CHARACTERISTICS OF SUCCESSION:
REQUISITES FOR TRANSMISSION OF RIGHT TO SUCCESSION (or more correctly stated, time of vesting of the successional right):
KINDS OF SUCCESSION:
1. Testamentary – succession by will
2. Intestate – succession in default of a will
3. Mixed
Treatment of accruals under the laws of succession:
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.
Validity of wills
Extrinsic For Filipinos
For Foreigners
1. Governing law as to time
Article 795 – law in force when will was executed
Same rule (assumption: will is being probated here)
2. Governing law as to place
Law of citizenship
Law of citizenship
Law of domicile
Law of domicile
Law of residence
Law of residence
Law of place of execution
Law of place of execution
Philippine law
Philippine law
Intrinsic For Filipinos
For Foreigners
1. Governing law as to time
Article 2263 – law at time of death
Article 16, Article 1039 – depends on personal law
2. Governing law as to place
Article 16, Article 1039 – Philippine law
Article 16, Article 1039 – national law
Testamentary Capacity
1. All persons not expressly prohibited by law
2. 18 years old and above
3. Sound mind
2 Kinds of Wills:
Common requirements that apply to the 2 kinds of wills 1. In writing
2. In a language or dialect known to the testator
REQUISITES FOR VALID NOTARIAL WILL:
Additional requisite if deaf or mute:
Must either:
1. Read will personally, if able to do so;
2. Otherwise, he shall designate 2 persons to read it & communicate to him the contents
Additional requisite if blind:
Will shall be read to him twice:
1. Once by one of the subscribing witnesses
2. Once by the notary public before whom it is acknowledged
REQUISITES OF HOLOGRAPHIC WILL:
Effect of cancellation, addition insertion), or erasure on the validity of the will
What is a codicil? It is a supplementary or addition to a will, made after the execution of the will & annexed to be taken as part by which any disposition in the original will may be explained, added to or altered.
Qualifications of a witness and a testator:
Witness Testator
REVOCATION OF A WILL:
PROBATE – It is a the special proceeding by which the validity of a will maybe established
Matters to be proved in a probate:
GROUNDS FOR DISALLOWANCE OF A WILL:
INSTITUTION OF HEIR – an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations
Requisites for a valid institution of heir:
3 principles in the institution of heirs:
Rules regarding a person’s right to dispose of his estate:
PRETERITION:
1. There must be an omission of one, some or all of the heir/s in the will
Effects of preterition:
DISINHERITANCE – It is the act by which the testator, for just cause, deprives a compulsory heir of his right to the legitime.
Preterition vs. Disinheritance Disinheritance Preterition
Express deprivation of legitime
Tacit deprivation of legitime
Always voluntary
May also be voluntary but is presumed to be involuntary (as it’s an omission to mention as an heir or though mentioned, isn’t instituted as an heir)
Legal cause is present
Presumed by law to be a mere oversight
Even a compulsory heir may be totally excluded
Compulsory heir is merely restored to his legitime
Requisites for a valid disinheritance
Summary of causes of disinheritance Grounds for disinheritance
Children/
Descendants
Parents/
ascendants
Spouse
Unworthiness
1
Guilty/convicted of attempt against life of testator/ spouse/ ascendant/ descendant
*
*
*
*
Grounds for disinheritance
Children/
Descendants
Parents/
ascendants
Spouse
Unworthiness
2
Accused testator/ decedent of crime punishable by imprisonment of more than 6 years, found groundless, false
*
*
*
*
3
Causes testator/ decedent to make will or change one by fraud, violence, intimidation, or undue influence
*
*
*
*
4
Unjustified refusal to support testator
*
*
*
5
Convicted of adultery or concubinage with spouse of testator / decedent
*
*
*
6
Maltreatment of testator by word & deed
*
7
Leading a dishonorable or disgraceful life
*
8
Conviction of crime which carries penalty of civil interdiction
*
9
Abandonment of children or inducing children to live corrupt and immoral life or attempted against virtue
*
*
10
Loss of parental authority
*
*
11
Attempt by one parent against life of the other UNLESS there’s reconciliation between parents
*
12
Spouses given cause for legal separation
*
13
Failure to report violent death of decedent within 1 month, unless authorities have already taken action
*
14
Force, violence, intimidation or undue influence to prevent another from making a will or revoking one already made or who supplants or alters the latter’s will
*
15
Falsifies or forges a supposed will of the decedent
*
Causes of vacancy in succession:
How are vacancies filled:
Classes of substitution 1. Singular or vulgar substitution
a. Simple
b. Brief
c. Compendious
d. Reciprocal
2. Fideicommissary Substitution
FIDEICOMMISSARY SUBSTITUTION – A substitution is a fideicommissary substitution if the testator institutes an heir with an obligation to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or fiduciary heir, the one to receive the property is the fideicommissary or second heir.
Requisites of a fideicommissary substitution:
LEGITIME - It is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs called compulsory heirs.
Different classes of heirs:
Classes Compulsory Heirs:
Summary of legitimes of compulsory heirs:
Surviving relatives
Legitimate children & descendants
Surviving spouse
Illegitimate children
Legitimate parents & ascendants
Illegitimate parents
Legitimate children alone
½ (divided by the # of children)
1 legitimate child surviving spouse
½
¼
Surviving relatives
Legitimate children & descendants
Surviving spouse
Illegitimate children
Legitimate parents & ascendants
Illegitimate parents
Legitimate children
Surviving spouse
½ (divided by no. of children)
Same as the share @ legit child
Legitimate children
Illegitimate children
½
½ of the share of @ legit child
1 legitimate child surviving spouse illegitimate children
½
¼
½ of the share of @ legit child
2 or more legitimate children surviving spouse Illegitimate children
½ (divided by no. of children)
Same as the share of @ legit child
½ of the share of @ legit child
Legitimate parents alone
½
Legitimate parents
Illegitimate children
¼
½
Legitimate parents
Surviving spouse
¼
Legitimate parents
Surviving spouse
Illegitimate children
1/8
¼
½
Illegitimate children alone
½ (divided by no. of children)
Illegitimate children
Surviving spouse
1/3
1/3 (divided by no. of children)
Surviving spouse alone
½ or 1/3 if marriage in articulo mortis
Illegitimate parents alone
½
Illegitimate parents
Surviving spouse
¼
¼
Remedy of compulsory heir in case of impairment of legitime:
1. If the impairment is total them there may be preterition if the compulsory heir preterited is either an ascendant or descendant. Article 854 would come into play (annulment of institution of heir & reduction of devises and legacies)
2. If the impairment is partial, then the compulsory heirs is entitled to completion of legitime under Article 906
3. If the impairment is thru donation, then remedy is collation.
RESERVA TRONCAL – It is that part of the decedent’s property that an ascendant, who inherits by operation of law from his descendants which the latter may have acquired by gratuitous title from another ascendant or sibling, is obliged by law to reserve such property for the benefit of 3rd degree relatives who belong to the line from which the property which otherwise will go to certain specific heirs but which law reserves to certain predetermined heirs.
Order of payment in case estate is INSUFFICIENT to cover legacies & devises
1. Remuneratory legacies or devises
2. Preferential legacies or devises declared by testator
3. Legacies for Support
4. Legacies for Education
5. Legacies or devises for Specific, determinate thing
6. All others, pro-rata
Causes for legal or intestate succession
2 fundamental underlying principles in legal or intestate succession
Grounds when the right of representation will be available:
Who can exercise right of representation
Legitimate Child Illegitimate Child
Adopted Child 1
Legitimate child and legitimate descendants
legitimate child & legitimate descendants
legitimate child & legitimate descendants
2
Legitimate parents & legitimate ascendants
illegitimate children & legitimate or illegitimate descendants
illegitimate children & legitimate or illegitimate descendants
3
Illegitimate children & left or illegitimate descendants
illegitimate parents
legitimate or illegitimate parents & legitimate ascendants, adoptive parents
4
Surviving spouse
surviving spouse
surviving spouse
5
Legitimate siblings, nephews, nieces
illegitimate siblings, nephews, nieces
siblings, nephews, nieces
6
Legitimate collateral relatives
State
State
7
State
Order of succession & concurrence in intestate succession Intestate Heir Excludes
Excluded By Concurs With
Legitimate children & Legitimate descendants
Ascendants, collaterals & state
No one
Surviving spouse
Illegitimate children
Illegitimate children & Descendants
Illegitimate parents, collaterals & state
No one
Surviving spouse
Legitimate children & legitimate parents
Legitimate parents & legitimate descendants
Collaterals & state
Legitimate children
Illegitimate children & surviving spouse
Illegitimate parents
Collaterals & state
Legitimate children & illegitimate children
Surviving spouse
Surviving spouse
Collaterals other than siblings, nephews and nieces
No one
Legitimate children
Illegitimate children
Legitimate parents & Illegitimate parents
Siblings, nephews nieces
All other collaterals & state
Legitimate children, illegitimate children,
Legitimate parents & illegitimate parents
Surviving spouse
Other collaterals within 5th degree
Collateral remoter in degree & state
Legitimate children
Illegitimate children
Legitimate parents
Illegitimate parents &
Surviving spouse
Collaterals in the same degree
State
No one
Everyone
No one
Summary of intestate shares:
Share as Free Disposal
Total Intestate Share
Legitimate children
½
½
1
TOTAL
½
½
1
Share as Free Disposal
Total Intestate Share
Legitimate child
½
½
Surviving spouse
¼
¼
½
TOTAL
¾
¼
1
Share as Free Disposal
Total Intestate Share
Legitimate children
½
Remaining portion of estate after paying
Whole estate divided equally between total number of children plus the surviving spouse
Surviving spouse
Same as share of @ legitimate child
Legitimes to be divided equally between total no. of children plus the surviving spouse
No. of children plus the surviving spouse
TOTAL
Varies on no. of children
Varies on no. of children
1
Share as Free Disposal
Total Intestate Share
Legitimate children
¼
Remaining portion of estate after paying
Whole estate divided by the ration of 2 for each legitimate child
Illegitimate children
½ share of @ legitimate child
Legitimes to be divided by the ration of 2 for @ legitimate child, 1 for @ illegitimate child
1 for @ illegitimate child provided that legitimes wouldn’t be impaired
TOTAL
Varies on no. of children
Varies on no. of children
Share as Free Disposal
Total Intestate Share
Legitimate child
½
Remaining portion of estate after paying legitimes to be divided by the ration of 2 for @ legitimate child, 1 for @ illegitimate child
Whole estate divided by the ratio of 2 @ legitimate child
Illegitimate child
½ share of @ legitimate child
1 for @ illegitimate child
1 for @ illegitimate child
Surviving spouse
¼
& 2 for the surviving spouse
Legitimes wouldn’t be impaired
TOTAL
Varies depending on no. of illegitimate children
Varies depending on no. of illegitimate children
1
Share as Free Disposal
Total Intestate Share
Legitimate children
½
Remaining portion of estate, if any after paring legitimes to be divided by the ratio of 2 for @ legitimate child
Whole estate divided by the ratio of 2 for @ legitimate child
Illegitimate children
½ share of @ legit child
1 for @ illegitimate child
1 for @ illegitimate child
Surviving spouse
¼
& 2 for the surviving spouse
& 2 for the surviving spouse provided that legitimes won’t be impaired
TOTAL
Varies depending on no. of illegitimate children
Varies depending on no. of illegitimate children
1
Share as Free Disposal
Total Intestate Share
Legitimate parents
½
½
1
TOTAL
½
½
1
Share as Free Disposal
Total Intestate Share
Legitimate parents
½
½
Illegitimate children
¼
¼
½
TOTAL
¾
¼
1
Share as Free Disposal
Total Intestate Share
Legitimate parents
½
½
Surviving spouse
1/8
1/8
¼
TOTAL
¾
¼
1
Share as Free Disposal
Total Intestate Share
Illegitimate children
1/3
1/6
½
Surviving spouse
1/8
1/8
¼
Illegitimate children
1/4
¼
TOTAL
7/8
1/8
1
Share as Free Disposal
Total Intestate Share
Illegitimate children alone
½
½
1
TOTAL
½
½
1
Share as Free Disposal
Total Intestate Share
Illegitimate children
1/3
1/6
½
Surviving spouse
1/3
1/6
½
TOTAL
2/3
1/3
1
Share as Free Disposal
Total Intestate Share
Surviving spouse
½ or 1/3
½ or 1/3
1
TOTAL
½ or 1/3
½ or 1/3
1
Share as Free Disposal
Total Intestate Share
Illegitimate children
½
½
1
Share as Free Disposal
Total Intestate Share
Illegitimate parents
¼
¼
½
Surviving spouse
¼
¼
½
TOTAL
½
½
1
Share as Free Disposal
Total Intestate Share
Siblings, nephews, nieces
½
½
1
TOTAL
½
½
1
Share as Free Disposal
Total Intestate Share
Surviving spouse
½
½
Siblings, nephews, nieces
½
½
TOTAL
½
½
1
Requisites for accretion to take place:
Incapacity to succeed because of possible undue influence
Validity and Effect of Legacy/Devise
Thing owned in part by testator (Article 929)
General Rule: Conveys only interest or part owned by testator
Exception: if testator otherwise provides –
a. He may convey more than what he owns - the state shld try to acquire the part or interest owned by other parties. If other parties are unwilling to alienate, the estate should give the legatee/devisee the monetary equivalent (analogy with Article 931)
b. He may convey less than what he owns (Article 794)
Thing owned by another (Articles 930-931)
General Rule:
a. If testator ordered acquisition of the thing - the order should be complied with. If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent
b. If testator erroneously believed that the thing belonged to him - legacy/device is void
Exception: if testator acquire the thing onerously or gratuitously after making of the disposition, disposition is validated
c. If testator knew that the thing did not belong to him but did not order its acquisition - code is silent but disposition shld be considered valid (Balane & Tolentino) - there is an implied order to acquire & doubts must be resolved in favor of intestacy
Thing already owned to the legatee/devisee (Articles 932-933)
a. If thing already belonged to legatee/devisee at time of execution of will – legacy/devise is void
b. If thing was owned by another person at time of making the will and thereafter it is acquired by legatee/devisee –
1. If testator erroneously believed that he owned the thing – legacy /devise is void
2. If testator was not in error -
i. If thing was acquired onerously by L/D – L/D entitled to be reimbursed
ii. If thing was acquired gratuitously by L/D – nothing is due
iii. If thing was owned by testator at time will was made and L/D acquired the thing from him thereafter – law is silent (Balane: deemed revoked)
Legacy/Devise to remove an encumbrance over a thing belonging to testator (Article 932 par 2)
Valid, if the encumbrance can be removed for a consideration
Legacy/Devise of a thing pledged or mortgaged (Article 934)
The encumbrance must be removed by paying the debt unless the testator intended otherwise
COLLATION - To collate is to bring back or to return to the hereditary mass, in fact or by fiction, property which came from the estate of the decedent, during his lifetime, but which the law considers as an adverse from the inheritance. It is the act by virtue of which, the persons who concur in the inheritance bring back to the common hereditary mass the property which they have received from him, so that a division may be effected according to law & the will of the testator.
Important periods to remember:
1 month or less before making a will
Testator, if publicly known to be insane, burden of proof is on the one claiming validity of the will
20 years
Maximum period testator can prohibit alienation of dispositions
5 years from delivery to the State
To claim property escheated to the State
1 month
To report knowledge of violent death of decedent lest he be considered unworthy
5 years from the time disqualified person took possession
Action for declaration of incapacity & for recovery of the inheritance, devise or legacy
30 days from issuance of order of distribution
Must signify acceptance/repudiation otherwise, deemed accepted
1 month form written notice of sale
Right to repurchase hereditary rights sold to a stranger by a co-heir
10 years
To enforce warranty of title/quality of property adjudicated to co-heir from the time right of action accrues
5 years from partition
To enforce warranty of solvency of debtor of the estate at the time partition is made
4 years form partition
Action for rescission of partition on account of lesion
- Mode of acquisition
- The property, rights & obligations to the extent of the value of the inheritance transmitted
- The transmission takes place only by virtue of death
- The transmission takes place either by will or by operation of law
- The transmission to another
REQUISITES FOR TRANSMISSION OF RIGHT TO SUCCESSION (or more correctly stated, time of vesting of the successional right):
- Death of the decedent
- Express will of the testator calling succession and/or provision of law prescribing successors
- Rights or properties are transmissible
- Transferee is still alive (didn’t predecease)
- Transferee is capacitated to inherit
- Acceptance of the inheritance by the successor
KINDS OF SUCCESSION:
1. Testamentary – succession by will
2. Intestate – succession in default of a will
3. Mixed
Treatment of accruals under the laws of succession:
- a. Article 793 refers to accruals after the making of the will
- a. Article 793 accruals don’t always pertain to the testate heirs
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.
Validity of wills
Extrinsic For Filipinos
For Foreigners
1. Governing law as to time
Article 795 – law in force when will was executed
Same rule (assumption: will is being probated here)
2. Governing law as to place
Law of citizenship
Law of citizenship
Law of domicile
Law of domicile
Law of residence
Law of residence
Law of place of execution
Law of place of execution
Philippine law
Philippine law
Intrinsic For Filipinos
For Foreigners
1. Governing law as to time
Article 2263 – law at time of death
Article 16, Article 1039 – depends on personal law
2. Governing law as to place
Article 16, Article 1039 – Philippine law
Article 16, Article 1039 – national law
Testamentary Capacity
1. All persons not expressly prohibited by law
2. 18 years old and above
3. Sound mind
2 Kinds of Wills:
- Notarial will – Articles 804-806, & 807-808 in special cases
- Holographic – Articles 804 & 810
Common requirements that apply to the 2 kinds of wills 1. In writing
2. In a language or dialect known to the testator
REQUISITES FOR VALID NOTARIAL WILL:
- In writing
- Executed in a language or dialect known to the testator
- Subscribed by the testator himself or by the testator’s name written by some other person in his presence & under his express direction at the end thereof, at the presence of witnesses
- Attested & subscribed by at least 3 credible witnesses in the presence of the testator and of one another
- Each & every page must be signed by the testator or by the person requested by him to write is name, & by instrumental witnesses in the presence of each other, on the left margin
- Each & every page of the will must be numbered correlatively in letters placed on the upper part of each page
- Must contain an attestation clause, stating the following:
- The number of pages of the will
- Fact that the testator signed the will & every page in the presence of witnesses, or caused some other person to write his name under his express direction
- All witnesses signed the will & every page thereof in the presence of the testator & of one another
- Must be acknowledged before a notary public
Additional requisite if deaf or mute:
Must either:
1. Read will personally, if able to do so;
2. Otherwise, he shall designate 2 persons to read it & communicate to him the contents
Additional requisite if blind:
Will shall be read to him twice:
1. Once by one of the subscribing witnesses
2. Once by the notary public before whom it is acknowledged
REQUISITES OF HOLOGRAPHIC WILL:
- In writing
- Executed in a language or dialect known to the testator
- Entirely written, dated & signed by the hand of the testator himself
- Notarial will can only be amended through a codicil
- Holographic will can be amended in 3 ways:
- Dispositions may be added below the signature, PROVIDED that said dispositions are also dated & signed & everything is written by the hand of the testator himself
- Certain dispositions or additional matter may be suppressed or inserted PROVIDED that sad cancellation is signed by the testator & is written by the testator himself (no need to be detailed)
- Executing a codicil which may either be notarial or holographic
Effect of cancellation, addition insertion), or erasure on the validity of the will
- If made by the hand of the testator & authenticated by him: alters the will without affecting its validity
- If made by the hand of the testator but was not authenticated by him: deemed as if not written at all
- If made by testator but not handwritten: entire will is nullified
- By a stranger & the testator has authenticated the same: entire will is nullified
- Made by a stranger but not authenticated by the testator: deemed as if not written at all
What is a codicil? It is a supplementary or addition to a will, made after the execution of the will & annexed to be taken as part by which any disposition in the original will may be explained, added to or altered.
Qualifications of a witness and a testator:
Witness Testator
- At least 18 years old
- Physically fit (not deaf, dumb, blind)
- Literate, able to read and write
- No prior conviction for perjury/false testimony/falsification
- Not the notary public before whom the will is acknowledged
- Sound mind
- Domiciled in the Philippines
- Same
- May be blind, deaf or deaf-mute
- No literacy requirement
- No such requirement
- No such requirement
- Same
REVOCATION OF A WILL:
- By implication of law
- By the execution of a documentation with all the requisites of a will
- By the physical act of destruction coupled with the intent to revoke
PROBATE – It is a the special proceeding by which the validity of a will maybe established
Matters to be proved in a probate:
- Whether the instrument which is offered for probate is the last will and testament of the decedent
- Whether the will has been executed in accordance with the formalities prescribed by law
- Whether the testator had testamentary capacity at the time of the execution of the will
GROUNDS FOR DISALLOWANCE OF A WILL:
- The testator did not possess testamentary capacity at the time of execution
- The testator failed to comply with prescribed formalities
- The execution of the will is attended by a vice of consent
INSTITUTION OF HEIR – an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations
Requisites for a valid institution of heir:
- Designation in will of person/s to succeed
- Will specifically assigns to such person an inchoate share in the estate
- The person so named has capacity to succeed
- The will is formally valid
- No vice of consent is present
- No preterition results from the effect of such will
3 principles in the institution of heirs:
- Equality: heirs who are instructed without a designation of shares inherit in equal parts
- Individuality: heirs collectively instituted are deemed individually named unless contrary intent is proven
- Simultaneity: when several heirs are instituted, they are instituted simultaneously & not successively
Rules regarding a person’s right to dispose of his estate:
- If one has no compulsory heirs:
- He can give his estate to any person qualified to inherit under him
- However, he must respect restrictions imposed by special laws
- If one has compulsory heirs:
- He can give only the disposable portion to strangers
- Legitimes of compulsory heirs must be respected
PRETERITION:
1. There must be an omission of one, some or all of the heir/s in the will
- The omission must be that of a COMPULSORY HEIR
- Compulsory heir omitted must be of the DIRECT LINE
- The omitted compulsory heir must be LIVING at the time of testator’s death or must at least have been CONCEIVED before the testator’s death
Effects of preterition:
- The institution of heirs is annulled
- Devises & legacies shall remain valid as long as they aren’t officious
DISINHERITANCE – It is the act by which the testator, for just cause, deprives a compulsory heir of his right to the legitime.
Preterition vs. Disinheritance Disinheritance Preterition
Express deprivation of legitime
Tacit deprivation of legitime
Always voluntary
May also be voluntary but is presumed to be involuntary (as it’s an omission to mention as an heir or though mentioned, isn’t instituted as an heir)
Legal cause is present
Presumed by law to be a mere oversight
Even a compulsory heir may be totally excluded
Compulsory heir is merely restored to his legitime
Requisites for a valid disinheritance
- Heir disinherited must be designated by name or in such a manner as to leave no room for doubt as to who it is intended
- Disinheritance must be for a cause designated by law
- It must be made in valid will
- It must be made expressly, stating the cause in the will itself
- Cause must be certain & true, & must be proved by interested heirs if the person disinherited should deny it
- It must unconditional
- Must be total
Summary of causes of disinheritance Grounds for disinheritance
Children/
Descendants
Parents/
ascendants
Spouse
Unworthiness
1
Guilty/convicted of attempt against life of testator/ spouse/ ascendant/ descendant
*
*
*
*
Grounds for disinheritance
Children/
Descendants
Parents/
ascendants
Spouse
Unworthiness
2
Accused testator/ decedent of crime punishable by imprisonment of more than 6 years, found groundless, false
*
*
*
*
3
Causes testator/ decedent to make will or change one by fraud, violence, intimidation, or undue influence
*
*
*
*
4
Unjustified refusal to support testator
*
*
*
5
Convicted of adultery or concubinage with spouse of testator / decedent
*
*
*
6
Maltreatment of testator by word & deed
*
7
Leading a dishonorable or disgraceful life
*
8
Conviction of crime which carries penalty of civil interdiction
*
9
Abandonment of children or inducing children to live corrupt and immoral life or attempted against virtue
*
*
10
Loss of parental authority
*
*
11
Attempt by one parent against life of the other UNLESS there’s reconciliation between parents
*
12
Spouses given cause for legal separation
*
13
Failure to report violent death of decedent within 1 month, unless authorities have already taken action
*
14
Force, violence, intimidation or undue influence to prevent another from making a will or revoking one already made or who supplants or alters the latter’s will
*
15
Falsifies or forges a supposed will of the decedent
*
Causes of vacancy in succession:
- The testator creates it himself – disinheritance
- The does something – repudiates
- Something happens to the heir – incapacitated / predecease
How are vacancies filled:
- Substitution
- Representation
- Accretion
Classes of substitution 1. Singular or vulgar substitution
a. Simple
b. Brief
c. Compendious
d. Reciprocal
2. Fideicommissary Substitution
FIDEICOMMISSARY SUBSTITUTION – A substitution is a fideicommissary substitution if the testator institutes an heir with an obligation to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or fiduciary heir, the one to receive the property is the fideicommissary or second heir.
Requisites of a fideicommissary substitution:
- A 1st heir or fiduciary is first called to the enjoyment of the property so inherited
- A 2nd heir or fideicommissary substitute
- An obligation clearly imposed on the fiduciary to preserve & transmit the property to a fideicommissary substitute
- The substitution doesn’t go beyond the 1st degree of the fiduciary
- The fideicommissary substitution is made expressly
- Both the fiduciary & the fideicommissary substitute are living or at least conceived at the time of the death of the testator
- The fideicommissary substitution is imposed on the free portion of the estate & not on the legitime
LEGITIME - It is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs called compulsory heirs.
Different classes of heirs:
- Voluntary heirs – succeed by virtue of a will
- Legal or intestate heirs – succeed by operation of law in the absence of a will
- Compulsory heirs – succeed because the law reserved for them
Classes Compulsory Heirs:
- Primary
- Legitimate children & their descendants (legitimate)
- Surviving spouse (legitimate)
- Illegitimate children & their descendants (legitimate or illegitimate)
- Secondary
- Legitimate parents & ascendants (legitimate) – inherit only in default of 1a
- Illegitimate parents (no other ascendants) – inherit only in default of 1a & 1c
Summary of legitimes of compulsory heirs:
Surviving relatives
Legitimate children & descendants
Surviving spouse
Illegitimate children
Legitimate parents & ascendants
Illegitimate parents
Legitimate children alone
½ (divided by the # of children)
1 legitimate child surviving spouse
½
¼
Surviving relatives
Legitimate children & descendants
Surviving spouse
Illegitimate children
Legitimate parents & ascendants
Illegitimate parents
Legitimate children
Surviving spouse
½ (divided by no. of children)
Same as the share @ legit child
Legitimate children
Illegitimate children
½
½ of the share of @ legit child
1 legitimate child surviving spouse illegitimate children
½
¼
½ of the share of @ legit child
2 or more legitimate children surviving spouse Illegitimate children
½ (divided by no. of children)
Same as the share of @ legit child
½ of the share of @ legit child
Legitimate parents alone
½
Legitimate parents
Illegitimate children
¼
½
Legitimate parents
Surviving spouse
¼
Legitimate parents
Surviving spouse
Illegitimate children
1/8
¼
½
Illegitimate children alone
½ (divided by no. of children)
Illegitimate children
Surviving spouse
1/3
1/3 (divided by no. of children)
Surviving spouse alone
½ or 1/3 if marriage in articulo mortis
Illegitimate parents alone
½
Illegitimate parents
Surviving spouse
¼
¼
Remedy of compulsory heir in case of impairment of legitime:
1. If the impairment is total them there may be preterition if the compulsory heir preterited is either an ascendant or descendant. Article 854 would come into play (annulment of institution of heir & reduction of devises and legacies)
2. If the impairment is partial, then the compulsory heirs is entitled to completion of legitime under Article 906
3. If the impairment is thru donation, then remedy is collation.
RESERVA TRONCAL – It is that part of the decedent’s property that an ascendant, who inherits by operation of law from his descendants which the latter may have acquired by gratuitous title from another ascendant or sibling, is obliged by law to reserve such property for the benefit of 3rd degree relatives who belong to the line from which the property which otherwise will go to certain specific heirs but which law reserves to certain predetermined heirs.
Order of payment in case estate is INSUFFICIENT to cover legacies & devises
1. Remuneratory legacies or devises
2. Preferential legacies or devises declared by testator
3. Legacies for Support
4. Legacies for Education
5. Legacies or devises for Specific, determinate thing
6. All others, pro-rata
Causes for legal or intestate succession
- Person dies without a will
- Person dies with void will
- Person dies with a will that subsequently loses validity
- Will doesn’t institute an heir or institution is void
- Will doesn’t dispose of ALL property belonging to the testator
- Suspensive condition attached to the institution of the heir doesn’t happen or isn’t fulfilled
- Heir predeceases, or repudiates the inheritance
- Incapacity of the heir
2 fundamental underlying principles in legal or intestate succession
- Rule of Proximity – nearer exclude the more remote
- Rule of Equal Division – equal division within the same group
Grounds when the right of representation will be available:
- Disinheritance
- Incapacity
- Predecease
Who can exercise right of representation
- Intestate succession only: heirs in the collateral line, but only in favor of the children of siblings
- Both testate & intestate succession: heirs in the descending line, NEVER in the ascending line
Legitimate Child Illegitimate Child
Adopted Child 1
Legitimate child and legitimate descendants
legitimate child & legitimate descendants
legitimate child & legitimate descendants
2
Legitimate parents & legitimate ascendants
illegitimate children & legitimate or illegitimate descendants
illegitimate children & legitimate or illegitimate descendants
3
Illegitimate children & left or illegitimate descendants
illegitimate parents
legitimate or illegitimate parents & legitimate ascendants, adoptive parents
4
Surviving spouse
surviving spouse
surviving spouse
5
Legitimate siblings, nephews, nieces
illegitimate siblings, nephews, nieces
siblings, nephews, nieces
6
Legitimate collateral relatives
State
State
7
State
Order of succession & concurrence in intestate succession Intestate Heir Excludes
Excluded By Concurs With
Legitimate children & Legitimate descendants
Ascendants, collaterals & state
No one
Surviving spouse
Illegitimate children
Illegitimate children & Descendants
Illegitimate parents, collaterals & state
No one
Surviving spouse
Legitimate children & legitimate parents
Legitimate parents & legitimate descendants
Collaterals & state
Legitimate children
Illegitimate children & surviving spouse
Illegitimate parents
Collaterals & state
Legitimate children & illegitimate children
Surviving spouse
Surviving spouse
Collaterals other than siblings, nephews and nieces
No one
Legitimate children
Illegitimate children
Legitimate parents & Illegitimate parents
Siblings, nephews nieces
All other collaterals & state
Legitimate children, illegitimate children,
Legitimate parents & illegitimate parents
Surviving spouse
Other collaterals within 5th degree
Collateral remoter in degree & state
Legitimate children
Illegitimate children
Legitimate parents
Illegitimate parents &
Surviving spouse
Collaterals in the same degree
State
No one
Everyone
No one
Summary of intestate shares:
- Legitimate children & legitimate descendants alone
Share as Free Disposal
Total Intestate Share
Legitimate children
½
½
1
TOTAL
½
½
1
- One legitimate child and surviving spouse
Share as Free Disposal
Total Intestate Share
Legitimate child
½
½
Surviving spouse
¼
¼
½
TOTAL
¾
¼
1
- Legitimate children & surviving spouse
Share as Free Disposal
Total Intestate Share
Legitimate children
½
Remaining portion of estate after paying
Whole estate divided equally between total number of children plus the surviving spouse
Surviving spouse
Same as share of @ legitimate child
Legitimes to be divided equally between total no. of children plus the surviving spouse
No. of children plus the surviving spouse
TOTAL
Varies on no. of children
Varies on no. of children
1
- Legitimate children & illegitimate children
Share as Free Disposal
Total Intestate Share
Legitimate children
¼
Remaining portion of estate after paying
Whole estate divided by the ration of 2 for each legitimate child
Illegitimate children
½ share of @ legitimate child
Legitimes to be divided by the ration of 2 for @ legitimate child, 1 for @ illegitimate child
1 for @ illegitimate child provided that legitimes wouldn’t be impaired
TOTAL
Varies on no. of children
Varies on no. of children
- One legitimate child, illegitimate children, & surviving spouse
Share as Free Disposal
Total Intestate Share
Legitimate child
½
Remaining portion of estate after paying legitimes to be divided by the ration of 2 for @ legitimate child, 1 for @ illegitimate child
Whole estate divided by the ratio of 2 @ legitimate child
Illegitimate child
½ share of @ legitimate child
1 for @ illegitimate child
1 for @ illegitimate child
Surviving spouse
¼
& 2 for the surviving spouse
Legitimes wouldn’t be impaired
TOTAL
Varies depending on no. of illegitimate children
Varies depending on no. of illegitimate children
1
- Legitimate children, illegitimate children & surviving spouse
Share as Free Disposal
Total Intestate Share
Legitimate children
½
Remaining portion of estate, if any after paring legitimes to be divided by the ratio of 2 for @ legitimate child
Whole estate divided by the ratio of 2 for @ legitimate child
Illegitimate children
½ share of @ legit child
1 for @ illegitimate child
1 for @ illegitimate child
Surviving spouse
¼
& 2 for the surviving spouse
& 2 for the surviving spouse provided that legitimes won’t be impaired
TOTAL
Varies depending on no. of illegitimate children
Varies depending on no. of illegitimate children
1
- Legitimate parents alone
Share as Free Disposal
Total Intestate Share
Legitimate parents
½
½
1
TOTAL
½
½
1
- Legitimate parents & illegitimate children
Share as Free Disposal
Total Intestate Share
Legitimate parents
½
½
Illegitimate children
¼
¼
½
TOTAL
¾
¼
1
- Legitimate parents & surviving spouse
Share as Free Disposal
Total Intestate Share
Legitimate parents
½
½
Surviving spouse
1/8
1/8
¼
TOTAL
¾
¼
1
- Legitimate parents, surviving spouse & illegitimate children
Share as Free Disposal
Total Intestate Share
Illegitimate children
1/3
1/6
½
Surviving spouse
1/8
1/8
¼
Illegitimate children
1/4
¼
TOTAL
7/8
1/8
1
- Illegitimate children alone
Share as Free Disposal
Total Intestate Share
Illegitimate children alone
½
½
1
TOTAL
½
½
1
- Illegitimate children & surviving spouse
Share as Free Disposal
Total Intestate Share
Illegitimate children
1/3
1/6
½
Surviving spouse
1/3
1/6
½
TOTAL
2/3
1/3
1
- Surviving spouse
Share as Free Disposal
Total Intestate Share
Surviving spouse
½ or 1/3
½ or 1/3
1
TOTAL
½ or 1/3
½ or 1/3
1
- Illegitimate parents alone
Share as Free Disposal
Total Intestate Share
Illegitimate children
½
½
1
- Illegitimate parents & surviving spouse
Share as Free Disposal
Total Intestate Share
Illegitimate parents
¼
¼
½
Surviving spouse
¼
¼
½
TOTAL
½
½
1
- Siblings, nephews & nieces alone
Share as Free Disposal
Total Intestate Share
Siblings, nephews, nieces
½
½
1
TOTAL
½
½
1
- Surviving spouse, siblings, nephews & nieces
Share as Free Disposal
Total Intestate Share
Surviving spouse
½
½
Siblings, nephews, nieces
½
½
TOTAL
½
½
1
Requisites for accretion to take place:
- Unity of object
- Plurality of heirs
- Some of the heirs cannot or are disqualified to accept (R.I.P)
- Others are accepting &
- There has been earmarking
Incapacity to succeed because of possible undue influence
- Priest who heard confession during last illness & his relatives with thin the 4th degree & the order, chapter, etc., to which the priest belongs
- Guardian before final accounts have been approved EXCEPT if an ascendant, descendant, sibling, spouse
- Attesting witness to execution of will & their spouses, parents, children or any one claiming under them
- Physician, surgeon, nurse who took care of testator during his last illness
- Individuals, associations, corporations not permitted by law to inherit
Validity and Effect of Legacy/Devise
Thing owned in part by testator (Article 929)
General Rule: Conveys only interest or part owned by testator
Exception: if testator otherwise provides –
a. He may convey more than what he owns - the state shld try to acquire the part or interest owned by other parties. If other parties are unwilling to alienate, the estate should give the legatee/devisee the monetary equivalent (analogy with Article 931)
b. He may convey less than what he owns (Article 794)
Thing owned by another (Articles 930-931)
General Rule:
a. If testator ordered acquisition of the thing - the order should be complied with. If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent
b. If testator erroneously believed that the thing belonged to him - legacy/device is void
Exception: if testator acquire the thing onerously or gratuitously after making of the disposition, disposition is validated
c. If testator knew that the thing did not belong to him but did not order its acquisition - code is silent but disposition shld be considered valid (Balane & Tolentino) - there is an implied order to acquire & doubts must be resolved in favor of intestacy
Thing already owned to the legatee/devisee (Articles 932-933)
a. If thing already belonged to legatee/devisee at time of execution of will – legacy/devise is void
b. If thing was owned by another person at time of making the will and thereafter it is acquired by legatee/devisee –
1. If testator erroneously believed that he owned the thing – legacy /devise is void
2. If testator was not in error -
i. If thing was acquired onerously by L/D – L/D entitled to be reimbursed
ii. If thing was acquired gratuitously by L/D – nothing is due
iii. If thing was owned by testator at time will was made and L/D acquired the thing from him thereafter – law is silent (Balane: deemed revoked)
Legacy/Devise to remove an encumbrance over a thing belonging to testator (Article 932 par 2)
Valid, if the encumbrance can be removed for a consideration
Legacy/Devise of a thing pledged or mortgaged (Article 934)
The encumbrance must be removed by paying the debt unless the testator intended otherwise
COLLATION - To collate is to bring back or to return to the hereditary mass, in fact or by fiction, property which came from the estate of the decedent, during his lifetime, but which the law considers as an adverse from the inheritance. It is the act by virtue of which, the persons who concur in the inheritance bring back to the common hereditary mass the property which they have received from him, so that a division may be effected according to law & the will of the testator.
Important periods to remember:
1 month or less before making a will
Testator, if publicly known to be insane, burden of proof is on the one claiming validity of the will
20 years
Maximum period testator can prohibit alienation of dispositions
5 years from delivery to the State
To claim property escheated to the State
1 month
To report knowledge of violent death of decedent lest he be considered unworthy
5 years from the time disqualified person took possession
Action for declaration of incapacity & for recovery of the inheritance, devise or legacy
30 days from issuance of order of distribution
Must signify acceptance/repudiation otherwise, deemed accepted
1 month form written notice of sale
Right to repurchase hereditary rights sold to a stranger by a co-heir
10 years
To enforce warranty of title/quality of property adjudicated to co-heir from the time right of action accrues
5 years from partition
To enforce warranty of solvency of debtor of the estate at the time partition is made
4 years form partition
Action for rescission of partition on account of lesion
SUCCESSION
GENERAL PROVISION
Succession - is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation law.
- Mode of transmitting ownership.
Basis of succession
Rights over property
The right of the family (intestate succession)
Eclectic theory – tries to harmonize the two principles – individual and social.
Kinds
- Testator – a person who left a will
b. Inheritance – all property, rights and obligations of a person which are not extinguished by his death. (776)
Obligations of the deceased are only up to the value of the inheritance left by him to his heirs. (it is right to say that debts are not inherited; Estate – debts = inheritance)
In general, obligations are transmissible, unless purely personal like obligations between husband and wife, and those non-transferrable by law or contract.
Example of rights extinguished by death
a. Personal rights like marital rights, parental authority, support, action for legal separation, partnership, and agency.
b. Right to recognition of a legitimate or an illegitimate child.
Except when actions has already been filed. Also actions transmitted to heirs if child dies during minority or a state of insanity. Heirs have 5 years to file the action. (173 FC)
Actions already commenced survives notwithstanding death of the party.id
Action for adoption is not extinguished by death of the adopter. (sec. 13. RA 8552)
c. Right to hold office or job, public or private.
d. Right of a lawyer to represent his client.
Rights to succession are transmitted from the moment of death of the decedent. (777)
Inheritance includes not only transmissible rights and obligations at the time of death, but also those accrued since the opening of the succession. (781)
HEIR - called to succession by will or operation of law; also one who succeeds by universal title or to all or a fraction or aliquot part of the estate. May be;
Compulsory – those who succeed by force of law to some portion of inheritance in an amount predetermined by law known as legitime.
Voluntary – those instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose.
Compulsory heir can also be a voluntary heir of the free portion.
Devisee – one given a gift of real property in a will.
Legatee – one given a gift of personal property in a will.
This two preceding exist only in testamentary succession.
In preterition, an instituted heir gets nothing, while the legatee or devisee gets the property given to him as long as the legitime is not impared.
Imperfect inheritance
After - acquired properties
Acceptance or non – repudation of successiona rights.
DUAL STATUS of HEIR
The successor must
Inchoate rights = before the death of the decedent
It does not matter if the will is admitted, transmission is at the moment of death.
Condition – actual or personal
- Properties and rights are transmissible
- Transferee is alive.
Court only decide on the formality of the will
Death = estate = co-ownership = can validly dispose a share.
Investigation of paternity must be done during the lifetime of the parents.
Heirs may be sued
Declaration of heirship must be in the administration proceedings and not in a separate proceeding.
Court has no power to order to sell pending determination of validity of administration.
If heir is unduly deprived he has 2 yrs to act.
If the administrator sells it is also considered as the heir is selling. The heirs are not stranger to the transaction.
Inventory = is not an incidental duty of the administrator, the administrator can solely be held liable.
Concealment of heir – can still file a claim because he is already an owner.
GENERAL PROVISION
Succession - is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation law.
- Mode of transmitting ownership.
Basis of succession
Rights over property
The right of the family (intestate succession)
Eclectic theory – tries to harmonize the two principles – individual and social.
Kinds
- Testamentary or testacy – by will or codicil
- Legal or intestacy – operation of law, if the will is invalid
- Mixed – partly by will and by legal
- Subjective element (art. 775)
- Testator – a person who left a will
b. Inheritance – all property, rights and obligations of a person which are not extinguished by his death. (776)
Obligations of the deceased are only up to the value of the inheritance left by him to his heirs. (it is right to say that debts are not inherited; Estate – debts = inheritance)
In general, obligations are transmissible, unless purely personal like obligations between husband and wife, and those non-transferrable by law or contract.
Example of rights extinguished by death
a. Personal rights like marital rights, parental authority, support, action for legal separation, partnership, and agency.
b. Right to recognition of a legitimate or an illegitimate child.
Except when actions has already been filed. Also actions transmitted to heirs if child dies during minority or a state of insanity. Heirs have 5 years to file the action. (173 FC)
Actions already commenced survives notwithstanding death of the party.id
Action for adoption is not extinguished by death of the adopter. (sec. 13. RA 8552)
c. Right to hold office or job, public or private.
d. Right of a lawyer to represent his client.
Rights to succession are transmitted from the moment of death of the decedent. (777)
- Heirs become owners on date of the decedents’ death, although properties are delivered to them later.
- Both acceptance and repudiation retroact to the moment of death.
Inheritance includes not only transmissible rights and obligations at the time of death, but also those accrued since the opening of the succession. (781)
HEIR - called to succession by will or operation of law; also one who succeeds by universal title or to all or a fraction or aliquot part of the estate. May be;
Compulsory – those who succeed by force of law to some portion of inheritance in an amount predetermined by law known as legitime.
Voluntary – those instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose.
Compulsory heir can also be a voluntary heir of the free portion.
Devisee – one given a gift of real property in a will.
Legatee – one given a gift of personal property in a will.
This two preceding exist only in testamentary succession.
In preterition, an instituted heir gets nothing, while the legatee or devisee gets the property given to him as long as the legitime is not impared.
Imperfect inheritance
After - acquired properties
Acceptance or non – repudation of successiona rights.
DUAL STATUS of HEIR
- In a will, a compulsory heir may be given more than his legitime.
- He is a compulsory heir with respect to the legitime. He is a voluntary heir with respect to the excess.
- If a compulsory heir dies ahead of the testator, the legitime goes to the child by representation.
The successor must
- Survive the decedent
- Willing to accept the inheritance
- Capacitated to inherit
Inchoate rights = before the death of the decedent
It does not matter if the will is admitted, transmission is at the moment of death.
Condition – actual or personal
- Properties and rights are transmissible
- Transferee is alive.
Court only decide on the formality of the will
Death = estate = co-ownership = can validly dispose a share.
Investigation of paternity must be done during the lifetime of the parents.
Heirs may be sued
Declaration of heirship must be in the administration proceedings and not in a separate proceeding.
Court has no power to order to sell pending determination of validity of administration.
If heir is unduly deprived he has 2 yrs to act.
If the administrator sells it is also considered as the heir is selling. The heirs are not stranger to the transaction.
Inventory = is not an incidental duty of the administrator, the administrator can solely be held liable.
Concealment of heir – can still file a claim because he is already an owner.