CHAPTER 1 GENERAL PROVISIONS (mem) Art. 774.

(definition of succession mortis causa) Succession is a mode of acquisition * by virtue of which o the property, o rights and o obligations to the extent of the value of the inheritance of a person * are transmitted through his death to another or others o either by his will or by operation of law. Art. 776. (subject matter of succession) The inheritance includes all the * property, * rights and * obligations o of a person which are not extinguished by his death. legal acquiring ownership which transmissible rights and obligations are tran objectmode mode ofof Inheritanceby which Successionsuccessionsuch property,arises when a predecessor dies all the property and smitted to the heirs transmissible rights and obligations of the decedent which are not extinguished by his death Estate of KH Hemady v. Luzon Surety (L-8437; 11/28/1956) F: Hemady is a surety solidary guarantor of Luzon Surety. Upon his death, Luzon filed a claim on his estate for the 20 bonds guaranteed by Hemady. Estate argues that the bonds cannot be contingent claims because guaranty was extinguished up on his death. H: the bonds are contingent claims from the estate bec. it does not fall under t he 3 exceptions thus transmissible GR: (Art 1311) contracts take effect only between the parties, their assigns and heirs. EXCEPTIONS: contracts not transmissible by: a. their nature; b. stipulation (cannot be implied; the fact the security was not required indica tes the company s faith on Hemady s financial stability not that his obligation is s trictly personal) c. provision of law (legal support, parental authority, usufruct, contracts for piece of work, partnership and agency) Alvarez v. IAC (68053; 5/7/1990) F: Rosendo Alvarez, petitioners father, sold a land that was not his. Court then ordered his father to pay damages to the true owners. Upon his death, Rosendo s he irs refused to pay the damages, saying the liability is the sole responsibility of their father, and not the estate H: the heirs must be the damages limited to the value of the inheritance Petitioners being the heirs of the late Rosendo Alvarez, they cannot esc ape the legal consequences of their father's transaction, which gave rise to the present claim for damages. That petitioners did not inherit the property involv ed herein is of no moment because by legal fiction, the monetary equivalent ther eof devolved into the mass of their father's hereditary estate, and we have rule d that the hereditary assets are always liable in their totality for the payment of the debts of the estate. It must, however, be made clear that petitioners are liable only to the extent of the value of their inheritance. Art. 775. In * "decedent" tted through * If he left this Title, is the general term applied to the person whose property is transmi succession, whether or not he left a will. a will, he is also called the testator.

1. a. b. 2. a. b.

Decedent (775) testator intestate = no will Successor heir legatee or devisee

What inheritance includes: 1. property 2. rights 3. transmissible obligations 4. all property which have accrued thereto since the opening of the succession Rights Extinguished by Death: (supepal) 1. support; 2. usufruct; 3. those arising from personal consideration; 4. personal easements; 5. partnership rights; 6. agency; and 7. life annuity (note: also criminal liability, political position, right of parental authority, marital rights) What can be transmitted? Rights that are not personal. GAUGE: W/N the right is strictly personal Criteria in determining intransmissible rights: 1. rights are purely personal (discharge public office) 2. rights are expressly made intransmissible by law (usufruct) Art. 777. The rights to the succession are transmitted from the moment of the de ath of the decedent. * right term for transmitted is VESTED * right of the heirs to property of the deceased was VESTED from the moment of d eath o heir acquired hereditary rights even before judicial declaration in testate or intestate proceedings * obligation to pay taxes accrues at the moment of death (based on value at time of death, regardless of appreciation and depreciation) * ownership retroact to the time of death Requisites of Succession: (desa) 1. death of decedent 2. transmissible estate 3. existence and capacity of successor, designated by decedent or by law; and 4. acceptance of successor Uson v Del Rosario (L-4963; 1/29/1953) F: Faustino separated from his wife Uson and lived w/ Del Rosario to whom he has 4 children. He died before the New Civil Code took effect. Under old Civil Code , illegitimate children cannot inherit. H: the children cannot inherit since what governs is the law effective at the ti me of death of the decedent. The right of ownership of Maria Uson over the lands in question became v ested in 1945 upon the death of her late husband and this is so because of the i mperative provision of the law which commands that the rights to succession are transmitted from the moment of death (Article 657, old Civil Code). The new righ

t recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute. De Borja v De Borja (L-28040; 8/18/1972) F: Josefa died leaving husband Francisco and son Jose as executors. Before Josef a s estate can be liquidated, Francisco took a 2nd wife, Tasiana. When Francisco d ied, Josefa s estate was still not liquidated thus Tasiana sold her share to Jose. Was the sale valid? H: the sale was valid since ownership passes to the heir at the moment of death; even though there s a will, the parties can still execute a compromise agreement As a hereditary share in a decedent's estate is transmitted or vested im mediately from the moment of the death of such causante or predecessor in intere st (Art. 777) there is no legal bar to a successor (with requisite contracting c apacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent l iquidation of the estate. Of course, the effect of such alienation is to be deemed limited to what is ultimately adjudicated to the vendor heir. Compromise Agreement: As the surviving spouse of Francisco, Tasiana was his compulsory heir un der article 995. Wherefore, barring unworthiness or valid disinheritance, her su ccessional interest existed independent of Francisco de Borja's last will and te stament, and would exist even if such will were not probated at all. Thus, the p rerequisite of a previous probate of the will, can not apply in this case. Bonilla v. Barcena (L-41715; 6/18/1976) F: Mother instituted a petition to quiet title over the land. While the case was pending, she died. Thus, her daughter and husband wanted to substitute her. The lower court denied the substitution and dismissed the case. H: the heirs have the right to substitute the deceased as party on an action tha t survives While it is true that a person who is dead cannot sue in court, yet he c an be substituted by his heirs in pursuing the case up to its completion. From the moment of the death of the decedent, the heirs become the absol ute owners of his property, subject to the rights and obligations of the deceden t, and they cannot be deprived of their rights thereto except by the methods pro vided for by law. The moment of death is the determining factor when the heirs a cquire a definite right to the inheritance whether such right be pure or conting ent. The right of the heirs to the property of the deceased vests in them even b efore judicial declaration of their being heirs in the testate or intestate proc eedings. When Fortunata Barcena, therefore, died her claim or right to the parce ls of land in litigation in Civil Case No. 856, was not extinguished by her deat h but was transmitted to her heirs upon her death. Her heirs have thus acquired interest in the properties in litigation and became parties in interest in the c ase. There is, therefore, no reason for the respondent Court to allow their subs titution as parties in interest for the deceased plaintiff. The question as to whether an action survives or not depends on the natu re of the action and the damage sued for. In the causes of action which survive the wrong complained affects primarily and principally property and property rig hts, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person, the prope rty and rights of property affected being incidental. Art. 778. Succession may be: (1) Testamentary; (2) Legal or intestate; or (3) Mixed.

Kinds of Succession: 1. Testamentary = decedent died with a valid will 2. Legal or intestate = effected by operation of law in default of a will (note: this shd. be separated since legal means the legitime while intestate means the re was no will) 3. Mixed = effected partly by will and partly by operation of law 4. Contractual Succession = future husband and future wife give to each other fu ture property, effective mortis cause, by means of a marriage settlement (not to exceed 1/5 of their present prop.; donation not succession but executed by foll owing the formalities of the will) Art. 779. Testamentary succession is that which results from the designation of an heir, made in a will executed in the form prescribed by law. ? In obligations, failure to comply with formal requisites render the contract u nenforceable valid only between the parties but not to 3rd persons. In the case of wills, failure to comply with the formal requisites renders the will void. Kinds of Will: 1. Notarial will = executed with the formalities of the law and is duly acknowle dged and notarized by a notary public a. ordinary or attested will b. Art 804 to 809 2. Holographic will = entirely written in the handwriting of the testator and mu st be signed and dated also in his handwriting a. autographic will b. Art 810 to 814 3. Nuncupative will = oral will (not allowed) Art. 780. Mixed succession is that effected partly by will and partly by operati on of law. (rel w/ 791) Art. 781. The inheritance of a person includes 1. not only the property and the transmissible rights and obligations existing a t the time of his death, 2. but also those which have accrued thereto since the opening of the succession . (rel w/ 793) * decedent died with a valid will, the after-acquired property shall not pass to the designated heir UNLESS the same is expressly stated in the will or the inte ntion clearly appears Art. 782. An heir is a person called to the succession either by the provision o f a will or by operation of law. Devisees and legatees are persons to whom gifts of real and personal pro perty are respectively given by virtue of a will. 1. a. i. b. 2. 3. Heir = what is given is whole or aliquot part Compulsory heir = succeeds by operation of law with recognized legitime legal or intestate heir = no will Voluntary heir devisee = what is given in an individualized or specific real prop legatee = individualized or specific personal prop

? If in a will, a compulsory heir is given more than his legitime, he assumes a dual status o legitime is concerned = compulsory thus in case he predecease the testator, hi s heir can still inherit his legitime o excess is concerned = voluntary heir thus if he dies ahead of the testator, hi s heir gets nothing from said testator

3. succeeds generally given 2. inherits to the whole or an aliquot fixed amount all never 1. represents the determinateofpersonality of the whole Devisee/ Legatee juridical personalityaof of decedent estate Heir representsathe juridicalthing or partthethe decedentthe debts and all the remainder the inheritance after succeeds to devises have been settled specified amount stated as the legacy in legacies andthe determinate property oror paid all devisees testamentary succession 5. notonly heirs the succession legatees existwill inand legatees are heirs 4. exists whetherare devisees andis testate, intestate, or mixed the all Importance of distinguishing heirs from legatees/ devisees: 1. compulsory heirs in the direct line had been totally preterited a. institution of heirs entirely annulled b. legacies and devisees shall be valid insofar as they are not inofficious 2. there is an imperfect or defective disinheritance a. institution of heirs is annulled to the extent of the impairment of the legit ime of the disinherited heir b. legacies and devisees shall be valid insofar as they are not inofficious Basic Principles of the law of succession: 1. No succession takes place while the owner is alive; heirs only have an expect ancy during the lifetime of the decedent (testator or intestate) 2. The interest of the Family may override the will of decedent (legitimes may a bsorb the free part) 3. The estate devolves to the family unless the decedent expressly orders otherw ise by making a valid will (Succession by strangers is not presumed) 4. The family can not be entirely deprived of the estate (legitime, intestacy). F amily includes the spouse and the relatives by blood or adoption, but excluding r elatives by affinity. 5. Within the family, heirs of equal proximity to the decedent inherit equal sha res, unless belonging to different classes 6. The State has a share in the succession (escheats and inheritance taxes) 7. The heirs are not liable for debts of the estate beyond their share in the su ccession. But the law considers the excess as a natural obligation (1429) CHAPTER 2 TESTAMENTARY SUCCESSION SECTION 1. - Wills SUBSECTION 1. - Wills in General Art. 783. A will is an act whereby a person is permitted, with the formalities p rescribed by law, to control to a certain degree the disposition of this estate, to take effect after his death.

Essential Characteristics of Testamentary Act: (784-787) 1. unilateral = The will does not require acceptance or ratification of any pers on other than the testator. In fact, if testator and heir are both alive, there is no succession. 2. mortis causa = The testament is ambulatory and becomes effective and final only on the testator s death 3. strictly personal act in all essential matters (784,785.787) * But the testator may entrust to a third person: i. The distribution of specific property or sums of money that the testator may leave in general to specified classes or causes. (Distribution means partition a nd delivery of shares on the basis of the testamentary provisions) ii. The designation of persons, institutions or establishment to which such prop erty or sums of money are to be given or applied (The designation must be in con formity with the will 786) 4. individual (not joint) act = joint wills are prohibited (818) * Same instrument means the same act not the same paper Two wills may be written on t e same paper but are not necessarily joint * The prohibition extends to joint wills by Filipinos in a foreign country, even though such wills are authorized by the laws of the country where they may have been executed

5. essentially revocable = (828) 6. solemn or formal act = The will must be executed with the formalities prescri bed by law 783 * the law governing the formalities is the law in force at the time it was made -- 793 7. free from vices of consent (839) * oral conveyances of properties = allowed (expressed desires before death and a ll the heirs agreed and complied with the same) * oral wills = not recognized Vitug v. CA (82027; 3/29/1990) F: Dolores died leaving her husband Romarico. He paid estate taxes from their jo int account and now is asking reimbursement from the estate. The couple signed a survivorship agreement where the funds will belong to the survivor H: survivorship agreement is valid, thus the account belongs to Romarico and not the estate The conveyance in question is not, first of all, one of mortis causa, wh ich should be embodied in a will. A will has been defined as "a personal, solemn , revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death." In other words, the bequest or device must pertain to the testator. In this ca se, the monies subject of savings account No. 35342-038 were in the nature of co njugal funds. The validity of the contract seems debatable by reason of its "survivortake-all" feature, but in reality, that contract imposed a mere obligation with a term, the term being death. Such agreements are permitted by the Civil Code. ( Art 2010) Art. 784. The making of a will is a strictly personal act; it cannot be * left in whole or in part of the discretion of a third person, or * accomplished through the instrumentality of an agent or attorney. Art. 785. The duration or efficacy of the designation of heirs, devisees or lega tees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. Art. 786. The testator may entrust to a third person * the distribution of specific property or sums of money that he may leave in ge neral to specified classes or causes, and also * the designation of the persons, institutions or establishments to which such p roperty or sums are to be given or applied. recipients of the bounty of the no 785 786particular names designated testator are specified; 3rd person simply implem ents the details of the testamentary dispositions Art. 787. The testator may not make a testamentary disposition in such manner th at another person has to determine whether or not it is to be operative. Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative s hall be preferred. Rules in Interpretation of the Will: A] In General 1. The intention of the testator must govern provided it is not contrary to law, morals, good customs or public policy. 2. In case of doubt, avoid intestacy (791,788) 3. The validity of the will as to form is to be judged by the law in force at th e time the will is executed (795). The reason is that in reality the legacy or b

equest becomes then a completed act. a. The general rule is that not even the Legislature can validate void wills. B] Conflict of words and intent: 1. The words of a will are to be taken in their ordinary and grammatical sense u nless a clear intention to use them in another sense can be gathered and that ot her sense can be ascertained (790) 2. Technical words in a will are to be taken in their technical sense unless: i. the context clearly indicates a contrary intention; or ii. unless it satisfactorily appears that the will was drawn solely by the testa tor and that he was unacquainted with such technical sense (700[2]) 3. Every devise or legacy shall convey all the interest which the testator could devise or bequeath in the property disposed of, unless it clearly appears in th e will that he intended to convey a loss (794) or where permitted by law, a grea ter interest (929) 4. Thus, a testator may bequeath a thing in its entirety, even if he owns only a part of or an interest in the thing bequeathed (929) 5. And a testator may bequeath a thing belonging to another person (other than t he successor) provided he orders that it be acquired in order that it be given t o a legatee or devisee (931) Art. 789. When there is an * imperfect description, or * when no person or property exactly answers the description, o mistakes and omissions must be corrected, * if the error appears from the context of the will or * from extrinsic evidence, o excluding the oral declarations of the testator as to his intention; and * when an uncertainty arises upon the face of the will, as to the application of any of its provisions, o the testator's intention is to be ascertained from the words of the will, o taking into consideration the circumstances under which it was made, excluding such oral declarations. Kinds of Ambiguities in wills: 1. Intrinsic or Latent Ambiguity = ambiguity is hidden because it does not appea r on the face of the will a. there are 2 apartments in Mla b. parol evidence is admissible 2. Extrinsic or Patent Ambiguity = ambiguity appears on the face of the will; ap parent and not hidden a. disposition to 2 bar topnotchers b. parol evidence admissible excluding testimonial evidence on the oral declarat ions of the testator as to his intention Oral declaration by the testator as to his intention are disregarded in resolvin g ambiguities: A] When correction is proper 1. Where the description is a. imperfect; or b. No person or property exactly answers the description; and 2. The error appears from a. The context of the will; or b. Extrinsic evidence excluding oral declaration of the testator as to his intention B] When correction is not proper (and the rules of interpretation are applied in stead) 1. Uncertainty arises a. From oral declarations of the testator as to his intention; o

r b. Upon the face of the will as to the application of its provis ions C] Distinguish declarations of intention (of what the testator intends to do in the future) from declarations of what testator has done Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, * unless a clear intention to use them in another sense can be gathered, and tha t other can be ascertained. Technical words in a will are to be taken in their technical sense, * unless the context clearly indicates a contrary intention, or * unless it satisfactorily appears that he was unacquainted with such technical sense. Art. 791. The words of a will are to receive an interpretation which will give t o every expression some effect, rather than one which will render any of the exp ressions inoperative; and of two modes of interpreting a will, that is to be pre ferred which will prevent intestacy. Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, * unless it is to be presumed that the testator would not have made such other d ispositions if the first invalid disposition had not been made. (separability of provisions is the general rule) Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it ex pressly appear by the will that such was his intention. (rel with 781) 1. The presumption is that the will is intended to govern only the property poss essed at the time the will was made (793) or at the time it was republished as m odified by the codicil (836). After-acquired property is not governed by the will unless so intended. 2. But legacies of credit or of remission of specific debt (935) are effective o nly as to the part existing at the time of the testator s death Art. 794. Every devise or legacy shall ? cover all the interest which the testator could device or bequeath in the prop erty disposed of, ? unless it clearly appears from the will that he intended to convey a less inte rest. Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. law of the at viewpoint substance = time: time thethe decedent formin force the will Intrinsic ofwilltheor law ofwill countrys death Extrinsic Validitylaw,country:the was madewhere he may be or where he executes t ? Filipino place Phil of he will ? alien abroad = law of his domicile, his nationality or Phil laws national law of the decedent, regardless of the Phil of ? alien in the Phil = law of his nationality, orplace lawexecution or the place of death SUBSECTION 2. - Testamentary Capacity and Intent Art. 796. All persons who are not expressly prohibited by law may make a will. ? those who suffer from civil interdiction can still make a will o reason: civil interdiction prohibits a disposition of property inter vivos, no

t mortis causa Art. 797. Persons of either sex under eighteen years of age cannot make a will. Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. Requisites for the testator at the time of the execution: 1. at least 18 years old 2. of sound mind Art. 799. To be of sound mind, it is not necessary that the testator be ? in full possession of all his reasoning faculties, or ? that his mind be wholly ? unbroken, ? unimpaired, or ? unshattered by disease, injury or other cause. (Requisites of Testamentary Capacity) It shall be sufficient if the test ator was able at the time of making the will to know ? the nature of the estate to be disposed of, ? the proper objects of his bounty, and ? the character of the testamentary act. Testamentary Capacity = the ability as well as the power to make a will Bagtas v Paguio (6801; 3/14/1912) F: at the time of the execution of the will, the left side of Paguio s body was pa ralyzed H: Mere weakness of mind and body, induced by age and disease do not render a pe rson incapable of making a will. The law does not require that a person shall co ntinue in the full enjoyment and use of his pristine physical and mental powers in order to execute a valid will. Neither age, nor sickness, nor extreme distress, nor debility of body wi ll affect the capacity to make a will, if sufficient intelligence remains. The f ailure of memory is not sufficient to create the incapacity, unless it be total, or extend to his immediate family or property. Torres v. Lopez [G.R. No. 24569. February 26, 1926.] F: when the will was executed, testator was 76 years old and a guardian was appo inted to him H: the will is valid; there must be a judicial declaration that he was insane an d said order or decision must not be set aside Various tests of testamentary capacity have been announced by the courts only later to be rejected as incomplete. Of the specific tests of capacity, nei ther old age, physical infirmities, feebleness of mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or joint ly to show testamentary incapacity. Each case rests on its own facts and must be decided by its own facts. The appointment of a guardian of a person alleged to be non compos menti s, by a court having jurisdiction, must necessarily create a presumption of the mental infirmity of the ward; but such decree does not conclusively show that th e testamentary capacity of the person under guardianship is entirely destroyed, and the presumption thus created may be overcome by evidence proving that such p erson at the time he executed a will was in fact of sound and disposing mind and memory.

Art. 800. The law presumes that every person is of sound mind, in the absence o f proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; ? but if the testator, one month, or less, before making his will was publicly k nown to be insane, o the person who maintains the validity of the will must prove that the testator made it during a lucid interval. Exceptions to the presumption of sanity: 1. testator was publicly known to be insane 1 month or less before making his wi ll 2. testator had been judicially declared insane and before such judicial order h ad been set aside ? publicly known = (Torres v. Lopez) there should be a judicial declaration that h e was insane and said order or decision must not be set aside Art. 801. Supervening incapacity does not invalidate an effective will, nor is t he will of an incapable validated by the supervening of capacity. Art. 802. A married woman may make a will without the consent of her husband, an d without the authority of the court. Art. 803. A married woman may dispose by will of all her separate property as we ll as her share of the conjugal partnership or absolute community property. SUBSECTION 3. - Forms of Wills (mem) Art. 804. Every will must be in 1. writing and 2. executed in a language or dialect known to the testator. (mem) Art. 805. (NOTARIAL WILL) Every will, other than a holographic will, must be 1. subscribed at the end thereof by the ? testator himself or ? by the testator's name written by some other person in his presence, and by hi s express direction, and 2. attested and subscribed by three or more credible witnesses in the presence o f the testator and of one another. 3. The testator or the person requested by him to write his name and the instrum ental witnesses of the will, shall also sign, as aforesaid, 4. each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of ea ch page. 5. The attestation ? shall state the number of pages used upon which the will is written, and the f act that the testator signed the will and every page thereof, or caused some oth er person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and a ll the pages thereof in the presence of the testator and of one another. ? If the attestation clause is in a language not known to the witnesses, it shal l be interpreted to them. Formalities Required in Execution of Notarial Wills: 1. in writing;

a. the kind of writing or characters, or medium is not material 2. in a language or dialect known to the testator; a. The presumption is that the testator knows the dialect of the locality of whi ch he is a neighbor or resident b. But the contrary may me proved. c. It is not necessary that the will be read upon its signing and in the presenc e of witnesses except when the testator is deaf-mute or blind (807;808) 3. subscribed at the logical, not necessarily physical end thereof by a. the testator himself or b. the testator s name written by another person i. in his presence and ii. by his express direction ? Absence of the testator s name is fatal. The testator s name must in some manner a ppear 4. Attested and subscribed by 3 or more credible witnesses a. in the presence of the testator and b. in the presence of each other ? In the presence does not require actual seeing but that the testator and witness es so places that they can, if they wish, without changing their relative positi ons by merely casting their eyes upon proper direction. The various tests applie d are: o The test of knowledge = The testator knows what is being done o The test of sight = The testator sees the instrument and the act of signing o The test of position = The testator may see merely by changing the direction o f his gaze without difficulty of his gaze without difficulty, pain or discomfort ? If the testator is blind, the witnesses must act within the range of his other senses. This is called the test of available senses which must be complied with b esides the reading required by 808. ? meaning of credible (820; 821) 5. The testator and the witnesses must sign each and every page (not sheet) on t he margin a. Left or right margin, or bottom, is not material b. If the will consists of one page only, no marginal signature needed c. The last page containing the attestation clause only need not be signed by te stator d. Signing by the testator and the witnesses may be in any order, provided all a re present on one occasion, in the same transaction, and the signing is complete d when all are present 6. All pages shall be numbered correlatively in letters on the upper part of eac h page a. Numbering may be by letters or numerals b. The first page need not be numbered c. Nor the last page containing the attestation clause only 7. The attestation clause shall state: a. The number of pages used upon which will is written b. That the testator signed (or expressly directed another to sign) the will and each and every page in the presence of the witnesses i. The attestation clause need not state that the person commissioned to sign di d so in the present of the testator c. That the latter witnesses and signed the will and all the pages thereof in th e present of the testator and of one another i. The attestation clause may be incorporated in the will itself ii. Or may be written in a separate page that need not be signed by the testator iii. Liberal Interpretation (809) iv. failure to state in the attestation clause the number of pages of the will i s a fatal defect. Also the failure to state that the will was signed in the pres ent of witnesses v. If the attestation clause is in a language not known to witnesses it shall be interpreted to them. This seems to imply that the will itself need not be inter preted to the witnesses even if in a language unknown to them

vi. The attestation clause need not state that the testator requested another to sign for him, if the testator actually thumbmarked the testament vii. The absence of attestation clause is a fatal defect 8. The attestation clause must be signed at the bottom thereof by attesting witn esses. Signing on the left margin of the page is not sufficient 9. must be acknowledged before a notary public (806) a. The purpose of acknowledgment is to assure authenticity and freedom of execut ion. It minimizes fraud b. The subsequent signing and sealing by the notary of his certification that th e testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate executio n out of the present of the testatrix and her witnesses cannot be said to violat e the rule that testament should be completed without interruption Additional formalities in case testator be deaf or deaf-mute: must personally read the will, if able to do so; otherwise, he shall des ignate 2 persons to read it and communicate to him, in some practicable manner, the contents thereof Additional formalities in case testator be blind: will shall be read to him twice; once by one of subscribing witnesses an d again by the notary public before whom the will is acknowledged purpose is mechanical to mental act act act of the hand Subscription render available proof during the probate that such will had been Attestationsenses purpose in accordance with the executedis for identification formalities prescribed by law JBL Reyes: ...the rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: i whether all the pages are consecutively numbered; i whether the signatures appear in each and every page; i whether the subscribing witnesses are three; or i the will notarized. All these facts that the will itself can reveal, and defects or even omi ssion concerning them in the attestation clause can be safely disregarded. But t he i total number of pages, and i whether all persons required to sign did so in the presence of each other o must substantially appear in the attestation clause being the only check again st perjury in the probate proceedings. Basic Jurisprudence on formalities in execution of wills: 1. Signing (any mark intended as signature if affixed animo testandi) by testator a. Name only, no surname = valid b. Thumbmark = valid c. By cross = valid; But it must be shown that signing by cross is customary 2. Signing for testator a. Manner: Ex parte b. Direction may appear in recital c. Signer of testator s name need not write his own name d. Delegate s name alone = invalid e. When direction is express 3. Marginal signatures a. One sheet (page) only, margin need not be signed b. More than one page, all pages must be signed c. Right or left margin, not material 4. Paging

a. b. c. d. ged

In letters = A,B,C valid In numerals = valid One page only = none required Last page containing attestation clause only = need not be pa

e. First page need not be paged 5. Language known to testator a. essential b. Testator presumed to know dialect of his residence 6. Date = not required 7. Statement of place of execution not necessary 8. Attestation Clause a. Essential to validity b. Conformity to statutory requirements b.1) Strict rule: no evidence aliunde receivable b.2) Liberal rule: substantial compliance sufficient; bu t attesting witnesses must sign at the bottom of the attestation clause not on t he margin of the page b.3) recent decisions ? If the attestation forms part of the body of the will, and recital of requisit es is made by the testator, compliance is sufficient if signed by the testator a nd witnesses ? Omissions in the attestation clause are cured by the proper recitals found in the body of the will ? number pages of will is essential c. may be written in a separate page d. need not be signed by the testator e. need not state that the person commissioned by the testator t o sign did so in the presence of the testator f. it need not state that another was requested to sign (where t humbmarked by testator) (mem) Art. 806. Every will must be acknowledged before a notary public by the te stator and the witnesses. The notary public shall not be required to ? retain a copy of the will, or ? file another with the office of the Clerk of Court. i notarial will although notarized is not considered public document i notary public cannot be a witness i execution of the will must be done on one occasion BUT acknowledgement need no t be made at the time of signing o ONLY REQ: during acknowledgement, all witnesses and testator must be present A ND testator still capacitated (mem) Art. 807. If the testator be deaf, or a deaf-mute, he must 1. personally read the will, if able to do so; 2. otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, the contents thereof. (mem) Art. 808. If the testator is blind, the will shall be read to him twice; 1. once, by one of the subscribing witnesses, and 2. again, by the notary public before whom the will is acknowledged reading is enough not, must personally persons designated by the whether literate if testatornot theTestator be read by the contents Blind Testator literate,must will must 2 read to himto Deaf or Deaf-Muteorwillmust communicateberead the will the testatortestator illiterate, enough; the is twice If deaf-mute and blind = not capable of making a will (mem) Art. 809. (doctrine of liberal interpretation of the Attestation Clause) In the absence of ? bad faith, ? forgery, or

? fraud, or ? undue and ? improper pressure and influence, o defects and imperfections in the form of attestation or in the language used t herein shall not render the will invalid if it is proved that the will was in fa ct executed and attested in substantial compliance with all the requirements of article 805. (mem) Art. 810. A person may execute a holographic will which must be entirely w ritten, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be wit nessed. Formalities Required in Execution of Holographic Will: 1. must be entirely written by hand of testator himself; 2. must be dated by the hand of the testator himself; 3. must be signed by the hand of the testator himself; and 4. must be executed in the language or dialect known to testator. ? o o ? ? DATE: exact date, month, year New Year of 2003 = valid Feb/61 = valid SIGN: no need to sign each and every page FORM: does not need to be in the form of a will

can be a letter, poem

(mem) Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator ex plicitly declare that the will and the signature are in the handwriting of the t estator. If the will is contested, at least three of such witnesses shall be req uired. In the absence of any competent witness referred to in the preceding par agraph, and if the court deem it necessary, expert testimony may be resorted to. Probate = allowance of a will after proving before a competent court 1. its due execution by the testator and 2. but its compliance with the solemnities prescribed by law ? limited to formal or extrinsic validity of the will (see Art 838) ? lost or destroyed holographic will = cannot be proved by parol evidence (photo static copy allowed) Art. 812. In holographic wills, the dispositions of the testator written below h is signature must be dated and signed by him in order to make them valid as test amentary dispositions. Art. 813. When a number of dispositions appearing in a holographic will are sign ed without being dated, and the last disposition has a signature and a date, suc h date validates the dispositions preceding it, whatever be the time of prior di spositions. ? Subsequent dispositions if dated not signed, the disposition is not validated by subsequent dispositions, although the latter are dated and signed ? If neither dated nor signed, the disposition is invalid if proved to be writte n on an occasion different from subsequent dispositions Art. 814. In case of any ? insertion, ? cancellation, ? erasure or ? alteration in a holographic will,

o the testator must authenticate the same by his full signature. ? OTHERWISE, alterations and interpolations are to be disregarded and the origin al text followed, unless the alteration affects the date or signature, when the validity of the will is affect if the alteration is not authenticated ? Addition of witnesses and attestation clause does not invalidate the holograph ic will Art 815 to 817 = refer only to extrinsic validity Art. 815. When a Filipino is in a foreign country, he is authorized to make a wi ll in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (exception: 819 = cannot make jo int wills) Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by 1. the law of the place in which he resides, or 2. according to the formalities observed in his country, or 3. in conformity with those which this Code prescribes. Art. 817. A will made in the Philippines by try, 1. which is executed in accordance with the citizen or subject, and 2. which might be proved and allowed by the ? shall have the same effect as if executed ines. (n) a citizen or subject of another coun law of the country of which he is a law of his own country, according to the laws of the Philipp

Principle of Lex Loci Celebrationis = a contract or document executed in accorda nce with the law of the place where executed is valid (Art 17 of CC) 1. foreign CC law Phil of Filipino the Rule of Exec. Placegoverningplace where it was validity Testatorcountryextrinsic (formal)made 1. Phil foreigner 2. CC 1. law country foreign of foreigner his own where 2. lawsof the placecountrythe will was made 2. law of his own country 3. law of the country where he resides 4. CC Wills probated outside the Phil must be re-probated here. Evidence necessary: 1. due execution of the will in accordance with foreign laws 2. testator has his domicile in the foreign country 3. will has been admitted to the probate of such country 4. foreign tribunal is a probate court 5. laws of a foreign country on procedure and allowance of the wills ? A will executed in a foreign country according to the laws of that country may be probated in the Philippines without the necessity of previous probate in sai d foreign country ? In the absence of evidence, foreign laws on testamentary formalities are presu med to be the same as those of the Phil ? In the absence of proof of the foreign laws of procedure in probate matter and that the foreign court which allowed the will is a probate court, it will be pr esumed that the proceedings in the matter of probating and allowing a will in th at court are the same as those provided for in our laws on the subject. Art. 818. Two or more persons cannot make a will jointly, or in the same instrum ent, either for their reciprocal benefit or for the benefit of a third person.

? Joint will = will made on one instrument by 2 or more persons who jointly sign ed the same as their will (prohibited) o fil may validly make a holographic will anywhere (810) o fil may not validly make a joint will anywhere (818, 819) ? Mutual Wills = separate wills of 2 or more persons with reciprocal provisions (allowed) ? the Partidas prohibited joint wills because it might lead to the commission of parricide ? the prohibition prevents the stronger spouse from imposing upon the weaker one Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized b y the laws of the country where they may have been executed. SUBSECTION 4. - Witnesses to Wills Art. 820. (applicable only to notarial will) Any person of ? sound mind and ? of the age of eighteen years or more, and ? not bind, deaf or dumb, and ? able to read and write, o may be a witness to the execution of a will mentioned in article 805 of this C ode. Art. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjur y or false testimony. (n) Qualifications of Witnesses: 1. of sound mind 2. at least 18 years of age 3. able to read and write 4. not be blind, deaf or dumb 5. must be domiciled in the Phil (REASON: expected to be around to testify) 6. not convicted of falsification of document, perjury or false testimony (PRESU MPTION: their words could not be relied upon for truthfulness) Art. 822. If the witnesses attesting the execution of a will are competent at th e time of attesting, their becoming subsequently incompetent shall not prevent t he allowance of the will. (supervening incapacity = no effect)

Art. 823. (disqualified to inherit but not to testify) If a person attests the e xecution of a will, ? to whom or to whose spouse, or parent, or child, a devise or legacy is given b y such will, o such devise or legacy shall, so far only as concerns such person, or spouse, o r parent, or child of such person, or o any one claiming under such person or spouse, or parent, or child, ? be void, unless there are three other competent witnesses to such will.

? However, such person so attesting shall be admitted as a witness as if such de vise or legacy had not been made or given. Art. 824. A mere charge on the estate of the testator for the payment of debts d ue at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. ? a forced heir is a competent witness and does not lose his legitime that he ow es exclusively to the law; but he will lose all devisees or legacies in his favo r, chargeable to the free part ? A spouse may be a witness since Rules of Court allows a spouse to testify for or against the other with the latter s consent SUBSECTION 5. - Codicils and Incorporation by Reference (impt) Art. 825. A codicil is supplement or addition to a will, ? made after the execution of a will and ? annexed to be taken as a part thereof, ? by which disposition made in the original will is o explained, o added to, or o altered. Art. 826. In order that a codicil may be effective, it shall be executed as in t he case of a will. Effect: 1. The execution of a codicil referring to a previous will has the effect of rep ublishing the will as modified by the codicil (836) a. Hence, the will controls the property acquired by the testator after the maki ng of the will and before the codicil, even if not so provided (793) 2. But the prior will must be valid as to form unless its provisions are reprodu ced (835) Art. 827. (Incorporation of documents or papers by reference) If a will, execute d as required by this Code, incorporates into itself by reference any document o r paper, such document or paper shall not be considered a part of the will unles s the following requisites are present: (1) The document or paper referred to in the will must be in existence a t the time of the execution of the will; (2) The will must clearly describe and identify the same, stating among other things the number of pages thereof; (3) It must be identified by clear and satisfactory proof as the documen t or paper referred to therein; and (4) It must be signed by the testator and the witnesses on each and ever y page, except in case of voluminous books of account or inventories. ? Reference to a paper to be written in future is void ? Voluminous records = some signature is required to identify the referent GR: Incorporation can be esses EXCEPTION: 1. if a holographic will ses 2. if a holographic will en, dated, and signed in done only in notarial wills bec. Art 827 speaks of witn happen to have at least 3 credible and qualified witnes (with NO witnesses) refers to a document entirely writt the handwriting of the testator

SUBSECTION 6. - Revocation of Wills and Testamentary Dispositions

Art. 828. A will may be revoked by the testator at any time before his death. An y waiver or restriction of this right is void. i revocable even if probated during the lifetime nullitythe the willthewhetherdisregarded recognized rightextrinsic right toofact the law not be renounced byby the heirs by voluntarily complying w invoked takes inherent in the testator voluntaryrevoke determined by act ofplacetestator could exercise of testator Nullity after will, lifetime of the a the testator Revocation willscould the s deathdefect is intrinsic or during in the COMMON: render the ith its provisions will legally ineffective Art. 829. (conflict of rules for revocation of wills) A revocation * done outside the Philippines, * by a person who does not have his domicile in this country, * is valid when it is done o according to the law of the place where the will was made, or o according to the law of the place in which the testator had his domicile at th e time; and o if the revocation takes place in this country, when it is in accordance with t he provisions of this Code. A.] Revocation made outside the Phil: 1. testator not domiciled in Phil: a. law of the place where the will is made (lex loci celebrationis as to the mak ing of the will) b. law of the place where the testator was domiciled at the time the will was ma de (domiciliary law) 2. testator is domiciled in Phil: a. law of the Phil b. law of the place where the will was executed (lex loci celebrationis as to th e execution of the will) B.] Revocation made in the Phil: 1. Civil Code = w/n he is domiciled here 2. nationality rule

Art. 830. No will shall be revoked except in the following cases: (1) By implication of law; or (2) By some will, codicil, or other writing executed as provided in case of wills; or (3) By burning, tearing, cancelling, or obliterating the will with the i ntention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. (overt acts of destruction) * If burned, torn, cancelled, or obliterated by some other person, * without the express direction of the testator, o the will may still be established, and o the estate distributed in accordance therewith, * if its contents, and due execution, and the fact of its unauthorized destructi on, cancellation, or obliteration are established according to the Rules of Cour t. Instances under CC Considered Revocation by Implication of Law: (does not revoke the will as a whole, but only particular dispositions) 1. decree of legal separation; 2. preterition

3. legacy or credit against 3rd person or and subsequently, testator brings action 4. substantial transformation of specific 5. when heir, devisee, or legatee commits

remission of debt was provided in will against debtor; thing bequeathed; any of the acts of unworthiness

Effect of later will: 1. Subsequent wills that do not revoke previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the later will (831) 2. A revocation made in a subsequent will shall take effect even if the new will should become inoperative by reason of incapacity of heirs, devisees or legatee s designated therein or by their renunciation (832) 3. Dependent relative revocation But if the revocation is made to depend upon a condition, non-fulfillment of the condition bars revocation a. If the testator, desiring to make a new will, cancels the old will preparator y to making a new one, and thereafter fails to execute the same or makes an inva lid disposition, it is presumed that he preferred the old will to intestacy and the old will is not revoked Requisites of revocation of will by overt act: 1. overt act of destruction is executed 2. act must be completed at least on its subjective phase 3. these is an intent to revoke (animo revocandi) 4. at the time of the revocation, the testator has capacity to make a will, that is, he is of sound mind 5. revocation is personally done or effected by the testator himself, or by anot her person by the express direction of the former and in his presence Examples: 1. burning a. burned envelope thinking will was there but was removed = ineffectual (but th e person who removed the will cannot inherit bec. of unworthiness) b. accidental burning = ineffectual 2. tearing or cutting a. sufficient even if slight b. intention to revoke but was stopped and persuaded by others = not revoked c. tearing of signature = will is void 3. cancellation a. running of lines b. perforating 4. obliteration = to blot out or to render undecipherable 5. crumpling = not an overt act of destruction * partial revocation = valid (if obliterated an essential part = whole will is v oid) * where a will cannot be found and is shown to have been in the possession of th e testator when last seen ? PRESUMPTION: the same was cancelled or destroyed Art. 831. (implied revocation) Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as a re inconsistent with or contrary to those contained in the latter wills. Kinds of Revocation: 1. Express = subsequent will expressly states it is revoking the 1st will 2. Implied = no express statement of revocation but the provisions of the subseq uent will are incompatible with the 1st will ? later provisions prevail ? only those incompatible are revoked ? not favored

(impt!) 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 o heirs, o devisees or o legatees designated therein, or * by their renunciation. Doctrine of Dependent Relative Revocation = makes the revocation of a will depen dant upon the efficacy of the new disposition = new will intended to be a substitute was not valid = revocation fails and original will remains effective = Doctrine of Conditional Revocation valid but inoperative invalid not ineffective valid will can of will Ineffective oroperative because incapacityrevoke a or renunciation Invalid revoking will cannot revoke a previousheirsprevious will Art. 833. A revocation of a will based on a false cause or an illegal cause is n ull and void. Ex: on the info that A did not pass the bar so testator revoked. But the truth w as A passed = A can still inherit Art. 834. The recognition of an illegitimate child does not lose its legal effec t, even though the will wherein it was made should be revoked. ? But not if the will containing recognition is annulled for vice of consent SUBSECTION 7. - Republication and Revival of Wills Art. 835. The testator cannot republish, without reproducing in a subsequent wil l, the dispositions contained in a previous one which is void as to its form. Republication = testator s act of re-establishing a will which is void as to form or which he had previously revoked = effected through: 1. re-execution of the original will by copying the original dispositions 2. execution of a codicil ? Effect: The will is reestablished as of the date of republishing act (836) and governs all property of testator acquired up to the date of republication (793) ? Limitation of republication: o a will, void as to form, cannot be reestablished without reproducing its dispo sitions in a subsequent will (835) o The rule applies to incorporation by reference Revival = process of re-establishing a revoked will by virtue of legal provision s = takes place by operation of law: Examples: 1. Art 837 2. preterition Art. 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. not void as toform couldValidas toor could Willbebe revoked;form be revived or republished by mere reference in a codicil revived republished in a subsequent will without reproducing its origi nal dispositions A will which is not valid because of fraud, force or undue influence or for lack of required age or due to insanity = COULD NOT BE REPUBLISHED by mere reference in a codicil BECAUSE this is not a case of void will as to form

i testator cut his signature but later pasted it = will remains revoked not havi ng complied with legal requirements for republication Art. 837. If after making a will, the testator makes a second will expressly rev oking the first, the revocation of the second will does not revive the first wil l, which can be revived only by another will or codicil. Effect: 1. 1st will is expressly revoked but 2nd will was itself revoked = 1st will is n ot revived 2. 1st will is impliedly revoked and 2nd will was revoked = 1st will is automati cally revived so long as 1st will has been preserved Revoking will is disallowed because it is not valid = it cannot annul 1st will SUBSECTION 8. - Allowance and Disallowance of Wills Art. 838. No will shall pass either real or personal property unless it is prove d and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisi ons of the Rules of Court for the allowance of wills after the testator's a deat h shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. Probate = authentication of the will = process of proving before a competent court the due execution of a wil l by a person possessed of testamentary capacity and the compliance with the sol emnities prescribed by law and its approval Kinds: 1. Ante-Mortem probate = during the lifetime of the testator which may be initia ted by the testator himself 2. Post-Mortem probate = after the death of the testator Characteristics of Probate Proceedings: 1. it is a special proceeding; 2. it is a proceeding in rem; 3. not a contentious litigation; 4. mandatory; and 5. imprescriptible Jurisdiction: 1. RTC = gross value exceeds 300T (province) or exceeds 400T (MM) 2. MTC = if below * donation of part of human body = effective even before probate; effective upon death * not necessary that will and codicil be probated together GR probate s court area of inquiry: extrinsic validity of the will * due execution * testamentary capacity * compliance with solemnities EXCEPTION: if practical considerations demand that the intrinsic validity of the will be passed upon, the probate court may do so before passing upon the extrin

sic or formal validity of the will * will on its face is intrinsically void (preterition) * illegal dispositions (favorable to a concubine) * parties so agreed Grounds for setting aside allowance of a will: o lack of jurisdiction or lack of due process o extrinsic or collateral fraud (pursued within 4 yrs from discovery) * oppositors to a will = must have capacity to succeed the testator * person who wants to intervene in the probate proceedings = must show genuine i nterest in the will (only justification for intervention) * there can be joint probate of 2 wills Procedure of Probate: 1. proof of testamentary capacity and due execution are presented 2. court then issues an order allowing or disallowing the will 3. inquire into the intrinsic validity (if not valid, there is no distribution) 4. judicial settlement of the estate (distribution of prop. of the estate) (mem) Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of makin g a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence o f fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrume nt he signed should be his will at the time of affixing his signature thereto. These grounds are exclusive: 1. Non-compliance with the formalities required by law a. notarial wills = Art 804-806 b. holographic wills = 810 2. Insanity or mental Incapacity to make a will 3. will executed through force or duress or fear or threats a. force = violence = serious and irresistible force b. intimidations = reasonable and well grounded fear of an imminent and grave ev il upon his perso prop or upon the person or prop of his spouse, descendants or ascendants 4. undue and improper pressure a. to be sufficient to avoid a will, the influence exerted must be of a kind tha t so overpowers and subjugates the mind of the testator as to destroy his free a gency and make him express the will of another rather than his own 5. Signature of testator was procured by fraud a. fraud or trick must be proved by evidence 6. testator acted by mistake or did not intend that the document be his will at the time of signing Effect of Fraud, force, duress, threats, undue influence, and mistake: if wants notwills to voidable contracts = renders athe succession, there deed these vices ratify ratification; inof void ratifying is no voidable will vitiates consentof are susceptiblewillratification In contractsof consent renderthe contract voidable susceptible and execute codicil or a SECTION 2. - Institution of Heir Definition: Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and tr ansmissible rights and obligations.

Principles of Institution: 1. Equality (846; 848) 2. Individuality (847) and 3. Simultaneity (849) unless a contrary intention is shown ? absence or inoperativeness of institution leads to intestate succession (841) Requisites of Institution: 1. It must be made in a valid will; therefore, it requires a. capacity of the testator b. formalities must be observed c. no vice of consent (error, fraud, duress, undue influence) d. the will must be duly probated (except in marriage settlements and in partiti on inter vivos by the owner [1080]) 2. made personally, not be an attorney in fact, nor subject to control by a thir d person (784; 785) 3. within the authority granted by law: i.e. for property of free disposition (8 42) a. Institution of forced heir to the legitime is valid but superfluous b. Institution of non-forced heir to the legitime is void 4. The heir designated must be capable of succeeding (842) 5. The heir must be certain or ascertainable (845) 6. There should be no preterition (total omission) of a forced heir Order of priority: (ISRAI) 1. Institution 2. Substitution = substitute/s will inherit if the instituted heir/s become inca pacitated 3. Representation = no provision for substitution, the instituted heir/s who cou ld not inherit will be represented by their descendent/s or representative/s (re pudiating heir cannot be represented) 4. Accretion = instituted heir predeceased the decedent or was incapacitated and representation is not proper and applicable, or if he repudiated the inheritanc e, his share becomes a vacant portion of the inheritance shall be inherited by h is co-heirs, co-devisees, or co-legatees by accretion 5. Intestacy = if institution, substitution, representation, and accretion all f ailed Unborn child = if already conceived at the time of death = the capable of succee ding (Art 1025 2nd par; Art 41) * fetus considered born = if alive at the time it was completely delivered * fetus had an intra-uterine life of less than 7 months = not deemed born if die d within 24 hours after its complete delivery Art. 841. A will shall be valid even though it should * not contain an institution of an heir, or * such institution should not comprise the entire estate, and * even though the person so instituted should not accept the inheritance or * should be incapacitated to succeed. In such cases the * testamentary dispositions made in accordance with law shall be complied with a nd * the remainder of the estate shall pass to the legal heirs. ? share of a person who repudiates = accrue to his co-heirs

Art. 842. One who has no compulsory heirs ? may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. (freedom of disposition) One who has compulsory heirs ? may dispose of his estate provided he does not contravene the provisions of th is Code with regard to the legitime of said heirs. (free to dispose the free po rtion) Compulsory heirs = legitimes are reserved and they succeed to the inheritance re gardless of the wishes of the testator and cannot be deprived of their legitimes except by valid disinheritance = compulsory heirs also lose their inheritance in cases of incapacity or predecease unless representation is proper (887) Legitime = part of the testator s property which he cannot dispose of because the law has reserved it for certain heirs who he cannot disregard known as compulsor y or forces heirs = only compulsory or forced heirs can intervene in probate proceedings Manner of Designating Heir: 1. By name and surname or nickname 2. By other identifying circumstances (843) 3. Error in designation of name, surname or other circumstances does not invalid ate, if the identity can be ascertained in any other manner (844) a. if the identity is not ascertainable, the institution is void (844) b. the mere fact that a legatee is referred to as a natural child does not make the legacy conditional 4. Rules of interpretation of institution a. collective institution (of class or group) is valid [845] b. Individual and collective institution made at the same time, means individual institution of all (N & children of N) unless the intention is clearly otherwis e [847]. (This is not true in legitimes where descendants inherit by representat ion) c. The presumption is that institution is simultaneous and not successive (849) d. Collective institution of relatives of the testator is in favor of those near est in degree (959) [But collective institution of relatives of another is void for uncertainty] e. Institution of the poor (1030) Art. 843. The testator shall designate the heir by ? his name and surname, and ? when there are two persons having the same names, o he shall indicate some circumstance by which the instituted heir may be known. ? o s o Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who ha been instituted, the institution shall be valid.

Art. 844. An error in the name, surname, or circumstances of the heir ? shall not vitiate the institution * when it is possible, in any other manner, to know with certainty the person in stituted. If among persons having the same names and surnames, there is a similari ty of circumstances in such a way that, even with the use of the other proof, ? the person instituted cannot be identified, none of them shall be an heir.

Art. 845. Every disposition in favor of an unknown person shall be void, ? unless by some event or circumstance his identity becomes certain. ? However, a disposition in favor of a definite class or group of persons shall be valid. Unknown person = cannot be identified from the said will Classes or groups who can be instituted as heirs: 1. (Art 848) Brothers and sisters, some of the full blood, others half blood 2. (Art 849) a person and his children 3. (Art 959) testator s relatives (nearest in degree) 4. (Art 1030) the poor in general living in the domicile of the testator or the poor in a definite locality 5. the institution of descendants or relatives of a legatee (The rule of nearest excludes the farther will NOT apply here. Therefore, all descendants and relative s will inherit per capita) Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. ? institution refers only to free portion of the inheritance; no equality of sha res if there are compulsory and voluntary heirs instituted (legitime 1st deducte d; then free portion equally divided among designated heirs) ? testator gives specific properties to some heirs only but made no designation of shares = value of things will be considered as part of the shares of said hei rs Art. 847. When the testator institutes some heirs individually and others collec tively as when he says, "I designate as my heirs A and B, and the children of C, " those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. inherit per capita and not per stirpes (per group) Art. 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 distribute d equally unless a different intention appears. Art. 849. When the testator calls to the succession a person and his children th ey are all deemed to have been instituted simultaneously and not successively. Art. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator wo uld not have made such institution if he had known the falsity of such cause. false cause = erroneous reason for the institution of an heir = cause contrary to law = deemed not written UNLESS illegal cause appear s to be the sole reason for the institution Requisites of false cause to annul the will: 1. cause for the institution of heirs must be stated in the will 2. cause must be shown to be false 3. must appear from the face of the will that the testator would not have made s uch institution if he had known the falsity of the cause Art. 851. If the testator has instituted only one heir, and the institution is l imited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each

being limited to an aliquot part, and all the parts do not cover the whole inhe ritance. Art. 852. (exception to 851) 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 proportionally. total amount of Estate x share of each heir total amount given to all in the will Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and ? the parts together exceed the whole inheritance, or the whole free portion, as the case may be, ? each part shall be reduced proportionally. share of each heir x excess amount total amount given to all in the will Shares in Institution: Shares as designated by the testator (unless the legitime is prejudiced) 1. If aliquot shares exceed the whole of the disposable estate, reduce all in pr oportion (853) 2. If aliquot shares do not cover the whole disposable estate, the balance passe s to intestacy (851) a. EXCEPTION: If the intention is that the heirs instituted be sole heirs to the whole estate, each part shall be increased in proportion (852) SITUATION: Total estate is P24T with the following institutions: Heir A = 5/7 Heir B = 3/7 TOTAL = 8/7 SO: shares will be reduced. A will get 5/8 or P15T and B will get 3/8 or P9T Heir A = 1/2 Heir B = 1/4 TOTAL = 3/4 SO: shares will be increased. A will get 2/3 or P16T and B will get 1/3 or P8T In the absence of designated shares, all shares shall be equal (equality is equi ty) [846] EXCEPT: where one instituted heir is excluded by law from a definite share or po rtion of the estate (thus, if the co-heir is not a forced heir he cannot share i n the legitime) Art. 854. The preterition or omission of one, some, or all of the compulsory hei rs in the direct line, whether living at the time of the execution of the will o r 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 inofficiou s. If the omitted compulsory heirs should die before the testator, the inst itution shall be effectual, without prejudice to the right of representation.

A] Inoperative Institution: 1. By predecease of the heir (856) a. This includes death of the conditional heir before the suspensive condition h appens (1034) 2. By relative incapacity of the heir (856) 3. By repudiation of the heir (856) 4. By error of the testator (false cause) if it appears from the will that he wo uld not have made the institution if he knew the truth (850) 5. By uncertainty of the heir where he is unknown or cannot be identified (845) 6. By preterition of a compulsory heir in the direct line (854) 7. By invalid disinheritance of a compulsory heir (918) B] Nullity of testamentary Institution: Preterition = (also pretermission) is the omission in the will of one, some or a ll of the compulsory heirs in the direct line (does not include surviving spouse , but includes illegitimate descendants and ascendants), whether living at the t ime of the execution of the will or born after the death of the testator (or bor n in between) [854] Three kinds of preterition: 1. omission of a compulsory heir in the direct line (854) a. heir is mentioned in the will but nothing is given to him b. heir is not mentioned at all in the will 2. omission of a property, objects or securities in the project of partition (11 03) 3. omission of an heir in the Project of Partition submitted to the court for ap proval (1104) Requisites of Preterition: 1. total omission in the inheritance a. does not disinherit the heir, but leaves nothing to him in the hereditary est ate w/n the testator mentioned him in the will b. no total omission if heir already received something from the testator (donat ion inter vivos) 2. omitted person must be a compulsory heir 3. said compulsory heir must come from the direct line, whether ascending or des cending a. EXCEPTION: an adopted child is deemed a legitimate child b. preterition of a spouse does not invalidate because not in the direct line 4. omitted compulsory heir must survive the testator a. died before the testator = as if no preterition Ex: Testator has 3 children A, B, & C. Will was made after A died. Will did not mention A. = there is preterition; A s children will represent him Effects of Preterition: 1. annuls entirely the institution of heirs, but the devisees and legacies shal l be valid insofar as they are not inofficious 2. The one instituted as heir, without specification of individual property, may not claim that the institution constitutes a devise or legacy of the free porti on 3. if the compulsory heirs would predecease the testator, the institution of hei r shall be effectual, but the omitted heir would be represented by his heir, whe n representation is proper 4. if omitted heir is not in the direct line (like spouse), only the legitime is given to him/her and the institution of heir is annulled up to that extent only 5. As intestacy results, the previous appointment of the executor is rendered mo ot. The appointment of an administrator is necessary

When preterition does not annul institution of heirs: Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand the same be fully satisfied (906) 1. By any title means whether by donation inter vivos, heirship, or legacy 2. Hence, so long as the heir has gratuitously received any property (at any tim e), his omission or preterition does not annul the institution of the heir but e ntitles the compulsory heir to demand merely that his legitime be completed (act io ad supplendam legitimam) 3. A donation inter vivos to the omitted heir does not bar his preterition; but the omission in the case was intentional, and not a true preterition Improper Disinheritance of forced heir (918) 1. Disinheritance that is without a specification of the cause or for a cause th e truth of which if contradicted, is not proved; or for a cause that is not one of those set forth in this Code 2. Shall annul the institution of heir insofar as it may prejudice the person di sinherited; but the devises and legacies and other testamentary dispositions sha ll be valid to such extent as will not impair the legitime The institution is wholly Improper disinheritance void, and the stranger instituted to the whole estate Preterition The institution is not wholly void, cannot retain any part of the same but only insofar as the legitime is affected ; hence, the stranger is instituted to whole estate may retain the free part compulsory Disinheritance Preteritionheir is deprived of his legitime by omission thus deprivation is taci the omitted there is or there cause law presumesheir gets both voluntarysomeinvoluntary his legitime and his share in the free portion teprivation islegalis an oversight or mistake committed by the testator not di d express nullity of institution of heir is only heir is totally excluded legaciestotalpartial sposed by the devisees orfrom the hereditary estate Effect of void institution: The property bequeathed passes to the following: 1. First to the substitute; if none 2. To the co-heir, if the requisites of accretion are present; 3. To the heirs intestate Art. 855. (completion of legitime) The share of a child or descendant (must be a ll compulsory heirs in the direct line) omitted in a will 1. must first be taken from the part of the estate not disposed of by the will, if any; 2. if that is not sufficient, so much as may be necessary must be taken proporti onally from the shares of the other compulsory heirs. Article applies only: 1. omitted compulsory heir predeceased the testator 2. omitted compulsory heir had already received an advance but insufficient legi time if there are voluntary heirs = their shares must first be reduced proportionatel y Art. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who ? dies before the testator, ? a person incapacitated to succeed, and ? one who renounces the inheritance, o shall transmit no right to his own heirs except in cases expressly provided fo r in this Code. 1. Voluntary heir a. predeceased testator = his heirs will not get anything b. died after testator s death = can be represented by his descendants

2. Repudiated their share a. may not be represented; their shares will go to co-heirs as accretion b. all the heirs repudiate = heirs of the repudiator who are next in degree will succeed 3. Compulsory heir a. dies ahead of testator or incapacitated = his heirs will represent b. disinherited heir = represented (same as incapacity) = representation is limi ted to legitime SECTION 3. - Substitution of Heirs Art. 857. Substitution is the appointment of another heir so that he may enter i nto the inheritance in default of the heir originally instituted. (conditional i nstitution of heir) Objectives of Substitution: 1. prevent intestate succession 2. prevent the descent of the estate to those not preferred by the testator Scope: apply to compulsory heir, devisees and legatees Nature: 1. recognition of freedom of disposition 2. conditional institution being subordinated to the principal or original insti tution 3. cannot apply to legitimes; only to free portion Classes or types: Removed by New CC: 1. Sustitucion pupilar = where the parents and other ascendants appointed substi tutes for their descendants of both sexes under 18 years of age in case these de scendants should die before attaining this age 2. Sustitucion ejemplar = where an ascendants appointed a substitute for his des cendants over 18 years of age who has been legally declared to be incapacitated on account of being of an unsound mind The Remaining Basic Types: 1. Vulgar (simple or common) = either the original heir or the substitute (succe ssion alternative). If one succeeds, the other does not a. Every Vulgar substitution (ordinary, brief or reciprocal) necessarily involve s a suspensive conditional institution (for the substitute heir). The substitute will succeed only if the original heir does not inherit. 2. Fideicommissary = Both the original heir (Fiduciary) and the substitute (Fide icommissary) inherit at the same time from the testator; but possession and enjo yment is held by the Fiduciary ahead of the Fideicommissary heir (succession is simultaneous, but enjoyment and possession is successive) a. Every Fideicommissary substitution involves an institution under suspensive p eriod for the substitute heir Whether the substitution be vulgar or fideicommissary, either may be: 1. Brief or Compendious = one substitute for two or more heirs; two or more subs titutes for one heir; or 2. Reciprocal = rare in Fidecommissary types, but possible 3. Ordinary = one substitute for each other Art. 858. Substitution of heirs may be: (1) Simple or common; (2) Brief or compendious; (3) Reciprocal; or

(4) Fideicommissary. Art. 859. (vulgar or simple substitution) The testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs s hould ? die before him, or (predecease) ? should not wish, or (repudiation) ? should be incapacitated to accept the inheritance. (incapacity) A simple substitution, without a statement of the cases to which it refe rs, shall comprise the three mentioned in the preceding paragraph, unless the te stator has otherwise provided. Effect of Substitution: Art. 862. The substitute shall be subject to the same charges and conditions imp osed upon the instituted heir, unless ? the testator has expressly provided the contrary, or ? the charges or conditions are personally applicable only to the heir institute d. Simple Substitution is extinguished: 1. invalidity of the will 2. institution of heir is annulled 3. substitute predeceases the testator 4. substitute is incapacitated 5. substitute renounces the inheritance 6. testator revokes the institution or substitution Art. 860. (brief substitution) Two or more persons may be substituted for one; a nd (compendious substitution) one person for two or more heirs. Effect: 1. Plurality of Substitutes = The share of the original heir is divided among th e several substitutes in equal parts, unless otherwise provided by the testator 2. Plurality of persons substituted = The substitute acquires the shares of thos e who do not inherit Art. 861. (reciprocal substitution) If heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the in tention of the testator was otherwise. If there are more than one substitute, th ey shall have the same share in the substitution as in the institution. Reciprocal Substitution = several heirs are instituted and each is to be substit uted by his co-heirs Effect: 1. Only two heirs reciprocally substituted a. the substitute acquires the whole share that the other heir left vacant, whet her that share is larger or smaller than his own, unless it clearly appears that the intention of the testator was otherwise 2. More than two heirs reciprocally substituted a. the vacant share must be divided among the substitutes in the same relative p roportion as the respective shares given to them by the testator SITUATION: Heir A = 3 / 4 Heir B = 1 / 4 ? If A does not inherit, all his goes to B Heir A = 1 / 4

Heir Heir ? A does not ? B does not

B = 1 / C = 1 / inherit inherit

2 4 = his share will be proportionately divided by B and C = his share will be equally divided between A and C

2:1

(mem) Art. 863. A fideicommissary substitution by virtue of which ? the fiduciary or first heir instituted is entrusted ? with the obligation to ? preserve and to transmit to a second heir the whole or part of the inheritance , ? shall be valid and shall take effect, provided such substitution o does not go beyond one degree from the heir originally instituted, and provide d further, o that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

Requisites: 1. Substitution must be express 2. Substitution must no go beyond one degree from the heir originally instituted o Pineda and Paras = degree refers to relationship THUS transfer must be from fa ther to son o Reyes and Puno = degree refers to transfer 3. That the fiduciary or first heir and the second heir are living at the time o f the death of the testator ? fideicommissary substitution void = institution of 1st heir not affected ? 2nd heir does not succeed 1st heir but the testator o 2nd heir must be capacitated to succeed the testator at the time of the latter s death o 2nd heir predeceased the testator = former s heir cannot inherit (no representat ion) o 2nd heir died after the testator = has representation Effects as to Fiduciary: 1. He must make an inventory of the trust property 2. He must preserve the capital of the property 3. He must deliver the inheritance to the Fideicommissary (or heirs of the latte r) a. Deductions: Only those that arise from i. Legitimate expenses (defense of the estate) ii. Credits (advances for the benefit of the estate) iii. Improvements (usufructuary) save in the case the testator provided otherwis e b. Time of delivery of fideicommissary: i. The date fixed by testator ii. If none, at the death of the fiduciary heir Effects as to Fideicommissary: 1. He acquires the right to the succession as of the death of testator; 2. If he dies ahead of the Fiduciary, but after the testator, the rights of the fideicommissary pass to his own heirs (fideicommissary substitution is not extin guished) 3. If the fideicommissary heir is disqualified to inherit or repudiates, the sub

stitution is inoperative ? Predecease of Fiduciary, entitles Fideicommissary to succeed testator Art. 864. A fideicommissary substitution can never burden the legitime. Art. 865. Every fideicommissary substitution must be expressly made in order tha t it may be valid. The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from ? legitimate expenses, ? credits and ? improvements, o save in the case where the testator has provided otherwise. ? time of delivery = upon the death of the 1st heir or fiduciary ? prop is alienated by 1st heir = buyer acquired merely the rights of the 1st he ir (buyer must deliver to 2nd heir) o if covered by TCT = 2nd heir should cause registration OTHERWISE might lose pr op Art. 866. The second heir shall acquire a right to the succession o from the time of the testator's death, ? even though he should die before the fiduciary. o The right of the second heir shall pass to his heirs. Art. 867. (forbidden circumstances) The following shall not take effect: (1) Fideicommissary substitutions which are not made in an express manne r, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir; (2) Provisions which contain a perpetual prohibition to alienate, and ev en a temporary one, beyond the limit fixed in article 863; (870) (3) Those which impose upon the heir the charge of paying to various per sons successively, beyond the limit prescribed in article 863, a certain income or pension; (869) (4) Those which leave to a person the whole part of the hereditary prope rty in order that he may apply or invest the same according to secret instructio ns communicated to him by the testator. ? Nullity of the fideicommissary substitution does not prejudice the validity of the institution of heirs first designated. The fideicommissary clause shall sim ply be considered as not writted. ? EXCEPT in No. 4. Here the entire disposition is void Art. 868. The nullity of the fideicommissary substitution * does not prejudice the validity of the institution of the heirs first designat ed; * the fideicommissary clause shall simply be considered as not written. REASON: institution is the principal disposition, whereas the substitution is ju st the accessory disposition Art. 869. A provision whereby * the testator leaves to a person the whole or part of the inheritance, and * to another the usufruct, o shall be valid. * If he gives the usufruct to various persons, * not simultaneously, but successively, o the provisions of article 863 shall apply. (substitution shall not go beyond 1 degree)

if given simultaneously = then all the 2nd heirs shall become co-owners Art. 870. The dispositions of the testator declaring all or part of the estate i nalienable for more than twenty years are void. * applies only to prop derived from free portion * if prohibition exceeds 20 years = excess is void * testator cannot impose upon a compulsory heir an obligation not to alienate a prop received as legitime within a period of 20 years or for any period at all * if alienation prohibited during lifetime and died before 20 years passed = pro hibition terminates upon death * prohibition to divide a property = can apply to legitime may be can onlyinindesignated expressly As to constitution Trusteedesignated or designationby means acts which FiduciarybeTrust either expressly throughof a will may either be inter vivos Fideicommisary Substitution may alienate hisof right has no usufructuarythe rights entitled causa or impliedly bythe property property but always subject to his o As to right alldispositionusufruct usufructuary or mortisto of enjoyment overofoperation ofwhich he holds in trust right of a over the law trustee cannot alienate anything whatsoever bligation of preserving and transmitting it to a second heir SECTION 4. - Conditional Testamentary Dispositions and Testamentary Dispositions With a Term Classes of Institution of Heirs: 1) Simple or pure: = The heir or legatee acquires the inheritance from the death of the testator 2) Conditional Institution = (871-877) its effectivity is subordinated to the ha ppening or non-happening of a fact or event which is both future & uncertain a.) Condition is a future and uncertain event depending: 1. upon chance (casual); or 2. upon the exclusive will of the heir (potestative); or 3. upon both 1 & 2 (mixed) b.) No condition is imposable on the legitime (Art 872) EXCEPT: 1. Payment of legitime in cash where an industrial, agricultural or manufacturin g establishment is allotted entirely to one heir by the parent (1080(2)) 2. Imposition of indivision for not more than 20 years (1083(1)) c.) Impossible, illegal and immoral conditions (precedent) are considered not im posed; therefore, the effect is that of pure institution 1. The same rule applies in donations (727) 2. The reverse rule is true in ordinary obligations (1183) where the obligation itself is void 3. Condition (suspensive) not to contract a first marriage is illegal and void, if absolute (not to marry any person, at any time, in any place) 4. Condition (suspensive) not to contract a second or subsequent marriage is val id if i. Imposed upon the surviving spouse; and ii. By the deceased spouse or by descendants or ascendants of the deceased 5. Condition (resolutory) not to contract marriage (during widowhood; while unma rried) is valid (because the institution is operative before the condition happe ns) PROVIDED it affects usufruct, an allowance or some personal prestation (not ownership) 6. Disposicion Captatoria = condition that the heir make a will in favor of anothe r, or in favor of the testator, is VOID (875) d.) Time of fulfillment of potestative, casual, or mixed conditions (876, 877) 1. POTESTATIVE CONDITION = must be fulfilled as soon as the death of the testato r is learned, even if already fulfilled before UNLESS repetition is impossible 2. CASUAL or MIXED CONDITION:

i. Not performed before the testator s death = must be performed ii. Already performed before his death BUT: a. Previous performance UNKNOWN to the testator = need not be repeated b. Previous performance KNOWN (and therefore repetition is impliedly demanded) b y the testator 1st. can be repeated = must be performed anew 2nd. can not be repeated = deemed excused 3. NEGATIVE POTESTATIVE CONDITION = the heir must give security (caucion muciana ) before entering into possession; that if the condition be not performed, he wi ll return the property and fruits or interest (879). The estate is to be under a dministration until the bond is given (880(2)) e) Performance of conditions: 1. Equivalent (constructive) performance is admitted only where the i) Person interested in non-performance prevents the performance; or ii) the potestative condition is dependent upon the heir and he does all he poss ibly can to comply 2. Casual and mixed conditions must be strictly performed; no equivalent perform ance is allowed 3. If the interested party prevents the performance, without fault of the heir, the condition is deemed fulfilled (883(2)) f) Effect of suspensive condition: 1. Estate to be placed under administration until the condition is fulfilled, or it becomes certain that the condition will not be fulfilled (880) 2. If the condition is suspensive and negative, the estate is placed under admin istration until security (caucion muciana) is given (880(2)) 3. An administrator is appointed (881) 4. The heir must have capacity to succeed at the time of death of the testator a nd at the fulfillment of condition. Otherwise, the heir does not acquire or tran smit (1034). [Compare this with a suspensive period (878) where the heir acquire d and transmits] 5. Other effects are governed by the rules of conditional obligations 3) Institution with a period (or term) = (878, 880, 885) term is the day or tim e when the effect of an institution of heirs is to begin or cease a. suspensive or ex diem = effects commence from a certain day or time i. Does not prevent the instituted heir from acquiring rights and transmitting t hem to his heirs before arrival of the term (878) ii. compare this with suspensive conditions (1034) [no acquisition or transmissi on unless fulfilled] b. resolutory or in diem = effects cease on a certain day or time Effect of suspensive or resolutory term BEFORE the day arrives: the legal (intes tate) heir shall be considered as called until the arrival of period or upon its expiration (885) i If the term be suspensive, the legal (intestate) heir shall not enter into pos session until he gives sufficient security, with the intervention of the heir in stituted 4) Modal Institution = (871, 882, 883) institution of an heir is made, for a cer tain purpose or cause a. Modo (modus) may consist in either: 1) A special object (purpose) of institution, stated in the will; or 2) Application of property left by the testator; or 3) A charge imposed on the heir b. The presumption is against a condition but in favor of modo c. Effect of modo 1) The heir may claim the property upon him or his heirs, giving security for co mpliance with the testator s wishes or the return of what has been received with f ruits or interest (882(2))

2) Non compliance of modo operates as a negative resolutory condition (the propert y must be returned with fruits) 3) If exact compliance is not possible, it shall be complied in the manner most analogous to and conformable to the testator s wishes (803) this article is limite d to modo and does not apply to conditions d. Institution of pious works and prayers (1029) to the church; to the State Collective (Group or Class) Institutions: A. Relatives in General (of the testator) includes only the nearest in degree (9 59) a. But institution of relatives of another person is void for uncertainty B. Institution of the poor in general is understood limited to those of the domi cile of the testator, unless it should clearly appear that the intent was otherw ise. Designation of who are to be held as poor is made (upon approval of Court) by : a. The executor or person designated in the will (786); IF NONE b. By a Board composed of the Mayor, municipal treasurer and MTC judge (1030) Art. 871. The institution of an heir may be made conditionally, or for a certain purpose or cause. Art. 872. The testator cannot impose any charge, condition, or substitution wha tsoever upon the legitimes prescribed in this Code. Should he do so, the same sh all be considered as not imposed. GR: Burden, condition, charge, or substitution on the legitime is considered as unwritten EXCEPTION: testator can impose a condition that prop. cannot be divided wiithin 20 yrs EX TO THE EX: 1. when any of the causes for dissolution of a partnership takes place; and 2. where there are compelling reason for the division as found by the court Art. 873. Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should otherwise provide. Classification of Impossible Condition: 1. Juridical Impossibility = when a legal and permanent obstacle obstructs its r ealization (impossibility in law) * No contest and forfeiture clause = invalid 2. Physical Impossibility = realization of the event constituting the condition is incompatible or contrary to nature (impossibility in fact) G ambiguous conditions = considered as impossible conditions; deemed not written G time to determine impossibility = at the moment of performance Art. 874. (GR) An absolute condition not to contract a first or subsequent marri age G shall be considered as not written G (EX) unless such condition has been imposed on the widow or widower o by the deceased spouse, or o by the latter's ascendants or descendants. (daughter in law, son in law, step -father in the will of step-child) Nevertheless, the right of usufruct, or an allowance or some personal pr estation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood. G must expressly state both the condition and the consequence of non-fulfillment

= if consequence not stated = can still inherit G violation = legitime is not affected; only share in the free portion is affect ed Art. 875. Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be v oid. (Disposicion Captatoria) G disposition itself is void, not merely the condition Art. 876. Any purely potestative condition imposed upon an heir ? (GR) must be fulfilled by him as soon as he learns of the testator's death. (c ompliance after death) ? This rule shall not apply o (exception) when the condition, already complied with, cannot be fulfilled aga in. Potestative Condition= the fulfillment of which is dependent purely on the exclu sive will of the heir, devisee or legatee and the condition must be done by him personally Art. 877. If the condition is casual or mixed, it shall be sufficient ? if it happens or be fulfilled at any time before or after the death of the tes tator, ? unless he has provided otherwise. Should it have existed or should it have been fulfilled at the time the will was executed and ? the testator was unaware thereof, o it shall be deemed as complied with. If he had knowledge thereof, ? the condition shall be considered fulfilled only ? when it is of such a nature that it can no longer exist or be complied with ag ain. Casual Condition = does not depend exclusively upon the will of the heir , devisee or legatee, but upon chance and/or upon the will of a third person Mixed Condition = depends partly upon the will of the heir, devisee, or legatee and partly upon chance and/or will of a third person Art. 878. A disposition with a suspensive term does not prevent the instituted h eir ? from acquiring his rights and ? transmitting them to his heirs o even before the arrival of the term. G heir acquires rights from the opening of the succession (but must ask the cour t for delivery: Art 953) G heir predeceased testator = cannot inherit anymore G heir died after testator but before the condition was fulfilled = cannot inher it G heir died after testator but before the arrival of the term = can still inheri t Art. 879. If the potestative condition imposed upon the heir is ? negative, or ? consists in not doing or ? not giving something,

? he shall comply by o giving a security (caucion muciana) that he will not do or give that which has been prohibited by the testator, and o that in case of contravention he will return whatever he may have received, to gether with its fruits and interests. Negative Potestative Condition = potestative condition which consists in not doi ng or not giving something Art. 880. If the heir be instituted under a suspensive condition or term, the e state shall be placed under administration * until the condition is fulfilled, or * until it becomes certain that it cannot be fulfilled, or * until the arrival of the term. The same shall be done if the heir does not give the security required i n the preceding article. Suspensive Condition = when fulfilled will make successional rights aris e (what is acquired by heir is mere hope) Resolutory Condition = when fulfilled, successional rights already acqui red by the heir by virtue of the institution, are extinguished Conflict w/ 885: 880 confined only to institutions with suspensive condition 885 applies if institution is subject to arrival of the term Art. 881. The appointment of the administrator of the estate mentioned in the p receding article, as well as the manner of the administration and the rights and obligations of the administrator shall be governed by the Rules of Court. 1. Executor = (letters testamentary) person named by the testator in his implement his testamentary dispositions and appointed by the court 2. Administrator = (letters of administration) appointed by the court to ter the estate of a deceased who died without a valid will 3. Administrator with a Will Annexed = (letters of administration with a nexed) appointed by the court to administer the estate of a deceased who * with a will but failed to name an executor, or * if the executor so named is either incompetent or refused the trust 4. Special Administrator = appointed temporarily will to adminis will an died

Art. 882. (Modal Institution) The statement of the * object of the institution, or * the application of the property left by the testator, or * the charge imposed by him, * shall not be considered as a condition unless it appears that such was his int ention. That which has been left in this manner may be claimed at once provided that * the instituted heir or his heirs give security (if mode is violated) o for compliance with the wishes of the testator and o for the return of anything he or they may receive, o together with its fruits and interests, if he or they should disregard this ob ligation. the instituted heir Conditional Institution Modal Institution can immediately take possession of the prop bequeathed or de vised provided he puts up a security to assure compliance with the wishes of the Institution with a suspensive condition, the instituted heir cannot take the pro testator

p. in the meantime even if he desires to put up a security. Instead, the prop. s the condition until a but does not obligate not modeaobligates but does not suspend he who placedobligatesmode is already heir hallyetinheritsunder adm.fulfillment ofathe condition imposed be heir with the Art. 883. When without the fault of the heir, (substantial compliance is enough ) ? an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, ? it shall be complied with in a manner most analogous to and in conformity with his wishes. If the person interested in the condition should prevent its fulfillment , without the fault of the heir, (constructive compliance) ? the condition shall be deemed to have been complied with. Art. 884. Conditions imposed by the testator upon the heirs shall be governed b y the rules established for conditional obligations (Bk IV of CC) in all matter s not provided for by this Section. (Art 871-875) Art. 885. (institution with a suspensive term) The designation of the day or time when the effects of the institution o f an heir shall commence (suspensive term or ex die) or cease (resolutory term o r in diem) shall be valid. In both cases, the legal heir shall be considered as called to the succe ssion until ? the arrival of the period or ? its expiration. ? But in the first case (ex die) o he shall not enter into possession of the property o until after having given sufficient security, o with the intervention of the instituted heir. (security must be acceptable to the instituted heir; legal heir considered usufructuary) V if legal heir does not secure the security required, the prop. shall go to the possession of the next legal heir, who is ready to put up the security required SECTION 5. - Legitime Art. 886. Legitime is that part of the testator's property which he cannot dispo se of because the law has reserved it for certain heirs who are, therefore, call ed compulsory heirs. Legitime of Compulsory Heirs may be disturbed: 1. preterition of a compulsory heir in the direct line (854) 2. not giving the full legitime of the heir to which he is entitled (906) 3. imperfect or defective disinheritance of the compulsory heir (918) 4. validly disinheriting the compulsory heir (915) Succession to the legitime is independent of the will of the testator; it is for ced upon him, and is a case of succession by law, like intestacy the law seeks to follows what theof the the estate, desired if credit for the Intestacy Legitimedisregards the intentiongoods oftestator havenot merely ahe made a will principle is a share in the testator would money value of the share (except 1080(2)) Art. 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimat e parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction

; (5) Other illegitimate children referred to in article 287. (NOW: all ar e illegitimate children entitled to of the legitime of a legitimate child) Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly prov ed. The father or mother of illegitimate children of the three classes menti oned, shall inherit from them in the manner and to the extent established by thi s Code. Classification of Heirs: 1. Compulsory heirs = entitled to legitimes which the testator cannot impair 2. Voluntary heirs = become such only bec. they were instituted in the will; can only be given the free portion Classification of Compulsory Heirs: 1. primary compulsory heirs = entitled to legitime whenever present a. legitimate children & their descendants b. the widow or widower c. illegitimate children 2. secondary compulsory heirs = entitle to legitime only in default of others a. legitimate parents and ascendants (in default of legitimate children and desc endants of the testator) b. the father or mother (not other descendants) of deceased illegitimate childre n (in default of legitimate or illegitimate children and descendants of the dece ased) c. NOTE that legitimate parents and ascendants are not excluded by illegitimate descendants; BUT the illegitimate parents are excluded by any descendants whatso ever, legitimate or illegitimate (903) Position of Adopted children: * adopted child is considered a legitimate child of the adopting parent with all the rights appurtenant to one legitimate child (if preterited, the institution is void) * Sec 17 of RA 8552 = the adoptee shall be considered the legitimate child of th e adpoter/s for all intents and purposes * Sec 18 RA 8552 = (testamentary succession) the adopter/s and the adoptee shall have reciprocal rights of succession * Who are the parents considered as compulsory heir the adopting or biological p arents? o all legal ties between the biological parents and the adoptee shall be severed and the same shall be vested on the adpoters o SO: adopting parents are compulsory heirs Art. 888. The legitime of legitimate children and descendants consists of ? one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, (free portion) ? subject to the rights of o illegitimate children and o of the surviving spouse as hereinafter provided. (preferred legitime) If free portion is not enough to accommodate the legitimes of all illegi timate children (after spouse s legitime was taken), THERE WILL BE AN ADJUSTMENT O F THEIR SHARES by the division of the remainder of the free portion by the no. o f illegitimate children

* legitimes of the legitimate children and the spouse will not be disturbed (rel w/ 895) Art. 889. The legitime of legitimate parents or ascendants consists of * one-half of the hereditary estates of their children and descendants. The children or descendants may freely dispose of the other half, * subject to the rights of o illegitimate children and o of the surviving spouse as hereinafter provided. Art. 890. The legitime reserved for the legitimate parents shall be ? divided between them equally; ? if one of the parents should have died, the whole shall pass to the survivor. If the testator leaves neither father nor mother, but is survived by asc endants of equal degree of the paternal and maternal lines, ? the legitime shall be divided equally between both lines. ? If the ascendants should be of different degrees, o it shall pertain entirely to the ones nearest in degree of either line. No right of representation in the ascending line

(mem!) Art. 891. (Reserva Troncal) The ascendant who inherits from his descendan t any property which the latter may have acquired by gratuitous title from anoth er ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are withi n the third degree and who belong to the line from which said property came. Reserva Troncal = It is the duty imposed by law upon ascendants who inherit from descendants to preserve certain properties of the estate for specified relative s belonging to the line from which the property came i exists only in the legitimate family; hence illegitimates may no claim it in t heir favor i adopted child has the same rights as legitimate children Requisites: 1. property should have been inherited by operation of law by an ascendant from his descendants upon the death of the latter 2. property should have been previously acquired by gratuitous title by the desc endant from another ascendant, brother or sister; and 3. descendant should have died without any legitimate issue in the direct descen ding line who could inherit from him. Elements of the Reserva: A] Ascendant who inherits from descendant (reservista) 4. Must be legitimate, qualified and willing to inherit 5. Descendant (prepositus) must leave a. No legitimate descendants; or b. No legitimate descendants qualified or willing to inherit. c. Presence of illegitimates, without concurring legitimate descendants, does no t bar ascendants from inheriting 6. Inheritance from the prepositus (descendant) may be testamentary or intestate 7. Inheritance must involve transmission of property to another line of relative

s B] Reservable Property (real or personal) 1. Must come from another ascendant or brother a. Another ascendant is one belonging to a line other than that of the reservista b. Brother or sister must be of half blood as to the descendant (prepositus); othe rwise the property would not change line in passing to a common ascendant of the prepositus and the brother c. Hence, if the property came from other persons (neither an ascendant nor a br other), it is not reservable 2. Must be acquired (by the prepositus) by lucrative title a. Lucrative title means donation or succession (testamentary or intestate) 3. Must pass to ascendant (reservista) by operation of law a. Operation of law means either by way of legitime or intestate succession b. Property left to the ascendant by will, but chargeable to the free portion, i s not reservable c. What portion of inherited property is subject to reserva, when acquired by wi ll, leaving all the property of the prepositus to the ascendant reservista i. Theory of reserva maxima: all of the property inherited from the prepositus u p to the value of the legitime is reservable ii. Theory of reserva proporcional or minima: Only half (corresponding to the le gitime) of the property coming from the prepositus and acquired from another asc endant by him, becomes reservable SITUATION: Prepositus died, he left a will: passes as legitime, the other half a s voluntary heir 1. Reserva Maxima = reserva shall apply to all prop 2. Reserva Minima = of the prop acquired gratuitously by the propositus shd be r eservable & the other half shd be free C] Beneficiaries of reserva (reservatorios) 1. Must belong to the line from which the property (originally) came to the hand s of the prepositus 2. Must be legitimate relative of that line a. Reservatorio must be related (by blood) to the prepositus and to the brother or other ascendant who gratuitously gave the property to the prepositus 3. Must be within the third degree a. Degree is of relationship b. Third degree is counted from the prepositus (descendant) c. Right of representation is only admitted within the third degree; a cousin (4 th degree) of the preposius can not become reservatorio by representing his fath er D] Reservatorio must survive reservista 1. Because survival is a condition of succession (1025) 2. But the reservatorio need not be capable of succeeding the reservista since h e does not inherit from the latter, but from the prepositus

Rights and Duties of the Parties: A] Of the reservista (ascendant) 1. He must inventory the reservable property 2. He must annotate the reservable character of real property in the Registry of

Deeds a. Within 90 days from adjudication b. After 90 days, any one of the reservatorios within the third degree may sue t o compel annotation, regardless of degree 3. He must furnish a bond to answer for the return of the property (or its value ) 4. The reservista is a conditional owner of the reservable property during his o r her lifetime, subject to the resolutory condition of the existence and surviva l of reservatorios. Consequently a. The reservista may make improvements, with right of reimbursement from reserv atorios b. The reservista may dispose of the reservable property inter vivos, subject to devolution by the transferee upon the reservista s death i. Reservatorios may not set aside the alienation before the death of the reserv ista ii. But they may sue to annotate the reserva, if the transferee acquired it from reservista within 90 days after adjudication of the reservista iii. But one who purchases property after 90 days, without knowledge of its rese rvable character, acquires good title free from the Reserva c. But the reservista may not dispose mortis causa of the reservable property; t he reservatorios must acquire it by operation of law upon death of the reservist a B] Rights of the Reservatorios Before the death of the reservista: 1. They have the right to compel annotation of the reservable character after 90 days from adjudication to the reservista and action may be brought by any and a ll relatives within the 3rd degree from the prepositus. 2. They may demand security to guarantee the return of the property (real or per sonal) or its value and indemnity for any damages 3. Each may alienate his right as reservatorio After the death of the reservista: 1. Reservatorios nearest to the prepositus (proximity rule) take the reservable property, and may sue to recover from alienees with knowledge of its reservable character or chargeable with such knowledge (acquired it within 90 days from adj udication of the reservista) 2. There is no distinction of lines (Pineda: preference given to the heirs in th e direct line as against the heirs in the collateral line) 3. Nephews and nieces of the prepositus have a right of representation 4. Reservatorios may sue the reservista s Estate for the value of the unreturned p roperty and for damages due to the fault of the reservista. V (Pineda) Full blood shall be entitled to double the share of the half blood Extinguishment of Reserva Troncal: (mem!) 1. Death of the reservista (property reverts to reservatorios) 2. Death or incapacity of all would-be reservatorios during the lifetime of the reservista (title consolidated in the reservista) 3. Accidental loss of the reservable prop a. If the reservista is al fault, he is liable for damages b. Reservatorios may claim the insurance money at the death of the reservista 4. Prescription (adverse possession) a. By the reservista in 30 years (immovable) or 8 years (movable) [NOTE that onl y extraordinary prescription would be possible, since the reservista would be in bad faith] b. By a stranger: 10 years (in good faith) or 30 years (immovable); 4 or 6 years for movable 5. Registration as free (not reservable) under the Torrens System a. If registered as free by the reservista, it is subject to action for reconvey

ance while held by him 6. Waiver by all the reservees after the death of the reservista a. If only some of the reservatorios waive, the others may claim the property b. There may be no valid waiver during the lifetime of the Reservista 7. estoppel & laches of the reservatorios Rules on distribution of legitimes: Legitimate Children and Descendants: 1. Children inherit in equal shares (per capita) 2. Grandchildren inherit by right of representation a. Representation only takes place in case the nearer descendant predeceases, is incapacitated, or is disinherited b. Those succeeding by representation shall not inherit more than what the perso n they represent would inherit, if living or able to succeed (per stirpes) [974] c. In case that all those of nearer degree repudiate the inheritance, then those of the next degree succeed in their own right (per capita) [969] Illegitimate Children and descendants: 1. Total shares shall not exceed the free part, after deducting the legitime of the surviving spouse (895) regardless of the number of participants 2. Descendants of illegitimates have a right of representation. The right of ill egitimate children (to the legitime) are transmitted upon their death to their d escendants whether legitimate or illegitimate (902). [This right is nowhere gran ted to illegitimate descendants or legitimate children, because of the spirit of 992) Legitimate Parents and Ascendants (890) 1. the legitime is divided equally between paternal and maternal lines 2. Within each line: Ascendants of equal degree inherit equal shares (per capita ). Ascendants of different degree: the nearest excludes farther ones 3. With ascendants of different lines, the nearest ascendant excludes all other ascendants (there is no representation in the ascending line) [890] 4. The legitime of Parents and Ascendants is subject to Reserva Troncal Surviving Spouse (widow or widower) 1. In case of legal separation, the surviving spouse may inherit if innocent (if it was the deceased who had given cause for the same) [892] 2. The legitime is taken from the free part (not from the half of legitimate des cendants)

Illegitimate Parents: 1. If only one is known and has recognized, the latter takes the whole of legiti me 2. If both are known and have recognized, they divide the legitime equally 3. Ascendants of illegitimate testator (other than parents) have no legitime Art. 892. If only one legitimate child or descendant of the deceased survives, a. the widow or widower shall be entitled to one-fourth of the hereditary estate . b. In case of a legal separation, ? the surviving spouse may inherit if it was the deceased who had given cause fo r the same. If there are two or more legitimate children or descendants, V the surviving spouse shall be entitled to a portion equal to the legitime of e ach of the legitimate children or descendants.

In both cases, V the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. When the grandchildren inehrits: (as when right of representation exist) The legitime of the spouse is still equal to the legitime of one child, NOT the grandchildren = THIS RULE APPLIES even if all children repudiate Art. 893. If the testator leaves no legitimate descendants, but leaves legitima te ascendants, V the surviving spouse shall have a right to one-fourth of the hereditary estate . This fourth shall be taken from the free portion of the estate. ascendants are illegitimate (903) Art. 894. If the testator leaves illegitimate children, V the surviving spouse shall be entitled to one-third of the hereditary estate o f the deceased and (not taken from the free portion) V the illegitimate children to another third. V The remaining third shall be at the free disposal of the testator. Art. 895. [modified by the FC] the legitime of each illegitimate child shall consist of of the legitime of a le gitimate child = if free portion is not enough = they shall divide equally among themselves th e free portion Art. 896. Illegitimate children (1/4) who may survive with legitimate parents o r ascendants (1/2) of the deceased shall be entitled to V one-fourth of the hereditary estate to be taken from the portion at the free d isposal of the testator. Art. 897. Art. 898. (both modified by FC) Art. 899. (unholy article) When the widow or widower survives with legitimate p arents or ascendants and with illegitimate children, V such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and V the illegitimate children shall be entitled to one-fourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. Art. 900. (GR) If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the t estator may freely dispose of the other half. (EXCEPTION) If the marriage between the surviving spouse and the testato r was solemnized in articulo mortis, and the testator died within three months f rom the time of the marriage, the legitime of the surviving spouse as the sole h eir shall be one-third of the hereditary estate, V (EXCEPTION TO THE EXCEPTION) except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. Cause of death of the testator = same kind of sickness which the testator was al ready suffering from at the time of the marriage in articulo mortis

Art. 901. (biggest legitime for illegit.) When the testator dies leaving illegi timate children and no other compulsory heirs, V such illegitimate children shall have a right to one-half of the hereditary es tate of the deceased. The other half shall be at the free disposal of the testator. (impt!) Art. 902. The rights of illegitimate children set forth in the precedin g articles are transmitted upon their death to their descendants, whether legiti mate or illegitimate. Right of representation covers only the legitime of an illegitimate child. DOES NOT GRANT same right to the illegitimate children of a legitimate child

Art. 903. (estate of an illegitimate child) The legitime of the parents who have an illegitimate child, when such ch ild leaves neither legitimate descendants, nor a surviving spouse, nor illegitim ate children, is V one-half of the hereditary estate of such illegitimate child. V If only legitimate or illegitimate children are left, o the parents are not entitled to any legitime whatsoever. V If only the widow or widower survives with parents of the illegitimate child, o the legitime of the parents is one-fourth of the hereditary estate of the chil d, and o that of the surviving spouse also one-fourth of the estate.

Intangibility of the legitime: 1. No deprivation: The testator cannot deprive his compulsory heirs of their leg itime except in cases provided by law (v. Disinheritance) [904] 2. No condition or substitution: Neither can he (testator) impose upon the same (legitime) any burden, condition or substitution of any kind whatsoever (904, 87 2): EXCEPTIONS: a. Payment of Legitime in cash = a parent, who in the interest of his or her fam ily, desires to keep any agricultural, industrial or manufacturing enterprise in tact may avail himself of the right granted him in this article (to make partiti on of his estate) by ordering that the legitime of the other children, to whom t he property is not assigned, be paid in cash (1080(2)) b. Forbidding Partition = The testator may expressly forbid partition, in which case the period of indivision shall not exceed 20 years, as provided in Art. 494 . This power of the testator prohibit division applied to the legitime (1083) [T his prohibition against partition impliedly prohibits alienation of individual s hares, otherwise, the non-partition would be nugatory] 3. No compromise or waiver: (905) a. This rule includes renunciation to the reduction of inofficious donations eit her by the heir s express declaration or by his consenting to the donation (772 (1 )) 4. May compulsory heirs rescind alienations by the testator prejudicial to their legitime? a. If the alienation is gratuitous: Only those who at the time of the donor s deat h have a right to the legitime and their heirs and successors in interest may as

k for the reduction of inofficious donations (772(1)) b. If the alienation is onerous i. The forced heir can bring an action to rescind the contract under Art 1381(3) [ fraud against creditors] ii. any simulated alienation of property with intent to deprive the compulsory h eirs of their legitime shall be void and of no effect. Art. 904. The testator cannot deprive his compulsory heirs of their legitime, e xcept in cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever. (impt!) Art. 905. Every renunciation or compromise as regards a future legitim e between the person owing it and his compulsory heirs is void, and the latter m ay claim the same upon the death of the former; but they must bring to collation whatever they may have received by virtue of the renunciation or compromise. Art. 906. (incomplete legitime) Any compulsory heir to whom the testator has le ft by any title less than the legitime belonging to him may demand that the same be fully satisfied. demand Annulment of Remedy:for heir omission satisfaction totalreceived something, Incomplete fullof the heir of legitime Preteritionlegitime the institution of heirs Art. 907. (excessive testamentary dispositions) Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on peti tion of the same, insofar as they may be inofficious or excessive. (rel 771; 77 2) Remedy: Petition for reduction of the excess; excess be given to compulsory heir s = can be availed only by the compulsory heir Art. 908. To determine the legitime, the value of the property left at the deat h of the testator shall be considered, deducting all debts and charges, which sh all not include those imposed in the will. To the net value of the hereditary estate, shall be added the value of a ll donations by the testator that are subject to collation, at the time he made them. Determination of legitimes and inofficious donations: First Step: Determination of the Net Estate Deduct all debts and charges (excluding legacies) from the value of the property (estate) left by the testator [908] 1. If debts exceed the value of the estate, the latter is insolvent; apply rules of preference of credits 2. Creditors of the insolvent estate cannot demand reduction of donation as inof ficious (772) only compulsory heirs may do this 3. But they may ask rescission of alienations in fraud of creditors (1381(3)) Second Step: Determination of Partible Estate Add donations (inter vivos) to the net estate (908) 1. donations subject to collation = includes donations to strangers, not only dona tions to compulsory heirs. Otherwise, either the legitime or the free part will be smaller than that intended by law 2. The right of the forced heirs to have the value of the donations made to stra ngers considered as part of the estate of the decedent, as expressly declared by Art 818 and 819, was already virtually (so provided) by the prior legislation 3. Thus, if the testator leaves legitimate descendants and P5,000 net estate but donated P50T to strangers: If the donation is not added to the net, then the le gitime and the free part will only by P2,500 each. Either the strangers retain P 50T (unjust to heirs) or they must return P47,500 (unjust to donees)

Third Step: Ascertain legitimes and free part, depending on forced heirs present , and their shares Fourth Step: Imputation of Donations 1. If the donee is a forced heir, impute (charge) donation to the legitime, and excess to the free part (909, 910) 2. If the donee is not a forced heir (even if a relative of testator) the donati on is entirely charged to the free part (909 (2&3)) a. This rule applies to a forced heir who is exempted from collation (1062) Fifth Step: Add the value of donations chargeable to the free portion to the val ue of the legacies given in the will (if any) and reduce if the total exceeds th e available free part. Rules of Reduction: 1. Reduce or annul first the legacies and devisees to the extent necessary a. Legacies (and devises) declared preferred by testator are not to be reduced u ntil other have been applied in full to the payment of the legitime (911 rule 2) b. Legacies (and devises) not declared preferred, shall be reduced pro rata (Ord er given in Art 950 not applicable to reduction made in order to preserve legiti mes) c. Legacies of usufruct or life annuity: If the value exceeds the free part, for ced heirs may elect between i. Complying with the will; or ii. Delivering the entire free part to the legatee (911 rule 3) d. Reduction of devise of real property not conveniently divisible (912) i. If reduction absorbs half of the value or more: realty to go to forced heirs, who will pay the devisee the value of his interest in cash ii. If reduction does not absorb half of the value, realty goes to the devisee w ho will pay the forced heirs the difference. e. Devisee entitled to legitime may retain the entire property if the value does not exceed the free portion plus his share in legitime 2. If (after annulling all legacies) the remainder still exceeds the free part, reduce or annul donations inter vivos as follows: a. Donations made at different dates: reduce or annul first those of more recent date; b. Donations made at the same date: reduce pro rata (773) c. But wedding gifts by parents and ascendants, consisting of jewelry, clothing, and outfit, and not exceeding 1/10 of the free part are not reducible as inoffi cious in any case (1070) Art. 909. Donations given to (legitimate) children shall be * charged to their legitime. Donations made to strangers shall be * charged to that part of the estate of which the testator could have disposed b y his last will. Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code. All donations are collationable = value at the time the donation was made Art. 910. Donations which an illegitimate child may have received during the li fetime of his father or mother, shall be charged to his legitime. Should they exceed the portion that can be freely disposed of, they shal l be reduced in the manner prescribed by this Code. Art. 911. After the legitime has been determined in accordance with the three p

receding articles, the reduction shall be made as follows: (1) Donations shall be respected as long as the legitime can be covered, reducing or annulling, if necessary, the devises or legacies made in the will; (2) The reduction of the devises or legacies shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reduction until the latter have be en applied in full to the payment of the legitime. (3) If the devise or legacy consists of a usufruct or life annuity, whos e value may be considered greater than that of the disposable portion, the compu lsory heirs may choose between * complying with the testamentary provision and * delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. Order of Distribution of Net Estate: 1. legitimes 2. donations inter vivos, if not yet delivered a. 2 or more donation inter vivos = suppression of the more recent 3. preferred legacies and devisees 4. all other devises and legacies pro rata * Art 911 = applies when there are compulsory heirs or there are donations inter vivos which ought to be preserved * Art 950 = no compulsory heirs or no inofficious donations Art. 912. If the devise subject to reduction should consist of real property, w hich cannot be conveniently divided, * it shall go to the devisee o if the reduction does not absorb one-half of its value; and * in a contrary case, to the compulsory heirs; * but the former and the latter shall reimburse each other in cash for what resp ectively belongs to them. * * o o The devisee who is entitled to a legitime may retain the entire property, provided its value does not exceed that of the disposable portion and of the share pertaining to him as legitime.

Art. 913. If the heirs or devisees do not choose to avail themselves of the rig ht granted by the preceding article, * any heir or devisee who did not have such right may exercise it; * should the latter not make use of it, o the property shall be sold at public auction at the instance of any one of the interested parties. Art. 914. The testator may devise and bequeath the free portion as he may deem fit. ?? ?? ?? ??

1 Succession Review emily zen chua

28 Succession Review emily zen chua