there is a condition the burden is heavier. A Mode merely obligates but does not suspend.

Burden is heavier because a condition obligates AND suspends.

According to Paras, when there is doubt whether or not it is merely a mode or it is merely a suggestion, because suggestion is less burdensome then you consider it as a suggestion. Article 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a manner most analogous to in conformity with his wishes. If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed to have been complied with. Article 883 talks about Substantial Compliance or Constructive Fulfillment. If there is a condition it is deemed fulfilled as long as the heir instituted performs it in the most analogous manner. In my previous example, that an heir (Michael Angelo) must paint portrait of the testator. Pag-paint ng portrait, tao pero hindi masyadong kamukha ng testator still if there is some semblance with the testator so it should be considered as SUBSTANTIAL COMPLIANCE In CONSTRUCTIVE FULFILLMENT, same example, Michael Angelo must paint the portrait of the testator but a third person does not want to get the inheritance he cut the hands of the Michael Angelo so now it becomes impossible for the heir to paint then that is constructive fulfillment. Article 884. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by this Section. Conditions are not only imposed in Institutions, in Obligations and Contracts, conditions are also imposed upon obligations. Same rule under Obligations may apply to Institutions as long as there are no conflicts. O if a specific rule is provided under Institutions with respect to conditions then you follow the rule in Institutions. Like for example, Illegal and Impossible Conditions, in Obligations and Contracts pag the obligation is subject to a illegal condition both the obligation and the condition are void. But when it comes to Institution only the condition is void. The institution is still valid. So as long as there is no conflict then you can apply the rule on Obligations but when there is a conflict apply the rule on Institution. Article 885. The designation of the day or time when the effects of the Institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered as called to the succession until the arrival of the period or its expiration. But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. Article 885 talks about Terms, the day or time. For Example, Y is instituted as an heir subject to A Suspensive Term. The testator died in 1980. Subject to the Suspensive Term that Y will get the inheritance 10 years after the death of the testator, so 10 years after the death meaning sa 1990 pa ma-enjoy ni Y ang inheritance. Prior to 1990, the legal heirs enjoy the property kay wala pa man nag-enter si Y so in the meantime sa legal heirs. How about if subject to Resolutory term? So Y is subject to a Resolutory term that after 10 years Y will forfeit the inheritance, so in the meantime Y will enjoy the property because immediately demandable pag resolutory term. After 10 years Y will forfeit. So who will now enjoy the property? The legal heirs. As to the last sentence, But in the first case he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. What do you mean by this? Example, Suspensive Term. Pending the arrival of the term the legal heirs enjoy the property, upon the arrival of the term the heir will now enjoy the property. Pending the arrival of the term, the legal heir/heirs required to enjoy the property must give security. In Resolutory term, for 10 years the heir enjoys the property and upon the arrival of the 10 th year he shall forfeit the property and goes to the legal heirs. Should the legal heirs give security? No, the law says in the fist case, pag Supenisve term. Pag Resolutory term the legal heirs are not obliged to give security so they enjoy the property without giving security. Q: What are the instances wherein the legal heirs or the instituted heirs are to give a security? A: They are as follows: 1. When the institution is subject to a Suspensive Term, the legal heirs can enjoy the property pending the arrival of the term provided that the legal heirs shall give security 9article 885);

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2. 3. 4.

In Modal Institution, the heir instituted subject to a Mode shall give security before the heir can enjoy the property (article 882); and When the institution is subject to a negative Potestative Condition or consists in not ding or not giving then the heir instituted must also give a security which is called Caucion Muciana (article 879). SECTION 5 LEGITIME

Simpler Table of Legitime (from the book of Paras) Illegitimate Children – 1/3 Surviving Spouses – 1/3 Illegitimate children – ¼ Surviving Spouse – 1/8 Legitimate Parents – ½ Illegitimate Children – ¼ Legitimate Parents – ½ Legitimate Parents – 1/2 Surviving Spouse – 1/4 Illegitimate Parents – ¼ Surviving Spouse – ¼ Illegitimate Child alone – ½ Legitimate Parents alone – ½ Illegitimate Parents – ½ Surviving Spouse – ½, 1/3, ½ Legitimate Child alone – ½ 1 Legitimate Child – ½ Surviving spouse – ¼ 2 or more legitimate children – ½ Surviving spouse - same as 1 legitimate child Legitimate Child – ½ Illegitimate child – ½ of each legitimate child

Article 886. Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs. Article 886 is the definition of Legitime. Q: Who are the compulsory heirs? A: We have article 887. Article 887. The following are compulsory heirs: (1) legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in article 287. Compulsory heirs mentioned in Nos 3, 4 and 5 are not excluded by those in Nos 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. The law has reserved for the compulsory heirs. For example, legitimate children so ½ of the hereditary estate. Therefore, if there are legitimate estate the testator has to reserve this ½ to legitimate children. The other half, the testator can just dispose it to anybody. Q: What is the purpose of legitime? A: According to the book of Paras, to protect the children and the surviving spouse form the unjustified anger or thoughtlessness of the testator. Sometimes the testator may be so mad to one of his children for not marrying a certain person for example, so the testator may disinherit that child. This is unjustified therefore the law protects the compulsory heirs. The testator cannot just deprive the children, spouse or the parents if there are no children of their legitime. Q: Under article 886, the heirs are called compulsory heirs. What do you mean by compulsory? Are they obliged to accept?

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A: The word compulsory means that the testator cannot deprive the heir of their share but the heir have liberty whether or not to accept. So it is not compulsory upon the heirs to accept but is compulsory upon the testator to provide something for his heirs. Article 887 enumerates who are the compulsory heirs. We no longer have the acknowledged natural, natural children by legal fiction we only have illegitimate children. So the following are primary compulsory heirs: legitimate children; widow or widower; illegitimate children. These 3 are called PRIMARY COMPULSORY HIERS. So whenever they survived the testator then they inherit all at the same time, they concur with each other. The legitimate parents are SECONDARU COMPULSORY HEIRS. So in default of the legitimate children then the legitimate parents inherit. Q: How about if there are illegitimate children, can the legitimate parents inherit? A: Yes because only in default of legitimate children. So legitimate parents or illegitimate parents concur with illegitimate children. Q: How about brothers and sisters? A: They are not mentioned under article 887 therefore brothers and sisters are not compulsory heirs. Although when we discuss legal or intestate succession brothers and sisters are legal heirs. So if there is no Will brothers and sisters inherit. If there is a Will the testator can omit the brothers and sisters even if he has no parents, children, spouse only a brother or a sister he can deprived the brother or the sister of the inheritance because the brother or a sister is not a compulsory heir. Article 888. The legitime or legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. So you know that the legitime of legitimate children is ½. If they survive with the widow or widower, the same as the share of the legitimate child. If there are illegitimate children ½ of the share of a legitimate child. Q: Where will take the portion being given to the surviving spouse and the illegitimate children? A: Taken out of the free portion. So you can say that the free portion is not a real free portion because you take the legitime of the surviving spouse and the illegitimate children out of the free portion. So it really called the FREE DISPOSAL, the real free portion. Your book mentions Mejora, this is provided under the Old Civil Code in the concept of the betterment. Meaning, di ba the testator is obliged to give for example to his legitimate children 1/2 , so if there are 5 children, ½ is divided by the number of legitimate children. If the testator has a favorite child, he can give the mejora to the favorite child, so parang betterment to at least give him a share which is higher than his other children. But now it is abolished because anyway if you favor that child you can give to him out of the free portion. So the purpose is still served. Before the legitime is 1/3 mejora 1/3. Now the legitime is ½ free portion is ½. ILLUSTRATION: Estate P500T Legitimate child (1/2) = P250T 2 Legitimate children (1/2 divided by the number of children) = P250T / 2 = P125T each Legitimate child (1/2) = P250T Surviving Spouse (1/4) = P125T 2 legitimate children (1/2 divided by the number of children) = P250T / 2 = P125T Surviving spouse (same as the legitime of a legitimate child) = P125T Tip by atty. Yangyang: unahon sa ninyo compute ang sa children later na ang spouse provided there are 2 or more legitimate children ☺ 2 legitimate children (1/2 divided by the number of children) = P250T / 2 = P125T each Surviving spouse (same as the legitime of a legitimate child) = P125T 3 illegitimate children (1/2 of the share of a legitimate child) = P125T (atty. yangyang: if lumampas it will be answered by later articles as we go along ☺) Article 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estate of their children. The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.

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Article 890. The legitime reserved for the legitimate parents shall be divided between then equally; if one of the parents should have died, the whole shall pass to the survivor. If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. ILLUSTRATION: The estate is P500T 1. 2. 3. If the only survivors of the testator are his parents, mother and father - their legitime is ½. P250T divided equally between them : 250T / 2 = P125T each If the mother is dead, the whole P250T shall go to the father. If the father is also dead, the grandparents of the maternal side and the grandparents of the paternal side, the P250T shall be divided equally between grandparents of the maternal and the paternal side. P250 / 2 = P125T maternal grandparents; P125T paternal grandparents

Principle: THE NEARER EXCLUDES THE FARTHER. Those in the same degree shall inherit equally. Article 891. The ascendants who inherits from his descendants any property which the latter may have acquired by gratuitous title from another ascendant, or 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. Article 981 talks about RESERVA TRONCAL. ILLUSTRATION: 1. A child receives property from the ascendant (mother) by will GRATUITOUSLY which means out of liberality, wala gibaligya, no consideration whatsoever. So (1) Succession either testate or intestate; (2) Donation; (3) waiver; (4) Remission (5) Condonation. Not necessarily that the mother should die basta gratuitous ang transfer from the ascendant to the descendant. 2. If the child dies WITHOUT ANY HEIRS, same property is inherited by the ascendant (father) BY OPERATION OF LAW, either the child died without a will or the child died with a will but the legitime of the father. 3. The father is obliged the same property which he receives from the child in favor of the relatives of the child who are within the 3rd degree who belong to the line from which the property came. So from the line of the mother. People involved in Reserva Troncal: 1. Ascendant (mother) – Origin 2. Child – Propositus 3. Ascendant (father) – reservor or reservista 4. 3rd degree relatives – reserves or reservatarios 1. ORIGIN The Origin must be a Legitimate relative either the legitimate mother or father or the law says, brother or sister (legitimate). The law says, the ascendant, or 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. The brothers and sisters referred to by the law are HALF BROTHER OR SISTER BUT LEGITIMATE. Meaning, nagpakasal sa una then nanganak, pagkahuman namatay then nagpakasal napud ug usab. Q: Why is it so? A: Because if you say full blood brothers and sisters so walay distinction sa line. Example: M (mother) is married to A. They have 2 children C and D. A died. M subsequently married F. M and F have 2 children B and X. M ♥A M♥F

C&D

B&X

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Si X naghatag sya property kay B, B died. So na-nherit ni F ang same property. If you say full brother or sister and F is obliged to reserved the property for the benefit of the 3rd degree relatives of the descendants belonging to the same line from where the property came, so unsa man ang line ni X? Dib a ang line ni X is the line of F and M? So walay distinction sa line because the relatives of X are also the relatives of F or M. To illustrate: M♥ F

B&X

F No distinction

C

F There’s distinction

B

3rd degree --------- B

If na-receive ang property from C, naadto kay B namatay si B naadto kay F, F is obliged to reserve the property in favor of the 3rd degree relatives of C who belong to the same line as C. So there is distinction. The relatives of C are not the relative of F. The purpose of Reserva Troncal is to prevent the property from straying from one line to the other line. So pag si C half brother or sister who is not the relative of F. Therefore, you can say that there is a different line so the property of C should remain in the line of C and should not stray to the line of F. If the Origin sold the property to the descendant then there will be no occasion for Reserva Troncal to arise, the transfer gratuitous mere liberality. The property transferred from the origin to the propositus must be OWNED by the origin. Examples: 1. The mother gave a lotto ticket to his son. The ticket won P50M. So is P50M reservable? Will it eventually gave rise to Reserve Troncal? No, the P50M comes from PCSO not from the mother. It would have been a different story if the mother kept the ticket and the ticket won, the proceeds are taken by the mother, sya na ang owner, then she gave it to his son. 2. In case of Insurance, the proceeds come from the insurance company not from the insured. It must be Own by the Origin. Reserva Troncal will give rise only after all the situations have been complied with. Sa origin pa lang so magstart wala pa Reserva Troncal. So the origin can just dispose of the property, no prohibition upon the Origin to dispose of the property. However, subject to the Rule on Inofficious Donations which we will learn later on when we will discuss Collation. 2. PROPOSITUS The Propositus must be a descendant of the Origin or of the half brother or half sister. Again, it must be a legitimate relationship. Q: After the propositus has received the property, is there already Reserva Troncal? A: Not yet. The propositus there being no obligation to reserve yet on his part, he can just dispose the property to anybody. He can use the property or he can destroy the property. That is why the propositus is called the ARBITER of the reserve because it is within the hands of the propositus whether or not the reserve will arise. If the propositus will destroy the property then Reserva Troncal cannot arise. If the propositus reserves the property until his death then reserve troncal may arise. If the propositus has children of his own then reserve troncal cannot arise. Upon the death of the propositus (descendant) the obligation to reserve will now arise. So namatay ang propositus with no issues, no children, the same property received from the origin is transferred to the Reservor (ascendant) by OPERATION OF LAW. Q: How is the transfer by Operation of Law? If the propositus died with a will then what portion of the property is transferred by operation of law supposing that the propositus only has the property left by the origin is a house and lot? A: When there is a will what is transferred by operation of law is the portion corresponding to the legitime of the reservor. If there is NO will so intestate succession, the entire property is transmitted to the reservor by Operation of law. 3. RESERVOR Q: What is the nature of the ownership/possession of the reservor? A: The reservor here is not merely a usufructuary, he is the full owner of the property. He owns the property but his ownership is subject to a RESOLUTORY CONDITION. So upon the happening of the resolutory condition the ownership of the reservor will be extinguished.

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Q: What is that resolutory condition? A: The resolutory condition is that upon the death of the reservor there must be reservees or relatives of the descendant propositus who are LIVING AND WITHIN THE 3RD DEGREE OF CONSANGUINITY from the descendant. The happening of this resolutory condition then the ownership of the reservor is extinguished. Q: Can he alienate the property? Can he donate or can he pledge? A: Yes because he is the owner of the property. Ownership includes the right to dispose or to use. But the disposition again is also subject to the resolutory condition that upon the death of the reservor (ascendant) if there are living reservees then the effect of the alienation becomes ineffective. Q: So if the reservor acquired personal properties from the descendants by operation of law and now the reservor sell the property to a third person and upon the death of the reservor there are still living reservees, what will now happen to the sale? Should the reservor really get the property back from the buyer to return it? A: No, the obligation of the reservor if it is a personal property is not to return but the estate of the reservor must pay the value to the reservees, value lang. Q: For example the reservor sold house & lot to another person (3 rd person) and upon the death of the reservor there are still reservees living, so the resolutory condition happens, the ownership of the reservoir is extinguished therefore, the sale must also be extinguished. What is now the obligation of the reservor and of the 3rdd person who has acquired the property? A: If the 3rd party is NOT innocent, meaning he knows that the property is subject to the reserve troncal then that 3 rd party is obliged to return the properties to the reservees. But if the 3 rd party is an innocent purchaser or innocent mortgagor then the right of the reservees consists merely in demanding a similar property from the estate of the reservor or the value of the property from the estate of the reservor. Q: So during the subsistence of the Reserva while the reservoir is alive, so wala pa na happen ang resolutory condition, what are the obligations of the Reservor? A: 1. the reservor must make an inventory of the property received by operation of law from the descendant; 2. He must register the inventory with the Registry of Property; 3. The property received from the descendant if Real property then the reservor has the obligation to furnish a bond, mortgage or security to insure the safe delivery of the property to the reservees who might be living at the time of the death of the reservor; 4. If the Real property is already registered then the reservor is oblige to annotate the reserva, if for example, a land title, annotate at the back of the title and he must do this within 90 days from the time he received the property from the descendant or from the time the court makes a decision that the reservoir is entitled to received the property. If the reservor does not make the annotation then the reservees have the right to file an action to compel the reservor to make the annotation but they must wait after the lapse of 90 days; If the reservor despite of the request that he should make an annotation but the resevor does not comply then the reservees may require the reservor to instead furnish a bond, mortgage or security. Dili puede na both ha, naannotate tapos naa pa gyuy mortgage. The annotation itself is sufficient protection or if no annotation, the bond, security, or mortgage. Q: There is also a case when the property received from the origin to the propositus and from the propositus to the reservor has not yet been registered, upon receiving the land, it is now the reservoir who files a petition to register the land, in a land registration case. Now, while the land registration proceeding is still going on, what are the right of the reservees? A: The reservees may intervene in the proceeding not for the purpose of opposing the registration but for the purpose of having their claim to the reserve being annotated to the title. Q: What if the reservees have not intervened in the proceedings, for example walang annotation at the back of the title na free, what now are the rights of the reservees? A: In your Land Registration subject within 1 year dili pa man na sya incontestable ang title. Within 1 year puede ka maka-file for review of decree of registration, so within 1 year they can still cause the annotation, they can have the decree re-open. But after 1 year they can no longer do that. If they are innocent purchasers and upon looking at the title walang annotation ng reserva then the property itself wala na. If the purchaser is NOT innocent purchaser even if 1 year has already lapsed and wala gihapon napa-annotate sa mga reservees ang reserve then the purchaser may still be obliged to return the property. Why? Because knowledge is equivalent to registration, the knowledge on the part of the purchaser as to the existence of the reserva is equivalent to the registration of the reserva. So if innocent purchaser for value ang nakakuha ng property which is supposed to be subject to the reserva but the title is clean, the remedies of the reservees are: 1. demand payment from the estate of the reservoir; or 2. demand payment from the Assurance Fund under the Land Registration Authority.

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5.

The reservor also must not substitute the property with another. The same property received from the origin and from the descendant must be same properties to be given to the reservees; Exceptions: 1. if the property is sold to the innocent purchaser for value, in effect the obligation of the reservor is substituted with the obligation to pay money to reserve; 2. if the property is lost or destroyed without the fault of the reservor then the obligation is extinguished.

So the concept of Reserva Troncal is actually a burden or restriction or a charge on the legitime of the ascendant. Di ba the reserva must be covered in the legitime because the transfer must be by Operation of law tapos even if the property is part of the legitime of the ascendant still his right with respect to the property are restricted because the property is subject to the reserva therefore it is an encumbrance upon the ascendant reservor. 4. RESERVEES Upon the death of the reservees meaning if there are still relatives within the 3 rd degree of the propositus who are still living then the ownership of the reservor is extinguished, the property will now go to the reservees. Q: From whom do the reservees inherit? A: From the propositus not from the reservor. The reservor are actually the conditional heirs of the propositus. The reservees already have rights to the property but their inheritance is subject to the condition that they must be living at the time of the death of the reservor. That is why during the lifetime of the reservor the reservees can compel the reservor to furnish bond, security, mortgage or to annotate the reserva because they already inherit although conditional. But the right of action of the reservees commences only from the death of the reservor. As long as the reservor is alive if the reservor sells the property to the 3 rd person the reservees cannot impugned the sale made by the reservor. They only have the right to demand that the reservor annotate the reserva or that the reservor give security, bond or mortgage. Q: How about the reservees would want to sell the properties themselves while the reservor is still alive, can the reservees do that? A: Yes but the sale is subject to a condition that the reservees must be alive upon the death of the reservor otherwise the sale made by the reservees becomes ineffective. The authority for this is article 1461 of the Civil Code. Article 1461. Things having a potential existence may be the object of the contract of sale. The efficacy of the sale of a mere hope or expectancy is deemed subject to the condition that the thing will come into existence. The sale of a vain hope or expectancy is void. This is actually an sale of expectancy. Meaning, you can sell a property which has potential existence but subject to the condition that it must exist. So when the reservees sell the property the sale is subject to the condition that they must be living at the time of the death of the reservor otherwise wala na sale, invalidate. This is not a sale of future inheritance because the reservees inherit from the propositus, namatay naman ang propositus although wala pa namatay ang reservor. So this is a deferred inheritance not future inheritance. The law says 3rd degree relatives of the propositus. How do you know that this relative is within the 1 st, 2nd or 3 ? 1st degree: parents, 2nd degree: grandparents, brothers and sisters 3rd degree: great grandparents, uncles and aunts, nephews and nieces Collateral relatives: Uncles & aunts, brothers & sisters & nephews & nieces Relatives in the direct line: parents, grandparents and the great grandparents Illustration below:
rd

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Q: Should you give the property to all of them, kay 3rd degree man sila tanan? A: The law says WITHIN the 3 rd degree. We have to apply the rule on legal succession “the nearer excludes the farther,” and those who are in the direct line are preferred over those who are in the collateral line. So nearer ang 1 st kaysa sa 2nd, nearer ang 2nd kaysa sa 3rd, subject however to the rule on the Right of Representation. Q: Between the parents and the grandparents, who are preferred? A: The parents. Q: Between the grandparents and brothers & sisters? A: The grandparents. Even if they are in the same degree but those who are in direct line are preferred over those in the collateral line. Q: Between the brothers & sisters & the nephews and nieces? A: We have to apply here the rule on the Right of Representation. For example, the descendant has brothers & sisters A, B and C. A died leaving children D and E. B has children F and G. The remaining relatives of the descendant who are within the 3 rd degree are his brothers and sisters and the children of his brothers & sisters, the nephews & nieces. In this case, the 3 rd degree relatives are B, C, D and E. This is because upon the death of A, by virtue of the right of representation D and E are raised to the status of A. How about F and G? No right of representation because B is still alive. If the property is worth P30T: B – 10T; C – P10T; D & E – P5T each. Q: How about if A, B and C are all dead, who will now inherit? A: The nephews and the nieces (D, E, F & G) will now inherit. By how much? The nephews and the nieces will inherit in their own right by the death of their parents. So, P30T is divided by 4. Q: What if G is dead but he has children H and I, will D, E, F and H and I (children of G) inherit? A: H and I cannot inherit because they are no longer relatives within the 3 rd degree. The rule is, subject to the right of representation provided that the representatives are still within the 3rd degree. Q: Another case, same facts but A is half blood, B and C are full. The remaining relatives of the descendant within the 3rd degree are his brothers and sisters, one is of the half blood and 2 are of the full blood? So who will now inherit? Only the full blood? A: All of them will inherit provided na legitimate gihapon. Q: How much should each inherit? A: Under article 848, do you remember na walay distinction pag half, equal lang? you should not follow that rule because that is the rule on testate succession. Now reserva troncal merelt determines the class or group of relatives who are going to inherit but as to how much would be the share of the relatives you have to follow the rule on legal or intestate succession because there is no will. Under legal succession, the brothers or sisters of the full blood inherit twice as much of the bro/sis of the half blood. A (half) B (full) ½ 1 .5x x C (full) 1 x = P30T = 12T 2.5x Thus, A - 6T; B - 12T; C - 12T = P30T

Q: Supposing the grandfather gave by way of donation (parcel of land) to the descendant (grandchild). The descendant died without a will so the property is transferred to his father. The descendant’s mother is dead. Upon

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the death of the father, the parcel of land is now being claimed by the grandmother and the brothers and sisters. The bro/sis is 2 degrees from the descendant. The grandmother is also 2 degrees. To whom shall the property go? A: The brothers and sisters because reserva troncal is in favor of relatives within the 3 rd degrees in whose line the property came. The grandmother is not within the line of the grandfather being the wife of the former. So walang blood relationship. The grandmother does not belong to the line of the grandfather. The brother and sisters belong to the line of the grandfather because the brothers and sisters of the descendants are also the grandchildren of the grandfather. 1. 2. If the property deteriorates, the obligation of the reservor’s estate upon hid death includes: reimburse the reservees for the value of the deterioration from the security furnished by the reservor; or claim reimbursement from the estate of the reservor.

Q: For example, parcel of land, during his lifetime the reservor gumawa sya ng swimming pool sa property. Upon the death of the reservor, to whom shall the swimming pool go, estate ng reservor? Syempre ang land go to the reservees but how about he swimming pool? A: Syempre part ng land so accession. However, the reservees are merely naked owners, the right to enjoy belong to the estate of the reservoirs the heirs. Thus, Usufruct goes to the heirs of the reservoirs and naked ownership to the reservees. Of course if the reservees would pay the value of the swimming pool then the right to enjoy will now belong to the reservees and the naked ownership thereof. Q: How about the value of the reserva? For example, the land owned by the origin worth P500T. The descendant propositus inherited the land worth P500T. Upon his death, the descendant left also properties of his own aside from the P500T, which is worth P1M. The descendand propositus has no issues so all of his properties will go to the ascendant (father). The descendant made a will, “I hereby give all my properties to my father.” So the ascendant by operation of law gets the legitime di ba pag may will only the legitime pass by operation of law? Pag ang father wala gihapon properties, how much should be the value of the properties came from the propositus should the reservor (father) reserve in favor of the reservees? Take note that P1M is not included because it is owned by the descendant, only the P500 is subject to reserva because it is the property received from the origin. So how much, the entire P500T? A: We have 2 theories on this, Reserva Maxima and Reserva Minima. 1. Under the theory of RESERVA MAXIMA, all that can be embraced or included in the legitime shall be considered as reservable property.

Q: How much should be the legitime of ascendant in estate worth P1.5M? A: Divided by 2 so P750T. The reservable property is that which can be embraced in the legitime. So how much can be embraced in the legitime worth P750? The whole P500T. Therefore, the entire property of P500T is reservable. Out of the legitime P500T is reservable and P250T is own property of the descendant. 2. Under the theory of RESERVA MINIMA, only HALF of the property received from the origin then to the descendant is transferred to the ascendant reservor as legitime. So half of P250T (P125T) go to the ascendant by way of legitime and half of P500T (P250T) will go to the ascendant by way of legitime. So the under the theory of reserva minima, the reservable property is only P250T because only P250T is part of the legitime. (Did u understand? NO daw mam ☺)

Again, di ba ang nadawat nya is P500T + 1M. Ang P1M is own property of the descendant. P500T is the property received by the descendant from another ascendant (origin). Under RESERVA MINIMA, only half sa property received from the origin then to the descendant is reservable. Half of P500T and half of 1M nuadto sa iyang legitime mao na iyang legitime is P750T. Pila man ang niadto sa legitime? P250T lang. That is why ang legitime composed of P500T from the property itself of the descendant and P250T from the other ascendant (origin). Meaning, ang reservable property is only P250T. This Reserva Maxima theory is more in keeping with article 891. Reserva Minima is more in keeping with equity and justice. What is followed is reserva minima. Another example, P1M is received from the origin by the descendant. The descendant also acquired property worth P500T. Upon the death of the descendant leaving no children, the entire property will go to his ascendant who is living (father). So the total property received by the father is P1.5M. P1M reserva, P500T not reserva. RESERVA MAXIMA: legitime is P750T. The property received from the descendant which the descendant in turn received from another ascendant is P1M. Under reserva maxima, P750T lang ang reservable property because this is the only amount that can be embraced under the legitime.

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RESERVA MINIMA: ½ of P1M is the legitime (other half Free portion); ½ of P500T also legitime (other half free portion),so a total of P750T ang legitime. The property received from the ascendant then to the descendant included in the legitime is P500T lang. So out of P1M only P500T is reservable. This is so if the descendant propositus died living a will. Kung walay will, how much should be the reservable property? Of course the ENTIRE property which came from the other ascendant is reservable (P1M) because the entire property here transferred to the ascendant by operation of law kay wala man will. When there is will, only that part which corresponds to the legitime is transferred by operation of law. That is why you have to bother with reserva maxima and reserva minima. But if there is no will then everything is reservable. Q: How is RESERVA MAXIMA extinguished? A: 1. The death of reservor. – because the property will now go to the reservees, no obligation anymore to preserve. 2. Death of ALL the would-be reservees ahead of the reservor. – because the reservees are merely conditional heirs, the condition being that they should survive the reservor. 3. Loss of the reservable properties without the fault or negligence of the reservor. – because as we said in your Obligations and Contracts, loss of the thing without the fault of the obligor will extinguished the obligation. And necessarily, the property involved in reserva is a determinate property because it is the very same property received from the origin. 4. Prescription – adverse possession as against reservees by the reservor or a stranger of the reservable property as FREE from the reserva. So if Real property 30 years, personal property 8 years. It is 30 years because the reservor here is really in bad faith, (kay in good faith 10 years lang man), of course the reservor must be in bad faith because he knows that the property subject to reserva but he possesses it as free of the reserva. But in order for prescription to run, the fact that the reservor repudiates or hold the property free from the reserva must be communicated to the reservees, the reservees must know that the reservor is holding the property as free from the reserva otherwise there will be no prescription. 5. Registration under the Torrens System as free from the reservation. – You have 1 year within which to annotate the reservation but after that if the property is transferres to an innocent purchaser for value then the reserva is extinguished but the reservor is still liable to the reservees for the value of the properties and damages in some cases 6. Renunciation or wiaver by ALL reservees AFTER the death of the reservor. – waiver must be after the death because if before it would be contrary to the nature and purpose of the reserva. Q: If the reservable property is extinguished by the government, is the reserva extinguished? A: No because will just continue on the indemnity, the just compensation. Q: If the reservable property is insured and then destroyed, is there still reserva? A: Yes, on the insurance indemnity or the proceeds thereof. Article 982. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. You have memorized the shares so just take note. The law says In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. Meaning, the guilty spouse shall be disqualified from disinheriting from the innocent spouse but the innocent spouse can still inherit from the guilty spouse. Q: How about if there are 2 or more legitimate children, can the surviving spouse from the deceased if there was legal separation and the deceased spouse gave cause for legal separation? A: Yes of course still applicable. Article 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This one- fourth shall be taken from the free portion of the estate. In here, the surviving spouse concurring with the legitimate ascendants. Observe that the share of the legitimate ascendant is one-half. In order to memorize effectively, you have to memorize first the share of the surviving spouse. Article 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of

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the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. The surviving spouse surviving with illegitimate children, so one-third. In this case, the share of the surviving spouse is NOT TAKEN FROM THE FREE PORTION. 1/3 for the surviving spouse and 1/3 for the illegitimate children so 2/3 lang. The other 1/3 is free portion. Article 895. The legitime of each acknowledged natural children and each of he natural children by legal fiction consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed the free portion, and that the legitime of the surviving spouse must first be fully satisfied. Note that under the Family Code, there are no longer acknowledged natural, natural child by legal fiction, we only have legitimate or illegitimate children. So instead of article 895 it has a similar provision which is article 898, illegitimate children. We follow article 898 but applying by analogy article 895. Because 895 deals also with acknowledged natural, natural, article 898 illegitimate lang. ASSIGNMENT: 1) Estate P2.5M Surviving: 3 legitimate children; spouse; 1 illegitimate child Answer: 3 legitimate children = Surviving spouse 1 illegitimate child Total legitimes Free Portion ½ of P2.5M = P1, 250,000 (P416,666.67 for each legitimate child) = P416, 666.67 (same as the share as each legitimate child = P208,333.33 (1/2 of each legitimate child’s share) = P1,875,000 = P625, 000

In this case, the estate is enough to satisfy the legitimes of all compulsory hiers that survive the testator. 2) Estate P2.5M Surviving: 5 legitimate children; spouse; 9 illegitimate children Answer: 5 legitimate children = ½ of P2.5M Surviving spouse 9 illegitimate children = P1,250,000 (P250,000 each) = P250,000 (same as the share as each legitimate child) = P125,000 (supposed share of each illegitimate child. However the free portion would not be sufficient) = P125,000 / 1,125,000 * 1,000,000 = P111,111.11 = P 111,111.11 = proportionate share of each illegitimate child

In this case, there is no free portion enough to satisfy the legitimes because 9 illegitimate children. You just have to give first the share of the legitimate children and the surviving spouse. The last priorityare the illegitimate children. Whatever remains just give to the illegitimate children. Article 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the free portion at the disposal of the testator. You have to remember that illegitimate children DO NOT excludes the legitimate parents or ascendants whereas legitimate children excludes legitimate parents or ascendants. Article 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose. Article 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the

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surviving spouse shall be the same as that provided in he preceding article. Article 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eight of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to onefourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eight of the estate. Article 900. If the only survivor is the or widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living for more than five years. In the latter case, the legitime of the surviving spouse shall be hat specified in the preceding paragraph. GENERAL RULE: ½ EXCEPTION: 1/3 if: 1. The marriage was performed in articulo mortis (point of death); and 2. The testator died within three months from the time of the marriage. Example, Sa ship sweetheart pa lang sila sa ship. Tapos naay terrorist napusilan ang lalaki hapit na sya mamatay. Ang captain di ba authorized sya mag solemnize? Luckily nabuhi man ang lalaki, so wala sya namatay. But because of infetion namatay gihapon sya within 2 weeks. So in this case, it is presumed that the purpose of the wife in getting married to the dying spouse is to for financial gain or profit. That is why, her share is reduced to one-third. But note that the spouse who is at the point of death during the marriage must be the one who should die. Because in my example, if it was the wife who died, dili man sya ang nasa articulo mortis at the time of the marriage, it was the husband. So if it was the wife who died dili ma-apply ang 1/3 so ½ lang gihapon ang share sa husband. And the cause of death must be the very same reason why the marriage was in articulo mortis so katong napusilan. Kung namatay sya because of disease or nabungguan sya dili na sya included. EXCEPTION TO THE EXCEPTION: Surviving spouse gets one-half even if the testator or the testatrix died within three months from time of celebration of marriage, the couple had been living previously as husband and wife for more than five years. In my example, namatay sya within 2 weeks namatay sya because of gun shot infection, if they have live together for five years (at least 5 years) prior to the marriage then the legitime of the surviving spouse will still be ½ because you cannot really say that the purpose was for financial gain. They must have love each other noh kay 5 years na gud ♥ This provision is only true with respect to Testate Succession. When it comes to intestate or legal succession, this provision does not apply. Article 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator. Article 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. We know that illegitimate children are entitled to inherit from their parents. If for example, the illegitimate child died ahead of his/her parents and he also has his own children legitimate or illegitimate, all of these children will inherit by Right of Representation. So they will get whatever rights their parents have. The right of an illegitimate child pass to his children whether legitimate or illegitimate. Q: What is the significance of this article? A: Because if you are illegitimate, your legitimate and illegitimate children can inherit. Whereas in the case of a legitimate child, his own illegitimate child cannot represent. There is now a bar. Parang the illegitimate children are placed in a better position than the legitimate children. But that is what is provided under the law. The law is hard but that is the law. Take note that even both children who inherit legitimate and illegitimate still ang division sa ilaha lahi na 2:1.

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This article deals with the estate of an illegitimate child. So the legitime of illegitimate parents. How do the parents become illegitimate? Illegitimate ka pasabot imong parents illegitimate. The illegitimate parents are only secondary compulsory heirs because they inherit their legitimes only in the absence of the legitimate or illegitimate children or descendants of the decedent. Article 903 refers to only to illegitimate parents and not to other ascendants like the parents of the illegitimate parents. Thus, the rule here is different from the case of the grandparents of a legitimate child, for they may inherit in default of both legitimate parents. Article 904. The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. The only way to deprive the compulsory heirs of their legitime is by expressly disinheriting them in a will, wherein the legal cause therefor shall be specified. Only the Free portion of the estate that the testator can give away is subject to certain condition, substitution or burden. But the law states except in cases expressly specified by law. Q: What are the burdens that the testator may impose on the legitime? A: In accordance with law: 1. a prohibition to partition the legitime is valid for a period not exceeding 20 years. – This is a valid encumbrance on the legitime. 2. Reserva Troncal is also a burden insofar as the legitime of the reservor or reservista is concerned. Article 905. Every renunciation or compromise as regards a future legitime between the person owing it and his compulsory heirs is void, and latter may claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. The right to a future legitime is a mere expectancy, an inchoate right regarding future inheritance, hence, it cannot be made the subject of a contract inasmuch as it is against public policy. The nullity may be claimed by any compulsory heir who has been prejudiced. Q: Suppose the compromise is made among the compulsory heirs themselves, would such compromise be valid? A: No, such a compromise would still not be valid, not because no contract may be entered into upon future inheritance except in cases expressly authorized by law under article 1347. A compromise is indeed a contract. Q: Can there be a renunciation of or compromise on present legitime? A: Yes, here the subject matter is no longer future inheritance. Article 905 speaks of future inheritance. Article 906. Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied. Article 906 talks about completion of the legitime. “Any compulsory heir to whom the testator has left by any title xxx.” So what title? By means of donation, condonation, remission, devise, legacy as long as the giving of the title is gratuitous. Kung gibaligya sa compulsory heir that is not covered under article 906. For example, in the will the testator has left his son a P50T. But supposedly the legitime of the son should have been P70T. Should you annul the institution of the heirs just because the compulsory heir who is supposed to receive P70T was given only P50T? No, in this case, you just complete the legitime. So you add P20T to the son whose legitime has been impaired. This is the rule under article 906. COMPLETION OF LEGITIME (ART 906) Part of the estate is given to the compulsory heirs although the amount is equivalent to the legitime but less than the legitime. All you have to do is to give whatever amount that is lacking. The will remains PRETERITION There is total omission so nothing is given to the compulsory heir during the lifetime or in the will, nothing at all in the inheritance. We annul the institution of heirs. The will is invalidated but legacies and devises

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which are inofficious shall be respected. Article 907. The testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive. Article 907 talks about testamentary disposition that impair or diminish the legitime of compulsory heirs. For example, A – son; B – friend. The estate is worth P500T. In the will the friend is given P300T. So the remaining is P200T. What should be the legitime of the son being the only survivor? It is 1/2, so P250T. Because of the legacy to B of P300T, so impaired ang legitime kay P200T na lang ang mabilin. So because the P300T impair the legitime of the son, it should be reduced by P50T, and this P50T is added to the legitime of the son to complete his legitime (P200T + 50T = P250T). The law says testamentary disposition, meaning, devise, legacy or institution of a voluntary heir. But what about donation inter vivos? Will this article apply? By analogy this article applies. So donations which impair (donation inter vivos) the legitime meaning inofficious donation shall be reduced on petition of the compulsory heirs. So when you apply inofficious donation only the compulsory heirs can assails that the donation shall be reduced because it impairs their legitime. Q: How about the creditor can they petition that donation inter viivos which are inofficious be reduced? A: No they cannot. (I will explain later ☺) Article 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them. Q: What should be the value of the estate? A: Under article 908 from the value at the time of death should be deducted the debts or charges not imposed by will and should be added donations which are subject to collation. ILLUSTRATION: The estate at the time of death P1M. The debts & charges not imposed by will meaning, charges which are payable even if there is no will. So pag-legacy di ba its not included these because although these legacy or devise is a charge on the will, it is imposed in the will, so it is not deducted. Only the debts which will otherwise be payable even if there is no will. Q: What donations which are subject to donation? A: Later on you will learn that even donation to stranger are subject to collation, donation to compulsory heir is subject to collation. But the point to determine is if there are compulsory heirs ALL donations made during the lifetime are subject to collation, pag may collation. Pag wala so need to collate. This is so because the purpose of collation is to determine how much should be the proper legitime of the compulsory heir. So this is how to compute the NET HEREDITARY ESTATE: 1) Estate at the time of death P1M Debts P300T Donation to children P200T Solution: P1M Gross Estate - (300T) debts & charges P700T – Net Estate + P200T – donation to children P900T – Net Hereditary Estate 2) Estate at the time of death Debts Donation to children Solution: P1M Gross Estate - (1,250,000) Debts & charges 0 Insolvent Estate + P300T Donation to children P300T Net Hereditary Estate Under this example, the gross estate is P1M leass the debts & charges of P1, 250,000. Sa succession the answer is zero because the estate cannot be made to pay the debts whose value exceeds the estate. Take note that P1M P1,250,000 P300T

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donations which are inofficious cannot be assailed by creditors except when the donation is in fraud of the creditor. So the proper answer is zero plus P300T. So the NHE is P300T. Form this amount you determine the legitime. Q: With respect to the value of the donations which are to be added to the Net Estate, for example, during his lifetime the testator donated a property to his son worth P500T. Upon the death of the testator, value of the donation is P700T because the son introduced improvements on the property. How much should be the value added to, P500T or P700T? A: Only P500T because it is the value at the time when the donations are made. Why? Because at the time of the donation P500T pa, that is the value of the property coming from the estate of the decedent. So that is the point in time where ownership over the property were transferred to the donee. Q: When you say collation should you really get the property, so kung car dalahon gyud nimo tanan? A: No, only the value not the actual property. The invitation of the value only not the physical return of the property. However, there are instances when the heirs must return the property which is under article 1076 #2 but we will discuss that later. Q: How about donation to spouses, should it be subject to collation? A: Under article 133 of the NCC, donations to spouses are void, like sale between spouses is void. So donation to spouses is void because it is part of the Net Estate at the time of the death, void man sya so wala na-deduct, there is nothing to collate. If there are judicial proceedings then the court through the administrator (if there is a will) or executor (if there is no will) determines the value of the estate. If there are no judicial proceedings the settlement of the estate, the computation may be done by the hiers themselves. Article 909. Donations given to children shall be charged to their legitime. Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. EXAMPLE: 1) The Gross Estate is P150 less debts of P40T so the Net estate (NE) is P110T. Add donations subject to collation including donation to X (friend) because there are compulsory heirs (70 * 3 = 210T). P110 + P210 = P320 is the Net Hereditary Estate (NHE). Although according to Manresa in your book, donations to strangers should not be collated but the rule is donations to strangers should be collated. Otherwise, you would be impairing the legitime of the compulsory heirs. Q: How much should be the legitime of the compulsory heirs? A: 320 divided by 2 = P160 divided by 2 children = P80T. C, being the illegitimate child gets P40T ½ of P80T. The total legitime is P200T. Q: How much is the NHE? A: P320. P320 – P200T = P120 is the Free Disposal. To the legitime of the compulsory heirs shall be charged the value of donations which are subject to collations because they are considered as advances of their legitim. So, to the legitime of A worth P80T, P70T is charged. So kasya di ba? Naa pay P10T na kulang sa iyaha. How about to C illegitimate child, his legitime is P40T so sobra. The excess of P30T should be charged to the Free Disposal. The donations to the compulsory heirs should be charged to tehe legitime, the excess to the free disposal. Out of P70T, P40T lang ang kaya sa iyang legitime. Thus, the excess of P30T shall be charged to the free disposal. To the friend X also should be charged to the Free Disposal. Q: How much is the total value of the donation to C and X? A: P30T + P70T = P100. So these donations are not inofficious kay ma-cover man sa free disposal. So naa pa sobra na P20T. So the excess of P20T depende na sa term sa will sa testator. If the heirs were instituted in the will in which case equal part. ILLUSTRATION: 1) Gross Estate P150T Debts 40T A (leg. child) 70T (donation) (80T legitime) B (leg. child) (80T legitime) C (illeg. Child) 70T (donation) (40T legitime) X (friend) 70T (donation) P200T P150T - 40T P110T - NE P210T - donations P320T - NHE

(80T-70T= 10T) (80T) (70 – 40T = 30T)

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Q: Are the Donations inofficious? A: NO because the free disposal is more than the value of the donations. P320T -200T P120T- Free disposal - (P30T) - C - (P70T) - X P20T (depends on the will of the testator) Q: Sa tinuod lang pagkamatay sa testator pila ang nabilin sa iyang property? ☺ A: P110T Net Estate. So ang P10T ihatag kay A, P80T kay B kay wala man sya natagaan ug donation. Kay friend wala na dili na sya tagaan. So again naa pay P20T. 2) Gross Estate P150T Debts 40T A (leg. child) 70T (donation) (80T legitime) B (leg. child) (80T legitime) C (illeg. Child) 70T (donation) (40T legitime) X (friend) 70T (donation) Surviving spouse (80T legitime) P280T Q: How much is the legitime? A: P320 / 2 = P160. P160 / 2 = P80T Q: How about the surviving spouse? A: P80T. So the total legitime is P280T. Q: Is the donation inofficious? A: Yes P40T is insufficient to cover all the donations. So how do you reconcile? You will learn later that earlier donation is preferred. The later donation shall be subject to deductions. So if nauna gitagaan si C ok lang kay macover sa remaining free disposal na P40T (P40 – 30T = P10T). The later donation to X shall be subject to deduction. Ang mahatag kay X is P10T na lang, 60T ang nawala sa iyaha: P320 - P280T P40T - Free disposal (P30T) - C (P10T) - X Article 910. Donations which an illegitimate may have received during the lifetime of his father or mother shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shall be reduced in the manner prescribed by this Code. So in my example in the preceding article, there was an illegitimate child so charge to the legitime. Article 911. After the legitime has been determined in accordance with the three preceding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary the devices or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without ant distinction whatever; If the testator has directed that a ceratin devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have been applied in full to the payment of the legitime. (3) If the devise or legacy consists of a usufruct, or life annuity, whose value may be considered greater than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devise or legatee the part of the inheritance of which the testator could be freely dispose. Order of priority: 1. Legitime; 2. Donations; 3. Preferred legacy or devise; and 4. All others pro rata. (Meaning pag mag-deduct ka sugod ka sa ubos.) P150T - 40T P110T - NE P210T - donations P320T - NHE

(80T-70T= 10T) (80T) (70 – 40T = 30T) (80T)

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ILLUSTRATION: Gross Estate P150T Debts 40T A (leg. child) 70T (donation) (67,500 legitime) (70T – 67, 500 = 2,500) B (leg. child) (67,500 legitime) (67, 500) C (illeg. Child) 70T (donation) (33,750 legitime) (70 – 33,750 = 36, 250) W (friend) 20T (donation) P168, 750 Preferred legacy X 50T 1. legacy to Y 20T 2. legacy to Z 30T

P150T - 40T P110T - NE P160T - donations P270T - NHE

Q: Asa na donations ang i-apil? A: Only donations to A, C and W, a total of P160T because donations to X, Y and Z are provided in the will so it is part of the gross estate. Q: How much is the legitime? A: P270T / 2 = P135. P135T / 2 = P67, 500 (the other P135T is the Free disposal) So P67, 500 shall be charged to the legitime of A and the excess to the free disposal. The legitime of B oay lang. Kay C lampas, P33, 750 charged to the legitime, the excess of P36, 250 charged to the free disposal. How bout donations asa i-charge? To the Free disposal: P135T – free disposal (2,500) - A (36, 250) – C (20T) - W (50T) - X P26, 250 Q: How about the legacy to Y of P30T and to Z worth P20T? A: Obviously they can no longer be accommodated by the remaining P26, 250. So they shall be reduced pro rata: 1. 2. legacy to Y: 30T / 50T * 26, 250 = P15, 750 legacy to Z: 20T / 50T * 25, 250 = P 10, 500 So dapat magkasya sa P135T – free disposal: A (2,500) C (36, 250) W (20,000) X (50,000) Y P15, 750 Z P10, 500 P135T Q: So how much should be the respective legitimes of the compulsory hiers and the shares of the voluntary hiers? A: The respective shares are as follows: A – P70,0000 W - P20,000 B – 67, 500 X - 50,000 C – 70,000 Y - 15, 750 Z - 10,500 STEPS TO BE FOLLOWED UNDER ARTICLE 911: 1. Determine the Net Hereditary Estate (NHE); How? Gross Estate Less: Debts & charges Plus: Donations subject to Collations 2. Determine legitime of the compulsory heirs based on #1; 3. Add total value of all of all the legitimes of all the compulsory heirs; 4. Deduct the total value of the legitimes in #3 from the Net Hereditary Estate in #1 to arrive at the free disposal; 5. Charge the donations to compulsory heirs to their legitimes. In case of excess of Donations over the legitime, charge excess to free disposal; 6. Charge the donations to strangers to the Free Disposal; 7. Charge PREFERRED legacies/devises to Free Disposal; 8. Charge all other legacies.devises to free disposal;

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9.

In case free disposal is insufficient, reduce the legacies, donations etc in the order of priority.

How? 1. Donation to strangers; 2. if there is still an excess then you charge the legacies & devises; 3. If sufficient pa, all others. But for example, sa donations pa lang kulang na, let us say P50T ang donation but the free disposal is only P20T so P20T na lang ang donation, exclude the others. Same rule with #7. Again if dili na ma-accommodate ang legacies/devises, you have to reduce it pro rata. There is a discussion under article 950. 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; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata. Q: How do you reconcile article 950 to article 911? A: Article 911 is when there are compulsory heirs AND/OR there are donations subject to collations. Whereas, article 950, only applies when there are no donations subject to collations AND when there are no compulsory heirs. So when legacies or devises lang ang issue you follow article 950. Article 912. If the devise subject to reduction should consist of real property, which cannot be conveniently divided, it shall go to the devise if the reduction does not absorb one-half of its value, and in a contrary case, to the compulsory heirs; but the former and the latter shall reimburse each other in cash for what respectively belongs to them. The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime. For example, A devise of a house worth P2M. But it has to be reduced by P800T because it would impair the legitime of the compulsory heirs. Kay dapat ang P800T ihatag sa compulsory heirs para dili ma-prejudice ilang legitime. So P2M ang devise it has to be reduced by P800T. The house cannot be conveniently divided. So the remedy is to reduce the value. So to whom shall the house go? Under article 912 to the devisee because the value of deduction does not absorb ½ of P2M which is P1M. So ihatag sa iya ang house pero tagaan nya P200T ang heirs. If baliktad, if P2M has to be reduced by P1, 200, 000, so in this case, more than half. So whom shall the house go? To the compulsory heirs and they should give the devisee P800T. Q: What if exactly P1M? To whom shall the house go? A: The house shall go to the devisee because according to your book, if you apply the article literally you would be defeating the intent of the testator. So if exactly half, divide, just give P1M to the heirs. Under 2nd paragraph: Example, if there are many heirs, the value of the legitime is more than P1, 300,000. So if Korina after computation her legitime should be P500T. So naa pa free disposal na worth P800T. Korina is given a house worth P1M. Under article 912, the house shall go to Korina because the value of the house even if it exceeds her legitime still when you add the legitime plus the free disposal will cover the value of the house given to Korina. So to Korina is given the house even if it exceeds the value of her legitime. Article 913. If the heirs or devisees do not choose to avail themselves of the right granted by the preceding article, any heir or devisee who did not have such right may exercise it; should the latter not make use of it, the property shall be sold at public auction at the instance of any one of the interested parties. So article 912 pag the reduction does not absorb ½ so the devisee of legatee retain the property and you will just reimburse the heirs. Q: What if the legatee or devisee does not want to exercise the right under article 912? A: The other parties may exercise the right on behalf of the party who does not wish to exercise the right. In the example above given, if the devisee does not want to own the house, wala sya action, the heirs themselves may exercise the right of the devisee. If the heirs would want to retain the house they may do so but they will just have to pay the devisee.

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If none of the parties have the interest to exercise the right or reimbursement or retention, so the property may just be sold at public auction. So in my example, P1M ang reduction tapos P1M must be given to the compulsory heirs so the property would just be sold at public auction, the proceeds shall be divided to the parties. So P1M shall go to the compulsory heirs as completion of their legitime. The other P1M shall be given to the devisee as his suppose devise. Article 914. The testator may devise and bequeath the free portion as he may deem fit. Free disposal, meaning after all the legitimes of the compulsory heirs have been satisfied including the surviving spouse and the illegitimate children, the free disposal may be given by the testator to anybody provided that there are no prohibition by law. So if he give the free disposal to the concubine that is not allowed. The free portion mentioned in article 914 is really the free disposal.

SECTION 5 DISINHERITANCE Article 915. A compulsory heir may, in consequence of disinheritance, be deprived of his legitime, for causes expressly stated by law. Article 915 talks about the consequence of being disinherited. Process by which a compulsory heir may be deprived of his/her legitime: • • • Disinheritance refers only to a compulsory heir. You cannot disinherit a voluntary heir because you just have to omit that voluntary heir in the will then that voluntary heir will not get anything, there is no need to disinherit. How? Through a testamentary disposition. Meaning, there must be a will. So there is no disinheritance in legal or intestate succession only in testate succession. For what cause? For causes expressly stated by law.

DISINHERITANCE – is the process or act, thru a testamentary disposition of depriving in a will any compulsory heir of his legitime for true and lawful causes. Q: What is the purpose of disinheritance? A: 1. Manresa says, the purpose of disinheritance is not vengeance but retribution. Meaning penalty. To penalize the compulsory heir. 2. But actually the purpose of disinheritance is to moderate the system of legitime which restricts freedom of disposition; This is because we have the system of legitime and by that system you cannot deprive your compulsory heir of his or her legitime. So disinheritance is intended to moderate the effect of the system of legitime. So in a way, the testator has freedom to disinherit an heir unworthy or has committed an act which is provided by law as a cause for disinheritance. Q: What are the ways of depriving the compulsory heir of his legitime? A: 1. Disinheritance (art. 915) 2. Repudiation of the inheritance (it is the act of the heir himself); 3. Incapacity by reason of unworthiness; 4. Predecease – namatay ug una ang compulsory heir including legal absence, di ba we talks about actual or presumptive death of the testator? In here we talk about the actual or presumptive death of the heir. So presumptive death of the heir is also a ground for depriving the heir of his or her legitime. 5. Loss of the estate. 6. When the death or charges are equal to or more than the value of the estate. In this case, you have no legitime because everything is for the payment of debts & charges. Article 916. Disinheritance can be effected only through a will wherein the legal cause shall be specified.

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REQUISITES FOR A VALID DISINHERITANCE: 1. Must be made in a valid will . -The will itself must be valid. It must conform with the formalities prescribe by law, everything, the attestation clause, witnesses etc. a. Disinheritance can also be effected by virtue of a codicil. Because a codicil is also like a will. b. Disinheritance can also be made in a separate will not necessarily in one will only so the 2 wills are just interpreted as one, there are institutions and there is also the disinheritance. For example, the testator executes 2 wills, one in 1980 and the other in 1985. There are no inconsistencies but the later will provides for a disinheritance. c. It can also be made in Incorporation By Reference (a will which is void but not void as to form tapos magre-execute ka ng another will and the re-execution is merely by means of incorporation by reference). The new will meron disinheritance tapos incorporate by reference lang a previous will or the new does not contain a disinheritance but the previous will contains the disinheritance so in the new will you merely incorporate the old will which contains the disinheritance. Must be made EXPRESSLY not impliedly;

2.

You must state “I disinherit” or “I omit” or other words of the same import. If you do not mention the word disinherit, omit, deprive, you just forget to write the name of one of the compulsory heir, and he also does not receive anything by way of donation or legacy, is there disinheritance? There is no disinheritance but there is preterition. 3. There must be a LEGAL CAUSE for the disinheritance;

In the proceeding articles we will talk about the legal causes. So if not found in the Civil Code that is not an authorize ground for disinheriting a compulsory heir. 4. Must be made for a TRUE CAUSE;

If the testator says, “In my opinion my son tried to kill me.” That is not a true cause, it must not be based on opinions, not beliefs not superstitions. It must be certain. 5. It must be for an EXISTING CUASE;

You cannot say that “If my son will kill me in the future, I will disinherit my son.” That is a conditional or a future disinheritance. That is not allowed. It must be existing already. Conditional Disinheritance “If my son will kill me in the future, I will disinherit my son.” Conditional Revocation of Disinheritance “My son attempted for my life! Therefore I disinherit my son. But if later on he will ask for my forgiveness I will revoke the disinheritance.” - This is now a valid disinheritance because it is already for an existing cause although the revocation of the disinheritance is made conditional upon the asking by the son of forgiveness. What is conditional here is not the disinheritance but the revocation of the disinheritance. 6. Disinheritance must be TOTAL OR COMPLETE;

This is because disinheritance affect the character or worthiness of the compulsory heir so you cannot just say partially unworthy lang sya, it muts be total or none. There is no middle ground. You cannot say “I hereby disinherit my son to the extent of ¼ of his legitime.” That is not allowed. And when you disinherit, in the legitime and the free portion, you cannot just disinherit from the legitime but he is entitled to get the free portion. Although in the free portion, no need to disinherit because with respect to the free portion even compulsory heirs are voluntary heirs. 7. 8. The cause must be stated in the will itself. The heir disinherited must be clearly identified, so that there will be no doubt as to who is really being disinherited;

You cannot say, “I disinherit some of my children.” This is not valid because you cannot identify who is being disinherited. 9. The will in which the disinheritance is stated must not have been revoked – at least in so far as the disinheritance is concerned.

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There are instances wherein, you revoke the will but in its entirety only some dispositions. If the entire will is revoked so including everything. So the will must not be revoked. Or if the portion of the will is revoked, the portion which states that there is disinheritance should not be revoked. Article 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it. For example, in a will the testator provides, “I disinherit my son because my son has an affair with my wife.” – this is a ground for disinheritance. Nasa will na, tapos probate proceedings will follow when the testator dies. If nobody contest the disinheritance then no problem, the heir does not have to prove the truth of the cause. If there is no opposition from the disinherited heir, no need for the other heir to prove that indeed the son has an affair with the wife of the testator. But during the probate proceedings if the son will oppose and will deny the grounds stated by the testator, so in that case then the other compulsory heirs of the testator should prove the ground. They have the burden of proving the truth of the cause. Article 919. 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 and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime. Article 918 talks about INEFFECTIVE DISINHERITANCE. Q: What are the instances wherein there is ineffective disinheritance? A: 1. When there is no cause given; - “I hereby disinherit my son.” – No cause stated 2. A cause denied by the heir; - there is a cause stated but its not a true cause and its not proved by the other heirs, like “I hereby disinherited by daughter because she has live a dishonorable life she is a prostitute.” If the heir disinherited proved that she is not a prostitute and that she has not lived a dishonorable life, singer lang sya, so the disinheritance is not for a true cause. That is invalid disinheritance. 3. A cause not given in law; - So not a legal cause. “I hereby disinherit my son because he did not pass the bar exam.” Q: What happens if there is ineffective disinheritance? A: The disinherited hier will get his/her legitime. So it will annul the institution but in so far as only for the purpose of completing the legitime of the compulsory heir. That is only the purpose why the institution is annulled. So legacies and devises should be respected and also other institutions as long as the legitime of the disinherited heir is given. ILLUSTRATION: 1) Estate: P900T A B C (disinherited) legitime (P450T) P150T P150T (P150T) Free Portion (P50T) P25T P25T

The estate is worth P900T, the testator has 3 children A, B and C. “I hereby institute A & B to my estate worth P900T and I disinherit C because he is ugly.” So there is an ineffective disinheritance. As a result the institution will be annulled but only in so far as the purpose of giving to C his legitime . So how much should be the legitime of C? P450/3 = P150T. So the effect of ineffective disinheritance shall annul the institution of heirs for the purpose only of completing the legitime of the ineffectively disinherited heir. So give to the disinherited heir hi legitime so P150T. Give also to the other heirs their legitime. How about the free portion, who will get the free portion? The 3 of them? No. Who are instituted? A & B lang, so only A & B will share the free portion, so P25T each Q: What if there is a friend? The friend is given the legacy of P50T. A: The effect of ineffective disinheritance is to annul the institution of heir in so far as the institution prejudices the legitime of the ineffectively disinherited heir. So in this case, give to C the legitime P150 and to A & B P150T each. Give to the friend P50T taken from the free portion of P450T. The remaining P400T / 2 = P200T each to A & B: A B C (disinherited) Friend Legitime P450T P150T P150T (P150T) Free Portion 450T P200T P200T P50T

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Q: What if there C is PRETERITED? He was not mentioned in the will. “I hereby institute A & B as my sole heirs.” And C was not given anything during the lifetime by way of donation, legacy or anything. But the testator has 3 compulsory heirs including C. What is now the effect/ A: There is no ineffective disinheritance because there was no disinheritance provided for in a will. So there is an omission in the inheritance itself, so there is preterition. What is the effect? You annul the institution of heirs. As is walay instituted heir all of them stands in equal footing. So divide the P900T by INTESTACY, divided by 3, so P300T. Or, you complete the legitime 150T each and the free portion, the institution is annulled so there is no longer institution so divided by 3, 150T. Same pa rin P300t each. A B C 300T 300T 300T Legitime (450T) 150T 150t 150T Free Portion (450T) 150T 150T 150T = 300T =300T =300T

OR

If there is legacy to a friend of P50T: 1. complete the legitime. 2. Give to friend the P50T 3. 3 of them shall divide the 400T Legitime A P150T B P150T C P150T Friend Free Portion (400T) P13, 333.33 P13, 333.33 P13, 333.33 50T VALID DISINHERITANCE Disinheritance is always intentional because it has to be provided for in the will. The cause must be provided for by law. (articles 920 & 921 NCC) The disinherited heir inherits nothing from the legitime & the free portion. There must always be a will

PRETERITION The omission may be either intentional or unintentional as long as the deprivation is total. With cause or without cause Annuls the institution May exist with or without a will. Q: How does preterition exist without a will? A: During the lifetime of the testator, he can make donations and the donations will be collated later on. If during his lifetime, he gave all his properties to one of his children. So upon his death wala nay mabilin. So upon his death there is no will but still there is preterition because there is omission. The institution is always void

The institution will be followed unless there is another cause for not following the institution which is not because of the disinheritance but for other causes. IMPERFECT DISINHERITANCE The institution remains valid, but must be reduced insofar as the legitime has been impaired Free Portion (450T) 225T 225T = = Total P450T P450T

PRETERITION The institution of heirs is completely annulled ASSIGNMENT: 1) Estate P900T A – instituted B – preterited C – validly disinherited 2) Estate P900T A – instituted B – Preterited C – imperfectly disinherited

Legitime (450T) 225T 225T

Legitime (450T) 150T 150T 150T

Free Portion (450T) 150T = 150T = 150T =

Total P300T P300T P300T

In this case, there is preterition, therefore the institution is annulled. So it is as if A is not instituted. Therefore, all of them should get their legitime. How about the free portion? A alone? No because his institution is annulled. So the 3 children should stand in equal footing. So all of them should inherit the free portion. It is as if

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walang preference. Had there been no preterition, in that case A alone will get the free portion. But there is preterition so the institution of A is annulled. 3) Estate P900T A – imperfectly disinherited B – imperfectly disinherited C – validly disinherited Legitime (450T) 225T 225T Free Portion (450T) 225T = 225T = Total 450T 450T

If the free portion has not been disposed of, the ineffectively disinherited heir gets not only his legitime, but also his intestate share of the free portion. This is because he is an intestate heir only ( commentaries of Paras) Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate: (1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless; (3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; (4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; (6) Maltreatment of the testator by word or deed, by the child or descendant; (7) When a child or descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime which carries with it the penalty of civil interdiction. Article enumerates the valid or legal causes for disinheriting a child or children, descendants meaning including mga grandchildren whether legitimate or illegitimate. 1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;  His or her spouse, descendant or ascendant refers to the spouse or descendant of the testator. The law also says  Found Guilty meaning there has to be conviction mere accusation is not enough as cause for disinheriting a child or a descendant.  Attempt against the life – what crimes are these? Attempted homicide or attempted murder. How about frustrated and consummated? With more reason, it is not only limited to an attempt. So there must be an Intent to Kill. Pagnapatay because of negligence or recklessness wala nimo gituyo, this will not fall under article 919, there must be an intent to kill.  Even if you are not the principal, you are an accomplice or accessory, this paragraph apply. 2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless;  The accusation must be found GROUNDLESS, so pataka lang. So if the accusation is really with ground and the testator is really convicted then that is not a ground.  The law says imprisonment for 6 years or more, so when you say you are accusing the testator of malicious mischief. Malicious mischief is a light felony. So wala sya kaabot ug 6 months. So at least the penlty is prision mayor. Q: Against whom is the accusation directed? A: Only against the testator. Q: What accusations are referred to here? A: 1. It may include the institution of a criminal action. So file-an nimo kaso ang imohang father, mother or ascendant; 2. You testify in a case against your parents or ascendants involving a crime which carries a penalty of 6 years or more; 3. statements wherein you affirm the accusations made against your parents, ascendants. Q: What crime is being referred to here? A: The crime here is against anybody. You accused the testator of committing a crime regardless of whether or not that crime is committed by the testator against the heir, spouse of the heir, to whoever, as long as the accusation is against the testator.

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3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator; So the child or descendant has an affair with his stepmother or mother and you are convicted of adultery of concubinage with the spouse of your parent. 4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; So your father, or your grandfather or your ascendant had already made a will but you do not like the provision in the will by force hadlokon nimo sya “make me an heir in your will!” Or violence, bugbugon nimo, intimidation. Fraud, giatik nimo sya na “sign this, this is merely a letter,” but in fact it is a will. But you have to remember that the law says by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made. So nagbuhat na sya tapos ipa-change nimo. There has to be another will made. Kung wala pa nya na-change imoha na sya gihadlok there is still no ground, there has to be a will. 5) A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant; You have the means and your parents or ascendants need support but without reason you refused to give support. Kay kung wala kay means, your refusal will be justifiable. 6) Maltreatment of the testator by word or deed, by the child or descendant;  Maltreatment by word - yawyawan nimo imong parent or ascendant pirmi kung dili ka tagaan allowance ☺.  Maltreatment by deed – sagpa-on nimo (grabee ☺). Anything short of killing because killing falls under paragraph 1. So kung imoha lang bugbugon sya without intent to kill, still that is a ground under maltreatment. 7) When a child or descendant leads a dishonorable or disgraceful life; Q: What do you consider as dishonorable or disgraceful life? A: That is a question which is address to the judgment of the court but generally the act must not be isolated or single act. It has to be continuous, it has to be a way of life. Like the example I gave you, prostitution, so kung one night lang ka prostitute, that is an isolated act. You can justify that. This paragraph applies not only to a daughter. It applies also to a son or a grandson. If you engage in that kind of life and it is your way of life hen it is a ground. 8) Conviction of a crime which carries with it the penalty of civil interdiction Generally, crimes which are punishable by death penalty, reclusion perpertua and reclusion temporal, all of these carries with it the accessory penalty of Civil Interdiction Article 920. The following shall be sufficient causes for the disinheritance of parents or ascendants, whether legitimate or illegitimate. (1) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; (2) When the parent or ascendant has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) When the parent or ascendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be false; (4) When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator; (5) When the parent or ascendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (6) The loss of parental authority for causes specified in this Code; (7) The refusal to support the children or descendants without justifiable cause; (8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. This article deals with the causes disinheriting an ascendant. 1.) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue;

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Q: What do you mean by abandon? There is a crime of abandonment but that is not the abandonment referred to in this article? A: Abandonment whether physical, educational or moral as long as you neglect your child. So this is a ground whether intentional or unintentional or by negligence or carelessness the children are abandoned then the children have cause to disinherit the parents.  Induced their daughters- how about sons? In this case, you have to construe strictly daughters. But the word daughter includes granddaughters.  Corrupt or immoral life – you induces your daughters to prostitution, escort service etc.  Attempted against their virtue – so the parents attempted against the virtue of the daughter (rape, seduce etc.). Take note that there is no need for a conviction here. As long as you prove the act, there is no need of conviction. NB: Take note that the disinherited heir may controvert the grounds stated in the will. Paragraph 2, 3, 4 and 5 are the same as those in arctile 919, so no need to explain. 6) The loss of parental authority for causes specified in this Code; Q: What are the grounds wherein a parent may loss parental authority? A: This is provided under 228, 230, 231 & 232 of the family Code. So these are the instances when parental authority may be loss even without the fault of the parent concerned. For example, reaching the age of majority. So there is no more need for the exercise of parental authority. Q: Will it be a ground for disinheriting your parents just because you have reached the age of majority and they have loss parental authority over you? A: Here the law should be construed as the causes for losing parental authority should refer to the FAULT OF THE PARENT OR ASCENDANT. The loss of parental authority must be by reason of the fault of the parent or the ascendant concerned. Q: What are these causes? A: We have article 330 and 332 of the Civil Code. Art 330 – The father and in a proper case the mother, shall lose authority over their children: (1) When by final judgment in a criminal case the penalty of deprivation of said authority is imposed upon him or her; (2) When by a final judgment in legal separation proceedings such loss of authority is declared. Art 332 – The courts may deprive the parents of their authority or suspend the exercise of the same if they should treat their children with excessive harshness or should give them corrupting orders, counsels, or examples, or should make them beg or abandon them. In these cases, the court may also deprive the parents, in whole or in part, of the usufruct over the child’s property, or adopt such measures as they may deem advisable in the interest of justice. Suppose the parent treated the child with excessive harshness so the parent loss parental authority so gdisinherit sya ng child nya. But the loss of parental authority was later on reinstated. (Actually this is an absurd provision because a child who is under parental authority dapat below 18 sya. If below 18 sya, makabuhat ba diay sya ug will? Dili man di ba? ☺) Anyway, in the example, na-regain sa parents ang parental authority kay nagbag-o na sya during the lifetime of the child. Later on, the child died. Q: Will the disinheritance subsist? A: We have 2 views: 1. The Disinheritance will remain notwithstanding that the parents has regain his or her parental authority because the reason for the disinheritance is not really the loss of parental authority but the cause for the loss of parental authority. The harsh treatment and or the excessive cruelty, that should be the cause of the loss of parental authority. Not the mere fact of loss of parental authority. 2. The Disinheritance is already deemed ineffective because upon the death of the child there is really no more loss of parental authority. So nare-gain na ang parental authority so there is no more ground for disinheritance. Although the 2nd view Paras says that it is according to Manresa, but when I (Atty. Yangyang) was still in the law school, we were taught the 2nd view. But you can answer either way. Just remember that the fact there is maltreatment is not a ground. There has to be loss of parental authority. NB: A child under parental authority cannot execute a will. 7) The refusal to support the children or descendants without justifiable cause;

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Same discussion with disinheritance of descendants. 8) An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them.  An Attempt – meaning a husband attempted against the life of the wife or vice versa or the child by that act of one of the parent, he can disinherit the parent who has attempted against the life of the other. No need for conviction because the law says attempt, so mere attempt.  Unless there has been reconciliation between them – Between who? Between the 2 parents because the spouse against whom the attempt was made is able to forgive and reconcile with the other spouse then there is no reason why the child should go on hating the other parent when the other parent reconciled the other. Article 921. The following shall be sufficient causes for disinheriting a spouse: (1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; (2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; (3) When the spouse by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; (4) When the spouse has given cause for legal separation; (5) When the spouse has given grounds for the loss of parental authority; (6) Unjustifiable refusal to support the children or the other spouse. 1) When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants; The same discussion for disinheriting parents or a child. 2) When the spouse has accused the testator of a crime for which the law prescribes imprisonment of six years or more, and the accusation has been found to be false; 3) When the spouse by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; 4) When the spouse has given cause for legal separation; Meaning, there is yet no decree of legal separation only the occurrence of the cause for legal separation. You do not have to secure a decree of legal separation first before you can disinherit your spouse who has given ground. Q: Can you disinherit your spouse if you discover that your spouse is gay? A: Yes, it is a ground for legal separation, under Article 55 of the Family Code. Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;] (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purpose of this Article, the term “child” shall include a child by nature or by adoption. Note that attempt against the life of the petitioner (the one who filed an action for legal separation), that is a ground for legal separation – attempt against the life of the other. In this ground there is no conviction, mere attempt. But note under the 1st paragraph under article 921: When the spouse has been convicted of an attempt against the life of the testator, his or her descendants, or ascendants – So even if it is merely an attempt it can be a ground for disinheritance because it is a ground for legal separation.

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Q: How about attempt against the life of the children? Spouses A and B has a child C. A attempted against the life of C, is this a ground for disinheritance? Q: Paragraph 9 provides Attempt by the respondent against the life of the petitioner. – so the spouse only. If one of the spouses Attempt against the life of a common child or descendant there has to be conviction in order that it may constitute a ground for disinheritance because it is not a ground for legal separation. The ground for legal separation is only the attempt against the life of the other spouse. So if attempt against the life of the other spouse there is NO NEED of conviction despite the provision under paragraph 1 of article 921. So you can justify that there is ground for legal separation with respect to descendants or ascendants there has to be conviction. Q If a child repeatedly commits physical violence against a parent, is this a ground for disinheriting the child? A: Yes, it will fall under maltreatment. Q: How about a spouse who commits repeated physical violence against the other spouse, can the guilty spouse be disinherited? A: Yes because this is a ground for legal separation. Q: How about the parent who commits physical violence repeatedly against the child, will this be considered a ground for disinheritance? A: No BUT this is a ground for loss of parental authority. When there is loss of parental authority by reason of the physical violence then this can be a ground but not per se, it has to go to the extent that the parent has loss parental authority by reason of this physical violence. Q: What about if there is already a decree of legal separation, is there a need to disinherit the offending spouse? A: There is no more need because by operation of law the inheritance given to the other spouse is revoked and he or she is also disqualified from inheriting from the innocent spouse. The offending spouse when there is already a decree for legal separation is disqualified from inheriting from the innocent spouse. 5) When the spouse has given grounds for the loss of parental authority; 6) Unjustifiable refusal to support the children or the other spouse. 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. Q: What is Reconciliation? A: The mutual restoration of feeling to the status quo. For example, a child maltreats the parents so there is already a ground for disinheritance. Subsequently there is Reconciliation. So whatever was the status before the maltreatment, that should be restored, no hurt feelings.  Reconciliation is a bilateral act, involves 2 parties the offender and the offended party. So the offended party must be able to forgive and the offender must be able to accept the forgiveness.  If there is disinheritance and subsequently there is reconciliation then the disinheritance becomes ineffectual. If there has been no disinheritance yet so you are deprived of the ground to disinherit, pag meron nang reconciliation you cannot subsequently disinherit the heir who has offended you because there is already reconciliation. Q: The testator says he forgives tanan nakasala sa iyaha, is there reconciliation? A: This is what we call GENERAL PARDON. There is no reconciliation here because it is the unilateral act of the testator. There is even no acceptance by the heirs concerned and there is even no identification of the heirs concerned as being forgiven. It does not mention of specific heir or does not mention specific offense. Q: How is disinheritance revoke? A: 1. There is subsequent reconciliation (so the disinheritance shall be ineffective) 2. Making the disinherited heir an instituted heir; Example, in a will, “I hereby disinherit my son C because he has led a dishonorable life.” Then 1 week after, the testator made a new will , “I hereby institute C.” So the same child, here the previous disinheritance made in a previous will is deemed revoked. 3. By the revocation of a will containing disinheritance;

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` Example, naa kay will then you disinherit your child in that will but later you have a change of heart so you tear your will with intent to revoke. So the disinheritance in that revoke will no longer subsist. 4. By the disallowance of a will containing the disinheritance;

If the will in which the disinheritance is contained is denied probate because it lacks the formal requisites prescribe by law therefore when the will is denied probate then there is as if there is no will so whatever the disposition in that Will, will not be given effect including the disinheritance. 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. Article 923 talks about the Right of Representation of the heirs of the disinherited heir. Example, the testator has 2 children A and B and the estate is worth P500T. A has children C and D. But in the will A is validly disinherited. Meaning, A can longer inherit. How about the children of A, C and D? C and D will now represent A but only with respect to the legitime of A. Why? Because A here is disinherited because of his fault. The fault of A should not be imputed against A’s heirs. So even if A cannot inherit, his own heirs will inherit by virtue of representation. PRINCIPLE: An heir who has been disinherited can be Represented. Another example, the testator provides “I hereby institute B as my sole heir to all my properties. I also disinherit A because he has maltreated me.” Q: How much should be the share of the heirs? A: Determine first the legitime of A and B. Even if A is already disinherited you have to compute his legitime because his heirs will succeed or represent him with respect to his legitime. So P500 / 2 = P250T. P250T / 2 = P125T. P125 is supposed to be the share of A. A is disinherited so his share will go to C and D, P62,500 each. B will inherit in his own right (P125T), this is what we call PER CAPITA. C and D inherit by virtue of representation because A their parent was disinherited. The inheritance of C and D is called PER STIRPES.  If in his own right, PER CAPITA  If as representative, PER STIRPES. Q: How about the free portion? Will C and D also represent A? A: No, B is the only instituted heir. Meaning, B alone can get the P250T. So the total share of B, 125T + 250T = P375T. Remember that when there is a will (testamentary succession), representation takes place only with respect to the legitime. Q: What if the testator merely provides in his will, “I hereby disinherit B because he has maltreated me.” That is the only provision in the will, is it a valid will? A: It is a valid will. A will containing only a disinheritance is an indirect disposition. Q: Will this be an effective disinheritance? A: Yes, B will not inherit because he has been disinherited. If B has children C and D, how will you dispose the estate? What about A the brother of B? A: You will dispose the estate by way of Intestacy. So wala nay will. Q: Should A inherit? A: Yes because he is a compulsory heir. Q: How about C and D? A: Yes they do inherit even if their parent B has already been disinherited, they represent him. But in Intestacy, representation pertains to the ENTIRE portion. The disinheritance is effective but will not inherit even if B was alive. But still his own heirs will inherit because his own heirs represent him and because it is intestacy, you just divide P500T by 2. But of course the shares of C and D will not be the same as that of A because A will get a bigger share because he inherits in his own right, per capita while C and D will inherit only by right of Representation. PRINCIPLE: When there is a will, the representation of the heir of the disinherited heir will only be to the EXTENT OF THE LEGITIME. But with respect to the free portion, that goes to the instituted heir UNLESS the will does not dispose of the entire property and that there is intestacy the own heirs of the disinherited heir may still part of the free portion.

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The disinherited heir who is represented has no usufruct or administration of the property which constitutes the legitime. Meaning, even if his own children will get the property which he should have gotten had he not been disinherited, has no usufruct. He cannot use it and he cannot administer it. So this is an exception to the rule under the Family Code that parents have usufruct or administration over the properties of their minor children. Example, the estate is P500T. B disinherited. So 125T goes to A. B wala na sya so iyang children C and D ang makakuha 62, 500 each. Assuming na minor pa iyang children, di ba minor children can inherit money as long as they are living at the time of the death of the testator? Ordinarily, a parent should have usufruct or administration over the properties of his own children. But when these properties are the same properties over which the parent has been disinherited, then under article 923, the parent cannot have usufruct or administration of this property. Q: The law says, The children and descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs. Who is this person disinherited? A:This article should be limited only to the CHILD. So the children and descendants of the person disinherited meaning the person disinherited here is the child because if it is the spouse, it is the spouse who is disinherited, can the spouse be represented? No, there is no representation with respect to the spouse. As we have learned, right of representation pertains only to the descending and direct line. Q: How about your ascendant? You are a son and you disinherit your parent, can your parent be represented by your grandparent? A: No, there is no right of representation in the ascending line. SECTION 7 LEGACIES AND DEVISES Article 924. All things and rights which are within the commerce of man may be bequeathed or devised. Article 924 talks about what things may be subject of legacies and devises. RULES:  Everything can be bequeathed or devise as long as within the commerce of man. Q: What are the things which CANNOT be bequeathed or devised? A: 1. RES COMMUNES – those which belong to the community or to ALL like sunlight, air, ocean etc. 2. PROPERTY OF PUBLIC DOMINION (article 420) - canals, bridge, roads. 3. PROPERTY OF PUBLIC USE (article 421) – 4. RES NULIUS – things which belong to NOONE. Like the fishes in the ocean, wild animals. 5. ILLICIT THINGS – things which are illegal or prohibited by law like dangerous drugs. 6. PURELY PERSONAL OR INTRANSMISSIBLE RIGHTS – like the right to cohabit, the right to support.  These legacies and devises cannot burden the legitime of the compulsory heir. Review: Legacy/ devise – specific property Heir – universal title, no designation of the specific property given. Article 925. A testator may charge with legacies and devises not only his compulsory heirs but also legatees and devises. The latter shall be liable for the charge only to the extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the free portion given them. Q: Who has the duty of effecting the legacy or devise? A: GENERAL RULE: when the will is silent then it is the estate. EXCEPTION: If the testator charges his heirs with the legacy or devise then ALL of the heirs, including the legatees or devises. As you will know, the value of the legacy or devise given by the heirs shall be proportion to the shares which they received. EXCEPTION TO THE EXCEPTION: But is a SPECIFIC HEIR or LEGATEE OR DEVISES is charged with the burden of giving this legacy or devise then that legatee, devises, or heir alone shall bear the burden of giving out the legacy or devise. Even the compulsory heirs may be charged with the burden of the legacy or devise but it should not exceed the amount of the free portion given. ILLUSTRATION: In the will the testator provides, “I hereby give a legacy worth P50T to my friend X.”

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Q: This is the only provision, with respect to the legacy so who shall pay the P50T? A: The estate. Estate is P500T. If the instituted heirs are A (son) and B (another friend), “I hereby institute A and B as my heirs but my heirs shall give a legacy of 50T to my friend X. Q: How will you divide the estate? A: Give first the legitime of A which is 250T. Q: How about the free portion? A: A and B are instituted. So in the absence of specific provision as to the share, A and B will get 125T each. When you say institute that refers to the free portion. You do not institute the legitime because the law provides for the legitime. So in the will A and B are instituted, meaning the testator is instituting A to the free portion. So 125T. But there is a legacy of P50T and the testator says my heirs A and B shall pay the legacy. So A and B should each pay in proportion 25T each. Q: What if the testator says, “I hereby charge B with the burden of giving the 50T to X?” A: In this case, since B lang ang mubayad sa legacy, wala na labot si A. Q: How about “A and B are my instituted heirs and I also give a 50T legacy to X and my son has the duty of giving a legacy to X. From whose share you will get the 50T? A: From A because he alone shall be charge with the legacy because he alone is mentioned. Q: If “A and B are my sole instituted heirs to my estate worth P500T but I give legacy of P150T to my friend X and my son A will bear the burden of this legacy.” A: Divide first the estate P500T / 2 = P250T. The legitime of A is P250T. A and B are the instituted heirs so dapat equal sila sa sharing (as to the institution, fre portion) but A daw ang mag-shoulder sa legacy. Meaning, from A’s share to the institution, didto kuha-on ang legacy. The legacy is P150T, but the share of A as instituted heir is only P125T (taken from the free portion 250T /2 = 125 each to A and B), so only 125T shall be given as legacy to X. Dili ka magkuha sa share ni B? No because wala si B gi-charge only A. So sya lang ang mag-bear sa burden. So in effect wala na mabilin sa iyahang free portion pero ok lang kay ang iyang legitime wala na-impair. Q: What are the KINDS OF LEGACY? A: 1. LEGACY PROPER – when the estate has the duty to give the legacy. So walang heirs, or legatees or devises charged with the legacy. 2. PRE-LEGACY – when the duty is given to the estate but the gift is given to a specific heir or legatee. The legacy is made specific or determinate so a car, a house and lot but still the duty to give the legacy or devise is upon the estate. 3. SUB-LEGACY/SUB-DEVISE – this is the one referred to under article 925, when a legacy is charged to an heir, or a legatee or a devisee. Example: 1) “A and B are my heirs but A has the duty of giving legacy to my friend.” – this is a sub-legacy. A legacy which is imposed upon another heir. 2) Or upon another legatee, like “I hereby give a legacy worth 150T to B but B shall also give a legacy worth 50T to my friend. “ – this is a sub-legacy imposed upon another legatee. Ang mahitabo ang legacy ni B bawasan ug P50T. Article 926. When the testator charges one of the heirs with a legacy or devise, he alone shall be bound. Should he not charge anyone in particular, all shall be liable in the same proportion in which they may inherit. So this is explained in the previous article. Q: Under the 2nd paragraph, if the will provides, “I hereby institute A and B as my heirs and I hereby give a legacy of P50T to X,” Who shall bear the burden of the legacy here? A: The estate. Q: But if the will provides “I hereby institute A and B as my heirs and I also burden MY HIERS with a legacy worth 50T to be given to X.” Who shall bear the burden of the legacy? A: The heirs na in proportion to their inheritance with respect to the free portion lang. The legitime is not included. Article 927. If two or more heirs take possession of the estate, they shall be solidarily liable for the loss or destruction of a thing devised or bequeathed, even though only one of them should have been negligent.

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ILLUSTRATION: In the will a house and lot worth P1M is given to B. However, the other heirs of the testator A and C took possession of the house and lot, wala sa nila gihatag kay B, ilaha sa gipuy-an. Nagtinanga man ni si C, nagstudy sya brown out nasunog ang balay. Q: Si B, asa man sya mag-demand kay A or kay C? A: Both. Puede kay A or puede pud kay C lang. A or B. The entire P1M can be demanded from either A and C. However, because C is the one who is negligent, so A can demand reimbursement to C. But with respect to B their liability is solidary. Q: What is the house have been lost by reason of fortuitous event, gikilatan ang balay, nasunog. Can B demand from A and C because the 2 took possession? A: No, if it is through fortuitous event then wala nay obligation si A and C to deliver like in Obligations and Contracts. Q: What if it is not negligence but intentional, si C gisunog gyud nya ug tuyo ang balay. Is there solidary liability? A Article 927 talks about negligence. So if the destruction or lost is through the fault of one of the heir who took possession then it is the heir at fault is the one liable. He alone is the one liable. This is because in article 927, that is somehow related to quasi-delict but when you say intentional article 927 does not apply. Article 928. The heir who is bound to deliver the legacy or devise shall be liable in case of eviction, if the thing is indeterminate and is indicated only by its kind. Example, In the will there is a sub-legacy of a car to A to be given by B (heir). If C deliver a car to A then A later on defeated in his possession of the car because the car was already previously sold to another person. Can A demand from C another car? Unsa man ang car? Generic. Under article 928 when the legacy or devise is of indeterminate or indicated only by its kind meaning not specific or not partucliarly segregated, in this case, the heir who delivers the indeterminate or generic thing to the lother egatee or devises, he is liable for eviction. So merong warranty against eviction because being indeterminate or being generic, the hier charged should not have delivered thing which is defective. He should have chosen something na walay problema. Q: What if specific, the testator provided “my blue expedition car with plate No. NYO – 123,” is the heir charged with the obligation of delivering the expedition kiable for eviction? A: In this case, he is no longer liable because it is the testator who chose the car so it is beyond the power of the heir, legatee or devises charged. He is merely charged with he duty of delivering the very same thing mentioned by the testator so he has no liability for eviction. The liability against hidden defects, warranty against eviction also apply in this case parang sa Law on Sales. Principle:  If indeterminate or generic, the heir bound to deliver is liable for eviction.  If specific, the hier is not liable because his duty is merely to deliver what the testator has chosen. Article 929. If the testator, heir, or legatees owns only a part of, or an interest in the thing bequeathed, the legacy or devise shall be understood limited to such part or interest, unless the testator expressly declareds that he gives the thing in its entirety. Example, in the will the testator who is a co-owner of a house provides, “I hereby devise my house to B.” This is assuming that all other legitimes are not impaired. Q: Is this a valid disposition? A: The legacy or devise shall be valid only to that portion which is owned by the testator. The other half is void. So limited only to such part or interest, that is the GENERAL RULE. Q: What if the testator is a co-owner of a car, in his will he provides, “I hereby give to B a car with plate No LMN – 456.” But the car here is also partly owned by B, the legatee. In the previous example, the testator is the part owner. Here, the legatee is the part owner. Is this a valid legacy? A: According to article 929, if the testator, heir or legatee owns only a part or or interest in the hing bequeathed, legacy or devise shall be understood limited to such part or interest . The legacy of the car is valid but only with respect to part owned by the testator. The part which is already owned by B (legatee) is no longer valid. But of course the legatee would still get the entire car becuase he is part owner of the car. As an EXCEPTION, if the testator EXPRESSLY declares that he gives the thing in its entirety. Example, “I am only a half-owner but still I give the house to B in its entirety.” So this is an express declaration by the testator that he is giving the entirety of the house to B even if he is only a part owner he may order that the entire thing may be given to a legacy or devises.

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Article 929 presupposes that the testator knows that he is not the full owner of the thing but still he ahs interest or he is a part owner. Q: How do you prove that the testator knows that he owns full or part interest on the property? Should the knowledge of the tesator be expressly provided for in the will? A: The knowledge of the testator can be proved by the will itself or by evidence aliunde (evidence oustside the will). But if the testator wants to give the property in its entirety he must expressly provide in the will. Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. Example: The testator provides in his will, “I hereby give to B a 5 hectare land covered by TCT – 00299.” But it turns out that the testator is not really the owner of the land. Not even a part owner. The testator erroneously believed that he owns the land. Q: What is now the status of the devise to B? A: Under article 930 it is void. Differentiate it from article 929. ART 929 the testator is a part-owner or has a part interest AND he knows that he a part interest or ownership in the thing bequeathed or devise. ART 930 The testator has no interest whatsoever but he erroneously believed that he owns the property.

Q: What if the will was executed in 1980. Subsequently in 1990 the testator acquired the land. In the year 2000, he died. What is now the status of the devise to B? A: The devise is valid because the law says But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. Article 931. If the testator orders that a thing belonging to another be acquired in order that it be given to a legatee or devisee, the heir upon whom the obligation is imposed or the estate must acquire it and give the same to the legatee or devisee; but if the owner of the thing refuses to alienate the same, or demands an excessive price therefor, the heir or the estate shall only be obliged to give the just value of the thing. Example: A Parcel of land is not owned by the testator but the testator KNOWS that he does not own the land. If the testator expressly provides in his will, “I hereby give to B covered by TCT – 1950 and because I do not owned the land I declare that my estate will acquire the land to be given to B.” Q: Is this a valid disposition? A: Under article 931, it is valid. ART 930 The testator does not own the property but he erroneously believed that he owns the property If the owner of the property demand an axcessive price or refuses to alienate the property (so he does not want to give the property to the estate to be given to the legatee or devisee) then that is the time when the estate, or the hier, legatee or devisee charged with the duty of giving shall give a reasonable or just value of the thing. ART 931 The testator knows that the property is not his and he makes an ORDER that the property shall be given to the devisee or to the legatee. If there’s an order, the estate, or the heir, legatee or devisee charged MUST ACQUIRE it and give it to the legatee or devisee.

Q: What if the testator knows that he does not own the property but gives it to the devisee or legatee and there is no order that it shall be acquired by the estate. What is now the status of the devise or the legatee? Is it a valid disposition or invalid disposition? A: The devise or the legacy is still valid. But the estate, or the heir, legatee or devisee charged with the duty of giving the property has a choice. He may have or acquire the property and give it to the legatee or devisee or he may just pay the just value. So under article 931:  First, if there is an order then you follow the order;

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 But if the owner of the property does not want to alienate the property so the heir or the estate must pay the just value.  But if there is NO order that it shall be acquired by the estate then the estate has the choice. The estate does not have to exhaust the order of priority in article 931. He may just acquire the property or pay the just value thereof. Now, in article 931 the order that the thing belonging to another be acquired NEED NOT BE EXPRESS. So it may be impied. In my example, if the land is onwed by X, the testator may just provide, “I hereby give X’s land to B covered by TCT B-1950.” So this is an implied order not express. Article 932. The legacy or devise of a thing which at the time of the execution of the will already belonged to the legatee or devisee shall be ineffective, even though another person may have interest therein. If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. In this article the the legatee or devisee ALREADY OWNS the property devised or bequeathed at the time of the execution of the will. In my example, the testator gives to B a land covered by TCT B-1950. But at the time of the execution of the will, B is already the owner of the property. By virtue of article 932, that devise is void because it is already owned by the devisee at the time of the execution of the will. So the point to remember is THE TIME OF THE EXECUTION OF THE WILL. Another example, B owns the property but he has mortgaged the property to the bank. So even if the bank here has interest over the property as mortgagee but still the devise is void because again B is the owner of the property at the time of the execution of the will. 2nd pargraph: If the testator expressly orders that the thing be freed from such interest or encumbrance, the legacy or devise shall be valid to that extent. Example, B is already the owner of the land. “I hereby give the land to B and because the land is morgtgaged with the bank I declare that my estate will pay the bank so that the land will be freed from the mortgage.” In this case, the devise is void because it is already owned by the devisee. Q: How about the order that it shall be freed from the mortgage? A: It is valid. To that extent the declaration by the testator is valid to free the property from the mortgage. But as to the giving of the property it is void. Article 933. If the thing bequeathed belonged to the legatee or devisee at the time of the execution of the will, the legacy or devisee shall be without effect, even though it may have been subsequently alienated by him. If the legatee or devisee acquired it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. Example, the testator give to B a parcel of land but the parcel of land is already owned by B. So void di ba? In 1990, B, the devisee, sells the land. Upon the death of the testator in 2000, B is no longer the owner of the land, is the devise to B valid? Dili naman sya ang owner at the time of death? The point to remember is the time of the execution of the will. If the devisee is the owner at the time of the execution of the will then the legacy or devise is void notwithstanding that the legatee or devisee sunsequently alienates the property. 2nd paragraph: If the legatee or devisee acquired it gratuitously after such time, he can claim nothing by virtue of the legacy or devise; but if it has been acquired by onerous title he can demand reimbursement from the heir or the estate. Example, the testator knowing that the house is owned by X gives the house to B as devise. The devise is valid. But subsequently X donates the house to B. The testator died. Is the devise valid? The acquisition by B is gratuitous, why? Because it was by donation, so he can cliam nothing by virtue of the legacy or devise. But if he acquires the same by onerous title, gibaligya ni X kay B ang house, so gihatagan sa testator si B house owned by X, kabalo ang testator na own by X, subsequently si B gipalit nya kay X ang house. Upon the death of the testator, does B have any claim? Reimbursement lang sa value sa house na iyang gipalit so heir lang gihapon sya kay tagaan man sya ug kwrata instead of the house. 1st paragraph: At the time of the execution of the will, the legatee or devisee is the owner.

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2nd paragraph: At the time of the execution of the will, the legatee or devisee is NOT the owner. That is why he can still get something if he acquires the property subsequently by virtue of onerous title. Q: What should be reimbursed? A: 1. if thru sale – the price paid therefor 2. if thru barter – the value of the thing exchanged 3. if thru an onerous donation (meaning part of the donation meron consideration, not pure liberality) – the value of the burden imposed. Example, if the house is worth P1M gi-donate kay B pero maghatag sya 100T sa mga anak ni X, that is the burden, that is the only valud that can be reimbursed. if thru adjudicacion en pago – the value of the credit, interest and cost.

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Q: Who reimburses? A: 1. The estate if no one has ben charged in particular; 2. The heir, legatee, or devisee who has been charged. Article 934. If the testator should bequeath or devise something pledged or mortgaged to secure a recoverable debt before the execution of the will, the estate is obliged to pay the debt, unless the contrary intention appears. The same rule applies when the thing is pledged or mortgaged after the execution of the will. Any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes with it to the legatee or devisee. Example, the testator owns a house. In his will, he gives the house to B but the house is mortgaged because nakautang ang testator so gi-collateral nya iyang balay. If the testator dies, of course the house will do to B. But the estate of the testator has the duty of freeing the house from the mortgage. Kay dapat free man sya paghatag, dili nya ihatag apil ang utang ☺ So if the testator gives something to the heir, legatee or devisee something which is burdened and the burden is by virtue of a recoverable debt (ang property gi-collateral para sa utang), dapat pagkamatay sa testator i-free sa ang property sa burden before ihatag sa legatee or devisee. Q: What if the testator owns the house which is beoing used by X as a usufruct, pagkamatay ni testator, pahawaon ba si X? A: The burden is transferred to B, assuming that there is agreement between the usufruct and the testator na dili maextinguish kay death extinguish the usufruct di ba? Pero kung naay agreement, it will subsists and it will go to B. The estate has no duty of freeingthe property from the usufruct.  Only when the property is subject to a burden based on recoverable debt like when the property is pledge, so g-prenda or mortgaged or antichresis, mao lang na sya ang i-free.  Any other burden like lease, usufruct, easement, dili na sila i-free, it shall go to the heir, legatee or devisee. Article 935. The legacy of a credit against a third person or of the remission or release of a debt of the legatee shall be effective only as regards that part of the credit or debt existing at the time of the death of the testator. In the first case, the estate shall comply with the legacy by assigning to the legatee all rights of action it may have against the debtor. In the secomd case, by giving the legatee an acquittance, should he request one. In both cases, the legacy shall comprise all interests on the credit or debt which may be due the testator at the time of his death.  LEGACY OF CREDIT: Example, the testator provides in his will “I hereby give to B whatever credit (P500T) I have with A.” So A is the debtor of the testator. Ang testator naa sya credit. This is the legacy of credit. So ihatag nya kay B ang utang ni A, so instead na magbayad sya sa testator kay B na sya magbayad. If the testator dies, so A has now the right to collect the P500T. Together with the legacy of credit the testator also has the duty of giving to B all the right which pertains to the credit. So pag naay pledge or mortgage makuha pud ni B. Q: What if the A (debtor) bayad sya P300T. At the time of the death of the testator the remaining balance is P200T, how much will B get by virtue of the legacy of credit? 500T or 200T? A: P200T, the law says only as regards that part of the credit or debt existing at the time of the death of the testator.

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Q: What if instead of paying, A nangutang pa gyud sya ug P200T. So 700T na iyang utang. How much will B get from A by virtue of the legacy of credit at the time of the testator’s death? 500T or 700T? A: P500T only. There is an article when property acquired after the execution of the will but before the death, those properties will not pass to the heir. (article 793)  LEGACY OF REMISSION: Example, si A nangutang P500T kay testator. In his will the testator provides, “I hereby give to A whatever amount that is due to me from him.” So meaning dili na magbayag si A. This is the legacy of remission. Q: What if A pays P300T knowing that the testator already has given him the legacy of remission. So at the time of death 200T na land ang nabilin. How much will A benefit from the legacy of remission? A: Only 200T, only such part existing at the time of the death of the testator. Q: What if dugangan ni A iyang utang ug 300T, how much will he gets? A: Still P500T. This legacy of remission stands in the same status as donation. Why? When the testator dies the value of the debt should be added to the gross estate, so i-collate gihapon. We have discussed na legacy or devise dili sya dapat i-collate. But this is a legacy of remission, it is considerd as donation mortis causa so it should be collated, added to the value of the estate at the time of the death of the testator. Why? Because A here already receives the same during his lifetime, nakautang sya so naa na sa iyaha money pero effective lang ang legacy of remission at the time of death of the testator. Q: What if the legatee does not know that there is a legacy in his favor tapos nagbayad sya. But he pays P300T. What happen to the payment should it be deducted? At the time of death, how much will A get? 200T or 500T? A: P500t because this is now a case of solutio indebiti, payment by mistake. Kung nakabalo sya dili sya magbayag di ba? But if he knows but still he pays then you deduct. The legacy of remission also carries with it the duty of the estate of the testator to give the legatee an acquittal. Kung mangayo sya acknowledgment na wala na gyud sya utang so tagaan sa estate ang legacy like for instance a note to that effect. Article 936. The legacy reffered to in the preceding article shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt, even if such payment should not have been effected at the time of his death. The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. Example (same as above), the testator gives A a legacy of remission in 1980. In 1982, the testator files an action for the collection against A. What happens to the legacy of remission in favor of A? That is considered to have been revoked. Even if such payment has not been effected, bisan wala pa nagbayad si A namatay na ang testator, revoke na. This rule also applies to legacy of credit. Example, B is the legatee. A is the debtor. The testator gives to B the right to collect the debt of A, so there is now a legacy of credit. But after having provided for in the will that B shall now have the right to get the credit, the testator files an action for collection. The legacy of credit is considered revoked. The action referred to in this article is a judicial action. So if demand letter lang it is not considered as revocation. It must be a judicial action. 2nd paragraph: The legacy to the debtor of the thing pledged by him is understood to discharge only the right of pledge. Example, A by virtue os his debt of P500T pledged his Television set to the testator. What if in the will the testator provides “I hereby give to A the TV pledged by him.” So at the time of death of the testator, wala na ba utang si A? Naa lang gihapon because the testator only provides the TV pledged by A. What is the effect of this? The pledged is excluded but the debt still subsists. Why? Because pledged is merely an accessory contract. Accessory follows the principal but the principal does not follow the accessory. So the extinction of the accessory does not follow the extinction of the principal. However, if the debt is remitted then the exrinction of the debt carries with it the extinction of the pledge or mortgage. Accessory contract are extinguished with the legacy of remission. Under article 936 although there is a legacy of remission and legacy of credit still there is no warranty on the part of the testator as to the existence or legality of the credit or as to the solvency of the debtor. So if the testator gives to B a legacy of credit but it turns out that A is insolvent walay obligation ang testator natagaan si B kay insolvent si A. There is no warranty.

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Article 937. A generic legacy or release or remission of debts comprises those existing at the time of the execution of the will, but not subsequent ones. This article specifically talks about legacy of release or remission of debt. Example, A owes P100t the testator 100T. 1. The testator in 1990 executes a will providing that he is remitting or condoning the debt of A of P100T. So legacy of remission. Is this a generic or specific? Specific. 2. A has many debts. One contracted in 1996 and 1997. The testator in 1996 provides in his will “I hereby remit all the debts of A (without specifying what debt).” In 1992, 1993, 1994, still contracted debts. The testator died in 2000. What debts are remitted? Those existing at the time of the execution of the will. So only the debts in 1997 down. 1992 – 1994 not included. 3. Many persons owe the testator debt, A, B and C. The testator provides, “I hereby remit all the debts of my debtors.” So specify nya tanan, it is valid kung ma-identify nimo iyang debtors. All debts existing at the time of execution of the will are deemed remitted although the remission will take effect upon the death. But this remission refered “All the debts” existing at the time. So if there are other persons who additionally contracted a debt after the date of the execution of the will then these debts are not included.  The value of the debt remitted should not exceed the portion which the testator can freely dispose of. It must not exceed the free disposal. Because if for Example the debt if P2M. The estate is worth P3M and he has a son. The legitime of the son is P1.5M. Obvioulsy the debt of A which is P2M if we would give effect to the legacy of remission, the legitime of the son will be impaired. Q: What do you do? Asa man na debt didto ang remitted? A: You reduced the P2M. Q: How do you reduced? A: You apply the rule on Application of Payment in your Obligations and Contracts. In application of payment it is the debtor who choses first, if there is no choice then the creditor but he shall declare in the receipts. If there is no choice by the debtor or the creditor then by operation of law. Article 938. A legacy or devise made to a creditor shall not be applied to his credit, unless the testator so expressly declares. In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or the legacy or devise. Here the testator is the debtor. So the testator P1M owes from A. In his will, the testator gives to A a car worth P2M. Q: Should the legacy to A be considered payment of the debt of the testator? A: No, this is a legacy given to the testator. The reason for the legacy is presumed as the liberality of the testator. But if the testator EXPRESSLY DECLARES that the P2M shall be in payment of his debt from A then in that case it would be applied. However, you apply the Rule on Dacion en pago. You cannot just say I hereby give to A my car worth P2M as payment of my debt. Beucase the testator cannot just provide that the car shall be made in payment of the debt. This is in the nature of Dacion en pago. In dacion en pago the creditor must accept. 2nd paragraph: In the latter case, the creditor shall have the right to collect the excess, if any, of the credit or the legacy or devise. If the creditor accepts then no problem. If the car is worth P3M and the testator provides in his will “I hereby give to A my car worth P3M in payment of my debt which is P2M.” the creditor accepts. In this case, the excess shall be given back to the estate of the testator which is P1M. Or, If the debt is P2M and the value of the car is only worth P1M the creditoe can collect the excess. That is if the creditor agrees that the legacy shall be in payment of the debt. Article 939. If the testator orders the payment of what he believes he owes but does not in fact owe, the disposition shall be considered as not written. If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. The foregoing provisions are without prejudice to the fulfillment of natural obligations. The testator believes that he owes A P5M so in his will he provides, “I hereby gives to A cash worth P5M.” But in truth and in fact wala diay sya utang kay A.

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Q: What happens to the disposition in favor of A? A: Under article 939, it is considered as not written because the giving here implled by the wrong belief by the testator. This is the case of Solution Indebiti, payment by mistake. Under the rule that No one shall be unjustly enrich at the expense another then you should return. 2nd sentence: If as regards a specified debt more than the amount thereof is ordered paid, the excess is not due, unless a contrary intention appears. If the debt is only worth P2M then the testator provides in his will that he shall pay P5M then the excess shall be returned to the estate of the testator unless the testator provides that the creditor may keep the excess, in that case, the creditor shall not retun the excess. Q: What if the debt of the testator has already prescribed (20 years ago pa ang utang). But in his will the testator provides for the payment of such debt. Should the disposition be given effect? A: It should be given effect because this is governed by NATURAL OBLIGATION. Under the Rule on Natural Obligation, you cannot take back what you have given. Article 940. In alternative legacies or devises, the choice is presumed to be left to the heir upon whom the obligation to give the legacy or devise may be imposed, or the executor or administrator of the estate if no particular heir is so obliged. If the heir, legatee or devisee, who may have been given the choice, dies before making it, this right shall pass to the respective heirs. Once made, the choice is irrevocable. In alternative legacies or devises, except as herein provided, the provisions of this Code regulating obligations of the same kind shall be observed, save such modifications as may appear from the intention expressed by the testator. This article is the RIGHT OF CHOICE in alternative legacy or devise. Example, the testator provides in his will, “I hereby give to B a car or a house or a parcel of land.” So naay choice. Q: Who shall exercise the choice? A:  If no one in partculer is charged with duty of giving the legacy or devise, so it is the estate which has the right of choice so ang estate na an gang mamili kung asa ang ihatag.  If a particular heir or legatee or devisee is charged with the duty of giving the legacy or devise so naay sublegacy/devise then, it is the heir, legatee or devisee burdened, who has the right of choice. NATURE OF THE RIGHT OF CHOICE: • Not a Personal Right. It is a TRANSMISSIBLE RIGHT because if X is the heir charged with the burdened of giving to B either car 1 or car 2 or car 3, but prior to making his choice, X died. This right to chose passes on the heirs of X. So anh heirs ni X na ang mag-choose. Q: What is the effect of the exercise of the Right of Choice? A: Once the heir burdened exercise the right of choice then the legacy or devise ceases to become an alternative one, so it becomes pure and simple legacy, once the choice is exrcise. So if X choose car 1, the legacy becomes simple or pure legacy. Moreover, once the choice is exercise that choice becomes irrevocable. Example, If X is the heir charged with the burden of giving the car to B by the testator and if X wala pa sya nag-exercise sa Right of Choice and while he is dying he executed a will wherein he exercise his right of choice, “I hereby leave my estate to my children and with respect to the legacy of B I hereby select car 1 to be given to B.” Note that B inherits not from X di ba but from the testator. If subsequently before he died revokes his will, then nagpili na pud siya ug car 3 para ihatag kay B. Q: Can he do that? A: Once the choice is made it is irrevocable even if it is embodied in a will charged with burden still if that selection or choice is exercise in whatever instrument that choice is irrevocable. In alternative legacies or devises, the rule in Obligations and Contracts with respect to alternative obligations also applied but only in a suppletory manner because the supreme law here is really the will of the testator. If anything in the rule in Obligations and contract conflicts with the will of the testator then the will of the testator shall prevail. Article 941. A legacy or generic personal property shal be valid even if there be no things of the same kind in the estate. A devise of indeterminate real property shall be valid only if there be immovable propery of its kind in

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the estate. The right of choice shall belong to the executor or administrator who shall comply with the legacy by the delivery of a thing which is neither of inferior nor of superior quality. This article talks about the difference in the rule on generic/indeterminate personal property and generic/indeterminate real property. EXAMPLE: 1. “I hereby give to A a car.” – This is a generic personal legacy. If there is a car in the estate then you give the car to A. But if there no car in the estate and the testator knows that he does not have a car then it is still valid, mangita lang ka ug car ihatag kay A. 2. If it is Real property, “I hereby give to A a parcel of land.” – In this case, if there in none in the estate then it is void. Q: Why is there such a distinction? A: According to Manresa, the genus in personal property is determined by nature so for example car. While, in real property there is actually no genus to speak of because the genus is determined by words of man or individualize by the efferts of man. Like land, unsa ba ang distinction sa land? Land man na sila tanan. But how is one land distinguished from another land, depende na sa tao if he makes some improvements thereon etc. So there is hardly any genus in real property. Q: When do you reckon that there is really such kind of thing existing in the estate of the testator? Example, “I hereby give to A a 500sq m land.” At the time of the execution of the will there is no land. At the time of the death of the testator there is already a land. The land is a generic devise because it is not specified the location, what title it is covered only that it is 500 square meters. A: It should be reckoned at the time of death of the testator. Because the law says estate meaning the testator already died. Article 942. Whenever the testator expressly leaves the right of choice to the heir, or to the legatee or devisee, the former may give or the latter may choose whichever he may prefer. As we said, as a general rule, the right of choice belongs to the estate, or the heir or legatee or devisee. But there is nothing wrong if the testator will give the right of choice to the heirs or legatee or devisee favored. In my example, car 1, car 2 and car3, puede ang right of choice ihatag nya sa legatee favored. The testator can so provide in his will. The law says Whichever he may prefer, he can actually choose things which are of superior quality or inferior quality or medium quality. There is no obligation on his part to choose only the one which is of medium quality, so he can choose whichever he prefer. Article 943. If the heir, legatee or devisee cannot make the choice in case it has been granted him, his right shall pass to his heirs, but a choice once made shall be irrevocable. In the example, the heir burdened has the right of choice. If he dies before making a choice, the right passes to his own heirs. In this article, you can also refer to the heir, legatee or devisee FAVORED. If he dies before making his choice then his right of choice passes to his own heirs. LIMITATIONS OF THE RIGHT OF CHOICE: (in alternative legacies/devisees or in generic/indeterminate legacies/devisees) 1. Thr choice is limited to things alternatively the object of legacy or devise Meaning, if it is a generic legacy of a car so he can choose only a car. He cannot choose a house. 2. 3. Cannot choose an illegal or impossible or that which could not have been intended by the testator. No right of choice when among legacies or devises only one is practicable. Example, cars daw pero only one is in running condition. So practically there is no choice here. Article 944. A legacy for education lasts until the legatee is of age, or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently. A legacy for support lasts during the lifetime of the legatee, if the testator has not otherwise provided.

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If the testator has not fixed the amount of such legacies, it shall be fixed in accordance with the social standing and the circumstances of the legatee and the value of the estate. If the testator during his lifetime used to give the legatee a certain sum of money or other things by way of support, the same amount shall be deemed bequeathed, unless it be msrkedly disproportionate to the value of the estate.  LEGACY OF EDUCATION: Q: For how lonh should the legacy of education lasts? A: GENERAL RULE: Up to the age of majority (18 years old) EXCEPTION: The law says or beyond the age of majority in order that the legatee may finish some professional, vocational or general course, provided he pursues his course diligently. Q: How do you know that the heir or legatee pursues his course diligently? A: This is a question left to the discretion of the court.  LEGACY OF SUPPORT: GENERAL RULE: Lifetime of the legatee, as long as the legatee is alive the legacy for support lasts. EXCEPTION: The testator can provide otherwise. Puede for certain or shorter period. Q: How much is the value of the legacy for education or legacy for support? A: The 3rd paragraph says the testator can fix the value. If the testator has not fixed the value then, the amount shall be in accordance to the social standing and the circumstances of the legatee and the value of the estate. Q: What is the value of the estate referred to here? A:  If the legacy is charged against the estate then it should not exceed the value of the free disposal.  But if the legacy is charged against an heir or another legatee then the value should not exceed the inheritance of that heir or lagatee charged with the legacy for support or education.  If during the lifetime of the testator, naghatag sya ug P100T a month, so that be the standard provided again that it should not exceed the value of the free disposal. Article 945. If a periodical pension, or a certain annual monthly, or weeky amount is bequeathed, the legatee may petition the court for the first installment upon the death of the testator, and for the following ones which shall be due at the beginning of each period; such payment shall not be returned, even though the legatee should die before the expiration of the period which has commenced. We have learned that you can actually provide for legacy of allowance or pension. For example, the legacy is to give B P5T every 15th day of the month. Then the testator died first day of the month. Q: Should the heir wait for the 15th para makuha nya ang amount? A: The heir can petition after the death of the testator, makuha na nya ang 1 st installment and for the following ones which shall be due at the beginning of each period. Q: For example, 1st day pa lang gikuha na nya ang allowance and on the 2 nd day namatay na ang legatee, should the estate of the legatee return the money? A: No, you cannot return the money anymore. Q: When do you petition? (legatee so there is a Will) A: The procedure is: • The will must be admitted to probated; • After the will is admitted to probate, the legatee can petition the court for the delivery to him of the allowance provided that the debts and taxes of the estate have been paid first. You have to pay first the debts and other charges because there are situations wherein the debts exceed the value of the estate such that even if there are legacies and devises in the will of the testator, if the debts of the testator exceed the value of the estate then you cannot give effect to the legacy or devise. Article 946. If the thing bequeathed should be subject to a usufruct, the legatee or devisee shall respect such right until it is legally extinguished. This is related to the one we discussed before that when the thing given is subject to a burden which is to secure a recoverable debt, the estate of the testator has the duty of fleeing the property from the burden, any other charge shall pass to the legatee or devisee or the heir whether perpetual or temportary, so one of wich is the usufruct.

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This is a burden on the property but this is not a burden whichn is use to secure a recoverable debt. And under article 946, this passes on to the legatee or devisee. The legatee or devisee has to respect the usufruct. You should wait until the usufruct is extinguished. You cannot just demand that the estate of the testator free the property from the usufruct. Article 947. The legatee or devisee acquires a right to the pure and simple legacies or devises from the death of the testator, and transmits it to his heirs. Q: What is a Pure and Simple legacy or devise? A: That which is subject to any condition. So upon the death of the testator, makuha dayon dili na sya maghulat ug period, dili na sya maghulat ug condition, the legatee or devisee acquires a right to the pure and simple legacy or devise. This article talks about the Right to the Pure and Simple legacy. Meaning from the time of the death of the testator, you already have the right. Right lang, wala pa ang property sa imoha. Q: What if it involves a specific property? A: If the property is specific then you acquire the property from the testator’s death.  If the property is generic then from the time of the selection. Although you have right to the legacy or devise from the time of death but the property itself , you have the right over the property from the time of selection. Becuase until the estate or the heir, legatee or devisee charged has chosen the property, you cannot identify which property is being given. So the time of selection that is the time that you have the right over the property.  If Alternative, from the time of selection also.  If to be acquired from a stranger, from the time of acquisition. Q: What if the legacy or devise is subject to a condition? As long as the condition has not happned yet, there shall be no right. But as long as the condition is fulfilled, when do you count the accrual of the right? A: It retroacts to the death of the testator. In effect, once the condition is fulfilled it is as if you acquire the right from the moment of death of the testator. So if anything happen from time of the death of the testaor and up to the fulfillment of the condition, for example, some other person acquires adverse interest over the property, you can calim prefercne because once the condition is fulfilled your right retroacts to the date of the death of the testator. So that is in legacies or devises subject to a condition. We also have legacies or devises subject to a Term (resolutory or suspensive term). We discusee before na you have to wait until the arrival of the term. But if the legatee or devisee die prior to the arrival of the term, what happens should you extinmguish it right now? Who will exercise the right? Q: Example, the testator gives a legacy of a car to B 10 months from death of testator. So 10 months from the death of the testator nakuha na nya ang property. When does the right of B over the legacy, 10 months after or after the death? A: he acquired the right from the time of death. Although na-suspend lang ang effectivity. If B dies before 10 months and he has his own heirs, his own heirs can get the property after 10 months. So when you say Term, the right to the property vests only upon the arrival of term. Article 948. If the legacy or devise is of a specific and determinate thing pertaining to the testator, the legatee or devisee acquires the ownership thereof upon the death of the testator, as well as any growing fruits, or unborn offspring of animals, or uncollected income; but not the income which was due and unpaid before the latter’s death. From the moment of the tesator’s death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. From the moment of death of the testator all income or fruits of determinate thing pertaining to the testator, the legatee or devisee acquires ownership thereof. Q: How about from the moment of the institution of the will up to the time before the death? A: These are not included, but not the income which was due and unpaid before the latter’s death . These are properties considered to be again AFTER-ACQUIRED which we discussed under article 793. Art 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention.

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Art. 781. The inheritance of a person includes not only the property and the transmissible rights and obligations existing at the time of his death, but also those which have accrued thereto since the opening of the succession. • • • • We have here article 948 co-relate with article 781 and article 793 of the Civil Code. Inheritance – you can apply article 781. Legacy/ devise – you can apply article 948. (The same with article 793.) Inheritance - article 793. If specific legacy/devise we have article 948.

2nd paragraph: From the moment of the tesator’s death, the thing bequeathed shall be at the risk of the legatee or devisee, who shall, therefore, bear its loss or deterioration, and shall be benefited by its increase or improvement, without prejudice to the responsibility of the executor or administrator. Naturally because from the moment of the testator’s death, the specific legatee or devisee already own the specific legacy or devise therefore, in accordance with the rule Res Perit Domino the owner bears the loss, so whatever deterioration or loses that may be caused on the property at the time of the moment of death of the testator and thereafter, these deterioration or loses shall pertain to the legatee or devise. If the thing is lost by virtue of the fortuitous event, the owner bears the loss. But if the loss is by fault of anyone other than the legatee/devisee, you apply the rule on quas-delict or Obligation and contracts like in case there is a delay in the delivery of the thing given as legacy/devise and the legatee/devisee already demanded for it, if there is a delay and the thing is lost before the delivery, the estate, the heir or legatee or devisee burdened shall bear the loss. Article 948 talks about growing fruits. In your Property, you have discussed growing fruits, expenses for their gathering, preservation. Article 443. He who receives the fruits has the obligation to pay the expenses made by a third person in their production, gathering and preservation. Q: Should the heir or the devisee/legatee in article 948 pays the testator for the expenses with respect to the production under article 443? A: No because with respect to the legatee/devisee, the testator is not considered as a third person. The legatee/devisee is merely succeeding to the rights of the testator. With respect to the cost of gathering, the article says, growing fruits, meaning, still attach to the ground or land. So any fruit or crop that has been gathered at the time of the death of the testator, so gathered na sya dili na growing. Q: To whom shall those gathered crops pertain? A: To the testator because it is already separate from the land at the time of the time of the death. So only GROWING CROPS (still attach to the land), by virtue of Accession.  APPLICABILITY OF ART. 948: 1. 2. It applies to Simple and pure legacy/devise Legacies and devises subject to resolutory condition. Meaning, at the time of death, you own the property and the fruits but after the condition is fulfilled, you retrun the property.

Q: How about the legacy/devise is subject to a Suspensive condition? Suspensive condition meaning, the legatee/devisee only acquires the property upon the fulfillment of the concdtion. But still, as we discussed before, the right retroacts to the moment of death. A: Artcile 948 applies in view of the retroactive effect of the condition once it is fulfilled. Q: How about Supensive Term? The right already pertain to the legatee/devisee from the moment of death But how about the property, di ba it is merely suspended? A: When you say suspensive term, you already have personal right over the fruits. Personal lang, a right that can be imposed against the estate. Since the right to the property itself vests only from the moment the term arrives therefore, the legatee/devisee acquires REAL RIGHT over the fruits or income from the moment of delivery. And as you distinguished Personal Right from Real Right, the former can be enforced only against the estate, the latter can be enforced against the world. BAR QUESTION: What do you understand by the Right of Ademption? Lake v. Harrington

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120 Miss. 74 (1953) Facts: The testator provides in his will, “I hereby give a legacy of monthly allowance to B and the legacy is to be effective if and only if I have not done this during my lifetime.” Meaning, effective sya kung walay allowance gihatag during the lifetime. For example, the monthly allowance is P2,000. After the execution of the will, the testator made a donation to B giving B P2,000 per month for 10 years. Later on, the testator again executed a 2 nd will, so the provision in this will is the same as those in the first will. After the testator executed the 2 nd will, he stops giving allowance to B. B filed an action against the testator. The purpose of his action is to give effect to the legacy na tagaan sya ug monthly allowance of P2T per month. Issue: What is being relied upon by B? Ruling: B now is exercising the Right of Ademption. The Right of Ademption which is the process of giving effect inter vivos to a disposition mortis causa. He wants to give effect to the legacy whi h is disposition mortis causa anmd he wants to give effect to this legacy inter vivos, during the lifetime of the testator because the testator says the legacy is to be effective if and only if I have not done this during my lifetime. That is the Right of Ademption. The Supreme Court however, denied it because the testator intended not to give to B the monthly alloawance. Why? Because after he made the 1st will then he ande a donation, he executed another will and right after he executed the 2nd will, he stopped giving the testator to B. So here there is clearly on the part of the testator NOT to give effect to the legacy during the lifetime. If for example, the testator did not execute a 2 nd will and the donation stop then B can file an Action for Ademption. Article 949. If the bequest should not be of a specific and determinate thing, but is generic or of quantity, its fruits and interests from the time of the death of the testator shall pertain to the legatee or devisee if the testator has exepressly so ordered. Article 949 speaks of Generic thing meaning it has not been segregated or particularly designated. So before selection, you do not know for sure what property is being given. For example, a legacy of a car. The testator has many cars. So prior to selection, you do not know what car is being given to you. GENERAL RULE: The right to the fruit does not pertain to the legatee/devisee prior to selection and even after the death of the testator. EXCEPTION: If the testator expressly provides that the legatee/devisee will still get the fruits prior to selection. Example, if the testator provides, “I hereby give to C taxi (daghan sya taxi) and I expressly declare that C shall get the income from the taxi from the moment of my death and thereafter.” – in this case, even if there has been no selection the fruits or income will pertain to the legatee/devisee. Q: How about money? “I hereby give to B cash worth P5M.” Is money generic? A: Yes (gawas lang kung ibutang a serial number sa money) Q: How about the interest? A: The interest accrues only from the time of default. When is there default? When there is demand. So there has to be demand on the part of the leagtee in order to place the estate or the heir, the legatee/devisee charged in default. 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; (5) Legacies or devises of a specific, dterminate thing which forms a part of the estate; (6) All others pro rata.

 1. 2. 3. 4.

Under article 911 we have the following order: legitime; Donations inter vivos; Preferred legacies/devises; All others pro rata.

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ART 911 This article is applied when there is/are compulsory heir/s AND/OR there are donations inter vivos

ART 950 This article is applied when there NO compulsory heirs and their legitimes are in danger of being impaired AND/OR there are NO donations inter vivos. All you have to do is, among the legacies/devises which of them should be given priority over the other. If there are compulsory heirs but their legitimes are not impaired you can apply article 950.

 Keyword for Article 950: RPSESA R – remuneratory E – education P – preferential S – specific things S – support A – all others REMUNERATORY LEGACIES/DEVISES – these are given by the testator as a remuneration or compensation, as a reward to certain persons, not as payment of a debt. The amount given does not constitute a recoverable debt such that the legatee/devisee cannot file an action against the testator for recovery of the amount because it is merely a remuneration. PREFERENTIAL – declared by the testator to be given preference. SUPPORT – Under article 290 of the Civil Code, it refers to everything that is indespensible like the food, sustenance, clothing, education, medical attendance, so the word education is included under the Civil Code. But under article 950 you have to separate the two. So all items for Support excluding education. EDUCATION – this comes after support. SPECIFIC THINGS (LEGACIES-DEVISES) – You have to remember the word “which forms a part of the estate.” Why? Because even if it is specific legacy or devise but it is not yet on the estate and it is to be acquired from another person or another estate, it is not included in the legacy or devise of a specific determinate thing. If the legacy/devise is to be taken from another person to be given to the legatee/devisee, in that case, that falls under All others pror rata. Under article 950, we have the same process of computation with article 911 for as long there are no compulosery heirs and/or donations inter vivos. Article 951. The thing bequeathed shall be delivered with all its accessions and accessories and in the condition in which it may be upon the death of the testator. Article 952. The heir, charged with the legacy or devise, or the executor or administrator of the estate, must deliver the vey thing bequeathed if he is able to do so and cannot discharge his obligation by paying its value. Legacies of money must be paid in cash, even though the heir or the estate may not have any. The expenses necessary for the delivery of the thing bequeathed shall be for the account of the ehir or the estate, but without prejudice to the legitime. Q: What is the obligation of the heir, or legatee/devisee or the estate charged? A: Their obligation is to deliver the very same thing given. Even in alternative legacies/devises, you have to deliver the thing which is contemplated within the selection. You cannot deliver another thing.  Legacy of money, for example cash P500M. If there is no cash, puro lang property sa estate, you have to sell the properties. First, personal properties, if insufficient the you sell real properties. Q: Who shall bear the expenses for the delivery of the thing bequeathed or devised? A: The burdened heir, legatee/devisee or the estate shall bear such expenses. If he is a compulsory heir, the expenses should not such as to to affect the legitime of compulsory heir. Article 953. The legatee or devisee cannot take possession of the thing bequeathed upon his own authority, but shall request its delivery and possession of the heir charged with the legacy or devise, or of the executor

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or administrator of the estate should he be authorized by the court to deliver it. Article 954. The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. This article talks about one legacy/devise. Example, a house, it is a single devise but partly onerous, partly gratuitous. A is the heir. The 1 st floor and the 2 floor are given to A but with respct to the 2 nd floor, there is a burden and the burden imposed is for A to pass the bar. A cannot reject the 2nd floor with a burden and accept the other one. Dapat tanan.
nd

Q: What if A died after the testator and he has heirs B, C and D? A: His own rights will pass to his own heirs. Q: If C does not want the onerous devise but B and D gusto sila, is it allowed? A: It is allowed, so C will just refuse and only B and D will receive the devise provided that B and D should accept the ENTIRE DEVISE with all the onerous condition. Article 955. The legatee or devise of two legacies or devises, one of which is onerous cannot renounce the onerous one and accept the other. If both are onerous or gratuitous, he shall be free to accept or renounce both, or to renounce either. But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devise must either accept or renounce both. Any compulosry heir who is at the same time a legatee or devisee may waive the inheritance and accept the legacy or devise, or renounce the latter and accept the former, or waive or accept both. Article 955 there are 2 legacies/devises, one is onerous the other is not. The rule is the same, you cannot accept the gratuitous and repudiates the onerous. So you have to accept both. But of both are onerous or both are gratuitous, you cannot accept the other and repudiates the other.  Common under article 954 and 955: Article 954, The legatee or devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Under article 955, The legatee or devise of two legacies or devises, one of which is onerous cannot renounce the onerous one and accept the other. Q: What if you choose to accept the onerous and reject the gratuitous, is it allowed? A: The law says cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous , so you cannot repudiate the onerous and accept the one which is not burdened. Also in article 955, cannot renounce the onerous one and accept the other. Q: Is there any prohibition if you accept the onerous and reject the one which is not burdened? A: None in article 954 and article 955. 3rd sentence 1st paragraph: But if the testator intended that the two legacies or devises should be inseparable from each other, the legatee or devise must either accept or renounce both. This is applicable if there are 2 or more legacies/devises and ALL of them are onerous or ALL of them are not onerous. Even if as a general rule, di ba puede mu-acceot ang isa i-reject ang isa, if the testator INTENDED that ALL of the legacies/devises are indivisible by intention of the testator not really by nature, then you have to accept ALL or None at all. When it comes to compulsory heir, there is no prohibition. He can accept the gratuitous and reject the onerous because he is a compulsory heir, he is entitled to the inheritance as long as he is not disinherited. Article 956. If the legatee or devisee cannot or is unwilling to accept the legacy or devise, or if the legacy or devise for any reason should become ineffective, it shall be merged into the mass of the estate, except in cases of substitution and of the right of accretion. Q: For example, the testator instituted A, B and C as legatees of cash worth P3T. What if B dies ahead of the testator? So what happened to the legacy of cash? A: Under article 956, it shall be merged into the mass of he estate. So ibalik sya sa estate of the testator. Q: What now happens to the money which is returned to the estate of the testator?

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A: It shall go by way of intestacy. EXCEPTION: 1) Substitution – The testator provides in his will, “To A I give a car, to B cash and C house and in case B defaulted or unable to receive the cash X shall be the substitute of B.” So if B dies ahead of the testator, the money given to B by way of legacy will not be retuned to the estate but it shall go to the substitute. 2). Right of Accretion – A, B and C are heirs to a house. What if B dies ahead of the testator, what happens to the share of B? Shall it go by way of intestacy? Will it go to the substitute? Is there a substitute? In this case, there will be accretion. He share of B will now accrue to A and C. You will learn later on that when 2 or more heirs are instituted to the same inheritance, is one of them becomes incapacitated there will be right of accretion in favor of the other heirs. We have what we call the order which have to be followed in case there is a vacancy in the portion inherited. We have the acroname ISRAI: I – institution S – substitution 1. 2. 3. 4. 5. R – representation A – accretion I – intestacy

You have to follow the disposition of the testator, if there’s an instituted heir then you give the property to the instituted heir; If there is none or the instituted heir becomes incapacitated, then if there is a substitute then give to the substitute; If there is no substitute then representation if proper; if there is nom representative or representation is not proper then it will go by way of accretion, it shall go to the other co-heir; If accretion will not be possible then finally intestate or legal succession.

Article 957. The legacy or devise shall be without effect: (1) If the testator transforms the thing bequeathed in such manner that it does not retain either the form or the denomination it had; (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right repurchase; (3) If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir’s fault. Nevertheles, the person obliged to pay the legacy or devise shall be liable for evicton if the thing bequeathed should not have been determinate as to its knid, in accordance with the provisions of Article 928. This article enumerates the instances wherein the legacy/devise shall be WITHOUT effect. 1. TRANSFORMS THE THING

 The thing here means the Specific thing because if it is a generic thing then you do not know prior to selection which of the thing in the estate of the testator is being bequeathed or devised.  The transformation must be IN FORM OR IN DENOMINATION. • • FORM – external or intenal appearance of the thing. Like a gold necklace gi-melt sya nahimo sya ring. Is the form the same? No, from necklace to ring is not the same. DENOMINATION – meaning the name being given to the thing. In the same example, before it is called a necklace now it is called a ring.

 When the testator transforms the thing such that it does not retain the form or the denomination it had then there is REVOCATION of the legacy or devise and the legacy/devise becomes ineffective. 2. ALIENATES THE THING

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 The testator gives a devise of a land. If the testator after giving the land to A, the testator sells or donate (by any title) the land then, there is revocation of the devise. So the legacy/devise becomes ineffective.  If the testator alienates PART of the property then the revocation is only as to the part alienated. So only partial not entire revocation. ILLUSTRATION: 1. The testator gives a specific land in his will to B. The will was executed in 1989. In 1990, the testator sells to C the same land given to B. C in 1995 donated the land to the testator. The testator died in 2000. Q: What happened to the devise of a land to B upon the death of the testator in 2000? Is it still effective or already revoked? A: Still it is revoked. What is important is that the testator alienated the property. If after the alenation the thing should again belong to the testator, the law says the legacy or devise shall not thereafter be valid. Bisan pa nareacquire nya, still the devise/legacy shall not be valid. 2. Same land given to B by way of devise, then subsequently after the execution of the will, the testator sells the land to C. However, the sale between the testator and C is declared null and void for lack of consideration. Null and void meaning mabalik sa testator ang property. Q: After the death of the testator, is the devise to B still valid or not? A: Still it is void. Even if it be by reason of the nullity of the contract. EXCEPTION: The reacquisition shall have been effected by virtue of the exercise of the right repurchase. 1) The testator gives the land to B by way of devise. In 1990, the testator executed a Deed of Sale with C (pacto de retro, there is right of repurchase). Before the tesaor died he exercised his right under the pacto de retro sale, he repurchased the land. Q: When the testator died, what will happen to the devise? Is it already revoked because of the sale or it reamians valid? A: If he has reaquired it by virtue of the right of repurchase, meaning the testator really intended to take back the land because he wants to give effect to the devise so in that case, it is the presumption of the law that is why when there is a right of repurchase and the testator exercise that right prior to his death then even if the property was previously alienated still the legacy or devise remains valid. 2) If the testator sold the land to C but C threatened the testator that he will kill the testator if he will not sell the land to C. So gibaligya na lang sa testator ang land kay C. Q: What is the nature of the contract between the testator and C? A: It is voidable because there is vitiated consent. Q: The testator re-acquired the land kay na-declare na null and void. So what happen to the legacy/devise, is it revoked or it remains effective? A: Under article 957, it must be voluntary. So when the alienation is not voluntary because ther has been vitiated consent, it has been effected by fraud, violence, intimidation or mistake then there is NO REVOCATION of the legacy/devise. Q: If the testator devise a land to B and subsequently the testator sold the land to B. What happened to the devise, is it valid or becomes ineffective becuas it has ben alienated by the testator ? A: According to Paras, it is valid. But because the testator sold it to B, so si B na ang owner at the time of the death but not at the time of the execution of the will and B acquired the land by virtue of onerous title. So the rights of B upon the death of the testator is reimbursement. Q: What if the land is given as devise to B and subsequently the testator donated it to B? So what happens to the devise/legacy after the death? A: Wala na. Q: How about the right of B can he ask for reimbursement? A: Under the Civil Code, when the devisee or legatee acquires the property by gratuitous title he is not entitled to reimbursement. Q: What if the testator after giving the land to B by way of devise sells the land to C then C later on sells the land to B? What are the rights of B after the death of the testator? A: The devise/legacy is revoked because of the alienation. It does not matter that the legatee/devisee acquires the property. 3) The testator is the co-owner of the land with X. The testator provides in his will, “I hereby give the entire land I co-owned with X to B.”

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Q: Is the Provision valid? A: It is valid because the testator knows that he is merely a co-owner. It is an implied order to the estate to acquire the property to be given to B. Q: Prior to the death of the testator, the testator and X decided to end their co-ownerhip, so there is partition. The testator just agreed na reimburse lang sya ni X sa iyang share. So kay X na ang land tanan. After the death of the testator, what happen to the devise in favor of B? A: It is valid and revoked. The valid part is the portion of X. X because the testator provides “I hereby give the land I co-owned with X.” So ihatag nya. It does not matter that the land is owned by X. the testator knows that the land is not his but he gives the land in its entirety to B. Q: How about the protion previously co-owned by the testator? A: It is the one revoked because by agreeing that he should be reimbursed by X, he is in effect alienating the property. The devise cannot contemplate money because it is not the one devised, it is the land. So with respect to the share of the testator to which he agreed to be reimbursed by X, it is considererd revoked. B can only ask for the share pertaining to X. As to the part pertaining to the testator, that has been revoked. 3. LOST OF THE THING

 The thing is lost WITHOUT the fault of the testator.  What do we mean by lost? It is either physical or legal. Physical kung dili na sya makit-an. Legal like for example when the thing is expropriated.  When the thing is not specific, it is generic or determinate, then the choice pertains to the estate or the legatee/devisee or the heir charged, in which case they should not deliver a thing which has defect. Like when the thinh chosen by the heir, estate, legatee/devisee is really owned by another person. So nawala sya. Therefore, even if the thing is lost, still the heir, estate, legatee/devisee charged is liable for eviction. Tagaan gihapon nya ang legatee/devisee or the heir. Article 958. A mistake as to the name of the thing bequeathed or devised, is of no consequence, if it is possible to identify the thing which the testator intended to bequeath or devise. This article is related to article 844 and article 789. Article 844. An error in the name, surname or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of other proof, the person instituted cannot be identified, none of them shall be an heir. Art 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator unto his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. So even if there is a mistake in the name of the thing bequeathed or devised, if it is possible to determine which of the thing of the tetsaotr is really intended, the mistake is of no consequence. So the devise/legacy remains valid. So you can use the provisions of article 844 and 789. 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. Example, in his will the testator merely provides, “I hereby give my land to my relative.” – so tanan ban a relative?  What is contemplated in article 959 is the raltives within the 5 th civil degree. And within the 5th civil degree, the nearer excludes the farther. Kung naay 1st degree excludes na ang 2nd degree etc. Only to the 5th degree because when there are no relatives up to the 5 th degree, the State becomes the owner by virtue of Escheat proceedings. 1st degree – parents 2nd degree – grandparents, brothers & sisters 3rd degree – nephews & nieces, greatgrandparents, uncles & aunts.

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 Under this artcle, the nearer relative excludes the farther. So if there are parents then the brothers & sisters are excluded. But under this article take note that there is no preference as to line. So it does not matter if descending or ascending, direct or collateral This is in testate succession. So grandparents & brothers & sisters are in the 2nd degree, they will both inherit in default of the 1st degree. Q: What if the testator says, “I give my land to the relative of my wife.” Will article 959 apply? A: No, article 959 applies only when the relatives are that of the testator. So if relatives of my wife or relatives of my children, dili na applicable ang 959. Q: If the testator says, “To all those who are entitled to my land.” Will article 959 apply? A: When the testator ssya to all those who are entitled, the clause evidently refers to intestate heirs and not to the tesator’s relatives. What he really means is that the land shall go by way of intestacy. So the rules of intestacy or legal succession will govern.

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Chapter 3 LEGAL OR INTESTATE SUCCESSION Section 1. – General Provisions Article 960. Legal or intestate succession takes place: (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 dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the ehir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes palce; (4) When the heir instituted is incapable of succeeding, except in case provided in this Code. The instances where legal or intestate succession are enumerated in this article. 1.) WITHOUT A WILL, VOID WILL, SUBSEQUENTLY LOST ITS VALIDITY  If a person dies without a will, naturally his estate will go by legal succession.  Void will – When does the will becomes void? Example, when it does not comply with the formalities required by law. In this case, even if there is a will it shall be denied probate and the estate of the decedent shall be disposed of by way of legal succession.  Subsequently lost its validity – Example, valid will but revoke by the testator. By virtue of the revocation, the will loses validity. Therefore, you cannot give effect to the will and the estate will be dispoed of by way of intestacy. 2) NO INSTITUTION OF HEIR  Example, when the will only provides for disinheritance. So there is no instituted heir. What happen? The will shall be effective in so far as the diinheritance is concerned. The rest of the estate shall go again by legal/intestate succession.  The will does not disposed of all the property belonging to the testator. Example, the estate consists of a 10-hectare land, he only diposes of 3 –hectare land. The 7-hectare land will go by legal succseion. So we have here a case of mixed succession. 3) SUSPENSIVE CONDITION IS NOT FULFILLED, PREDECEASE, REPUDIATES  Example, “I give P5M to B if B passes the bar exam.” – If B does not pass the bar for 5 times, so the condition is not fulfilled the P5M shall go by intestate/legal succession.

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 If the heir dies ahead of the testator and there is no representative yo succeed then again intestate succession  In case of repudiation, there being no substitution, no representative and no right of accretion then intestacy. 4) INCAPACITY We will learn later on the cases of incapacity. If incapacitated again, it shall go by way of legal succession. Q: Aside form these instances under article 960, what are the other instances? A: 1. Preterition; 2. Improper Disinsheritance 3. Fulfillment of a Resolutory condition – because the fulfillment of the resolutory condition extinguishes the institution. As a consequence, the property shall go by way of intestacy. 4. Arrival of the Resolutory period Q: What is the rationale of intestacy/legal succession? A: Testate succession is based on the expressed will of the testator as written on the will. In legal or intestate succession it is based on the presumed will of the testator. The law assumed that had the testator left a will then he would have disposed of his properties in favor of the persons named by the law as his legal heirs.  It is legal because it is the law which fixes the terms of inheritance.  It is intestate beucase there is no will. Forced Succession Succession to the legitime regardless of the will of the testator. So even if it is against the desire of the testator but the heirs are compulsory heirs then the testator has to give to these compulsory heirs. Legal/intestate succession Succession the dispositions are provided for by law because it is based on the presumed will of the testator.

Article 961. In default of testamentary heirs, the law vests the inheritance, in accordance with the rules hereinafter set forth, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State. This article talks about who are entitled to the estate of the decedent if he has left no will or he has no qualified testamentary heirs. So in default of testamentary heirs the legal heirs inherit. Article 961 does not yet talk about the preference or order. It only talks about who are entitled to the estate in default of testamentary heirs.  PRINCIPLE: Not all legal/intestate heirs are compulsory heirs. But all compulsory heirs are legal heirs. Like the brothers & sisters, nephews & nieces and the uncle & aunts. These people are legal heirs but they are not compulsory heirs.

Q: Is there disinheritance in legal succession? A: None, because disinheritance occurs only when there is a will and that the will must be a valid will. So it follows that legal/intestate heirs cannot be disinherited. Beucase in the first place you are allowed not to provide for them in your will because they are not compulsory heirs. But we have what we call EXCLUSION. Exclusion of legal heirs, of a brother or sister etc. So the term for legal heirs who are NOT compulsory heirs who are not given anything in the will is not disinheritance but Exclusion. KINDS OF EXCLUSION: 1) Express Exclusion Example, “I don’t want to give anything for my brother A.”

2) Implied Exclusion – When you provide for all your borhers & sisters except for one. The one who is not provided for in the will is impliedly excluded.  PRINCIPLE: Even if you can exclude a legal heir who is not a compulsory heir, you cannot exclude the State. The State is a legal heir not a compulsory heir but you cannot exclude The State. If you do not have heirs within the 5th degree then the property has to go to the State. There is Reprsentation of the excluded legal heirs. So even if you exclude one of your brothers still his children can inherit, they can represent.

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Article 962. In every inheritance, the relatives nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place. Relatives in the same degree shall inherit in equal shares, subject to the provisions of Article 1006 with respect to relatives of the full and half blood, and of Article 987, paragrapg 2, concerning dividion between the paternal and maternal lines.  RULES: 1) The nearer excludes the farther. – Rule of Proximity The 1st degree relatives excludes the 2 nd degree relatives and so on and so forth subject to the right of Representation. By virtue of the right of representation, the farther becomes just as near, they are raised to the place and degree of the person represented, so as if the representative and the person with whom the representative concur are in the same level. 2) Rule of Equal Division (2nd paragraph) So tanan brothers nimo, they inherit in equal shares. Tanang uncles & aunties they inherit in equal share if they are of the same degree. EXCEPTION: • Article 1006 with respect to relatives of the full and half blood. – Those who are in the half blood, their share is only half as that of the full blood. • Article 987 paragraph 2 concerning division between the paternal and maternal lines. • Right of Representation - If A, B and C are to receive equal shares. But if A dies and A is represented by his children D and E, B and C shall have equal shares but D and E shall have lesser shares than B and C because D and E will just have to divide the shares of A. • Legitimate and illegitimate children – They are all children of the testator so they are all in the same degree but because of the status, one gets half of the other.

Subsection 1 RELATIONSHIP Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. You just have to count the lines, from the mother to the child one degree then to he grandchildren another degree. Q: What is Relationship? A: Relationship is blood or marriage tie uniting a parson to another person.  Relationship by Affinity – by marriage  Relationship by Consanguinity – by blood Article 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. Article 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. Article 966. In the line, as many degrees are counted as there are generaions or persons, excluding the progenitor.

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In the direct, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandchildren, and three from the greatgrandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four fromm his first cousin, and so forth. Article 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. Article 968. If there are several relatives of the same degree, and one or some of them are unwilling or incapacitated to succeed, his portion shall accrue to the others of the same degree, save the right of representation when it should take place. ILLUSTRATION: The testator has children X, Y and Z. If X becomes incapacitated to inherit, predecease the testator or does not want to accept or is unworthy, what happen to his share? Maadto kay Y and Z. Exception, if the right of representation is proper (also substitution). Article 969. If the inheritance should be repudiated by the nearest relative, should there be one only, or by all the nearest relatives called by law to succeed, should there be several, those of the fllowing degree shall inherit in their own right and cannot represent the person or persons repudiating the inheritance. Artcile 969 talks about what happens when there is Repudiation, although this is not a complete discussion under this article. Example, X, Y and Z are the children of the testator. If X repudiates the inheritance and the estate is worth P300T, what happen to the share of X? You will learn later that the person who repudiates the inheritance CANNOT be represented. So the children of X, A and B, cannot represent X. Q: What happen now to the share of X? A: It shall go to Y and Z (tunga-on nila). Q: But if ALL of them repudiate the inheritance, what will happen? A: A and B, the children of X, C the child of Y, and D & E the children of Z will get the inheritance in their OWN RIGHT. Because they get the inheritance in their own right, the P300T will be divided by 5.

Subsection 2 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. Cite article 970 is you are asked as to the definition of right of Representation. Q: What are the instances where there is right of representation? A: 1) Predecease – if namatay ug una ang heir and that heir has his own heirs, they shall represent him. 2) Incapacity – Example, he becomes unworthy. 3) Disinheritance Q: When does the right or representation take place? A: It takes place in both testate and intestate succession. Predecease and Incapacity occurs in both testate and intestate succession. But in disinheritance only in testate succession because you have to have a will. ILLUSTRATION:

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1) TESTATE SUCCESION – covers only the legitime. The testator instituted as his sole hiers his children A, B and C to his estate worth P300T. A dies ahead of the testator. He has a child D. D will represent A as to his legitime. So P100Tis the supposed share of A (100 / 2 = 50T), in effect as to his legitime, D will get 50T. The free portion of P50T will go to B and C, 25T each. D is not allowed to get the free portion because in this respect his father A was a voluntary heir. 2) LEGAL OR INTESTATE SUCCESSION - The right of representation when proper covers ALL that the person being represented would have inherited. The testator dies without a will and the estate is worth P300T. The estate will be divided by 3 to A, B and C, P100T each. Since A predecease the testator his share maadto sa iyang heir D, that is the entire P100T. Q: What do right of representation covers? A: The Right of Representation covers not only the properties but also the transmissible rights and obligations. Q: Can the adopted child represent, or can he be represented? A: Under the Family Code article 189, there is created by virtue of the adoption a relationship of parent and child between the adopter and the adoptee. If the adopter dies ahead of his parents, the adoptee cannot represent the adopter because under the Family Code, the relationshiop is created only between the adopter and the adoptee. Take note that the representative inherits not from the person represented but from the person to whom the person represented would have inherited. So the adoptee cannot inherit because there is no legal relationship between him and the parent of the adopter. Q: What about if the adopter dies, will the adopte inherit from the adopter? A Yes. Q: What about if the adoptee has a child X and the adoptee dies, can X inherit from the adopter? A: No. The law is specific that the relationship created is between the adopter and the adoptee. (siguro if relative sila by blood or illegitimate child nya then iyang gi-adopt ☺) Article 971. The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. So again, I have illustrated this in my previous example, the representative does not inherit from the person represented but the person to whom the person represented would have inherited.

Article 972. The right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or hald blood. C --------- A ------- B

D

E

F Example, A and B are C’s sisters. D, is the child A. E is the child of B, F the child of E. C died intestate. A, B and E are all dead. F claims a share by right of representation. D says F can have no share. In this case, F cannot inherit by right of representation because he is only a grandniece. Therefore, only D gets the estate. Article 973. In order that representation may take place, it is necessary that the representative himself be capable of succeeding the decedent.  The representative must be capaciatated to inherit.

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Q: A has a child B who has a child C. If B disinherits C, is it still possible for C to represent B in the succession? A: Yes, as long as C is not incapacitatated to inherit from A. After all, the determination is as to C’s capacity to succeed from A not from B. Article 974. Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representataive or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. Per stirpes means inheritance by group all those within the group inheriting in equal shares. Article 975. When children of one or more brothers or sisters of the deceased survive, they shall inherit from the later by representation, if they survive with their uncles or aunts. But if they alone survive, they shall inherit in equal portions. ILLUSTRATION: B and C are A’s brothers. X is the child of B and Y and Z are the children of C. The estate is worth P300T. A is the decedent. Q: If C predecease A, how is the estate divided? A: B gets P150T and Y and Z gets P75T each. Q: If B and C predecease A, how is the estate divided? A: X, Y and Z each get P100T. They inherit in their own right. Therefore per capita and not by right of representation. Article 976. A person may represent him whose inheritance he has renounced. Article 977. Heirs who repudiate their share may not be represented.  PRINCIPLE: A renouncer may represent (art 976) but may not be represented (art 977.)

Example, A has 2 children B and C. B has 2 children D and E. D has a child F. B dies in 1997 but D repudiates his share (from B). A dies in 2000. Q: Can D still inherit from A? A: Yes, D can still inherit from A by representing B. Q: What about F, can F represent D in the inheritance from B? A: No he cannot because D repudiates his share B, heirs who repudiate their share cannot be represented. Q: Why does the law not allow a renouncer to be represented, although it allows an incapacitated or disinherited person to be represented? A: A renouncer does so voluntarily. His act of repudiation takes away his right to dipose of the property that which could have gone down to them. In cases of incapacity or disinheritance however, the loss is involuntary. The children of the incapacitated or disinherited person should not be deprived of the right of representation. They should not suffer for having an unworthy parent.

Section 2 ORDER OF INTESTATE SUCCESION Subsection 1 – DESCENDING DIRECT LINE Article 978. Succession pertains, in the first place, to the descending direct line. Article 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages.

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An adopted child succeeds to theproperty of the adopting parents in the same manner as a legitimate child. Article 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. This is true even if the children come from different marriages, for after all, the dead parent is the common parent. Article 981. Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and and tha letter by right of representation. Article 982. The grabdchildren and other descedants 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.  When the children are ALL dead, the grandchildren inherit by right of representation, provided that representation is proper.  When ALL the children repudiate, there is no right of representation and therefore the grandchildren inherit in heir own right, per capita and in equal portions. Article 983. If illegitimate children survive with legitimate children, the shares of the former shall be in the proportions presecribed by Aticle 895. Article 984. In case of the death of an adopted child, leaving no children or descendants, his parents and relatives by consanguinity and not by adoption, shall be hislegal heirs. Example: A has a child B who was adopted by C. if B dies without issue, A will be the legal heir and C, the adopter.

Subsection 2 ASCENDING DIRECT LINE Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives. Example, A died intestate leaving P1M. Surviving relatives are his father and his brother. The whole estate goes to the father to the exclusion of the brother. Article 986. The father and mother, if livin, shall inherit in equal shares. Should only one of them survive, he or she shall succeed to the entire estate of the child. Article 987. In default of the father and mother, the ascendants nearest in degree shall inherit. Should there be more than one 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. In each line the dividion shall be made per capita. ILLUSTRATION: A B C D

E -----------------------------F

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G A and B are the parents of E. C and D are the parents of F. E and F are married to each other, and G is their child. Estate of G who dies without a will is P1M. Q: If A, B, C, D, E and F survive, how will the estate be divided? A: E and F get P500T each. The others are excluded. Q: If A, C. D and F survive, how will the estate be divided? A: F gets the P1M. A cannot represent E because there is no right of representation in the ascending line. Q: If A and B survive, how will the estate be divided? A: Each gets P500T, because the law says “should there be more than one of equal degree belonging to the same line, they shall divide the inheritance per capita.” Q: If A, B and C survive, how will the estate be divided? A: C gets P500T, A and B get P250T each, because the law says.”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. In each line, the division shall be made per capita.”

Subsection 3 ILLEGITIMATE CHILDREN Article 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed to the entire estate of the deceased. Article 989. If, together with illegitimate children, there should survive descendants of another illegitimate child who is dead, the former shall succeed in their own right and the latter by right of representation. Example, A has 3 illegitimate childen, B, C and D. E and F are the illegitimate children of D. Estate is P900T. D predecease A. Q: How ould you divide the estate? A: B and D eacg gets P300T. E and F eacg gets P150T. Q: Suppose E and F were the legitimate children of D, wwould the answer be the same? A: Yes, “descendants” in this article refer to legitimate and illegitimate descendants, since the lae does not distinguish. Article 990. The hereditary rights granted by the two preceding articles to illegitimate children shall be transmitted upon their death to their descendants, who shall inherit by right of representation from their deceased grandparent. Example, B and C are A’s illegitimate children. D and E are the legitimate children of B. F is the legitimate child of C. B and C predecease A, who later dies leaving an estate of P1M. Divide the property. F gets P500T in representation of C. D and E each gets P250T because they repreent B. Article 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. According to article 991, if illegitimate children surviving with legitimate ascendants, the sharing would be one-half. Q: What if there is partial intestacy? There is a will but only part of the will is disposed like in the will only a legacy of P20T to X is provided in the estate of P100T. How would you divide the estate now? A: First, you have to give effect to the will. Give P20T to X. Q: How about the legitimate ascendants and illegitimate children? A: They get ½ each. Charge the legacy to the share of the illegitimate children. You do not divide the P80T by 2 because if you do this you are impairing the legitime of the legitimate ascendants if there had been a will. If there is a will, the

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legitimate ascendants get 1/2 and illegitimate children get ¼. In Intestacy legitimate ascendants ½, illegitimate descendants ½. So first give to the legitimate ascendants their legitime which is P50T. The remainder P30T will be to the illegitimate children. So when there is partial intestacy, there are legacy, charged the legacy to the share of the illegitimate children who will get more in intestacy than in testacy. You do not impair the legitimes of the legitimate ascendants. Provided that you do not also impair the legitimes of the illegitimate children. So in this case, the legitime of illegitimate children is P25T. If the legacy is worth P30T, you reduce the legacy by P5T because it becomes inofficious. Give P25T to the illegitimate children. 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. Article 992 is the Principle of Absolute Separation with the legitimate family and the illegitimate family. So there is Reciprocal prohibition. This is prohibition is also called the IRON-CLAD BARRIER. Q: What is the reason for this prohibition? A: The illegitimate child hates the privilege disposition of the legitimate family and the resources of which s it is thereby deprived. The reason for the hatred of the legitimate family towards the illegitimate child is because the illegitimate child is the reminder of the sin of the parents, palpable evidence of a blemish broken in life. The law recognizes this animosity between the legitimate and illegitimate family.

ILLUSTRATION: Legend - = illegitimate child

1) A has 3 children B, C and D. D is the illegitimate child. C in turn has 2 children E (illegitimate) and F. E has 2 childen G and H (illegitimate). F has 2 children I and J (illegitimate). Q: What if C died, can D inheir from C? A: No because C is the legitimate child of A, D cannot inherit from the legitimate relative. Q: If D died, can B and C inherit from D? A: No, the rule is the same. 2) C is the decedent. He has 2 children E (illegitinmate) and F but E died ahead of C and F also dies ahead C. E has 2 childen G and H (illegitimate). F has 2 children I and J (illegitimate). Q: Can I represent F in the estate of C. A: Yes because I is a legitimate child Q: Can J represent F in the estate of C? A: No because of the barrier.

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Q: Can G represent E? A: Yes, under article 990. So H alos may represent E in the estate of C.  If the person to be represented is an ILLEGITIMATE, he can be represented by his legitimate and illegitimate children.  If the person to represented is a LEGITIMATE child, he can only be represented by his own legitimate children. Q: How do you reconcile articles 902, 989 and 990 with article 992. A: In the case of Diaz v. IAC (Feb 21, 1990): Arts 902, 989 & 992 Speaks of the succesional right of illegitimate children which rights are transmitted to their descendant upon their death whether legitimate or illegitimate. (General Rule) Art 992 This is the exception. Even if illegitimate children have the right to succeed from their parents they cannot inherit from the RELATIVE of their parents.

Q: Article 992 says legitimate children and relatives of his father or mother. Who are the reltives included here? A: The relatives include not only collateral relatives but all relatives related to the father or mother of the illegitimate child by blood (Diaz v. IAC). Q: The word “relative” does this include the father himself because he is a relative? (stupid question daw according to Atty ☺) A: This was asked in the case of Dela Merced v. Dela Merced (Feb 25, 1999). In this case, the Supreme Court said that article 992 prohibuts the illegitimate child from inheriting from the relative of his father, not from his own relative. Does not include the father in the word relative. The illegitimate child can inherit from his illegitimate father. He cannot only inherit from the relative of his father. Daya Maria Tol v. Adriano Villamor July 20, 1992 Facts: Daya Maria is the illegitimate child of Remigio Tol. She filed an action for the declaration of absence of his father and for the appointment as the adminsitratrix of the estate of his father. The relatives of her father contested the petition of Daya Maria because according to them disqualified from filing those actions. They contended that ratcile 992, she is prohibited from inheritng from the relatives of his father. Issue: Is she allowed to file the Petition? Ruling: Yes, because what is allowed here is the estate of her father not of the relative of her father. Article 992 applies only when the illegitimate child wants to inherit from the estate of the relative of his father. In the petition Daya Maria only wanted to file an action for the declaration of absence of her father and for her appointment as administratrix over the estate of her father. SIMPLER TABLE OF INTESTATE SHARES: Illegitimate Children – ½ Surviving Spouse – ½ Illegitimate Children – ¼ Surviving spouse – ¼ Legitimate Parents – ½ Illegitimate Children - ½ Legitimate Parents – ½ Legitimate Parents – ½ Surviving Spouse – ½ Illegitimate Parents – ½ Surviving Spouse – ½ Surviving spouse – ½ Brothers & nieces, nephews & nieces – ½ Illegitimate Child alone – ALL Legitimate Parents Alone – All Illegitimate Parents Alone – All Surviving Spouse Alone - All Legitimate Child Alone – All 1 Legitimate Child – ½ Surviving spouse – ½ 2 or more legitimate child ) Surviving spouse ) Consider spouse as 1 legitimate child and divide estate by total number  Note the difference in the shares in testate and intestate succession.

Article 993. If an illegitimate child should die without issue, either legitimate or illegitimate, his father or

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mother kshall succeed to his entire estate; and if the child’s filiation is duly proved as to both parents, who are both living, hey shall inherit from his share and share alike. Article 994. In default of the father or mother, an illegitimate child shall be succeeded by his or her surviving spouse. Who shall be entitled to the entire. If the widow or widower should survive with brothers and sisters, nephews and nieces, she or he shal l inheir one-half of the estate, and the latter the other half. Q: Who are the heirs of the ILLEGITIMATE child (articles 993 and 994) A: 1. Legitimate children and other legitimate descendants; 2. Illegitimate children and other descendants 3. Illegitimate parents; ( NB: An illegitimate child has no legitimate ascendants) 4. Surviving spouse; 5. Illegitimate brothers and sisters subject to article 992; 6. Nephews & nieces subject to rule in article 992 (because nephews & nieces who are legitimate cannot inherit from the illegitimate child.) 7. Other Collateral relaives up to the 5th Civil degree of Consaguinity 8. The State. Q: With respect to LEGITIMATE child, who are his heirs? A: 1. Legitimate children and heir legitimate descendants; 2. Legitimate parents and other legitimate ascendants; 3. Illegitimate children and their descendants; 4. Surviving spouse, without prejudice to the rights of brothers & sisters, nephews & nieces should there be any; 5. Brothers & sisters subject to article 992. (illegitimate brothers & sisters cannot inherit from him); 6. Nepwhes & nieces subject to article 992; 7. Collateral relatives up to the 5th degree subject to article 992; 8. The State. Q: What are the RULES here? A: • Legitimate children excludes the parents, brothers & sisters, nephews & nieces and other Collateral • Legitimate children Concur with the spouse (they inherit together) • Illegitimate children concur with the spouse • Illegitimate excludes brothers & sisters, nephews & nieces of the deceased (art 988 & 1003) • Parents also excludes the brothers & sisters, nephews & nieces and other Collateral relatives • Parents concur with the surviving spouse • Surviving spouse concur with the brothers & sisters or nephews & nieces of the deceased Subsection 4 SURVIVING SPOUSE Article 995. In the absence of legitimate descendants and ascendants, and illegitimate children and their descendants, whether legitimate or illegitimate, the surviving spouse shall inherit the entire estate, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any, under arcticle 1001. Article 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children. Article 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half. Article 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half. Article 999. When the widow or widower survives with legitimate children or their descendants and illegitimate children or their descendants, whether legitimate or illegitimate, such widow or widower shall

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be entitled to the same share as that of a legitimate child. Article 1000. If legitimate ascendants, the surviving spouse, and the illegitimate children are left, the ascendants shall be entiled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth Article 1001. Should brother and sisters or their children surviving with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. Article 1001. In case of legal separation, if the surviving spouse gave cause for the legal sepration, he o she shall not have any of the rights granted in the preceding articles. RULES FOR SURVIVING SPOUSE:  You have to remember that for the spouse to inherit she has to be a legal spouse. The decedent and the surviving spouse must be legally married.  The surviving spouse must not be the guilty party when there is legal separation. There must be a decree of legal sepration. If there is no decree, she is not disqualified but she can be disinherited.  If there is a reconciliation between the surviving spouse and the decedent prior to to the death of the decedent, even if there is a decree of legal separation, then the surviving spouse is now qualified.  In intestate succession there is no similar rule on death in articulo mortis.  If the Surviving spouse with 1 legitimate child and 1 illegitimate child – There is no such provision in intestate succession. So the rule is, you give ½ to the legitimate child then the illegitimate child gets ½ of the share of the legitimate child (same as testate succession). The spouse gets the remainder (which is ¼) because in testate succession the spouse gets ¼.  If there is Partial intestacy, you charged the legacy/devise to the share of one gets more by intestacy than by testacy. In testate, the share of the spouse concurring with the parent is 1/4 while in intestacy ½. So mas dako by intestacy, so you charged the legacy/devise to the share of the spouse. As long as the legitime of the surviving spouse is not impaired. Example: The estate is worth 140T. How do you divide the estate? Surviving spouse 2 legitimate child 1 illegitimate child 40T 40T, 40T 20T P140T let x = 1 legitimate child x+x+x+1/2 x = P140T 3.5 x = P140T x = 140T 3.5 x= 40T

Q: What if there are 5 illegitimate children? A: Supposedly you will have P140T / 5.5 = 25,454.54 is the share of 1 legitimate child. But do not follow this computation. Try solving it using the rules on Testate succession. Q: How much would be the estate of the legitimate children? A: P140T /2 = P70T /2 = P35T each legitimate child. If you follow the computation in intestacy the legitimes of the legitimate children will be impaired. So follow the computation in Testate succession kung daghan na ang illegitimate children. The share of the spouse is P35T. The remainder goes to the illegitimate children. Q: What if together with the surviving spouse, the parents of the decendant and an adopted child survives? Would the adopted child excludes the parent of the descendant? A: Under the Family Code, the adopted child has the same rights would that of the legitimate. BUT although this is an old case Del Rosario v. Conanan (March 30, 1977), you have to treat the adopted child as illegitimate. The adopted child is entitled to inherit but with respect to the share she should be treated as an illegitimate child. Why? If you will not treat the adopted as an adopted, she will exclude the parent so that would be unfair. Dura Lex sed lex does not apply here. What applies here is jurisprudence. So the wife gets ¼, the adopted daughter ¼ and the legitimate mother 1/2. Q: What if the surviving spouse survive with illegitimate children, legitimate parent and there is also a legacy? To whose share will you charge the legacy?

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A: In intestate the share of the spouse is ¼. So the legacy is charged to the share of the spouse because in testate she will only get 1/8, provided that you do not impair the legitime of the surviving spouse. Dapat dili less than 1/8 ang iyang share.

Subsection 5 COLLATERAL RELATIVES Article 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following article. Article 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares. Article 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the decedent’s brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes. Article 1006. should brothers and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter. Article 1007. In case brothers and sisters of the half blood, some on the father’s and some of the mother’s side, are the only survivor’s, all shall inherit in equal shares without distinction as to the origin of the property. Article 1008. Children of brothers and sisters of the half blood shall succeed per capita or pe stirpes, in accordance with the rules laid down for brothers and sisters of the full blood. Article 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood. Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line. Q: Who are the collateral relatives? A: Brothers & sisters, nephews & nieces and the uncles & aunts, cousins RULES FOR COLLATERAL RELATIVES:  The nearer relative excludes the farther subject to the right of representation when proper.  If they are all in the same degree, those whoa are in direct line over those who are in the collateral line. So the grandchildren (2 degrees) are preferred over the brothers and sisters (2 degrees).  If both are in the direct line, those who are in the descending line are favored over those who are in the ascending line. That is why the descendants excludes the parents or ascendants.  If both are in the collateral and the same degree, those who are in the descending are favored over those in the ascending. That is why the nephews & nieces are favored over the uncles & aunts.  All of the brothers & sisters on the full blood will inherit in equal shares.  Those who are in the half blood, as long as married, not illegitimate, entitled to ½ of the share of the full blood.  With respect to the heirs in the collateral line, the right of representation extends only to the nephews & nieces (children of brothers & sisters). So grandnephews & nieces and the greatgrand nephews & nieces can no longer represent. (this is in collateral line, but in the direct line there is no limit the only limitation is that there is no right of representation in the ascending line)  Between uncles & aunts vis-à-vis the nephews & nieces, the nephews & nieces are preffered.

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Example: C is the decedent. The parents of C are A and X. A has a sister Y (aunt of C). C has a brother B. B has children D and E (nephews & nieces of C). Q: Who is preferred? A: The nephews & nieces because theye are in the descending line and because in the order of intestate succession the nephews & nieces are preferred.

Subsection 6 THE STATE Article 1011. n default of persons entitled to succeed in accordance with the provisions of the preceding Sections, the State shall inherit the whole estate. Article 1012. In order that the State may take possession of the property mentioned in the preceding article, the pertinent provisions of the Rules of Court must be observed. Article 1013. After the payment of debts and charges, the personal property shall be assigned to the municipality or city where the deceased last resided in the Philippines, and the real estate to the municipalities or cities, respectively, in which the same is situated. If the deceased never resided in the Philippines, the whole estate shall be assigned to the respective municipalities or cities where the same is located. Such estate shall be for the benefit of public schools, and public charitable institutions and centers, in such municipalities or cities. The court shall distribute the estate as the respective needs of each beneficiary may warrant. The court, at the instance of an interested party, or on its own motion, may order the establishment of a permanent trust, so that only the income from the property shall be used. Article 1014. If a person legally entitled to the estate of the deceased appears and filed a cliam thereto with the court within five years from the date the property was delivered to the State, such person shall be entiled to the possession of the same, or if sold, the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. Q: When does the State succeed? A: In the absence of ALL those in the direct line and ALL those within the 5 th degree in the collateral line then the State shall succeeds. Q: What do you call the right of the State to succeed? A: This is the CADUCIARY RIGHT of the State. Q: How does the State inherits? A: Under Rule 91 of the Rules of Court, this is by ESCHEAT proceedings.

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Chapter 4 PROVISIONS COMMMON TO TESTATE AND INTESTATE SUCCESSION Section 1 RIGHT OF ACCRETION 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 co-heirs, co-devisees, or co-legatees. When you are asked, as to the definition of Accretion, you cite article 1015. Based on article 1015, accretion applies to inheritance, to legacy or devise. Example, the testator provides, “I hereby institues A, B and C as my heirs to my entire estate.” If C dies ahead of the testator, his share will go to A and B. Q: What is the basis for accretion? A: This is based on the presumed will of the testator that he prefers to give certsin properties to certain individuals rather than that the property shall go by way of intestacy.  1. 2. 3. 4. REQUISITES OF ACCRETION: There is only one inheritance, devise or legacy (unity of object); Plurality of subjects – meaning, there must be at least 2 or more heirs, devises of legatees instituted. There is a vacant portion – meaning, one of the heirs, devises, legatees instituted cannot succeed. Acceptance of the portion accruing by the person entitled. (if there is no acceptance the share will go by way of intestacy.)

We have discussed the acroname ISRAI. Accretion is 2nd to the last. So in my example, if there is institution then you follow institution. If there is a substitute if C dies, the share of C will not go to A and B by accretion. It will go by substitution. Or, representation. So, if C has his own heirs his share will not go to A and B but to the representative of C. When accretion is not proper, the the property shall gi by way of intestacy. Q: Does accretion occur in testate or intestate succession? A: It is proper in both. In testate succession, accretion is proper only with respect to the FREE PORTION. In legal succession, ENTIRE PORTION. Q: How do we know that there is Unity of object? A: The law says, when two or more persons are called to the same inheritance, devise or legacy. Meaning, not divided. In my example, A, B and C are called to the ENTIRE estate pro indiviso (indeterminate). Their specific shares in the estate are not definite. Q: What if in the testator’s will it is provided, “to A, B and C my lot in Ma-a, 1/4 to A, 1/8 to B and 1/8 to C.” Is there unity of object? A: Even if ½, 1/8 and 1/8 ang shares as long as no determinate portion of the property is specified. As to make one of the heir or heirs as exclusive owners of the portion then there is unity of object. That is states in article 1017. When you say ½ to A etc, can you tell which portion of the lot is for A? NO, you cannot say that A is the exclusive owner of a determinate portion of the lot in Ma-a. Artilce 1017. The words “one-half for each” or “in equal shares” or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exlude the right of accretion. In case of money or fungible goods, if the shares of each heir is not earmarked, there shall be a right of accretion.

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Q: What if, “I give to A the north portion of my lot in Ma-a, to B the south, amd to C the east portion.” Is there unity of object? Is accretion proper? A: No. A can point to the north etc. There is already a specification of the portion owned by the heir. With respect to money or fungible goods, as lomg as the share of devisee, legatee or heir is not earmarked, there is still unity of object. So accretion is proper ILLUSTRATION: 1. “To A, B and C my cash in Metrobank.” - Is there unity of object? The sharing of A, B and C is still pro indiviso. There is still no determination as to the determinate share of the each heir. They are owners of the cash pro indiviso. Even if the testator will say “in equal share, or one-half” there is still unity of object according to article 1017. 2. “To A my cash in Metrobank, to B my cash in UCPB, and to C my cash in DBP.” Is there now unity of object? The shares of the legatees are already earmarked. Or, “to A my cash in my valut, to B my cash in my wallet, to C my cah in my piggybank.” When there is already earmarking of shares THEN THERE IS NO UNITY OF OBJECT. Or, “to A the 1st floor, to B the 2nd floor, and to C the 3rd floor.” Article 1016. In order that the right of accretion may take place in a testamentary succession, it shall be necessary: (1) That two or more persons be called to the same inheritance, or to the same portions thereof, pro indiviso; and (2) That one of the persons thus called die before the testator, or renounce the inehirtance, or be incapacitated to receive it. Article 1017. The words “one-half for each” or “in equal shares” or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exlude the right of accretion. In case of money or fungible goods, if the shares of each heir is not earmarked, there shall be a right of accretion. Q: In TESTAMENTARY succession, when does accretion takes place? A: It is only proper if the vacancy is caused if one of the heirs: 1. predecease; 2. Incapacity; 3. Repudiates the inheritance – in this case, accretion is always proper as along as the requisites are present (art 1018). 4. If the suspensive condition is not fulfilled. - Example: “I give to A, B, C and D my lot in Ma-a but B still have to pass the exams in succession.” If B does not pass, his share will go to the others. 5. Failure to identify one particular heir. – ineffectivesness of institution. “To my friend B” but it turn out that he has 2 friends named B and it cannot be identified which of the 2 B’s are being referred to. Q: What if there there are compulsory heirs? A: ILLUSTRATION: A, B, C and D, the 3 of them are legitimate children of the testator. They are all instituted to the 10-hectare lot in Ma-a. Q: What if C becomes incapacitated? With respect to the share of C, how do you divide the 10-hectare? A: 5 hectare to the legitimate children, the other 5 for the free portion for you do not know which of the lot is being given as free portion and the legitime. With respect to the free portion, A, B and D are instituted di ba? With respect to the free portion, the share of C in the free portion will accrue to A, B and D. Q: What will happen to the share of C supposed to be in the legitime? A: To A and B also but not by accretion but in their in their right. Article 1018. In legal succession the share of the person who repudiate the inheritance shall always accrue to his co-heirs. Article 1019. The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit Q: How about in INTESTATE /LEGAL succession? A: Accretion is proper if the vacancy is caused by repudiation, incapacity (subject to the right of representation).

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Q: How about predecease, will there be accretion in intestate succession? A: No because when the heir predecease the decedent, there will be no vacant portion to speak of. In this case, duha lang ang iyang heirs. But still, the effect will be the same. So kung namatay ug una si C, ang iyang share maadto gyapon kay A and B. Pero dili sya matawag na accretion because there is no vacant portion, there is predecease but the effect is the same as that of accretion. ☺ ILLUSTRATION: The testator has 3 children A, B and C. C repudiates his share. So his share shall go by accretion to the others. Even if C has his own heirs, his own heirs will not be able to represent him because RENOUNCER CANNOT BE REPRESENTED. So accretion will take place. Q: How much will accrue to the other heir? No problem if there are 2 heirs lang A and B. If A cannot succeed because he is incapacitated then his shares shall go to B. What if he has 4 heirs, ½ to A, ¼ to B, 1/8 to C and 1/8 to D. The estate is worth P100T. A died ahead of the testator. What happen to the share of A? A: It will not go to A’s own heirs because there is no right of representation with respect to voluntary heir. Also no substitution in this case, so accretion. Q: How much will go to B, C and D? A: The supposed share of A is P50T, B P25T, C and D P12, 500. The property to be distributed is P50T: B: 25T/50T *50T = P25T C: 12,500/50T *50T = 12, 500 D: 12, 500/50T *50T = 12,500 Q: What are the rights and obligations of the heirs to whom the share of the incapacitated heir or the one who repudiates? A: Article 1020. Article 1020. The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. The same in substitution. Whatever the rights of A are (refer to the above-given example) with respect to the share given to him, these rights and obligations shall pass to the others to whom tnhe shares will accrue. EXCEPTIONS: 1. 2. if the testator expressly provide that the other hiers will not be subject to the same rights and obligations if the rights and obligations are personal to the heir whose portion becomes vacant.

Article 1021. Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of hem and to a stranger. Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. Article 1022. In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. Article 1023. Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for hiers.

Section 2 CAPACITY TO SUCCEED BY WILL OR BY INTESTACY Article 1024. Persons not incapacitated by law may succeed by will or ab intestate. The provisions relating to incapacity by will are equally applicable to intestate succession. Q: What is capacity to succeed? A: It is the ability to inherit and retain property obtained mortis causa. Q: What law govers capacity to succeed to the estate of the decedent?

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A: Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. So take note that it is not the national law of the heir but the national law of the decedent. BAR QUESTION: What matters are now governed by the national law of the decedent? A: Under article 15: 1. the order of succession; 2. the amount of successional right; 3. the intrinsic validty of the testamentary provision;and 4. the capacity to succeed. Q: Who are capacitated to succeed by will or by intestacy? A: In general, we have article 1024. Q: Who are these persons? A: We have learned that there are 2 kinds of persons, natural persons and the juridical persons. Natural persons are capacitated to succeed as long as they are incapacitated to succeed. Article 1025. In order to be capacitated to inherit, the heir, devise or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succedding provided it be born later under the conditions prescribed in article 41. For natural persons, they must be living AT THE TIME that the succession openns or AT THE TIME OF THE DEATH because that is the time when the succession opens. But the word living includes those at least conceived (article 41). A conceived child is deemed to have live from the moment of the complete separation from mother’s womb. But if the child has an intra-uterine life LESS THAN 7 MONTHS, he should be considered alive if the child does not die WITHIN 24 HOURS. The law says, except in case of representation when it is proper. But actually, this representation is not an exception because in representation, the representative must also be living or at least conceived at the moment the succession opens. Article 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes. All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. Juridical persons meaning those whose existence are merely by fiction of law. It is the law which grants perosonality to these juridical persons like corporations or partnerhips. POINTS TO REMEMBER:  Note that juridical persons inherit only by WILL. Also, under article 1026, some of these entities are not juridical persons. You acquire juridical personality when there is registration.  Article 1026 grants capacity to succeed even to non-juridical persons. What is the authority to succeed of the capacity to succeed of these entities? It is article 1026.  Note also that the STATE inherits by will or by intestacy by virtue of its Caduciary right.

Article 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or minister of the gospel who extended spiritual aid to him during the same period; (2) The relatives of such priest or minister of the gospel wihin the fourth degree, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final aconst of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by th ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse shall be valid; (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;

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(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; (6) Individuals, associations and corporations not permitted by law to inherit. 1st Paragraph: The priest who heard the confession of the testator during his last illness, or minister of the gospel who extended spiritual aid to him during the same period. Q: What is the reason for this? A: To safeguard the right of the heirs who my be defrauded by the sinnester and undue influence which may be exercise by some priest and minister over a dying man So it is presumed that ministers are untrust worthy. For example, the priest to the dying man said, “Kung dili gain ko nimo hatagn sa imong sakyanan ma-adto ka sa impyerno.” Since he is a dying man, possible na mainfuence sya. This constitutes undue influence.  The will must be made DURING THE LAST ILLNESS of the testator. So if the will is made before or after the last illness there can be no undue influence.  The last illness – Meaning: 1. the illness of which the testator dies; or 2. the illness which immediately peceeded the death of the testator. Q: What if the testator has cancer then he confesses then he makes a will. In 1970 naayo sya. From 1970-2004 wala sya nagsakit, but subsequently he died kay gipusil sya. Would the prohibition under article 1027 apply? A: No becuae there is sufficient opportunity for the testator to revoke his will if indeed there was undue influence. The death must immediatetly follow the last illness.  The will must be made AFTER the confession.  The priest must hear the confession. If merely extends spiritual aid like extreme unction that is not considered as confession the so if the priest merely does that and the testator provides for the priest, the priest is not disqualified. BUT with respect to the minister, the giving of spiritual aid disqualifies the minister. Q: What is the nature of the last illness? A: It does not matter whether the illness is long, lingering or short as long as there is great possibility of death. 1. 2. 3. The disqualification under this paragraph does not extend to: The LEGITIME - because if for example the priest is a compulsory heir of the testator, even without the undue influence, the priest or the minister still inherit but of course the disqualification would extend to the free portion but not to the legitime. INTESTACY – If the priest or the minister is a legal heir because there is no will so how can there be an undue influence. dispositions which do not extend to a testamentary benefit – so wala sya madawat life if the rpiest or the minister is merely appoimted as executor or administrator to pay the debts or obligation.

2nd paragraph: The relatives of such priest or minister of the gospel wihin the fourth degree, order, chapter, community, organization, or institution to which such priest or minister may belong;  The relatives of the priest or the minister refers here are those within the 4th degree. 3rd Paragraph: A guardian with respect to testamentary dispositions given by a ward in his favor before the final aconst 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.  In Special Proceedings you will learn that there are 2 kinds of guardian, the guardians over the property and the guardians of the person. Under this article, it refers to both.  As long as the final account has not been approved (meaning wala pa na-terminate ang guardianship) the guardian is prohibited from being an heir, legatee/devisee of the testator. Q: Even if the testator dies after the approval of the accounts, so naa pa guardianship then the testator gives something to the guardian then na-terminate na ang guardianship (na-prove na ang final accounts) then the testator dies, will the guardian get the property? A: No what is important is that at the time of the making of the will (the giving of the benefit) the final accounts have not been approved. So guardian pa at the tme of making of the will. It does not matter that he is no longer the guardian at the time of death. Q: If na-approve na ang final accounts then the testator gives a car to the former guardian, will this be valid?

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A: this will now be valid because the prohibition only applies when the institution or the giving is during the subsistence of the guardianship prior to the approval of the final account.  Even if the guardianship subsists if the guardian is the spouse, ascendant, descendant,brother or sister the provision is valid because it is presumed that the reason here is not undue influence but affection. Q: How about cousins or nephews & nieces? A: The law says spouse, ascendant, descendant, brother or sister, so limited only. So you know that unlike the priest, the relatives (spouse, ascendant, descendant, brother or sister) are not disqualified, For the priest up to the 4th degree they are disqualified. 4th Paragraph: 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; We have discussed this under article 823. So if you give a legacy or devise only the legacy or devise is void but the witness is still qualified. In a sense the witness becomes incapacitated to succeed with respect to the legacy/ devise or the inheritance. But applying article 823, if here are 3 other witnesses who are competent then the witness to whom the legacy or devise is given, is capacitated to inherit. 5th Paragraph: Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;  The will must be made DURING the LAST ILLNESS and AFTER THE CARE had commenced. Q: Kung niadto ka sa physician nagpa-check up ka then niuli ka, na-discover nimo naa kay cancer then you subsequently executed a will in favor of he physician, will the physician be disqualified? A: No because the CARE here means regular and continuing. It should not be an isolated check-up. Q: What if the physician or the nurse is a compulsory heir, will the disqualification apply? A: The legitime will not be affected. The compulsory still gets his legitime. As to the free portion the law is silent. There is no such exception. Logically, if it is the spouse, ascendant, or descendant who is at the same time, he can get the legitime but NOT the Free portion, he is disqualified. But with respect to the INTESTATE Succession, they can already get the property because there can be no undue influence. Q: What if the priest, the guardian or the physician proved that there was no undue influence, will article 1027 still apply? A: Yes because article 1027 provides for a conclusive presumption. Being conclusive, you cannot present controverting evidence. Unlike rebuttable presumption. 6th paragraph: Individuals, associations and corporations not permitted by law to inherit. Article 1028. The prohibitions mentioned inn article 739, concerning donations inter vivos shall apply to testamentary provisions. This is Incapacity by reason of Public Morality.  The same prohibitions in donations (article 739). Q: What are these provisions? A: Applying to the law on succession, the following donations shall be void: 1. When the testator and the recipient are guilty of adultery or concubinage. – There is no requirement of final judgment unlike in disinheritance. The guilt may be proved by preponderance of evidence. No criminal conviction is reqired. 2. When the testator and the recipient are guilty of the same criminal offense in consideration thereof Example, you ordered a to kill B and in consideration of killing B, you give to A a house and lot. This is prohibited under this article. 3. Those made by the testator to a public officer, or his wife, descendant and ascendant by reason of his office. This prohibited because if we will allow this we are sanctioning corruption or bribery. Article 1029. Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, wih the court’s approval shall deliver one-half thereof of its proceeds to the church or denominations to which the testator may belong, to be used for such prayers and pios works, and the oher half to the State, for purposes mentioned in article 1013.

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Q: Are there entities which do not have juridical personality but may otherwise inherit? A: The Soul (article 1029). Artcile 1029 is commonly called the Instituion of the Soul.  REQUISITES: 1. The diposition must be for prayers and pious works; 2. The prayers and pious works must for the bnefit of the testator’s soul. – If prayers and pious works only with no specification oas to the soul then this article will not apply. 3. The disposition must be in general term; 4. It does not specify the application. – It does not say to the Catholic Church or to whatever church. 5. No particular person is charged with the duty of giving themoney or property. 6. No place is specified or date is fixed for the prayers. Q: Why do you have to know whether or not it will apply? A: Because article 1029 said “one-half thereof of its proceeds to the church or denominations xxx and the oher half to the State.” So if all the requisites are followed so half-half. Article 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor livng in the domicile of the testator at the time of his death, unless it should clearly appear that his inention was otherwise. The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in dafult of such person, by the executor, and should there be no municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favor of the por of a definite locality. This is Disposition in Favor of the Poor. POINTS TO REMEMBER  only the poor living in the domicile of the testator at the time of his death unless if the testator has provided otherwise.  The institution is for the poor in general. When the testator says a poor of a definite locality then the poor in that place.  Who will designate the persons who are considered poor? 1. The person designated by the testator; 2. The executor; 3. Three people by majority vote Q: How about insane persons, do they have capacity to succeed? A: Insane persons have no testamentary capacity. They cannot enter into contract so they cannot dispose of their properties but with respect to being heir they are capacitated. RULE ON INCAPACITY: Incapacity should be construed strictly - You cannot just extend the meaning of incapacity to other cases. Limit yourself to the incapacities provided for by law. Q: What are the kinds of Incapacity? A: 1. ABSOLUTE INCAPACITY – You cannot inherit from anybody under any circumstance. So total prohibition. 2. RELATIVE – you can inherit only from certain persons or can only inherit certain properties under certain circumstances. CLASSES UNDER ABSOLUTE INCAPACITY: 1. Article 1026 last paragraph : All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. 2. Article 1027 paragraph 6 : Individuals, associations and corporations not permitted by law to inherit. 3. Those who lacks juridical personality – Abortive infants or those who have intra-uterine life of less than 7 months who died within 24 hours. CLASSES UNDER RELATIVE INCAPACITY: 1. Article 1027: Incapacity by reason of possible undue influence 2. Article 1027 paragraph 1-5: Incapacity by reason of public policy 3. Article 1028 Incapacity by reason of public policy and morality

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4.

Article 1032: Incapacity by reason of unworthiness.

Article 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of a contract, or made through an intermediary, shall be void. Example, the testator has a concubine but the testator knows that the concubine is incapacitated to receive so to circumvent the prohibition he gave to a common friend with a stipulation that the common frined will later give to the concubine. This is void under article 1031. This article applies only to Incapacity by reason of Possible Influence and Incapacity by reason of Public Morality. With respect to incapacity by reason of unworthiness, article 1031 will not apply. Example, your son attempted against your life. So convicted, he is unworthy. But you really wanted to give to your son, so you give to a common friend with the provision that later he will give to your son. This is valid because there is even no prohibition if you give directly to your son. That is an implied condonation. Provided that you expressly provided the reasons you cannot say that it is secret. If you say “I give to A my house and lot so that A may apply it according to my secret instructions.” In this case the rule on secret instructions will now apply. Both the disposition and the the condition are void. Article 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandonesd their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue. (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (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; (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, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any persons convicted or adultery or concubinage with the spouse of the testator; (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. 1st paragraph: Parents who have abandonesd their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue. Paragraph 1 is the same explanation in the article of Disinheritance. 2ns paragraph: Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; Q: What if after the death of the testator, you attempted against the life of the wife of you father and you are convicted of the attempt. Are you incapacitated to inherit from your father? A: No because the incident happened after the death of the testator. The incapacity must be measured AT THE TIME of death of the testator. It would be different if before the death of the testator, you attempted to kill the wife of the testator and afterwards you are convicted, in that case, you will be incapacitated. 3rd paragraph: 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; 4th paragraph: 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, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; Q: What do you mean by Full Age? A: 18 years old is the legal age but 21 is the full age. Q: What kind of death? A: Violent death. It must be cause by a crime. Under the last sentence, paragraph 4 applies only when there is an obligation to make an accusation but there is no law in the Philippines which obliges anyone to make an accusation because in criminal cases, it is People

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of the Philippines versus the criminal. So it is the State which prosecutes. So as of the present, paragraph 4 has no application. 5th paragraph: Any persons convicted or adultery or concubinage with the spouse of the testator The person convicted is the one incapacitated, he is the unworthy. The spouse of the testator is not incapacitated or unworthy. But of course the infidelity of the spouse constitutes a ground for disinheritance. If there is a dcree of legal sepration, by law, the spouse who is guilty is disqualified from inheriting. There has to be a decree of legal separation first before the spouse can be considered unworthy ir incapacitated. If there is now reconciliation between the guilty spouse and the innocent spouse after the decree of legal separation has been granted, the decree shall be set aside so the spouse will now be reinstated to succeed to capacity. 6th paragraph: Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; 7th paragraph: 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; 8th Paragraph: Any person who falsifies or forges a supposed will of the decedent.  Article 1032 applies to both testate or intestate succession.  When it is the compulsory heir who becomes unworthy, the compulsory heir loses the legitime and all other rights pertaining to the legitime and as well to the free portion. But the incapacitated heir can be represented. Q: What if the testator’s son has been convicted already of an attempt against the life of the testator. But even knowing this, the testator give something to the son in his will. What will happen to the institution of the son? Is the son still unworthy or incapacitated? A: Now we have the rule of Condonation, article 1023: Article 1033. The causes of of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. This article talks about PARDON OR CONDONATION. Condonation / Pardon It is the unilateral of the testator. Reconciliation It is a bilateral act; there must be forgiveness and the ehri must accept.

RULES FOR CONDONATION:  If the testator already knew the cause of the unworthiness at the time of making the will but still he provides something for that unworthy heir in the will then there is now an IMPLIED CONDONATION. Remember the testator should not only make a will, he should give something to the unworthy hier knowing that the heir is unworthy.  The will in which the implied condonation is made must be valid and it must not be revoked in order that there is implied condonation because implied condonation is dependent on the will.  If knowledge comes only AFTER the execution of the will, condonation must be in writing. This is EXPRESS CONDONATION. Q: What if the testator made a will in 1990, instituting A as heir. Unknown to the testator, the A has accused him of acrime for which the law prescribes death penalty. This is s ground for unworthiness. But the testator only learned of the accusation in 1992. What happen to A? Is there a need to disinherit A? A: No more, because A is now unworthy by operation of law. Q: What if the testator really wants to give the car to A? What should the testator do? A: He could condone in writing the act of A. So if only oral, dili ma-revive ang capacity ni A. It has to be in writing. Q: What if the testator knew already in 1989 the accusation. In 1990, he instituted A. Is A able to inherit or not? A: Yes, by the making of the will instituting A as heir there is now an implied condonation. Q: What if in 1989 A accused the testator of a crime of which the law prescribe a death penalty and the testator knowing of this accusation and because a is a compulosry heir, the testator made a will in 1990 expressly disinheriting A because of the accusation. What shoud the testator do if he wants to revohe the disinheritance of A? A: This is an instance wherein a ground for disinheritance is also a cause for unworthiness.

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When we discussed disinheritance, a subsequent reconciliation between the testator and the disinherited heir will render the disinheritance ineffective. But under unworthiness there has to be a condonation in writing in order to erase the unworthiness. Q: So when the cause for unworthiness is also a ground for disinheritance. What should the testator do? Should he condone in writing or is it enough that there is reconciliation? A: If the cause for unworthiness is also a ground for disinheritance the rule on disinheritance applies. So reconciliation is enough. So when there is reconciliation, the disinheritance of A will now becomes ineffective. There is no requirement that the testator should condone it in writing. But if there is no disinheritance, there is only act of unworthiness if the testator knew of the act only after the execution of the will, there has to be condonation in writing. The only instance wherein an incapacitated heir is restored to capacity by the mere act of reconciliation is when there is a decree of legal separation the guilty spouse becomes incapacitated. But when there is subsequent reconciliation the decree shall be set aside and the spouse will now be restored to capacity. Article 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. In cases falling under Nos. 2, 3, or 5 of article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No.4, the expiration of the month allowed for the report. If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. Article 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. In disinheritance, if a person is disinherited he can still be represented. But again the disinherited parent shall have no usufruct and administration of the property received by the representative (article 923). This same rule applies to Incapacity. The incapacitated heir can still be represented but the incapacitated heir has no right of usufruct or administration over the property recived by the representative. Article 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of eclusion, are valid as to hird persons who acted in good faith; but the coheirs shall have a right to recover damages from the disqualified heir. The unworthiness must be declared by the court. What if prior to the declaration of unworthiness by the court, the unworthy heir made dispositions? If the 3rd person who acquired the property is in good faith, the rule in Sale, then the disposition shall be valid. You can run after the unworthy for damages. Article 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. Article 1038. Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together with its successions. He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. Artciles 1037 and 1038 speak of the Rights and Obligations of the excluded Unworthy heir. Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. Article 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof, It

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may be brought by any one who may have an interest in the succession. The action for (1) declaration of incapacity and (2) recovery of the inheritance shall be brought WITHIN 5 YEARS from the rime the DISQUALIFIED heir took possession of the property. Q: Who can bring the action? A: Only those who have an interest either he will stand to gain or lose by the eclusion of the incapacitated heir. Section 3 ACCEPTANCE AND REPUDIATION OF THE INHERITANCE Article 1041. The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. Article 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. Q: What is acceptance? A: Acceptance is the act by which a person called to succeed to the inheritance of a decedent either by will or by law manifests his assent to the receipt of the property, rights and obligations which are transmited to him thru the death of the decedent. Q: What is Repudiation? A: It is the act by which the person called to succeed to the inheritance manifest his unwillingness to succeed to the same. PRINCIPLES: 1. You have learned in you Family Code that rights may be waived provided that the wiaver is not contrary to law, morals, public policy, good customs or prejudicial to the right of the person recognized by law. This is applicable in acceptance and repudiation; 2. No person can be forced to accept the generosity of another; 3. Acceptance and repudiation must be Free and Voluntary act ( article 1041); - That is why when there is vitiated consent, mistake intimidation, forced, violence or undue influence, the accepatne or repudiation becomes ineffective. 4. Repudiation and acceptance are subsequent to the death of the deceent. But their effects retroact from the moment of death. (article 1042).- Meaning, if you only accept one month after the death of the testator, you are deemed to have accepted from the moment of death of the decedent. So any fruits or income accruing at the time of death shall belong to you. The same rule with repudiation. So it retroacts to the moment of death. So an heir who repudiates shall be deemed not to have possessed the inheritance. Q: What if you accept or repudiates before the the death of the decedent? A: This will now involve future inheritance so this is void. Moreover, a will is essentially revocable. You do not know whther or not the testator will revoke, so the acceptance or repudiation is premature. 5. Acceptance and repudiation once made are IRREVOCABLE (article 1056);

EXCEPTION: When it was made through any of the causes that vitiate consent, or wne an unknown will appears.  This is so because as we said, acceptance and repudiation must be free and voluntary.  When an unknown will appears. – So if you repudiate or accept now and there is no will, you do not know what are the provisions in the will which appear, you just rely on intestacy and you do not want to accept your share as intestate heir. You will learn later that even if you’ll repudiate your share as intestate heir, if later on you will discover that there is a will you can still accept the provisions of the will. 6. It is more usual to accept than to reject an advantage or benefit; Acceptance may be EXPRESS, TACIT or PRESUMED (article 1049). Repudiation being an act of disposition, it requires greater capacity and more formalities than acceptance; 7. There can be partial acceptance and partial repudiation (artcilce 94 & 955); - You cannot accept the gratuitous and repudiate the onerous. But you can accept the onerous and repudiate gratuitous. 8. Repudiation of hereditary rights partakes the natue of donations; - That is why there has to be acceptance; 9. Accepatance of inheritance does not make the heir personally liable for the debts and obligations of the decedent (article 774); - even if you accept the inheritance if the debts of the testator exceed the inheritance you cannot be made liable for the debts & obligations of the decedent. So by acceptance, you cannot be liable personally. 10. Acceptance and Repudiation must be Absolute not subject to condition.

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Article 1043. No person may accept or repudiate an inheritance unless he is ceratin of the death of the person from whom he is to inherit, and of his right to the inheritance. REQUISITES: 1. The heir must be certain of the death of the decedent;  The death here may be actual or presumed. In the case of presumed death there has to be a declarationof presumption of death. Q: What if the presumed dead person re-appears? A: In that case, the acceptance/repudiation becomes invalid, so you have to return the property because the person re-appears so he is not dead so it becomes repudiation or acceptance of future inheritance. 2. 3. The heir must be certain of his rights to the inheritance; The heir must have free disposal of his property; (article 1044)

Article 1044. Any person having the free disposal of his propery may accept or repudiate an inheritance. Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in article 1030. Q: Who are the persons who have free disposal of their property? A: HIERS WHO MAY ACCEPT MINORS Minors can be represented by their parents or guardians (minor himself cannot accept) POOR Acceptance must be made by the person designated by the testator or in his default follow the order made in article 1030. (justice of the peace, mayor, municipal treasurer) May be made by the lawful representative. Must be with the approval of the government May accept on her own without the consent of her husband May accept personally or thru an agent Must be made by the guardian (because deaf mute who cannot read and write has no juridical capacity)

WHO MAY REPUDIATE The repudiation by the parents/guardians must be with judicial approvalo for it to be valid.

CORPORATIONS/ ASSOCIATIONS/ ENTITIES (art 1046) PUBLIC OFFICIAL/ ESTABLISHMENTS MARRIED WOMAN DEAF-MUTE Who can read and write DEAF-MUTE Who cannot read or write

The lawful representative may repudiate with court approval. With the approval of the government May repudiate on her own without the consent of her husband. May repudiate personally or thru an agent. Must be made by the guardian with court approval

Article 1045. The lawful representative of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary. Article 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government. Article 1047. A married woman of age may repudiate an inheritance without the consent of her husband.

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Article 1048. Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval. Q: How is acceptance made? A: Accpetnce may be express, tacit or presumed (Article 1049) Article 1049. Acceptance may be expre or tacit: An express acceptance must be made in a public or private document. A tacit acceptance is one resulting from acts by which the intenion to accept is necessarily implied, or which one would have nor ight to do except in the capacity of an heir. Acts of mere preservation or provisional administrations do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. Tha acts of mere preservation or adminisitration do not constitutes acceptance because these acts are not acts of dominion. It is not an act of ownership. Therefore, if you administer the property of the deceased or you preserved, you are not deemd to have accepted because these are not acts of dominion. Article 1050. An inheritance is deemed accepted: (1) If the heir sells, donates, or assigns his rights to a stranger, or to his co-heirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs; (3) 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. Article 1050 enumerates the instances wherein there is tacit acceptance. 1st paragraph: If the heir sells, donates, or assigns his rights to a stranger, or to his co-heirs, or to any of them; REASON: Because before you can sell or donate, you have to be the owner. You cannot sell or donate property which you do not own. 2ns paragraph: If the heir renounces the same, even though gratuitously, for the benefit of one or more of his coheirs; Note that the renunciation must be in favor of one or some but not all. If you renounce in favor of one or some whether or not the rnunciation is onerous or gratuitous, there is still tacit acceptance because when in true repudiation we do not know who are the recipients of the share which you renounce. But when you renounce in favor of one or some, you are actually choosing who will receive. So you are exercising dominion over your share and it is an act of ownership. So there is tacit acceptance. 3rd paragraph: 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.  If you renounce in favor of your co-heirs of ALL indiscriminately but you were paid then there is tacit acceptance because why would they pay you if you do not own the share your are giving to them. BUT the portion renounce should not devolve to the other heirs who would succeed by virtue of accretion if the renunciation is gratuitous. Example: The testator has children A, B, C, D and E. With respect to the house C’s co-heirs are D and E. If C will gratuitously renounce his share to D and E, this is not tacit acceptance because even if C will become incapacitated or will not accept the inheritance, his share will really go to D and E by virtue of. The co-heirs of C with respect to the house by virtue of accretion. However C renounces his share, D and E will still get the share be cuase C has no control over the disposition of the portion renounced by him.

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If C renounced in favor of all his co-heirs A, B, D and E this is now tacit acceptance. Because if true renunciation A and B will have no right over the share of C only D and E. But C renounced in favor of A, B, D and E so C now has control over the disposition of the share which he renounces.

Article 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. Q: How do you repudiate? A: 1. Repudiation by public document; (it is public document when it is acknowledged before a notary public or any person authorize to administer oath); 2. When repudiation is embodied in authentic document (an authentic document is a genuine document; it may be aprivate document); 3. By petition presented in court having jurisdiction over the testamentary or intestate proceeding 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 same 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. Q: Can the creditors accept in behalf of the heirs? A: Only if the heir repudiates and the repudiation prejudices the creditors then the creditors may accept in behalf of the heir. BUT note that the creditors cannot accept the entire inheritance, devise /legacy. Only the amount sufficient to cover the credit. The law says Prejudice of his own creditors. So only those creditors who are prejudice. Q: When can you say that the creditor is prejudice? A: When the heir has no more property to pay for the debts. If the heir who repudiates has his own property, the creditor should go against the personal property of the heir who repudiates. He cannot petition the court the court to accept the inheritance in behalf of the renouncing heir. Example: The testator has a son A. A has a children B and C. A prior to accepting or repudiating he died. His right to accept or repudiate passes on to his own heirs. C and B may accept in bahlf of A. But in order that B and C may accept or repudiate the inheritance of A FROM THE TESTATOR, B and C must first accept or repudiate the inheritance FROM A. Article 1053. if the heir should die without having accpetd or repudiated the inheritance his right shall be transmitted to his heirs. Article 1054. Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it. Q: What happens if all accept? A: There is co-ownership. Q: What if one repudiates? A: There is accretion or substitution if there is a substitute. Article 1055. If a person, who is called to the same inheritance as an heir by will and ab intestate, repudiates the inheritance in his capacity as testamentary heir, he is understood to have repudiated it in both capacities. Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he mat still accept it in the latter capacity. RULE: An heir is both a testamentary heir and an intestate heir. Q: If you repudiate your institution as testamentary heir, are you still entitled to inherit by intestacy?

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A: No because the will is the expres wishes of the testator, if you refused or renounced the express wishes of the testator how much more the presumed wishes of the tesaotr which is the basis for legal/intestate succession. If you renounced your share in testamentary succession, it follows that you also renounced your share in legal succession. Q: What if you repudiate your share in legal succession? A: If at the time of your being legal or intestate heir, you already knew that you are instituted as testamentary heir, you are deemed to have repudiated both. But if at the time that you are renouncing your being an intestate or legal heir, you do not know that you are also instituted heir in a will then you are not deemed to have renounced your instiution in the will because the presumption is that the shares of the heir in legal succession is just based on the rpesumed will of the testator. So you give the hier the benefit of the doubt. NB: Case IMPERIAL v. CA October 8, 1999 Article 1056. The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the causes that vitiate consent, or when an unknown will appears. Article 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance. If they do not do so within that time, they are deemed to have accepted the inheritance. So within 30 days dapat mo-accept ka or repudiate from the order of distribution. So kung wala ka nagsignify ug acceptance or repudiation then the presumotion is, you have accepted. Note that tacit acceptance is different from presumed acceptance. Presumed is article 1057. Tacit is is under article 1050.

Section 4 EXECUTORS AND ADMINISTRATORS Article 1058. All matters relating to the appointment, powers and duties of executors and administrators and concerning the administration of estate of deceased persons shall be governed by the Rules of Court. Article 1059. If the assets of the estate of a decedent which can be applied to the payment of debts are not sufficient for that purpose, the provisions of articles 2239 to 2251 on Preference of Credits shall be oberserved, provided that the expenses referred to in article 2244, No.8, shall be those involved in the administration of the decedent’s estate. Article 1060. A corporation or association authorized to conduct the business of a rust company in the Philippines may be appointed as an executor, administrator, guardian of an estate, or trustee, in like manner as an individual; but it shall not be appointed guardian of the person of a ward.

Section 5 COLLATION Article 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. Article 1062. Collation shall not take place among compulsory hiers if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. Article 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired.

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Article 1064. When grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property. They shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. Q: What is Collation? A: I. It means, computing or adding certain values to the estate, and charging the same to the LEGITIME: Example: Your father acted as a guarantor of your debt. Then you did not pay so your father paid. What is the treatment of that money paid by the father? Would that be part of the collationable items? No, it is not subject to collation because by acting as a guarantor, the father assumes liability. (article 1069) II. It means, computing or adding certain values to the estate, and charging the same to the FREE PORTION. Q: How about the items which are not collationable (meaning, it is merely charged to the free porton? A: 1. If the testator provides that the donation shal not be collated – Example: “The donation I give to my son is not subject to collation.” Meaning, it will not be charged to the legitime but it will be charged to the free portion. Why? Because by providing that it is not subject to collation, it means that the testator wants to give to the heir that donation over and above the legitime. But subject to the rule that it should not impair the legitime of the other compulsory heirs. If the estate is P250T and the testator has children A, B and C and the testator provides that the P50T donation to A shall not be subject to collation then the computation of the legitime, we have to give A, B and C, 41, 666 each as their legitime. The P50T shall be charged to free portion. Ok lang kay the free portion is P125T, so the remaining is P75T (125-50 = 75) so it is not inofficious. Q: What if during the lifetime of the testator, he gave A donation worth P135T? A: Obvioulsy ma-impair na nay ang legitime sa uban. The free portion is P125T. So the excess of P10T shall now be charged to the legitime of A. Upon the death of the testator A will only received P31, 6666 from his legitime plus P125T. 2. If the compulosry heir repudiated his share in the inheritance – You do not charged to his legitime because he is now excluded, wala na sya’y legitime.

Q: Since there is a donation and there are compulsory heirs who survive with the repudiating compulsory heirs, what do you do now with the donation given to the heir who repudiated the inheritance (wala nya gi-repudiate ang donation, ang inheritance lang)? How should you treat that? A: You treat such as collated to the free portion because we have to determine again the net hereditary estate to determine the proper legitime of the compulsory heirs. (article 1062) Q: What will happen to the donation given to the heir who repudiated the inheritance, will it be revoked? A: No because donation is effective inter vivos. In case the donation is inoficious meaning it will impair the legitimes of the other compulsory hiers then the heir who repudiated the inheritance will pay or give back the value to the other compulsory heirs whose legitimes are impaired. 3. Those given to voluntary hiers, legatees and devisees. (article 1063. )

 Property left by will – meaning, that is given to voluntary heirs, legatees and devisees.  The donations given to them shall not be charged to the legitime but will be charged to the free portion.  These donations to voluntary heirs, legatees or devises, even if charged to the free portion if it will impair the legitime of the other compulsory heirs so you have to reduced. 4. Expenses incurred by the parents in giving their children the professional, vocational or other career (article 1068)

GENERAL RULE: Expenses incurred by the parents in giving their children the professional, vocational or other career is not charged to the legitime of the compulsory heirs but only to the free porion. EXCEPTION: If the parents expressly provides that it shall be charged to the legitime.

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5.

Wedding gifts (article 1070)

Article 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. These items are charged to the free porion but subject to the limitation that they should not exceed 1/10 of the free portion. ILLUSTRATION: A, B and C, the estate is worth P300T. The legitime P50 each The free portion is P150T. Suppose during the lifetime of the testator A received a jewelry worth P15T as wedding gift. Q: Where do you charged the P15T? A: Under article 1070, it is charged to the free portion. So do not charged to the legitime. Meaning, it is over and above the legitime. In addition to the P50T is the P15T. Q: What if the wedding gift was worth P45T? (1/10 of 150T = 15T, there is still an excess of P30T) A: P15T is charged to the free portion. The excess of 30T shall be charged to the legitime. So in effect, the heir will receive P15T + 30T and whatever remains to the free portion. Q: The law says wedding gifts consisting of jewelry, clothing and outfit. How about cash? A: Accoding to Paras, by analogy it is considered wedding gift provided that they are within the status of the family. But other authors like Puno and Reyes disagree, because for them you have to apply the letters of the law. III. Items which are not collated to the legitime and to the free portion because they are not included in the computation in the Net Hereditary estate. Q: What are these items? A: 1. Properties received from the testator by the children of the heir. (Article 1065) Article 1065. Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. ILLUTRATION: The testator has a child A and A has a child B. B received a donation from the testator P1M. The testator died. So his heir is A. Q: Should A collate the P1M received by his child in the computation of his legitime? A: No because this is a donation to B,. A does not represent B and A excludes B in the inheritance. So A gyud ang heir. Different sya if the donation was given o A and B and A died ahead then is the representative. In this case, B by representation he succeeds not from the person to be represented but from the testator. So kung unsa man ang nadwat ni B rom the testator should be collated by B. Q: What about those received by A, why should be included in the collation? A: Because by representation, B succeeds the rights and obligation of A. Whatever rights and obligations A would have pertaining to the estate of the testator will now pass to B. So dapat i-collate nya tanan. 2. Donations by the testator to the spouse of the compulsory hier (article 1066) Article 1066. Niether shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. So A and B are husband and wife then A received a donation from the testator but the heir is not A, it is B. So walay labot si A. So kung unsa man ang gi-donate sa testator sa imong asawa or bana dili na nimo i-collate. EXCEPTION: If the donation was made to the spouses JOINTLY. – In this case, ½ is collationable which is the share pertaining to the heir. 3. Expenses for support, education, medical attendance (article 1067) Article 1067. Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation.  SUPPORT – includes education but article 1067 separates support and education.

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 Education under this article menas only up to HIGH SCHOOL education. Why? There is separate provision under article 1068 as to professional, vocational and other carreer, the treatment would be different. Article 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation nless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. Q: What is the reason for these items are not collated or charged to the free portion and the legitime? A: The reason is not generosity. But when you give your child elementary or high school education , this is not generosity but a Moral Obligation on you part Article 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, amd similar expenses shall be brought to collation. Article 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will. Article 1071. The same things donated are not to be brought to collation and partition, but only their value at the time of donation, even though their just value may not then have been assessed. Their 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. Article 1072. In the collation of a donation made by both parents, one-half shall be brought to thye inheritance of the father, and the other half, to that of the mother. Hat given by one alone shall be brought to collation in his or her inheritance. Article 1073. The donee’s share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality. Article 1074. Should the provisions of the preceding article be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quaotations; and should there be neither cash nor marketable securities in the estate. So mush of the other property as may be necessary shall be sold at public auction. Article 1073 and article 1074 are the RULES OF EQUALIZATION IN COLLATION. RULES For IMMOVABLES: Property of the same nature, class and quality; If no property of the same nature, Cash or security; Other property as may be necessary shall be sold at public auction.

 1. 2. 3.

ILLUSTRATION: An hier during the lifetime of the testator received a land but such donation has to be reduced beucase it is inofficious. Meaning, there would now be a returning in kind or a collation in kind. Q: So how about the other heirs whose legitime have been impaired by that inofficious donation? What should received money or land? A: The law says as much as possible of the same nature, class and quality (article 1073) therefore land. Kung wala nay land sa estate, so dili na possible na ang other heirs mataga-an ug the same kind. So the other alternative is to give cash or security (article 1074). If no cash or security, you sell other properties.  RULES For MOVABLES: 1. Property of the same nature, class or quality ; 2. If none, the equalivalent value of the property. If movable property is involved, for example car. The donation was proved to be inofficous because it impaied the legitime of the others. So it has to be reduced and the legitimes of the other heirs have to be completed.

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Q: How do you complete? A: The same rule, first is the car, if none, other personal property at its just price. Cash kung naay cash kung wala look for another property.  You have to remember that when the property donated is an IMMOVABLE property and it prove to be inofficious, so the Rule on equalization, you give property of the same kind, quality and class, if none, cash or security, if none, sale of other properties.  When the property donated is a MOVABLE property, there is NO RIGHT to sell at public auction. Only cash if no property of the same kind. Article 1075. The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened. For the purpose of ascertaining their amount , the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. Example: A receive a land in 1990 but the land has to be returned because it is inoficious. The land has fruits and interest. Fruits from 1990 to 2004. The testataor died in 2004. Q: What will happen to the fruits from 1990-2004? To whom shall the fruits pertain? A: To A. But the fruits from the time of death of the testator, will pertain to the estate. The rule we discussed before that fruits shall pertain to the heirs from the time of the opening of the succession, that applies in case inheritance because the rights to the inheritance accrues from the time of death so fruits accruing from the moment of death and thereafter shall pertain to the heir. But here, we are talking of Donation. In donation, there is immediate transfer ofownership. So in our example, at the time of donation in 1990, ownership over the land is already transferred to A. But since at the time of death the donation was proved to be inofficious, he has to return the land. His ownership is then extinguished, so the fruits will pertain to the estate. Article 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value. The done who collates in kind an immovable, which has ben given to him, must be reimbursed by his coheirs for the improvements which have increased the value of the property, and which exist at the time the partition is effected. As to works made on the estate for the mere pleasure of the donee, no reimbursement is due for them; he has; however, the right to remove them, if he can do od without injuring the estate. This article talks the RULES FOR RETURNING IN KIND. 1. When there is collation “in kind” meaning, there is return of the property or the value, the other heirs should reimburse the donee for the necessary expenses.

Whatever expenses incurred for the preservation of the property, the others hiers should be reimbursed once na i-return na ang donated property because it impairs the legitime of the others. 2. You have to reimburse the hier of the value of the improvements.

Example: In 1990, A during the lifetime of the testator received a land worth P5M but has to be returned to the estate because the donation to A was inofficious. The testator died in 2004. Now the value of the value of the land is already P50M. One of the obligation of the other heirs is he has to pay the increase in the value of the land. Meaning, he will return the land and the other hiers will pay him P45M. Or, A is not obliged to return the land but only to return the value of the property donated. Q: What value shall be the basis, 1990 or 2004? A: The value in 199o, so P5M. But if the other hiers want the land, 1/10 lang ang dapat iuli sa mga hiers. 3. Those for the mere pleasure of the donee

Q: What are the donee’s rights? A: His right is to remove the improvements which are for his own pleasure if the removal will not impair the the property donated.

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Section 6 PARTITION AND DISTRIBUTION OF THE ESTATE Subsection 1 – PARTITION 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. 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. Article 1079 defines partition. Before partition, there is co-heirship. If the testator died leaving A, B and C are his hiers. Prior to partition A, B and C are co-heirs. So there is co-ownership over the property inherited. This co-heirship is dissolved by partition. Q: How partition is made? A. 1. JUDICIAL PARTITION – there has to be an order of distribution by the court. So this happens when there is a probate procceding or an intestate proceeding. 2. EXTRA-JUDICIAL PARTITION – can be done by the decedent himself, or by the hiers or by 3rd person. Article 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial or manufacturing enterprises intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. This is Extra-judicial Partition by the Decedent. This is subject to the limitation that the legitimes of the compulsory hiers should not be impaired. KINDS OF EXTRA JUDICIAL PARTITION By DECEDENT: 1. By acts Inter vivos Q: How do you do partition by act inter vivos? Should it be in a public document or at least in writing? A: There is no requirement or no formalites required. This is so because in partition, there is no transfer of ownership. There is merely a physical determination of the portion to be given to the heir. 2. By Will – formalites is required. KINDS EXTRA-JUDICIAL PARTITON by the HEIRS: 1. Can be done Orally – this kind of partition is binding only between the heirs themselves who are participants. 2. By Public Instrument – this is binding even against the 3rd person. LIMITATIONS OF extra judicial partition: 1. There are no debts; 2. That everyone is of legal age or represented by guardian. Article 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to nay person who is not one of the co-heirs. The provisions of this and of the preceding article shall be observed even should there be among the coheirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. This is what you call the appointment of the MANDATARY. MANDATARY – is a person entrusted to make the partition.

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REQUIREMENTS in order that there is valid partition by the mandatary: 1. 2. 3. The mandatary should not be a co-heir because if he is one of the co-heirs his partition may be tainted with impartiality. In case one of the heirs is subject to guardianship, it is required that there be notifications to the co-heirs, creditors, legatees or devisees. There has to be inventory of the estate.

Q: Are the heirs bound by the partition made by the Mandatary? A: No they are not bound. The heirs may accept or they may reject. In case of conflict, the court may settle the conflict.

Article 1082. Every act which is intended to put an end to indivision among co-heirs and legatee or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. Q: When is partition effected? A: No specific as long as it is intended to put an end to indivision or to end the co-ownership. Article 1083. Every co-heir has a right to demand the dividion of the estate unless the testator should have expressly forbidden its partition, in which case the period of indisvision shall not exceed twenty years as provided in arctile 494. This power of the testator to prohibit division applies to the legitime. Even though forbidded by the testator, the co-ownership terminates when any of the cuases for which partnership is dissolved takes place, or when the court finds for compelling reasons that dividion should be ordered, upon petition of one of the co-heirs. Q: Who can demand partition? A: Heirs whether compulsory or voluntary; EXCEPTION: When the testator has forbidden the partition of the estate. This prohibition shall not exceed 20 years. Q: Is there an instance when the heirs may partition even if before 20 years? A: 1. When any of the causes for the termination of the partnership occur like death; or 2. If the heirs themselves mutually agree to partition; or 3. Upon order of the court for compelling reasons and upon petition of the heirs. Article 1084. Voluntary heirs upon whom some condition has been imposed cannot demand a partition unitl the condition has been fulfilled; but the oher co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with, and until it isknown that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional. Q: When it comes to a voluntary heir, whose instiution is subject to a condition, can he demand partition before the fulfillment of the condition? A: No. Q: How about the other hiers concurring with the hiers whose institution is subject to a condition, say, condition not to demand partition if he is not yet married? Can they demand partition? A: Yes, they can demand but they have to give security or cash bond to safeguard the rights of the conditional hiers. This is the only requirement for the other heirs concurring with the other hier who is subject to a condition. Q: What is the Prescriptive period for the demand to make partition? A: The right to demand partition DOES NOT prescribe. It is imprescriptible or cannot be barred by laches. (Santos v. Santos October 12, 2000) EXCEPTION: When one of the heirs adversely possesses the property and he has complied with all the requirements for acquisitive prescription. Example: There is partition but one did not recognize and he makes known his repudiation to the other cohiers. 30 years have lapsed. In this case, the other heirs can no longer demand partition because the property is now

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in the ownership of the heir who has acquired the property by acquisitive prescription. So ma-defeat na ilahang right. Article 1085. In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. Article 1086. Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash. Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. Article 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage through malice or neglect. Articles 1085, 1086 and 1087 are the Rules on Equalization in Partition. Just read these articles, they are understandable (ok☺!) Article 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. This is an important provision. So prior to partition, one of the co-heirs sells his hereditary rights to a stranger. What are the rights of the other heirs? They have he right of LEGAL REDEMPTION. Meaning, puede nila paliton ug usab didto sa nakapalit ang hereditary right. You have to observe that Legal Redemption can be exercise only if the following REQUISITES are present: 1. Two or more heirs;  If there be only one heir, the article cannot apply.  Heirs include legatees and devisees. 2. Sale of Hereditary Right;

Q: If you sell a specific portion, what happen? A: In effect, there is partition. Hereditary rights lang and not specific object nor rights in specific object.  There must be a sale or other onerous disposition like dacion en pago. It does not include donation.  The sale must be voluntary or forced as in the case of sales on execution. 3. 4. The buyer must be a stranger; The sale must be made BEFORE partition;

When the sale is made after the partition, there is already a partition, there is no right of Legal Redemption because you are no longer a co-heir. 5. At least one co-heir must demand partition;

 If all of the of the co-heir demand partition, they shall be allowd to redeem the proportionate share pertaining to them. 6. The demand must be made within one month from Notification in Writing;

 There has to be a notification in writing before the period of one month shall begin to run. Kung wala ka gitagaan ug notification, 10 years na ang nag-lapse puede pa gihapon nimo ma-exercise ang legal redemption kay wala man notification in writing.  This notice in writing was dispense with in the case of:

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GARCIA v. CALALIMAN April 17, 1989 Facts: The co-heir here had actual knowledge of the sale. The circumstances of the case require that to require a notice in writing would be a useless formality because there was actual knowledge. 7. The Redemptioner must reimburse the Price of the sale.

GENERAL RULE: The right of Legal redemption is a PERSONAL RIGHT. They cannot assign or sell this right. EXCEPTION: If the heir who wants to exercise the right of legal redemption dies prior to the exercise, his right may be transmitted to his own heirs. Article 1089. The titles of acquisition of ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. Article 1090. When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title.

Subsection 2. EFFECTS OF PARTITION Article 1091. A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. Article 1092. After being partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated. Article 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs; but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. EFFECTS OF PARTITION: 1. Once there is partition, the heirs will be the exclusive owners of the thing given to them or delivered to them (article 1091); 2. There is a reciprocal and proportionate warranty (article 1092); So kung ang gihatag sa imo na portion kay nabaligya na diay sa ubang tao then na-evict ka, there is now a warranty against eviction. So puede ka maka-demand sa other heirs to give you your proper share or you have to bear proportionately the lost. Article 1094. An action to enforce the warranty among co-heirs must be brought within ten years from the date the right of action accrues. The period of exercise of the warranty is 10 years. Article 1095. If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. The warranty of the solvency of the debtor can only be enforced during the five years following the partition. Co-hiers do not warrant bad debts, if so known to, and accepted by, the distributee. But if such are not assigned to a co-hiers, and should be collected, in whole or in part, the amount collected shall be distributed

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proportonately among the heirs. This is Warranty as to Insolvency. ILLUSTRATION: B, C and D are the heirs. There is a legacy of credit, daghan na debts. What was assigned to B kay wala na na-collect kay insolvent na diay si A. Q: Will B bear the loss? A: There is now a warranty of insolvency but provided that A became insolvent PRIOR to partition. If A is insolvent after the partition, na-deliver na sa ilaha ang ilang respective shares tapos na-insolvent si A, there is no waranry of Insolvency Q: What if A is not insolvent but he is known na nagadagan sa iyang utang and B knows this, what will happen? A: This is bad debts. If the heir knows and accept the risk then he shall bear the risk. Article 1096. The obligation od warranty among co-heirs shall cease in the following cases: (1) When the testator himself has made the parttion, unless it appears, or it may be reasonably preseumed, 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 t causes subsequent to the partition, or has been caused by the fault of the distributee of the property.

Subsection 3 RESCISSION AND NULLITY OF PARTITION Article 1097. A partition may be resceinded or annulled for the same cuases as contracts. Q: How do you annul partition? A: Same cause for rescission and annulment of contract. Article 1098. A partition, juridical or extra-judicial,may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitledm considereing the value of the things at the time they were adjudicated. Article 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsotu heirs is hereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. GENERAL RULE: In order that that you may be justified in aking for rescission on the account of lesion, at least ¼ should be the deduction. Example: If your right to inheritance is P10T, but you only received from the parttion P7,500 (2, 500 is ¼ of P10T), in that case, you can ask for rescission.Kung ang kulang is P1T, you cannot ask for rescission. You can only ask for a completion. EXCEPTION: If the partition is made by the TESTATOR, bisan pa ¼ na ang lesion or even ½ dili ka maka-ask ug rescission. EXCEPTION TO THE EXCEPTION: 1. When the legitime of the compulsory heirs has been impaired. 2. If the intent of the testator is for his partition to be rescinded should there be lesion. Article 1100. The action for rescission on account of lesion shall prescribe after four years from the time the partition was made.

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Article 1101. The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition. Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those who have not received more than their just share. 1. 2. The defendant heir, despite a proper ground ro rescission is given an option: To indemnify the plaintiff – may be made by: a. payment in cash; or’ b. delivery of the thing of the same kind. New partition

Article 1102. An heir who has alienated the whole or a considerable part of the real property adjudicated to him 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 mtutal restitution. Article 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of leasion, but the partition shall be completed by the distribution of the objects or securities which have been omitted.

Article 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. This involves a preterition of compulsory heirs in the partition. GENERAL RULE: Such preterition in the partition will NOT cuase rescession. EXCEPTION: If there was : 1. Fraud 2. Bad faith Article 1105. A partition which includes a person believed to be an heir, but an heir who is not, shall be void only with respect to such person. This article speaks of an Intrusion of a stranger in the partition. The parttion in this case, is not completely void. But only the part corrersponding to the non-hier is Void.

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