Chapter 2: Testamentary Succession
Section 2: Institution of Heir
ARTICLE 840. INSTITUTION OF HEIR IS AN ACT BY
VIRTUE OF WHICH THE TESTATOR DESIGNATES IN HIS
WILL THE PERSON OR PERSONS WHO ARE TO SUCCEED
HIM IN HIS PROPERTY AND TRANSMISSIBLE RIGHTS
AND OBLIGATIONS.
Institution of Heir
- Defined under Art 840
- Voluntary act not allowed to affect the
legitime
- Applicable to devises and legacies
- Instituted heir ONLY IN TESTAMENTARY
SUCCESSION
- Art 2015. In order to be capacitated to inherit,
the heir, devisee or legatee must be LIVING at
the moment the succession opens, except in
case of representation, when it is proper.
A child already conceived at the time of
the death of the decedent is capable of
succeeding provided it be born later under the
conditions prescribed in Article 41.
- Art. 40 of NCC
- Art 41 of NCC
Requisites for VALID Institution
(a) The will must be EXTRINSICALLY VALID
- Testator must be capacitated
- Formalities must be observed
- No vitiated consent
- Will duly probated
- Will must be personal act of testator
(b) The institution must be valid INTRISICALLY
- Legitime must not be impaired
- Heir is certain or ascertainable
- No preterition
(c) The institution must be EFFECTIVE
- No predecease
- No repudiation by the heir
- No incapacity of the heir
When is Adjudication by an Heir of the Decedents
Entire Estate to Himself by Means of Affidavit Allowed?
Only if he is the SOLE HEIR of the Estate
Non- Necessity of Institution of Heir (Art 841)
A will, unless otherwise defective, is valid, even if:
(a) THERE IS NO INSTITUTION OF HEIR
- Court can assign an executor/
administrator
(b) THE INSTITUTED HER IS GIVEN ONLY A PORTION
OF THE ESTATE
- Only Aliquot Part
- Mixed Succession is allowed
(c) THE HEIR INSTITUTED SHOULD REPUDIATE OR
BE INCAPACITATED
- Because the no one can be forced to
accept something gratuitously even if it
be an inheritance
Rules for Freedom of Disposition of Estate (Art 842)
(a) If one has no compulsory heirs:
(1) He can give his estate or any portion thereof to
anybody QUALIFIED to inherit from him
(2) BUT he must respect the restrictions imposed
by special laws`
(b) If one has compulsory heirs:
(1) He must respect the legitimes (unless there be a
valid cause for an express disinheritance)
(2) The free portion can, however, be given to
anybody (including the compulsory heirs),
provided always that restrictions of special laws
are complied with.
Why is it Necessary to Adjudicate? Even if only 1 heir is
instituted, there must still be a judicial order of
adjudication. The order of adjudication is the judicial
recognition that in instituting an heir, the deceased did
not contravene the law, and that the heir was in no way
disqualified to inherit.
How Designation of Heir is Made
ARTICLE 843. The testator shall validly designate the
heir by:
- His name and surname
- When there 2 persons having same names, he shall
indicate some circumstance by which the
instituted heir may be known
- Even though the testator may have omitted the
name of the heir, should he designate him in such
a manner that there can be no doubt as to who has
been instituted
Effect of Doubt: NO ONE INHERITS
Effect of Error: Mere error in designation of name or
circumstances is NOT important as long as the INTENT
IS CLEAR, and there is POSITIVE IDENTIFICATION
Effect of Misdescription: Misdescription may be
corrected even by EXTRINSIC EVIDENCE (any other
manner) but NOT by oral declarations of the testator.
Effect of Disposition in Favor of Unknown Person (one
cannot be identified in the will; not one who is a
stranger to the testator): VOID unless by some event or
circumstance his identity becomes certain (Art 845)
[determining circumstance
- my student in IV-A who will get the
highest grade
- May occur before or after testators
death]
Effect of Disposition in Favor of definite Class or Group:
VALID
Special Kinds of Class Institutions:
(a) Of poor in general (Art 1030)
(b) Relatives of the testator (Art 959)
(c) A person and his children (Art 849)
(d) Brothers and sisters of the full and half-blood 9Art
848)
(e) The institution of descendants or relatives of a
legatee
ARTICLE 846. HEIRS INSTITUTED WITHOUT
DESIGNATION OF SHARES SHALL INHERIT IN EQUAL
PARTS with respect to the legitime of the compulsory
heirs.
ARTICLE 847. WHEN THE TESTATOR INSTITUTES SOME
HEIRS INDIVIDUALLY AND OTHERS COLLECTIVELY,
THOSE COLLECTIVELY DESIGNATED SHALL BE
CONSIDERED AS INDIVIDUALLY INSTITUTTED, UNLESS
IT CLEARLY APPEARS THAT THE INTENTION OF THE
TESTATOR WAS OTHERWISE.
Ex. I designate as my heirs A, B and the 3 children of C
to my estate of Php 100,000
- Each will get Php 20,000 [5 heirs]
ARTICLE 848. IF THE TESTATOR SHOULD INSTITUTE HIS
BROTHERS AND SISTERS, AND HE HAS SOME OF FULL-
BLOOD AND OTHERS OF HALF-BLOOD,
THE INHERITANCE SHALL BE DISTRIBUTED
EQUALLY, UNLESS A DIFFERENT INTENTION APPEARS
(As to Testamentary Succession as to the Free Portion;
not the legitime)
As to Intestacy: Art 1006. The brother of the full-blood
gets double the share of the brother of the half-blood
ARTICLE 849. WHEN THE TESTATOR CALLS TO THE
SUCCESSION A PERSON AND HIS CHILDREN,
THEY ARE ALL DEEMED TO HAVE BEEN
INSTITUTED SIMULTANEOUSLY AND NOT
SUCCESSIVELY.
- Deemed/ presumed if contrary intention
appears, that intention follows
- Ex. Institute A and His 2 children to estate of Php
30,000 each gets Php 10,000
Effect of Statements of False Cause for Institution:
The false cause is considered as not written
unless it appears from the will that the testator would
not have made such institution if he had known the
falsity of such cause. (Art 850)
- What is disregarded is the false cause, not the
institution
- Reason: The real cause is the testators liberality,
the mention of the bat topping being merely
incidental, for even had X topped the bar, the
testator would not have been bound to reward
him, were it not for the provision of the will.
- Evidence of Intent Must Appear in the Will and
proof outside the will is admissible in proving such
intent.
- Austria vs Reyes, 31 SCRA 754: If children who are
invalidly adopted are instituted as heirs, the
institution should remain valid. As much as
possible, intestacy ought to be avoided, and the
testators wishes should be given effect. The
allegation that the institution should be void
because it was based on a false cause, the testator
thinking that they had to be instituted because of
the adoption, is no merit because there is nothing
in the will to indicate that had the testator known
the invalidity of the adoption, the institution of the
children would not have been made.
Effect if Institution Because of Illegal Cause: Under NCC,
it is believed that distinction must be made:
(1) If the real motive was illegal, the institution
should be void.
(2) If the real motive is generosity, liberality, or
affection and the illegal cause is only incidental,
the institution should be considered valid.
Effect of Estrangement:
Mere estrangement is not a legal ground for
disqualification of a surviving spouse as an heir of the
deceased spouse. (Capotle vs Elbambuena, 509 SCRA
444 [2006])
Effect of Institution to a Part of the Estate (Aliquot Part):
Art 852 applies when there is a remainder or
balance and there is NO INTENT to give all to the
instituted heir or heirs. If there is such INTENT, the
remainder should be divided proportionately, applying
Art 852. [Note: Intestate succession will not apply to the
remainder if the same has been disposed of by way of
legacies or devises]
ARTICLE 851. IF THE TESTATOR HAS INSTITUTED ONLY
ONE HEIR, AND THE INSTITUTION IS LIMITED TO AN
ALIQUOT PART OF THE INHERITANCE, LEGAL
SUCCESSION TAKES PLACE WITH RESPECT TO THE
REMAINDER OF THE ESTATE.
THE SAME RULES APPLIES, IF THE TESTATOR
HAS INSTITUTED SEVERAL HEIRS EACH BEING LIMITED
TO AN ALIQUOT PART, AND ALL THE PARTS DO NOT
COVER THE WHOLE INHERITANCE.
ARTICLE 852. IF IT WAS THE INTENTION OF THE
TESTATOR THAT THE INSTITUTED HEIRS SHOULD
BECOME SOLE HEIRS TO THE WHOLE ESTATE, OR THE
WHOLE FREE PORTION, AS THE CASE MAY BE, AND
EACH OF THEM HAS BEEN INSTITUTED TO AN ALIQUOT
PART OF THE INHERITANCE AND THEIR ALIQUOT
PARTS TOGETHER DO NOT COVER THE WHOLE
INHERITANCE, OR THE WHOLE FREE PORTION, EACH
PART SHALL BE INCREASED PROPORTIONATELY.
Effect of Institution Exceeds Estate:
Article 853. If each of the instituted heirs has
been given an aliquot part of the inheritance, and the
parts together exceed the whole inheritance, or the
whole free portion, as the case may be, each aprt shall
be reduced proportionately.
PRETERITION (ART 854)
Is the omission, whether intentional or not, of a
COMPULSORY HEIR in the inheritance of a person.
It of the essence of preterition that there be a complete
forgetfulness, not in the will necessarily, but in the
inheritance (testate, intestate or mixed)
ARTICLE 854. THE PRETERITION OR OMISSION OF ONE,
SOME, OR ALL OF THE COMPULSORY HEIRS IN THE
DIRECT LINE, WHETHER LIVING AT THE TIME OF THE
EXECUTION OF THE WILL OR BORN AFTER THE DEATH
OF THE TESTATOR, SHALL ANNUL THE INSTITUTION OF
HEIR; BUT THE DEVISES AND LEGACIES SHALL BE VALID
INSOFAR AS THEY ARE NOT INOFFICIOUS.
IF THE OMITTED COMPULSORY HEIRS SHOULD
DIES BEFORE THE TESTATOR, THE INSTITUTION SHALL
BE EFFECTUAL, WITHOUT PREJUDICE TO THE RIGHT OF
REPRESENTATION.
Requisites of Preterition
(1) There is TOTAL omission in the inheritance
There is Preterition in the following:
(a) If the compulsory heir is named in the
will but he is not given any share [no
express disinheritance]
There is NO Preterition in the following:
(a) If compulsory heir is given a share in the
inheritance no matter how small, there
is no preterition for under Art 906, he is
entitled only to the completion of his
legitime
(b) If the compulsory heir is not given
anything in the will but he has already
received a donation from the testator
because a donation to compulsory heir
is considered an advance of the
inheritance or legitime.
(c) Even if the child had not received
anything by virtue of donation, or by
virtue of the will, still if anything is left
of the inheritance which he may get by
intestacy, there is no preterition. Again,
if what is left him by intestacy is less
than his legitime, he is entitled to its
completion.
(2) The omission must be of a COMPULSORY HEIR
There can be preterition of legitimate or
illegitimate compulsory heir, of descendants or
of ascendants, in case these ascendants happen
to be the compulsory heir in a given case. Thus,
the omission of the testators father, when the
testator institutes his own children is NOT
preterition; but the omission of one or both
parents when there are no legitimate children
or descendants constitutes PRETERITION, for in
this case, the parents would be the compulsory
heirs.
(3) The compulsory heir must be in the DIRECT LINE
In Acain vs IAC, et al (L-72706 [1987]), it
consists in the omission in the testators will of
the forced heirs from the direct line or anyone
of them either because they are not mentioned
therein, or, though mentioned, they are neither
instituted as heirs not are expressly
disinherited.
In so far as the widow is concerned, Art
854 of CC may not apply as she does not ascend
or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the
surviving spouse is a compulsory heir, there is
no preterition even if she is omitted from the
inheritance, for she is not in the direct line.
Effect of Preterition:
(a) The institution of the heirs is annulled VOID
(b) Although the institution of heirs is indeed annulled,
the legacies and devises shall remain valid insofar as
there are not in officious THEY ARE VOIDED BUT
MERELY REDUCIBLE IF THE LEGITIME IS IMPAIRED
Where Share of Omitted Heir Must be Taken (Art 855)
ARTICLE 855. THE SHARE OF A CHILD OR DESCENDANT
OMITTED IN A WILL MUST FIRST BE TAKEN FROM THE
PART OF THE ESTATE NOT DISPOSED OF BY THE WILL,
IF ANY; IF THAT IS NOT SUFFICIENT, SO MUCH AS MAY
BE NECESSARY MUST BE TAKEN PROPORTIONALLY
FROM THE SHARES OF THE OTHER COMPULSORY
HEIRS.
Applicable when there is preterition or none
Applicable when the child receives less than his
legitime in the will
In true case of preterition, Art 855 is useless
because the best procedure would be (in the
absence of legacies or devises) just to divide the
property intestate. And if there be allowable
legacies or devises, the procedure is almost the
same. Just deduct them, and divide the
remainder as an intestacy
child or descendant it is believed that Art
855 should apply to also an omitted compulsory
even though not a child or descendant by
applying provisions of the law.
Effect of Predecease (Art 856):
(a) A voluntary heir who dies before the testator
transmits nothing to his heirs [this also applies
to legatee or devisee]
(b) A compulsory heir who dies before the testator/
a person incapacitated to succeed/ and one
who renounces the inheritance,
Shall transmit no right to his own heirs
except in cases provided for in this code- right
of representation by the heirs of the
compulsory heir in behalf of the latter (except
for repudiating/ renouncing compulsory heir)
Note:
Remember that in testate succession, the right of
representation covers only the legitime (not free
portion). In intestate succession, it covers the entire
share of the person represented. The whole would
descend by the rules of instestate succession.
The representative [the person inheriting by right of
representation] does not succeed the person
represented, but one whom the person represented
would have succeeded.