Wills and Succession FINAL NOTE

BAR REVIEW LECTURE

WILLS AND SUCCESSION

ATTY. RONEY JONE P. GANDEZA

SUCCESSION

• mode of acquisition of ownership

• property, rights, obligations transmitted

• through death

• by will or by operation of law

QUESTION:

Which of the following is not a mode of acquisition of ownership?

a. prescriptionb. donationc. accessiond. law

WHAT ARE THE MODES OF ACQUISITION OF OWNERSHIP?

DONATION PRESCRIPTION INTELLECTUAL CREATION SUCCESSION TRADITION OCCUPATION LAW (Art. 712, CC)

QUESTION:

What is meant by “law” as a mode of acquiring ownership?

Cite at least three examples.

ANSWER:When the Civil code speaks of “law” as a distinct mode of acquiring ownership, it refers to those instances where the law, independently of the other modes of acquiring ownership, AUTOMATICALLY and DIRECTLY vests the ownership of the thing in a certain individual once the prescribed conditions are present or complied with.

EXAMPLES:Hidden treasure which a stranger discovers

by chance on another’s property. Here, one-half of the treasure belongs to the stranger, while the other half belongs by operation of law to the owner of the land. (Art. 438, CC)

Abandoned beds, when a river or stream suddenly changes its course to traverse private lands. The former owners of the new bed shall be the owners of the abandoned bed in proportion to the area lost by each. (Art. 58, PD 1067)

Fruits naturally falling from a tree upon adjacent land. Here, the ownership of the fruits is vested automatically in the owner of the adjacent land. (Art. 681, CC)

Acquisition of property in a state of co-ownership if marriage is governed by the absolute community regime.

WHY IS THERE A NEED TO DISTINGUISH BETWEEN DONATION INTER

VIVOS AND DONATION MORTIS CAUSA? The distinctions are important to determine -

Effectivity of donation Transfer of ownership Revocability of donation Predecease of donee Formalities required by law

EFFECTIVITY OF DONATION

Donation inter vivos takes effect during the lifetime of the donor.

Donation mortis causa takes effect upon the death of the donor.

TRANSFER OF OWNERSHIP

In inter vivos, ownership is transferred to the donee before the death of the donor.

In mortis causa, ownership is transferred only upon the death of donor.

DEATH OF DONEE

Inter vivos is valid even if donor survives the donee.

Mortis causa is void if donor survives the donee.

REVOCABILITY OF DONATION

Inter vivos is essentially irrevocable.

Mortis causa is always revocable during the lifetime of the donor.

FORMALITIES

Inter vivos must comply with the formalities for donations under Arts. 748 and 749, Civil Code.

Mortis causa must comply with the formalities for notarial and holographic wills.

PROBLEM:

X donated in a public instrument a parcel of land to Y, who accepted it in the same document. It is there declared that the donation shall take effect immediately, with the donee having the right to take possession of the land and receive its fruits but not to dispose of the land while X is alive, as well as for ten years following his death.

Moreover, X also reserved in the same deed his right to sell the property should he decide to dispose of it at any time – a right which he did not exercise at all.

After his death, X’s heirs brought an action to recover the property, alleging that the donation was void because it did not comply with the formalities of a will. Will the suit prosper?

ANSWER:Yes, the suit will prosper because the donation did not comply with the formalities of a will. In this instance, the fact that the donor did not intend to transfer ownership or possession of the donated property to the donee until the donor’s death, would result in a donation mortis causa and in this kind of disposition, the formalities of a will should be complied with, otherwise, the donation is void.

The donation mortis causa in this case which is embodied only in a public instrument without the formalities of a will could not have transferred ownership of the disputed property to Y.

TRANSMISSION OF PROPERTY RIGHTS AND OBLIGATIONS

All obligations are transmissible, except purely personal obligations.

Heir’s liability to pay is co-extensive with the value of his inheritance.

PROBLEM:

D was the defendant in a civil case. During the pendency of the case, he died, and his children were substituted as defendants.

If judgment is rendered against the defendants, can the children be held personally liable with their own individual properties?

ANSWER:

Despite the substitution, the children are not liable.

The remedy of the plaintiff, the creditor, is to proceed against the estate of the deceased debtor.

PROBLEM:A father sold a parcel of land to a buyer, but had not yet delivered the parcel by the time he died. Are the heirs required to make the delivery?

ANSWER:Yes, because the heirs also inherit the obligations of the deceased which are not extinguished by death.

The rights to the succession are transmitted from the moment of death of the decedent. (Art. 777, CC)

DEATH OF THE DECEDENT

PRIOR TO A PERSON’S DEATH

The heirs own the property, subject to the decedent’s liabilities.

They may dispose of the property, even if the property is still under administration.

The heirs merely have an inchoate right to his property.

AFTER DEATH OF A PERSON

PROBLEM:T died with a will survived by his legitimate children: A, B and C.

Upon T’s death, A, the eldest son, sold his entire share to his friend, F.

Is the sale valid?ANSWER:

The sale is valid because the rights of A to the inheritance became vested upon T’s death.

QUESTION:

Is actual death the only trigger that opens the estate of a person to succession?

ANSWER:Yes, subject to two exceptions:

a) presumed death of a person.

b) judicial dissolution of marriage.

PRESUMED DEATH

ORDINARY ABSENCE

If the absentee disappears under normal conditions, there being no danger of death, he is presumed dead for the opening of his succession at the end of TEN YEARS.

If he disappeared at age 75, he is presumed dead at the end of FIVE YEARS.

EXTRAORDINARY ABSENCE

This is absence coupled with great probability of death.

An absence of FOUR YEARS is sufficient for a person to be presumed dead.

PRESUMPTION OF DEATH DUE TO EXTRAORDINARY ABSENCE

A person on board a missing vessel or a missing airplane, who has not been heard of for FOUR YEARS since the loss of the vessel or airplane.

A person in the Armed Forces who has taken part in war, and has been missing for FOUR YEARS.

A person who has been in danger of death under other circumstances and his existence has not been known for FOUR YEARS.

QUESTION:If a person disappears with great probability of death, when should he be presumed dead?

ANSWER:The person is presumed to have died at the time of the disappearance (or at the time of the calamity, not at the end of four years.

The presumption of death will arise that death had occurred four years before.

While succession really took place four years before or on the day of the disappearance, actual division will only be at the end of four years.

From the beginning of the four years, the heir shall be considered the owner and possessor of the property, and not only from the end thereof.

PROBLEM:

W, wife of H, filed a petition seeking a judicial declaration of presumptive death of her missing husband, H, who has been missing and unheard of since 2005.

Will the petition prosper?

ANSWER:

No, because the presumption is already established by law.

A judicial declaration of presumptive death is required only for purposes of remarriage under Article 41 of the Family Code.

QUESTION: Suppose H was 76 years old when he disappeared in 2005, when shall he be presumed dead for the opening of his succession?

a. 2009b. 2010c. 2012d. 2015

FREAK SUCCESSIONThis is succession without the triggering effect of actual death.

Article 50 of the Family Code gives two instances which require the payment or delivery of presumptive legitimes before the actual death of the person who is obliged to pay it.

QUESTION: What is freak succession?

TRANSMISSION BY WILL OR BY OPERATION OF LAW

If a person dies with a will, his estate is to be distributed in accordance with the rules on testamentary succession.

If he dies without a will, or with a void will, his estate is to be distributed in accordance with the rules on intestate succession.

DIFFERENT KINDS OF SUCCESSION

• Testamentary• Intestate• Mixed

TESTAMENTARY This is succession which results from the

designation of an heir, made in a will, and executed in the form prescribed by law.

LEGAL OR INTESTATE This is succession which is effected by operation of law in default of a will.

MIXED This is succession effected partly by will and partly by operation of law.

DIFFERENT KINDS OF HEIRS

COMPULSORY HEIRS

- primary compulsory heirs- secondary compulsory heirs

VOLUNTARY HEIRS

INTESTATE HEIRS

DISTINCTIONS BETWEEN HEIRS LEGATEES AND DEVISEES

DEVISEES/LEGATEES are always called to succeed to individual items of property.

HEIRS are called to succeed to an indeterminate, fractional or aliquot portion of the decedent’s estate.

DEVISEES/LEGATEES succeed by particular title.

HEIRS succeed by universal title.

DEVISEES/LEGATEES are always called to succeed by will.

HEIRS are called to succeed either by will or by operation of law.

QUESTION:

What is the importance of the distinction between heirs on the one hand and legatees/devisees on the other?

ANSWER: GENERAL RULE

There is no difference in their capacity, effect and solemnities.

EXCEPTION

Distinction is important in cases of: PRETERITION IMPERFECT DISINHERITANCE.

WHAT IS PRETERITION?

The omission in the testator’s will 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.

FIRST: There is a total omission in the inheritance.

SECOND: The omission must be of a compulsory heir.

THIRD: The compulsory heir omitted must be in the direct line.

REQUISITES OF PRETERITION

TOTAL OMISSION IN THE INHERITANCE

THERE IS PRETERITION even if a compulsory heir is named in the will, but he is not given any share, the heir not having been expressly disinherited.

REASON: Preterition involves an omission in the inheritance, not in the will.

NO PRETERITION if a compulsory heir is given a share in the inheritance no matter how small.

REASON: The heir is entitled only to the completion of his legitime. (Art. 906, CC)

NO PRETERITION even if a compulsory heir is not given anything in the will, but he had already received a donation from the testator.

REASON: A donation to a compulsory heir is considered as an advance of the legitime. (Art. 1073 CC)

NO PRETERITION if a compulsory heir is given a legacy, even if less than his legitime.

REASON: Remedy of the aggrieved heir is to demand completion of his legitime.

NO PRETERITION if part of the estate has been given to a compulsory heir, whether indicated in the will or not.

OMITTED HEIR MUST BE A COMPULSORY HEIR

THERE IS NO PRETERITION of voluntary heirs or instituted heirs.

NEITHER IS THERE PRETERITION of intestate heirs, unless they are compulsory heirs.

COMPULSORY HEIR OMITTEDMUST BE IN THE DIRECT LINE

THERE IS NO PRETERITION of a surviving spouse.

Although a compulsory heir, the spouse is not an heir in the direct line.

EFFECTS PRETERITION

FIRST EFFECT

The institution of heirs is automatically annulled without need of court action.

INTESTACY RESULTS.

PROBLEM:

T has three legitimate children, A, B and C. T made a will instituting his children, A and B, and a friend, F, as his sole heirs. C was omitted in the inheritance.

Estate is 90,000. How should the distribution be made?

A B C F

90,000

Instituted Instituted Preterited Instituted

ANSWER:

The preterition of C annuls the institution of A, B and F as T’s heirs. Intestacy results.

A, B and C will each get 30,000.

The friend, F, gets nothing.

PROBLEM:T executed a will containing only one provision whereby he instituted his sister, S, as his only heir.

Surviving T when he died were his parents, F and M, and his sister, S.

How shall T’s estate of 50,000 be distributed upon his death?

50,000 Instituted

ANSWER:

The omission of F and M constitutes preterition which will result in the annulment of the institution of S.

Consequently, the entire will is void; estate is to be distributed as in intestacy.

IMPORTANT:

In preterition, the preterited heir gets his share not only of the legitime, but also of the free portion.

This rule differs from a case of imperfect disinheritance where the disinherited heirs gets only his legitime.

SECOND EFFECT

Although the institution of heirs is annulled, the legacies and devises shall remain valid insofar as they are not inofficious.

In other words, they are not voided, but they are merely reducible if the legitime has been impaired.

PROBLEM:

In T’s will, he gave F, a friend, a legacy of 10,000; instituted his son, A, as heir; and deliberately omitted his other son, B.

If the estate is 100,000, how should the estate be distributed on T’s death?

A BInstituted Preterited

100,000

Legatee10,000

ANSWER:The preterition of B renders the institution of heirs void.

The legacy is effective for the legitime has not been impaired.

Therefore, the remaining 90,000 will be divided intestate as follows:

A = 45,000B = 45,000F = 10,000

ANSWER: Since the estate is 100,000, the free portion is only 50,000. The legacy of 60,000 should be reduced by 10,000. A = 25,000

B = 25,000F = 50,000

PROBLEM:In the previous problem, if the legacy to F had been 60,000 and the other facts are the same, how would the estate be distributed?

PROBLEM:

In T’s will, he gave his friend, X, a legacy of 60,000; instituted A and another friend, Y, as heirs; and deliberately omitted B.

If the estate is 100,000, how should the estate be distributed on T’s death?

A B X YInstituted Preterited Legatee

60,000Instituted

100,000

ANSWER:

The preterition of B renders void the institution of A and Y.

The legacy to X, though valid, is reducible because it impairs the legitime of A and B.

A = 25,000B = 25,000X = 50,000Y = 0

OBSERVATIONS:

The legatee (X) is entitled to receive his legacy.

But the instituted heir (Y) is not entitled to receive anything from the estate.

WHAT IS INEFFECTIVE DISINHERITANCE?

1.. Without specification of the cause (no cause stated)

2. Cause denied by the heir and not proved by the instituted heir (false cause)

3. Cause not given by law (illegal cause)

ANSWER:FIRST EFFECT: The institution of heirs is annulled insofar as it may prejudice the person disinherited, or insofar as the legitime of said heir is impaired.SECOND EFFECT: The devises, legacies and other testamentary dispositions shall be valid to such extent as it will not impair the legitime.

QUESTION: What are the legal effects of ineffective, imperfect or invalid disinheritance?

PROBLEM:

Testator T has three legitimate children: A, B, and C.

In his will, T disinherited A and instituted B and C as his heirs. The disinheritance of A was invalid because it was for a cause not provided by the law.

If the hereditary estate is 90,000, how shall the distribution be made?

A B CIneffectivelyDisinherited

Instituted Instituted

90,000

ANSWER:

The institution of B and C remains valid, but their shares are to be reduced to give A his legitime.

Had there been preterition here, each would receive 30,000 each. Therefore:

A - 15,000 B - 37,500C - 37,500

PROBLEM: Estate is 100,000. T gave a legacy of 70,000 to a friend, X. Y, a legitimate child, was ineffectively disinherited.

How much should X and Y get?

100,000

INEFFECTIVELY DISINHERITED

LEGATEE70,000

ANSWER:

X (legatee) gets only 50,000. The legacy to him is reducible by 20,000 so as not to impair Y’s legitime.

Y (disinherited heir) gets his legitime of 50,000.

QUESTION:

In his will, testator T (a) disinherits his daughter, A, because “she married a good for nothing gigolo despite my repeated warnings that she shouldn’t marry him” (b) omits his wife, W, (c) leaves a legacy of 10,000 to his mistress, M, and 5,000 to his driver, E, and (e) institutes his son, B, as his sole heir. Distribute T’s estate of 100,000.

100,000 W

EBDISINHERITED INSTITUTED 10,000 5,000

LEGATEE LEGATEE

PRETERITED

ANSWER:

The disinheritance of A was ineffective because the ground relied upon by T does not constitute a valid ground for disinheritance under Article 919 of the Civil Code. Hence, the testamentary provisions in the will shall be annulled but only to the extent that A’s legitime was impaired.

The total omission of W does not constitute preterition because she is not a compulsory heir in the direct line. Only compulsory heirs in the direct line may be the subject of preterition. Not having been preterited, she is entitled to her legitime.

The legacy in favor of M is void under Article 1028 of the Civil Code for being in consideration of her adulterous relations with T. She is, therefore, disqualified to receive the legacy of 10,000.

The legacy of 5,000 in favor of E is not inofficious because it does not exceed the free portion. Hence, E shall be entitled to receive it.The institution of B, which applies only to the free portion, shall be respected. In sum the estate of T will be distributed as follows: A 25,000

B 45,000W 25,000E 5,000M 0

EB45,000

25,000

25,000 5,0000

100,000

QUESTION:If all other facts in the previous problem are the same, except that the disinheritance of A was for a valid cause, how shall T’s estate be distributed? ANSWER: A 0

B 50,000 (legitime)20,000 (by institution)

W 25,000 (legitime)D 5,000 (legacy)M 0

EFFECTS OF A VALID DISINHERITANCE

Heir is deprived of his legitime.

Children of the disinherited child can represent the latter, but the right of representation extends only to the legitime. (Art. 923, CC)

There is no right to represent a disinherited spouse or disinherited parent.

FORMALITIES OF A WILL

An act whereby a person is:

PERMITTED, with the formalities prescribed by law, TO CONTROL to a certain degree the disposition of his estate.

To take effect after his death (Art. 783, CC)

WHAT IS A WILL?

QUESTION:

What are the ambiguities in a will?

ANSWER:

1. Intrinsic (Latent) ambiguity.

2. Extrinsic (Patent) ambiguity.

INTRINSIC AMBIGUITY

INTRINSIC AMBIGUITY is ambiguity which does not appear on the face of the will. It is is discovered only by extrinsic evidence.

EXAMPLE: “I institute as heir my friend, Rod.” Testator has two friends named Rod.

CASES OF INTRINSIC AMBIGUITY

when there is an imperfect description of the heir, legatee or devisee.

when there is an imperfect description of the gift being given (“a house”)

when only one recipient is designated, but it turns out that there are two or more who fit the description. (Art. 789, CC)

appears on the face of the will.

by examining the provision itself, it is evident that it is not clear.

EXTRINSIC AMBIGUITY

EXAMPLE: “I institute some of my brothers and some of my sisters as my heirs.”

HOW MAY AN AMBIGUITY IN A WILL BE CURED?

No difference in curing intrinsic or extrinsic ambiguities.

FIRST, examine the will itself.

SECOND, admit extrinsic evidence.

Testator’s oral declarations are excluded.

PROBLEM:T instituted “a brother-in-law” as one of his heirs. When T died, it was discovered that he has three brothers-in-law: A, B and C. In making the will, T orally stated that he was referring to brother-in-law, A, but among T’s files was found a memorandum that he wanted brother-in-law, B, to be his heir.

C, the third brother-in-law, states that he was the one referred to.What kind of ambiguity is this?

ANSWER:

This is intrinsic ambiguity; the doubt arises because of circumstances outside the will.

QUESTION:

Is T’s oral declaration extrinsic evidence?

ANSWER:

Yes, but it is inadmissible to cure the defect.

ANSWER:

B should inherit in view of the written memorandum which is admissible extrinsic evidence.

NOTE: In the law on evidence, evidence is admissible if it is relevant and competent.

QUESTION:Who among the brothers-in-law should inherit from T?

AFTER-ACQUIRED PROPERTIES

GENERAL RULE: Property acquired between the execution of the will and the death of the testator are not included among the properties disposed of.

EXCEPTION: Unless it appears in the will that such was the intention of the testator. (Art. 793, CC)

PROBLEM:

T made a will in 1998 giving to his friend, F, all his cars. In 1998, T had three cars, but in 2005, when T died, he had at the time of his death eight cars. How many cars will F get?

ANSWER:

Three only.

The rule under Article 793 of the Civil Code is applicable only to legacies and devises.

As to institution of heirs, Article 781 of the Civil Code applies.

VALIDITY OF WILLS IN POINT OF TIME

EXTRINSIC VALIDITY Determined by the law in force at the time the will is made. (Art. 795, CC)

INTRINSIC VALIDITY Determined by the law in force at the time of decedent’s death.

1. Testator be at least 18 years of age.

2. Testator be of sound mind.

REQUISITES IN THE EXECUTION OF A WILL

CAN THERE BE A VALID ORAL WILL?

No. “Every will must be in writing and executed in a language or dialect known to the testator.” (Art. 804, CC)

KINDS OF WILLS

A will may either be notarial or holographic depending upon the formalities or solemnities which accompanied their execution.

WHAT IS A NOTARIAL WILL?

A notarial will is one which is executed in accordance with the formalities prescribed by Arts. 804 to 808 of the Civil Code.

ESSENTIAL REQUIREMENTS OF A NOTARIAL WILL

1. The will must be in writing.

2.The will must be executed in a language or dialect known to the testator.

3. The will must be subscribed (signed) at the end thereof by the testator’s name written by another person in his presence, and by his express direction.

4. The will must be attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.

5. The testator or the person requested by him to write his name and the instrumental witnesses of the will shall also sign and every page thereof, except the last, on the left margin.

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

7. The will must contain an attestation clause.

8. The will must be acknowledged before a notary public by the testator and the witnesses.

TESTATOR IS DEAF OR DEAF-MUTE

9. He must personally read the will, if able to do so, otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner the contents thereof.

TESTATOR IS BLIND

9. 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.

PROBLEM:

The probate of a notarial will is opposed on the ground that it does not contain a statement attesting that the language used therein was known by the testator.

Should the opposition be given due course?

ANSWER:

There is no law which requires that the will must expressly state the language used in the will and that such language was known by the testator.

What the law requires is that the language was known by the testator. (Suroza v. Honrado, 110 SCRA 381)

ANSWER:Yes, but his institution as an heir, or the legacy or devise given to him, shall be rendered void, unless there are three other competent witnesses. (Art. 823, CC)

In other words, he is disqualified from inheriting from the testator. (Art. 1027, CC)

If a person is a beneficiary in a will, is he competent to act as an instrumental witness?

QUESTION:

MEANING OF “SIGNED IN THE PRESENCE OF”

“SIGNED IN THE PRESENCE OF” does not mean that the testator and the instrumental witnesses actually saw each other sign. TRUE TEST: Whether they might have seen each other sign, had they chosen to do so, considering their mental and physical condition and position with respect to each other at the moment of inscription of each signature. (Nera v. Rimando, 18 Phil. 450)

WHAT IS MEANT BY “ATTESTATION” OF A WILL?

It is the act of witnessing the execution of a will by the testator in order to see and take note mentally that the requirements of the law for the execution of a will and that the signature of the testator exists as a fact.

PURPOSE OF ATTESTATIONTo render available proof that there has been compliance with the statutory requirements for the execution of a will.

SUBSCRIPTION

The manual act of the instrumental witnesses in affixing their signatures in the will.

Only purpose is identification.

DISTINCTIONS BETWEEN ATTESTATION AND SUBSCRIPTION

ATTESTATION is an act of the senses.SUBSCRIPTION is an act of the hand.

ATTESTATION is mental.SUBSCRIPTION is mechanical.

ATTESTATION is to render available proof that the will had been executed in accordance with the law. SUBSCRIPTION is for identification.

Number of pages upon which the will is written.

WHAT ARE THE ESSENTIAL FACTS TO BE STATED IN THE ATTESTATION CLAUSE?

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.

That the instrumental witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. (Art. 805, CC)

FORMALITIES OF HOLOGRAPHIC WILL

1. Written by the hand of the testator himself.

2. Dated by the hand of the testator himself.

3. signed by the hand of the testator himself.

4. Executed in a language or dialect known to the testator.

PROBLEM:

T died in 2005, leaving behind a holographic will which is entirely written, dated and signed in her own handwriting. However, the will contains insertions and cancellations which are not authenticated by her signature. For this reason, the probate of T’s will is opposed by her relatives who stood to inherit intestate from her.

May T’s will be probated?

ANSWER:

Yes, the will as ORIGINALLY WRITTEN may be probated. The insertions and alterations were void since they were not authenticated by the full signature of T pursuant to Article 814 of the Civil Code.

The original will remains valid because a holographic will is not invalidated by the unauthenticated insertions or alterations. (Ajero v. Court of Appeals, 236 SCRA 468)

PROBLEM:

T executed a will in his own handwriting, signed by him at the end of each page on the left marginal space of every page, except the last page. The document bore no date. However, below T’s every signature, were the signature of two witnesses, who later testified that the will was executed in their presence on January 1, 1995, and that T was in full possession of his faculties at that time and even explained to them the details of the will he was writing down.

Is the will formally valid?

ANSWER:

The will is not valid either as a notarial will or a holographic will. It is not valid as a notarial will because this requires three witnesses. Neither is it valid as a holographic will because the will must be entirely written, dated and signed by the hand of the testator. The fact that the witnesses testified as to the date of execution of the will did not cure the defect. Lacking the date, it cannot be probated as a holographic will.

CONFLICTS RULES IN THE EXECUTION OF WILLS

TESTATOR IS FILIPINO

WILL IS EXECUTED IN THE PHILS.

- Phil. Law

WILL IS EXECUTED ABROAD

- law of the place- Phil. law (Arts. 815-816, CC)

TESTATOR IS AN ALIEN

WILL IS EXECUTED IN THE PHILS.

- Phil. law (Art. 17, CC)

- national law (Art. 817, CC)

WILL IS EXECUTED ABROAD

- lex loci (Art. 17, CC)

- national law (Art. 816, CC)

- law of domicile - Phil. law

PROBLEM:

A, a Filipino, executed a will in Kuwait while there as a contract worker. Assume that under the laws of Kuwait, it is enough that the testator affix his signature in the presence of two witnesses and that the will need not be acknowledged before a notary public.

May the will be probated in the Philippines?

JOINT WILL

A single testamentary instrument which contains the wills of two or more persons jointly executed by them, either for their reciprocal benefit or for the benefit of a third person.

IS A JOINT WILL VALID?

Whether in the Philippines or abroad, Filipino citizens are prohibited from executing joint wills. This is a matter of public policy. (Arts. 818, 819, CC)

REASON: It may lead to the commission of parricide.

Is a joint will executed by aliens abroad, valid according to their national law and the law of the place of execution, valid in the Philippines?

QUESTION:

ANSWER:

By clear implication under Art. 819 of the Civil Code, the prohibition does not apply to foreigners, only to Filipinos.

The first par. of Art. 17 of the Civil Code applies insofar as alien testators are concerned.

QUESTION:

Manuel, a Filipino, and his American wife, Eleanor, executed a Joint Will in Boston, Massachusetts when they were residing in said city. The law of Massachusetts allows the execution of joint wills. Shortly thereafter, Eleanor died. Can the will be probated in the Philippines for the settlement of her estate?

ANSWER:

Yes, the will can be probated in the Philippines insofar as the estate of Eleanor is concerned. While the Civil Code prohibits the execution of joint wills here and broad, such prohibition applies only to Filipinos. Hence, the joint will which is valid where executed is valid in the Philippines, but only with respect to Eleanor. Under Article 819, it is void with respect to Manuel whose joint will remains void in the Philippines despite being valid where executed.

SUBSTITUTION OF HEIRS

SUBSTITUTION OF HEIRS is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (Art. 857, CC)

KINDS OF SUBSTITUTION OF HEIRS

1. SIMPLE OR COMMON

Takes place when the testator designates one or more persons to substitute the heir or heirs instituted. (Art. 859, CC)

2. BRIEF

Two or more persons are designated by the testator to substitute for one heir.

COMPENDIOUS

One person substitutes for two or more heirs.

3. RECIPROCAL

Takes place when two or more persons are not only instituted as heirs, but are also reciprocally substituted.

4. FIDEICOMMISSARY

Takes place when the FIRST heir (fiduciary) instituted is entrusted with the obligation to preserve and to transmit to a SECOND heir the whole or part of the inheritance.

Provided the substitution does not go beyond one degree from the heir originally instituted.

Provided further that the 1st heir and the 2nd heirs are living at the time of the death of the testator. (Art. 863, CC)

There must be a first heir called primarily to the enjoyment of the estate.

ESSENTIAL REQUISITES OF FIDEICOMMISSARY SUBSTITUTION

There must be a second heir. An obligation clearly imposed upon the first heir

to preserve and transmit to the second heir the whole or a part of the estate.

The first and second heirs must be only one degree apart.

Both heirs must be alive (or at least conceived) at the time of the testator’s death (Art. 863, CC)

Must be made in an express manner (Art. 867, CC)

Must not burden the legitime.

FIRST REQUISITE FIRST HEIR

must be capacitated; must

accept the inheritance.

Not a mere trustee, for while he also administers, he carries out not another’s wishes, but his own,

insofar as the management of the property property is concerned.

He is almost like a usufructuary, with the right to enjoy the property.

Like a usufructuary, he cannot alienate the property itself.

Like a usufructuary, he is bound to make an inventory to know what properties he must preserve and transmit. NO BOND is required.

SECOND REQUISITE PRESERVE AND TRANSMIT

• Obligation must be given clearly and expressly.

• If mere advice or suggestion, no fideicommisary substitution.

EXAMPLE: T made X his heir so that X would enjoy the property as long as X lived, but after his death, the same should go to Y. No fideicommisary substitution.

THIRD REQUISITE SECOND HEIR

• ownership is consolidated to him upon its transmission.

• the second heir inherits not from the first heir but from the testator.

• must be capacitated to succeed not the first heir but the testator.

FOURTH REQUISITE ONE DEGREE APART

The first and second heirs must be one degree apart.

QUESTION:

What is “one degree apart” in fideicommissary substitution?

ANSWER:

FIRST VIEW: “One degree apart” means one transfer, one transmission, one substitution, the purpose being to prevent, successive entailments regard- less of relationship.

(View of JBL Reyes, Puno, Caguioa and Paredes Jr.)

SECOND VIEW: “One degree” means one generation. This means that the substitute may be the parent or child of the first heir; thus, no other person can be the fideicommissary.

(View of Tolentino, Paras, Padilla)

FIFTH REQUISITEBOTH HEIRS MUST BE ALIVE

FIRST HEIR PREDECEASES TESTATOR

Disposition shall be considered merely as a simple substitution. In which case, the second heir shall receive the property.

SECOND HEIR PREDECEASES TESTATOR

First heir shall receive the property free from encumbrances.

BOTH HEIRS PREDECEASE TESTATOR

Intestacy results, and legal heirs of the testator shall receive the property.

PROBLEM:

T devised one-half of a parcel of land to A, and the other half to B, subject to the condition that upon B’s death, whether before or after that of T, the portion devised to him (B) shall be delivered to A or his heirs should he die before T.

Upon T’s death, B demanded partition of the property. A refused on the ground that B is only a fiduciary heir (second heir).

ANSWER: A fideicommissary substitution has no effect unless it is made expressly. The testamentary clause under consideration is not a fideicommissary substitution.

The will establishes only a simple or common substitution, the necessary result of which is that B, upon the death of T, became the owner of an undivided half of the property. Being a co-owner, B can demand partition of the property.

PROBLEM:

T died in 1990 with a will. In his will, he devised a house and lot to his friend, A, as first heir and to B, A’s son, as second heir. B died in 1995 survived by his two children E and F. A himself died in 2000 survived by his two children C and D.

In the settlement of A’s estate, E and F filed a motion to exclude the house and lot originating from T on the ground that they are the exclusive owners of the property.

C and D opposed the motion on the ground that B, the second heir, predeceased T, and that therefore, the fideicommissary substitution did not produce any effect as far as B, the second heir, is concerned.

Should the opposition be sustained?

T died 1990.

A + 2000

+ 1995

(1st heir)

(2nd heir)

HOUSE AND LOT

ANSWER:

No. B, the second heir, acquires a right to the succession from the time of the testator’s death, even though he, B, should die before the fiduciary, A.

B inherited from T as second heir when the latter died in 1990. When B died in 1995, he was able to transmit his right to his own heirs, E and F.

When A (first heir) died in 2000, the right of E and F over the property became absolute.

TESTAMENTARYCONDITIONS AND DISPOSITIONS

QUESTION:

Under the law, the testator has no right to impose any condition upon the legitime, and that should he do so, the same shall be considered as not imposed.

Is this rule absolute?

ANSWER:

The rule is not absolute.

Testator can validly prohibit the partition of the legitime for a period not exceeding 20 years.

This is the only prohibition or condition that can affect or burden the legitime. (Arts. 494, 1083, CC)

PROBLEM:

A, a bachelor, named his brother, B, as heir if their sister, C, dies after ten years following A’s death. B died two years after A’s death, while C died one year later. A’s estate is claimed by D and E, B’s legitimate children, and by F, G and H, C’s legitimate children.

If A’s estate is valued at 150,000, how shall the distribution be made?

“If C dies after 10 years following A’s death.”

E F HG

150,000

ANSWER:

In a conditional institution, such as what is involved in the problem, the instituted heir (B) must survive not only the testator but also the fulfilment of the condition in the will. (Art. 1034, CC) Since B did not survive the condition, his institution is inoperative. Intestacy results. A’s estate must therefore be distributed to all nephews and nieces in equal shares at 30,000 each.

IMPOSSIBLE AND ILLEGAL CONDITIONS

EFFECT: Impossible or illegal conditions are deemed not imposed. (Art. 873, CC)

NOTE: The rule is different in conditional obligations: The condition and the obligation are void. (Art. 1183, CC)

ABSOLUTE PROHIBITION TO CONTRACT A FIRST MARRIAGE

Condition is void.

Considered as not imposed.

Contrary to public policy.

Condition is void for being contrary to public policy.

EXCEPTION: The condition is valid when imposed:

on the widow by the deceased spouse.

on the widow by the ascendants or descendants of the deceased spouse.

ABSOLUTE PROHIBITION TO CONTRACT A RE-MARRIAGE

Condition is perfectly valid.

EXAMPLE:

Not to marry a particular person.Not to marry for a particular time. No to marry for a number of years.

RELATIVE PROHIBITION TO CONTRACT MARRIAGE

PROBLEM:

H instituted his wife as sole heir (no other compulsory heirs existed) on condition that when she becomes a widow, she must never remarry. Two years after H died, the widow remarried.

Is she entitled to the inheritance?

ANSWER:

The condition is valid insofar as the free portion is concerned, since the absolute prohibition to remarry was imposed by the deceased spouse.

The condition is void insofar as the legitime is concerned for no condition can be imposed on the legitime. (see Art. 874, CC)

PROBLEM:

T institutes his friend, F, as heir on condition that he should not enter any gambling casino here or abroad for one whole year after T’s death.

Is F entitled to receive the inheritance upon T‘s death?

ANSWER:

Yes, but he must give a security to guarantee he would not enter any gambling casino for one whole year upon T’s death.

The security is called “caucion muciana.”

If he enters any casino during the prohibited period, he should return whatever he may have received, together with its fruits and interest. (Art. 879, CC)

WHAT IS MODAL INSTITUTION?

Modal institution occurs when any or all of the following are stated:

The object of the institution.

The application of the property left by the testator.

The charge imposed by the testator.168

DISTINGUISH BETWEEN MODAL AND CONDITIONAL INSTITUTION

MODAL INSTITUTION The inheritance is immediately demandable, provided that security is given. (Art. 882, CC)

INSTITUTION WITH A SUSPENSIVE CONDITION Even if the heir wants to give security, he will not be allowed to do so, and will not be allowed to get the property in the meantime; instead, the property will be placed under administration. (Art. 880, CC)

When the condition, however, is RESOLUTORY or is NEGATIVE, the property can be taken upon the giving of a security. (Art. 879, CC)

From this point of view, there is hardly any difference between modal and conditional institution.

PROBLEM:

T institutes his friend, F, as heir “on condition that A marries B.”

Modal or conditional?

ANSWER:

This is a suspensive condition; the inheritance is not demandable until fulfilment of the condition.

PROBLEM:

T institutes his friend, F, as heir on condition that “A does not smoke for a period of one year.”

Conditional or modal?

ANSWER:

This is a negative condition; inheritance is demandable right away, provided security is given.

PROBLEM:

T’s will contains the following testamentary provision: “I institute A as heir. He will use the money for the establishment of a medical school.”

Modal or conditional?

ANSWER:

This is a modal institution; inheritance is demandable right away, provided security is given.

INSTITUTION OF HEIRS

An act by virtue of which the testator designates or names in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (Art. 840, CC)

One who has no compulsory heirs may dispose by will 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 the law with regard to the legitime of said heirs.

WHAT ARE THE LIMITATIONS ON THE RIGHT OF A PERSON TO INSTITUTE HEIRS?

IMPORTANT PRINCIPLESINSTITUTION OF HEIRS

PRINCIPLE OF EQUALITY

Heirs instituted without designation of shares shall inherit in equal parts. (Art. 846, CC)

PRINCIPLE OF INDIVIDUALITY

GENERAL RULE:

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.

EXCEPTION:

Unless it clearly appears that the intention of the testator was otherwise.

(Art. 847, CC)

PRINCIPLE OF SIMULTANEITY

When the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively. (Art. 849, CC)

PROBLEM:

In T’s will, he instituted his legitimate children, A and B, the “children of his deceased son, C,” and a friend, M, as heirs without designation of their shares. C’s children are D, E and F.

Estate is 180,000. How shall the distribution be made?

180,000

Instituted Instituted Instituted

MInstituted

ANSWER:

Apply Arts. 846 and 847, Civil Code.

ART. 846: Heirs instituted without designation of shares shall inherit in equal parts.

ART. 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 it clearly appears that the intention of the testator was otherwise.

STEP 1

Satisfy the legitimes of A, B, D, E and F.

Estate is 180,000: Legitime portion is one-half, or 90,000.

As to the legitimes, A and B will inherit in their own right; while D, E, and F will inherit by right of representation

DISTRIBUTION OF THE LEGITIME

A = 30,000 (own right)B = 30,000 (own right)D = 10,000 (right of rep.)E = 10,000 (right of rep.)F = 10,000 (right of rep.) 90,000

STEP 2

The free portion of 90,000 shall be divided equally among the instituted heirs, A, B, D, E, F and M, in accordance with Arts. 846 and 847.

DISTRIBUTION OF THE FREE PORTION

A = 15,000B = 15,000D = 15,000E = 15,000F = 15,000M = 15,000 90,000

THEREFORE:

A = 30,000 as compulsory heir15,000 as voluntary heir

B = 30,000 as compulsory heir15,000 as voluntary heir

D = 10,000 by right of rep.15,000 as voluntary heir

E = same as DF = same as DM = 15,000 as voluntary heir

Explain the first paragraph of Art. 856 of the Civil Code regarding the predecease of a voluntary heir.

QUESTION:

ANSWER:

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

REASON:

A voluntary heir cannot be represented.

SECOND PARAGRAPH OF ART. 856, CC

A COMPULSORY HEIR who:

1. dies before the testator

2. is incapacitated to succeed

3. renounces the inheritance

shall transmit no right to his own heirs, except in the cases expressly provided in the Civil Code.

QUESTION:

May the right to revoke a will be waived?

ANSWER:

No. Until the death of the testator, a will is ambulatory and revocable.

The heirs do not acquire a vested right to the disposition in a will till after the testator’s death.

REVOCATION OF WILLS

1. by implication of law

2. by some will, codicil or other writing

3. by an overt act

REVOCATION BY AN OVERT ACT

BURNING

Sufficient revocation even if small part of the will is burned even though the entire writing itself is left untouched.

Testator placed his will on a stove so that it would be burned later when a

fire would be lighted in the stove.

The will was later removed by another person from the stove before

the stove was lighted.

Is the will deemed revoked?194

PROBLEM:

ANSWER:

No. While there was intent to revoke, there was no overt act of burning.

If the person who retrieved the will was an heir or legatee or devisee, he will not inherit because he is incapacitated by reason of unworthiness under Art. 1032, CC.

OVERT ACT OF TEARING

Even a slight tear is sufficient.

What matters is the intent to revoke.

PROBLEM:

What about if the testator crumpled his will?

ANSWER:

No revocation.

It is not one of the modes recognized by law.

NOTE: Tearing of signature is sufficient revocation because the signature goes to the very heart of the will.

QUESTION:

What is revocation by the execution of another will or codicil?

ANSWER:

Revocation may be express or implied.

Implied revocation consists in complete inconsistency between two wills.

A notarial will may be revoked by a holographic will, vice-versa.

The revoking will must be valid.

PROBLEM:

A, with no known living relatives, executed a notarial will giving all his estate to his girlfriend, B. One day, he had a serious altercation with B. A few days later, he was introduced to a charming lady, C, who later became a dear friend. Soon after, he executed a holographic will expressly revoking the notarial will and designating his new friend, C, as sole heir.

One day when A was clearing up his desk, he mistakenly burned, along with other papers, the only copy of his holographic will.

His business associate, D, knew well the contents of the will which was shown to him by A the day it was executed. A few days after the burning incident, A died. Both wills were sought to be probated in two separate petitions.

Which of the two petitions will prosper?

ANSWER:

The probate of the notarial will will prosper. The holographic will cannot be admitted to probate because a holographic will can only be probated upon evidence of the will itself, unless there is a photocopy. But since the holographic will was lost and there was no other copy, it cannot be probated and therefore the notarial will will be admitted to probate because there is no revoking will.

Section 6, Rule 76 of the Rules of Court provides that no will shall be proved as a lost or destroyed will “unless its provisions are clearly and distinctly proved by at least two credible witnesses.”

If the foregoing two-witness rule to prove a lost or destroyed will is to be strictly applied in the instant case, the holographic will which A mistakenly burned cannot be probated since there is only one witness, D, who can be called to testify as to the execution and existence of the will.

PROBLEM:T, a bachelor of 60, executed a will bequeathing a ricefield worth 100,000 to his friend, F. The will further provided that “all other assets owned by me after death shall be equally divided between my two brothers, A and B.

T subsequently married a young woman, begot a son, and left another will designating his wife and son as his heirs in equal shares. The second will did not expressly revoke the first will. He left an estate worth 300,000 (including the ricecefield).

Who is entitled to the ricefield? Who acquires the rest of T’s assets?

ANSWER:

It must be observed that T left two wills.

In his first will, T bequeathed the ricefield to his friend, F, and instituted as heirs in equal shares his two brothers, A and B, with respect to the rest of the estate. In his second will, T instituted his wife and son as heirs in equal shares.

Under our law on revocation of wills, a will may be revoked by another will. The revocation may be effected either expressly or impliedly. Since there is no express revocation, is there an implied revocation in the instant case?

It is undeniable that there is an implied revocation if the testamentary dispositions found in the first will are totally or partially incompatible with those found in the second will. It is also undeniable that the incompatibility must be absolute in character in the sense that the testamentary dispositions cannot stand together. The real issue, therefore, is whether the two testamentary dispositions found in the first will can stand together with the testamentary disposition in the second will.

FIRST VIEW

According to the first view, reading the two wills together it is clear that the testatorial intention is that only the testator’s wife and son shall inherit. They are instituted as universal heirs with respect to the hereditary estate in its totality. Therefore, the second will in its totality cannot stand together with the first will in its totality. Consequently, the incompatibility between the two wills is total and absolute in character. Hence, the first will is impliedly revoked by the second will.

The testator’s widow and son are, therefore, entitled to the entire estate, including the ricefield.

ESTATE 300,000

SON 150,000 (plus 50,000)WIDOW 75,000 (plus 25,000)FP 75,000

SECOND VIEW

According to the second view, only the institution of A and B in the first will as heirs and that portion or part of the bequest given to F which will impair the legitime of T’s son and widow are revoked by the second will. The reason is that it is only to that extent that there is absolute incompatibility between the two wills.

Consequently, F is entitled to the ricefield but only to the extent that it does not encroach upon the legitime of T’s son and widow.

ESTATE 300,000

SON 150,000 WIDOW 75,000 FP 75,000

Considering that the value of the ricefield is 100,000, the bequest is inofficious to the extent of 25,000; it shall be reduced to that extent.

DOCTRINE OF DEPENDENT RELATIVE REVOCATION

If the testator revokes his will with the present intention of making a new one and the new will is not made, or if made, fails to take effect for any reason whatsoever, it will be presumed that the testator prefers the old will to intestacy.

The old will can still be admitted to probate.

Stated otherwise, the revocation is subject to a SUSPENSIVE CONDITION:

That the testator will make a new will and that such will shall take effect.

If such condition is not fulfilled, then there is no revocation.

PROBATE OF WILLS

Probate of wills is a special proceeding to establish the validity of a will.

Probate is in the nature of a proceeding in rem. (Art. 838, CC)

A testator cannot deprive courts of their jurisdiction.

FORMULA IN THE COMPUTATION OF NET HEREDITARY ESTATE

Gross Estate- Debts/Charges+ Collationable Donations= Net Hereditary Estate

PROBLEM:

T died leaving an estate worth 100,000 and debts amounting to 30,000.

During his lifetime, T had given a donation of P50,000 to A, his legitimate son. When T died, two legitimate sons, A and B, survived him.

How much is the legitime of A and B?

100,000 (debts: 30,000)

DONATION50,000

COMPUTATION:

Gross Estate 100,000

Debts - 30,000 70,000

Collate +50,000120,000 (NHE)

ANSWER:

Since the net hereditary estate is 120,000, the legitime of the legitimate children is 60,000.

Since there are two children, each will receive 30,000 as his legitime.

The legitime of A is only 30,000. The 50,000 donation to him should first be charged to the legitime.

The excess of 20,000 (50,000 minus 30,000) should be taken from the free portion which is 60,000.

The net free portion of 40,000 (60,000 minus 20,000) goes to the instituted heirs.

Out of the actual net assets of 70,000 (because the debts have been paid), B gets 30,000; A gets 0; free portion of 40,000 equals 70,000.

QUESTION:

Should donations inter vivos to children be collated?

Should donations inter vivos to strangers be collated?

EXPLANATIONS:

Donations to strangers are collationable because they are considered as advances on the free disposal, just as donations inter vivos to children are considered as advances on their legitimes.

Besides, how can the free portion be determined or computed unless the value of said donations be added to the actual estate?

Paragraph 2 of Article 909 of the Civil Code is clear:

Donations to strangers are also taken into account in determining the legitime – “of which the testator could have disposed by his last will.”

PROBLEM:

A gave B, his legitimate child, a donation inter vivos of 50,000 and to C, a friend, a donation inter vivos of 100,000. When A died, his remaining estate was worth only 100,000.

If A was survived by his only child, B, should the donation to C be reduced?

SOLUTION:

100,000 (actual estate) 50,000 (donation to B)100,000 (donation to C)250,000 (NHE)

LEGITIME = 125,000FREE PORTION = 125,000

The donation to C (100,000) does not exceed the free portion of 125,000. Hence, there is no need to reduce it.

LEGITIME

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. (Art. 886, CC)

PURPOSE OF LEGITIME

LEGITIME is to protect the children and the surviving spouse from the unjustified anger or thoughtlessness of the other spouse.

If there are no compulsory heirs, there can be no legitime.

COMPULSORY HEIRS

In determining who are compulsory heirs, it is important to know whether the testator is -

LEGITIMATE ILLEGITIMATE

1. Legitimate children and their legitimate descendants.

2. Legitime parents and their legitimate ascendants.

3. Surviving spouse.

4. Illegitimate children and their descendants, whether legitimate or illegitimate.

LEGITIMATE TESTATOR

1. Legitimate children and their legitimate descendants

2. Illegitimate parents (NO OTHER ASCENDANTS)

3. Surviving spouse

4. Illegitimate children and their descendants, whether legitimate or illegitimate

ILLEGITIMATE TESTATOR

CLASSES OF COMPULSORY HEIRS

PRIMARY COMPULSORY HEIRS

They get their legitime even in the presence of other primary compulsory heirs and even in the presence of secondary compulsory heirs.

They are those mentioned in Nos. 1, 3, 4.

SECONDARY COMPULSORY HEIRS

Parents, legitimate or illegitimate, are secondary compulsory heirs.

IF TESTATOR IS LEGITIMATE, parents are excluded by No. 1 only.

IF TESTATOR IS ILLEGITIMATE, parents are are excluded by Nos. 1 and 4.

PROBLEM:

T is the testator; F and M are his parents; A is T’s legitimate child; B and C are T’s illegitimate children; S is T’s surviving spouse; and W is the wife of A.

Who are entitled to inherit from T?

A B CW

ANSWER:

A, B, C and S are all entitled to their legitimes even if all of them are present.

F and M are entitled to their legitimes only in default of a legitimate child such as A.

If only F and A are present, A is entitled to his legitime, but not F.

W, A’s wife is not a compulsory heir of T but is a compulsory heir of A.

TABLE OF LEGITIMES

LEGITIMATE CHILDREN

1/2 of the estate, in equal portions, whether they survive alone or with concurring compulsory heirs.

LEGITIMATE PARENTS ALONE

1/2 of the estate, whether they survive alone or with other compulsory heirs.

SURVIVING SPOUSE ALONE

1/2 of the estate.

1/3 if marriage is in articulo mortis and deceased spouse dies within three months after marriage.

1/2 if despite marriage in articulo mortis, deceased and surviving spouse have been living as husband and wife for more than five years (Art. 900, CC)

ILLEGITIMATE CHILDREN ALONE

1/2 of the estate, to be divided equally among themselves.

ILLEGITIMATE PARENTS ALONE

1/2 of the estate.

ONE LEGITIMATE CHILD SURVIVING SPOUSE

Legitimate child, 1/2 of the estate. Surviving spouse,1/4 of the estate.

LEGITIMATE CHILDREN SURVIVING SPOUSE

Legitimate children, 1/2 of the estate. Surviving spouse, same as one LC.

LEGITIMATE CHILDRENILLEGITIMATE CHILDREN

Legitimate children, 1/2 of the estate.Illegitimate children, 1/2 of one LC.

ONE LEGITIMATE CHILDSURVIVING SPOUSEILLEGITIMATE CHILDREN

Legitimate child, 1/2 of the estate.Surviving spouse, 1/4 of the estate.Illegitimate children, 1/2 of one LC.

LEGITIMATE CHILDRENSURVIVING SPOUSEILLEGITIMATE CHILDREN

Legitimate children, 1/2 of the estate.Surviving spouse, share of one LC.Illegitimate children, 1/2 of one LC.

LEGITIMATE PARENTS ILLEGITIMATE CHILDREN

Legitimate parents, 1/2 of the estate.Illegitimate children, 1/4 of the estate.

LEGITIMATE PARENTS SURVIVING SPOUSE

ILLEGITIMATE CHILDREN SURVIVING SPOUSE Illegitimate children, 1/3 of the estate. Surviving spouse, 1/3 of the estate.

ILLEGITIMATE PARENTS CHILDREN OF ANY CLASS Illegitimate parents are excluded.

ILLEGITIMATE PARENTS SURVIVING SPOUSE Illegitimate parents, 1/4of the estate. Surviving spouse, 1/4 of the estate.

PROBLEM:

T dies leaving an estate of 100,000. The surviving relatives are: A, a legitimate child, and W, the wife. What are the corresponding legitimes?

W100,000

ANSWER:

A 50,000W 25,000 FP 25,000

PROBLEM

T died with four legitimate children, A, B, C and D and a surviving spouse, W. T left an estate valued at 100,000.

How much is the legitime of each of the heirs?

100,000

ANSWER

A 12,500B 12,500C 12,500D 12,500W 12,500FP 37,500TOTAL 100,000

PROBLEM

T is survived by his legitimate children, A and B, and his illegitimate children, C and D. The net value of his estate is 200,000.

What is the legitime of each of the survivors?

200,000

ANSWER

A 50,000B 50,000C 25,000D 25,000FP 50,000TOTAL 200,000

PROBLEM

All the facts in the previous problem are the same, except that T had left four (instead of two) illegitimate children, C, D, E, and F.

What is the legitime of each of the survivors?

200,000

ANSWERA 50,000B 50,000C 25,000D 25,000E 25,000F 25,000FP 0_____ TOTAL 200,000

PROBLEM

T is survived by his wife, W, his legitimate child, A, and his illegitimate child, B. Net value of the estate is 100,000. What is the legitime of each survivor?

100,000

ANSWER

A 50,000W 25,000B 25,000FP 0

PROBLEM

Suppose T died with two illegitimate children, B and C (instead of only one illegitimate child, B), what is the legitime of the survivors?

100,000

ANSWER

A 50,000W 25,000B 12,500C 12,500FP 0

PROBLEM:

T has three legitimate children; A, B, and C; a wife, W; a father, F; and two illegitimate children, D and E. A is a “special child,” and T wants to leave to him as much of his estate as he can legally do under the law.

State the aliquot parts of the estate that T can leave all the foregoing relatives. Assume a net estate of 120,000 and that all the above-named relatives survived T.

B C D E

120,000

F 0A 20,000B 20,000C 20,000W 20,000D 10,000E 10,000FP 20,000TOTAL 120,000

ANSWER

DIVISION IN THE ASCENDING LINE

A and B are the paternal grandparents, while F is the father; C and D are the maternal grandparents while M is the mother. T is the testator, leaving a hereditary estate of 100,000.

100,000

EXPLANATION:

If all (except T) survive, the grandparents get nothing. 50,000 is the legitime of F and M together, so each gets 25,000. The remaining 25,000 is the free portion.

If M predeceased T, F gets 50,000 as legitime. The remaining 50,000 is the free portion. C and D cannot represent M, because there is no right of representation in the ascending line.

The rule of proximity also applies.

If F and M predeceased T, and the others are still alive, the paternal line gets half of the legitime and the maternal line gets the other half. The paternal line gets 25,000 and this should be divided equally between A and B.

What has been said of the paternal line is also true of the maternal line.

PROBLEM:

T is survived by his legitimate parents, F and M, and his wife, W. The net value of the estate is 100,000. What is the legitime of the survivors?

100,000

ANSWER

F 25,000M 25,000W 25,000FP 25,000

QUESTION

T is survived by his legitimate parents, F and M, and his illegitimate children, A and B. The net value of the estate is 100,000. What is the legitime of the survivors?

100,000

ANSWER

F 25,000M 25,000A 12,500B 12,500FP 25,000

PROBLEM:

T is survived by his legitimate parents, F and M, his wife, W, and his illegitimate children, A and B. The net value of the estate is 72,000. What is the legitime of the survivors?

72,000

ANSWER

F 18,000M 18,000W 9,000A 9,000B 9,000FP 9,000

PROBLEM

T is survived by his wife, W, and his illegitimate children, A and B. The net value of the estate is 90,000. What is the legitime of the survivors?

90,000

ANSWER

W 30,000A 15,000B 15,000FP 30,000

PROBLEM

T, an illegitimate person, is survived by his parents by nature, F and M, and his widow, W. The net estate is 100,000. What is the legitime of the survivors?

T100,000 W

Illegitimate

ANSWER

F 12,500M 12,500W 25,000FP 50,000

PROBLEM

T, an illegitimate person, is survived by his parents by nature, F and M, and his illegitimate children, A and B. The net estate is 100,000. What is the legitime of the survivors?

T100,000

Illegitimate

ANSWER

F 0M 0A 25,000B 25,000FP 50,000

RESERVA TRONCAL

• A system of reservation of property by virtue of which an ascendant inherits from his descendant property, which property the descendant in turn had acquired by gratuitous title from another ascendant, or brother or sister.

• ascendant is obliged to reserve such property for the benefit of relatives who are within the third degree and who belong to the line from which said property came (Art. 891, CC)

RESERVA TRONCAL is an extraordinary reservation of property because it constitutes an exception both to the system of legitime and the order of intestate succession.

QUESTION

Why is reserva troncal regarded as an extraordinary reservation of property?

ANSWER

Instead of the property passing to the compulsory heirs of the ascendant-reservista, it passes automatically and by operation of law to the relatives of the descendant-propositus who are within the third degree and who belong to the line from whence it came.

PERSONAL ELEMENTS OF RESERVA TRONCAL

ORIGIN: The ascendant, brother or sister from whom the descendant-propositus has acquired the property by gratuitous title.

PROPOSITUS: The descendant from whom the ascendant (reservista) in turn had acquired the property by operation of law.

RESERVISTA: The ascendant of the propositus who is obliged to reserve the property.

RESERVATARIOS: The relatives of the propositus who are within the third degree and who belong to the line from which the property came and for whose benefit the reservation is constituted.

ORIGIN RESERVISTA

PROPOSITUS

GRATUITOUS TITLE

OPERATION OF LAW

RESERVATARIOS

ELEMENTS OF RESERVA TRONCAL

FIRST: The property is inherited by operation of law (legal succession or legitime) by an ascendant from his descendant upon the death of the latter.

SECOND: The property had been previously acquired by gratuitous title (such as donation inter vivos, remission, succession) by the descendant from another ascendant or from a brother or sister.

THIRD: The descendant has died without any legitimate issue in the direct descending line who could inherit from him.

FOURTH: There are relatives of the descendant-propositus who are within the third degree and who belong to the line from which the property came. (This is a condition subsequent. If there be no such relatives, no reserva troncal.

EXAMPLE:

F and M are the parents of C.

F died leaving a will, one provision of which gave a parcel of land to C.

One year later, C died without any descendant, and without any will. The mother, M, then inherited the land.

The land is subject to reserva troncal.

M owns it only till she dies, and at her death, it should not go to anybody whom she desires, but is reserved by law in favor of the relatives of F, the line from which the property came.

F’s relatives must be within the third degree, to be counted from C.

FIRST ELEMENT: ORIGIN

• must be an ascendant or brother or sister.

• must be a legitimate relative because reserva troncal exists only in the legitimate family.

• The transmission from the origin to the propositus must be by gratuitous title.

SECOND ELEMENT PROPOSITUS

• must be a legitimate descendant (or legitimate half-sibling) of the origin.

• the propositus is the descendant (brother or sister) whose death gives rise to the reserva, and from whom the third degree is counted.

• While the propositus is still alive, there is no reserva yet, therefore, he is the absolute owner of the property with full power to alienate or encumber.

THIRD ELEMENT: RESERVISTA

• The ascendant who inherits from the propositus by operation of law. It is he who has the obligation to reserve.

• No reserva if he inherits it as free portion by virtue of a will.

• He is the full owner of the property, subject to a resolutory condition.

• If at reservista’s death, there should still exist relatives within the third degree of the propositus, and belonging to the line from which the property came, his ownership is terminated.

• the property is not part any more of his estate. Instead, ownership is transferred to the third degree relatives of the propositus.

QUESTION

Can the reservista sell, mortgage, dispose or otherwise encumber the property?

ANSWER

Yes, but subject to the reserva.

The reservatarios can get the real property from the transferee as soon as ownership is transferred to such reservatarios, without prejudice to our Land Registration Laws.

FOURTH ELEMENT: RESERVATARIOS

• Relatives within the 3rd degree (from the propositus) who will become the full owners of the property the moment the reservista dies.

• They inherit the property from the propositus

•Must be a legitimate relative of the origin and the propositus.

PROBLEM:

H died leaving an estate of 100,000. His widow, W, gave birth to a child four months after H’s death, but the child died five hours after birth. Two days after the child’s death, W also died because she had suffered from difficult childbirth. The estate of H is now being claimed by his parents, A and B, and by C and D, the parents of W. Who is entitled to H’s estate of 100,000?

100,000

+5 hrs. after birth

ANSWER:

If the child had an intra-uterine life of not less than seven months, it inherited from the father. Consequently, the estate of 100,000 shall be divided equally between the child and his mother as legal heirs. Upon the death of the child, its share of 50,000 goes by operation of law to the mother, W, which is subject to reserva troncal.

100,000

50,000 operation

of law

50,000 operation of law

Under Article 891 of the Civil Code, the reserva is in favor of relatives belonging to the paternal line and who are within three degrees from the child. The parents of H (A and B) are entitled to the reserved portion which is 50,000 as they are two degrees related from the child. The 50,000 inherited by W from H will go to her parents, C and D, as her legal heirs.

However, if the child had an intra-uterine life of less than seven months, half of the estate of H, or 50,000, will be inherited by W, the widow, while the other half, or 50,000, will be inherited by the parents of H. Upon the death of W, her estate of 50,000 will be inherited by her own parents, C and D.

PROBLEM:

Before his death in 1990, A donated to his grandson, F, a child of his predeceased son D, a house and lot worth 600,000.

In 1995, F died with a will instituting his mother, E, as his sole heir. His estate consisted entirely of the house and lot which he had received from A.

In 1998, E also died but without a will.

The house and lot is now claimed by:

(a) B, widow of A and grandmother of F

(b) C, son of A and B and uncle of F

(c) G, sister and only living relative of E

To whom shall the property be adjudicated?

DONATION WILL

ANSWER:

Half to C; other half to G.

F, the propositus, died with a will instituting his mother, E, as sole heir.

Consequently, only one-half of the property passed to her by operation of law since that is her legitime. Only this portion of the property has become reservable.

B is not entitled to the reservable portion of the property.

Although a relative of the propositus in the second degree, B is merely related by affinity to the ascendant (A) from whom the property came. She does not, therefore, belong to the “line from which the property came.”

A reservatario must not only be related by consanguinity to the propositus within the third degree, but he must also be related by consanguinity to the ascendant from whom the property came. 324

C is entitled to the reservable portion of the property since he is not only a third degree relative by consanguinity of the propositus, but he also belongs to the line from which the property came.

G, on the other hand, is entitled to the part of the property which is not reservable in accordance with the ordinary rules of intestate succession.

PROBLEM:

D, only daughter of B, married E, only son of A, in 1981.

A son, X, was born to the couple in 1982. E died in a vehicular accident in 1984.

In 1986, D married F, only son of C. A son, Y, was born to the couple in 1988. D also died in a vehicular accident in 1992.

In 1995, X, who was very sickly, donated to his half-brother, Y, a parcel of land. X died the following year.

In 1998 Y also died. He died intestate and without any surviving issue. The land which he had acquired from X was inherited by his father, F, who was his only legal heir.

F died intestate in 2002, survived only by his father, C.

The land which had originated from X is now being claimed by A and B on the ground that it is reservable. C claims that the property belongs to him and him alone as his inheritance from his son, F.

Who among the grandfathers is entitled to the property?

DONATION INTESTATE

ANSWER:

B alone is entitled to the property.

The property is reservable.

FIRST, the property had been acquired by operation of law by an ascendant (F) from his descendant (Y) upon the death of the latter.

SECOND, the property had been previously acquired by gratuitous title by the descendant (Y) from a brother (X).

THIRD, descendant (Y) died without any legitimate issue who can inherit from him.

In order to determine who can qualify as a reservatario, two tests should be applied:

First, is the claimant a relative of the descendant-propositus within the third degree?

Second, does he belong to the line from which the reservable property came?

Applying the tests, it is clear that:

A cannot qualify because he is not even a relative of the descendant-propositus, Y. 331

DONATION INTESTATE

Neither can C qualify because he does not belong to the line from which the property came. He is not related by consanguinity to X.

DONATION INTESTATE

Only B can qualify. He is not only a relative of Y within the third degree; he also belongs to the line from which the reservable property came.

DONATION INTESTATE

THIRD DEGREE RELATIVES OF PROPOSITUS

• Parents of the propositus (1st degree)

• Grandparents, full and half-brothers, full and half-sisters of the propositus (2nd degree)

• Uncles and aunts by blood; great grandparents; nephews and nieces of the propositus (3rd degree)

Suppose there are several persons who can qualify as reservatarios, to whom shall the reservable property be adjudicated?

QUESTION

ANSWER

The rules of intestate succession shall apply.

Art. 891 of the Civil Code merely determines the group of relatives to whom the reservable property should be returned.

It is silent with regard to the individual right of such relatives to the property.

• If some claimants are in the direct ascending line and others are in the collateral line, the principle of preference between lines shall apply.

• Relatives of the propositus in the direct ascending line shall exclude his relatives in the collateral line.

• If the claimants are grandparents and brothers or sisters of the propositus, the grandparents are preferred.

• If all the claimants belong to the same line, the principle of proximity shall apply.

• In other words, relatives of the propositus nearest in degree shall exclude the more remote ones.

• Thus, between brothers or sisters and uncles or aunts – brothers and sisters are preferred.

• If some of the claimants are brothers and sisters of the propositus and others are nephews and nieces, the principle of representation shall apply.

• If all the claimants are brothers and sisters of the propositus and some of them are of the full-blood and others are of the half-blood, the principle of double share for full blood collaterals shall apply.

PROBLEM:

Among the properties in the estate of D, who died intestate and without issue, were a farm, which came from his father, B, and a house, which he acquired from A, B’s father. In the partition of D’s inheritance, the house was allotted to B and the farm to C, D’s mother. Upon the death of B and C, who were simultaneously killed in a car accident, the farm was claimed by A and E, a child of B and C born after D’s death, while the house was claimed also by A and E and F, the latter being C’s child by a prior marriage.

Who owns the farm and house?

+ ED F

ANSWER:HOUSE: This property was acquired by D from his grandfather, A, and was transmitted by D to B, his father. There is no reserva troncal because there is no change of line. Hence, E alone is entitled to inherit the house.

FARM: The farm originally came from B, the father of D. and from D it went to his mother, C. There is a change of line line from paternal to maternal line. The farm is reservable property and must be acquired by relatives within the third degree of the propositus (D) and belonging to the paternal line.

WHO IS ENTITLED TO THE FARM?

There are two theories:

In the “delayed intestacy doctrine,” the preferences in the rules of intestate succession must be observed.

Under this theory, A alone will inherit the farm because in intestacy, the direct line excludes the collateral line. Hence, A, the grandfather of P, should exclude E, the brother of D.

The second theory is to the effect that relatives in the same degree inherit in equal shares without distinction as to the direct or collateral line. Under this theory, which allows no distinction as to direct or collateral line, A and E will inherit the farm in equal shares since they are both second degree relatives of D, both belonging to the paternal line.

In any case, F does not inherit since he is not a reservatario.

INTESTATE SUCCESSION

QUESTION

What is intestate succession?

ANSWER:

INTESTATE SUCCESSION is succession prescribed by law which takes place when the expressed will of the decedent has not been set down in a will.

BASIC PRINCIPLES OF INTESTATE SUCCESSION

CONCURRENCE

Even if there is an order of intestate succession, compulsory heirs are never excluded from the inheritance.

All compulsory heirs are intestate heirs, but not all intestate heirs are compulsory heirs.

Relatives of the decedent nearest in degree exclude the more remote ones, without prejudice to the right of representation when proper.

By virtue of representation the farther becomes just as near.

PROXIMITY

PROBLEM:

P, deceased, is survived by A, a legitimate half-sister on his father’s side, and an aunt, B, his mother’s sister. He left as his only property that which was inherited from his mother. He died intestate.

Who shall succeed to P’s estate?

ANSWER:

A shall succeed to P’s estate. Both A and B are collateral relatives of the decedent, P, therefore, the rule of proximity is applicable. Relatives nearest in degree exclude the more remote ones. A is a second degree relative of P, while C is a third degree relative.

Besides, under the general order of intestate succession, brothers and sisters, whether of the full or half-blood, are always preferred to uncles or aunts.

Relatives in the direct descending line exclude those who are in the direct ascending and collateral lines.

Relatives in the direct ascending line exclude those who are in the collateral line.

PREFERENCE OF LINES

There is no right of representation in the ascending line, but there is right of representation in the descending line (Art. 972,

par. 1, CC).

In the collateral line, the right of representation is given only to children of brothers and sisters. (Art. 972, par. 2, CC)

RIGHT OF REPRESENTATION

MEANING OF REPRESENTATION

Right by fiction of law.

The representative is raised to the place and the degree of the person represented.

Acquires the rights which the person represented would have if he were living or if he could have inherited. (Art. 970, CC)

• PREDECEASE (testate and intestate).

• INCAPACITY (testate and intestate).

• DISINHERITANCE (testate only).

PROPRIETY OF REPRESENTATION

SCOPE OF REPRESENTATION

In intestate succession, the right of representation covers all that the person being represented would have inherited.

In testamentary succession, the right of representation covers only the legitime. (Arts. 865-1035, CC)

There is no right to represent a voluntary heir.

PROBLEM:

T has three legitimate children: A, B and C. The eldest, A, has a legitimate child, D. In T’s will, he gave each child 30,000; but A predeceased T. Divide T’s estate of 90,000.

90,000

ANSWER

D gets 15,000 which is A’s legitime.

B and C will each get 37,5000. D is not allowed to get the extra 15,000 because in this respect, his father, A, was a voluntary heir.

HAD T DIED INTESTATE, D gets 30,000 corresponding to the share of A which represents all that A would have inherited if he was not incapacitated.

GRANDCHILDREN

GRANCHILDREN ALWAYS inherit by right of representation.

This is true whether they concur with children of the decedent or not.

EXCEPTIONS:

Art. 43 and Art. 992, Civil Code

Whenever all the children of the decedent repudiate the inheritance, the grandchildren inherit in their own right, for here representation is not proper. (Art. 977, CC)

GRANCHILDREN INHERIT IN THEIR OWN RIGHT

D E F HG45,000 22,500 22,500

90,000

PREDECEASED INCAPACITATED RENOUNCED

Whenever there is succession by representation, the division of the estate shall be made per stirpes.

REASON: The representative or representatives shall not inherit more than what the person they represent would inherit, if he were living our could inherit. (Art. 974, Civil Code)

QUESTION

What are the two ways of inheriting?

ANSWER

• per stirpes (as a group) • per capita (per person)

• by representation • one’s own right.

D15,000

15,000+ 22,500

90,000

TESTATE

D20,000

20,000 20,000

60,000INTESTATE

22,500+ 22,500

90,000

TESTATE

45,000 45,000

90,000

INTESTATE

D12,500

25,000+18,750

25,000+ 18,750

100,000

TESTATE

D20,000

40,000 40,000

100,000

INTESTATE

Nephews and nieces inherit either by right of representation or in their own right. (Art. 975, CC)

SUCCESSIONAL RIGHTS OF NEPHEWS AND NIECES

• Nephews and nieces inherit by right of representation when they concur with aunts and uncles provided that representation is proper, and that their own parents should not have repudiated.

• They inherit in their own right whenever they do not concur with aunts and uncles.

B and C are A’s brothers; X, the legitimate child of B; Y and Z, the legitimate children of C. Estate is 90,000. A is the decedent, If C predeceases A, divide the estate.

QUESTION

+90,000

45,000 22,500 22,500

+90,000

30,000 30,000 30,000

+90,000

0 45,000 45,000

lllegitimate children of legitimates cannot represent because of the barrier.

But illegitimates and legitimates of illegitimates can represent. (Arts. 902 and 992, CC)

THE IRON CURTAIN RULE

E F GArt. 992

Art. 902

PROBLEM:

P. the illegitimate son of F and M, died intestate, without any descendant or ascendant. His valuable estate is being claimed by A, the legitimate son of F from a previous marriage, and B, the legitimate son of M from a previous marriage.

Who is entitled to inherit from P?

P BA +

ANSWER:

Neither A nor B is entitled to inherit ab intestato from P. Both are legitimate relatives of P’s parents and therefore they fall under the prohibition prescribed by Article 992 of the Civil Code. (Manuel v. Ferrer, 242 SCRA 477)

PROBLEM:

P, an illegitimate person, died intestate survived by B, the legitimate brother of his deceased mother A, and D, his mother’s legitimate granddaughter who is a legitimate child of C who predeceased A.

May B or C or both inherit from A?

ANSWER:

B cannot succeed because uncles have no right to inherit from their illegitimate nephews. D cannot succeed either because legitimate relatives have no right to inherit from an illegitimate child and vice-versa.

A renouncer can represent, but cannot be represented. (Arts. 976 and 977, CC)

EFFECT OF REPUDIATION

A has two children, B and C. B has two children D and E. D has a child F.

B died in 1993 but D repudiated his share. Later A died in 1995.

Is D entitled to represent B in the inheritance of A?

PROBLEM

1993 + B

repudiated D

+ 1995

EXCEPTIONS:

1. Division in the ascending line. (Art. 987, par. 2, CC)

2. Division between relatives of the full-blood and half-blood. (Art. 1006, CC)

3. In cases of representation.

INHERITANCE IN EQUAL SHARES

PROBLEM

A, B and C are the children of P; while D and E are the children of A; F is the child of B; G is the child of C.

120,000

ANSWER

If A, B and C repudiated the inheritance, the estate will be divided among the 4 grandchildren, and each will get 30,000 in his own right.

In repudiation, there is no right of representation. (Art. 977, CC)

120,000

repudiates

If only C repudiates, A and B will each get 60,000.

D and E are excluded, because the nearer excludes the farther. (Art. 962, CC)

G is also excluded because there is no right of representation in case of repudiation.

F is excluded by B. (Art. 977, CC)

If A, B and C all predeceased P, the 4 grandchildren will inherit by right of representation, not in their own right. Hence, D and E will each get 20,000; F, 40,000; and G gets 40,000.

120,000

ORDER OF INTESTATE SUCCESSION

1. Legitimate children and their legitimate descendants. (Art. 979, CC)

2. Legitimate parents and other legitimate ascendants. (Art. 985, CC)

3. Illegitimate children and their descendants, whether legitimate or illegitimate. (Arts. 988, 990, 902)

ESTATE OF A LEGITIMATE CHILD

4. Surviving spouse, without prejudice to the rights of brothers, sisters, nephews, and nieces, should there by any. (Art. 995, CC)

5. Collateral relatives up to the fifth degree of consanguinity. (Art. 1010, CC)

6. State. (Art. 1011)

ESTATE OF AN ILLEGITIMATE CHILD

1. Legitimate children and their legitimate descendants. (Art. 979, CC)

2. Illegitimate children and other descendants, whether legitimate or illegitimate. (Arts. 988, 989, 990)

3. Illegitimate parents. (Art. 993, CC)

4.Surviving spouse (Art. 994, CC), without prejudice to the rights of illegitimate brothers and sisters and nephews and nieces who are children of illegitimate brothers and sisters (by inference from Art. 992)

5.State

COMBINATIONS OF SURVIVAL AND CONCURRENCE

OF INTESTATE HEIRS

1. LEGITIMATE CHILDREN ALONE

Entire estate to be divided in equal shares as there are legitimate children. (Art. 980, CC)

2. LEGITIMATE PARENTS ALONE

Entire estate to be divided equally between the parents. (Art. 985, CC)

3. SURVIVING SPOUSE ALONE

Entire estate. (Art. 995, CC)408

4. ILLEGITIMATE CHILDREN ALONE

Entire estate. (Art. 988, CC)

5. BSNN ALONE

6. ILLEGITIMATE PARENTS ALONE

NOTE: Illegitimate parents inherit intestate only in default of legitimate or illegitimate descendants of the decedent.

7. 5TH DEGREE RELATIVES

8. STATE

9. ONE LEGITIMATE CHILD SURVIVING SPOUSE

Legitimate child, ½ of the estate.

Surviving spouse, ½ of the estate. (Arts. 888 and 996, CC)

10. TWO OR MORE LEGITIMATE CHILDREN SURVIVING SPOUSE

Consider the surviving spouse as a legitimate child and then divide the estate by the total number. (Art. 996, CC)

11. LEGITIMATE CHILDREN ILLEGITIMATE CHILDREN

Estate to be divided in proportion of two shares for each legitimate child and one share for each illegitimate child.

The legitimes of the legitimate children shall not be impaired. (Arts. 983 and 985, CC)

12. ONE LEGITIMATE CHILDILLEGITIMATE CHILDRENSURVIVING SPOUSE

Legitimate child, ½ of the estate. (Art. 888, CC)

Surviving spouse, ¼ of the estate.

Illegitimate children, ¼ of the estate. (applying by analogy Arts. 892, par. 1 and 895,CC)

13. TWO OR MORE LEGITIMATE CHILDRENILLEGITIMATE CHILDRENSURVIVING SPOUSE

Divide the estate according to the ratio of:

Two shares for each legitimate child.

Two shares for the surviving spouse.

One share each for each illegitimate child. (Art. 999, CC)

14. LEGITIMATE PARENTS ILLEGITIMATE CHILDREN

Legitimate parents, ½ of the estate.

Illegitimate children, ½ of the estate. (Art. 991, CC)

15. LEGITIMATE PARENTS SURVIVING SPOUSE

Surviving spouse, ½ of the estate. (Art. 997, CC)

16. LEGITIMATE PARENTS ILLEGITIMATE CHILDREN SURVIVING SPOUSE

Illegitimate children, ¼ of the estate.

Surviving spouse, ¼ of the estate. (Arts. 896 and 1000, CC)

17. ILLEGITIMATE CHILDREN SURVIVING SPOUSE

Illegitimate children, ½ of the estate.

Surviving spouse, ½ of the estate. (Art. 998, CC)

18. ILLEGITIMATE PARENTS CHILDREN OF ANY CLASS

Illegitimate parents, none (Art. 993, CC).

Legitimate or illegitimate children of the decedent , entire estate.

19. ILLEGITIMATE PARENTS SURVIVING SPOUSE

Illegitimate parents, ½ of the estate.

Surviving spouse, ½ of the estate.

20. SURVIVING SPOUSE BSNN

Surviving spouse, ½ of the estate.

BSNN, ½ of the estate. (Art. 1001, CC)

PROBLEM:

P died without a will. He is survived by his widow, W, and by one legitimate son, A. The estate is 60,000. How shall the distribution be made?

60,000

30,000

PROBLEM:

P died without a will. He is survived by his widow, W, one legitimate son, A, and two illegitimate children, B and C. The estate is 72,000. How shall the distribution be made?

72,000

36,000

18,000

B C9,000 9,000

ANSWER:

A is entitled to ½ of 72,000, or 36,000.

W is entitled to ¼ of 72,000, or 18,000.

B and C are entitled to ¼ of 72,000, or 18,000, which shall be divided equally between them.

PROBLEM:

P died without a will. He is survived by:

(1) A and B, his legitimate children.

(2) W, his widow; and

(3) C, D, E, his illegitimate children.

The net value of his estate is 60,000. How shall the distribution be made?

60,000

15,000

EC DB15,000 5,000 5,000 5,000

15,000

PROBLEM:

(1) A and B, his legitimate children.

(3) C, his illegitimate child.

140,000

ANSWER:

EXCLUSION THEORY

1. Satisfy the legitimes of the heirs.

2. The balance must be given to the legitimate children because they are first in the order of intestate succession

LEGITIMES:

A 35,000 B 35,000 W 35,000C 17,500

BALANCE 17,500

It is with respect to the balance that there is a conflict of opinion.

Under the exclusion theory, the balance of 17,500 is to be divided equally between A and B, or 8,750 each.

A 43,750B 43,750W 35,000C 17,500

TOTAL 140,000

CONCURRENCE THEORY

1. Satisfy the legitimes of the heirs.

2. The balance must be divided among the heirs in the proportion of 2:2:2:1.

LEGITIMES:

A 35,000 B 35,000 W 35,000C 17,500

BALANCE 17,500

Under the concurrence theory, the balance of 17,500 is to be divided equally among the heirs in the proportion of 2:2:2:1. Thus, 436

A, B and W are entitled to 2/7 each of 17,500, or 5,000 each.

C is entitled to 1/7 of 17,500, or 2,500.

A 40,000 B 40,000 W 40,000C 20,000

TOTAL 140,000 437

EXCLUSION OR CONCURRENCE?

Art. 983, CC: Legitimate and illegitimate inherit in the proportion of 2:1.

Art. 999, CC: Surviving spouse has the same successional right as a legitimate child.

Under the exclusion theory, the above proportions are discarded; the spouse would receive a share less than that of a legitimate child.

CONCLUSION: Concurrence theory. 438

PROBLEM:

In the previous problem, B (legitimate) and C (illegitimate) predeceased P.

(1) B is survived by two children, D and E. D is a legitimate child, while E is an illegitimate child.

(2) C, on the other hand, is also survived by two children, F and G. F is a legitimate child, while G is an illegitimate child.

How shall the distribution be made? 439

+140,000

ANSWER:

D who is legitimate, can represent his father B.

E cannot because of Art. 992 of the Civil Code.

F and G can inherit by right of representation. The barrier under Art. 992 does not exist.

Since F is legitimate and G is illegitimate, the share which would have passed to their father, C, they shall inherit in the proportion of 2:1.

FINAL DISTRIBUTION:

UNDER THE EXCLUSION THEORY

A 43,750 own rightD 43,750 by representationE noneW 35,500F 11,666+ by representationG 5,833+ by representationTOTAL 140,000 442

PROBLEM:

(1) F and M, his legitimate parents.

(3) A, B, C, and D, his illegitimate children.

P W72,000

A B C D

18,000 18,000

18,000

4,500 4,500 4,500 4,500

HAD P DIED WITH A WILL:

F and M, 1/2 of the estate: 36,000, or 18,000 each.

W, 1/8 of the estate: 9,000.

A, B, C, and D, 1/4 of the estate: 4,500 each

Free portion of 9,000.445

PROBLEM:

P died intestate survived by: (a) M, his mother; (b) W, his widow; (c) A and B, his legitimate children; (d) E, his grandson, being the legitimate son of B; (e) F, his other grandson, being the son of C who was a legitimate son of P, and who predeceased P; (f) G, his grandson, being the son of D, a legitimate son who repudiated the inheritance from P.

Distribute T’s net estate of 120,000.

A B C D

REPUDIATED

ESTATE: 120,000

ANSWER:

The legal heirs are A, B, F and W.

E is excluded by B who is still alive.

F represents C who predeceased P.

G is excluded because of the repudiation of D.

M is excluded by the legitimate children of P.

The answer may be premised on two theories: THEORY OF EXCLUSION and THEORY OF CONCURRENCE. 471

EXCLUSION

A 20,000 (own right) B 20,000 (own right) F 20,000 (representation) W 20,000 FP 40,000 TOTAL 120,000

Under the Theory of Exclusion, the Free Portion goes to the legitimate children, A and B, and grandson F, at 13,333.33 each; they are entitled to the free portion to the exclusion of the other heirs because they are first in the order of succession.

CONCURRENCE

In addition to their legitimes, the heirs A, B, F and W will be given equal shares in the free portion of 40,000.

A 20,000 plus 10,000B 20,000 plus 10,000F 20,000 plus 10,000W 20,000 plus 10,000

PROBLEM:

(1) W, his widow.

(2) A and B, his legitimate brothers.

(3) D and E, children of his deceased brother C.

W P A B

120,000 40,000

ESTATE: 240,000

40,000

20,000 20,000

PROBLEM:

(1) W, his widow.

(2) X and Y, children of a deceased legitimate brother, A.

(3) Z, child of a deceased legitimate sister, B.

W P A B

ESTATE: 240,000

+ +120,000

40,000 40,000 40,000

PROBLEM:

With her first husband A, B begot two children, D and E. When A died, B married C with whom she begot four legitimate children, F, G, H and I. B and C are now both dead. D died intestate, survived by:

(1) E, a brother of the full-blood.

(2) F, G, H and I, brothers of the half-blood.

ESTATE: 120,000

40,000 20,000 20,000 20,000 20,000

PROBLEM:

Suppose that in the previous problem, ALL the five brothers of D predeceased him, and the only survivors are the nephews, J, being the legitimate son of E, and K and L, being the legitimate children of H, how shall the estate be divided?

ESTATE: 120,000

60,000

30,000 30,000

ANSWER:

The rule of double share for full-blood collateral still applies.

If there are nephews ad nieces surviving the decedent, relationship by the whole or half-blood becomes material in the distribution of the estate.

NOTE: The nephews and nieces inherit in their own right here because they do not concur with an uncle or aunt.

PROBLEM:

B contracted two marriages: the first was with A, with whom she begot two legitimate children, D and E; and the second was with C, with whom she begot four legitimate children, F, G, H and I.

D died intestate survived by:

(1) E, a brother of the full-blood

(2) F and G, brothers of the half-blood.

(3) J, a son of H, a deceased half-brother.

(4) L, a grandson of I, and a child of K.

ESTATE: 120,000

ANSWER:

E 48,000 own rightF 24,000 own rightG 24,000 own rightJ 24,000 representing HL 0

TOTAL 120,000

NOTE: L is not entitled to inherit anything because in the collateral line, inheritance extends only to nephews and nieces. 463

PROBLEM:

X, an illegitimate person, died without a will. He is survived by:

(1) F, his father.

(2) W, his widow.

(3) A, his brother.

(4) B and C, his brothers from his father’s lawful marriage.

If the net value of X’s estate is 120,000. How shall the distribution be made?

ANSWER:

Only F and W are entitled to inherit, at 60,000 each.

Illegitimate parents do not exclude the surviving spouse.

A, B, and C, brothers of X, are not entitled to inherit because they are excluded by F pursuant to the principle of preference of line.

ACCRETION

Same inheritance, devise or legacy.

Heir, devisee or legatee vacates share. (repudiation, incapacity, predecease)

Vacated share Is added or incorporated to co-heirs, co-devises, co-legatees.

QUESTION:

When is accretion proper?

TESTATE SUCCESSION

1. predecease 2. incapacity 3. repudiation

INTESTATE SUCCESSION

4. repudiation 5. incapacity

IMPORTANT

No accretion among compulsory heirs insofar as the legitime is concerned.

Accretion, if it takes place, concerns only the free portion. (Art, 1021, CC)

PROBLEM:

T instituted his legitimate children, A and B, and a friend, F, as heirs. Estate is 60,000.

Divide the estate.

60,000

ANSWER:

The institution of A, B and F concerns only the free disposal of 30,000. A and B are first given their respective legitimes (15,000 each). The free disposal is then divided equally among the three instituted heirs:

A 15,000 (CH)

10,000 (VH)

B 15,000 (CH)10,000 (VH)

F 10,000 (VH)473

QUESTION

Suppose A predeceases T, how will his share be divided between his co-heirs, B and F?

ANSWER:

A’s share in the legitime goes to B in his own right (since this is the legitime).

A’s share in the free portion (10,000) will go equally to B and F by accretion since this is the proportion in which they were were instituted to the free portion.

If F predeceases T, his share in the free portion will go to A and B by accretion.

It is so because they were instituted as voluntary heirs.

QUESTION:

Suppose T gave one-half of his estate to F, and gave A and B their respective legitimes of ¼ each, to whom should F’s share go if he predeceases T?

ANSWER

To A and B, not by accretion for they were not given any part of the free portion.

Intestacy then results, and A and B will get F’s share as intestate heirs.

PROBLEM

X died intestate. He is survived by: (1) A, B, D and E, his legitimate children; (2) F and G, legitimate children of C (predeceased), a legitimate son of X; (3) H and I, legitimate children of D; and (4) J and K, legitimate children of E.

D is incapacitated; while E repudiated the inheritance.

The net value of the estate is 120,000, how shall the distribution be made?

A B D EC

KJIHGF

INCAPACITATED REPUDIATED

ESTATE: 120,000

ANSWER

There are three vacant shares.

The share which C would have inherited if he had not predeceased X.

The share which D would have inherited if he had the capacity to inherit from X.

The share which E would have inherited if he had not repudiated it.

DISTRIBUTION OF VACANT SHARES

The share of C in the estate goes to his legitimate children, F and G, by representation.

The share of D in the estate goes to his legitimate children, H and I, by representation.

The share of E in the estate goes to his co-heirs, A and B, by accretion. An heir who repudiates cannot be represented.

FINAL DISTRIBUTION

A 24,000 own right12,000 accretion

B 24,000 own right12,000 accretion

F 12,000 own right

G 12,000 own right

H 12,000 own right

I 12,000 own right483

PROBLEM:

Testator instituted A, B and C as universal heirs to his estate valued at 65,000.

Testator in his will gave A several properties worth 15,000; B, 20,000; and C, 30,000.

C predeceases the testator. How shall the distribution be made?

ANSWER:

B and C will each get their inheritance.

A’s share of 15,000 goes to B and C by right of accretion in the proportion of 2:1. (Art. 1019, CC)

HEIR DEVISE ACCRETION TOTAL

B 20,000 6,000 26,000

C 30,000 9,000 39,000

PROBLEM:

P has three legitimate brothers, X, Y and Z.

(1) X predeceases P, but he is survived by his legitimate child, A.

(2) Y is incapacitated, but he has two legitimate children, B and C.

(3) Z repudiates the inheritance.

How shall P’s estate of 120,000 be distributed? 486

P X Y Z

+INCAPACITATED

ESTATE: 120,000

REPUDIATED

ANSWER:

The 40,000 share of X who predeceased X goes to his legitimate child, A, by representation.

The 40,000 share of Y who is incapacitated to inherit goes to his legitimate children, B and C, by representation, or 20,000 each.

The share of Z who repudiated the inheritance goes to A, B and C by accretion in the same proportion they inherit, or in the proportion of 2:1:1.

FINAL DISTRIBUTION

A 40,000 by representation20,000 by accretion

B 20,000 by representation10,000 by accretion

C 20,000 by representation10,000 by accretion

PROBLEM: Suppose Z is incapacitated?

Same distribution as in the previous problem.

Suppose Z predeceased the decedent?

A 40,000 own rightB 40,000 own rightC 40,000 own right

PROBLEM:

T, an unmarried person and without any children of any kind, instituted his friends, A, B, C and D as his universal heirs to his estate of 210,000.

T intended the distribution of his estate as follows: A, ½ of the estate; B, 1/4; C, 1/8; and D, 1/8.

D repudiated the inheritance. How shall the distribution be made?

A B DC

ESTATE: 120,000

1/2 1/4 1/8 1/8

REPUDIATED

ANSWER:

There is no need to check the legitimes since T left no compulsory heirs.

Assuming there is no provision in the will regarding substitution of heirs, accretion exists insofar as D’s share is concerned.

A is to get it ½ of the estate, or 105,000.B is to get 1/4 of the estate, or 52,500.C is to get 1/8 of the estate, or 26,250.D is to get 1/8 of the estate, or 26,250.

If D’s share is rendered vacant because of his repudiation of the inheritance, who gets such vacated share?

ANSWER:

D’S vacant share goes to the other heirs by right of accretion. The co-heirs will therefore receive the vacant share of 26,250 in the same proportion they inherit.

Since they inherit in the proportion of 4:2:1, the vacant share is to be divided into 7 parts.

FINAL DISTRIBUTION

A 105,000 as an instituted heir 15,000 by accretion

B 52,500 as an instituted heir 7,500 by accretion

C 26,250 as an instituted heir 3,750 by accretion

CAPACITY TO INHERIT

QUESTION:

In point of time, what law governs the capacity of the heir to inherit?

ANSWER:

Art. 1034 CC: The qualification of the heir to inherit is reckoned at the time of death of the decedent.

PROBLEM:

During his last illness, testator T confessed to a priest, A, who was his only son. In his will which he made shortly after his confession, T gave his son-priest, A, 60,000 out of an estate worth 100,000. T gave the remainder of his estate to his friend, B.

How shall T’s estate be distributed?

ESTATE: 100,000

ANSWER:

The son-priest inherits only 50,000 as his legitime.

The additional 10,000 which is part of the free portion is nullified by the disqualification of the son-priest because he heard the confession of T during his last illness. (Art. 1027, par. (1), CC)

The excess 10,000 shall accrue in favor of the instituted heir, F.

PROBLEM:

The beneficiary in a will is the wife of the minister of the gospel who rendered aid to the testator during the latter’s last illness.

Would she be disqualified from inheriting from the testator?

ANSWER:

She is qualified. The law extends the disqualification of priests and ministers of the gospel to their relatives within the fourth degree as well as to the church, order, chapter, community, organization or institution to which they may belong. The spouse is not included. (No. 2, Art. 1027, CC)

Otherwise, we would be reading into the law what is not found there. Besides, capacity to succeed is the general rule, while incapacity to succeed is the exception. Hence, the rules on incapacity must always be strictly construed.

…Thank you

NOW GO AND TOP THE BAR!

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