Succession

ATENEO CENTRAL BAR OPERATIONS 2007
Civil Law
SUMMER REVIEWER
SUCCESSION
CHAPTER 1: GENERAL PROVISIONS
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SUCCESION - Is a mode of acquisition by
virtue of which the property, rights and
obligations to the extent of the value of the
inheritance, of a person are transmitted
through his death to another or others either
by his will or by operation of law (Art. 774)
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ELEMENTS OF SUCCESSION
1.
Decedent
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2.
Successors
a.
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Heirs
those who are called to the whole or
to an aliquot portion of the inheritance either
by will or by operation on law
b.
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Devisees
or Legatees
persons to whom
gifts of real or personal property are
respectively given by virtue of a will.
3.
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Death of the Person
However, a person may
be presumed dead for the purpose of opening his
succession (see rules on presumptive death). In
this case, succession is only of provisional
character because there is always the chance
that the absentee may be alive.
4.

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Inheritance
is the subject matter of Succession
it includes:
Property and transmissible rights and
obligations
Existing at the time of his death
AND those which have accrued thereto
since the opening of succession.
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RIGHTS EXTINGUISHED BY DEATH
1.
Support
2.
Usufruct
3.
Those arising from personal consideration
4.
Personal easements
5.
Partnership rights
6.
Agency
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Life Annuity
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Succession
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Inheritance
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Refers to the legal Refers to the
mode by which universality or entirety
inheritance is of the property, rights
transmitted to the and obligations of a
persons entitled to it. person who died.
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KINDS OF SUCCESSION
1.
Testamentary
that which results from the
designation of an heir, made in a will executed in
the form prescribed by law

2.
Legal or Intestate
that which takes place by
operation of law in the absence of a valid will
3.
Mixed
that which is effected partly by will and
partly by operation of law
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KINDS OF HEIRS
1.
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who succeed by force of Compulsory those
law to some portion of the inheritance, in an
amount predetermined by law, of which they
cannot be deprived by the testator, except by a
valid disinheritance
2.
Voluntary or Testamentary
those who are
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instituted by the testator in his will, to succeed to
the portion of the inheritance of which the testator
can freely dispose
3.
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who succeed to the Legal or Intestate
those
estate of the decedent who dies without a valid
will, or to the portion of such estate not disposed
of by will
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CHAPTER 2: GENERAL PROVISIONS ON WILLS
ELEMENTS OF A WILL
1.
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actIt is an;
2.
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permittedwhereby a person is ;
3.
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formalitieswith the prescribed by law;
4.
to control to a certain degree;

5.
the disposition of his estate;
6.
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take effect after his death. to
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KINDS OF WILLS:
1.
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Notarial
an ordinary or attested will
2.
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Holographic
a handwritten will
COMMON REQUISITES BETWEEN THE TWO
WILLS:
1.
must be in writing and
2.
in a language or dialect known to the testator
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CHARACTERISTICS OF A WILL:
1.
Unilateral
2.
Strictly Personal act
a.
Acts which may not be left to the discretion of
third persons (Articles 785 AND 787):
i.
Duration or efficacy of the designation of
heirs, devisees or legatees;
Adviser: Dean Cynthia del Castillo Head: Joy Ponsaran, Eleanor Mateo; Understudy:
Joy Tajan, John Paul Lim;
Subject Head: Polaris Rivas;
Civil Law Summer Reviewer

ii.
Determination of the portions which they
are to take, when referred to by name;
and
iii.
Determination of whether or not the
testamentary disposition is to be
operative
b.
Acts which may be entrusted to third persons
(Article 787);
i.
Distribution of specific property or sums
of money that he may leave in general to
specified classes or causes; and
ii.
Designation of the persons, institutions or
establishments to which such property or
sums are to be given or applied.
3.
Free and voluntary act
4.
Formal and solemn act
5.
Act mortis causa
6.
Ambulatory and revocable during the testator s
lifetime
7.
Individual act
INTERPRETATION OF WILLS
1.
Animus Testandi - The testator s intent (animus
testandi), as well as giving effect to such intent is
primordial. EXCEPT: when the intention of the
testator is contrary to law, morals or public policy.
2.
In case of doubt, the interpretation by which the
disposition is to be operative or will sustain and
uphold the will in all its parts shall be adopted,
provided that it can be done consistently with the
established rules of law.
3.
Ambiguities in Wills Intrinsic or extrinsic
evidence may be used to ascertain the testatorial
intent of the testator. EXCEPT: the oral
declarations of the testator as to his intentions
must be excluded because such testimony would
be hearsay.
4.
After Acquired Property - Property acquired
during the period between the execution of the
will and the death of the testator is NOT included
among the property disposed of. EXCEPT: When

a contrary intention expressly appears on the will.
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NOTE: This rule applies only to legacies and
devisees and not to institution of heirs
TESTAMENTARY CAPACITY
1.
All persons who are not expressly prohibited by
law
2.
18 years old and above
3.
Of sound mind, at the time of its execution; A
testator is considered of sound mind if he knows
at the time of making of the will the following:
a.
Nature of the estate to be disposed of
b.
Proper objects of his bounty
c.
Character of the testamentary act
Supervening capacity or incapacity does not
affect the will because the validity of a will is
determined at the time of the execution of the
will.
LEGAL PRESUMPTION IN FAVOR OF
SOUNDNESS OF MIND
GENERAL RULE: The law presumes that the
testator is of sound mind
EXCEPT:
a. When the testator, one month or less, before
making his will was publicly known to be
insane; or
b. Was under guardianship at the time of the
making of his will. (Torres and Lopez de
Bueno vs. Lopez, 48 Phil. 772)
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CHAPTER 3: FORMS OF WILL
1.
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NOTARIAL WILL
a valid notarial will:
a.
Must be in writing and in a language or
dialect known to the testator
b.
Subscribed at the end by the testator himself

or by the testator s name written by some
other person in his presence, and by his
express direction
c.
Attested & subscribed by three or more
credible witnesses in the presence of the
testator and of one another
Mandatory Part: The signing on every
page in the witnesses presence
NOTE: Test of presence is not whether
they actually saw each other sign, but
whether they might have seen each other
sign had they chosen to do so
considering their mental and physical
condition and position with relation to
each other at the moment of inscription
of each signature.
Directory Part: The place of the
signature, i.e. the left margin; the
signature can be affixed anywhere on the
page.
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d.
Each and every page, except the last, must be
signed by the testator or by the person requested
by him to write his name, and by the instrumental
witnesses of the will, on the left margin.
Signatures on the left margin on each and every
page NOT REQUIRED:
i.
In the last page, when the will consists of two
or more pages;
ii.
When the will consists of only one page;
iii.
When the will consists of two pages, the first
consists of all the testamentary disposition
and is signed at the bottom by the testator
and the witnesses and the second contains
only the attestation clause duly signed at the
bottom by the witnesses.
e.
Each and every page of the will must be
numbered correlatively in letters placed on the
upper part of each page.
Mandatory Part: Pagination by means of a
conventional system.
Directory Part: The pagination in letters on
the upper part of each page
f.
It must contain an attestation clause, stating the
following:
a.
The number of pages used upon which the
will is written
b.
The fact that the testator signed the will and
every page, or caused some other person to
write his name, under his express direction,
in the presence of the instrumental witnesses
c.
All the instrumental witnesses witnessed and
signed the will and all its pages in the
presence of the testator and of one another
g.
It must be acknowledged before a notary public
by the testator and the witnesses
ATTESTATION v. SUBSCRIPTION
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Attestation
An act of witnessing execution of
will by testator in order to see and take note

mentally those things are done which the
statute requires for the execution of a will and
that the signature of the testator exists as a
fact.
The attestation clause need not be written in
a language or dialect known to the testator
nor to the witnesses since it does not form
part of the testamentary disposition
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The attestation clause need only be signed
by the witnesses and not by the testator as it
is a declaration made by the witnesses.
Icasiano vs. Icasiano, II SCRA 422
the
inadvertent failure of one witness to affix his
signature to one page of the original will due to
the simultaneous lifting of two pages in the
course of signing is not per se sufficient to
justify denial of probate when the duplicate will
shows
Cruz v. Villasor, 54 SCRA 31-the notary
public cannot be counted as one of the attesting
witnesses
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Subscription -The manual act of instrumental
witnesses in affixing their signature to the
instrument.
ATTESTATION SUBSCRIPTION
1. act of the senses 1. act of the hand
2. mental act 2. mechanical act
3. Purpose is to render
available proof during the
probate that such will had
been executed in
accordance with the
formalities prescribed by
law
3. Purpose is for
identification
4. Found after the
attestation clause at the
end or last page of the will
4. Found at the left side
margin of every page of
the will
ADDITIONAL REQUISITES FOR VALIDITY
a.
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the Testator be Deaf or Deaf-Mute: If
i.
Testator must personally read the will, if
able to do so;
ii.
Otherwise, he shall designate two
persons to read it and communicate to
him, in some practicable manner, its
contents (Art 807)
b. If the Testator be Blind: The will shall be read
to the testator twice i.
Once by one of the subscribing
witnesses
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ii.
Once by the notary public before whom
the will is acknowledged (Art 808)
NOTE: Articles 807 and 808 are
mandatory, failure to comply with either
would result in nullity and denial of
probate.
2.
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HOLOGRAPHIC WILL
a holographic will is
valid if it is:
a.
In writing and in a language or dialect known
to the testator
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b.
Entirely written, dated, and signed by the
hand of the testator himself
c.
Dispositions of the testator written below his
signature must be dated and signed by him
in order to validate the testamentary
dispositions. (Art 812)
EXCEPT: In case of dispositions
appearing in a holographic will which are
signed without being dated, where the last
disposition has a signature and a date,
such date validates the dispositions
preceding it, whatever be the time of prior
dispositions
A holographic will is subject to no other
form, and may be made in or out of the
Philippines, and need not be witnessed.
(Art 810)
PROBATE OF HOLOGRAPHIC WILL
a.
There must be at least one witness.
EXCEPTION: If the will is contested, at
least three of such witnesses shall be
required (merely directory). In the absence
of such competent witness and if the court
deems it necessary, expert testimony may be
resorted to.
b.
who knows the handwriting and signature of
the testator
c.
must explicitly declare that the will and the
signature are in the handwriting of the
testator. (Art 811)
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NOTETIFF (Uncompressed) decompressor: This article applies only to post
mortem probates and not to ante mortem
probates since in such cases the testator
himself files the petition and will identify the
document himself.
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INSERTION, CANCELLATION, ERASURE OR
ALTERATION IN A HOLOGRAPHIC WILL
a. If made after the execution of the will, but
without the consent of the testator, such
insertion is considered as not written
because the validity of the will cannot be
defeated by the malice or caprice of a third
person
b. If the insertion after the execution of the will
was with the consent of the testator, the will
remains valid but the insertion is void.
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c. If the insertion after the execution is validated
by the testator by his signature thereon, then
the insertion becomes part of the will, and the
entire will becomes void, because of failure
to comply with the requirement that it must
be wholly written by the testator
d. If the insertion made by a third person is
made contemporaneous to the execution of
the will, then the will is void because it is not
written entirely by the testator
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WHO MAY BE A WITNESS TO A WILL
Any
person may be a witness provided he is:
a.
Of sound mind
b.
Of the age of 18 years or more
c.
Not blind, deaf or dumb
d.
Able to read and write

e.
Domiciled in the Philippines
f.
Have not been convicted of falsification of a
document, perjury or false testimony
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CHAPTER 4: LAWS GOVERNING VALIDITY OF A
WILL
1.
FORMAL VALIDITY
a.
If the testator is a Filipino and the will is
executed in the Philippines then its formal
validity is governed by the CC of the
Philippines
Gan v, Yap, 104 Phil 509
in the probate of a
holographic will, the document itself must be
produced; a lost holographic will cannot be
probated. Exception: When copy of the will is
produced
b.
If the testator is a Filipino and the will is
executed in a foreign country, then its formal
validity is governed either:
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i.
By the law of the place where the will are also dated and signed, and everything
is
was made written by the hand of the testator himself
ii.
By the CC of the Philippines b. Certain dispositions or additional matter may
be suppressed or inserted PROVIDED that
said cancellation is signed by the testator
c.
If the testator is a foreigner and the will is and written by the hand of the te
stator
executed in the Philippines, then its formal himself
validity is governed either: c. Through a codicil which may either be
i.
By the CC of the Philippines notarial or holographic
ii.
By the law of his own country
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ELEMENTS OF A CODICIL
d.
If the testator is a foreigner and the will is
executed in a foreign country, then its formal 1. It is a
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supplementary or addition to a will
validity is governed either: 2. made after the execution of the will
i.
By the law of the place where the will 3. and annexed to be taken as a part ther
eof
was made 4. by which any disposition in the original will may
ii.
By the law of his own country be explained, added to or altered
iii.
By the law of the country where he
resides
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REQUISITES FOR INCORPORATION BY
iv.
By the CC of the Philippines REFERENCE
2.
SUBSTANTIVE VALIDITY 1. the document or paper referred to in the will must
be in existence at the time of the execution of the
ASPECTS OF THE WILL GOVERNED BY
will
NATIONAL LAW OF THE DECEDENT: 2.
the will must clearly describe and identify the
same, stating among other things the number of
a.
Order of succession pages thereof
b.
Capacity to succeed 3. it must be identified by clear and satisfactory
c.
Amount of successional rights proof as the document or paper referred to
d.
Intrinsic validity (Art 16) therein
4.
it must be signed by the testator and the
witnesses on each and every page, except in
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VALIDITY OF JOINT WILLS
case of voluminous books of account or
inventories
Two or more persons cannot make a will jointly,
or in the same instrument, either for their
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REVOCATION OF WILLS
reciprocal benefit or for the benefit of a third
person. (669)
1.
By operation of law
instances of revocation by
NOTE: Joint wills executed by Filipinos in a

operation of law:
foreign country shall not be valid in the
a.
decree of legal separation
Philippines, even though authorized by the laws
b.
preterition
of the country where they may have been
c.
legacy or credit against third person or
executed.
remission of debt was provided in will and
subsequently, testator brings action against
debtor

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CHAPTER 5: AMENDMENTMENT, REVOCATION
d.
substantial transformation of specific thing
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AND REPUBLICATION OF WILLS
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e.
when heir, devisee or legatee commits any of
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AMENDMENT OF WILLS
the acts of unworthiness
1.
Notarial only through a codicil
2.
By the execution of a will, codicil or other writing
executed as provided in case of wills
2.
Holographic
in three ways
a.
EXPRESS When there is a revocatory
a.
Dispositions may be added below the
clause expressly revoking the previous will or
signature, PROVIDED that said dispositions
a part thereof
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b.
IMPLIED
When the provisions thereof are a. The cause must be concrete, factual a
nd not
partially or entirely inconsistent with those of purely subjective
the previous wills b. It must be false
c.
The testator must not know of its falsity
3.
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By burning, tearing, canceling, or obliterating the
will with the intention of revoking it, by the
testator himself, or by some other person in his
presence, and by his express direction.
REQUISITES:
a.
Testamentary capacity at the time of
performing the act of destruction;
b.
Intent to revoke (animus revocandi);
c.
Actual physical act of destruction;
d.
Completion of the subjective phase; AND
e.
Performed by the testator himself or by some
other person in his presence and express
direction
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LAWS WHICH GOVERN REVOCATION
1.
If the revocation takes place in the Philippines
whether the testator is domiciled in the
Philippines or not,
a.
Laws of the Philippines
2.
If the revocation takes place outside the
Philippines, by a testator who is domiciled in the
Philippines,
a.
Laws of the Philippines
3.
Revocation done outside the Philippines by a
testator who is not domiciled in this country,
a.
Laws of the place where the will was made;
or
b.
Laws of the place in which the testator had
his domicile at the time of the revocation.

Art. 832 A revocation made in a subsequent
will shall take effect, even if the new will should
become inoperative by reason of the incapacity
of the heirs, devisees or legatees designated
therein, or by their renunciation.
EXCEPTION: Molo v. Molo, (90 Phil 37),
When the testator provides in the subsequent
will that the revocation of the prior one is
dependent on the capacity or acceptance of
the heirs, devisees, or legatees instituted in the
subsequent will (dependant relative
revocation)
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REVOCATION BASED ON A FALSE OR ILLEGAL
CAUSE
Revocation based on a false or illegal cause is
null and void. REQUISITES:
d.
It must appear from the will that the testator
is revoking because of the cause which is
false.
Art. 834. The recognition of an illegitimate child
does not lose its legal effect, even though the
will wherein it was made should be revoked.
Art. 837. If after making a will, the testator
makes a second will expressly revoking the first,
the revocation of the second will does not revive
the first will, which can be revived only by
another will or codicil.
FACTS DEMONSTRATING ART 837
In 1985, X executed Will 1
In 1987, X executed Will 2, expressly revoking
Will 1
In 1990, X executed Will 3, revoking Will 1
CONCLUSION ON THE FACTS
The Revocation of Will 2 by Will 3 does not revive
Will 1
This demonstrates the theory of instant
revocation because the revocatory effect of the
second will is immediate upon the first will
NOTE: This article only applies where the
revocation of the first will by the second will is
express.
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REPUBLICATION AND REVIVAL OF WILLS
If the testator wishes to republish a will that is
void as to form, the only way to republish it is to
execute a subsequent will and reproduce it
The testator need only execute a subsequent will
or codicil referring to the previous will if the
testator wishes to republish a will that is either:
a.
Void for reason other than a formal defect
b.
Previously revoked
REPUBLICATION REVIVAL
Takes place by an act of
the testator
Takes place by
operation of law
Corrects extrinsic and
extrinsic defects
Restores a revoked will
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CHAPTER 6: ALLOWANCE AND DISALLOWANCE
OF WILLS
1. PROBATE OF A WILL
a.
A special proceeding required for the purpose of
establishing the validity of the will.
b.
Probate of a will is mandatory
c.
The probate court can only inquire into the
extrinsic validity of testamentary provisions,
which include the following:
i.
That the testator was of sound and disposing
mind
ii.
That his consent was not vitiated
iii.
That the will was signed by the required
number of witness
iv.
That the will is genuine
EXCEPTION: Nuguid v. Nuguid, 17 SCRA
449, the probate court may pass upon the
intrinsic validity of the will when its probate
might become an idle ceremony if on the will s
face it appears to be intrinsically void.
KINDS OF PROBATE
1.
Post-Mortem after the testator s death
2.
Ante-Mortem during his lifetime
FINAL DECREE OF PROBATE
Once a decree of probate becomes final in
accordance with the rules of procedure it
becomes Res Judicata
It is conclusive as to the due execution of the will
(extrinsic validity only)
2.
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DISALLOWANCE OF WILL -grounds for
disallowance of a will:
a.
If the formalities required by law have not
been complied with;
b. If the testator
was insane, or otherwise
mentally incapable of making a will, at the
time of its execution;
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c.
If it was executed through force or under
duress, or the influence of fear, or threats;
d.
If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
e.
If the signature of the testator was procured
by fraud;
f.
If the testator acted by mistake or did not
intend that the instrument should be his will
at the time of affixing his signature
thereto.(Art 839)
REVOCATION DISALLOWANCE
Voluntary act of the
testator
Given by judicial decree
With or without cause Always for a legal cause
May be partial or total Always total EXCEPT
when the ground of fraud
or influence for example
affects only certain
portions of the will
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CHAPTER 7: INSTITUTION OF HEIRS
INSTITUTION OF HEIR
1.
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act by virtue of which a testatorIt is an
designates in his will
2.
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person or persons who are to succeed him in the
his property and transmissible
3.
rights and obligations

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REQUISITES FOR A VALID INSTITUTION OF HEIR
1.
Designation in will of person/s to succeed
a.
Directory -designation of name and
surname
b.
Mandatory
identity of the heir must be
established, otherwise void disposition,
unless his identity becomes certain.
NOTE: If there is ambiguity in the
designation, the designation must be
resolved by discerning the testator s intent. If
the ambiguity cannot be resolved, intestacy
to that portion results.
2.
Will specifically assigns to such person an
inchoate share in the estate.
3.
The person so named has capacity to succeed
4.
The will is formally valid
5.
No vice of consent is present
6.
No preterition results from the effect of such will
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THREE PRINCIPLES IN THE INSTITUTION OF
HEIRS
1.
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Equality heirs who are instituted without a
designation of shares inherit in equal parts
2.
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Individuality
heirs collectively instituted are
deemed individually named unless a contrary
intent is proven
3.
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Simultaneity when several heirs are instituted,
they are instituted simultaneously and not
successively
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RULES ON A PERSON S RIGHT TO DISPOSE OF

HIS ESTATE
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1.
If one has no compulsory heirs:
a.
He can give his estate to any person
qualified to inherit under him
b.
However, he must respect restrictions
imposed by special laws
2.
If one has compulsory heirs:
a.
He can give only the disposable portion to
strangers
b.
Legitimes of compulsory heirs must be
respected
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REQUISITES FOR THE ANNULMENT OF
INSTITUTION OF HEIRS:
1.
Cause of institution of the heirs must be stated in
will
2.
Cause must be shown to be false
3.
It appears from the face of the will that the
testator would not have made the institution had
he known the falsity of the cause.
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RULES ON INSTITUTION OF ALIQUOT SHARE
LESS THAN OR IN EXCESS OF THE WHOLE
ESTATE:
1.
Intestacy Results if
a.
the heir institutes an aliquot portion of the
estate
b.
to only one heir If the heir institutes several
heirs to an aliquot part of the
2. Each heir s share shall be proportionally increased:
a.
There are more than one instituted heir
b.
The testator intended the heirs to inherit the
whole estate
c.
The aliquot parts of each share do not cover
the whole inheritance
3.
Each heir s share shall be proportionally
decreased:
a.
There are more than one instituted heir
b.
The testator intended the heirs to inherit the
whole estate
c.
The aliquot parts of each share exceed the
whole inheritance
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PRETERITION
1.
There must be an omission of one, some or all of
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the heir/s in the will
2.
The omission must be that of a COMPULSORY
HEIR
3.
Compulsory heir omitted must be of the DIRECT
LINE
4.
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
5.
The omission must be complete and total
in character. : There is no omission if
a.
A devise or legacy has been given to the heir
b.
A donation inter vivos has been previously
given to the heir
c.
Anything is left from the inheritance which the
heir may get by way of intestacy
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EFFECTS OF PRETERITION:
1.
The institution of heir is annulled

2.
Devises and legacies shall remain valid as long
as they are not inofficious
3.
If the omitted compulsory heir should die before
the testator, the institution shall be effectual,
without prejudice to the right of representation
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DISTINGUISH PRETERITION FROM
DISINHERITANCE
PRETERITION
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DISINHERITANCE
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Deprivation of a
compulsory heir of his
legitime is tacit
Deprivation of the
compulsory of his legitime
is express
May be voluntary but
the law presumes that it
is involuntary
Always voluntary
Law presumes that
there has been merely
an oversight or mistake
on the part of the
testator
Done with a legal cause
Omitted heir gets not If disinheritance is
only his legitime but also unlawful, compulsory heir
his share in the free is merely restored to his
portion not disposed of legitime
by way of legacies or
devises
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CHAPTER 8: SUBSTITUTION OF HEIRS
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CLASSES OF SUBSTITUTION:
1.
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Vulgar or Simple
the testator may designate
one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should:
a.
die before him (PREDECEASE)
b.
should not wish, (RENOUNCE) or
c.
should be incapacitated to accept the
inheritance (INCAPACITATED)
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2.
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Brief or Compendious
two or more persons
may be substituted for one; and one person for
two or more heirs
3.
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Reciprocal
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heirs instituted in unequal shares
if
should be reciprocally substituted, the substitute
shall acquire the share of the heir who dies,
renounces, or incapacitated, unless it clearly
appears that the intention of the testator was
otherwise. If there are more than one substitute,
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they shall have the same share in the substitution
as in the institution
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4.
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Fideicommissary Substitution
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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
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REQUISITES FOR A FIDEICOMMISSARY
SUBSTITUTION:
1.
A fiduciary or first heir instituted entrusted with
the obligation to preserve and to transmit to a
fideicommissary substitute or second heir the
whole or part of the inheritance
2.
Such substitution must not go beyond one
degree from the heir originally instituted
3.
The fiduciary or first heir and the second heir are
living at the time of the death of the testator
4.
The fideicommissary substitution must be
expressly made
5.
The fideicommissary substitution is imposed on
the free portion of the estate and never on the
legitime
NOTE: Pending the transmission of the property,
the fiduciary is entitled to all the rights of a
usufructuary although the fideicommissary is
entitled to all the rights of a naked owner.
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CHAPTER 9: CONDITIONAL TESTAMENTARY
DISPOSITIONS AND DISPOSITIONS WITH A

TERM
TESTAMENTARY DISPOSITIONS
1.
Condition
future or uncertain event, or a past
event unknown to the parties, upon which the
performance of an obligation depends
2.
Term the day or time when an obligation either
becomes demandable or terminates
3.
Modal Institution
the statement of the
institution; application of the property left by the
testator or the charge imposed on him
4.
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Disposicion Captatoria condition that the heir
shall make some provision in his will of the
testator or of any other person (prohibited
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because it will make the making of the will a
contractual act)
5.
Causal Condition
condition us casual if it
depends upon chance and/or upon the will of a
third person
6.
Mixed Condition - It is mixed if it depends both
partly upon the will of the heir himself and upon
chance and/or the will of a third person
7.
Potestative Condition
one the fulfillment of
which depends purely on heir
8.
Suspensive term one that merely suspends
the demandability of a right. It is sure to happen
9.
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Caucion Muciana bond or security that should
be given in favor of those who would get the
property if the condition not be complied with
INTERPRETATION
When in doubt whether there is a condition or
merely a mode, consider the same as mode
When in doubt as to whether there is a mode or

merely a suggestion, consider same only as a
suggestion
The condition suspends but does not obligate,
the mode obligates but does not suspends (for he
who inherits with a mode is already an heir; one
who inherits conditionally is not yet an heir.)
RULES ON POTESTATIVE, CASUAL AND MIXED
CONDITIONS
1.
POTESTATIVE
Positive Potestative Condition:
General Rule
must be fulfilled as soon as the
heir learns of the testator s death
EXCEPTION
a.
the condition was already complied with at
the time the heir learns of the testator s death
b.
the condition is of such nature that it cannot
be fulfilled again
Negative Potestative Condition:
Heir must give security to guarantee the return of
the value of property, fruits, and interests, in
cases of contravention
2.
CASUAL OR MIXED
Positive
GENERAL RULE
may be fulfilled at any other
time (before testator s death), unless testator
provides otherwise.
If ALREADY FULFILLED at the time of
execution of the will
a.
If testator unaware of fact of fulfillmentdeemed fulfilled
b.
If testator aware thereof
i.
If it can no longer be fulfilled again
deemed fulfilled
ii.
If it can be fulfilled again
fulfilled again
Constructive Compliance
a.
if casual
not applicable
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must be

b.
if mixed
i.
If dependent partly on chance
not
applicable
ii.
If dependent partly on will of third party
1.
if 3rd party interested
applicable
2.
if 3rd party not interested
not
applicable
EFFECTS OF SUSPENSIVE CONDITION OR TERM
The estate shall be placed under administration
until
1.
condition is fulfilled
2.
until it becomes certain condition will never be
fulfilled
3.
until arrival of the term
CONDITIONS PROHIBITING MARRIAGE
1.
If a first marriage is prohibited
condition
considered always as not imposed
2.
If a subsequent marriage is prohibited as
imposed by the deceased spouse or by his/her
ascendants or descendants - valid
3.
if a subsequent marriage is prohibited and
imposed by anyone else- considered not written
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CHAPTER 10: LEGITIMES
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The portion of the decedent s estate reserved by
law is called the legitime.
The heirs for whom the law reserves such portion
are called compulsory heirs.
CLASSES OF COMPULSORY HEIRS
1.
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Primary
those who have precedence over and
exclude other compulsory heirs
Legitimate children and descendants
(legitimate), with respect to their legitimate
parents and ascendants
2.
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Secondary
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those who succeed only in the
absence of the primary heirs
Legitimate parents and ascendants
(legitimate), with respect to their legitimate
children and descendants
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3.
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Concurring those who succeed together with
the primary or the secondary compulsory heirs
Widow or widower (legitimate)
the surviving
spouse referred to is the spouse of the
decedent.
NOTE:
a.
Mere estrangement is not a ground for
the disqualification of the surviving
spouse as heir
b.
Effect of decree of legal separation:
i.
On the offending spouse
disqualified
ii.
On the innocent spouse no effect
c.
Death of either spouse during the
pendency of a petition for legal
separation dismissal of the case
Illegitimate children and descendants

(legitimate or illegitimate)
Testator is a Legitimate
Person
Testator is an
Illegitimate Person
Legitimate children and
descendant
Legitimate children and
descendants
In default of the
foregoing, legitimate
parents and ascendants
Illegitimate parents and
ascendants
Surviving spouse In default of the
foregoing, illegitimate
parents only
Illegitimate children and
descendant
Surviving spouse
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GENERAL RULES IN ASCERTAINING LEGITIMES
1.
Direct descending line
a.
Rule of preference between lines
b.
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Rule of proximity
c.
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Right of representation ad infinitum in case of
predecease, incapacity or disinheritance
2.
Direct ascending line
a.
Rule of division by line
b.
Rule of equal division
3.
Non-impairment of legitime - Any compulsory
heir who was given title less than his legitime
may demand that the same be completed (Art
906)
EXCEPTIONS:
a.
If the predecessor gave the compulsory heir
a donation inter vivos and provided that it
was not charged against the legitime (Art
1062)
b.
Testamentary dispositions made by the
predecessor to the compulsory heir, unless
the testator provides that it should be
considered part of the legitime.
SHARES OF COMPULSORY HEIRS
1.
Legitimate Children or Descendants Share of legitimate children
and descendants
of the net estate
Free portion of the net estate
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2. Legitimate Parents and Ascendants
Share of legitimate parents
and ascendants
of the net estate
Free portion of the estate of the net estate
Surviving spouse Equal to the portion of the
legitime of each legitimate
child
Illegitimate children of the share of each
legitimate child
Free portion Whatever remains
3. One legitimate child or descendant; Surviving
spouse;
4. Illegitimate children, legitimate children;
Share of a legitimate child of the net estate
Share of the surviving spouse of the net estate
Free disposable portion of the estate
Share of children and of the net estate
descendants
Share of each illegitimate
children
of the legitime of each
legitimate children or
ascendant
Free portion Whatever remains
5. Two or more legitimate children or descendant;
surviving spouse
Share of legitimate children of the net estate
Share of the surviving
spouse
Portion equal to the legitime
of each of the legitimate
children or descendant
Free disposable portion Whatever remains
6. Legitimate parents or ascendants; Surviving
spouse
ascendants
or of the net estate
Share of the surviving spouse of the free portion
Free disposable portion of the estate
7. Illegitimate children, surviving spouse
Share of illegitimate children 1/3 of the net estate
Share of surviving spouse 1/3 of the net estate
Free portion 1/3 of the net estate
8. Legitimate parents or ascendants; Illegitimate
children
QuicShare of legitimate parents
and ascendants kTime and a
of the net estate

TIFF (UncompreIllegitimate children ss ed) decompressor of the net estate
Free portion of the estate
9. Surviving spouse; Legitimate children and
descendant; Illegitimate children
Share of legitimate children
and descendants
of the net estate
10. Surviving spouse; Legitimate parents or
ascendants; Illegitimate children
and ascendants
of the net estate
Surviving spouse 1/8 of the estate
Illegitimate children of the estate
Free portion 1/8 of the estate
11. Surviving spouse only; Exception: Marriage in
articulo mortis
Surviving spouse only of the net estate
Surviving spouse only
(marriage in articulo mortis)
1/3 of the net estate
Free portion 2/3 of the estate
12. Illegitimate children only.
Share of illegitimate children of the net estate
13. Illegitimate parents only;
With illegitimate and
legitimate children or descendant; With surviving
spouse.
Share of illegitimate parents
only
of the net estate
Share of illegitimate parents of the net estate
Share of the surviving of the estate
spouse
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STEPS IN DETERMINING THE LEGITIME OF
COMPULSORY HEIRS:
1.
Determination of the gross value of the estate at
the time of the death of the testator;
2.
Determination of all debts and charges which are
chargeable against the estate;
3.
Determination of the net value of the estate by

deducting all the debts and charged from the
gross value of the estate;
4.
Collation or addition of the value of all donations
inter vivos to the net value of the estate;
5.
Determination of the amount of the legitime from
the total thus found;
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6.
Imputation of all the value of all donations inter
vivos made to compulsory heirs against their
legitimes and of the value of all donations inter
vivos made to strangers against the disposable
free portion and restoration to the hereditary
estate if the donation is inofficious.
7.
If legitime is impaired, the following reductions
shall be made:
a.
First, reduce pro-rata non-preferred legacies
and devises, and the testamentary
dispositions.
b.
Second, reduce pro rata the preferred
legacies and devises
c.
Third, reduce the donations inter vivos
according to the inverse order of their dates
8.
Distribution of the residue of the estate in
accordance with the will of the testator.
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CHAPTER 11: RESERVA TRONCAL
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Reserva Troncal - The reservation by virtue of
which an ascendant who inherits from his
descendant any property which the latter may have
acquired by gratuitous title from another ascendant
or a brother or sister, is obliged to reserve the
property form the benefit of relative within the 3rd
degree and who belong from the same line from
which the property came from.
It constitutes as an exception to both the system
of legitime and the order of intestate succession.
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PURPOSE OF RESERVA TRONCAL:
1. To reserve certain properties in favor of certain
persons;
2. To
prevent person outside a family from
acquiring, by some chance or accident, property
which otherwise would have remained with the

said family;
3. To maintain a separation between paternal and
maternal lines.
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REQUISITES OF RESERVA TRONCAL
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1. The property should have been acquired by
operation of law by an
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ascendant
(
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RESERVISTA) from his descendant
(PROPOSITUS) upon the death of the latter.
NOTE: by operation of law is limited to
succession, either by legitime or intestacy
2. The
property should have been previously
acquired by gratuitous title by the propositus
from another ascendant or from a brother or
sister (ORIGINATOR).
NOTE: gratuitous encompasses transmissions by
donation and succession.
3. The propositus should have
died without any
legitimate issue in the direct descending line who
could inherit from him.
NOTE: Nieva v. Alcala, 41 Phil 495, all
relationships must be legitimate
PERSONAL ELEMENTS
1.
ORIGINATOR the ascendant, brother or sister
from whom the propositus had acquired the
property by gratuitous title
2.
PROPOSITUS The descendant who died and
from whose death the reservistas in turn had
acquired the property by operation of law. The so
called ARBITER OF THE FATE OF THE
RESERVA TRONCAL.
Note: Prepositus can terminate the reserva by:
a.
Substituting or alienating the property
b.
By bequeathing or devising it either to the
potential reservista or to other third person
c.
By partitioning it and assigning the property
to parties other than the reservista
3.
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RESERVISTA
The ascendant, not belonging to
the line from which the property came that is the
only compulsory heir and is obliged to reserve
the property.
4.
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RESERVATARIOS
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relative of the The
propositus within the 3rg degree and who belong
to the line from which the property came and for
whose benefit reservation is constituted. They
must be related by blood not only to the
propositus but also to the originator.
NOTE: The Civil Code did not provide for the
rules on how the reservatarios would
succeed to the reservista. However, the
following rules on intestacy have been
consistently applied:
a. Rule of preference between the lines
b. Rule of proximity
c.
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Right of representation
provided that the
representative is a relative within the 3rd
degree, and that he belongs to the line from
which the reservable property came
d.
full blood/double share rule in Article 1006
NOTE: Gonzales v. CFI, 104 Phil 479, the
reservista had no power to appoint, by will, which
reservatarios were to get the reserved property
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RIGHT OF THE RESERVATARIOS OVER THE
RESERVABLE PROPERTY
1.
Death of Propositus
qualified reservatario
merely acquire an inchoate right. The reservistas
own the property subject to the resolutory
condition
2.
Death of Reservista surviving reservatarios
acquire a perfect right.
RIGHT OF THE RESERVISTA OVER THE
RESERVABLE PROPERTY
1.
The right of the reservista over the reserved
property is one of ownership
2.
The ownership is subject to a resolutory condition
3.
the right of ownership is alienable
4.
The right of ownership is registrable
Reserva Maxima Rerserva Minima
Much of the potentially
reservable property as
possible must be demed
Every single property in
the Prepositus estate
must be deemed to
included in the part that
passes by operation of
law
pass, partly by will and
partly by operation of
law, in the same
proportion that the part
given by will bears to the
part not so given
Maximizes the scope of
reserva
Minima finds wider
acceptance here
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EXTINGUISHMENT OF RESERVA TRONCAL
1. The death of the Reservista
2. The death of the all the Reservatorios
3.
Renunciation by all Reservatorios, provided none
is born subsequently
4.
Total Fortuitous loss of the reserved property
5.
Confusion or merger of rights
6.
Prescription or adverse possession
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CHAPTER 12: DISINHERITANCE
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CAUSES OF VACANCY IN SUCCESSION

1.
Disinheritance - The testator creates it himself
2.
Repudiation - The heir does something
3.
Incapacity/Predecease - Something happens to
the heir
HOW VACANCIES ARE FILLED
1.
Substitution
2.
Representation
3.
Accretion
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DISINHERITANCE
1.
Heir is being deprived of his legitime.
2.
Only in cases of testate succession.
3.
Counterpart in intestate is unworthiness.
4.
Will containing disinheritance must be probated.
5.
Effect: Heir loses legitime.
6.
However, the disinherited heir can be
represented in the legitime.
a.
Only in the descending line, never in the
ascending
b.
In collateral line, only with respect to
nephews and nieces.
7.
In the free portion, SAI
8.
Even if validly disinherited, heir can still be validly

restored in the legitime by RECONCILIATION.
9.
Reconciliation
when in speaking terms again,
no particular form
10. In unworthiness, there must a pardon in writing to
remove incapacity to inherit. However, it does not
have to be in a will.
11. If grounds for disinheritance and unworthiness
are common, reconciliation does not erase the
fact that the heir is unworthy.
12. As long as there is reconciliation, it should be
considered to have revoked the inheritance as
well as the unworthiness.
13. Ineffective disinheritance v. Preterition
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REQUIREMENTS FOR VALID DISINHERITANCE
1.
Effected only through a valid will;
2.
For a cause expressly stated by law;
3.
Cause must be expressly state in the will itself;
4.
Cause must be certain and true;
5.
Unconditional;
6.
Total; AND
7.
The heir disinherited must be designated in such
a manner that there can be no doubt as to his
identity.
GROUNDS FOR DISINHERITANCE
Grounds for Disinheritance Common To All
Compulsory Heirs
1.
Attempt on the life of testator, spouse,
ascendant, descendant
a.
Conviction necessary
b.
In case of spouse, giving cause for legal
separation, no conviction needed
c.
Include both attempted and frustrated.
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d.
Attempt on life of relatives, may be Grounds for Disinheritance Only against
consummated. Descendant
2.
Accusation of a crime with penalty of six
years or more. 1. Maltreatment of testator
a.
Penalty imposable, not actually imposed. a. By word
slander, offensive language,
b.
Made by the heir in a proceeding as a insult, libel. May be spoken or written.
complainant or witness in a criminal case. b. By deed no need for violence,
c.
Found to be groundless, false. something which caused the testator to
d.
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Groundless court should make a positive be humiliated. Laying hands if not under
finding that the testator has not committed attempt on life.
the crime. It is then false. 2. Leading a disgraceful life (or dishonest)
e.
Chismis
not the one referred here, it is i.e., daughter living with a married ma
n,
outside criminal proceeding. estafadora, prostitutes, drug dealers, drug
3.
Induce testator to make/change the will. addict.
a.
Will purely personal 3. Commission of crime which carries with it the
b.
Vices of consent. penalty of civil interdiction
c.
It does not punish the result but the a. Descendant convicted of crime with civi
l
interference in the making/changing of the interdiction. Necessarily imposable,
not
will. actually imposed.
d.
Will + disinheritance (will making) b. Reclusion temporal, reclusion perpetua.
e.
Will + amended will + disinheritance (will
changing) Ground for Disinheritance Only against
4.
Support unjustifiably not given. Ascendants (Parents)
a.
Must prove obligation to give support
b.
Spouses: mutual obligation to give support 1. Abandonment by parents
c.
Reason must be unjustifiable a. Willfully left the children to fend for
themselves
Grounds for Disinheritance Common between b. Abdication of parental duties.
Ascendants and Descendants c. Only refers to abandoned child.
d.
Induced daughters to lead a disgraceful life
Adultery and Concubinage
with the spouse of also applicable to sons.
the testator
2. Attempt on the life of one parent against
another parent.
1.
It must be the heir who committed such liaison a. Parent v. parent
2.
With the legal spouse of the testator b. Even if parents are not married, it is
still a
3.
Not necessarily incestuous ground.
4.
Applicable to both legitimate and illegitimate c. No need for conviction. As lon
g as the heir
descendant can prove that there is an attempt.
d. They do not need to be spouses. However,
Grounds for Disinheritance Common Ascendant the testator must be a common child.
and Spouse (in addition to A, B)
Grounds for Disinheritance Only against spouse
Loss of parental authority
refers to legal spouses only, legally married to
each other
1.
Causes: Arts. 230, 231, 232 of the Family Code
2.
Ascendant of testator 1. Giving cause for legal separation
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3.
Spouse has given cause for loss of parental a. No need for previous conviction
authority. are needed to see this picture.
b. Prove infidelity if cause is contested
4.
No actual deprivation, but it must exist. It means c. No need to prove grounds u
nless contested
that the act is committed which may be a cause by the heir.
for loss of parental authority over their common d. Legal separation instituted
but not
children, EXCEPT for those enumerated in A. terminated, OK
5.
There are no common grounds between spouse e. If there is already a decree:
and descendants. i. Ground is conclusive
ii. But, there is a need to disinherit
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iii.
Effects: Guilty spouse is not entitled to
inherit.
f. See 10 causes under the Family Code.
2.
Support
refusal to give support to the children
a.
Offended the testator
b.
Common children of the testator and the
spouse
c.
Spouse refuses to give support to the child
d.
Parents share in support of their common
children. Refusal of the other spouse causes
damage to the other. (testator)
IMPERFECT DISINHERITANCE
Imperfect Disinheritance - Disinheritance which
does not have one or more of the essential
requisites for its validity.
EFFECTS OF IMPERFECT DISINHERITANCE
1.
If the testator had made disposition of the entire
estate; annulment of the testamentary disposition
only in so far as they prejudice the legitime of the
person disinherited; does not affect the
dispositions of the testator with respect to the
free portion
2.
If the testator did not dispose of the free portion;
compulsory heir given all that he is entitled to
receive as if the disinheritance has not been
made, without prejudice to lawful dispositions
made by the testator in favor of others
3.
Devisees, legacies and other testamentary
dispositions shall be valid to such extent as will
not impair the legitime
IMPERFECT
DISINHERITANCE
PRETERITION
Person disinherited may be
any compulsory heir
The person omitted must
be a compulsory heir in the
direct line
Always express Always implied
Always intentional May be intentional or
unintentional
Effect: partial annulment of
institution of heirs
Effect: total annulment of
institution of heirs
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REVOCATION OF DISINHERITANCE
1.
Reconciliation
2.
Subsequent institution of the disinherited heir
3.
Nullity of the will which contains the
disinheritance
NOTE: Where the ground for disinheritance is
also a ground for unworthiness to succeed, what
is the effect of a subsequent reconciliation upon
the heir s capacity to succeed?
1.
If disinheritance has been made: Rule on
reconciliation applies, the disinheritance
becomes ineffective
2.
If disinheritance has not been made: The rule on
reconciliation does not apply, the heir continues
to be incapacitated to succeed unless the testator
pardoned him under Art. 1033.
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CHAPTER 13: LEGACIES AND DEVICES
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PERSONS CHARGED WITH LEGACIES AND
DEVICES:
1.
2.
3.
4.
Compulsory heir;
Voluntary heir;
Legatee or devisee;
Estate.
If the will is silent as to who shall pay or deliver

the legacy/devise, there is a presumption that
such legacy or devise constitutes a charge
against the decedent s estate
Since legacies and devises are to be taken from
the disposable free portion of the estate, the
provisions on institution of heirs are generally
applicable to them
ORDER OF PAYMENT IN CASE ESTATE IS
INSUFFICIENT TO COVER ALL LEGACIES AND
DEVICES
1.
Remuneratory legacies or devises
2.
Legacies or devises declared by the testator to
be preferential
3.
Legacies for Support
4.
Legacies for Education
5.
Legacies or devises of a specific, determinate
thing which forms a part of the
6.
estate
7.
All others, pro-rata
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WHEN LEGACY/DEVISE CAN BE REVOKED BY
OPERATION OF LAW
1.
If the testator transform the thing bequeathed or
devised in such a manner that it does not retain
its form and denomination
2.
If the testator, by any title or for any cause,
alienates the thing bequeathed or devised or any
part thereof
3.
If the thing bequeathed or devised is totally lost
during the lifetime of the testator, or after his
death without the heir s fault
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4.
If the legacy is a credit against a third person or
the remission of a debt, and the testator,
subsequent to the making of the will brings an
action against such debtor for payment
VALIDITY AND EFFECT OF LEGACY/DEVISE
Please Refer to Succession Table 1
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GROUNDS FOR REVOCATION OF LEGACIES OR
DEVISES
1.
Testator transforms the thing bequeathed in such
a manner it does not retain either the form or the
denomination it had.
2.
The testator by any title or for any cause
alienates the thing bequeathed, or any part
thereof, it being understood that in the latter case
the legacy or devise shall be without only with
respect to the part alienated
EXCEPT: when the thing should again belong to
the testator after alienation.
3.
The thing bequeathed is totally lost during the
lifetime of the testator, or after his death without
the heirs fault;
4.
Other Causes: nullity of the will; noncompliance
with suspensive conditions affecting the
bequests; sale of the thing to pay the debts of the
deceased during the settlement of his estate.
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CHAPTER 14: GENERAL PROVISIONS ON LEGAL
OR INTESTATE SUCCESSION
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CAUSES OF INTESTATE SUCCESSION IN
GENERAL
1.
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In the absence of applicable valid will

a.
Annulment of institution of heirs.
b.
When will loses its validity.
c.
Testator did not make any will.
d.
Will not probated.
e.
Revocation. QuickTime and a
f.
Preterition
2.
In the absence of qualified heirs
a.
Ineffective disinheritance (a portion)
b.
Repudiation (one or all)
c.
Incapacity
d.
Disinheritance
e.
Institution subject to conditions
i. Suspensive condition did not happen
ii. Resolutory condition happens.
iii. Expiration of term or period of institution
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BASIC PRINCIPLES IN INTESTATE SUCCESSION
1.
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Intestate heirs always related by blood.
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Except:
a.
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Spouse - not related by blood, stranger in the
family
b.
Adoptive relation
adopter/adopted, fiction
by law created by adoption, purely personal
c.
State in the event no heir can inherit.
2.
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The nearer excludes the farther
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rule of (
proximity)
the relative nearest in degree
exclude the farther one.
3.
Direct line is always preferred over collateral
4.
Ascending line is always preferred over collateral
5.
Descending line is always preferred over
ascending and collateral lines.
6.
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Rule of equal division
the relatives who are
in the same degree shall inherit in equal shares
same class
Exception:
a. Descending line difference in class in the
cases of legitimate or illegitimate filiation.
i. In case of paternal/maternal lines
ii. Collateral half or full blood
b.
Ascending line the shares are divided
equally between maternal and paternal lines,
which could result to unequal shares when
there is only one grandparent in the maternal
line while both grandparents survived in the
paternal side.
NOTE: In all cases where there has been an
institution of heirs, follow the I.S.R.A.I. order of
Justice Paras.
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If the Institution fails, Substitution
occurs. If there is no substitute, right of
Representation applies in the direct descending line
to the legitime of the vacancy is caused by
predecease, incapacity or disinheritance. The right of
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Accretion applies to the free portion when the
requisites in Article 1016 are present. If there is no
substitute, and the right of representation or accretion
does not apply, the rule of Intestate succession shall
take over.
REPRESENTATION -Instances when
Representation Occurs:
1.
Predecease
2.
Incapacity of Unworthiness
3.
Disinheritance
NOTE: In case of repudiation, accretion takes
place.
Sayson v. CA, 205 SCRA 324, although a
renouncer cannot be represented, he can
represent the person whose inheritance he has
renounced.

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IN WHAT KINDS OF SUCCESSION
REPRESENTATION OPERATES
1.
Legitimes
The children and descendants of the person
disinherited shall take his or her place and shall
preserve the rights of compulsory heir with
respect to the legitime (Art 923)
And only when the heir to be represented:
a.
Predecease, becomes incapacitated, or was
disinherited by the testator.
b.
Is a compulsory heir.
c.
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No right of representation if the heir to be
represented is a voluntary heir.
2.
Intestate succession
Representation occurs in all intestate estate. All
legal heirs may be represented when proper. (It
is not proper only when the heir to be
represented repudiated his share in the
inheritance)
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IN WHAT LINES DOES REPRESENTATION
OBTAIN
1.
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Legitime
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direct descending line only. - in the
Representation does not exist in the ascending
line. Hence, the father cannot represent the son
in the inheritance from the grandfather.
2.
Intestacy:
a.
In the direct descending line.
b.
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collateral lineIn the , it takes place only in
favor of the children of brother or sisters
(nieces and nephews of the decedent, not
grand-nieces or grand-nephews).
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NOTE: If
all the brothers and sisters are disqualified,
the nephews and nieces shall inherit per
capita.
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REPRESENTATION OF ILLEGITIMATE OR
ADOPTED CHILDREN
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TIFF (Uncompressed) decompres
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sor
1.
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onlyIf the child to be represented is legitimate
legitimate children and descendants can
represent him.
2.
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illegitimate
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bothIf the child to be represented is
legitimate and illegitimate children/descendants
can represent him.
2.
An adopted child can neither represent nor be
represented
Teotica v. Del Val, 13 SCRA 406, the
rationale why an adopted child can neither
represent or be represented is because the
legal relationship created by the adoption is
strictly between the adopter and the adopted

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QUALIFICATIONS TO REPRESENT
1.
The representative himself must have capacity to
succeed the decedent
2.
The representative need not be qualified to
succeed the person represented.
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HOW REPRESENTATION OPERATES
Division shall be made PER STIRPES.
Factual Situation Division
If all the children are
disqualified
All grandchildren still
inherit per stirpes
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If all the brothers /sisters
are disqualified
Nephews and nieces
inherit per capita
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THE SUCCESSIONAL BARRIER
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illegitimate child has no right to inherit An ab
intestato from the legitimate children and
relatives of his father or mother; nor shall such
children or relatives inherit in the same manner
from the illegitimate child. (Art 992)
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Barrier ruleThe only applies if there is a
legitimate and illegitimate relation. Example: A is
the legitimate son of B. C is the illegitimate son of
A. C cannot inherit from B if A predeceases, or
becomes incapacitated or be disinherited by B.

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CHAPTER 15: ORDER OF INTESTATE
SUCCESSION
INTESTATE HEIRS
1.
Legitimate Children/Descendants
2.
Illegitimate Children/Descendants
3.
Legitimate Parents/ Ascendants
4.
Illegitimate Parents
5.
Surviving Spouse
5.
Brothers, Sisters, Nephews, Nieces
6.
to the 5th degree
Other Collaterals
7.
State
RULES OF EXCLUSION AND CONCURRENCE
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WHEN DECEDENT HAS NO HEIRS
d. But, it is okay to earmark parts of the free
1.
Assignment and Disposition of Assets
a.
if decedent is a resident of the Philippines at
any time
i.
Personal property
to the municipality of
last residence
ii.
Real property where situated
b.
If decedent was never a resident of the
Philippines
i.
Personal and real property where
respectfully situated
2.
How Property is to be Used
a.
For the benefit of public educational and
charitable institutions in the respective
municipalities/cities
b.
Alternatively, at the instance of an interested
party, or motu proprio, the court may order
the permanent trust for the benefit of the
institutions concerned
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CHAPTER 16: PROVISIONS COMMON TO
INTESTATE AND INTESTATE SUCCESSION
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RIGHT TO ACCRETION
1.
a.
b.
c.
d.
In Testamentary Succession
Predecease
Incapacity
Repudiation
Non-fulfillment of suspensive condition
imposed upon instituted heir
e.
Ineffective testamentary disposition
2. In Intestate Succession
a.
Predecease of a legal heir (only when
representation does not apply)
b.
Incapacity of legal heir (only when
representation does not apply)
c.
Repudiation by a legal heir
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ELEMENTS OF ACCRETION IN TESTAMENTARY
SUCCESSION
1.
Two or more persons are called to the same
inheritance, or to the same portion thereof, pro
QuickTime and a
indiviso (aliquot share)
a.
In cases of legacy or devise, as long as there
is no specific designation of the specific
share of each legacy or devise.
b.
Not necessarily equal.
c.
Once a certain specific part of the free
portion has already been specifically
earmarked, there is no accretion and there is
no express provision on accretion.
portion as long as no specific property has
been designated.
NOTE: The heir to whom the portion goes by
the right of accretion takes it in the same
proportion that they inherit
2.
Renunciation, predecease or incapacity of one
(or more but less than all) of the instituted heirs.
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FUNDAMENTAL PRINCIPLES IN ACCRETION
1.
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Accretion in testate succession only takes place in
the
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free portion. No accretion in the legitime
because when the compulsory heir repudiates his
legitime, the other co-compulsory heir inherits the
repudiated share in their own right and not
through accretion. If the cause of the vacancy is
PID, representation will occur.
2. Accretion also takes place in cases of devisees
and legatees and usufructuaries under the same
conditions established for heirs.
3. Accretion is subordinate to substitution, because
substitutes are instituted by the testator; hence,
express will prevails over presumed will.
NOTE: if there is neither accretion nor
substitution in testamentary succession, the part
left vacant will lapse into testacy
4.
The one that the heir gets from accretion can be
renounced separate from the inheritance
attributed to the heir who will renounced the
accrued inheritance.
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CAPACITY TO SUCCEED
The following are capable of succeeding:
1.
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Natural Persons
a.
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General Rule
must be living when
succession opens. NOTE: It is enough that
the heir, devisee or legatee be already
conceived in accordance with Arts 40 and 41,
to be considered living.
b.
If institution subject to a suspensive
condition
successor must be living both
when decedent dies and when the
condition happens
c.
If institution subject to a suspensive term
must be alive only at the moment of
decedent s death, successor need not be
alive when the term alives.
2.
Juridical Persons
a.
Organizations or associations which
possess juridical personality
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WHO ARE INCAPABLE OF SUCCEEDING
month, unless the authorities have already
taken action; this prohibition shall not apply
1.
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Those Prohibited under Art 1027 to cases wherein, according to law, there is
a.
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Priest who heard the confession of the no obligation to make an accusation;
testator during his last illness, or the minister e.
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Any person convicted of adultery or
of the gospel
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who extended spiritual aid to concubinage with the spouse of the testator;
him during the same period f. Any person who by fraud, violence,
b.
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Relatives of such priest or minister of the intimidation, or undue influence sho
uld cause
gospel within the 4th degree, the church, the testator to make a will or to chan
ge one
order, chapter, community, organization, or already made;
institution to which such priest or minister g. Any person who by the same means
may belong prevents another from making a will, or from
c.
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Guardian with respect to testamentary revoking one already made, or who
dispositions given by a ward in his favor supplants, conceals, or alters the lat
ter's will;
before the final accounts of the guardianship h.
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Any person who falsifies or forges a
have been approved, even if the testator supposed will of the decedent. (756, 67
3,
should die after the approval thereof; 674a)
EXCEPT if the guardian is his ascendant,
descendant, brother, sister, or spouse
NOTE: The cause of unworthiness shall be
d.
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Attesting witness to execution of will, their without effect if the testator had
knowledge
spouses, parents, children or any one thereof at the time he made the will, or i
f,
claiming under such witness, spouse, having known of them subsequently, he
parents or children should condone them in writing. (757a)
e.
Physician, surgeon, nurse, health officer or
druggist
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who took care of the testator during
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ADDITIONAL NOTES
his last illness
f.
Individuals, associations, and corporations 1. The capacity to succeed is govern
ed by the law
not permitted by law to inherit of the nation of the decedent.
2.
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Those prohibited under Art 739 from giving and 2. Persons not incapacitated by l
aw may succeed
receiving donation from each other. by will or ab intestato.
a.
Those made between persons who were 3. If the heir excluded from the inheritance
by
guilty of adultery or concubinage at the time reason of incapacity is a compulso
ry heir, and if
of the donation; such compulsory heir has children or
b.
Those made between persons found guilty of descendant, the latter shall acquire
the
the same criminal offense, in consideration incapacitated heir s right to the legi
time (by
thereof; representation.).
c.
Those made to a public officer or his wife, 4. A testamentary provision in favor
of a disqualified
descedants and ascendants, by reason of his person, even though made under the g
uise of an
office. onerous contract, or made through an
3.
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The following are incapable of succeeding by intermediary, shall be void. (755)
reason of unworthiness:
a.
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Parents who have abandoned their children
or induced their daughters to lead a corrupt
or immoral life, or attempted against their
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ACCEPTANCE OF INHERITANCE
Two kinds:
virtue;
b.
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Any person who has been convicted of an 1. Express
QuickTime and a
attempt against the life of the testator, his or a. Public Document
her spouse, descendants, or ascendants;
b. Private Writing
2.
Tacit Acceptance
c.
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Any person who has accused the testator of a. When heir sells, donates, or assig
ns his right.
a crime for which the law prescribes b. When heir renounces it for the benefit o
f one
imprisonment for six years or more, if the or more heirs.
accusation has been found groundless;
c. When renunciation is in favor of all heirs
d.
Any heir of full age who, having knowledge of indiscriminately for consideration
the violent death of the testator, should fail to d. Other acts of tacit accepta
nce:
report it to an officer of the law within a i. Heir demands partition of the inh
eritance
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ii.
Heir alienates some objects of the
inheritance
iii.
Under Article 1057, failure to signify
acceptance or repudiation within 30 days
after an order of distribution by the
probate court.
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CHARACTERISTICS OF REPUDIATION
1.
Free and Voluntary Act
2.
Irrevocable once made and cannot be impugned,
except in cases vitiating consent.
3.
Retroactive
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REQUISITES FOR A VALID REPUDIATION
1.
Heir repudiating must be certain of two things
before repudiating:
a.
Death of the person from whom he is to
inherit;
b.
Right to the inheritance.
2.
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Who may repudiate?
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Any person having the
free disposal of his property.
3.
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The repudiation of How is repudiation made?
the inheritance shall be made in a public or
authentic instrument, or by a petition
presented to the court having jurisdiction over the
testamentary or intestate proceedings.
a.
If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may

petition the court to authorize them to accept
it in the name of the heir.
b.
If an heir is both a testate and legal heir,
repudiation of the inheritance as a testate
heir, he is understood to have repudiated in
both capacities. However, should he
repudiate as a legal heir, without knowledge
of being a testate heir, he may still accept the
inheritance as a legal heir.
NOTES: If renounced in favor of other heirs,
does it mean acceptance? It depends:
a.
If specific heir
whether or not renouncing
heir receives anything, considered as
acceptance on the part of the heir. There are
QuickTime and a
two transfers.
b.
If gratuitous
i.
In favor of all his co heirs indiscriminately
-there is repudiation because heir
deemed to have not accepted. Hence,
accretion takes place.
ii.
In favor of all co-heirs but in proportion
different from those they would receive
by accretion: considered as tacit
acceptance.
iii.
If gratuitous in favor of one or some of
his co-heirs deemed conveyance in
favor of the co-heirs specified, hence
there is acceptance.
c.
If onerously:
There is no repudiation
Transfer considered to be with
consideration
There are also tax implications because
there are two transfers.
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COLLATION
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Collation
is the act by virtue of which,
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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 and the will of the testator.
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To collate is to
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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 advance from the inheritance.
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PROPERTIES OR RIGHTS RECEIVED BY
COMPULSORY HEIR NOT SUBJECT TO
COLLATION
1.
Property left by will
2.
Property which may have been donated by an
ascendant of the compulsory heir
3.
Property donated to the spouse of the
compulsory heir
4.
Expenses for support, education, medical
attendance even in extraordinary illness,
apprenticeship, ordinary equipment or customary
gifts
5.
Expenses incurred by parents in giving their
children a professional, vocational, or other
career
6.
Wedding gifts consisting of jewelry, clothing and
outfit, given by parents or ascendants, so long as
they do not exceed 1/10 of the disposable portion
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OPERATIONS RELATED TO COLLATION
1.
Collation
adding to the mass of the hereditary
estate the value of the donation or gratuitous
disposition
2.
Imputing or Charging crediting the donation
as an advance on the legitime (if the donee is a
Page 102 of 297

compulsory heir) or on the free portion (if the
donee is a stranger)
3.
Reduction
determining to what extent the
donation will remain and to what extent it is
excessive or inofficious
4.
Restitution return or payment of the excess to
the mass of hereditary estate.
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PERSONS OBLIGATED TO COLLATE
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compulsory heirs GENERAL RULE:
EXCEPT:
a.
When the testator should have so expressly
provided; and
b.
When the compulsory heir should have
repudiated his inheritance
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CHAPTER 17 : PARTITION AND DISTRIBUTION
OF ESTATE

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WHO MAY PARTITION
1.
Decedent himself during his lifetime by an act
inter vivos or by will;
2.
Heir themselves;
3.
Competent court; 3rd person designated by the
decedent
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WHO CAN DEMAND PARTITION
1.
Compulsory heir;
2.
Voluntary heir
3.
Legatee or devisee;
4.
Any person who has acquired interest in the
estate
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WHEN PARTITION CANNOT BE DEMANDED
(PAPU)
1.
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Prohibited by the testator himself When expressly
for a period not exceeding 20 years;
2.
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Agreed that the estate shall When the co-heirs
not be divided for a period not exceeding 10
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years, renewable for another 10 years;
3.
When Prohibited by law;
4.
When to partition the estate would render it
Unserviceable for the use for which it is intended.
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Partition Inter VivosNOTE:
it is one that
merely allocates specific items or pieces of
property on the basis of the pro-indiviso shares
fixed by law or given under the will to heirs or
successors.
5/2/2015 9:42:32 PM
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EFFECTS OF INCLUSION OF INTRUDER IN
PARTITION
1.
Between a true heir and several mistaken heirs
Partition is VOID
2.
Between several true heirs and a mistaken heir
transmission to mistaken heir is VOID
3.
Through error or mistake; share of true heir is
allotted to mistaken heir
partition shall not be
rescinded unless there is bad faith or fraud on the
part of the other persons interested, but the latter
shall be proportionately obliged to pay the true
heir of his share
NOTE: Partition with respect to the mistaken
heir is VOID.
IMPORTANT PERIODS TO REMEMBER
Page 103 of 297

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ATENEO CENTRAL BAR OPERATIONS 2007

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the form prescribed by law

to control to a certain degree;

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among the property disposed of. EXCEPT: When

Subscribed at the end by the testator himself

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will by testator in order to see and take note

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Able to read and write

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NOTE: Joint wills executed by Filipinos in a

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his domicile at the time of the revocation.

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rights and obligations

RULES ON A PERSON S RIGHT TO DISPOSE OF

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The institution of heir is annulled

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DISPOSITIONS AND DISPOSITIONS WITH A

When in doubt as to whether there is a mode or

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Illegitimate children and descendants

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of the net estate

Determination of the net value of the estate by

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which otherwise would have remained with the

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CAUSES OF VACANCY IN SUCCESSION

Even if validly disinherited, heir can still be validly

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If the will is silent as to who shall pay or deliver

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In the absence of applicable valid will

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imposed upon instituted heir

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Page 101 of 297

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prejudice of his own creditors, the latter may

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