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Contents

16 June 2010

16 June 2010...................................................1 21 June 2010...................................................1 23 June 2010...................................................2 28 June 2010...................................................3 5 July 2010......................................................6 28 12 19 21 26 28 June 2010...................................................9 July 2010..................................................12 July 2010..................................................14 July 2010..................................................18 July 2010..................................................21 July 2010..................................................22

I. CONCEPT OF SUCCESSION.............................1

I. CONCEPT OF SUCCESSION
RECONSTRUCTED FROM WRITTEN NOTES Own the cabinet, carpenter. Tradition: actual and constructive SUCCESSION: mode of acquisition, Decedent and heirs  two parties, a legal relation Subjects of succession: mode of acquiring Absence of prenuptial agreement or marriage settlement, default is CPG under the NCC. Ergo, marriage is now a mode of acquiring property under ACP. It’s not only by law, because everything is by law. SUCCESSION A. Subjects a. Decedent (A775) b. Heir B. Objects C. Mode Underline the word PERSON. What is a natural and juridical person. There are only 3: corporation, partnerships and trusts. Natural person lang yang nasa 775. May a juridical person be an heir? A1026 allows corporation to be an heir. Recipient “Leona Hemsley” left ¼ of estate to dogs. May dogs be heir? There is an acceptance requirement in CC 1029 dispose property to one’s soul for pious works. Who is the heir here? The soul of the decedent Cannot be without heirs: churg only managers property, “heredero” “herencia” Kailangang may namamatay sa succession. Art. 41: baby/unborn child can be an heir.

II. WILLS..........................................................3 III. TESTAMENTARY CAPACITY...........................7 IV. SOLEMNITIES OF WILL.................................9

V. INCORPORATION OF DOCUMENT BY REFERENCE....................................................22 VI. CODICILS..................................................22 VII. REVOCATION............................................23 VIII. REPUBLICATION AND REVIVAL.................26 IX. ALLOWANCE OF WILLS...............................28 X. DISALLOWANCE OF WILLS..........................30 XI. INSTITUTION OF HEIRS..............................31 XII. SUBSTITUTION OF HEIRS..........................34 XIII. KINDS OF INSTITUTIONS..........................37 XIV. LEGITIME................................................41

2 August 2010 ..............................................26 4 August 2010...............................................28 9 August 2010...............................................31 11 August 2010.............................................34 16 August 2010.............................................36 23 August 2010.............................................38 1 September 2010.........................................42 6 September 2010.........................................45 8 September 2010.........................................48 13 September 2010.......................................50 15 September 2010.......................................53 20 September 2010.......................................53 22 September 2010.......................................56 23 September 2010.......................................60 27 September 2010.......................................62 29 September 2010.......................................64

XV. PRETERITION............................................49 XIV. RESERVA TRONCAL..................................50

21 June 2010
RECONSTRUCTED FROM WRITTEN NOTES OBJECT - Property acquired through succession. AKA inheritance or estate of deceased (may be used interchangeably What comprises inheritance? Right and obligations, property which decedent owned during lifetime. Are all property part of the estate of the decedent? NO, only those not extinguished by death. How do we know if extinguished? Nothing is said if extinguished by death. Guidelines (what included in inheritance): Purely personal e.g. Garcia’s wife marital status Support Suffrage Are obligations included? YES e.g. Sharon’s contract to perform town fiesta in Cebu cannot be inherited by KC,

XVIII. DISINHERITANCE...................................54 INTESTATE SUCCESSION.................................56 RIGHT OF REPRESENTATION...........................60 RIGHT OF ACCRETION.....................................62 ACCEPTANCE AND REPUDIATION OF THE INHERITANCE.................................................66 COLLATION....................................................67

4 October 2010.............................................68

CAPACITY.......................................................71 CAPACITY

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worth half a million, unjust enrichment so Sharon should return the amount, contractual stipulation. MONETARY/PECUNIARY? Not established. Delivery of things with pecuniary value. Anabelle Rama pangbato lang ang diamonds. Claimant after interment, 20M and 10M. Should Ruffa pay other 10M? No. While obligations form part of the estate, it should not go beyond the values of property in estate UNLESS conjugal in which case the CPG is chargeable. Ruffa pays everything. It remains valid obligation under A1429, not extinguished, but only becomes as a natural obligation. BEFORE estate is distribution, obligation must first be paid.  Manner of payment How about corpse and cadaver? Who will inherit. No one. Corpse is not property, for it is beyond commerce of man. Is it not a right of the nearest of the kin? Right to enforce provision for… Why not include in the inheritance? Ms. Santos. Tawag. A777 – death. Inchoate only before that. Abu Sayyaf example. Actual and presumptive death. Art 43. E.g. of insurance policies and beneficiary. Applicability of Rule 132, issue is insurance benefits. WON one is entitled. Ms. Santos pa rin. A390 and 391 v FC No need for declaration of presumptive death in succession. Father of Jose in coma for 6 months. Confined at the heart center. Intubated to machines, respirator and feeding machines. Brain dead, life support may be unplugged to easen his death, allow him to die naturally. Instructions for death: Creamte, baon, donate.  Open drawers at house and found written document for disposition of property. – Only daughter – 10M@RCBC – Only son – 10M@PNB, brand new Mercedes Benz Jose wants unplugged. Gwapo pa sabi nila Tito at Tita. Outvoted by needed money, so withdraw at the bank. Ayaw payagan ng bank so benta na lang yung Benz kay Ron. 6M actual price pero 3M lang ang benta. 1341? Not transfer to name because sale must be signed by the registered owner. Forger – crime and accomplice in falsification. Extrajudicial settlement, executed appointed in will.  Ms. Gutierrez, gather all assets, kwenta lahat ng utang. Hospital bills not sufficient property. May Ms. Gutierrez recover Benz from Ron? Yes, because it was an invalid sale not yet owner yung nagbenta. He only had mere inchoate right, so invalid as far as estate is concerned. Hangga’t di bayad ang utang walang paghahatian ang mga heirs. Kung may natira, saka lang ang mana ng heirs.

It is the duty and obligation of the executor to recover, Ron’s 3m? Principle of relativity. Valid as to one party, not valid as to estate. Valid as to Ron and Jose, but may be rescinded as to in good faith if both are in bad faith. Otherwise, bad faith. PROVISION OF CC IN SALES 1461: emptio spei - sale of vain hope is void even as between parties emptio rei speratae – sale of thing with potential existence is valid (e.g. fruits of flowering tree, may ultimately bear) Yung will ng tatay, is it not “potential existence”? Assuming it is, then go to 1346 (as to future inheritance) Expressly authorized by law: what are the two questions? Bar and good lawyers. What is the effect, what is the status, what does it say? Declare nullity expressly? What if it doesn’t? Go to A5. Acts executed against the provisions of mandatory or prohibitory laws shall be VOID, except when law itself authorizes their validity. Is 1347 what? What are the telltale signs? Look for sanctions. E.g. criminal violation: fine, forfeiture, imprisonment. What are those exceptions? Memory of an elephant. Implication: Authorized by law  Only valid. Pag authorized, dun lang sha valid. Otherwise, it’s not within authorized exception. 2 questions: Contracts which are valid because authorized by law. There are 2.

23 June 2010
RECONSTRUCTED FROM WRITTEN NOTES Principle of presumptive death. When did they die? Does it make a difference? Heir must be alive at the time of death. 1347: General rule on contracts on future inheritance. EXCEPT when the law allows. What are those 2 contracts? NCC provided for 2 contracts 1. DPN future property (130 takes effect only in the event of death) 2. Mortis causa, is that a contract? Is it a future inheritance? Death of donor  conveyance. Donations are advances, chargeable to the FP. Is that a contract? Is donation a contract? Can you contract with yourself? What do you call that contract? Tawag Miss Santos. Autocontracts! May donation be enforced? If Ron promises to give you a Montblanc pen. Inability to withdraw unilaterally from previous relations.  character of contracts. BUT in succession, testator can always revoke the dispositions he made. Ring of Eva found by Ron in the sink. Can he withdraw unilaterally? Perfected contract, undone  there are grounds for revocation of donation.

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Is DPN a contract? Happen only mortis causa? A donation but in reality, it is not. DMC is a will, that’s why it required compliance with a form to be valid. It’s not a contract. DPN is a contract, even if mortis causa. A132, look at A127 FC. A DPN whether future or present need only be in writing, not form of will. Compliance with SOF A132 DPN withdrawal and revocation, there are 2 grounds. Mortis causa – revocable at will of testator, not revocable at the will of the donor. In reality, a contract. Expressly authorized by DPB A130 and !132 but modify in FC. Not ordinary contract. It is again also a will but general rule now applies. Revocable again. Not a contract. ERGO not an exception. So 1080: isa na lang ang exception: partition inter vivos. 1. 2. 3. SUBJECTS – decedents, heirs OBJECT – inheritance/estate MODES a. Testamentary – if valid, law will implement it; decedent must have executed a last will and testament (hereinafter, LWT) b. Intestacy – legal succession c. Mixed – failure to dispose everything by will.

It is not defined as instrument/document: an act of writing. Noncupative (oral) will not allowed in the Philippines. John Paul, son of Eva is my son? Ron’s diary. 1. Diary with a key? NO 2. Yellow pad. Humiliating me publicly, nothing goes to my property. Magic notes. Indirect disposition. Wala kay Tolentino yan! How about first example, is that a will? It is a will? Part of estate reserved to son, diba magmamana itong son? Without acknowledgment, will illegitimate son inherit? NO, putative must be recognized voluntary or involuntarily. How is recognition done? VOLUNTARY – initiative of father, record of birth sign INVOLUNTARY – court action; public document CJ Davide: for signature to amount to recognition, father must be aware that he is signing record of birth. SUPERFICIAL LEARNING TO PASS EXAM. Learn principles forver, no passion for law practice! Not thinkable in our time to be in-house counsel no matter how big gone in 5 years. The UP Law Glong. FC 176. Anak ka sa labas, Miss Valenton borne 6PM, 10PM. Nawawala, hinahati ang gabi. What if alam niya lahat yan kasi abogado sha. You’re not recognized!!! You are not properly recognized, when your dad dies tomorrow. Wala ka mamanahin! Pano ka marerecognize? 1. Confront your father and ask him to execute something in FC 176 2. Demanda for action for compulsory recognition. If he refuses, denies having fathered you. Evidence: a. Continuous possession b. Pictures, tuition, report cards, public showing Will you be able to inherit? NO, not voluntary. Can you compel estate/relatives? No more. Clemeña v Clemeña Tissue specimen sa lab kasi cancer patient sha. DNA 99.9999% result match. Can you inherit? Not a form of recognition. It is only an evidence in action (for involuntary recognition) which I can no longer commence. How about a disposition of property in favor of the illegitimate?  Someone became an heir so it’s a will. If a will which contains recognition of illegitimate child is not executed validly, denied probate, will you still inherit? 2 witnesses lang (law requires 3), invalid din ba yung recognition? Denied probate (sampal sa cannot follow)  WON the recognition subsists depends on ground of denying probate. – If forgery: NO, because it’s not his act.

2 lang talaga yan, mali yung Code Commission. Wala namang separate rule for mixed mode. Inaccurate yung classification in A780. “Contractual succession” CONTRACTUAL – 100M in our conjugal property para ako only heir mo sa will. Is that valid? Not a sale nor a gift. But how to dispose estate, not gratuitous either. May “collatilla” not allowed because it’s contractual succession. Requirements for a valid will. EXCEPT contract in A1347, i.e. 1080 (dati pwede yung DPN as contractual succession) but no longer allowed. TESTAMENTARY – there has to be a will. Memorize A783! Coz it says the characteristics of a will. Suppose a friend died and you discover a document with signature, how do we know it’s a will or not? This is important because if it is or purports to be, it must have been prescribed with formalities of law. It must be invalid/unenforceable if not. It can be enforced for probate, allowed property in document probate. Need not be brought for probate, if not will. What to look for in the document? Provisions that disposes of property. Get a copy of unauthorized publication/edition of Magic Notes Danicon. But sometimes I change my mind. Take effect mortis causa, then that document is not a will. Don’t apply principles of succession (?) to the document.

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If other than forgery: It will not take affect as a will, but effective as recognition because it’s still public document. Itaga niyo sa batok niyo yan, lalabas yan, sa batok niyo. Suppose when I die, I appoint Jovie as administrator of estate? Is that a will? Is there disposition of property mortis causa? Makinig kayo saken, devote all attention to me. I’m a very very jealous master. What if I say that I pay him 10K a month? Is that not disposition of property?

valid. Therefore, Donee in a DMC is an heir because he’ll receive something from decedent in ___. What is the difference between DIV and DMC? Eva <3 Ron, sired two children. Ron says “in order for my children to save on taxes, I’d rather give them my properties while I’m still alive.” So he made this kind of document: “To my children, I give my property located in Greenhills, SJ, consisting of 2 adjacent lots of equal area. However, they shall take possession and ownership of my property only when I die.” Smartmatic class. Let’s put it to a vote. It’s inter vivos because there is difference between perfection and delivery of the ownership. For as long as the contract is perfected during lifetime of donor, it is IV although possession or ownership is withheld. Pero the contract is already perfected. What if delivery lang? Pero kung “take effect” ang condition kapag namatay sha? – DMC Incidence of the contract are made subject to the condition – DIV Two kinds of heir: The importance of this distinction is in preterition. 1. Instituted heir ○ If he is given the entire estate or an aliquot part thereof  “Aliquot part” – portion, but we don’t know what properties comprise that portion. Basta yung value you are entitled to receive is certain e.g. ½ of the properties ○ If you are given the entire estate, or instituted as sole and universal heir 2. Legatee or devisee ○ Legatee - gift of specific movable (legacy) ○ Devisee- gift of specific immovable (devisee) Juridical basis of testamentary succession Allow person to control the disposition of his estate beyond the grave. Nasa ilalim na sha pero sinusunod pa rin natin. Will, pero how can a dead person have will? Why do we allow a person to dispose his estate after his death? In reality, this is not disposition after death, it is before his death except it is made subject to a condition. During his lifetime, he is entitled to dispose his property subject to conditions. He can choose future event to effect his disposition, why can’t it be his death. To some legal philosophers therefore, succession is a mere species of disposition subject to disposition. That is the juridical nature of testamentary succession. Characteristics of a will • 1. Purely statutory Means that a person is allowed to make a will simply because law allows him to make one. To bring discussion to extreme, may congress pass/enact a law abolishing provisions on wills and succession? Yes! That’s why in communist countries

28 June 2010

II. WILLS
In Art 779 Testamentary is defined as succession that results from… Heir has to be designated in a document that is valid as a will. Nobody becomes an heir in testamentary succession unless the testator executes has executed a will. If there is no will, there can be no testamentary succession. To be testamentary heir, person point to a valid will where his name is designated. Suppose will does not designate an heir. May there be testamentary succession? We have discussed last meeting that for document to be a will, it must contain a disposition of property mortis causa and that designation may be direct or indirect. Last meeting, for there to be testamentary succession, there has to be a will, without which, there can be no testamentary succession. Testamentary succession results if heir is designated. What if no designation? Will there be testamentary succession, where will this happen, suppose a testator left a disinheriting will. Contains nothing but disinheritance of compulsory heir. None of property go to eldest son for having attempted on my life. It disposed the share of son in favor of other compulsory heirs but will there be testamentary succession? There is no testamentary succession. There is a will, but no testamentary succession. The properties of the testator will be distributed as in intestacy. This is the reason why intestacy is not defined in the code. Framers of code could not agree on its definition. Some authors define it to mean, succession that results when decedent dies without a valid will. Wrong. As in this example, there is valid will yet his estate will be distributed in intestacy. Inaccurate kasi ang definition sa 779. The word heir used in 779 is general. Used in its general sense. Anybody who will receive something from decedent mortis causa is an heir. Basta tatanggap sha mortis cause from decedent, he is an heir. Illustration: testator gave donation MC to a friend, the friend who will receive something from decedent (the friend who’ll die in the future) is he an heir? Yes he is. Because DMC is succession, it’s a will. Pag gumagawa kayo ng DMC, will yan. Kaya favorite yan ng bar exams sa forms. It must be executed as a will for DMC to be

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where private ownership is not allowed, institution of laws succession and will become irrelevant. When that happens where does law left behind go? Regalian doctrine, revert to the state Will is only enforced by the court because of the law. Absent that legal command on the court to implement the will, everything is just a request.

Exception: Principal follows the accession. FC in the “reverse accession” in property relations between husband and wife, CPG. Bagong rule na yan, sa NCC regardless of value. Bobo na kayooooo! You want more proof? Madami pa yan. GENERAL RULE: Magkasamang ibibigay yung bahay. UNLESS: sinabi niyang magkaiba ang pagbibigyan ng bahay at lupa. Law governing form There are two aspects of will: [1] form and [2] content/substance 1. FORM: manner on how will was written/executed – Sino ba nakapirma, pano pinirmahan 1. CONTENT: yung nakasulat; e.g. Ron leaving half of his property to mistress Miss Ausan FORM MUNA: Question: If Mr. Garcia will execute his will, what law must he comply in order for the will to be valid? Law at the time he executed will or must will comply with requirements of will at the time of his death? Answer: A795. Time of execution. Kasi kung patay ka na, pano ka pa magcocomply. Concrete example: Today, Ron will execute his will after class. Under the NCC, law requires at least 3 witness, for his notarial will to be valid. Kayong tatlong Lady Gaga (Jam, Eds and Ani), kayo witness ko dito. Year after he made that, congress increased the number required. Apat na. Despite passage of new law, Ron did not bother to change his will. Ayoko na nabayaran ko na si Atty jan, nanotaryohan na, so di na niya binago, when he died, lumabas yung will pero tatlo lang testigo. Is his will still a valid will? There is no question that at the time it was executed, it was valid, at the time law enforce require only three. YES, it is still valid. Why? Dahil sa A795. What if A795 was also repealed? A4 pero kasi “expressly provided” suppose law provides for retroactive application, does it also mean retroactive effect in all cases? Retro application not allowed when it will impair vested rights and constitutional right to impairment of obligation of contracts. (Alameda, Velasco, Arias) Convinced na kayong bobo kayo? Even when the law does not provide for retroactive application, it will nonetheless be allowed in what cases? Intention is to make it curative statute, criminal statutes that is more favorable to accused, procedural in nature because it’s colorless (i.e. does not impair any vested right) In re will of Riosa (for the first example) After Mr. Garcia has executed his will, he acquires a vested right? On what? On the continuing validity of his will which cannot be impaired by a retroactive application of a law amending he complied with in executing his will.

No longer discuss everything kasi madadaanan naman natin yan. Wala na naman pasok sa Wednesday, sayang ang one hour. Interpretation of wills 1. • If provisions of will are susceptible of being interpreted in different ways. Which manner shall prevail? Go to A788. Presumption is that testator left a will for it to be interpreted. 1. Two kinds of ambiguities in will: a. Patent or extrinsic (how to pronounce patent? Pilipino tayo, so short a) – Ambiguity disclosed by the very words of the will. – E.g. I live my house to some of the 6 children of my brother Juan. Ilan dun sa anim ang bibigyan? a. Latent or intrinsic – Cannot be discovered by mere reading of provision but when factual circumstances are considered – E.g. “I give house to cousin Pedro.” But what if there are 2 cousins, ambiguity becomes manifest because of surrounding factual circumstances. How to resolve? Caguioa says: a. Latent: same kind of evidence except oral. I.e. evidence outside body of provision b. Patent: same kind of evidence e.g. within the words of the will, you can’t go outside. Disclosed by very words of the will c. Theory of old writers is to cure ambiguity by same kind of evidence the ambiguity is disclosed, pero tinanggal na yan lahat ng 789

Art 789: “upon the face” means patent, “within the words” Tinanggal ng CC yung type of evidence that can cure type of ambiguity. All kinds are now admissible except oral declaration by the testator. 2.

3. 791 give effect to everything 4. 794: apply the ordinary rules on accession sa
property. Accessory follows the principal. He who owns the principal owns the accessory. E.g. house standing on a piece of land, whoever owns the land, owns the building.

790 madali na yan

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How about the reverse? Today Ron made a will, requested 3 of friends to act as witnesses, unfortunately, one of the friends were disqualified from witnessing a will. (e.g. less than 18) 15 lang si Eds. If he dies today and submitted for probate, it will definitely deny for failure to comply with requirement of 3 witnesses. Hindi pa namamatay si Garcia, year after execution of will, congress lowered the number of witnesses to two. So when he died, the law only requires two witnesses. Has the change in the law validated the will? No, because of A795. But what if 795 is itself repealed, will you answer be the same? The same pa rin yun. Ano reason? Invalid will becomes valid at the time of death? Has somebody acquired vested right to the invalidity of the will. Definitely not the disposed heirs dahil inchoate lang sila. Wala jan sa syllabus niyo. For the same reason, it will amount to impairment of vested rights. RULE AS TO FORM: Law that governs validity of contract, law in force at the time of execution of the will. Not the law in force at the time of death of testator. AS TO PLACE OF EXECUTION: What law governs as to form? Example: A British subject was assigned by his company to be a regional operations manager of SE Asia, his office is situated in HK. Countries included in his jurisdiction are Japan, Phil, Malaysia, Indonesia and SG but his base is HK. As ROM he is required to visit all branches in those countries and confer with officers of company stationed in those branches. Makes rounds of these branches regularly. Para shang si Rizal, may gf sa Japan, pag pinas, may GF sa Mnaila. Ano tawag sa misis mo? Ron says asawa. Mashado kang bulgar!!! Maybahay ang asawa, pero pag mistress, maycondo. So he won’t be bored in Malaysia and Jakarta. Para shang si Rizal. One day in Tokyo, he suffered mild heart attack. While recuperating in hospital, he was seized of this fear of dying, to prepare for his eventual death, he executed a will in Tokyo. I want to execute my lawyer! Japanese lawyers: Pwede pwede we will execute will in Japan. What law must he observe for the will to be a valid will? Supposing executed in Tokyo observing formalities required under Jap law, but survived heart attack in Tokyo. Nung nakita si maycondo, this is my will. When something happens to me, this is how you distribute my properties. You probate it sabi ni British subject. Pano pag sa Indonesia namatay, nandito yung will, executed in accordance with formalities prescribed under Jap law, susubmit ngayon ni mistress sa Phil court for probate? Issue: Is the will valid as to form? If you were the Filipino judge, how do you rule on the issue. Is it valid as to form? Ano ba sinusunod nating rule sa Pinas: “lex loci celebrationis” Locus means “path” or “place” – law of the place of celebration, where it was executed. But that’s the general rule and there are exceptions to it: A817 – general rule A816 – if you read ‘em all, how do we sum up? When the foreigner is in the Phil, he may observe law of country which he is citizen (A817) – lex nationalii. Eh nasa Pinas

sha at foreigner sha, at Fno lawyer so ang inobserve ay Fno law. What if British subject, executed in manila under Phil law? What law applies in determining formal validity? Yes applying GR A817. Law of place of celebration. Suppose foreigner is abroad like in first example, British in Tokyo, what law must British subject executed in Tokyo for it to be valid in Phil? We apply here conflict rules (PRIL) A817 ang sagot. May observe Jap law in executing will.

• • •

HK law (place of domicile) in executing will in Tokyo? Yes, because of A816 UK law for will to be validly executed in Tokyo? Yes, A816 law of country Phil law in executing will in Tokyo because subject for probate in Phil court? (Bakit napasok ang Phil law? I have 4 students now in Japan, lawyering. Not Jap law but Phil law in Japan. Lahat kayang gawin basta me bayad.) Yes, under A816 when foreigner abroad may observe Phil in execution of his will.

What if Phil citizen? Suppose son of Phil ambassador to UN in NY studied law in NYU sa Manhattan for tax laws. NY bar. Easiest bar ang NY bar, most difficult is California bar. Remained natural born, never applied for naturalization. After grad and passing NY bar, come home for extended vacation with relatives. While in Boracay, he almost drowned. While in hospital recovering from drowning, thinking he was about to kick the bucket, he made a will. But since NY lawyer, wrote will in accordance with NY Law. True to his premonition, he died in the hospital. Now submitted for probate in Phil court. May the will be allowed probate? No, not allowed probate. Remember this: A Filipino in the Phil may observe only one law for it to be valid. Phil law. Yun lang ang pwede niya gamitin. What if he is abroad what can he use? A817 lex loci celeb. But when he is abroad, may he execute in accordance with Phil law: Law is silent. Pagkukulang ng batas, see Tolentino’s comment. Walang nakalagay kung ano mangyayari. Agree si Sir kay Arthur. Di naman tama na di natin payagan. Kung yung punyetang British subject pinayagan natin, pano pa kaya yung citizen natin. Otherwise, violation yan ng equal protection. He is treated a second class citizen in his own land. Joint will not allowed in the Phil. What is it ba? Nagkatuluyan si Gutierrez at Garcia. Imbitahan niyo ako pag nagkatuluyan kayo. Nabuntis na ni Garcia. Tumatahimik si Ron, uuuy taking it seriously. Gawa tayo ng will natin. Pirma na you para same tayo will. Is that allowed? Nope. Just to be sure you know when a will is joint. Gumawa si Ron ng will, nakita ni wife. Kinopya niya word for word except for names, adjusted to make her will. Joint will ba yun? Nope. Identical ≠ joint. Two separate wills may be identical. Miss Baviera teacher naming yan. Di sha pinagreretire kasi ayaw niya. You will acquire the right frame of mind

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through Ms. Baviera. Principles behind the law: What is the reason behind the law? That is the bearing. The only will that will remain invalid even if valid where it made executed. Pinakagwapo si Ron sa Timbuktu, joint will with Princess wife na may buto sa buhok ay valid. Not valid in the Phil, even if valid there. Public policy against joint will. Why? What is the public policy? Hindi lang spouses yan ha, basta dalawa. Encourage parricide. Ang layo diba? Bakit parricide? Pag-isipan niyo. We continue next meeting. Next week because of Binoynoy’s inauguration.

5 July 2010
Why prohibit joint will? In my opinion, that will also hold true even if the will is not joint. It will tempt the person who requested the will to commit murder. AS TO FORM: only joint wills are prohibited even though they are executed abroad. Look at Art 819: “prohibited preceding article”  covers only joint wills. E.g. execute joint will in Timbuktu and come back here in the Phil. It will not be probated. Invalid if the spouses are both Filipino citizens. Suppose one of the spouses to the joint will was a foreigner and they came home to the Phil and one of them died and then submitted to Phil court for probate? Will the Phil court allow the probate of joint will of foreigner and Filipino? SC has already answer this before. If the country of the foreigner spouse allows a joint will, the joint will shall be valid insofar as foreigner is concerned but invalid insofar as Fno spouse is concerned. Some writers disagree in such a ruling of SC but until SC has found or issued another ruling that is convincing, this decision stands. Take note that these are conflict rules with foreign element: whenever several laws applicable, conflict rules will only be applied if will is before Phil court being asked to admit the will to probate. Otherwise, no room for application of conflict rules unless it is before judge in another jurisdiction country where renvoiz may be requested to apply. Conflict room of the forum, dun lang iaapply nung foreign judge yung Phil rule. This is only material if the will is before a Phil court and judge for probate. Law governing content AS TO TIME: Valid at the time of death of testator whether or not valid as to substance: time of testator’s death, not the time of execution of the will. AS TO SUCCESSIONAL RIGHTS: determined by law enforced at the time of testator’s death. Miciano v Brimo: Turkish national executed will, Phil law as to form. Provision: any of my heirs who will contest the validity of this will shall do so at the expense of losing his inheritance. One did not agree and filed a case in court contesting validity of the will. SC held through Romualdez: In the absence of any proof as to what is provided in Turkish law, apply processual presumption. The same laws in case of absence of information. The provision in the will is simply illegal.

Cayetano v Leonidas: Fino Nurse migrated to US, pinamanahan yung niece (buti hindi yung DI). Submitted to Court for probate. Disregarded some of compulsory heirs. Court: we don’t apply Phil law because at the time of her death, she was already a US citizen by naturalization. American law has no system of legitimes.  We’ll have problem here in terms of dual citizenship. Gumawa ng will niya pero namatay. Ano iaapply? Isa yan sa loopholes ng dual citizenship law. Niraise ko yan nung ginagawa yung law but they were rushing to pass it to get the overseas filipinos votes.  May the testator choose which law governs the disposition of his estate when he dies? Do we allow that? Wala pang parameters.  Problem din sa persons.  Drilon: It should only apply for political matters. (suffrage) Yung owning of land, political ba yun. Mahihina yung nandun.  Circular No. 1 ginoma-goma pa. Di UP grad. Pwede sila makasuhan ng falsification of public documents dun. Reporting something as not an official act. In that split second, someone might have acquired a vested right, therefore constitutional right violation. So dapat inamend nila yun.

REQUISITES FOR A VALID WILL
1. 2. 3. Testamentary capacity Animus testandi Compliance with formalities or solemnities a. General b. Specific: Depends on whether i. Notarial ii. Holographic Free and voluntary act

4.

III. TESTAMENTARY CAPACITY
Elements of capacity: a. Age How old? Not less than 18 years of age. What happens when 16 years old, what is the status of the will? Let’s draw some parallelism. • In case of contract, when minor enters into contract? Voidable. Consent of one of parties is vitiated. Only the party who was incapacitated may bring an action for annulment. Only the minor may bring action for annulment. • In case of two minors: unenforceable Art 1403 (3) What is the status of the will? Either void or valid. Dalawa lang yan. Walang rescissible, unenforceable or voidable will. Invalid if it did not possess all the requisites of a valid will. Basta isa jan wala, void ang will. Suppose the 16 year old testator ratified his will when he was already 20? Has the will been validated by such ratification? It depends. Why? We will learn this in “republication.” Nandun ang tamang sagot.

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I was born 14 Feb 1960. On 12 Feb 1978, I executed a will. Is the will valid? YES! Take note we don’t reckon age of person by calendar years. A year is 365 days. No qualification as to leap or ordinary year. At least 3 leap years yan. Masesetback yung 18th year ko by at least 3 days. CC mode of computation Art. 13. When I am 18 years old. Must the entire 24 hours lapse before I am considered 18? Or the start is enough to consider me 18? 2 rules yan. Yung Spanish and American rule. Spanish: kailangan matapos lahat ng 24 hours ng day before your 18th year (not birthday). Sa American law, pag nagstart na ang midnight, yun na yun. Considered as completed. Walang midday fractional. May 0 year ba? Sa pinas, what do we apply. But it looks like we apply Spanish. Matapos yung 24 hours ng eve. 18th year must have started. Di magiging kaso yan kasi isang araw lang. a. Absence of express disqualification Underline the word “express.” For somebody to be disqualified, it must be expressly disqualified. He is always presumed qualified. Only one person is exempted if you look at the rules: person below 18. Expressly disqualified yun. b. Soundness of mind Almost always element of legal capacity. In PFR, it is an element of a valid marriage, for instance. When insane marries, what is the status? Voidable. Not capable of giving full consent to the marriage. Who may file? Insane party lang. Pwede ba shang magfile ng kaso? Sane spouse. Kung nalaman ko lang sira pala ulo mo, di kita papakasalan. Only after celebration of marriage. Kung alam niyang baliw, hindi sha aggrieved party. Dun nga sila kinasal sa mental chapel. No legal capacity to file action for annulment because he knew that he was insane. Insane spouse: Kaya nga ako nagpakasal sayo kasi sira ulo ko! Suppose two insane people got married: Parehong sira ulo. Sira ulo rin yung pari. Voidable pa rin. Si Justice Paras lang nagsasabi na void yan. Pareho silang defective ang consent, pero hindi totally absent. We prescribe book written by Paras to criticize it. Marami shang questionable positions. Is the definition of soundness of mind for purposes of marriage, contract and crime the same in making a will? NO. law tells us what constitutes soundness of mind. San nakalagay yun? A799. To be of sound mind… NOT NECESSARY that…: SUFFICIENT that he is able to know…: 1. Nature of estate to be disposed of Itong si Garcia namatay. Tong gf niyang si Eva, tiningnan yung gamit sa locker. Nakakita sha ng will. Nakalagay dun: I, Ron Michael Garcia of sound disposing mind, with the blessing of God to hereby publish the ff as my last will and testament: a. To my partner in life Eva Gutierez, I hereby give the QC Memorial Circle b. To Chi, the Luneta Grandstand c. To Cams, the UP College of Law.

Res ipsa loquitur. May sayad yang mamang yan!!! Di mo na kailangang mag-isip. He doesn’t know nature of his estate he shall dispose in his will. Property nang may property yung dinidispose niya. Though you’ll find out later that he may dispose even if he does not own it, so order executor to acquire of property. Bilhan mo ng condo unit sa Alexandra si Eva. Kulang na lang ipamigay ang Malacanang Arlegui house. 1. Proper objects of his bounty Suppose ganito, namatay ang self-made man. Dami pera! Nobody knows how he earned that money. ½ of all my wealth, in the interest of justice, to Batman and Darna. Res ipsa loquitur din. Doesn’t know proper objects of bounty. No physical existence. Though you’ll find out hindi necessarily you know person you’re giving to. Pwede nga complete stranger. I hereby give legacy of 10M to first Filipino who will win gold in the next Olympiad. Maeestablish naman identity nun. San ba gagawin yun? London. Natalo kasi ang France. 2. Character of his testamentary act To my bestfriend, Mr. Tensuan absent no, I give my favorite Rolex watch but pay 100,000 for it. Mejo may sayad din. Mana ito, hindi dapat binabayaran. Essentially gratuitous. No matter how we look at it. May sayad ka, sir. Res ipsa loquitur. When not of a sound mind, the will becomes invalid. Not voidable. The testator did not have requisite capacity to execute a valid will. I’m sure you have learned in PFR that capacity of natural person is presumed. Standard Oil v Arenas. He who alleges that person has no legal capacity must prove it. In the absence of such proof, the presumption that natural person has capacity shall prevail. Presumption is reversed (burden of proof is shifted). Art 800, 2nd Par. Problem: How do we know she is publicly known to be insane. Halimbawa yung favorite niyong senador na kung tawagin ay Brenda. When is publicly known as insane? Confine to mental institution, asylum or sanitarium. Halimbawa may bag lady. Lakad ng lakad si Eva taong grasa, namatay bigla. Ang daming pera nung binulatlat! Dami niyang napulot. Nobody suspected that the bale she was carrying on her head was a bale of money. There’s no case and there’s no precedent, no other law which tells us when an insane is publicly known as insane. Ergo, it will now upon the sound discretion of judge to determine WON a testator is publicly known as insane 1 month or less before making of will. Supervening incapacity Sane at the time of the will but became insane later on.

ANIMUS TESTANDI
Made with the purpose and intention to make it his last will and testament. Manolo Quezon, umakyat nang paluhod sa Malacanang, walang historical basis. On the eve, relatives of Rizal went into hiding. Pero bago sila nagtago, 2 sisters of rizal, Concepcion went to Fort Santiago to visit Rizal. There, Rizal had personal effects coz he lived there for months. Waited for his trial and during his trial. Caliente Adrada, his lawyer. Witnesses

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represented. Pio Valenzuela. Bottle still there, damit and writing materials. Kept after his execution in 3 or 4 chests. They became national relics overnight when Americans proclaimed him as hero. Raging controversy WON he should be our national hero. Heir to fortune left behind by his landed parents. Pano yung mga shares niya jan. May isa shang anak by Josephine Bracken, but he died during infancy so wala shang bloodline unlike Jesus Christ who according to Da Vinci Code has bloodline by Mary Magdalene. House of Lauren in France. The roselins of Scotland. Bat ba tayo napunta dun. Some of these relatives were claiming those properties left behind by rizal by inheritance. Outside na kayo sa recognized as heirs, kasi walang will. He left a will daw! Yung mi ultimo adios. It’s only a title we gave to the manuscript. Walang title yun. He gave hint to his sister that something was there in the oil lamp. Copied (kasi wala pang Xerox). One copy on lap of Andres who translated to Tagalog and it was reproduced on day of his execution. It’s a work in verse poem, parang poem. Versos Alejandrinos. Perfect meter, perfect rhyme. 14 syllables. Suspicion that this had been in his mind, months before execution and wrote it before his execution. Holographic will ito! Written, signed and dated by him. What do you look for in a will to determine won it is a will. Disposition of property, mortis cause. Yung last verse po! Kami po yung relatives. Rizal was more than 18. 33 sha when he died. May animus testandi ba? 24 units of Spanish. Tierra. Marcha etc Filipina. Music by Julian Felipe. Lyrics by Felipe Calderon. Rafael Palma. Charles something. Is mi ultimo adios a will? And sir recites it in Spanish. O_o Really nice line I loved. Sobre dadfaka; mia. Entre las yerba scintilla flor. If one day on my tomb, you will see sprouting wild grass in the midst. Milde flor. Humble flower. Bring it to your lips, to my soul. Frente forehead. Ternura warm soplo rest haplos. Warmth of your breath halitor kaya nga halitosis. And let your forehead Feel the tenderness of your caress and warmth of your breath. WILL BA YON!?!? PARANG WALA YATANG WILL DUN. When my tomb is forgotten by everyone, mark the place. Are is hope. Let the hope of a man till it with a shovel so that it will be disperse. Parang yung abo sa creamtion. Dig it up and till it. Get my ash and scatter so it will form the powder. Polvo. Alpombra is carpet. Mi Ultimo Adios is not a will. Rizal did not have intention to have that document his last will and testament. It’s an expression of Rizal’s sentiment for his countrymen on the eve of his execution. That’s his only purpose. For his countrymen to know what his sentiments were on the eve of his execution. Kung dun sa last verse niya: Dulce stranger. Josephine Bracken. Sweet Stranger. E di kasama rin sha sa heredera. Mystery what happened to her. She just vanished. She went back to Scotland. That’s not a will because there was no animus testandi.

invalid. Why? Kasi patay na sha, mahirap tanungin. Baka mamaya, the will being passed on is a forgery. Baka naman ang gumawa niyan eh one of the heirs at finorge ang pirma ni testator. The law allows will to be implemented by court action. The law allows it only if the will is indeed that of the decedent. Therefore, the law has to provide safeguards to ensure that will being passed on to us is indeed the will of the decedent testator. Ensure and somehow help ensure the genuiness of will, the law prescribes certain solemnities that must follow. Otherwise, there arises presumption that will was not that of the testator or he did not have soundness of mind at the time of execution.

VOLUNTARY ACT
Hindi pwedeng pinilit, niloko kasi kung niloko, pinaprima sa blank piece of paper, hindi valid yung will. Kasi hindi sha voluntary act. Tinutukan ng baril ni Eva si Ron: kumuha kang lapis at papel. Bibigay mo sakin lahat kung indi barili kita! Pano kung sabi ni Ron, kalabit si Eva. Amoy pinipig ka. San galing yun? Sa john en Marsha yun. Shows age. Yung mga bata lalabas sa kwarto. Op op op, walang kakain ng pinipig unless pripirmahan mo ito. Ano tawag jan: PLAIN AND SIMPLE BLACKMAIL!!! Dahil gusto niya kumain ng pinipig, pinirmahan niya. Masarap yan kasi malutong sa halo-halo. Baka hindi sha free and voluntary. For threat to vitiate the consent of testator, it must be enough injury to cost him his life for him OR the threat must be believable. Kukurutin kita til you die! Di yan believable, sufficient to vitiate consent of testatrix. Yung last two na lang ang ididiscuss natin in detail.

COMPLIANCE WITH FORMALITIES OR SOLEMNITIES
You’ll have to follow a protocol/formula in executing a will. If these formalities were not complied with, will is

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IV. SOLEMNITIES OF WILL
FORMAL REQUISITES  Apply to all kinds of will.

meaning of interpreted words. And so the law to prevent fraud against the testator, requires that it be written in a language known to testator. Does “in writing” requirement mean illiterate people can’t make will? No. if you see in code, there’s no requirement that literate. But there is an additional safeguard/requirement for illiterate. How? Somebody will write the will for him. He can’t read, how to know if he agrees with the content? Then ask that person to read it aloud to him. If written in language not known to him, there’s a second step. On the other hand, if language known to him, all that needs to be done is to read it. To know that he is not being defrauded, call another person to read it. Easy for him to check whether what was written is what he desired to be written. Suppose: Garcia comes from Ilocos (GI), genuine Ilocano. Eva Gutierrez Ibatan. AY Garcia, Ilonggo ka na lang. So you proposed to Eva after you pass the bar. Uuwi tayo sa Batanes. Serve my people there. Eh true love. TL. So Ron accepted the condition and they went to Batanes and they lived there til old and grey. Namatay si Ron. After he died, there’s a will in one of his drawers in his room captioned Last Will and Testament in Yvatan. Sabi ngayon ngkamag-anak ni Ron, that will is invalid because our brother is Ilonggo. He didn’t know Yvatan dialect, so it wasn’t written by him. Must have been written by somebody else. Notarial will in Yvatan. Is the will a valid will? There’s a case assigned: Abangan v Abangan. He is presumed to know the language/dialect of place where he habitually resided during his lifetime. There is a presumption, so since Ilonggo Garcia resided in Basco, Batanes and it became his habitual residence/domicile, under the law he is presumed to know the language of the place. He is presumed to know Yvatan. That presumption however is not conclusive but merely rebuttable. He who alleges that despite long years in Batanes, Ron never learned the dialect, has to prove it. It’s gonna be a matter of evidence. What evidence may be akin to use to prove that he did not learn it. Suroza v Honrado: Merong gumawa ng will in English. Ano nakalagay sa first paragraph of “sound disposing mind hereby publish this will” sa dulo nakalagay: the foregoing is my last will and testament, it was translated to me in the native language. If he knew the English language, what was the need for translation. The very will provided evidence that he did not know the language tht the will was written. Tiyak na hindi UP Law grad yun. Gagawa ng krimen, may iniwanang ebidinsiya.

A. General Solemnities
GENERAL 1. In writing Is there definition of what writing is? Standard English definition dictionary has it. Did you bother to look? Lagi kayo dapat nag-iisip? Problems as to implementation. What do we mean by writing? Mr. Garcia is Chinese pala. Kaso ayaw niya ng monosyllabic surname. So ginamit niya yung name ng sponsor. Sakia Academy and Grace Christian. Marunong magchinese characters. Submitted to Fino judge for probate? Valid ba ang will in Chinese characters? Of course, it’s a form of writing. Egyptian heiroglyphics. Or writing of Aryans. Charlemagne pursuit. Higante, blue eyes. Lost race. Napunta ata sila sa Antarctica. May rosette stone to decipher ito. Ginawa niya yung code niya. The bible is written in codes parang da Vinci code to convey a secret message. Wrote will in that code. It’s certainly a form of writing. Mr. Garcia, yumaman, dami dami will ko. Record digitally through a camera, nirecord niya ang last will and testament. Non-recordable disc. Is that writing? How do you define writing? Normally, ang definition niyan ay set of symbols, whose meaning may be perceived by a sense of sight. Not like mahjong. Di pa sinasalat mo yan. Hindi mo tinitingnan pero alam mo yung baraha. Braille for instance. Device invented by Braille to allow blind people to read. Letters represented by embossed dots. So kinakapa at sinasalat ng bulag. Configuration of dots on writing material will make him perceive. Di naman sense of sight yung nagpeperceive din. Sa record, hindi naman mata or hipo, but hipo yung magsasabi ng last will and testament. Nobody will question yung Braille though not perceived by sense of sight. Person who is not a blind man e.g. the one who makes transcription can see. Say: pwedeng gawan ng transcript. Pwede bang maging will yun? Those are the issues involved in determining WON document is in writing. Not to mention the material. Pwede bang nakasulat sa wall of the prison? To present that as exhibit, gigibain yung prison or judge will ocular inspection. Pwede sa cloth, pero not sa tubig. Pang-utang lang yun. With the advent of technology, the issue of what constitutes writing has arisen. Later on, you’ll find out, even if digital recording qualify as writing, it’s not a will because cannot comply at the specific requirements. The writing must be a document.

28 June 2010
2. In a language known to testator Why? Ensure that what was written was what was intended. If the will was written not known to the testator, how was he to know that what was written there was what he intended? Interpreter – not accurate. There will be a big gap between what was written and the

A. Specific solemnities
Depends on: a. Notarial/Ordinary/Attested i. Ordinary ii. Special a. Holographic

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Parang halo-halo at siopao lang yan. Ron, ano nilalagay pag special halohalo? Icecream? No! Leche flan! Why notarial? If you look at CC provision, walang special name givne. So many writers have ascribed many different names. Some call it an “ordinary will” some attested will if you are under Prfo. Balane. That’s how he calls it. Caguioa calls it “notarial” Notarial na lang para mas precise. Have you checked English dictionary: is there an entry for “holographic”. It’s from Spanish holografico. Shempre silent H. Teacher ko sa engineering, sinasabi sa English. Naubusan sha ng English, “pukpokized”. Sin of reporters: English to Spanish. For this will to be valid, intervention of notary public is necessary. It must be notarized otherwise, not valid. What are the ordinary requirements for valid notarial will? Embodied in 805 and 806. When I was student, Sir Balane asks us to recite it. Justice Puno: habang jumijingle recite. 805: specific ordinary requirements. Minority na ayaw mag-JD. BA lang ang degree Oxford. Gumaya tayo sa Ateneo, gaya-gaya tayo. May the testator in the very will, provide for a waiver in complying with specific requirements? I hereby publish my last will and testament. Desire not to follow the formalities prescribed by law. May the very will provide waiver? May the testator waive compliance with the specific requirements? NO, the testator cannot waive compliance with specific formalities. Compliance with these specific formalities is MANDATORY. Kasi nga di natin alam kung sha gumawa. Baka nga kaya winewaive kasi hindi sha gumawa kaya kapag winaive hindi sila makakacomply kasi they’re not the testators. Reason behind formalities: close the door against bad faith and fraud. To avoid forgeries and substitution of wills and guarantee the voluntariness of the acts. WHAT ARE THESE SPECIFIC FORMALITIES?

As used in wills, subscribe means sign or affix one’s signature. Yun ang meaning nya. Law therefore requires will to be signed by testator. What is the purpose behind this requirement: a. Authentication. Express authorship of the document by signing the document, the testator admits authorship. That document was my act. Import of somebody signing a document. Claiming authorship of the act. b. Identification. After the death of testator: identify the document. “Kay Mr. Garcia yan, pirma niya yan eh!” What signature is needed? How must testator sign in order to comply with this requirement? Initials? Nickname? Last name? Screen name if he is a celebrity or movie star? May he sign with his alias? Nom de guerre, nome de plume? Rizal: Dimasalang (Masonic name wala shang nom de guerre?) Marcelo del Pilar: Plaridel. Wow literate kayo. How must he sign? What if Ron does this: RON GARCIA (block prints) or in Ron Garcia (in script) or in pirmang di maintindihan, artful may pabalik balik pa. Any mark will do in executing his last will and testament. Pwede niyang imispell parang si Barbra pero sa birth certificate niya Barbara yun. Ang kuleet. Binar yung bra. Braless yung dating. So maski misspelled yan. Yung mga tumatanda, pati spelling ng pangalann nila nakakalimutan nila. May mga kliyente akong nalilimutan yung spelling. For so long as they affix the name, signature, mark with the intention to use that in executing last will and testament, that is a valid and sufficient signature. How about a thumbmark? May a noreadnowrite testator sign his will with a thumbmark? Yes and there’s a case assigned in the syllabus. Matias v Salud. But suppose the testator was very literate. He even has PhD. But at his death, there’s a will but it was only signed by his thumbmark. Will that be a valid signature for the purpose of being a will? Yes! It’s still a mark! And as long as he intended it to be his signature, it’s still valid signature. How about if it was a mere cross, is that a sufficient signature? In Abaya v Salamero, SC held that if it was intended by testator to be his signature in last will and testament, it is sufficient. How we establish the intention is a matter of proof. However in Garcia v Lacuesta, SC qualified Abaya v Salamero. Insufficient if it is not usual way he signs his name during his lifetime. And if it appears that he is literate it is not sufficient. Kailangan ipakita “it’s one the ways he signs” Baka kasi implication ng cross ay ayaw kong pirmahan. Kaya nga di ko chineck eh. Abaya was not abandoned in Garcia. Important: Proof of intention. Where must the testator sign? Provisions says at the end of the will. What will be the question you should ask yourselves? Where is the end of the will?

1. Every will, other than holographic, must be
subscribed at the end thereof. What is not ordinary in that phrase? Subscribed. What do you mean by subscribed? Assume I want to be assured supply of water and newspaper, I subscribe. Oh I subscribe to that idea! In this context, what does subscribe mean? Sub means under and script means write. So “write under”! Nung araw, wala pang computers and gadgets to facilitate communication, if businessman wants to have buyers of newspaper, naglilibot sha ng papel. Sa papel nakakaannounce we intend to publish newspaper for community, if you agree or support this project, pay this much and then write your name under. Ergo, subscribe. Kaya subscribe to the newspaper, sulat sa ilalim ng paper.

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Problema ba yun? Kung kayo ay imaginative, problema yun. Halimbawa iisa lang bond paper niya. “Nagsulat sha jan. nagsulat… nagsulat… Nako kinapos!!! Nilagyan tuloy ng arrow.” Where must he sign? Logical end 1. Physical end: point in space farthest from beginning of the will. 2. Logical end: where the dispositions end. Kung san sha natapos mag-dispose. In this example, the testator should sign here. “ROOOOON.”
 Daf;adjaf;dfa;dfkja;djkfa;df;a

directions of the testator. Must be able to read and write. In DLC’s opinion, those are the only qualficiation for the delegate: – Read and write – Such age to comprehend and execute the express direction of the testator So pwede na yung 15 year old, hs student nay un. Nakakaintindi na yun. Pwede pa nga isulat pangalan niya sa will as an heir. How about one of the witnesses to the will, may he be the delegate? There are two views: 1. NOT – reason later when we reach witnesses 2. What name must the delegate write on the will? - Suppose he wrote his name, is the will valid? No. he is not required to write the name on the will. What he is required to write is name of the testator. He is not even required to copy the signature of the testator. He is required to write the name of the testator. - Suppose he wrote the name of testator and wrote his name too, will the writing of his name invalidate the will? NO. name of delegate written on the will will be treated as mere surplusage. But if delegate wrote his name, but not the testator, the will is invalid. It does not comply with formality that it must be signed by the testator at the end thereof. How must the delegate write the name of the testator? “Iho sulat mo yung name ko jan. Nanginginig na yung kamay ko eh!” Kinuha ni iho yung rubber facsimile stamp with his sign, how must the delegate write the name of the testator? In re Balonan v Javellana: Happened in Vigan, Ilocos Sur, there was this spinster who executed her last will and testament written in Spanish, the language known and spoken by the testatrix. Eh nangingig na kamay testatrix so she asked the nephew to write name on the will. The nephew typed the name in the. Por La Testadora Dona Maria Singson De Leon. Pinirmahan nung nephew. Delegate typed the name of the testatrix pero hindi niya isinulat with his handwriting. Is the will valid? SC said no because the delegate didn’t write the name. What is the implication of the court’s ruling in Balonan v Javellana: the delegate must write name of testator in his own handwriting. Di pwedeng mechanical ang pagsusulat ng pangalan testator. That’s the obiter implication. Law requires the delegate to write the name of the testator in the presence of testator: what if ganito: Sabi ni sick Eva kay househelp “Inday, you go to study room. Sa first drawer to the right, open it and get my will. You see there, may papel nakasulat last will and testament. Ieexecute ko yan.” Naku Ate (not Senora, sa old movies lang yun) , pano kaw pirma nakabandage ka!” Pagbalik niya: Oh ate napirmahan ko na. Nakasulat na pangalan mo jan. Is the will valid? Strict reading of code, not valid. Kasi delegate did not write the name in the presence of the testator. This is mandatory. Signing not in the presence of testator and confirming the writing before testator later on is not allowed. Will that be substantial compliance? Later pag-uusapan natin yan. Substantial

Signed: Ron Date dkfaj;dfkad;jfka;dfdfaj;fadkfj;adj;adkfa;djfkad;fakdf;adkjfadjkfadf adadfadfadfadfadfadkdjf;; 

What if testator has no hands? Halimbawa si Ron naaksidente, makakapirma ba yan? Sir yung paa niya. Pwede kung natutunan niyang sumulat at pumirma using his feet or mouth while biting the pen, then he can do so. Wala na kasi shang thumbmark, pano yung toemark? Valid ba kung hinlalaki ng paa niya. Any mark!!! Intended by him to be his signature will suffice. Nakakahiya naman. Suppose di sha natuto. Does it mean he can no longer make a will? No. he can ask somebody to write his name for him. Take note how the law was worded. Hindi sinabi na he shall ask another to sign for him. Testator may delegate the writing of name for him. But for that somebody to write the name of testator for him, two requirements have to be complied with:

a. Upon express direction of testator Tatay ni Ron nasa ospital, may sakit, nakacoma. So gumawa si Ron ng will, giving to himself all the wealth of his father. Punta sha sa hospital, “Dad, remember napagusapan natin before yun diba. 75% skain. So before you leave us, gumawa na ako ng will in accordance with your desire napag-usapan natin before. Kung di ka naman makapirma, ipipirma na kita. Ipirpirma na kita. Hind nagshake ng hand!!! Ay hindi nagshake. Ipipirma na kita!” Di pwede kasi nga dapat nga express. Dapat sabihin niya “Oy isulat mo pangalan ko jna. Express direction.
Who may testator request to sign the name for him? May a minor of tender age like 15 years, be requested by the testator as his delegate in writing his name on the will? Correct answer is it depends. Take note law does not require delegate to be “of age” but we can only gather the qualification of delegate from the requirements for validity of the act e.g. express direction. He must be of sufficient maturity to be able to comprehend the

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compliance kasi amounts to compliance. But when is there substantial compliance? IDISCUSS NA NGA NATIN. TOTAL NASIMULAN KO NA. Compliance with solemnity: Compliance

Later on namatay na yung testator, tas mamaya nakita ng heirs. Binigyan ng malaking mana nung DI sa third page. Apat na pirma ang pepekein nila kaya mahihirapan silang gawin yun. Kaya may ganyang requirements. Testator invited 3 close friends in the morning of a Saturday to come to his house to become instrumental witnesses of his will. Dun na kayo magmerienda. 9:00 AM you will witness in my execution of will. Kaya lang la na yung testator nung dumating sila. Sabungero kasi, 10AM sabong na. So ginawa ni testator, wala pa witness niya, pumirma na sha. Pagbalik niya mejo good mood, nanalo manok niya. Late kayo! Oo nga pare pasensha. O ayan pirmahan niyo yan ha. Is the will valid? If you look at requirements of the law, no literal compliance. Di naman pinirmahan in the presence, he signed it alone and acknowledged that the signature on the pages of the will were his. Is there substantial compliance? To comply with requirement of witness attestation, must the witnesses see that testator sign? In one case, Jaboneta v Justilo yung testator nagschedule ng day to executive will so invited 3 close friends as witnesses and the notary public to be there as well. Merong photographer para nga naman may additional evidence. Kinodakan yung event. Basta may kumilos, may shot. Some heirs given less than expected, they want to oppose probate of will. Walang maisip na ground. Nakita yung pictures, nakatayo sa likod yung witnesses. Notary public nasa gilid. In so many photographs, habang pumipirma yung testator, the witness was chatting with somebody. Walang kahit isang photo na nakatingin sha. Disgruntled heirs used this. Therefore there were only two witnesses kasi daldal ng daldal yung isa he didn’t actually see the testator sign! SC: memorize taon taon lumalabas sa bar ito: “The law does not require the witnesses to actually see the testator sign his will. It is enough if the witness could have seen the testator sign by merely casting their eyes in the proper direction.” Reiterated in the cases assigned.

– – –

Non-compliance  VOID Full compliance  walang problema, natural VALID when compliance to the law is to the letter. Literal compliance. Substantial compliance  VALID: manner of execution followed by the testator was not in literal compliance with the provisions of the law. But while the manner followed was not literal, it nonetheless served the purpose behind the required formality. It served the purpose of formality.

Judge-made doctrine. Never nga namention dati sa OCC yan. But now meron na in Art 809. It’s a new provision. So sa kaso ni Inday, pinirmahan niya sa kabilang room pero dinala kagad kay Eva: is that substantial compliance? We will reserve the discussion when we reach A809. Take note that delegate not required to read the will. How to write, block print, cursive. Pwede ba Chinese characters kung Chinese yung delegate? Di ata.

a. In his presence of testator Take note that the testator must sign the will in the presence of the three witnesses, therefore, so must the delegate. Where must delegate write testator? Where the testator is supposed to sign. At the end of the will. 1. Attested and subscribed by 3 or more
credible witnesses Testator subscribed lang. witnesses attested AND subscribed. Ano yung “attested”? In the documents issued by president, it means certified. Pero in wills and succession, it means “observed and witnessed” What must these witnesses witness? The testator in his act of signing. The testator’s act of executing his will. Ang tanong ninyo jan: bakit tatlong testigo na dapat makakita? Kasi this will will most likely be submitted to court for probate when the testator is dead so somebody has to vouch the authenticity of the will. Somebody must be there. Who the judge will question and opposing counsel will cross-examine to find out if it was executed freely and voluntarily. Sir bakit tatlo? At least may dalawang spare, pag namatay yung isa. Mas mahirap nating palitan ang dokumento pag tatlo ang testigo kasi the law requires them to subscribe. They will have to sign each and every page of the will except the last on the left hand margin.

12 July 2010
Jaboneta v Justilo was reiterated in many cases and in fact, I assigned to you Nera v Rimando. Not required to actually see the testator sign. It is enough that the testator or witnesses could have seen the other sign had they wanted to do so by casting their eyes to the proper distinction. Jaboneta: standing at the back of testator Nera: one of the witnesses was in the other adjacent room. Court said: he could have seen it despite the curtain had he wanted to. Extreme na yun. Still, they have applied the Jaboneta doctrine. What is the reason why the law requires witnesses for a valid will? • To render available proof of its authenticity and due execution. Witnesses will be proof as to the authenticity of the will. Why? Eh makikita agad nila, “Ay nako, di yan yung will. Di ko prima yan eh.” They can easily identify the will. The signature appearing there is not mine. O kaya sabi niya “DI yan yung will.

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I distinctly remember that the testator used blue ink instead of black.” They will also be proof as to the mental condition of the testator at the time of execution. (as to testamentary capacity) “Nako parang wala sha sa sarili niya.” Purpose why law requires intervention of three witnesses.  Proof of authenticity and due execution of will.

witness. If there are less than three witnesses, the notarial will is invalid. If the witness knew how to read and right BUT usually sign with a thumbmark, it will be sufficient signature for the purpose of making of will. The testator who is not able to sign may request somebody to sign his will, he is called a delegate. How about the witness, is it required that he is able to sign. May he request a delegate to write his name on the will? Senator Tolentino says: Witness who was unable to write was allowed to sign through another in New Hampshire because it was provided in their law on wills and testament but same cannot be applied here because law requires witness to subscribe. There is no law which authorizes witness to sign through a delegate. Testator is allowed to sign through delegate because authorized by law. IMPLICATION: The general rule is that nobody is authorized to sign will through a delegate. That’s why exception has to be provided in law for the testator. How many witnesses are required? 3 or more credible witnesses. What is the effect if there is less than three? Will is void. What if more than 3 witnesses? No effect. Because law effects expressly allows more than 3 witnesses. Kahit ilan niyo pa gusto, pero take note habang dumadami ang witnesses, lumalaki ang risk na maging invalid. What is the order of signing? Imagine nakaupo sila sa long table. Pasa-pasa pasa sila? OR nakabigay na sa kanila lahat ng kopya tas swap swap sila. Must the testator sign first before the witnesses? There are two views. Strict and liberal 1. Strict – testator must sign at least one copy. Until he has signed, there’s no will and there’s nothing to assess on the part of the witnesses. E.g. Dumating lawyer with t copies of the will. Binigay sa witness para pumirma sila. Hindi valid ito according strict view.

Bakit three witnesses? It’s an arbitrary number chosen by framers of the code. To insulate against the supervening incapacity of the witness. Pag sobrang dami, baka wala na sila pirmahan sa margin. Natabunan na ng pirma yung will mismo. Another thing required from witnesses to do: 1. Attest 2. Subscribe – affix a signature Purpose for subscription: identify the will when presented for probate. Witnesses can identify the will through signature appearing on the will. Where will the witnesses sign? In the case of testator, law is very clear i.e. at the end of the will (thereof) How about the witnesses, where must they sign. Unfortunately, the law is silent where the witnesses must sign. This was decided by the Supreme Court in the case of Taboada v Rosal. Witnesses signed all pages on the left margin, not the last page at the end of the will. On the page which contains last disposition, only testator signed but not the witnesses. Was the will valid? YES, but there was a dissenting opinion. In practice, sa kontrata, pag me piprimahan kayong deed of sale two pages.

Deed of Sale
(Sgd) Seller Witnesses witnesses Tas they also sign sa left margin Text text text

Dapat ba ganun din sa wills? Taboada v Rosal: 1. Law does not indicate where they should sign 2. Signatures in the margin served the purpose of the signature (identify the will later on and prevent substitution of the page). Parang substantial compliance yan. All purposes were served by the marginal signature affixed by the witnesses. May a witness sign with a thumbmark? You know that a testator may sign with thumbmark. Does the same apply for witnesses? What signature is sufficient for him? According to Senator Tolentino, if you read him, it depends if the witness signed with a thumbmark because he was illiterate, it is void. A witness should know how to read and write. Otherwise, he is disqualified to become a

2. Liberal – as long as accomplished in one transaction
and same occasion, the order of signing is immaterial. In the Phil, no case of such issue has happened before. Siguro kasi maingat lahat ng abogado. Prima muna testator before witnesses. Signed in the presence Reason for signing: Para nagkakaamuyan sila kung pano pumirma ang bawat isa. Para kung sakaling may magsinungaling mamaya, they can easily counter the perjury. Hoy violet yung ink mo jan dati ah! Bakit iba ang pirma mo dito? Itong si Ron decided to make a will. He asked lawyer to make a draft in accordance with his wishes. He invited three of his bestfirends to be his witnesses. Nung present na silang apat and the notary public was there. “You watch me, I will sign tese all!” tas biglang inatake matapos primahan. Nagkikisay dun sa floor si Ron. What will the witnesses do? Shempre dinala muna si Ron sa

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hospital. He has been unconscious for one month. Sabi witnesses, pipirmahan na natin to? Oh eh sabi ng batas, in the rpresence of Ron ayan si ron sa hospital oh. Is the will is valid? No. while they signed it in the physical presence of the testator, it is not what is required. He must be conscious that the witnesses are signing his will. May a blind man make a will? Pano malalaman ng bulag na yung witnesses eh pumiprima sa kanyang will? Dahil nakarinig ng lecture yung tatlong witnesses ni Ron sa hospital. Sabi ni DaniCon di natin pwedeng pirmahan kasi hindi siya gising. After sleeping for more than 2 months, he finally woke up and recovered and discharged in his hospital. Now he is at home. Nagpuntahan na yung tatlong testigo. O magaling ka na. Pipirmahan na naming will mo ah! Is it valid? Not valid because execution must be done in a signle continuous transaction. Di pwede magkaron ng gap. Kung pwede magkaron ng gap ng 6 months, bakit hindi 1 year. Magkakaproblem tayo diyan baka nagbago na ang testamentary capacity yung transaction. Di pwede magkaron ng break. The witnesses cannot sign on a different occasion. Suppose the testator couldn’t sign his will. May piling na yung kamay ko, may Parkinson’s ako, kaliga mo na si Michael J. Fox. So you requested somebody to write your name, he should write in your presence and under your direction. Must he sign in the presence of your witnesses? Of course. In our problem, suppose the delegate wrote the name of Ron in each and every page of the will, however he had to leave after completion of the signing. Umalis yung delegate? Habang pumipirima yung testigo, wala yung delegate. When testator sign through delegate, must the witnesses sign in the presence of delegate? No. Kaya nga agent lang sha diba. Suppose one of the witnesses is blind, maski anong pihit mo sa ulo niya, hindi niya makikita talaga. No matter where you cast his face, he’ll never see the testator sign. Is the will valid? No, blind man is disqualified from witnessing a will. “Each and every page must be signed by testator and witnesses” Take note: Law requires two sets of signature: 1. Testator is required at the end of the will Where: at the end of the will 2. Each and every page except the last Why last? Kasi nga nandun na yung first set Where: left margin Who: testator and witnesses What signature is sufficient for the second set? Issue: In the case of an ordinary contract, e.g. sale, yung full signature natin, yung long signature ang inaaffix sa end of the contract. Usually affix it on top of our printed name. We are also required to sign each and every page. Pano pinipirpirmahan ang each and every page? Initials na lang eh. Pwede bas a will na iba ang pirma sa end at sa bawat page on the left margin? So far this issue has not reached the SC. Danicon: there should only be one signature of a person on all the pages of the will. Parepareho dapat prima niyan. Kaya pag ako ang naging

justice ng SC at makarating sakin ang will na iba ang margin at kayo ang abogado, isasampal ko sa inyo yan. Hindi kayo natuto. Dapat pareho ang prima niyo. Wag lang initial. Although wala pang kaso. Dito makikita kung gano kagaling yung abogado eh. Dapat pareho yung prima. On the left margin Eh sir sa right margin pumirma? Eh kaliwete eh. O kaya sa bottom/top hindi sa margin? Sir, naubos kasi yung space. Will that invalidate? NO because that’s substantial compliance. The purpose is served. Suppose the will is written on only one page. Isa lang ang provision ni Ron, “I institute my GF Eva Gutierrez as my sole and universal heir.” Kailangan pa ban g marginal signature? What is important for a valid will is each and every page must contain FOUR signatures (testator + witnesses). Suppose the will was written on two pages pero dahil Boholano (mas kuripot pa sa Ilocano) yung testator. Pano magpaypay ang Boholano? *Nods head in front of paper* WTF Isang sheet lang ng paper, front and back. Sa front ba kailangan pa ng marginal signature? Yes. Kasi page nakalagay sa batas, hindi sheet. For all we know, baka mamaya hindi naman back to back yung will nung ginawa. Merong separate first page on separate sheet of paper. Yun ang sinupress at nagtype sila sa back ng second page to make it appear na back to back. Kakainin lang yung 1st page tas gagawa ng bago dun sa likod ng page 2. What is the effect if not all of the pages were signed on the margin? The will is void. Apat dapat yan palagi. Basta nawala ang isa. Is there an exception? NO! Icasiano v Icasiano is not an exception. Original copy walang pirma yung isang witness. Probate was opposed by some relatives on the ground that will was invalid. One of the witnesses did not sign one page. They presented the witness in court. He must have lifted two pages at the same time inadvertently so he was not able to sign the pages. What was the ruling of the court? Valid not because it was an exception, not because the witness testified. What was the reason the court declared it valid? 1. Di niyo naman kailagngang ipresent yung original because it was a duplicate original. It was sufficient for them to have submitted a copy which was a duplicate original. All of them were originals. 2. No allegation of fraud or bad faith.  Danicon: Okay to. 3. Sabi ni JBL Reyes, all the marks of the dry seal of the lawyer, where all concentric. Pag pinagpatong-patong mo, magkakatugma yung dry seal. Delikado yung pronouncement nay un. Dapat tinataktak yung papel para pantay-pantay. Yung iba salang na lang bigla. Siguro di sha nagnotaryo dati. Icasiano is not a case that creates an exception to the rule.

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The testator requested a delegate to write his name on the will, must the delegate write the name of the testator on each and every page of the margin? Natural. Di nga makasulat so sha lahat ng gagawa nun. Pipirma sha at the end of the page and on each and every margin. Hindi pirma niya but the name of the testator. How he wrote in the last page should be the manner how he writes on each and every page. All the pages should be numbered How are the pages should be numbered? 1. In letters Letters daw oh. So “A” “B” utak Manny Pacquiao ata. Parang cheke yan. May numerals at may letter. Para walang daya. Yung 1 pwedeng maging 4 at 7. Yung 2 pwede maging 3 or5. Yung 6 pwedeng 8 at 4. WTF Danicon hahah. The correct numbering in letters is: One Two Three. Dapat yan “in words” kaso trinanslate yan from Spanish eh. Call, sandali lang baka si Pinoynoy ito. Hindi po si Pinoynoy yun. “In letras” may also be interpreted as “in words”.

“Attestation clause” What is it? Written memorandum of facts that attended the execution of the will executed by the witnesses to serve as evidence of the will’s due execution. PURPOSE: Preserve in permanent form the record of facts attending the execution of will such that in case of failure of memory or causualty due to supervening events. The execution of the will may still be proven. What is included there? All the facts required by law to appear therein. Nakalagay sa Art. 805. May pipirma ba jan? Witnesses. Why must they sign? Because it’s their certification that their will was executed in accordance with those facts written in the attestation clause. Inadvance niyo ata yang relos na yan!

19 July 2010

– Happy birthday Renzpot!!! :D

Whose act is the attestation clause? The witnesses and since it’s their act, they must sign it. A805 does not require the witnesses to sign. But in the case Cagro v Cagro, it is deemed not executed by the witnesses when not signed. That made the will invalid. For them to be considered to have signed the attestation clause, marginal signature where the attestation clause were written is not enough. They must sign at the bottom. That’s the only place where signature must be affixed to be considered signed by the witnesses. The marginal signatures did not execute the attestation clause. Distinguish the case of Cagro in the doctrine of Taboada v Rosal. Both involved marginal signature of the witnesses. In the latter, the witnesses did not sign the end of the will, just the marginal. The marginal signatures were sufficient compliance with 805. But in Cagro, the marginal signatures were not enough. Those marginal signatures did not constitute substantial compliance. How may the attestation be written? Art 805 tells us what is written. But the question is “HOW” May it be written as part of the will? Integrated in the body of the will OR must the attestation be a separate narration/instrument from the body of the will? The law does not tell us how the AC should be written. For as long as the AC is a certification by the witnesses and the contents enumerated in the law arre all contained in the AC, that should suffice. However, if it is written as an integral part of the body of the will. Taboada v Rosal is no longer applicable. Witnesses must sign at the end of the will to be considered as valid AC. Pero yung mga abogado, hindi na natin sinasama as part of the body of the will. We make it as a separate instrument. Certification separate from the will. Since it’s a separate instrument, it has to be executed bythe witnesses by signing at the end or at the bottom of the attestation clause.

2. Correlatively
Show on the page of the numbering. “One/First of five pages” “Two/Second of five pages” “Three/Third of five pages” Why? Para alam natin kung may nawawala. Alam natin if some page has been suppressed. Suppose will was written on five pages, one of the pages was missing. Can we allow probate of the four remaining pages? Itaga niyo sa mga batok niyo. It’s all or nothing. Parang si Mayor Lim yan. Enforce the law or enforce nothing. Why? We don’t know what’s contained on the missing page. For all we know, the dispositions in the first four pages are dependent on a disposition of the fifth page. Baka nga kaya nawala kasi nandun yung magic conditions. “Ang lahat ng naririto ay magiging mabisa lamang KAPAG…” But SC encountered pagination literally in alphabet. SC said “Aaaay substantial compliance na yan. Alam naman nating magkakasunod sila.” DaniCon: Pero ilan lahat ng pages na yun? Hanggang san ba tumigil yung testator. Baka wala ngang pagination yung will. Tinanggal some pages tas saka nilagyan ng numbering. But you know, wala pa naman ako sa SC, hindi pa mababago yan. That’s an actual case but not in your syllabus. Inallow nila yung letters of alphabet. PURPOSE: Prevent insertion or suppression of the page. E.g.They can’t have a Page 4-A. Parang Memorandum Circular 1-A. Hindi UP grad gumawa nun ha! Suppose only one page. Kailangan pa ba ng page? There’s no harm if you write pagination on one page. Pero kung hindi nalagyan, pwede ba yun? Yes. May kaso na yan. One page on one sheet. Reason: There can be no substitution or suppression anymore. Pwede na walang numbering.

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May the witnesses execute the AC on a separate occasion, kasi hindi kasama sa will? Pwede ba nilang iseparate on a separate occasion. E.g. testator and witnesses executed will today but Notary Public forgot to prepare the AC for the witnesses to sign. May the AC be executed by the witnesses the next day in the office of the notary public? The law does not tell us that the AC should be executed on the same occasion. Can it be executed on a separate occasions. In my opinion, NO, it cannot be executed on a separate occasion. If it can be executed on a separate occasion, how long must the gap be. If it’s one day, then why not one year? If it can be one year, why not three or five years? Sandali muna, when do we stop? When the AC is executed on a separate occasion, must the testator be present when the witnesses execute the AC? Remember what the law provides, testator must sign each and every page of the will in the presence of witnesses, witnesses must sign each and every page of the will msut be signed in the presence of the testator and of each other. Whose act is the AC? It’s that of the witnesses. The page which contains nothing but AC must that be included in the number of pages in the will? Di ba yun ang nakalagay sa AC? Yung number of pages in which the will was written. The answer is NO, Abangan v Abangan, SC says we don’t include the number of pages in the will where the AC was written. It’s not part of the will. It’s not an act of the testator. Rather it’s an act of the witnesses. So we don’t sama that number in the number of pages. Kung hindi naman pala kasama, therefore, the testator need not sign the page which contains nothing but AC, all pages must sign in the marign. Pipirma pa ba yung testator sa AC sa margin? Hindi naman pala part ng will, pwede ba gawin ng witnesses separate from the will? In DLC’s opinion: NO, you have to look at the purpose of AC. It’s there to guard against the treachery of human memory. Therefore, if there’s gap, the purpose wil be lost. Its purpose is to preserve the facts surrounding the execution. Wala pang kaso yan. Opinion ko lang iyon. Must it be written in a language known to the witnesses? Will is act of testator and the law requires will to be written in the language known to the testator. AC is act of witnesses. NO, in fact, last par of 805 provides that if the AC was written in language not known, the same has to be interpreted to them, thereby allowing AC written in a language not known to witnesses. Must AC be written in language known to the testator? No, it’s not his act, he has nothing to do with it. No pint making it known to him. Must AC be written in same language as will? No such requirement in law that they be same language. What is the effect if there is no AC? If the will is notarial and without AC, the will is invalid. This requirement is mandatory. What must the AC contain? Marami yan.

1. 2. 3.

Number of pages Testator signed the will and every page thereof in the presence of witnesses Witnesses witness and signed the will and every page thereof in the presence of testator and of one another

In case testator signed through delegate, what should AC state? Caused another to sign his name under the latter’s express dirrectin, in the presence of witnesses, hindi sinabi yung testator. Must the AC state the name of delegate? Walang nakalagay. What is the effect if AC failed to state one of those required by law to appear in the clause? GENERAL RULE: Will is void. But EXCEPTION in A809. If you will look at 809, it’s a new provision. It was not present in the old code. A809 does not tell us that the substantial compliance rule applies only to defective AC. Without AC the substantial compliance doctrine has been applied by the SC, we have discussed that in our previous meetings. Without A809, the substantial compliance doctrine, a judge-made doctrine is valid exercise of the equity jurisdiction of the courts. But A809 simply provides a special substantial compliance rule when the defect involves the AC. So pagka-AC na yung defective, we don’t apply the general doctrine of substantial compliance. Meron nang special substantial compliance rule in A809. Ergo, if the defect is not AC, the general rule on substantial compliance will apply. Later na natin ididscuss ang 809, maraming di nakakaintindi niyan. Must AC be dated? There’s no requirement. Must AC state place of execution? Hindi rin nakalagay sa batas yun. AC being made part of the will? Cuevas v Achacoso AC _________? Villaflor v Tobias. Cagro v Cagro: Strong dissenting opinion. Read that! Essentially sabi niya: Why should we erequired the witnesses to sign at the bottom for validity when the law does not require/indicate where the witnesses must sign. In fact, the law does not reuire AC has to be signed. “Acknowledged” What is meant by “acknowledgment”? To acknowledge means to admit authorship of an act. So if somebody acknowledges a deed of sale before a NP, what does he acknowledge? He acknowledges that he is a party to the Deed of Sale either as a buyer or seller. In the case of a will, what is to be acknowledged? Who are required to acknowledge? All the four should acknowledge before a NP What does testator admit? Authorship of the will, e.g. this will was executed by me. This is my last will and testament. Ano pa? That he executed it freely and voluntarily. Authorship and voluntariness of execution. How about the witnesses, what will they acknowledge before NP? Authorship of the AC. Yun ang kanilang act so

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that’s what they would acknowledge and the voluntariness of the act. Impliedly, the witnesses will admit before NP, their having witnessed the execution of will by the testator. What is the reason why this acknowledgment is required? PURPOSE according to code commission: [1] ensure authrenticity of the will and [2] minimize fraud. It has history. Under Spanish CC which was in force in the country before Americans came, notarial intervention for validity of will was necessary but the Americans decided to do away with the notarila intervention. The Civil Procedure which amended parts of the Spanish CC, eliminated notarial acknowledgement. Many frauds were committed especially at the testator’s bedside by affixing his thumbmark. Kaya nirestore ito in the NCC. Akala nung gumawa ng batas, pag may abogado nagintervene, siguradon nang authentic yung dokumento, sha pa nga ang namemeke. Yung mga abogadong nagbubukas ng ataul at nonotaryuhin pa niya. Itantedate pa yung will to make it appear it was made before testator died. Kaya lang may CSI na ngayon eh. Pag yung thumbmark inaffix sa document after the corpse has undergone rigor mortis stage, iba na itsura ng thumbmark. Pag nagrigor mortis, naninigas rin yung tissues nay an. Pag ka lumambot yung corpse, hindi na shag anon kaelastic kaya may nangyayari sa thumbmark, siguro crumbled. At least ngayon alam niyo kung pano dadayain. Kailangan mainit init pa yung bangkay, bago mag-rigor mortis. Ithumbmark tas inotaryo. Palabasin niyon inexecute before he died. The code commission decided to return the intervention by a notary public. BTW under the old notarial law, hindi lahat ng NP ay abogado. There are instances where even non-lawyers were allowed to apply for commission. Ang nacarry over lang eh yung ability to administer oaths. LGC authorizes mayors and governors. Petition for authority to administer oaths if the place where he resides has no lawyer/mayor. When must the testator and witnesses acknowledge? Definitely not before the execution of the will, kasi nothing to acknowledge before NP. They may acknowledge only after the will was executed. May they acknowledge on a separate occasion? Halimbawa executed today, kaya lang the NP who was not present in the execution. Pinadala laang yung last will and testament together with the AC. Sabi nung lawyer, ay pasensha na po pero meron akong meeting. I cannot be present in the signing of the will. Since the NP was present during the signing, the testator and witnesses could not possibly acknowledge on the same occasion. May the acknowledgment be done on a separate occasion? Pwede ang 1 day, 1 year, 1 month. Where do we stop? According to Justice Eduardo Caguioa, only one who wrote about this requirement. No need to acknowledge on the same occasion as execution on the same day of the will. No other purpose than making usre that the will was executed by the testator

himself and that the testator have testamentary capacity. Meanin g he was still alive and executed voluntarily byt the testator. Walang magbabago even though acknowledgemnt done on a separate occasion. I dare not debate with Justice cAguioa, possible na walang risk or prejudice. Yung nga lang. kung pwede ng 1 day, why not 1 month, 1 year, 5 years, 10 years. Not only that. May the witnesses and testator acknowledge on different occasions? Pwede bang bukas si testator, without the witnesses, and then the witnesses will acknowledge 1 month from today. May those four parties on four different occasions? Kay Justice Caguioa, pwede yun. Eh kung pwede yun. Pwede ba after the death of the testator?! What if the witnesses acknowledge it after the death of the testator. If we follow the logical __ of the arguments espoused by Justice Caguioa, he will opine that it can be acknowledge after the death. Nakapirma na naman sila sa will at AC. If the four may acknowledge on different occasions, may they acknowledge before different notaries public? Pwede ba yun? According to Justice Caguioa, no requirement that they acknowledge before the same. Ang mangyayari lang dun. Matatadtad ng dry seal yung will. Even if they don’t acknowledge before the same notary public pero different occasions, tadtad pa rin yun. What is the evidence that it was acknowledge before notary public? The “acknowledgement certificate” prepared by the notary before whom it was acknowledged. NP certifies who appeared before him citing proper identification (di na sufficient resident certificate ngayon, it must be an ID issued by the government). Testator certification that the acknowledging party acknowledged before him and executed by him freely and voluntarily. NP must ask the party about circumstances that will make him conclude executed the will freely and voluntarily. The moment he is convinced that it was executed freely and voluntarily by the party, that’s the time NP will prepare the Ackowledgment Certificate. AckCertif is usually in fact almost always as a separate instrument. Kadalasan, nakaseparate na page yan. Pero kung si abogado ay nagtitipid sa attestation at ackcertif. Hindi natin ginagawa yun kasi pag nagkamali ka mahirap naman putulin. Madaling palitan. That sheet of paper where ackcertif was written, is that part of will? NO. Must testator and witnesses sign the margin of the page? No, not part of will. Must testator and witnesses sign at the end of ackcert? No, bec it’s the act of the NP. Must ackcert state the name of the witneses? (CA decision) need not mention the names of the testator and witnesses. Parang di mangayari yan ngayon kasi they need to identify the acknowledging parties. Pati yung details ng ID, kailangang maisulat sa AckCert, baka di na applicable under the present notarial law.

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The ackcert, must it be signed by the testator on the same occasion that the testator and witnesses acknowledged before him? Javellana v Ledesma: mayaman at malapit na mamatay. Signed at the hospital room of the testator. Nako nalimutan ko po yung ackcert, notarial seal and document and brought at his office. When he arrived at his office, 5thirsty club na, hindi na nanotaryo. Kinabukasan, he will appear in court, attend hearings, he has pleadings to prepare, solo practitioner sa probinsha, just one secretary and messenger sa probinsha. Nalimutan niyang notaryuhin yung will hanggang isang umaga, sabi ni secretary. Boss di pa natin nanotaryo will ni Don Pepe, namatay na kagabi. Notaryado na, so dinala na sa court. Nag-away si Lawyer at secretary, nung nag-away sila, ginawa ni secretary, pumunta sa kabila sa mga oppositors ng will. No it did not invalidate the will. The ack cert is not the act of testator nor the witnesesse. As far as law is concerned, they have complied with all formalities required by law. Cannot be made to depend on act of np over whom testator and witnesses have no control. Besides, the execution of the notarial certificate, whether done before or after the testator does not increase the risk of will being a forgery or fraudulently obtained. DOCTRINE: AckCert may be prepared and executed by NP not on the same occasion that the testator and witnesses acknowledged before him. In fact, it can be done by the NP even after the death of the testator. If the testator requested a delegate to write his name, must the delegate acknowledge before a notary public? NO, it’s not required. The delegate need not appear because the act of the delegate is supposed to be the act of the principal testator. Therefore, it’s the testator who should acknolwedge, not the delegate. What is the effect if no acknowledgment? If notarial will, void. The tax code requires a documentary stamp to be affixed and can___on every ackcert that a notary public will prepare and execute. Hindi nalagyan ng documentary stamp ang will, yung ackcert. The first you will encounter is the application for admission to the bar. What is the effect. Under the law, the document that was notarized is not admissible in evidence. Kapag deed of sale tas yung ackdert ay walang stamp, it’s not admissible in court. Si atty, hindi nilagayn ng documentary stamp yung ackcert of the will, nung namatay yung testator, the will was presented in court, ang sabi ni oppositors, the will is invalid because the ackcert is inadmissible, therefore, since inadmissible, the effect is no ackcert and the will is invalid. Gabucan v Manta: No, the absence of documentary stamp does not make the will invalid. The absence of the stamp makes the document inadmissible but may be affixed anytime. After affixing, it becomes immediately admissible. Wala ba? O eh di lagyan! Ordinarily when a NP notarizes, he retains 2 copies: for his files and the national archives. Submit the notarial register together with the SOlGen. Sol Gen to National Archives. Deed of Sale, four copies yan. In the case of a will, must the NP retain copy? No, not required to retain. But may he? Yes, if allowed by testator to retain a copy,

because the testator may have interest in having it a secret before his death. Marami makakakita niyan, secretary, messenger, record, national archive. To address that concern of testator, the law does not require NP to retain a copy. If not, he has to give copy of notarized will to the testator. CHI: Pwede bang kamag-anak yung NP?

SPECIAL REQUIREMENTS ano nga yung halohalo special? Special testators with special conditions. Not prohibited to make a will, but to ensure that the will was not forced upon the testator the law imposes special formal requirements. Dalawang classes: 1. Deaf/deaf-mute 2. Blind

DEAF/DEAF-MUTE

Usually, when deafness is inborn, most likely mute din yan. Without sound to emulate so hindi niya alam kung pano gagayahin yung sound na yun. But if deafness was acquired, most likely bingi lang pero nakakapagsalita. Bakit merong special requirements? Eh kasi nung araw, ang tining nila sa deaf-mute/deaf eh dumb. Handicap so great they are considered feeble-minded, idiots or dumb. Nung araw sa society, itinatago ang deaf-mute baka nakakadena pa nga. Kulang pa ng social skills. Eh sir pano yumaman, eh siguro nagmana o tumama sa lotto! Pero yumaman eh, magagawa natin? There must be an express provision prohibiting. Meron ngang special requirements to allow them. Under 807: personally read the will if able to do so, otherwise, he shall designate two persons to read and communicate in some practicable manner the contents thereof. How will these two persons read and communicate? Must they read at the same time or must they read and communicate one after another? NB If the intention is one after another, baka dapat A808 yung wording na maliwanag. Ergo, mukhang an gang intention ng batas eh for these two to help each other. Bakit sila sabay? Para makita ng testator na nag-aaway sila kung hindi sila magkasundo kung pano iccommunicate to him the contents of the will. May the witnesses or NP be the two persons who will read and communicate? According to almost all writers, no one yet says otherwise, YES, the witnesses and NP may be the two persons. Sir pwede po bang apat ung idesignate niya? Hindi kasi nakalagay na “at least two” DLC says: Since the purpose of requirement is to ensure is what he wished to be his last will. Anything to make him feel secured should be allowed. More than substantial compliance, more than full. No prohibition so no reason to disqualify witness and NP for as long as they were able to communicate accurately. There should be no reason to invalidate on that ground.

BLIND

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They are not prohibited, in fact there is a special requirement! When is testator blind? It may be inborn or acquired. Inborn hindi nakakasulat, most likely Braille. Sa elevators, required na ang dots na yan. Pagsulat niya, may cardboard at stylus tas butas lang sha ng butas. Invented by a French man ang pangalan ay… Braille. Natural! CAMILLE! Camiy. Pag acquired, nakakasulat yan yung nga lang hindi pantay-pantay. Regardless of born blind or became blind later on. Comply with additional specific requirement: Read twice but the witness and NP before whom acknowledged. PURPOSE: to ensure that what was written is what was desired by the testator. What is the effect of failure to comply with additional requirements? Garcia v Vasquez: will is invalid. Should the fact of compliance with these additional requirements appear in the AC? No need. Sufficient to establish in probate proceedings. Mascarinas v Angeles. Should the testator be deaf-mute and blind, kawawa naman. No expresss provision, disqualification. If the testator is deaf, mute and blind. What specific additional requrieemnts must the testator comply with? Both bang 807 and 808? Kasi kung comply with 807 pano idedemonstrate? Kahit anong monstra monstra gawin mo jan, hindi makikita. Kahit anong basa sa kanya, walang maririnig! How do we ensure that this poor fellow who is wealthy? Pano? Dapat siguro disqualified na lang. How about ILLITERATE no read and no write? No express prohibition and disqualification. Must the illiterate comply with special specific requirement? YES, 808. In the eyes of the law, the illiterate person is blind. How does the law define blind? Somebody who cannot read his will is a blind man. No matter how hard he looks, he cannot read. Alvarado v Gaviola: Told his nephew who was a lawyer. After a series of conference and draft correction, they finally agreed on the final copy of the will, let’s schedule a day for the execution. Atty. Nephew. Tumawag ng tatlong testigo at isa pang lawyer who will act as the notary public. Gave one copy of the will to the witnesses and the NP. Read aloud slowly the contents of the will, addressed to the testator. Okay nay an. That’s my will. The testator was blind. I will sign na! Art. 808 requires two readings, but only one witness. Lawyer nephew was a not a witness, nor the NP. There was no compliance with all the additional reliance. Yes. There was substantial compliance. Why? There was no literal but the manner followed in executing the will served the prupose behind 808. How come? Ang purpose lang naman two readings ay para masiguro ay kung ano nakasulat ay yun ang nakasulat. Kung iba ang sinabi nung nephew kesa sa nakasulat eh di nagreklamo yung testigo! Since none of the witness, the NP even did not raise an objection. What was read was what was written CHI: May the drafting lawyer be the same NP?

21 July 2010
Substantial compliance rule in Art. 809
A judge-made doctrine, it’s not in the law, but the courts in the exercise of their powers in the interest of justice, created this substantial compliance doctrine. That is still with us. It’s still being followed and applied by the courts but special substantial compliance rule was incorporated in A809. BUT the A809 applies only when it involves the attestation clause. The defect involves form or language. If the defect involves form or language, A809 applies. Provided there’s no BAD FAITH FORGERY FRAUD UNDER IMPROPER PRESSURE AND INFLUENCE. Prove that the will was in fact executed and attested in substatntial compliance with all requirements of the law. What do we mean by defect in form? The manner by which the attestation clause was prepared and executed did not comply with formalities. E.g. attestation clause was incorporated into the body of will instead of being written as separate instrument. This is a defect in the form of AC not the language. Defect in language? Sense conveyed by the written words of the AC is ambiguous, unclear or unintelligible. Words written in attestation clause. Rey v Cartajena is in point. Defect consists in an omission of a fact required by law to appear in the AC?  Is that a defect in form? Definitely not.  In language? Acdg to JBL Reyes, yes, that’s a defect in language. But acdg to Jurado, an absolute omission of a fact required by law to appear is neither a defect in form or language. This was the ruling in Gil v Murciano. An old case. In the first ruling of court in Gil v Murciano, SC ruled that a total omission of a fact required by law to appear in AC cannot be cured by showing of substantial compliance by the testator. May nag-dissent in the decision, si Justice Tuazon. Sabi kasi ng majority, we can only allow showing of substantial compliance if nothing is missing in AC. There is a defect merely in language. Dapat walang kulang. If something is missing in the AC, that cannot be cured by showing that the fact missing was complied with by the testator. Wala naman nakalagay sa AC. Pag sabi ng iba, hindi natin pwede payagan na maski wala dun eh kinomply naman. Gano kadaming facts ang pwedeng mawala? Suppose wala lahat, hindi sinabi sa AC. Will we allow introduction of evidence to show that there was substantial compliance kahit wala? Eh di tanggalin na lang ang AC, mawawalan ng value yung AC. Dissent ngayon si Tuazon. There’s a built-in limitation, we allow showing compliance with a requirement omitted in the attestation clause if such substantial compliance is shown by the four corners of the will. Evidence outside is not admissible to show that compliance with the requirement omitted in the AC was substantially

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complied with. Because of that dissent, MR was filed. While MR was pending, the composition of court changed. I think nag-resign si Roman Ozaeta to become the administrator or executor of the estate of Carlos Palanca Sr. in his place was appointed was Justice Labrador, yung moot court sa taas. Appointed by brother-in-law, Ramon Magsaysay. MR was taken up, nagbago ng botohan. Justice Labrador sided with Justice Tuazon. The minority ponentia became the majority ponentia by margin of one vote. Ano ngayon ruling ni Justice Tuazon which is the doctrine in Gil v Murciano. A total omission of a fact of compliance with the requirement of the law can be cured if substantial compliance with such omitted requirement is shown by the four corners of the will. Ano example nito? Each and every page was signed by the testator and the witnesses. Pero kung ang nawala ay yung total number of pages. Baka may sinupress. Evidence outside the body fo the will is not admissible. Naging minority si Justice Jugo. Tuazon lifted heavily from JBL Reyes’ opinion. Comes the case of Caneda v CA: same problem, the AC omitted totally a fact of compliance with the requirement. Proponents of will attempted to show and prove to the court that there was substantial compliance with requirement. Assuming substantial compliance was proven, will it cure? Ang sabi ni Regalado (San Beda yan eh no. Highest bar daw sabi niya. That will not make him UP grad. Highest grade nga, San Beda pa rin sha.) Researcher of REgalado, cited as authority of Desiderio Jurado (Phil Law School yun, hindi naman UP) and JBL Reyes. Pano niyo sinite si JBL? Parang yung case yan ngayon ng SC sa comfort women. Kinuote niya lang isang portion, di niya nakitang contrary positions sila. What is the remedy against good justice of SC? Impeachment lang naman yan? Is commission of plagiarism palpable violation of constitution? The best they can do is to force him to resign just like MVP resigned in the Ateneo Board. Caneda adopted the interpretation in Gil v Murciano. Total omission, hindi kasama yan. AND assuming that a defect is one of form or language. The only evidence admissible are those found in the four corners of the will. Iniba ni Caneda: Total omission not curable. Pero pag form or language, curable pero by intrinsic lang. When examiner pretends to know his law? Sir made some point here. Review!

ang sabi, YES, si Paras! The imagination of Paras is fertile, very fertile. How? Kakausap ng isang taong bumasa at sumulat. By dictation. Gawin mong block print. Dinikta ko ngayon kay Garcia. Basahin mo nga, o akin na. kokopyahn painstakingly tapos thumbmark. Si Paras lang nakaisip non! Sige nga. Think of an argument to demolish Justice Edgardo Paras. Suppose blind man could read and write in Braille. Before death, he made will in Braille. Is that a valid will? Yung una nating pinag-usapan, entirely written in hand of testator. Yung Braille eh kanya bang sinulat? Kamay naman niya yung ginamit sa pagpuncture. Kung ganon argument mo, kamay niya rin anman ang nagpagalaw sa typewriter. The issue is what do we mean by handwriting? Sir, walang kamay pero adept magsulat gamit ang paa. Parang yung Filipina who was armless despite handicap became a pilot in US. Kung marunong dumarive ng eroplano using foot, marunong din sumulat. Written entirely by foot. Is that a valid will? A sir, substantial compliance yan. No literal compliance but purpose behind requirement is served. Science has shown that no two people have the same handwriting. Imposible na pareho sila handwriting kay apinapayagan as long as entirely written. ABA kung yung sinulat ng kamay hindi magkapareho, di lalo na yung paa! Tiyak na magkaiba yun. Madidiscover kagad the forgery. Under the law, there’s no other requirement other than those three which I mentioned. Kailangan ba ng witnesses? Hindi po. Pero may witness eh. Kumuha tatlo kaibigan. Regarded as surplusage. Hindi kailangan ng AC yan, pag gumawa sila, treated as surplusage. Kailangan bang notaryuhin? Suppose testator is deaf as old age, gumawa ng sulat, pero teacher/lawyer, kailangan pa ba magcomply sa special requirement? No, they only apply to notarial will, kasi iba yung nagtype at gumawa ng notarial will. What is the form of a holographic will to be valid? May it be in the form of a letter to the testaor’s wife? YES, for as long as there was animus testandi. It may even be in the form of a poem, parang si Soc Rodrigo (I’m sure hindi niyo na kilala yun) senator of Republic before martial law. He was a columnist and wrote in Tagalog pero maski sumusulat or nagtatalumpati, parang si balagtas, my rhyme at meter pag nagsalita. Parang tumutula. So nung gumawa sha ng will para ring tula. Valid will as long as there’s animnues testandi at time of execution. What is the effect if not entirely written by the hand of the testator? The will is void. What is “entirely”? Nagkatuluyan si Garcia at Gutierrez. Isang araw, nakita ni Gutierrez si Garcia sa table nagsusulat. Sweatheart ano sulat you? Gumagawa me LWT na HW. E di pinabayaan ni Gutierrez. Tas pinakeelaman niya habang natutulog si Ron. Curiosity kills the cat. She didn’t like what she read. Kinabukasan, kinonfrotn niya si Ron, nakita ko LWT mo ha, di ko gusto. Ano ba gusto mo? Gusto ko bigyan mo yung DI ko. O sha sige sulat mo jan. di pa kasi tapos will niya. To my wife’s DI, I give legacy of 50K.

HOLOGRAPHIC WILL
When will is holographic will. Only 3 Requirements. 1. Entire written by the hand of testator 2. Signed by the hand of testator 3. Dated by the hand of testator Must HW be in a language known to testator? Of course, general requirement yun eh diba? Sandali muna. Suppose testator is illiterate. May an illiterate man execute a will? Of course, no express disqualification in the law. If he maeks a notarial will, there’s an additional requirement. In the eyes of law, illiterate = blind. But suppose he wants to make a holographic will? Can he do that? Merong isang writer na

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Will Eva’s insertion take effect? NO, kasi hindi niya will yun. It will not take effect. How about the will as written in the hand of Garcia? Of course not. Because not entirely written. The entire will is void. Iba ang solushon kung tinapos niya na yung will. Nung makita ni Eva, may pirma at date na. She prevailed him to give something to DI. O sige, isulat mo after the signature. Tapos pinirmahan ulit. Will the PS added by Ms. Gutierrez in her own handwriting but signed and dated by Mr. Garcia take effect? Of course not. How about the original will, will it take effect? Of course, because that will. I will show you later on na hindi kasama yung PS sa will. PS is an attempt to make a codicil. There are more problems to discuss when we reach alterations. What signature is sufficient? Pwede ba yung initials? Sabi ni Paras, hindi pwede! Mali ang mental processing ni Paras kaya absurd. Pwede bang pumirma with a thumbmark? Baka akala niyo settled yan ha. Sabi Justice Edwardo Caguioa and Prof. Hector De Leon, a testator cannot execute HW by sigining it with a thumbmark. Why? Kasi daw nakalagay sa batas, A811 (in the probate of HW… will and signature are in the handwriting. Underline handwriting. It’s a mark of the thumb. Impliedly required by 811. Pero nasa 810 eh yung ‘hand’ lang. MAY KAKAMAY PA BA SA THUMB? MAY MAS KAMAY PA BA DITO? Literal sila Caguioa at De Leon. Eh di yung Fil-Am armless pilot eh invalid na rin! Footwriting yun. Ano ba purpose for requiring handwriting?That is itself an identification. Ganun din yung thumbmark. Bakit naman kasi nasulat na nga yung body ng pirma, thumbmark pa nilagay niya. Patay na kasi nung tinumbmark. BUT that is a question of fact, evidentiary in nature. Pwede rin kasi sinulat nung kaya pa niya, tapos pinirmahan na lang nung mahina na. Buti na lang hindi ganon view ni Tolentino. SIGNATURE. Where must testator sign? Sa notarial, at the end dapat. Sir’s PERSONAL EXPERIENCE. Upon coming back from master, senior partner was legal luminary from UP Law with masteral degree in Yale who became concom delegate. May asthma. Namatay. Week later, pumunta sakin biyuda. Doctorate Natural Science ng Harvard. Ang tito mo ay may iniwang LWT. Patingin? Three pieces of yellow pad. Boss ko yun eh so kinocorrect yung pleadings namin, alam ko handwriting. Very nice. Ay walang pirma. Nako tita. This will is void. Why?! Walang pirma ni tito. Bakit kailangang pirmahan, until then, di tayo sure na tapos na niya. Pag di pa tapos, di pa pwede probate. Baka may hindi sha nailagay na provisions upon whch the other provisions depend. Lulugo-lugo si Biyuda, di makapaniwalang *insert credential here* gumawa ng

invalid na will. “IHO…” aggressive. Nakalagay ba ang batas kung san nakapirma ang tito mo? Look at the will. I, Juan de la Cruz of sound and disposing mind, by the grace of God, do hereby declare and publish the following as my last will and testament. Iho, tingnan mo ito. Di ba ganyan ang pirma ni tito mo?! Wrote his name is the way he signed. Technically, this is his signature. Oo nga tita. Pero hanggang dito lang valid yan. (yung line na merong signature) A812 (below signature). The moment testator signs, sinasara na niya. Everything beneath will constitute a new will, which we will call, “codicil”. Later on I will show you that he was brilliant and intentionally left it unsigned to save the widow and children from expense of probate. The law does not tell where testator must sing BUT A812 implies that it must be at the end. Ms. Gutierrez bat parang gustong gusto mong tinutukso kita kay Ron? DATE. What date must testator write on the will? Let’s get a concrete example. Today, Mr. Garcia decided to write his will. This is a magnum opus!!! I’m exhausted! So he decided to rest. The opening paragraph, July 21, 2010. Nalimutan niya hanggang August 21, 2010. Kinuha ulit ang pad paper. Ano ba ang aking first disposition. To my loving girlfriend, Eva Gutierrez, I leave… itutuloy ko na lang. Sept. 21, martial law yun. Naalala niya. Naku, may will ako. Nag-add ng second disposition. To my loving nephew, tago ulit. October 21, 3rd provision tas tago ulit. Nov. 21 inilabas ulit. Sabi niya wala na ako idadagdag, isasara ko na!!! itinago. Kelan niya pinirmahan? Nov. 21. Dec. 21, kinuha ulit, I will look at my magnum opus. Ay nako! Walang date!  this will is invalid! No date! Can he add the date on Dec. 21? No provision in the law as to when he must affix the date. No before while after date. Ang sinabi lang for validity, it must be dated. ERGO, on Dec. 21, he may complete the will by dating it. Until then, hindi complete. Sarado lang, hindi complete. What date will he write? First day of started writing will, Aug 21 - First disposition? Sept 21 – 2nd dispo? Oct. 21 – third? Nov. 21 - signed? Dec. 21 – discovery that it did not bear a date? According to writers in Civil Law. Write the true date, not false date. When is a date “true date”? Any date which has a connection to the exeution of the will is a true date. Therefore, all of those may be written to complete the HW because all those have to do with execution of will. Pag April 21, 2010 ang nilagay, false date kasi without connection to the execution of HW. That will be a false date that invalidate the entire will. In Roxas v De Jesus: ang date ay “Feb ’61”. Eh kung jejemon, pano issusulat yan? Panahon ngayon ng mga illiterates. Is that sufficient date to make will valid? Yes, sufficient, the will was valid. Di ba kulang ng day? Aaah sabi SC, kasi alam niyo, under old CC, the law was very

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clear as to date requirement. For a HW to be valid, the day, month and the year must be written on the will. Pero iba na kasi yung formula sa NCC, tinanggal yung day, month and year. Date na lang. there must be reason behind the change. If the intention is to imposed same requirement for date of valid HW, then the lawmaekrs whould have simply carried over the wording of old law. Eh binago nila. Alam niyo naman, pag may binago, there’s peresumption ng reason for the change. Even assuming the same was intention of congress in changing formula or wording of provision. Substantial compliance yan. I.e. Substantial compliance rule equally applies to HW. Kung kayo ay naguguluhan pa, panahon na para magdrop. Magdoktor na lang kayo. Where must date be written? Beginning, body, after will but before signature, or after signature, back page? Anywhere, but it must be conclusive that the day is an integral part of the body of the will. Kung front page ang will tas likod ang date, hindi qualify yun kasi hindi parte ng will. ALTERATIONS Art 814: pwede pa ba ialter ang Notarial Wil? Pwede pa ba ialter ang NW? YES, you can alter or modify your NW but only through the execution of a codicil. Execute another will. Pwede bang icorrect na lang? Lagyan ng caret at ng additional dispositions in his own handwriting? Will that take effect? Natural hindi. Kasi hindi naman kasama yang alteration nung inexecute with the witnesses. Hindi kasama sa will. Ibang wil kasi yan na tinestiguhan ng tatlong testigo and acknowledged before NP. For this to be modified and order. Execute another. When we reach codicil, halimbang pinirmahan ni Ron ito with date. In his own handwriting, will that qualify as HOLOGRAPHIC CODICIL? Pero ang general rule: Notarial will cannot be altered and modified without codicil. How about a holographic will, pwede bang i-alter at will? YES. How? Tatlong ways to alter a written document. 1. Alteration by insertion 2. Alteration by deletion 3. Alteration by substitution (bura tas singit) Congresswoman Juanita Nepomuceno of Pampanga – lola ni Kiko Pangilinan yan. Mr. Speaker. Yes, what is your desire? Sponsor my bill calendared for 2nd reading. Congressman from Mindanao. Yield to me? Will the lady accept an insertion from this gentleman? You cannot withdraw it without my consent! To be a valid alteration of a holographic will. It must be handwriting of the testator and it must be authenticated by the full signature of the testator. Sa kasong ito… gumawa si Ron

(SGD) Ron Garcia (long signature) Eva: Punyeta ka. Bakit 5k lang kay DI. Di ba usapan natin 10k? It was not a valid alteration. Initial lang dib a dapat full sig? Ibahin natin ngayon.

1. Disposition disposition disposition disposition 2. Disposition disposition disposition disposition 3. Disposition disposition ^alteration alteration then initialled
disposition disposition (SGD) RBG  Sabi ni Paras, hindi pwede initials. Dapat full signature. Kaya nga as far as Paras is concerned, invalid lahat kasi initial lang. hindi kasi gets ni Paras yung “full signature” hindi naman sinabing “long signature.”

What is a full signature? Kung ano ipinirma dun sa ilalim yun ang pirma kapag inauthenticate ang alteration. Example.

1. Disposition disposition disposition disposition 2. Disposition disposition disposition disposition 3. Disposition disposition ^alteration alteration then full signature
Ron Garcia

disposition disposition

(SGD) RBG (initials lang)

 Alteration won’t take effect either kasi the law
means full signature is the one at the end. Law wants only one form/type of signature. Akala kasi ni Para sang full signature ay long signature. Magkaiba yun. Kaya nga maraming namamatay sa maling akala. Alteration is invalid, how about will in its original tenor? Will it still take effect? Aujero v CA: Since original will is valid, it will take effect. What will not take effect is the alteration. Buti yan kung alteration eh insertion lang. may matandang dalaga (kelan ba ang matandang dalaga? Senior citizen stage – 60 years. Matanda na, dalaga pa rin). “I institute my brother Jose Julian as my sole and universal heir.” (Sgd) Juana Change July 21, 2010 Valid ba ito? Hindi nagsasabing hindi valid, papalabasin ko! Kaso nagkagalit si Juana at si Jose. So binura niya, ginawang Abad. Nakalimutan niyang pirmahan hanggang sa kamatayan nia.

1. Disposition disposition disposition disposition 2. Disposition disposition disposition disposition 3. Disposition disposition ^alteration alteration then initialled
disposition disposition

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Sino na magmamana sa settlement proceeding? Jose: Julian was designated by way of an alteration. Not authenticated by testatrix but it will not take effect. Julian: Erase naman yung name mo! Jose: Alteration din ang cancellation of my name. It did not take effect! Kung hindi nagtake effect ang designation ni Julian at erasure ni Jose, sino ang magmamana? Kalaw v Relova. Major errors of SC in succession. Ang sabi SC “nobody” none was entitled to inherit. – Not Julian: because his designation was clearly an alteration and for that alteration t be effective, it msut be authenticated. Since it was not, it was invalid. – Not Jose: it was not an alteration but just revocation of provision through cancellation. Revocation does not require authentication to be effective. Sir’s opinion as shared by Vitug (di ko lang alam kung sino nauna): What is the nature of Jose’s erasure? Yes it may be revocation. Pano papalitan kung hindi nirevoke. WON revocation, it is immaterial. We still apply 814 not 820. This is a particular form of revocation amounting to alteration governed by specific law, 814. Hindi dapat mag-take effect. There’s danger nab aka mamaya may nagcancel ng provision na hidni ginawa ng testatrix. How do we know that it was testator himself who cancelled it out? Dun papasok si Aujero v CA. Delikado yung kanilang ruling in Kalaw v Relova. Dangerous precedent.

28 July 2010

V. INCORPORATION OF DOCUMENT BY REFERENCE
We are now in incorporation of document by reference Art 827 Sometimes, a testator has so much property to dispose that to identify each and every property in the will shall result in the will becoming extra-long or voluminous. Let’s suppose testator has 100 pieces of real property, if each and every property identified in the will. You can just imagine how long that will become. And you know, the longer the will gets, the risk that it will not comply with the formalities also gets bigger. Halimbawa, 20 pages na yan, e di possibility of witness lifting two pages at the same time becomes greater. The shorter the will therefore, the better. Eh pano yan, katakot-takot properties of testator. Yung isang client ko, nakafile lahat ng TCTs sa isang filing cabinet. Tatlong drawers puno ng titulo. Ganon kayaman yung client ko. Inventory ganito kakapal. Kung lahat to papangalanan, can you just imagine how long it will become. To aid the testator in making a short will, A827 allows the testator to incorporate by mere referece another document or paper. It is incorporated in the will by mere reference. E.g. Inventory of all his assets. In his will, ganito na lang nakalagay. To my oldest son, I give all properties in page 1-4. However for incorporation to be effective, there are requisites enumerated in Art. 827, 1. Document or paper referred to in the will must be in existence at the time of the execution of the will. – Implications of this requirement: The incorporation is invalid. Only the incorporation, not the will itself. The will remains a valid will, but the incorporation will be ineffective. 1. The will must clearly describe and identify the document or paper stating among other things the a. Number of pages of the document or of the paper 2. Signed by the testator and the witnesses on each and every page, except a. Voluminous books of account or documents 3. During probate the document must be identified in court as the document referred to in the will. Must AC of a notarial will state about the incorporation by reference of a document or a paper? No requirement Are all these requirements to be effective, mandatory? E.g. signed by testator and witnesses on each and every page. DLC opinion: It is not mandatory because there is a built-in eception. How do we know whether it’s voluminous? How many pages should there be and so the signature on the pages may be dispensed with.

26 July 2010
PNoy’s first SONA

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Suppose it’s not an inventory but another paper, how long must the paper be to be voluminous so that the requirement be dispensed with. How about a holographic will, may a holographic will incorporate by reference another document? If you will look at 827, there’s a requirement that each and every page must be signed by the testator and the witnesses. BUT there are no witnesses in the case of the holographic will. Does that imply that incorporation is allowed only in notarial will? Eh sir, sabi mo hindi naman mandatory yun, so siguro pag holographic hindi na rin kailangan. Anyway, wala pa naman sigurong nangyayaring ganyan. Baka makickout kayo dahil dito sa subject na to sa college na ito pero mabibilang sa daliri yung hahawak or nakhaawak ng settlement of estate cases. In my yers of practice, 5 settlement case lang nahawakan ko. Remember the principles on incorporation, this will be discussed later in republication.

INSOFAR AS REQUIREMENTS FOR VALIDITY: no difference San nagkaiba? Codicil necessarily refers to a prior will. If it doesn’t hindi sha codicil. Suppose the will was a notarial will, may the testator execute a holographic codicil? Should they be the same form? No, a codicil need not be executed in the same form as the will it refers to. Why? Kasi yung wording ng A826: ang important word diyan? Kung hindi naunderline-an, hindi pala ako brilliant? Ang uunderline jan, yung word na “a” !!! Iba yan kung “the” which means dapat same form as the will it refers to. Ergo, holographic will may have holographic codicil and notarial will may have holographic codicil. Pero may problema tayo jan. Notarial will.
MARGINAL SIGNATURE 4X 4. disposition disposition. ^ALTERATION signature and date 5. disposition disposition PS modification modification signature and date

VI. CODICILS
As we have discussed in our past sessions, the testator may modify or alter his holographic will by simply writing or inserting in his own handwriting the alteration or simply cancelling the portion of his will he wanted to delete or delete and insert a propvision. But for this alteration to be effective, it only requires the authentication by the testator with his full signature. How about in the case of a notarial will, how may a testator modify his notarial will? He can modify through the execution of a codicil. Under A825, it is a “supplement” or “addition to a will” made after execution of will, annexed to be taken as part thereof. Function of explaining a disposition contained in the original which may be ambiguous, in order to remove the ambiguity there is the codicil to explain it away. Codicil may also revoke some dispositions of the prior will. Ayaw na bigyan mana si Pedro so tinanggal na, “hereby revoked.” Disposition may be modified. I leave to Pedro ½ of my entire estate, nagbago ang isip, mashado malaki ½ so 1/3 na lang. disposition in favor of the nephew reduced to only 1/3. For this codicil to be valid, it must be executed in accordance with all the formalites and requirements of a valid will. Ano nga yung mga reuirements na yun? 1. At least 18 2. Testamentary capacity 3. Animus testandi 4. Compliance with the formalities prescribed by law 5. Executed freely and voluntarily Pag nag-concur yang lima na yan, will was duly executed. Difference between a will and a codicil

Will the modification take effect? 2nd one (PS) suppose PS was written on separate sheet of paper? Holographic will kasi separate document. Pero kapag ito tinanggal sa page na ito. Cut out natin yan, wallang meaning. Kasi ininesert sha in such a way na may kinalaman sa number 5. There will be no problem kung separate sheet PERO “PS In relation to disposition number 5. Yung changes dito maiintindihan mo lang kasi nakasunod sha sa number 5. Will this qualify as holographic codicil? As it is, magkaqualify yung PS. Pero pano yung may caret, ininsert lang sa notarial will, may prima at date. Take note that law does not require codicil to be a separate instrument. On the page where the prior will is written. Dun na rin niya isinulat. Wala pa kaso yan. Pero nakaencounter na ako niyan. Alam mo naman mga Pinoy mahilig sa ganayn. Notarial will na, kinocorrect pa. DLC opinion: Yung PS maliwanag na holographic codicil pero yung insertion sa taas, hindi pa ako kombinsido na holographic codicil. Pero baka pwede rin kasi will di naman yung kinorrect niya. Why not take together? One becomes holographic codicil of the notarial will. Maliwanag yan Malabo? Maliwanag yan. When there’s conflict between original will and subsequent codicil, which one prevails? Codicil prevails because it is a much later expression of the tsetator’s will. Sha yung amendatory law kung batas pinaguusapan natin. It’s the latest amendment prevail over dispositions of a prior will.

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VII. REVOCATION
REVOCATION Revocation are of two types. Act of the mind of testator terminating the capacity of the will, manifested by some outward or visible act or sing symbolic thereof. Testator will render the entire will ineffective OR will render a disposition/s contained in the will inoperative or ineffective. When may testator revoke? Art 828: Any time before his death On what grounds may testator revoke his will? No ground required by law to justify revocation fo the law. As a GENERAL RULE thereof, the testator may revoke his will at his pleasure. No matter what his reason is, he may revoke his will. Maliwanag Malabo? Maliwanag yan. May a testator bind himself for a valuable consideration not to revoke his will? Halimbawa gumawa ng will si kiko pangilinan. Pamamanahan ko si KC. Sabi ni Sharon, sigurado ka bang pamamanahan mo si KC?! Magcocontribute ako ng 1M sa campaign fund mo upon the condition na hindi mo irerevoke yan. Sige!!! Let’s put that into writing. Later nag-away sila ni Sharon dahil hindi bumoto si Tito Sotto sa kanya. Kiko may still revoke his will. A828 prohibits any waiver on the right to revoke the will. Also prohibits any restriction on any right of testator to revoke his will. When is revocation valid? May sinusunod din tayong requirements: 1. Testamentary capacity a. Age b. Soundness of mind c. Not expressly disqualified

1.

Must be done freely and voluntarily

TYPES/MANNER OF REVOCATION

By operation of law – E.g. the guilty spouse in case of annulment – Testator has nothing to do with it Act of the testator – Formalities of revoking will – Formalities of act of destruction What law governs the formalities of a valid revocation of will or disposition thereof? Under the law, the applicable law depends on whether testator is domiciled in the Phil or is effected in/out of the country. If done in the Phil by a resident, resident has to observe Phil law. If the resident is an alien. Can he revoke the will in accordance with law of his nationality? 829 does not tell us that he can, rather it has to be revoked in accordance with Phil law, applying general law, lex loci celebrationis. How about done in the Phil by a non-resident? Same rule, lex loci celelbrationis. Non-resident has to apply Phil law if revoke will in the Phil What if done outside Phil by a non-resident? Law of the place where will executed or the testator’s domicile. How about law of place where will is to be revoked? Silent 829, yes he may observe law of place where revocation takes place. Lex loci celebrationis in A17. Will revoked abroad by a resident of the Phil? No special rule, hence apply A17. Law of the place where revocation will take place. But may the Filipino testator revoke his will outside the Phil in accordance with Phil law? Law is silent. But DLC that should be allowed because that is the normal runt of things. Pinoy abroad and resident of Phil will not have knowledge of the law of the place where he is and where he will revoke the will. FORMALITIES when testator will revoke his will by executing SUBSEQUENT AND REVOKING

Sandali lang sir, di naman ako gumagawa ng will ah. Bat pa kailangan niyan? In revoking a will, He is actually disposing estate indirectly. Indirect disposition of his estate kapag nirevoke ang will. Ron decided not to marry, tumandang binata, nameet niya ngayon ang kaibigan niyang DI. Ang gaganda ng mga DI na babae diba? Walang isang kusing mga kapatid niya. Pwede yun. Ron has no compulsory heirs. Pero nagalit sha kay DI so nirevoke ang will. Kanino mapupunta ang mga estate, e di sa mga kapatid niya sa legal heirs. Indirect disposition in favor of his legal heirs.

WILL
If you will look at 830, the law speaks of some will, codicil or other writing executed as provided in case of wills. “Other writing executed as provided in case of wills” what’s this animal? DLC’s opinion: refers to a donation mortis causa. To be valid must be executed as in the case of a will. If a donation mortis causa executed without complying with formalities of the will, it’s invalid. Ang macocover ng “other writing” donation MC. When a subsequent will is executed by testator to revoke a prior will, revocation of the entire will in which case “total” , if only some dispositions “partial”

2. Animus revocandi 3. Compliance with the formalities prescribed by
law for a valid or effective revocation  It depends on how revocation will be done. Pano ba nirerevoke ang isang will? SO TYPES/MANNER OF REVOCATION

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PARTIAL (disposition only): Such revocation may also be total (delete the entire disposition) or partial (reduced to smaller amount) May revocation be subject to a condition? Pwede pala conditonal yan. I’m sure you have learned in ObliCon what a condition is. A condition is a future event the happening of which is uncertain. Suppose the event is a “past event,” may it be a condition. In what instance does it become a condition? If the happening is yet unknown. “Impossible condition” pamamanahan ko si Ron kapag siya ay naging gwapo, pag nanganak si Ron, pagputi ng uwak. Eh pano yung albino. Condition may either be suspensive or resolutory. May the revocation of a will subject to a suspenseive condition? Yes, the revocation is made subject to a happening of a condition. Resolutory condition? No, the moment a will is revoked, revocation takes effect instantly. For that condition to be set aside, the testator must republish the will. The happening of a resolutory condition, is not a form of republication. Revoked ka ngayon ha, pero this revocation will terminate pag natapos yung condition. If the testator will revoke his prior will by executing a subsequent will, revocation may be express (when there is a revocatory clause; e.g. I revoke the prior will I executed in 1988) OR implied/by implication (when the subsequent will contains no revocatory clause but the dispositions are inconsistent with dispositions of the prior will to that extent the prior will is revoked.) REQUISITES for the revoking will to be valid. The same as in the case of any ordinary will. 1. Testamentary capacity 2. Compliance with formalities a. notarial b. holographic 3. Animus testandi 4. Freely and voluntarily executed Revocation will only take effect when the revoking will is allowed probate. If denied probate, the prior will remains unaffected. Para marevoke niya yung prior will subsequent will must be admitted to probate. Pag nadeny ng probate, walang mangyayair, prior will remains unaffected.

Illustrate: Si Ron, decided to remain a bachelor forever. Nagkagalit sila ni Eva. Heartbroken and in despair kaya naging woman-hater. Di na mag-aasawa. He lived in the company of his nephews. Isa dun sa nephew ay paborito niya, hindi namna niya minomolest. He made a will giving ½ of his estate to his favorite nephew, let’s call him “Berto” Isang araw nagalit sha kay Berto kasi he learned that Berto was courting the daughter of Eva. E diba galit sha kay Eva? Tinawag si Berto “I want to make this very very clear. Kapag napangasawa mo ang anak ni Eva, tatanggalan kita ng mana.” Kaso pag puso na pinagususapna, over the objection of Ron, nagtuloy-tuloy ng ligaw si Berto sa daughter ni Eva na itago natin sa pangalang Eva II. Eh yung kanyang maid si Annie, nagsumbong, sabi kay Ron, “Kuya, mag-on napo sina Berto at Eva.” Sigurado ka. Nagkikissing kissing po doon. Sabi ngayon ni Ron, in one family gathering hosted by him. Birthday niya. Inannounce niya publicly sa mga kamag-anak. Mabait sanang bata pero suwail (defiant in English). Sa kanya ko sana ipapamana yung half, pero ngayon pa lang inaannounce ko sa inyo, tinatanggalan ko na sha ng mana! Inutusan niya si Annie, kunin mo yung will sa kwarto ko. Sa sama ng loob, inatake sa puso, nalalag sa floor at namatay. Di na nakuha ni Ani yung will. Will Berto inherit the one half given him in will? Depends on the validity of the will. Of course it is still valid because it was not revoked. Mere expression of an intention is not enough. Testator must do something! Revoking will or sirain niya yung will physically. Baguhin natin yung script. Hindi inatake sa puso si Ron. Inutusan niya si Ani, kunin ang aking testamento, pronto! Eto po. Ito ba? Ito nga! Itinapon niya sa bonfire. Matapos itapon, umalis kasi ihing ihi na sha. Ito naming si Ani, crush pala si Berto, snatched the enveloped from the fire. Ang nasunog lang eh yung envelope. Yung will eh unscathed. Wala man lamang sign na sinunog. Hindi alam ni Ron yun. Namatay si Ron. The will he thought he already revoked is submitted for probate. Still a valid will because the act of destruction must appear on the face of the will. Only evidence of destruction is the will itself. Must destruction be total for the will to be effective? No. Hindi naman kailangan. If the testator burned the will, not required that the entire will be burned into ashes. Enough that there is sign of act of destruction performed by the testator on the will. For the same reason, it was accidentally destroyed. Naglilinis si Ron ng kwarto, nakakita ng old envelope without realizing that it was his will. Was the will effectively revoked? No, no animus revocandi. Animus revocandi must be coupled by act of destruction appearing on the face of the will. Suppose this happens: Ani get my will. Sisirain natin! Pinunit na ni Ani before pa umabot kay Ron. Destruction may be done by 3rd party but to be valid: 1. Destruction must be done at the express direction of the testator 2. Done in the presence of the testator.

“PHYSICAL ACT OF DESTRUCTION”
Testator is allowed to revoke a will by destroying it physically, i.e. “burning, tearing, cancelling, or obliterating.” Are these acts exclusively? Pwede rin yung crumpling and throwing it in the waste basket. For a physical act of destruction to take effect, ganon din ang requirements. Yung 5 points. + physical act of destruction. NB The physical act of destruction must appear on the face of the will. Pano mo sasabihing sinunog kung buong buo pa yung will. There must be an act of destruction appearing on the face of the will.

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In case of Ani, not expressly directed/instructed to destroy the will. She did it on her own volition. She destroyed the will not in the presence of the testator. Eh sir napunit na, pano pa irerevoke yun ngayon? Eh di sunugin natin! Valid pa rin yun kahit punit na. The burning of the torn pieces will effectively produce revocation. Ang problem… suppose sa halip pinunit ni Ani, sinunog niya. Ani is always ahead of her amo. Hindi pa hinihinigi ni Pinoy, nakaprepare na. Pano pa irerevoke ni Ron? Eh di gagawa na lang sha ng subsequent will? Katawa-tawa absurd diba? Senator Tolentino, commented on that possibility. Absurd to require testator to revoke a will that was already burned into ashes. Common sense dictates that ratification of revocation by testator should validate. Opinion lang ni Arthur yun. Law abhors the absurd. Act of destruction must be completed while animus revocandi is existing. Ron pahinging scrap paper na SCRA. Umiiyak si Ron, pumasok si Berto break na sila. Natigil yung pagpunit halfway. So tinape niya ulit. Will was not revoked because as far as Ron is concerned, the act of destruction was not yet complete. Nagbago yung isip niya. Kaya nga pinaste niya. What if natuloy yung punit tas tinapon sa waste can. Kinabukasan binreak ko na po, “Tito bireak ko na. I love you tito!” Kinuha niya yung will at iniscotch tape niya. Makakapagmana pa ba si Berto? Was the will revoked? Yes, kasi nung pinunit at itinapon na. as far as law is concerned, act of destruction already complete! The moment act of revocation completed, revocation takes effect immediately and totally. Pinagdikit naman niya! Hindi ba yung intention to make the will valid again? It may be so, but you can only make a revoked will valid again through act of republication and pasting them together is not republication under the law! Maliwanag Malabo? Maliwanag yan. ACTS OF DESTRUCTION Burning – sinunog Tearing – pinunit Cancelling – how different is this from obliteration? An act which shows the state of the mind of the testator to remove/delete a word from but without rendering it illegible. To render the entire document a nullity. E.g. Notarial will.

Obliteration is to render a written word illegible or unreadable. Kung amkikita niyo yung original manuscript ni Rizal ng Noli me Tangere, hindi mo makita. Pero ngayon kita na sa spectography. Xray or other radiation, makikita yung original word na gusto sana niyang gamitin. Kung one line lang yung strikethrough, cancellation yan. If one word lang, only the disposition where the word was used will be revoked, not the entire will. In which case “revocation of a dispostion” not revocation of a will. For obliteration/cancellation to be effective, does it require authentication by signature to be effective? Cancellation may be proven in the probate as having been done by the testator. Proven by competent evidence, not required that it should be authenticated by the testator. Prove in court that it was Ani on her own volition without Ron’s instructions. How about in the case of a holographic will?

On testator’s own handwriting WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL T

No need for an authentication. This is not an alteration of the will. It’s a cancellation and not a revocation of the entire will. We apply A830, entire will was revocation. Not just a mere alteration. Ang problem is Kalaw v Relova. Ang sabi dun:
I institute Jose Juan is my sole and universal heir. T

WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL T WWW

Ano’ng sabi dito? Isa lang ang provision ng will. It’s a revocation (which does not require authentication by signature) but it’s an alteration of the body of the will. It has to be authenticated by the full signature of the testator. Otherwise, application of the law will not only be absurd but also funny. Anything that will change is always a revocation since increase or reduce of disposition is partial revocation. Ang sabi ng Kalaw, if it will amount to revocation, hindi kailangan ng authentication. Kapag nagbabago ang disposition, pwede ialter hindi kailangan authentication. Pero kung iaalter yung provision na walang effect, kailangan ng authentication. Bakit pa eh wala nga effect diba?? Application of A834 will become absurd. In effect, any modification that will not alter needs to be

There IS A LINE drawn diagonally. Mas maganda kung merong written word na cancelled or void. Not obliteration kasi readable pa yung words but the line implies something.

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authenticated even no effect on the substance of the provision. Pero pag magbabago, pwede walang authentication. I join Justice Vitug in his comment. It’s a wrong decision! Dapat nga mag-amount sa partial revocation para iauthenticate niya! Yung mga mahirap na tanong nasa exam yan.

 How about if will was revoked through act of
destruction? Can we prove that destruction was moved by a false ground? Yes, kasi wala naming nakalagay sa batas, kaya lang delikado, mas mahirap patunayan. In the absence of any law to the contrary, if the act of revocation was through destruction of the will, then it may be proved by all kinds of evidence to show that revocation was based on a cause and that the cause was false.

2 August 2010
The last topic was applicability of provisions of revocation to holographic wills. i.e. “If it’s an alteration of a holographic will, even if such alteration will amount to partial revocation (it always does), it should comply with 814 otherwise, we will be having absurd results.” Every change in the holographic will will amount to partial revocation of the altered provision. If we follow Kalaw v Relova, alteration will apply only if the change introduced in the body of the holographic will will not amount to partial revocation. Walang ganun, that’s absurd. Walang nagbago sa will yet it has to be authenticated by the full signature. We go now to: DESTRUCTION BY A THIRD PARTY Not effective but how will the testator revoke it? Invalid already. Impractical to Follow senator Tolentino’s suggestion to allow confirmation by the testator to allow such destruction. REVOCATION BASED ON A FALSE CAUSE While it is not required to have a cause to revoke will, common sense dictates he will not revoke unless with a reason, no matter how capricious it is, law will recognize. How about if the cause is false or illegal? What is the effect, under A833, revocation is null and void. When is a cause false? How do we establish that a cause is false? Acting on a false cause. Ano ginawa mo kay Eva? Bakit nawawala si Eva? Nawala yung favorite nephew ni Ron, sabi ni Ani nakipagtanan sa anak ni Eva. Eh hindi naman pala nagtanan, sanga-sanga lang talaga dila ni Ani. Ron revoked his will. That’s false cause. How do we establish the falsity of the cause? It depends on the manner the will is revoked.  If the will is revoked by a subsequent will or codicil, the false cause must appear in the revoking will. It is now for the oppositors of probate of the will to prove the falsity of the cause at hearing. If no cause is stated in the revoking will, then we cannot prove by evidence that the revocation was the cause of a cause and that the cause is false. E.g. Ron executed a will, ganito lang nakalagay, after machismisan ni Ani, “I revoke the disposition in favor of my nephew Jose Madrigal in the will I executed in 2001.” Hindi niya sinabi sa revoking will kung ano yung reason. Pwede ba yung kanyang nephew sabihin, I oppose the probate of the revoking will on the ground of false cause. He revoked it acitng on a mistaken belief that I eloped with his former gf. Can the court act favorably for the nephew? No, we cannot prove this cause. If he did not state in his revoking will, there’s no cause to be proved.

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DOCTRINE OF DEPENDENT RELATIVE REVOCATION Illustration: Series of factual circumstances.

1. By re-execution (Art 835)
2. By reference in another valid will or codicil (Art 836)

1. Testator made a will. Later, he revoked the will by

executing 2nd will expressly revoking the 1st. It was declared in the 2nd that should 2nd be denied probate, revocation shall nonetheless be effective. – The will containing revocation being void, revocation contained in the will must also be void. Hindi pwedeng valid yung lalagyan pero valid yung naklaagay. – Is this an application of doctrine of relative revocation? No, kasi hindi valid yung revocation.

RE-EXECUTION
Make a new will from scratch. Testator has to execute his will by complying with all the formalities for making a valid will. E.g. Testator executed notarial will. Later he changed his mind and revoked the will by cancellation. So nilagyan ng line yung face ng will + cancelled. Later on nagbago isip niya so naglagay sha ulit ng line “Will restored. Cancellation void.” Was the will that was previously revoked restored to its validity? No, dalawa lang manners of republication, reexecution when he cancelled/set aside the cancellation, it’s neither reexecution nor reference in another will/codicil. He has to start from scratch i.e. sign a will at the end thereof, presence of instrumental witnesses, sign again each and every page, in the presence and attestation clause. Appear before a notary public to acknowledge execution of a will. The notarial will was executed by a testator but later on, it turned out that one of the witnesses was disqualified (previously convicted of crime involving falsification, false testimony and perjury). What was the effect of disqualification? Net effect is the invalidity of the will. There were only two witnesses to such a will, it will certainly be denied probate when presented. How may the testator make this will valid? Ang ginawa nung testator, kumuha ng piece of paper and executed a holographic will, “I Ron Garcia of sound and disposing mind do hereby order that the will I executed in 2010 be republished through this holographic will.” Iyan ay parang reference to a void will in a subsequent will or codicil. Was the first will republished through this reference in the subsequent holographic will? No, it was not republished. Because A835 is very clear. A will which is void as to form cannot be republished except by reexecution, not reference by another will or codicil. Since void as to form, only one way to publish it e.g. reexecution. Kung gusto niya ng holographic, kopyahin niya yun by hand. Kung gusto ng notarial will, eh di iexecute ulit. When is a will void BUT NOT as to form? IMPLICATION: Void for a reason other than as to form, reference by codicil is enough. Go back to the elements of due execution. 1. Testamentary capacity 2. Animus testandi 3. Compliance with formalities (Art 805 and 806) 4. Freely and voluntarily

Pano ba nagkakaron ng application of DDR? 1. Testator executed a will. Later on, he executed a 2nd will expressly revoking 1st. Believing 2nd will is valid, testator destroyed the first. But the 2nd will was invalid and denied probate for failure to comply with certain formal requirements. Was the first will revoked? – In reality if you analyze the facts, DDR is a species of revocation based on a false cause. The destruction of the 1st will was based on the false cause that the 2nd will was valid. – Act of destruction is therefore void. 1st has remained valid. – Yung mga writers jan ang daming sinasabi. It’s an example of a revocation based on a false cause. Favorite ko yan. You might be surprised how the problems come out.

VIII. REPUBLICATION AND REVIVAL
What is meant by republication? The process of giving validity to a will which is useless or has become useless because it was void OR because it had been revoked. A will which is void, if you want to make it valid, republication is the process. Ano yung revival? The process of restoring the operation of a previously revoked will by operation of law. Validity of the will revoked is restored not by act of testator but by the act of law. REPUBLICATION
Necessarily act of testator Both void and revoked will

REVIVAL
Not act of testator but operation of law Only revoked will

How is republication accomplished? Under the law, it is accomplished in 2 ways:

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“Void as to form” - nullity is because of number 3. For instance, if it’s due to testamentary capacity, pwedeng irepublish through reference in a codicil. If the will is to be republished by reference in another will or codicil, must the reference comply with the rerquirements of A827 (incorporation of a document by reference)? Ano yung requirements dun? document incorporated not only referred and identified, but signed in each and every page by testator and witnesses. Sa kasong ito, holographic will si Ron, order the republication of the first will executed, kailangan ba magcomply sa A827? So far, only one author (believed, dahil patay na sha) Justice Desiderio Jurado is wrong. A827 refers to document and other papers, they are short of a will. Kapagka will, A836 ang mag-aapply. Binura niya yung pirma at the end of the will. He wanted to make will valid, so pinirma niya ulit. Was the will restored to validity? Of course it was not restored. Reaffixing is not reexecution. Eh sir, kung hindi reexecution yun, can he just make holographic will by mere reference to the subsequent will? That cannot be republished by mere reference, after blotting out signature, it was will void as to form and not republishable by direct execution. Problem discussed by Paras in his book. Inaassign si Paras pero laging binabanatan sa discussion, para masaya. Pag hindi tayo nakakontra sa UP, hindi tayo masaya. The moment naging pro-institution tayo, Atenista na tayo. Laging tayong against institution. In UP once, issued an order requiring candidates to pay. Property qualification yun protesta kami tas withdraw sila. The testator made a will with only two witnesses at the time law required three. Law was amended reducing number to two. Much later the testator executed a valid codicil making reference to the prior will, was the first will republished? Accdg. to Paras, a will republished by a codicil is deemed to have been made/executed as of the same date as the codicil was executed. San niya nakuha yun? Ergo, law that will govern the form of the prior will should not be the law in force at the time prior will was executed but by the law in force at the time it was referred to at the time of the codicil. San niya nakuha yun? If he’s correct, the reference is sufficient to republish the prior will. Any question?

Assuming they were all executed, nung inexecute yung 2nd, revoked na si 1st will. For the 1st will to be restored, it has to be republished by testator or revived by law. Yung third will, hindi ba republication of 1st will yan when he revoked the 2nd? No it’s not. Reexecution ba yan? By reference? Lalong hindi. Sabi ng batas, first will not revived by the execution of the third will. Mangyayari lang ito kapag duly executed. If the 2nd will was not valid, it did not produce any effect at all, same reason that third will produce any effect. Ang presumption ditto ay duly executed lahat. Sabi ng batas, hindi revival ito under A837. If not, when is there revival? Only instance of revival: When the 2nd will only impliedly revoked the 1st will, and the 3rd will expressly revoked the 2nd will. Suppose the 2nd will impliedly revoked the 1st will, but the 2nd will was revoked by destruction? It’s possible for the two wills to be valid as to provisions that are consistent with each other. Suppose the 2nd will is impliedly revoked by a 3rd one, what happens to the 1st will? It’s not proper to talk about revival kasi 1st will did not go out of existence. So there are three wills which may be effective at the same time insofar as provisions not inconsistent. If the 3rd will expressly revoked the 2nd which impliedly revoked the 1st? The execution of the second will did not render the provisions of the 1st ineffective, but only those inconsistent with the 2nd. Ang marerevive lang eh yung mga narevoke. Revocation of the 2nd will removed the inconsistency which revived the 1st.  revival of the impliedly revoked provisions Also true if the removal of the inconsistent provisions were by execution of 3rd revoking will. Revocation of 2nd will therefore will come about even if the revocation of the 2nd was done through an act of destruction. Pag sinira mo yun, masisira yun totally. Total revocation, then revive the provisions which were inconsistent with the 2nd will. Bakit kung express yung revocation, bakit hindi revived yung first? Logically dapat marevive kaso pinagbawal ng A837. What is the reason behind 837? Simple lang yan. Eh kasi daw, between express and implied eh mahirapan tayong iinfer na revocation of the express revived the entire thing. Since revocation may either be partial (disposition only) OR total (entire will), will revival or republication apply to a mere testamentary disposition? A835 applies to will only, not dispositions. How does he restore the crossed out disposition? Apply by analogy. Ang problem jan, kapag kinross out niya, paano sasabihin na void as to form, void for a reason other than a form.

REVIVAL
Executed a first will. much later, he changed his mind and executed a second will expressly revoking the first. Eh pababago-bago talaga ng isip, he executed a third will expressly revoking the second. Assuming that all the three wills are valid as to form/duly executed, valid talaga when it comes to due execution. Yung bang 1st will ay effective pa? Aha you’ve read your magic notes! You learned your lesson. No, there is no revival.

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Pwede ba by mere reference? In Sir’s opinion: If that cancelled provision amount to not valid as to form, pwede pa rin reexecuting the revoked disposition.

will is attached. Appointment of the administrator and the probate of the will. Dalawa in two stages. 1. Intestate Intrinsic validity of the will is not included in the coverage of probate. Dati kasi kapag probate, it only refers to the proving of a will. Pag sinabing probate, necessarily involves proving a will. Pero ngayon hindi na, probate may also refer to settlement proceeding. That’s why if you look at RoC the word probate includes the entire settlement of estate proceeding. They call the proceeding probate. But technically, settlement proceeding is different from probate. In reality probate is a mere stage/phase of the settlement proceeding. May the heirs choose not to probate the will but distributed the estate nonetheless in accordance with the provision of the will. Wag na natin dalhin sa court yan, gagastos pa tayo. Hire a lawyer acceptance fee upfront. Madugo ang acceptance fee ni Concepcion. Hindi naman pwede kasi na lahat ng lawyers pareho, may mas magagaling. Hindi pwedeng sumingil ng maliit yung mga magagaling na lawyers. Meron pang publication yan (cost of publishing setting the initial hearing of the proceeding). Everytime magkakaroon ng hearing, natural may appearance fee pa everytime yan. Kung bago, maliit lang appearance fee. Katulad ni Titong Mendoza, mamumulubi ka dun. Mabigat bayad dun. At hindi lang yun. If you submit the will to court for probate, it becomes a public matter, the BIR can always look at the properties listed in the will disposed to the heirs. Baka naman hindi niyo na macontrol yung taxes niyan. It becomes an open book. There’s temptation not to submit will to probate. They agreed among themselves to implement the will to the letter. Okay ba yun? No, whenever there’s a will left behind by testator, probate is mandatory. A838. I remember one of my professors, sa klase tinanong niya kami. Bakit kailangan mandatory, pwede naman isupress ang will. Under the rules, the person in possession of will has to submit to court within certain period of time under pain of contempt. Sabi teacher ko, sino naman magrereklamo dun? Mag-execute na lang sila extrajudicial settlement of the estate. Subornation of perjury. Hindi tatanggapin ng register of deeds kung may properties kung walang maliwanag nakalagay dun na decedent died without a will. Pag nilagay mo na left no will, that’s why you’re dividing among yourselves, perjury yun kasi under oath. Required by law to be submitted to register of deeds. Nabigla si teacher. Unethical angle yung tinuturo niya eh. Nagtuturo shang illegal. Mandatory submission to court under pain of contempt. Settling it extrajudiciary, all the signatories would commit perjury. Sir perjury lang naman yun, kaya natin lusutan yan. Kesa magbayad ako kay Atty. Concepcion ng malaki, sige pakulong na lang. When somebody dies without a will, how will the properties of decedent transferred to heirs?

4 August 2010

IX. ALLOWANCE OF WILLS
What do we mean by allowance of wills? The court proceeding where extrinsic validity of the will is decreed. Why necessary? In A838, no will shall pass real/property unless proved and allowed in accordance with RoC. So there has to be a court order declaring that the will is duly executed. That declaration is called allowance of wills. Reason why there has to be a court declaration that the will was duly executed, to ensure that the will was indeed that of the testator, that it’s not a forgery so that the properties fo the decedent will be distributed in accordance with his true wishes. How do we call the proceeding for proving and allowing wills? Probate. In practice, you don’t file action for probate unless it’s a pre or ante mortem probate. What is to be proven in the probate proceeding? The due execution of the will, otherwise called “extrinsic validity of the will.” When is it duly executed, we have discussed in our past sessions, the four requirements must be present. Intrinsic validity of the will is not the subject matter of probate. This involves the validity of the dispositions contained in the will. Not included in the probate proceeding. Probate of a will maybe before the death or after the death of the testator.  If before the death – call it ante mortem probate. Filed by the testator himself who must still be alive during that proceeding. He will be the one to file it. The caption of the case he will file is “petition for probate of a will”  Probate may be done after the death – it’s the usual case. Very few are the cases where a will is probated before death of the testator. Most of the probate cases are done post-mortem. When it is post-mortem, what petition is filed in court, “petition for settlement of estate”

1. Testamentary – petition for the settlement of

the testate estate; Divided into several parts: a. Probate proceeding b. When admitted for probate – declaration of heirs c. Partition

But from the time settlement proceeding is filed up to partition, the estate is under administration. Executor named in the will applies to be named the administrator. Pag-aaaralan niyo lahat yan sa SpecPro. Yung iba ang unang ginagawa, pinag-iisa nila muna. Fuse together two causes/steps, i.e. Petition for ___ where the

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1. Kung cash dun sa korteng baboy (piggy bank
kaya nga korteng baboy). Buddha na maraming bata or kawayan or bao ng niyog. Alkansha. Kung yung pera andun, no need for EJC kasi kukupitin na lang yun. Pieces of jewelry, walang title yan, easily distributed. Nobody will run after them. Bank deposit na hindi and/or Vehicles registered in name of decedent Lupa in TCT

2. 3. 4. 5.

How do you transfer documents in name of heirs? There must be a deed of conveyance. Donation, sale, trust or succession. EJD allowed only when decedent left no will. Ngayon kung meron/wala at nagkasundo-sundo a settlement proceeding filed in court. Court will adjudicate properties of estate to the heirs. Document of the conveyance that you will present to the register of deeds. Authorize them TCT outstanding and issue new one in the named order. Kailangan ng “court order” May the will itself provide that it should not be submitted to court for probate? Para makatipid ang mga heredero. Heirs should execute instead EJS in accordance with my wishes. Definitely illegal because contrary to A838. If that disposition is illegal, is the entire will illegal? DLC says no, only the provision is void because it’s contrary to law but the will and other provisiosn contained therein shall be valid. Yun nga lang, submit to court for probate. Eh sir bawal diba. E illegal nga! Later on, you’ll learn that testator cannot impose illegal conditions for the validity or probate of a will. Only the due execution of the will is covered or the only issue that the court must resolve in a probate. Only the due execution is the issue that the court will resolve. Issues which have to do to validity of dispositions in the will are not covered by the probate proceeding. HOWEVER the court in Nuguid v Nuguid, created an exception to this rule. Ano ba nangyari dun? Matandang dalaga. Age of retirement 65. So wala pang matandang dalaga dito. Kasi kapag as this late a stage, hindi na kayo makakapag-asawa. I’m talking from my experience! May dalawang magkapatid na babae. One of the sisters became wealthy as businesswoman. Living with their mother na hindi matandang dalaga, biyuda lang. the wealthy sister who becamewealthy with only one provision. My younger sister is my sole and universal heir. Nothing was mentioned about the mother. Siguro sabi ng daughter, eh matandan na nanay ko, ano naman gagawin niya sa mana. Magkakaron lang ng tax pag pinamana pa sa kapatid ko. Walang ni isang kusing na duling. Everything given to younger sister. Long short, ate died and submitted for probate. Opposed by mother. May DI kasi. Ano sabi niya? Will not allowed probate. Because the provision contained in the will should be allowed by preterition. I am a compulsory heir. Totally omitted it is void. Since will is void, it’s a waste of time proving the will. Younger sister said: Mama, you may be correct but cannot raise that issue at probate. It has

nothing to do with due execution but validity of the disposition contained in the will. Intrinsic validity has nothing to do with execution. Therefore, jan ka lang muna, wait for probate to finish. Ano sabi SC? Bunso is correct. Issue has nothing to do wtihdue execution but intrinsic validity ergo not covered by probate. But since preterition of mother is patent on the face of the will, why should we continue waste our time effort and litigant’s money if after allowing this will, provision will be allowed anyway. Even at probate, SC decided to take cognizance and ruled on the intrinsic validity of the will. Basis: Intrinsic nullity of will is patent on its face. Subsequent development however tells us that simply because nothing left to compulsory heir in the will gives rise to preterition. Hindi lang naman will tinitingnan. Kalahati ng ratio sa Nuguid ay mali. For our purposes, in case same issue crops up, SC has exception: Intrinsic nullity of will is patent on the face of the will. The court may choose to declare the will intrinsically invalid. Same issue in Nepomuceno v CA: Ron and Eva wedding. After 1 year, hiwalay, hindi magkasundo and so Ron requiested eva to sign document weherein they need to separate each other and allow to live with own partner in life. The document pag dinocument, ang kaso niyo ay disbarment in re cunanan. Although illegal, admissible as evidence for defense as consent to defeat prosecution for concubinage and adultery. Because of that document niligawan ni Ron si Ani, pero di pwede emagpakasal prior subsisting marriage. Common law adulterous relationship. San sila titira? So using his salaries and wages Ron bought a house and lot in a subdivision project in a nearby municipality. Mas maganda house ni querida kesa sa asawang eva. Ganun naman talaga usually ang kaso. Maybahay v Maycondo. Title in name of land registered in name of Ron married to Eva. Pag namatay ako kawawa si Ani, aapihin ni Eva. In order to assure Ani of a house to live in when Ron dies, he wrote a will provision sa will: give house and lot as inheritance of Ani para may matirhan sha. Ron died Ani submitted to court for probate. The legal wife objects. Sabi Eva, “Your honor invalid ang will kasi disposition in favor of the mistress.” Under law, any disposition in consideration of adulterous relationship is void, since there’s only one provision, the will is useless. Let’s not go on anymore with probate proceeding. Ani’s lawyer: honor eva might be correct, but complaint has nothing to do with due execution, rather it involves intrinsic validity of disposition contained in the will that thas to wait until admitted to probate. SC using Nuguid exception since only disposition contained in wll is patently illegal, then it will be useless to continue with probate proceeding and admit the will, it will become useless anyway. Maninang v CA Objection involving intrinsic validity, not patent in the face of will therefore the argument to prevent probate was denied and dismissed by the court. Allowed by probate proceeding to continue.

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On what ground may a will be disallowed probate? Enumerated in A839, it is exclusive, no other ground to disallow probate of a will. Yun lang! Maliwanag yan! After court has admitted will to probate, what is the effect if the court admits a will to probate? Due execution of will is duly established. i.e. natural it is a declaration that tetstator had testamentary capacity, animus testandi, all the formalities for the making of a valid will have been complied/substantially complied with, executed freely and voluntarily. ERGO, after the order has become final and executory, the testamentary capacity can no longer be eatacked or reopened. Voluntariness of execution may no longer be inquired into and non-compliance of requirements of law can no longer be questioned. Due execution of will is conclusively established. BUT one of the heirs is in US when probate proceeding was filed and heard by the court, when he came back from US, the order admitting will to probate has also become final and executory. In possession of documents that will prove beyond reasonable doubt that the testator was at the time of execution was insane. Can he argue that he was outside jurisdiction? No, it binds whole world, including those outside jurisdiction of court at the time proceeding was undertaken. Even if the signature was discovered to be a forgery. Illustrate through example: Ron ay nag-iisang anak na lalaki ng parents niya. Merong 2 older sisters, Ani and Eva. Bunsong lalaki, paborito ng parents at paborito dagukan nung dalawa. When father was already a widower died, sabi Ron, ay may will si Daddy. Eto yung will, notarial will. The two trusting Ron believed that the will was that of the father. No reason for them to suspect that it was a forgery, the entire free portion given to Ron. That’s ½ of estate. Magkano napunta ½ + 1/3 of ½. Favorite naman si Ron, so okay lang yun. Mukha naming will ni Dad. Admitted to probate by court and partition was carried out. Later Ron Garcia naging Born Against. Praise the Lord. Charismatic movement so one day uso sharing of experiences. Nagshare si Ron, 10 years after partition of property. nagka-edad tas religious so isang araw sa congregation sa Araneta. Umiyak. Yung will ng tatay ko, hindi naman niya will yun, ako gumawa nun, niloko ko sila. Iyak sha ng iyak. Huhuhu. Maraming chismoso sa araneta, nagsumbong kay Eva at Ani. Yung will na submitted to probate was a forgery. Nagalit tong dalawa. 1. On the basis of such confession, may the proceeding be opened in order to invalidate the will? NO, kasi tapos na. after order issue admitting the will to probate. It’s conclusively established. Cannot reopen proceeding. 2. Idemanda natin ng criminal case, punyeta sha magbayad sha! Pwede ba yun? Hindi rin. In a forgery, there has to be forged document. The body of the crime. Nasan yung document? Eh sabi ng court authentic yun. Where is the forged document now? Walang body of the crime. Criminal prosecution has to be dismissed. Maliwanag yan!

Is there prescriptive period for probate of the will? No will was found among his personal effects. 20 years later, it was hidden intentionally by one of the heirs in order to prevent the distribution of estate in accordance with its tenor, may that will be probated? Yes, there is no express provision in the rules nor in the Code. But in Guevarra v Guevarra, SC held that probate of a will does not prescribe.

X. DISALLOWANCE OF WILLS
Whenever submitted to court for probate, it’s not ministerial for court to admit it. Court may disallow if a ground exists under the law. Those grounds are exclusive. 1. 2. Exception is substantial compliance Insane is equivalent to unsound mind and un/soundness of mind for making of will has a definition in the law on succession “Force” cc has not defined what force is. Nowhere in the CC is the term force defined. What it defines is violence in A1335. According to the writers of civil law, force and violence must be considered the same. There must be violence as defined in 1335. “Intimidation” defined in law of oblicon not in succession. Writers believe that there are the same definition. “Undue and improper pressure and influence” not in succession by law of oblicon. Applicable to improper pressure and influence as used in oblicon.

3.

Reyes v Barreto-Datu: Hindi magkaanak si Ron and Eva. Sarthou is the sperm donor kasi best friend ni Ron. After isang anak, di na magka-anak ulit. Eh naawa naman kalaro. Si Santos taon taon nangangak, tipid sa Kotex hindi na dinatnan. Malas eh thirteen, ampunin mo na lang 13th child ko para may kalaro daughter mo. Hindi ginawang legal ang adoption. Hindi naman talaga adopted. Ang ginawa ni Eva eh pinalaki lang niya. Eva treated the two as her daughters, even her own niece as her own daughter. Yun namnag dalawa, lumaki ng magkapatid treated each other as sisters. Until mana happens. Very close yung kanyang anak at pamangkin. Really very close. Thinking that the real daughter would like it, sinabihian niya daughter one day, I have a will in case something happens to me, then hati kayo equally sa kahit anong iiwan ko. Contrary to her expectation, nagalit si daughter. Ma bakit bibigay kalahati sa kanya, di ko naman tunay na kapatid yan. Bakit kami pantay eh pinsan ko lang yan. Eh diba parang magkapatid naman kayo? Eh hindi naman kayo magkpatid. Hindi ibang usapan nay an. SO everyday niya ninag ang nanay niya, hindi na binati ang nanay. She gave mommy cold treatment. Executed a second will changing sharing of two in this new will, real daughter as sole universal heir and legacy to niece as paconsuelo de bobo. Hindi sinabi sa niece yung change so when Eva died, daughter submitted everything to court. Niece but that revocation must be done against her will. There was undue and

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improper pressure from you. Ni-nag mo yung nanay natin. Undue and improper pressure and influence attending the execution of the second will? NO, there was no undue and improper pressure. Moderate and reasonable solicitation and entreaties addressed to the tetstator. If the testator yielded intelligently and from a conviction of duty. Daughter was may have been undue but not improper. She has right to claim bigger inheritance. Pressure was neither undue nor improper. Eva yielded coz realized bigger obligation to daughter, not niece. Bigger duty in favor of real daughter. May there be partial disallowance of wills? No. A will is probated all or nothing. There it cannot be allowed partially and disallowed partially. See Tolentino p. 148. Suppose the will was obtained though fraud committed on the testator. Misrepresentation from some heirs induced testator to make will requested by heirs. Later on, the testator discovered the fraud but despite having discovered the misrepresentation or fraud, the testator decided not to change his will, and he died without having revoked the will initially obtained by fraud, is that a valid will? ISSUE: Has the testator ratified the will when he chose not to revoke it after discovery of fraud? – Caguiao with whom I agree, will is void kasi walang voidable will that can be ratified. Either void or valid, what is the effect of that ratification? – According to Jurado, it depends: no reason given, if it’s void as to form, will is void and cannot be ratified. If void due to vitiated consent it will be validated by subsequent ratification by ttestator citing Ozaeta v Quarter. Failure to revoke or otherwise alter as soon as the testator left house of the person who allegedly influence constituted silent ratification of the contents of the will. – DLC says: If the will was executed under duress or under undue improper pressure and influence, will was void. It can only be validated by republication, reexecution or reference in another will or codicil. Ratification is not a mode of republication under the CC. Mas maganda yung rason ko diba? Re Migs’ question may nag-ooppose ba ng will submitted for ante-mortem probate? Sergio Osmeña Jr. opposed antemortem probate of his father and wanted to declare him a non compos mentis or prodigal, filed a guardianship proceeding. This case was handled by my uncle judge. Concepcion v Osmeña: Hermogenes Concepcion uncle ni Sir. National scandal for the family. Yung kay Atty. Dona Chito Madrigal Collantes was also admitted to probate during her lifetime kaya di ko mawari ano nakain nitong si Jamby at nagwawala ng ganyan.

9 August 2010
Rojiboi!!! :D

– Happy birthday

XI. INSTITUTION OF HEIRS
We’ll start with INSTITUTIONS We are done with the formalities for execution of a valid will so we shall now start with the validity of the written provisions of the will. For there to be a will, an heir has to be instituted. DEFINITION – A840: an act by virtue of which… How? By designating him his name and surname under A843 May testator designate heir by merely describing the person e.g. “faithful yaya/cook” “bestfriend” “favorite nephew”? Yes, such description is allowed as a valid institution of heir provided that such a description given in the will leaves no doubt as to the identity of the person instituted. Bear in mind that nobody becomes an heir unless he can show a provision of a will or provision of law designating him as an heir. You have to remember that. Nobody becomes an heir unless there is a provision in a will OR a provision of law making him one. If ou cannot point your finger to provisionof will/law making you an heir, you are NOT and WILL NEVER BE an heir. Suppose there are two persons who have the same name, how will the testator make his designation to identify who among these people with the same name was instituted? In A843 the testator shall indicate some circumstances by which the instituted heir may be known. If the testator fails to indicate those circumstances who will inherit? Hindi sinabi. E.g. I institute my nephew Ramon ½ of my estate. When I died, admitted to probate but turned out there are two nephews by the name of Ramon. Who between the two will inherit when I did not indicate a circumstances which will identify will inherit. May evidence be introduced that one of the two Ramons were intended because this Ramon was a godson of the testator? That Ramon was closer to the testator during his lifetime? Under the old code, that was not allowed but under new code, because of the change/amendment, introduction of such evidence is now allowed. E.g. 2 nephews by the name Ramon, one was living with testator at time execution of will, that is allowable as evidence that the Ramon living with him was the Ramon referred to at the time of making of will. One of those answers in the same name was intended. But suppose there is no evidence as to who was intended, what shall we do? Let us divide the inheritance between the two of them? We cannot divide the inheritance to the two of them because that is violation of the testator’s intention twice. Stole the presidency not only once but twice.

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1. In instituting one Ramon in the inheritance,
testator intended the inheritance to go to only one person. Entire inheritance just to one Ramon. Nung hinati mo sila, maski sino nakakuha ng kalahati, pero hindi kasi yung ang intention niya. Rather give everything to Ramon mentioned in the will. Ayaw niyang bigyan yung ibang Ramon. Yung intended Ramon get only half and the other Ramon he didn’t want to give got a half. Double whammy.

2.

ERGO, nobody gets the inheritance. Problem din ito. Pero this is a penalty to the testator. Gagawa ka ng will, gandahan mo. The institution, pag sinabi nating institution of heir, designation of anyone to receive something from the estate. Basta may binigyan kang tao from the estate mortis causa, institution yun. If you are named, the naming of somebody to participate or receive something is insituttion. Dalawang klase yang institution.

Concrete e.g. testator was a frustrated lawyer, 10x bar and flunked 11x. Bar review in Ceb, 9 years. Ngayon hanggang 6 tries na lang. Kung ako yun, 2x lang. after than barred from taking the bar. Since he’s a frustrated lawyer, in his will, he made the following provisions, to the bar topnotcher in the bar examination that’s held immediately after my death, I give inheritance of P5M. Is the disposition valid? Sir, hindi ba disposition in favor of an unknown person? It’s a wild guess for everybody. When testator will die, who will take the bar, who will pass and be topnotcher. Is the disposition valid? Yes, the disposition is valid. We should differentiate between an unknown person from a person who is not known to the testator. While 845 uses the term “unknown person” the real meaning of that phrase as used in 845 is different. The meaning of unknown person is a non-existent person. Not unknown identity. Somebody who does not exist. The testator was a bachelor. Hindi nag-asawa si Ron, lost his appetite for Miss Eva and Ani and decided to remain bachelor forever pero yumaman sha. So gumawa sha ngayon ng will. Wala shang pamangkin na lalaki. Lahat ng sisters and brothers, ang anak ay babae. So gumawa sha ngayon ng will. Nagbigay sha ng incentive sa kanyang will. To my nephew who will be born within three years after my death is given the inheritance of 10M. Is that a valid disposition? For the nephews who were conceived and born after Ron’s death, they will not inherit. But for those who were conceived BEFORE his death, they shall qualify to inherit. The disposition is valid it is not a disposition in favor of unknown person because the identity of person maybe known BUT if the heir is not living at the time of the death f the testator, he is not qualified to inherit. To qualify he must be living at the time of the testator’s death. Ergo, if born 2 years after the death of Ron, that nephew will not inherit. Surely, that nephew was not alive at the time Ron died. But if a sister was pregnant when Ron died, then the child in her womb shall qualify to inherit if born alive. Kasi the fetus is considered a person for all purposes favorable to it. May the testator designate a class of persons as his heir? Yes, however there is a condition. The class must be definitely indicated. May the corporation be an heir? Yes, A1026. If the testator designated many heirs, how will they share in the inheritance? If the testator indicated their shares in the will, then their shares as indicated will be respected. If the testator however did not indicate the share he designated, they shall inherit in equal shares. That’s the first rule in institution. Sir mahina sa arithmetic yung testator. Kaya nga naglaw. Oi hindi lahat ng naglolaw mahina sa arithmetic. Ako nga math teacher eh. The testator made a will. Sabi niya, I give my entire estate to A,B and C. A shall get ¼, B ¼ and C 1/3. Nagmarunong eh, kala niya magaling sha sa arithmetic. Pagpalagay natin 600 M ang estate. 150, 150 and 200 for a total of the 500. Kulang diba?

In institution proper, the testator gives an heir the entire estate or an aliquot part thereof. Entire estate – all my properties. E.g. I give Pedro my entire estate Aliquot - is a determinate (not determined) portion. We know exactly how much the inheritance given but we don’t know what properties are exactly included in the inheritance. E.g. I give Pedro ½ of my estate Legacy – gift of specific movable property e.g. I give pedro 1M; I leave Ron my Mercedes Benz car; I give to Ani my house and lot in Greenhills Devise – gift of specific immovable property Is there a difference between the two? Institution proper v Legacy & Devise. In preterition: institution of heirs is annulled while legacy and devise are respected insofar as it does not impair the legitime. That is how preterition is obtaining under the circumstances. Whenever the testator will make his will, must he designate an heir for all his properties? Must he dispose of his entire estate by naming or instituting heirs therefor? No, under A841, the testator is not required to dispose of his entire estate to instituted or designated heirs. Those disposed of by will shall be respected insofar as not violative of provisions of code on legitimes and those which were not disposed of in will shall be distributed in accordance with provisions of code dealing with intestacy. In A845, every disposition in favor of an unknown person shall be void unless by some even or circumstance, his identity is asserted.

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Hindi pwede ibigay sa legal heirs kasi nga entire estate kay ABC lang. so yung 100 na tira, hahatiin natin sa tatlo pro rata. Entire Estate to: (Art 852)
A B C ¼ ¼ 1/3 150 150 200 150/500 150/500 200/500 180 180 240 600

Pano kapag sobra naman? Entire Estate to: (Art 853)
A 1/3 40 [40/140]2 0 [40/140]2 0 [60/140]2 0 120

testator to have a reason in designating an heir in his will. Testamentary disposition is essentially a gratuitous act, an act of liberality on the part of the testator. No need for any other reason than liberality or generosity. While it is true that no requirement of reason and the testator may institute somebody without a reason, common sense tells us that testator will not make such designation unless he has a reason. But suppose the reason is false, the reason behind his institution was false, what is the effect of such falsity on the disposition. Under A850, the statement of a false cause is disregarded. That’s the GR: Pag naglagay ng rason na hindi pala totoo, the false reason shall be disregarded. Since the statement of a false cause will not affect the validity of the disposition the heir so designated will receive his inheritance but there is an exception, i.e. when it appears from the will that the testator would not have made such institution had he known the falsity of the cause. Let us illustrate the application of that principle in a concrete example. Itong si Ron gumawa ng will, in his will, he gave a nephew an inheritance of P5M kasi he was informed that the nephew graduated summa cum laude in his undergrad course here in UP. As a reward, summa cum laude pala yang punyetang yan. How did he give it in the will? “To my outstanding nephew, Jose, I give 5M.” Ron died, submitted to probate, nung maghahatian na, yung mga P100K each nephews nagreklamo saying bakit merong 5M ito? Nako hindi po totoong suma cum laude, hindi nga nakagraduate on time, bolero lan yang gagong yan. In order to reduce the inheritance of the scalawag, may the other nephews go to court and prove that his institution to a 5M was based on a false cause and that uncle testator could not have made the institution had he known the real facts? No, they can’t go to court, why not? How can they show that there was a false cause when the will itself does not state a reason. Under the law, the exception must appear on the face of the will. Kung wala nakalagay sa will kung ano ang rason, e di you can’t go to court that there was a reason and the reason was false. Hindi pwede magtestify ang abogado. False cause must appear in the will. Sir nakalagay sa will na yun ang rason, “For my nephews outstanding performance in his undergraduate course in UP…” dahil nakalagay na yung rason sa will, may the other nephews go to court, present the witness and prove the falsity of the cause? No still. Yes it may be shown to be a false cause but the statement of the false cause is DISREGARDED. And so the heir will still inherit. Ano dapat patunayan? Testator would not have made the institution had he known the falsity of the cause. Pwede ba witness ang abogado who drafted the will that no institution if only to reward the nephew? NO, the fact that the testator would not have made the institution had he known must appear in the will. It cannot be proven by any evidence outside the body of the will. Dapat ganito nakalagay: “and to my nephew, for his outstanding performance for graduating suma cum laude, AND ONLY FOR THAT REASON” yun lang yung dahilan kung bakit sha pinamanahan.

B

1/3

40

C

1/2

60

140

If the estate is 120M, reduce the inheritance of heir pro rata. So minus… But when the testator did not indicate the shares of the heirs, we aply the first rule of institution: EQUALITY. They shall inherit in equal shares. (Art 846, 848) Ano yung 2nd rule? SIMULTANEITY. The heirs are deemed instituted simultaneously and not successively or alternately. (Art 849) Last rule: INDIVIDUALITY. The heirs are deemed individuality instituted and NOT collectively. (Art 847) Illustrate second rule: SIMULTANEITY The testator has two brothers: A and B. Testator made a will with the following disposition: I give my entire estate to my brother A, to my brother B and his children. Ilan anak ni brother b? Dalawa. How many heirs are entitled to inherit? Apat yan. Kasi the children of b were instituted simultaneously with their father B, hindi sila alternatively instituted. Suppose the provision is worded like this: “I hereby institute my entire estate, my brother A and the children of my brother B.” How do we divide the estate? Divide the estate equally into three, because the two children were deemed individually instituted, not as a group. If the intention of the testator was to divide into two and limit the two children to the share of their father, the testator must indicate so in the twill in more express and categorical terms. When the testator designates an heir in his will, must the testator have a reason? No, the law does not require the

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TRANSMISSION OF RIGHTS TO INHERIT OF AN HEIR (Art 856) Testamentary succession: kasi may will. Kapag walang will, hindi pwede magkaroon ng testamentary succession. Basic yun. The testator, binata si Ron, made a will and gave an inheritance to Eva, the former girlfriend whom I did not cease to love. I give an inheritance of P10M. kaya lang. naunang namatay si Eva. Survived by her two daughters by 2 different fathers. Ron did not bother to change the will even after Eva’s death. So namatay si Ron and admitted to probate, kanino na ang mana? Makukuha ban g daughters? NO, Eva must be alive at the time of the testator’s death. Since she died ahead, she inherited nothing. Since she inherited nothing, she transmitted nothing to her own heirs. Baguhin natin sitwashon, naunang namatay si Ron kaya lang the will of Ron was not discovered til after a year from the time he died. At the time the will was discovered, eva was already in the hospital fighting for her life. He died a year later. Pelikula yan eh. Nagsunuran sila, she died of a broken heart. Talagang nakakamatay yan. I’m not kidding. Mga lovebirds ganyan eh. There’s scientific evidence that somebody can die of broken heart. Who will get the 10M inheritance given by Ron in his will. Matatanggap ba yun ni Eva. Sir buhay si Eva when Ron died. Yes, eva inherited because she was alive when Ron died. Di nga lang nya natanggap. Iba yung actual receipt of inheritance from inheriting. Nakainherit na sha upon Ron’s death. Since she inherited when she died, what she inherited from Ron although not yet delivered to her became part of her own estate. That was included in the estate inherited by her two daughters. Pwede ngayon habulin nung dalawang anak yung inheritance ng nanay nila sa estate ni Ron. They are simply enforcing the right of the mother in the estate of Ron so that when mother’s right has been received, Eva will be able to inherit. What may a testator dispose in his will? Can he dispose his entire estate by will? It depends if the testator has no compulsory heir, he can dispose his entire estate freely. Without compulsory heir, the entire estate is free for disposition. Kanino pwede ibigay, since no compulsory heir, Ron may leave it to anybody of his choice including complete OR total stranger. Pwede charitable organization, pwede sa tiyahin. Ang babaeng DI hindi Di ang tawag, GRO. Pag lalaki DI, ang tawag dun, attorney. Parang nakakainsulto sa profession natin no? Pati pulis attorney na rin. Pag abogado na kayo at hinuli kayo sa traffic, saibhin Boss pasensha na abogado po ako. Tawag jan professional courtesy. When I was a student in England, lawyers are very unpopular even back. Sabi nga ni Shakespeare, kill all the lawyers. Base relief na sandstone. Kailangan law related. Two farmers quarreling over a cow, one by horns pulling it. The other farmer holding by tail pulling it in the other direction. The two lawyers were busy milking the cow. Nakangiti pa sila. Ganyan tayo ka-unpopular. I don’t know why you are here. I was given second time around, definitely not a lawyer. Cel Gamo found the pic…

But when a testator has compulsory heirs, the law reserves a certain portion of the testator’s estate for the compulsory heirs. Reserved portion is called “legitime”. Later on you will learn who the compulsory heirs are. The testator is allowed to dispose by will only that part in excess of the legitimes, excess is called “free portion” every disposition in excess of free portion is reduced, not necessarily invalidated for having impaired the legitimes of the compulsory heirs. The system of inheritance reservation is that observed in all civil law jurisdictions. There are some which do not observe the system of legitimes or inheritance reservation in favor of certain heirs. Sa atin, sinusunod pa natin yan. Changes were introduced by the NCC insofar as illegitimate children are concerned and the surviving spouse. Under the old cc, the surviving spouse does not inherit from the other spouse, rather he will inherit only when a child survives but the inheritance is limited to a usufruct. Hindi talaga sha nagmamana ng property. pero kung walang anak, ibabalik ng pamilya ng lalaki ang babae sa dati niyang pamilya. Hindi ka na namin kaano-ano. Pero kung may anak may usufruct hanggat diba lumalaki yung bata, may usufruct. Under the old code, illegitimate children were not heirs at all. Kaya nga ang bastardo ay mayroong stigma. Nasa lower class ng society. Walang mana. But the NCC recognized rights of illegitimate children to inherit. Kasalanan naman ng mga parents ang pagiging bastardo nila. Not penalize children for indiscretion committed by their parents. Next meeting SUBSTITUTION OF HEIRS Read: fideicommissary institution. PCIB v Escolin and Vda de Kilayko.

11 August 2010

XII. SUBSTITUTION OF HEIRS
What is substitution? A857 appointment of another heir so that he may enter into inheritance in default of the heir originally instituted. E.g. “I institute Ron as my sole heir, if in any case he cannot succeed, I institute eva as my legal heir.”

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VULGAR or SIMPLE
Gives testator absolute control how estate disposed of after his death. Kasi baka mamaya, the heir instituted is disqualified under the law or the ehri predeceases the testator, therefore he is not qualified at the time testator dies. If he does not provide a landing, to whom will the estate go? – Legal heirs by way of intestacy – To prevent the legal heirs from inheriting, he is allowed to appoint a substitute. Galit sha sa legal heirs, a yaw niya magmana the legal heirs kaya ayaw niya mamatay ng intestate to prevent dying intestate. Pwede maglagay ng substitute. Art 858: four types of substitution recognized and regulated by the code. Fideicomisary is englicized form of Spanish fideicomisaria When will the substitute inherit? It depends on the nature of thes substitution provided by testator in his will. In the example I gave you, it’s simple/common substitution, also termed “vulgar”

Suppose the testator made the ff provision in his will: “I institute Ron to ½ of my estate. However if Ron dies within 5 years from my death, Eva is appointed his substitute.” I died (baka sabihin niyo kayo lang pinapatay ko), admitted to probate and Ron was alive when I died. But for mysterious reasons, Ron died after my death. Will Eva inherit as a substitute? Baguhin ko yung tanong. Will Eva inherit? Yes, but not inherit as a substitute. Why? Because A859 only says predeceased, repudiation or incapacity in the case of this particular testamentary disposition, the supposed substitution will happen not when Ron predeceases, in this case he did not predeceased. This will not happen in case of repudiation, he did not repudiate. This will not happen in case of incapacity. It will happen after my death. That is allowed not as a substitution but as a conditional testamentary institution which we will study much later. It’s a species of a conditional testamentary institution. In reality, there were two simulatenous institutions in that testamentary disposition. Ron’s institution was subject to resolutory condition while Eva is suspensive condition. Going back to substitution, is the enumeration of instances where substitution will happen given in A859 exclusive? In Kilayko, Justice Romero (teacher ko yan sa PFR) sabi niya exclusive daw yan. Di niya mashadong pinaliwanag. Kung titignan mo yung A859, sabi OR hindi AND. In a way, she is correct because incapacity encompasses all reasons. Kaya lang, because of “predeceased” the general principle we can gather from A859 (and looking at the first two enumeration then general term applies) general is limited sa nauna. All those two will happen on or before the death of the testator. Therefore the incapacity that will happen in 859 is generally interpreted to INCAPACITY OCCURING ON OR BEFORE DEATH OF THE TESTATOR NOT INCLUDE INCAPACITY THAT WILL HAPPEN AFTER THE DEATH OF THE TESTATOR. Suppose testator instituted an heir and appointed three substitutes, is that allowed? Yes, under A860. Brief. 1 heir, 3 substitutes. In case the instituted heir predeceases, what will the substitutes receive, how will they share the inheritance? Tandaan ito. • They are entitled to inherit what the heir originally instituted was supposed to receive. • Substitution is secondary institution of heirs, therefore all provisions applicable to institution is applicable to substitution. For him to inherit, he must be alive and qualified at the time of testator’s death. Suppose the substitute died ahead of the testator, the answer is no. • Suppose three of them were alive, what will the three substitutes inherit or how will they share the inheritance? Apply first rule institution, i.e. EQUALITY, so the three of them will get equal shares. • May the testator provide for unequal sharing of the substitutes? Yes. In which case, we also apply the computation that we discussed. Kung

BRIEF or COMPENDIOUS
Simple din yan, kaya lang dumami yung parties. E.g. designated heir appointed more than one substitute for the instituted heir. Pwede ring reverse. Testator instituted 2 heirs and appointed one substitute for the two instituted heirs. One is brief, the other is compendious RECIPROCAL substitutes of each other. Ron gets ½ of estate and Eva the other half and appoint them substitutes of each other. If you look at CC provisions, in reality there are only two substitutions: simple and fideicommisary. Just variations yung two other of simple, they follow the same rules. When will the substitute inherit? In case of simple substitution, in case the heir instituted in the will… 1 predeceases, 2 repudiates, 3 becomes incapacitated. Actually redundant yung three instances for substitute to inherit. The 2 other reasons are also cases of INCAPACITY: death and repudiation. Kaya lang nilagay yan, there may be some consequences e.g. in repudiation, baka hindi naman available/obtaining in incapacity in general or predeceased. That’s why 3rd ground is a catch-all provision. May the testator limit substitution to just one reason? Yes, in which case, substitution will not take effect for the reasons not specified in the will. Suppose the will is silent as to what will give rise to substitution, in what instance will substitution occur? 2nd Par of A859: kasama yung tatlo.

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exceed, there will be pro rata reduction. Pag kinulang, pro rata increase. Suppose one of the substitutes, die ahead of the testator, to whom does his share go? • Depends on the provision of the will. The will is paramount, unless the provisions are contrary to law, public policy, morals. Ergo, if the will has provided how the substitutes inherit, die or inherit, the provision in the will shall prevail. • If the will is silent, apply rules on institution. If accretion is proper. If not proper, it will become vacant and go to legal heirs by way of intestacy. Break in ko lang kayo sa principles. Otherway around, 3 heirs, 1 substitute for the three heirs. One heir dies ahead of the testator. Will the substitute inherit the share of one of the three originally instituted? It depends on the wording of the will. If it allows substitution to inherit the share of one of the instituted heirs, that shall be allowed. If it does not allow him to inherit the share of each and every heir instituted, there should be accretion as for the remaining heirs. All three heirs must die before bring in substitution. “I institute to ½ Ron, ¼ Ani, ¼ Eva. As substitute of the three, Chi is hereby designated.” Naunang namatay si Ron, predeceased the testator, under mysterious circumstances.  Will Chi inherit the share of Ron? Yes she will. No intention on the part of the testator to give the inheritance to no one but the three. Designated to a specific portion. “I institute to my entire estate Ron, Eva and Ani such that Ron shall share ½, Eva ¼ and Ani ¼. As substitute of these three, I designate Chi.”  Will it go to Chi? There is accretion as to the three, all three must die. TAKE NOTE OF THE INTENTION! Sir, may the testator appoint substitutes in the alternative? “I institute Ron to ½ of the estate, as his substitute I appoint Eva OR Chi.” Mahirap iimplement ito. Kasi or, sino ang mag-iinherit. What happens when disposition is so vague and not capable of being implemented? Disregard the provisions. How about substitutes in succession? “I institute Ron to my entire estate, in case he is not entitled to inherit. I appoint Eva as substitute. Chi is appointed as her substitute. In case Chi is not able, Ani is appointed as her substitute. In case Ani is not capable, Eds.” Pwede yan. Kita mo kung gano sha kagalit sa legal heirs niya. Katakot-takot na substitution ang ginawa para hindi mapunta sa kanila ang yaman niya.

Testator institutes first heir (who will enter inheritance BUT is obliged to preserve the inheritance and transmit it to a second heir). In reality, what will the first heir get? Hindi naman pala mananatili sa kanya yung property. What it will enjoy is USUFRUCT of the inheritance. How is this different from “legacy of a usufruct” in A869. You know in property: Ownership of property, whether movable or immovable, has two components. 1. Naked title – ang titulong nakahubad 2. Beneficial title – jus utendi of the property that is usufruct Fixed assets – mga pag-aaring nakatirik Liquid assets – mga pag-aaring tumutulo Naked title is registered in the name of Ron therefore only he may dispose the property because he is the owner of the naked title. Hindi yung owner ang naked. Pero maraming gusto makakita sayong naked. Beneficial may be given to another. Owner may divorce these two components. Usually done when constituting a trust. Absolute owner gives naked title to trustee and the beneficial title to a beneficiary (cestui que trust). Trustor or settlor may be the trustee himself or the beneficiary. Usually agreement in a trust agreement with a bank. Money investment. Legal title to funds is given to the trust dept of the bank nd they will invest your money and you will get whatever fruits were generated by your funds less trustee fee deductible. Kaya nga trust, you trust that the trust dept of bank will make your money grow but since your business proposition is pwedeng malugi yung money. You cannot have recourse with the bank. It cannot guarantee. Bawal yun. In A869: A863 – it shall not go beyond 1 degree. Hindi ba the same din yan under A863? Sino OPF dito? Wala? Bobo ang batch na ito? One word: Substitution Second heir will never get legal title to the property. Limited to his usufruct, when the time comes for SH to give up his usufruct, the first heir will have complete ownership. Never will the usufructurary get the legal title to the property. In A869 In a fideicomisary, FH is a substitute. There is a possibility that he will get legal title over the property. When? In those instances provided for in A867 in realtion to A86_. Kapag naging invalid yung 2nd heir, mapupunta yung property to FH. Sino ang substitute? The first heir. Hindi mashadong diniscuss ni Tolentino yan. Hindi nga niya diniscuss yan eh. A863 was considered an entailment of property. Naka-entail sa kanya til buhay yung usufructuary. When does naked title go to first heir?

FIDEICOMMISARY SUBSTITUTION
This kind of substitution was suppressed in the draft submitted by Code Commission to Congress. But suddenly they changed their mind.

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A863: 1st heir and 2nd heir living at the time of death of testator. E.g. 2nd heir predeceases the testator. When the testator died, 1st heir alive but the second heir already dead. What will the first heir get? Usufruct? Kanino yung naked title? To the first heir because he is the substitute. Kaya lang, care has to be taken, for there to be fideicomissary, it must be expressly provided for in the will. It must be there in the will. Tinanong ko si Baviera nung student ako. Anak ni Baviera ang tawag sakin. We shared many views, not so much with Balane. Kami lang nagkakaintindihan. Litonglito classmates ko. How do we know that a particular provision is a legacy of usufructuary OR fideicomisary? Matter of intention yan. Intention should be distilled from the will or circumstances surrounding the execution of the will. PCIB v Escolin Himayin ang kaso, otherwise, you won’t be able to use the case later on. Superficial ang pagkakaintindi niyo sa kaso. Won’t be able to make use of them unless you encountered a deeper treatment. Mag-asawa si Linnie Jane and Charles Newton, they settled in Baguio kasi malamig dun. But during the lifetime of Linnie, sha yung business woman between the two of them. Acquired many properties, may parity amendment pa kasi dati. She died, survived by husband, no children, descendants. Left behind a will: “I leave all my wordly possession to my beloved husband. Free to do whatever he wants to do with all those properties. He is at liberty. HOWEVER, if something remains of those properties when he dies, the remainder shall go to borhters and sisters.” Died ahead of husband, will admitted to probate, delivered to husband. Nung bata akong lawyer not so long ago, I handled a case of Hodges spouses property in Pangasinan. Merong attorney’s fees. Important sakin yan. Charles was not very extravagant in his lifestyle. Hindi niya naubos yung iniwan ni Linnie. Marami natira when Charles died much later. May natirang kayamanan, may pag-aawayan. Turo ni Dean Magallona sa amin. You should die broke. So nothing for your relatives to quarrel about. Die broke. Sino nag-aaway? Bro and sis of Linnie – claiming the residue vs. bro and sis of Charles How come, what are the arguments? MRS: kami po magmamana kasi provided for in linnie’s will. Case of vulgar substitution under provisions of the code. MR: Hindi yan vulgar, fideicommisary yan. WON Vulgar happens take at the time of testator’s death. Nakamana na si Charles eh! Fideicommisary was void kasi nga walang nakalagay that Charles was obliged to preserve and then transmit the property. Justice Antonio Barredo, alumni of this College: Escolin is relative of Mike Manotoc being first cousin of his Grandma who is the sister of Mrs. Disini and yet he doesn’t know.

Not vulgar: heir instituted is not able to inherit. Charles (original heir) was able to inherit. Not fideicommisary: such substitution must be intended by the testator. If the testator intended a fideicommisary but later on became null and void then we apply A868. We cannot do so because Mrs. Hodges did not intend to fideicommisary substitution because allowed husband to spend. Since not allowed, don’t allow 868 provision on fideicommisary. It is neither vulgar nor fideicommisary. Sino magmamana? Bro and sis of Linnie Ann because Mrs. was a valid disposition. That disposition is a disposition subject to resolutory as regards Charles, and suspensive on the part of brothers and sisters of Mrs. Hodges.  tamang decision Comes the case of Vda. De Kilayko. Romero was my teacher. Nagpapalock ng pinto yan. Nalimutan niya sabihin second day of class. I lived in Valenzuela. Late ako ng 5 minutes. Didn’t you know you’re not supposed to enter class when you’re late. He sang in class. Founder ako ng Charivari. Three cofounders of Charivari. Discuss why Kilayko is a wrong application case and PCIB is the right case. ORIGINAL WILL was written in Spanish so if you know Spanish, I suggest you look at the original will but you’ll have to go to SC to get the files. It was the will of Dona Maria Lizares of

16 August 2010
Vda. De Kilayko v Tengco Facts are almost similar to PCIB v Escolin. Will written in Spanish, there was a legacy/device in favor of favorite niece who lived with her as they were both spinsters. To the niece was given to the Hacienda in Negros, colatilla, should niece die without issue, property goes to testatrix’s brothers and sisters. The first set of heirs, consisted of brothers and sisters of Dona Maria Lizares.  it’s vulgar substitution Second set, brothers and sisters of niece.  this is fideicommisary, but since there’s no express provision in the will required for fideicomissary substitution. Therefore, inheritance was already in her estate. Iba lang yung outcome nito, result applied by the ocurt. SC: Hindi vulgar yung nasa will kasi in substitution it will happen only in case of predeceased, repudiation and ncapacity at time of testator’s dath. Those three are exclusive according to Flerida Ruth. Since not vulgar, the supposed substitution happens after the death who has already inherited, hindi vulgar so you just disregard the will. To whom did the court award? To the bros and sis of the niece it was given. Nothing in the will shows there was intention to create fideicommisary. To be applicable and take effect, it must be shown clear and convincing intention. Not fideicomisary and not vulgar, then disregard. What’s the basis? I think the court committed mistake. It should

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have applied Escolin it’s a valid disposition, subject to two simultaneous conditions. Institution of niece was resolutory condition and brothers and sisters of Maria were subject to suspensive condition. Ang baba ng binigay saking grade niyan 1.5 hindi flat one. RESTRICTIONS THAT TESTATOR SHOULD OBSERVE IN MAKING FIDEICOMMISARY 1. Cannot go beyond one degree. What do we mean by one degree? Pwede bang in succession yung fideicommisary? I.e. many first heirs. E.g. I institute A to the inheritance but he has the obligation to preserve and transmit property to B. however B has obligation to preserve and transmit to C. And then to D who will be ultimate owner of property – fideicommissary substitution in several successions What do we mean by one degree? This has been the subject of controversy not only here but also where our code ahs originated. Spain and then Code Napoleon (ruler of Western Europe) One degree of TRANSFER or RELATIONSHIP: among Spanish writers, interprerted to mean as one degree of transfer. Manresa and SR, one degree of relationship. SC of Spain had already resolved this controversy a logn time ago: a degree must mean one degree of transfer. In the Philippines, Filipino writers in civil law are also divided. Tolentino, Paras and Padilla: relationship. Caguiao, JBL, Ricardo Puno, Desiderio Jurado: one degree of transfer. Unlike SC Spain which resolved this issue in favor of transfer, it ruled in Palacios v Ramirez, ruled that it was relationship citing Tolentino. Yung researcher hindi magaling dapat SC of Spain ang binasa niya. In my opinion, don’t know if this was clearly expressed in Palacios v Ramirez (kailangan may disclaimer otherwise baka maakusahan akong plagiarism) based on report of Code commission, one degree should be read to mean one degree of transfer. One of the entailment of property within a group or family. It’s one of the devises/institutions in OCC that entail a property within a group or property. Marami yan, reservas we shall discuss later, reversiones. For a long period of time. According to CC framers, one of the reforms introduced by CC is the abolition of CC which entail preopty for a long period of time. Kung yun ang cornerstone, dapat degree of transfer and not relationship. Kung 10 kapatid yan, transfer transfer sila sa isa’t isa. Lahat sila tag-oone degree. I doubt it’s the real intention of A863. Because of this ruling in Palacios v Ramirez, there are collateral rules we can gather. a. May a corporation be a 2nd heir? b. May a corporation be a 1st heir? Definitely there can be no fideicommisary kasi it has no relatives. Eh sir pano yung sister and parent corporation 1. Cannot burden the legitime of compulsory heirs

2. When will the first heir transmit the inheritance to

the 2nd heir? May testator provide that first heir transmit it after 10 years? Yes, the will of testator may provide the time. Absence of time frame, when must the property be transmitted to 2nd heir? It must be transmitted upon the death. That’s the logical termination of his right to the inheritance.

Before the death of the fiduciary, may he sell the property? There’s no prohibition, he may sell the property but the transferee of the first heir gets it subject ot the obligation to preserve and transmit property to the second heir. Occur not upon the death of transferee but that of fidiciuary. His right ends upon death of the transferor. Cannot get more rights than transferor had in the first place. His right was subject to resolutory condition. How about the fideicommisary sell the property before the death of the fiduciary? Back track if fiduciary alive at time of testator, in absolute title by the first heir. First heir becomes substitute of the fideicommisary. 2nd heir dies ahead of fiduciary, who gets property? Heirs of fideicommisary, fideicommisary was alive therefore he inherited the property. At time of testator’s death, fiduciary predeceased testator and only fideicomissary was alive. Who gets property? No provision in the code. It’s one of the question, I asked Barbie. Intention was to give absolute ownership of the property to the fideicommissary. Dinelay niya lang ng onti. Kung ganon pala intention niya, maski magpredecease, dapat magpunta pa rin yan 2nd heir. Bilib ako kay Barbie kasi alam niya tamang sagot. Both fideicomissary and fiduciary predeceased? No one inherits, walang substitution. Exactly at the same time Art 43. Fiduciary was the substitute of the fideicomissary. First heir has the chance of getting absolute title. As compared with legacy. Another instance would be those under A867.

XIII. KINDS OF INSTITUTIONS
TESTAMENTARY INSTITUTIONS

1. Simple or pure 777 – no condition for inheritance to

take place, only event we should wait for is the death of the testator. Ang impt lang ay mamatay. The moment he dies, inheritance will follow as a matter of force. No conditions attached to the right of the heir to receive his inheritance. It’s enough that succession is OPENED by the death of the testator.

2. Conditional 871 – subject to a condition (future and
uncertain condition the happening of which a juridical act is made to depend).

Can a past event be a condition? Yes, if we don’t have knowledge of it. Perhaps that was possible during thte

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time where there’s no advance means of communication. Paglubog ng galleon sa Pacific. When is a testamentary provision conditional? Validity or efficacy of a provision depends upon the happening of a condition (future and uncertain event) Why is testator allowed to impose conditions on the right of an heir to inherit? Reason given by writers: if testator can dispose of properties by will, he is likewise free to impose conditions upon whom he wish to give such property. Testator cannot impose condition on the LEGITIME, only on the FREE PORTION. Why will testator impose condition on the right of an heir to inherit? What will move a testator to impose such a condition? Maybe testator wants to oblige an instituted heir to perform something. For failure to do so, forfeiture of right to inherit. OR maybe testator wants to achieve a particular scenario when particular conditions set in. Conditions of different kinds or type: – implied/express, – potestative – fulfillment depend exclusively on will of heir casual – chance or will of a third person mixed – fulfillment of condition depends on will of heir and chance or heir and third person, – suspensive – prevents the effectivity of a disposition until happening of condition resolutory – right to inheritance is extinguished by happening of resolutory. – Nature: positive – required to give or do an act; negative – not do/give anything – Propriety/legality: proper/improper Take note that those conditions, to be valid, must be imposed in a will itself or another will. Hindi pwede in a document incorporated by reference, document short of a will. Ergo if those conditions were imposed in document other than a will, but merely referred to through incorporation, the condition will not take effect.  Deemed as not having been imposed: received free from any condition. There was doubt: in favor of absence of a condition. Why? A testamentary condition is essentially gratuitous act, in the absence of clear provision that it’s subject to testamentary act, we assume there’s no burden. Improper/inoperative conditions. There are 4 of them under the code. a. 873: impossible, illegal or immoral b. 872 in re 904: conditions imposed on the legitimes of compulsory heirs c. 874: not to contract marriage d. 875: Disposition captatoria.

What is the effect? Considered as not imposed. Institution shall be considered as pure and simple. Bakit disregarded, diba intention was really not to give property to the heir. Tinakaw niya lang yung heir. Inasar lang niya. Paasa love mode. Why do we disregard? The testator is penalized by law. Tarantado ka. Gagawa ka lang ng disposition, nang-aasar ka pa! penalty incurred by testator for imposing as a condition an impossible thing. This is different from act inter vivos (will is mortis causa) A1123 makes the obligation void if it’s made subject to impossible obligation. But under 873, the condition is merely disregarded. What is illegal condition? The actor’s performance violates the law. E.g. give ½ of my estate if he will supply my youngest son shabu for life. If that illegal condition is imposed, considered as not written an imposed. Where do we reckon illegality if it’s made subsequent? If the act was illegal at the time it was imposed, but was already legal when testator died, the heir must comply. Compliance has to be done after the death. But those that happened before the death should be deemed complied with. Tested after the death of the testator when heir is supposed to comply with the condition. What is immoral condition? Performance of the act in order to fulfill the condition will violate morals of our country/nation, community. E.g. Indecent Proposal. Pati sa pelikula illiterate kayo! Di ba si Demi Moore, yung lalaki Ted Something played husband and wife architects who were building their dream house in a beach front property but lost their money. They gambled in Las Vegas pa nga eh. And then they met this dashing Robert Redford millionaire. I give you 1M if you sleep with me one night. Maligo ka na lang after!!! A species of prostitution na ang nagbugaw eh yung asawa. Pero bakit nagbreak down their marriage? Demi Moore admitted she enjoyed it. Taken in the context of inheritance, pwede rin maging condition yun. For an heir to receive his inheritance. E.g. of immoral condition written about by experts in civil law? Condition for the heir to change his religious affiliation (mag-Muslim ka for mana!), or a condition for the heir to quit priesthood (Father Caluag no longer a Jesuit so one step further, quit priesthood. Temping a man of God to commit a sin! Sin ba yun? To leave his vocation). Pano kung “I institute Ron Garcia to 1M provided he becomes a lawyer.” Yan ay immoral talaga. Increase the number of those in the much maligned profession. WON particular provision is immoral depend on the facts and circumstances of the case.

a. What is an impossible condition? Happening is
contrary to the laws of nature, it will never happen. E.g. Pagputi ng uwak. Pagwapo ni Mr. Garcia, nanganak si Mr. Garcia.

b. Absolute condition not to contract first or
subsequent marriage. Itong si Ron, nagbreak sila ni Eva. Magaganda pala ang mga Ivatan. Matagal islang mag-un (MU). Then nagbreak. Nag-asawa si Eva. Sabi niya sa pamangkin niya. I leave my nephew ½ of my estate provided he does not marry

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an Ivatan. Ganon ka kinamumuhian ni Mr. Garcia. Without having seeing the will, nag-asawa ang pamangkin, anak ni Eva. Matatanggap ba niya yung inheritance? Depend on WON the condition is a valid condition. Yes it’s prohibition but NOT absolute. For condition to be improper, the prohibition to contract should be absolute. He cannot marry anyone, anytime, any place. Since the prohibition absolute (just particular group of people) the condition is not an absolute prohibition. PERO baka ito naman ay contrary to morals. Bakit mo pinagbabawalan na magasawa ng Ivatan. Wala pa namang nag-raise ng issue na iyon? Why is the condition improper? Deemed not written. Bakit yung absolute prohibition to contract marriage? May sariling provision, hindi lang contrary to morals. violation of human right to enjoy his fullest human existence. Para mong pinutulan yan… ng kaligayahan. A subsequent marriage prohibition is also improper. Ron <3 Eva  Annie. Annie <3 Migs. Migs die. Ron says: To my daughter Annie who’s widow I leave ½ of my estate, provided she does not remarry at all. Eh hindi makatiis si Annie na walang katabi sa gabi lalo na kung malamig. Gusto niya may hinahug. She wants a warm body for a pillow so pinakasalan niya si Mr. Pana. Will she receive the inheritance? Of course, the issue that you should resolve is WON the condition imposed by her father was a valid condition. If validly imposed, she cannot receive inheritance. If the condition was improper, the condition will be disregarded and she will be able to inherit. Valid ba or improper yung condition? Yung tatay niya ang nagimpose eh! Hindi naman biyenan diba so invalid. 1. 2. With a term Modal 882-883

instituted or given by will to somebody specified by the testator. When Sharon dies, Kiko did not make a will instituting KC, when he saw the will he decided to make one so he made a will instituting KC as an heir? May Kiko receive the inheritance provided in the will of Sharon, is he entitled to receive what was given to him in the will of Sharon, he had already executed a will requested by Sharon? He will not inherit even if he complied. In the A875, not only is the condition disregarded, (in an impossible condition, the disposition is disregarded), the very disposition contained in Sharon’s will is void. TRANSMISSION OF RIGHTS In the case of a suspensive condition, what happens if the heir predeceases the testator? Let’s do it one by one: • 1st scenario: the condition was fulfilled even before testator died, however heir subject to suspensive condition died ahead of the testator. Let’s draw it so you can visualize better: SUSPENSIVE CONDITION A. 1. Condition was fulfilled Before death of testator Heir died ahead of testator Testator did not change his Heir was survived by his own heirs

2.
3.

Let’s review your ObliCon. I will not be able to meet you on Wednesday. Aaaaw. NAKO HA SASAMPALIN KO KAYO. I have an arbitration hearing on Singapore.

Who will get the inheritance? Will the heirs of the heir instituted subject to suspensive condition? Raise your hands. NOT GET. Why? Your answer was right for the wrong reason. Because since the heir predeceased he never inherited. For an heir to inherit, he must be alive at the time of the death of the testator. He did not inherit at all, since that is the case, he acquired nothing to transmit to his own heirs. A. 1. 2. 3. 4. 5. Heir died ahead of testator Condition was not yet fulfilled when testator died The condition remained in his will A year later, the condition was fulfilled but the heir predeceased testator Heir instituted subject ot condition has his own heir

23 August 2010
a. Conditions imposed on the legitime (Art 872)
The testator is not allowed to impose any condition on the legitimes of his compulsory heirs. When such a condition is imposed, the condition is disregarded and the compulsory heirs shall receive his legitime free from any conditions. Not only may the testator not impose a condition, he may not also impose a substitution on the legitime. N.B. The tesatator cannot charge a burden on the legitime. It cannot impose any condition on the receipt or enjoyment by the compulsory heir of his legitime.

Heir instituted still will not inherit because he predeceased the testator. A. Condition already fulfilled before testator’s death When testator died, the heir insitituted subject to suspensive condition was alive Yes, he will inherit. B.

b. Disposicion captatoria (A875)
Illustrate through an example: Sharon Cuneta executed will instituting Kiko Pangilinan as an heir provided Kiko will institute KC as an heir in his will. That is an example of a disposicion captatoria. The right of the instituted heir to receive his inheritance will depend on the heir having

1. Heir alive upon testator’s death
2. Condition not yet fulfilled

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3. 4.

Heir died when the condition was fulfilled Heir has his own heirs

Who will inherit? Is the heir entitled to inherit at the time of testator’s death? Not yet because condition not yet been fulfilled. Heir must wait until the condition has been fulfilled. When fulfilled, he will become entitled to receive his inheritance. This is the essence of suspensive condition, right of heir to inherit is made to depend on the happening of an event. It’s only when that event happens that the heir will be entitled to receive the inheritance. Suppose the heir died before the condition has been fulfilled? It’s true that he was alive when T died, however, the heir died before the condition happened. He was survived by his own heirs, when the condition happened a year after death of heir, who is entitled to receive the inheritance? They are not entitled, under A1034 for an heir to be able to inherit, he must not only be alive at the time of testator’s death but also at the time of happening of the condition. That’s when the right to inherit gels. If he was already dead at the time of happening of event, he no longer qualified to inherit. Since he is not entitled to inherit, he did not transmit anything to his own heirs. Before happening of the condition, is he entitled to receive possession of his inheritance and enjoy it? NO, that condition will be meaningless if otherwise. Kanino mapupunta property before inheritance? Under A880, it will go to an administrator. When it becomes a certainty that condition will no longer happen, what will the administrator do? Turn over the property back to the estate. Hindi na makakainherit si suspensive heir. I return it to estate and therefore it goes to the legal heirs of the testator.  proceed to intestacy! RESOLUTORY CONDITION Right terminates upon the happening of the condition. E.g. “I institute Ron to ½ of my estate but if Ron will not have a son, his right to the inheritance shall terminate.” Puro babae anak ni Ron, pambayad sa mga utang niya. Dun sha babawiin. Pambayad utang sa ibang babae. Nung araw kasi chattels ang babae. Oh ayan pare, bayad ko sayo, isang anak. That was during the Roman time when women did not have political rights. They were considered chattels. At least hindi naman large cattle, chattel. The heir instituted subject to resolutory condition should be alive at the time of testator’s death. If the heir was alive, he inherits, however in his hands, the inheritance will terminate upon the happening of a resolutory condition. If the heir predeceased the testator, he will not inherit at all, therefore, he will not receive inheritance when testator dies. His heirs will not be able to get anything, there being no transmission of rights. He never became an heir therefore he acquired nothing to transmit to his own heirs. When the heir was alive when testator died, the heir will enter his inheritance but will keep it subject to happening

of resolutory condition. When that happens, he loses his rights to inheritance. To whom does it go? To a person specified in the will, if there is a substitute or designation. Absent that stipulation, it will go back to the estate of the testator in which case, his legal heirs will inherit the inheritance. Suppose the heir who inherited from testator dies before happening of resolutory condition, who gets inheritance? Heirs of resolutory heir will receive the inheritance from the resolutory heir. BUT they will receive it subject to the same resolutory condition. Only property that resolutory heir had over inheritance, that’s what he transmitted to his own heirs. If it was subject to resolutory condition, that’s what he transmits to his own heirs too. When resolutory condition happens, heirs of resolutory heirs, they will have to give up the property. He can sell whatever his vested right is in the property. The property he will sell is subject to same condition. Buyer gets same property subject to resolutory condition. Can’t give more than what you don’t have. No absolute ownership, you can’t give or sell absolute ownership. Suppose the happening of the resolutory condition is certain not to happen anymore: What happens to the inheritance? Resolutory heirs OR his heirs will keep inheritance forever, their ownership becomes absolute. Usually, when an inheritance is subject to resolutory condition, the TCT is annotated with the resolutory nature of the inheritance. Para kanino man mabenta yun or masangla, alam nung makakatanggap na yun lang yung extent of interest of transferor. When it becomes certain it will not happen, annotation may be lifted upon court petition that it will not happen anymore. CONDITION v TERM “Term” – future event the happening of which is certain. Alam nating mangyayari yan but we don’t know when exactly it will happen. E.g. death of a person, unless he’s a vampire. He will die for sure, when exactly this son of a gun will die, we do not know. It may be suspensive or resolutory. SUSPENSIVE TERM – right is suspended until arrival of the term. Pag condition, happening. Pag term, arrival. You should be precise when answering questions in the bar. It shows breeding. Ang sama ng mga SC decisions, parang gusto mong iedit to correct. Testator instituted heir subject to suspensive term. Heir died ahead of testator but survived by his own heirs. When the testator dies and the will was admitted to probate, who will inherit? Definitely heir cannot inherit because predeceased the testator. How about his own heirs, will they inherit? NO because the heir instituted subject to a suspensive term never inherited because predeceased, did not acquire anything from testator to transmit to his own heirs. New scenario: when T died, the heir instituted subject to a suspensive term was alive but the term has not yet

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arrived. Before the arrival of the term, the heir died. But he was survived by his own heirs. Will heirs of the heir instituted subject to a term inherit? YES they will be able to inherit under A878. This is the difference between institution subject to suspensive term and subject to suspensive condition. It’s enough that he’s alive at the time of testator’s death. His inheritance vest in him at the time of testator’s death. arrival of the term is a mere delay in the delivery of his inheritance. Ownership over the inheritance is vested on the heir upon death of testator. Before arrival of the term, who will get the inheritance? Not the heir because that violates the express instruction of the testator. There is a conflict between 880 and 885. 885 applies specifically to a disposition subject to a term, while 880 applicable to both disposition subject to a condition/term. Ano masusunod sa kanila? There is a period for retribution. Tuwang tuwa ako pag di kayo nagbabasa. JBL Reyes: “There used to be no conflict between the two because 880 in the old civil code referred only to a condition institution, did not cover institution subject ot a term. But when it was being deliberated some smart aleck stood up and proposed an amendment. Akala niya kasi magaling sha.” Pag-isahin na lang natin ang term at condition. Dahil hindi sha civilista, hindi niya alam ang 885. They should have suppressed 885 from the draft of 885. End result is a conflict between 880 and 885. What is the solution proposed by JBL? 885 should control when it comes to a term because it specifally applies to disposition subject to a term whereas 880 applies to general. So far, interpretation of 2 articles has not figured in a case that reached in the SC. Bihira ang mga settlement cases. 5 pa lang ang settlement case na nahandle ko, celebrity politician. Walang lumabas sa diyaryo. Bear in mind the comments of JBL Reyes. With whom Sen. Tolentino concurs. Tolentino has the same opinion as JBL: Administration is not proper in case of disposition made subject to a term. Under 885 when a disposition is made subject to a suspensive term, the inheritance will go to the legal heirs. Pano kung sirain ng legal heirs or hindi ibalik? Walang problema kung immovable real estate, hindi naman pwede sirain yun. Masisira ang improvement but real estate remains there for the heir subject to a term to take over. Pano kung nasira yung improvements or kung movable yun? What will be the remedy of the heir instituted subject to a term? Ano ang kanyang remedy? The law has seen that scenario and so the court has imposed a condition in order for the legal heirs of testator to enter the inheritance. They will post a bond called Caucion Muciana. Baka itanong sa inyo sa bar: What are those instances when caucion muciana is required? This is one. There are two more. Kayo na bahala maghanap nun.

RESOLUTORY - If inheritance is subject to resolutory term, our discussion on resolution condition will apply. When the term arrives, the heir will lose inheritance and give her up in favor of party indicated in will OR in the absence of such indication, back to estate of decedent. TESTAMENTARY DISPOSITION WITH A MODE Maraming hindi nakakaintindi dito. Mode – obligation imposed by the testator for the heir to perform. A duty, an act required of the heir to fulfill or perform. A charge imposed on the heir. E.g. “I institute Eva to ½ of my estate however, Eva should pay my widow a monthly allowance of P100,000 for as long as my widow lives.” Suppose Eva fails or refuses to pay the P100,000 monthly allowance, what happens? If she loses the inheritance for her failure to do so, it must be a resolutory condition. It’s not a mode. Payment must be the condition that when she fails to perform condition, she loses the inheritance. What makes it a mode? Pag hindi sumunod, at nawala inheritance, resolutory condition yun not mode. When the penalty for non-performance of the obligation is not forfeiture of the inheritance. Pag walang ganung nakalagay na maliwanag sa will an ang penalty ay forfeiture, dun lang nagiging mode yun. How do we enforce the obligation of Eva to pay P100K monthly allowance to my widow, pano natin sha pipilitin? SPECIFIC PERFORMANCE that’s the remedy available to the heir. She goes to court and impose specific performance. Attach all her properties in order for the obligation to comply with. Unless she repudiates the inheritance, wala shang liability at walang charge. Inheritance is the one that answers for the performance of the mode imposed on the inheritance. So e.g. yung kalahati kayamanan consisted of hacienda in Nueva Ecija earning income from agri production, kumikita P500,000/yr. ayaw bayad Eva, I can sue for specific performance and ask to garnish the income for delivery to the widow. That’s the difference between mode and resolutory condition. There’s a case decided by CJ Davide. I won’t be surprised, he was not a civilist. Although graduate natin yan, batch 1969. If the obligation is with a mode, caucion muciana. Isa na lang ang hinahanap niyo. Caguiao in his book raised this question: Suppose heir instituted subject to a mode, refused to comply or perform the mode? Hindi niya sinagot ang tanong niya. The remedy is not to return but to enforce by specific performance even if it will require attachment of the property inherited so be it. Kung kailangan sale at a public auction for the mode to be complied with.

XIV. LEGITIME
It’s in 886. Reservation for compulsory heirs. Why does the law provide for reservation? To protect the compulsory heirs from the presumed unjust ire or weakness or thoughtlessness or irrationality of their

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parents/relatives which are the testator. Pag nagagalit magulang hindi nakakapag-isip yan. Tatanggalan kita mana! Or nabubulagan ang magulang like a widow. Very early in her life. For lack of entertainment, embark in an entertainment program, ballroom dancing. Best forms of physical exercise. Nainlove kay DI. Pag na-inlove tao, nasisira ulo niyan. Becomes irrational. Pag hindi ka naging irrational, hindi ka inlove. In lust ka lang. kailangan maging irrational ka. Tandaan niyo huling kabit na kayo. Kailangan niyo ng asawa. Ha Eva? Baka pamigay lahat ng properties sa DI because of undue and improper pressure and influence. Walang tutang nauulol. Matatanda lang nauulol. Mad dog. Nakakakita ka na bang mad puppy. Old dogs, old bitches. Members of the family who should be protected. Who are the compulsory heirs? 1. Legitimate ascendants 2. Illegitimate parents 3. Legitimate chidlren and descendants 4. Illegitimate children 5. Surviving spouse Lima lang yan under the CC. Under the OCC there were only 2 (legitimate ascendants and descendants) lahat ng illegitimate were not recognized as heirs. We gave premium to legitimate relationships. Kung pareho lang ng effects, e di wag na lang magpakasal. Gradation of rights. Wife used to have no right under the old code except usufruct if there’s child. If no child, balik ka na sa nanay mo. One writer: in reality there are no illegitimate children, just illegitimate parents. Not all of them will inherit at the same time. There are heirs to exclude other compulsory heirs. Excluded secondary heirs. Primary compulsory heirs. Sino ang primary compulsory? Yung hindi pwede exclude: 1. Unang-una ang surviving spouse. Dati dati wala shang right to inherit, ngayon, binigyan na nga ng right, hindi pa sha naeexclude. Para shang bawang kapag nagluluto kayo. 2. Legitimate children and descendants 3. Ganon din illegitimate children All the others: are secondary heirs because excluded by certain by primary compulsory heirs

exclude all relatives. Pag merong compulsory heir, excluded lahat sila. Compulsory heirs din sina Lolo at Lola: Direct ascending line ad infinitum hanggang sayong ancestors. Collateral line ang tawag kila uncle. Ginarison yung bahay ng ninuno ko kaya nung liberation, binomba. Nasira lahat ng family memorabilia. Suppose this happened instead: A-B | C D-E | F | O+ H-I | J K-L | M

| G

| N

Sino papatayin natin jan? Si O. Lagay natin sha sa nitso hahahhaha 1. Compulsory heirs exclude non-compulsory. 2. Those compulsory heirs in the direct line, exclude the collateral (though wala naman compulsory na collateral). 3. Those in the same line the nearer excludes the more remote. If they all survive, GN will compulsory heirs of O to the exclusion of the grandparents and great grant. What if G is also dead? Definitely N will inherit to the exclusion of JM HI KL. Can CF take G’s share? We don’t allow that in the direct ascending line. Hindi pwedeng bumaba sina CF kay G. Representation is not allowed. THereofre, only N will inherit. Nearer degree, everbody will be included. N is in the first degree, she will exclude all those in the other degrees. N is already dead din. CFJN will inherit nearest legitimate surviving ascendants. How? Divide equally portion reserved for legitimate ascendants? Magkano ba yun? If alone, ½ of the estate. What happens to the other half, free portion. Decedent may dispose by will but if he dies without a will, half portion will be disposed of by intestacy. Suppose patay na rin si C? Who are compulsory heirs of O? 3rd degree are excluded by the 2nd degree. What’s their share? In the ascending line, the legitime is divided equally between paternal and maternal lines. ½ of legitime goes to F for the paternal line and then ½ to J and M in the maternal line, to be divided them equally. Malaki ang mana ni F kasi wala shang kahati.

LEGITIMATE ASCENDANTS
Compulsory heirs when only them survive. E.g. Ron decided to remain a bachelor dahil nabroken heart kay Eva. Nag-negosyo, yumaman. Mysterious reasons. AIDS daw sabi ni Ani. Parents lang natira and brothers and sisters. Who will inherit Mr. Garcia’s wealth? Nearest relatives are parents and brothers and sisters. Sino magiinherit? Legitimate ascendants are compulsory heirs. How about siblings? When there exists compulsory heirs,

1 September 2010
When ascendants survive alone, only then are they compulsory heirs entitled to legitime of ½ of the estate of the decedent.

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What happens to the other half of the estate? It becomes the free portion. If the testator made some legacies or devises and those exceed the free portion, they are inofficious. Also chargeable against free portion of estate are donation inter vivos made during the lifetime. If exceed, they are inofficious and have to be reduced. ½ legitime shall be divded equally between maternal and paternal lines. Among the ascendants, the nearer excludes the more remote. Suppose ascendants are survive with brothers and sisters of the decedent, are bros and sis compulsory heirs? They’re not under the law. Who should inherit as compulsory? only ascendant. Eh yung greatgrandpa natira. Decedent survived by greatgrandpa and full blood brother. Pagka gastado na, hindi na nilalagay dito. Sabay itsa ng marker. A | C B E | D H F

challenged the validity. Yung anak pag naging illegitimate, lilit kanyang mana. Can party interested in having him declared illegitimate? Yes that may be done and it is a collateral attack). SO DAPAT KASAL. Sir yung kasal po ni Kris Aquino, valid ba yun? Practice of many politicians in the province. Mayor Belmonte’s office. Wala yung mayor so kinasal sila ni Pastor pero pumirma sa contract si Belmonte. Invalid kay Sir, for Pastor to have an authority, he must have provided at least one of the contracting parties is a member of the church, religion or sect of the solemnizing officer. What is the effect if none of the parties was a member, is the non-compliance a mere irregularity or is it absence of authority? Does not affect validity of the marriage, only a criminal prosecution for solemnizing an officer, if noncompliance with proviso is absence of authority, then the marriage is void because formal requisite was absence. Mere irregularity or absence of authority? Maganda sana maging amicus tayo jan so we can educate the court. Kris and James believed in good faith? Belief of good faith does not include mistake of law, only mistake of fact. Authority of the rabbi priest etc is subject to a condition that one of the contracting parties is a member. It’s a matter of law. Tolentino says: matters of fact are included in A35 No. 2 eh di our people will might as well marry before barangay captain, police chief, barangay tanod, school principal. Navarro v Domagtoy: judge was only disciplined but they may solemnize marriage anywhere in the country.

G ---------------| . I J

K

Brothers are in the collateral line while greatgrandparents are in the collateral line. They are not compulsory heirs. Legal lang. Not compulsory. 1. Rule when compulsory heirs concur with legal heirs not CH, the LH are excluded. 2. Direct line excludes the collateral. 3. The other half is free portion. 4. Computation of legitime: I didn’t catch 

LEGITIMATE ASCENDANTS
Kailan sila legitimate ascendants? When the ascendants are validly married to each other. Don’t forget what you learned in PFR, man and woman living together as husband and wife for a long time, holding themselves out as husband and wife are PRESUMED to be lawfully married to each other (Perido v Perido) That presumption is merely rebuttable. Interested parties may prove that the marriage was invalid. Kung invalid marriage, hindi legitimate si descendant. May isang kaso na decided by SC which is wrong, this is how poor the general quality of SC have become. New rule of procedure promulgated by SC governing declaration of nullity, annulment and legal separation. Sabi nitong justice, under new rules, only the spouses of the void marriage may bring action to make it null and void. When one party died, you cannot attack. Void marriage may be attacked directly (filed only by parties to the marriage, not by a non-party; petition to declare marriage null and void) and collaterally (in any action, if necessary for the disposition of the case in that collateral case e.g. namatay mag-asawa nobody

ADOPTING PARENT
Is he a compulsory heir? There are two schools of thought. Judge Sempio Diy and many other teachers who believed her went very far to claim that in adoption the adopted child is totally separated from his natural family. All connections of the child are severed. Natatawa na lang ako. Parang hindi sila nag-iisip. Of course not! If that’s the case, e di pwede na niya pakasalan kapatid niya dun sa natural parents. Are you ready to allow that? Only the parental authority of the natural parent is severed, but they remain as legitimate parents of the adopted child. Under A342 of NCC, it was provided there that adopting parents are NOT legal heirs of the adopted child. Why? Because there is a temptation on the part of the adopting parent to adopt a wealthy child to be his heir. E.g. Namatay yung parents sa Luneta Hostage. To remove temptation and that adoption is solely motivated by desire of parents to make him their own, purely familial motives, the NCC did not make adoptive parents as compulsory heirs, not even legal heirs. But this was expressly repealed.

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984 CC1: Hindi heir ang adoptive parents. Companion provision of 342. Hindi narepeal expressly ang 984, only 342. So what is the standing of the 984? Yes, it is also repealed, otherwise, there’ll be inconsistency with the provisions of FC. Sabi naman ng repealing clause ng FC, what is his status now? I wrote an article analyzing this case with the IBP journal. Compulsory heir ang adopting parent if he does not survive or concur with natural or legal parents. Article was published March 2009 about domestic adoption and its effects. One thing for sure, the adopting parents are legal heirs, under A1902 of the FC instances where adopting parent will inherit. Since they inherit, they are therefore legal heirs but the FC does not make them compulsory heirs because they don’t have legitime and it’s not clear that they are CH. But I made an analysis that the intention it would seem is to make adopting parents LH but ONLY when they don’t concur or survive with the natural parents of the adopting child. Art. 39, PD 603

but Ron can only save one of the two. Who do you think Ron will save? Sociologists say father will save his son, not his father. Gusto niya ngang mamatay na tatay niya para makamana na sha. Even if Ron will attempt to save his dad, the father will decline. The legitimate children exclude the legitimate ascendants from the inheritance fo the decedent. But suppose legitimate ascendants concur with illegitimate children? Are illegitimate children compulsory heirs? YES, they are. But they were not under the OCC. Yung mga illegitimate, they were considered strangers to the family. They have nothing against the legitimate family. They were not entitled to any inheritance, not even from the illegitimate father. Bastardo! Kaya noon may stigma yung pagiging bastardo. Yung tiyahin ko turned down a suitor who was rich but bastardo. Naging governor ng province later on. Ano tiyang nagsisisi ka na ba? Nung naging famous na ang bastardo, Sharon Cuneta. Juan Ponce Enrile? Son of Don Alfonso Ponce Enrile, kasama sa Perkins Law Office. Treasurer of Province of Cagayan. Armada siguion reyna. Naging lonely si Don Alfonso sa Tuguegarao. Laundry woman became mother of Juan Ponce Enrile. Furganan. Johnny Ponce Enrile looked for his dad’s law office. Lawyer like you. I will send you to the best school on two conditions. Best school? UP Law!!! Live with me and change your surname. Galit tuloy si Armida. Bakit pinapatira dito ang bastardong yan. Dahan dahan kayo magsalita, mga bastardo rin kayo! Hindi kasal si Dona Purita at Don Alfonso. Sikat na bastardo ngayon. Illegitimate children under new law are compulsory heirs. If concur with legitimate ascendants, the legit asc do not exclude illegit children. They will concur and inherit as compulsory heirs. Legit ascendants = ½ of estate Illegit children = ¼ of the estate divided among them equally Remaining ¼ = free portion Don’t forget however, for an illegit child to inherit, he must be recognized by putative parent either voluntarily or involuntarily. 172 FC in relation to 175: only three forms: [1] record of birth [2] public document of recognition/affidavit of acknowledgement [3] private handwritten document signed by putative parent Recognition will not be effective pag hindi pumirma (?). Child is voluntarily recognized against illegit parent. e.g. wala lahat nay un. Pag pumirma ako jan, confession of philandering yan. Hindi rin sha gumawa ng affidavit or ng private handwritten document. Pero yung bata kinilala informally. Pinakilala sa mga kaibigang putik, hawig ko talaga oh. Sha nagpaaral, tuition, report card, pirma as parent. Those documents, photographs or public knowledge that he was illegitimate child, they are not recognition in itself, only as grounds for recognition.

LEGITIMATE ASCENDANTS
Suppose they concur with legitimate children. Legitimate ascendants are excluded. What is the legitime of the Legitimate children = ½ of estate equally divided among the children Why exclude from inheritance the parents? Bakit ganun ang batas? According to framers of OCC (which came from Spain which came from France Napoleon Code) Love of person is like flow of water in river, it does not flow up, only down to the sea. It may flow collaterally, but not flow up. Yung river nila ay wala sa coast. Madrid is landlocked, so they think, the river really does not flow up. But here in Manila, it does flow up kapag high tide. That is the normal behavior of a normal person. He loves more his descendants than ascendants. Kung may puzzle, si Ron sumakay sa Bangka kasama ang anak at tatay. Si Ron lang marunong lumangoy, boat capsized

1 In case of death of an adopted child, leaving no children or
descendants, his parents by consanguinity and NOT by adoption, shall be his legal heirs.

2 Legal or intestate succession to the estate of the adopted shall be
governed by the following rules: (1) Legit and illegit C and D and the SS of the adopted shall inherit from the adopted, in accordance with ordinary rules of legal succession. (2) When the parents, legit/illegit, or legit ascendants of the adopted CONCUR with the adopters, divide the entire estate ½ to be inherited by the parents or ascendants, ½ by the adopters. (3) When the SS or IC of the adopted CONCUR with the adopters, they shall divide the entire estate in equal shares. (4) When adopters CONCUR with the IC and SS of the adopted, they shall divide the entire estate in equal shares, 1/3 to be inherited by IC, SS and then by adopters. (5) When only the adopters survive, they shall inherit the estate. (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal succession shall apply.

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If he dies without recognition, illegit child could not inherit. Can file action to compel recognition only during lifetime, after that, action is barred. What about DNA? Yung ibang piyesa, hindi nadodonate yan. Nakadonate ang blood, retina, liver at kidney? Pwede ba patest DNA ng tatay tas imatch sa DNA test results? 99.9999999% makakainherit ba illegit child? No, because it’s not a form of voluntary recognition. It’s just evidentiary to compel recognition. But the action to compel recognition is already barred by the death of the putative parent. Illegit children will divide legitime of ¼ among themselves equally, maski ibaiba ang nanay or tatay nila. As far as common parent is concerned, all of them are illegit children. pare-parehong anak sa labas kaya pareho lang ng inheritance rights. Legit asc concur with adopted child Suppose the legit ascendant is survived by the adopted child of the decedent who are compulsory heirs, the adopted child will exclude leg ascendant. Because the former has all the rights of a legit child. This includes excluding the right to inheritance of parents of adoptive parents. NB for a child to be considered adopted, the adoption must have been decreed by an adoption court. Decree of adoption. Kung ipinalista laman yung bata in the name of the parents to whom he was given, that birth cert is not proof of his or her filiation. Because that document is a falsified document. Crime is called: Simulation of birth. Domestic adoption law: simulation is defined as tampering of birth cert. napakahina sa choice of words. Simulation ≠ tampering. Otherwise, falsification. Wlaa kang tinamper dito eh. Falsification is absorbed by simulation as necessary act for the commission of the latter. LA concur with SS Who are CH? When the spouse is survived by legit issue, the SS only entitled to usufruct but not real inheritance. Under NCC, SS is given real inheritance. BUT SS does not exclude the LA. IC do not exclude LA because we have to give premium to legit relationships. Di pwedeng walang pinagkaiba. There must be a gradation of rights, otherwise, no motivation to legalize union with partners in life. No value as social institution ang marriage. Make legit rel between partners in life. Kung walang effect, bakit pa? SS does not exclude. Why not? Because blood is thicker than water. Kaano-ano mo ba yang asawa mo? Pero nagiintrega ka ng sweldo, sinusunod mo lahat. Yes mam yes mam pero di mo kaanoano yan. Blood is thicker than water. Kaya hindi maexlcude ni SS si Leg Asc. Pag nag-aaway yung mga kilala kong mag-asawa, yung parents ang topic. Laging nagbibigay ng sustento sa parents si Ron. Pambili ko ng shoes, nasa parents mo! Dahan dahan ka. Makakakuha ako sampung kapalit mo, pero walang kapalit ang parents ko. Di mo pwedeng palitan ang parents mo pero pwede mong palitan ang asawa mo.

They concur with each other, the two of them are compulsory heirs. Legitimes Legit Asc = ½ of estate SS = ¼ of estate Arbitrary yung ¼ ng SS para may free portion. Leg asc concur with surviving spouse and legit children Who are CH? Leg asc are excluded. Only SS and LCD are compulsory heirs Legit asc concur with surviving spouse and illegit children Hindi maeexclude ng SS and IC ang LA. Kasi nga illegit and affinity lang sila. IC will not exclude the SS either. Legitimes LA = ½ estate IC = ¼ estate SS = 1/8 estate 1/8 = remaining free portion Nagloko kasi si Mr., nangaliwa sha kaya lumiit yung kay misis. Ano’ng suma total? Pinarusahan si Misis nung nangaliwa si Mister. Bakit ganun? Bakit si Misis naprejudice? KASI BAOG SHA. She failed to provide her husband with offspring kaya nag-experiment sa labas yung asawa. Noong unang panahon pag hindi nanganak ang reyna ng lalaki, pinupugutan ng ulo. Catherine of Aragon. Henry VIII. St. Thomas Moore refused to recognize the divorce of the king. Cessation of England from the Catholic Church. Elizabeth I.  James I, son of Mary Queen of Scotts the King James version of the Bible. Bat ba tayo napunta jan. Legitime of the ascendants is fixed at ½ of the estate. Hindi nagbabago yan. Sino ang nagbabago? Yung legitime nung ILLegit children and SS. NEXT CLASS OF COMPULSORY HEIRS

ILLEGITIMATE PARENTS
Kanina legitimate “ascendants” pero ngayon, illegitimate “parents” that is significant. Later on you will find out that illegit ascendants are barred from inheriting. If survive alone ½ of the estate as their legitime NB only illegit parents who recognized their illegit children are entitled to inherit. E.g. Ron and Ani are married to each other pero nagkaron ng affair si Ron at Eva. Si Eva naman kasal kay Mel. Nagkaanak si Eva kahawig na kahawig ni Ron. Sabi ngayon ni Mel, bat hawig ni Ron? Napaglihian ko kasi si Ron. Busit na busit ako jan dati. Child is your child is an act of faith. Manampalataya ka na lang na anak mo nga ang anak mo pag sinabi ng Misis mo. Kaya during the old days to ensure that the crown prince is a descendant of the monarch, binabantayan yung prinsesa. Bantay sarado yan. Para sigurado kung magbubuntis sha, yung crown prince ang tatay. Ganun din ang reyna. Sigurado dapat na anak ng hari yung anak ng reyna. Anne Boleyn. Anne Boleyn rumor that she wanted to be impregnated by her own brother. Executed for treason. It was just a frame up for a reason to execute Anne Boleyn so he could marry again.

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The Court must be present during Queen’s labor. Changeling. Baka mapalitan! Privacy was a luxury that royalty did not enjoy. Queen Victoria had 11 children but she considered sex as something dirty. From all her children, descended all the monarchies of modern Europe. Even the consort. Nagkaanak ngayon si Eva kay Ron. What Ron did now is a affidavit is that Eva’s son is his illegitimate son. Pag namatay si Ron, makakamana ba yung anak ni Eva. Liyao v Liyao. Child of eva is presumed legitimate of Eva and Mel. Presumption of law, that child is presumed to be legitimate. Not any tom Dick and Harry can recognize the child as his illegit chld. That would have no legal leg to stand on. That’s the realities that the law should address and require reform. Overthrown by action to impugn legitimacy. Only Mel can file. During minority of illegitimate child, by his heirs. Prescriptive period din of 3 years. Hindi basta basta nagrecognize ka, anak mo na. Recognition of illegit child by putative father is subject to consent of illegit child. He may refuse the recognition of the putative parent. Bakit ngayon lang dahil mayaman na ako? Provision allowing refusal of recognition was repealed/suppressed in the FC. Suppose illegitimate child is recognized by 3 fathers. Parang yung Mamma Mia. Lalabas yan sa bar na ito!

enter into a compromise agreement? Mukhang mas kahawig mo, hayop ka. Under the New CC, one of the matters which can’t be the subject of a compromise agreement. Status of persons. Cannot be the subject of compromise or agreement. For our purposes, since wala nakalagay sa batas kung sino illegit parent: In case filiation is denied by any interested party, filiation has to be proven by all kinds of evidence admissible under the RoC. Pwede rin siguro yung DNA. May client akong popular na movie actor. Bago sha namatay may nagkeclaim na anak. Bago inilibing, nakausap ko yung widow. Mam, pinaDNA mo na ba? Oo shempre. Same shall apply in case a wealthy child applies and there are potential claimants claiming to be illegitimate parent. That evidence should be decisive in determining the paternity or filiation of the child. Illegit parents are excluded by all kinds of children. Legitimate and illegitimate alike. Are the illegit parents excluded by the spouse? NO, if the surviving spouse concurs with legit ascendants, more reason to allow concurrence with illegit parents. All of them are compulsory heirs Illegitimate parents = ¼ Surviving spouse = ¼ Remaining half is free portion What have you observed from this assignment of legitimes? IP are given only ¼, unlike LA who are given ½. Legitime given to SS is ¼ when concur with LA but why oh why is the SS given the same legitime when they concur with IP. Kasi it’s not the spouse. It has nothing to do with issue of spouse, but legitimate relationship. That should not benefit the spouse whose legitime remains at ¼ In FC, when legit parents concur with adopting parents: What is their inheritance? Tag-1/2 sila sa estate. IBP Journal basahin niyo yun. Baka dun ako kumuha ng exam.

6 September 2010
ILLEGITIMATE PARENTS Compulsory heirs when they survive alone, they are the only CH. Entitled to legitime of ½ of the estate of the decedent and the other half is free portion. The question is, who are illegit parents? In your PFR, illegit child cannot compel the illegit parent to recognize him if the putative parent has already died. Action to compel recognition may only be instituted before the death of the putative parent. How about the reverse? Who is the illegit parent entitled to inherit from illegit child? Who must recognize the illegit parent to entitle him to inherit from the illegit child? In CC, illegit child, over 18 years cannot be recognized by illegit parent without consent of the child. But thi sprovision was suppressed in the FC. Suppose very wealthy illegit child die, someone claims inheritance now that he is illegit father. Can he prove his paternity after the death of child. In the CC cannot do that because no consent if dead. BUT under FC, may someone cliamiing to be illegit parent, prove his paternity to claim his inheritance? Hindi maliwanag sa batas. Don’t forget Liyao v Liyao ruling child presumed legit under the law, cannot be the son of another person claiming him to be his illegit child. Hindi pwedeng dalawa tatay mo. Isa lang. Unless somebody mpugned your legitimate filiation. Pano yung Mamma Mia. Tatlo yung nagkeclaim. Pareho pang buhay yung tatlo, interesado sila malaman who the real father is, magpaDNA na lang sila. Buti nga may DNA ngayon, noong araw wala. Manampalataya kang anak mo yan. May the three claiming to be the putative father

LEGITIMATE CHILDREN AND DESCENDANTS
When legit children survive alone as a class, only them survives, only them is CH. Legitime ½ of estate What if it came from different marriages and the first marriage lasted longer than other subsequent marriage? Yes they will have same legitime. Walang kinalaman length of parents’ relationship sa kanilang filiation. It is only the valid marriage that’s required for legitimacy. All of the children have same right against estate of Ron as legitimate children. Suppose legit children concur with legit ascendants. Who are CH? Only the legit children. The legiti asc are excluded and I have already discussed the reason why. Suppose legit children concur with uncles (brothers and sisters of decedent? Only the children are CH. Kung yung

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nanay nga naexclude nila, lalo na siguro ang mga collaterals. Suppose legit children concur with stepmother (father married second time when mother died). Who are the CH? All of them are CH. All the children by the first marriage shall inherit as legit children and the law assigns to them a legitime of ½ of the estate. What is the legitime of the surviving spouse? The legitime of surviving spouse is equivalent to one legitimate child, coming from the other half of the estate. Remainder after legitime of wife is paid shall be the free portion. What’s the conclusion? Habang dumadami ang legitimate na anak, lumiliit ang surviving spouse. Bakit ganon? Kasi nga mas matimbang ang dugo sa tubig. Hindi mo kaano-ano yang asawa mo, Ron. Mahirap lumaki legitime niya na affinity ang relationship kesa sa blood relationship. Though di kayo nakakasiguro na anak niyo talaga kasi yun ang representation ni Misis. Maski di niya anak yung children, hindi naman relationship sa wife nirereckon yung relationship ng legit children. Rather, from the decedent, not from the surviving spouse. The more the legit children, the smaller legitime of spouse. Suppose survived by just one legit child and the spouse? The two are the CH. Legit children do not exclude the surviving spouse from the inheritance. Legitimes: If we follow the formula that legitime of spouse is same as legitime of the child, in this case, the legitime of legit child is ½. Then ½ din yung suriving spouse. If we allow it, nothing left for the free portion. Hindi pwedeng wala kasi baka maya may donation intervivos decedent gave during his life time against which those donations will be charged. Otherwise puro inofficious sila. Para may free portion, may binawasan natural yung surviving spouse. Hindi naman kasi sha kadugo. In such a case, legitime of spouse is reduced to just ¼ of the estate of the decedent so that ¼ will remain as free portion. Suppose surviving spouse concurs with an adopted child. Sino CH? The two of them are the CH. Adopted child will inherit as a legit child. ½ and ¼ pa rin ang inheritance. NB legit children includes legitimated children as well. Suppose Ron and Ani got married. Okay mas gusto naming si Eva. Mas popular ang labtim na ito, sorry Ani. On the 2nd year after celebration of marriage, Eva had an affair with Mr. Pana. Nagka-anak, what’s the child’s status. Presumed legitimate of Eva and Ron. Later. Si ron nagka-affair kay Ani. Nagka-anak din kay Ani. Lalaki yung Eva Pana, babae Ron Ani. Ron hid his affair with Ani, nagmeet yung mga anak nila. Hindi nila alam na may connection sila. Nagkagustuhan nadevelop. Sabi ni Ani, itong anak mo ay mamanhikan dito. Sabi Eva, ron mamanhikan tayo. Pwede ba magpakasal yun? Under the law, presumed anak ni Ron yung anak ni Eva. So magkakaron sila ng relationship dito kay Ani. Later on, natuloy ang kasal. Pwede ba patunayan nung anak ni Eva at Pana na hindi naman talaga sila related dun sa anak ni Ron kay Ani. Back it up with DNA results, pwede bang isave yung validity ng kanyang marriage?

If you allow the son of Pana by Eva to prove that his real father was Pana, what is the effect on his inheritance from Ron? CC works on the basis of legal presumptions and those presumptions will be overthrown only through a procedure provided for in the law. Until and unless that procedure is followed to prove a different paternity or filiation, the presumption will stand. Suppose there are no legitimate children because they died ahead of the grandparent, sino na lang natira? Only the legit grandchildren. X A D Y (1/6) | B C EF GHI

Ang legitime nila ½ of the estate. Kasi legitimate children AND descendants. How will DEFGHI divide among themselves the legitime? Take what their parent was supposed to inherit? In compulsory succession insofar as legitime is concerned, descendants always inherit in representation of their deceased parents. That’s A898 A, B, C gets 1/3 of ½ of estate = 1/6 D gets 1/6 EF get 1/12 GHI get 1/18 Suppose grandchildren die at the same time during a hostage. All the greatgrandchildren inherit by right of representation. Ang problem natin ay pag may natirang asawa si X na si Y. Kung ang natira concurring in the inheritance with the children is Y. Assuming children are still alive  Y gets 1/6 coming from the frree portion. 5/6 na lang free portion. If children are no longer alive.  Ano sabi ni Tolentino? Hindi na kasi kayo nagbabasa. See page 307. Gumawa tay ong problem na pareho sila ng legitime. Kuware tagdadalawa lang sila ng anak. X A DE Y (1/6) | B C FG HI

Di naman pwede that we compute wife’s legitime using the number of descendants kasi nga otherwise, the children will all repudiate so that the surviving spouse will be prejudiced. Illustration: Hindi nila nanay si Y. ABC repudiated the inheritance, they are not to be represented, the grandchildren therefore inherit in their own right. Since the same degree, the legitime will be shared by all of them equally. So DEFGHI each get 1/12 - descendants as a GR inherit by representation EXCEPT in case of repudiation, where they will inherit in their own right not be representation. No regard kung ilan silang anak ng magulang nila. Next nearest of kind. Per capita na sila.

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Prejudice their stepmother by repudiating. Naging 1/12 na yung legitime niya. We should not allow them to use repudiation to prejudice. If we follow Tolentino, that provision on surviving spouse will never be applicable any time. Principle of statutory construction, when framers insert word there, it’s intentional, there’s reason why they inserted it. Pag sinunod natin si Tolentino, “or descendant” phrase will never apply. Problema pati kung iba iba ang legitime ng mga apo dahil iba iba sila ng share. Hindi nagrepudiate lahat ng anak. It was a wrong provision of the code. Dapat, it should be computed on the basis fo the children. Cannot repudiate, predecease, incapacitated. Only of the basis of the legitimate children. Pero magkakaproblem din dun. Mabuti kung magrerepudatie lahat. What if only A repudiates? Pag nagrepudiate si A, yung linya niya, din a magmamana. Burado na sila sa hatian, as if he has not existed. Descendants could not represent their representing parent. Resulting legitime: B ¼ so EF get 1/8 each C ¼ so GHI get GHI get 1/8 each Lumaki tuloy si Y naging ¼ sha. So anong rule? Application of the rule leads us to problems. Napakadami niyang problema. During my early years, I will choose subject I will teach. Isa ako sa pinagpala ng anak ni Carale na nakapagbigay ng ganyang condition. Ako yung namili ng ituturo ko. Hawak ko na PFR Negotiable Corpo Succession. Sa exam lagi ko binibigay yan to test kung naintindihan niyo yung provision ng 892. Ngayon hindi na kasi extensive discussion na sa class.
WAIT So kapag lahat nagrepudiate, may right of representation all the descendants. Pero pag isa lang, excluded totally even the descendants of the repudiating child.

BCDE = ¼ reduced to 1/8 each Reduction ang tawag jan kasi mauubos yung free portion. Preferred ang legitimate children. Di pwedeng magpautang para bayarang legitime ng illegit children.
WAIT: so pwedeng maubos ng illegit children ang free portion?

Illegit children used to be of 2 types: natural and spurious, but under the FC the distinction between 2 kinds had been abolished. Suppose legit children concurred with the spouse. Legitimes: |illegit C A | B W

W gets ¼ B gets ½ C gets ¼ Naubos ang free portion, just enough to pay the legitimes. Baguhin natin ang composition. Dalawa anak sa labas at legitimate. |illegit DE A W | BC

Wife gets ¼ BC (legiti children) get ¼ DE (illegit children) get 1/8 each Supishente pa. But suppose… tatlo anak sa labas. A |illegit | DEF B W

When the legit children concur with illegit children… Who are the CH? ½ to legit children divided among them equally, ½ of the legitimate child is the legitime of an illegit child coming from the other half. Let’s illustrate that: | D
illeg

W get ¼ B get ½ DEF get ¼ each Between children and spouse, who has preference? Legit children has highest preference, has to be paid in full for the legitime before others are paid. Between wife and illegit children, who suffers reduction? Dilemma yan, under the old CC, not a problem, illegit children had no successional rights. Ngayon sino na preferred natin. Wife without blood relation or illegit children. Framers of the code reslves the problem in favor of the surviving spouse. Bayaran natin ang ¼ ni W so the remaining ¼ na lang ang paghahatian nila DEF. The illegit children suffered reduction.

A

| BC

leg

D = 1/8 E BC = ¼ FP = ½ - 1/8(1/4) Observation: Habang dumadami ang illegit children, nauubos ang FP. |illeg BCDE F = 1/2e A |leg F

ILLEGITIMATE CHILDREN
When illegit children survive alone as a class, only them are CH. How much is their legitime, ½ of the estate.

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Divided among them equally, regardless of the mothers or fathers. Parang si Dolphy. Kasi wala pa shang pinapakasalan. Lahat ng anak niya ay illegitimate. So when he dies, he will be survived by illegit children. May anak shang babae, si Sally Quizon. Lou Salvador Sr. isa rin sha sa walang pinakasalan. That’s one reason they don’t want to get married. Para walang bastardo. Panahon ito ng suddenly diba? Legitimate na lang ay yung kay Zsazsa. 2 yung magiging legitimated na anak niya. Parang unfair. Kaya parang ayaw na nya magpakasal. Sayang di ko naisip yung ng maaga-aga. When illegit children survive with legit asc? Leg asc ½ illegit children ¼ divdided among them equally, FP remaining ¼ Illegitimate children with illegitimate parents? Illegit parents are excluded. As they are excluded by all kinds of children. When legitimate children with illegit children? You know the formula already. Suppose illegit child concurs with spouse? Illegit children get 1/3 as their legitime divided among them equally, surviving spouse get 1/3 of the estate as her legitime. Remaining 1/3 is FP. When the illegit children concur with legit asc and surviving spouse: Leg asc get ½, illegit children ¼ among them equally, surviing spouse 1/8 leaving a free portion of 1/8

Suppose buhay pa si XAD. Only X (parent) and W will inherit. Excluded si AD. X gets ½ wife gets 1/4 That concludes discussion on amounts of legitimes.

8 September 2010
Restriction regarding the legitime A904 A872 Must disinherit the CH for the ground provided for in the law. A905 When the testator gives his CH an inheritance less than legitime, the testamentary provisions cannot be given full effect. Testamentary provisions cannot impair the legitimes of CH. If legitimes are impaired, the law directs the payment of legitimes even if such payment of the balance will result to suppression of the other testamentary dispositions. Let’s illustrate through some examples the operation of these restrictions. The testator has 2 legitimate children: A and B Testator | A B Before T died, he executed a will. Giving A = ¼ of estate and B = ¾ of the estate. Ano conclusion natin jan? Paborito si B(unso). If the estate at the time of T’s death is 240M, divide the estate. Distribute the estate. Manresa has given a queer way of solving/approaching the problem. Since T cannot dispose by will the legitimes of CH, then necessarily the disposition in his will can only apply to free portion. Manresa’s solution: When there’s CH
Heirs A B Legitimes 60 60 120 Will 30 90 120 Total 90 150 240

SPOUSE
Suppose SS survives with brothers/sisters/nephews/nieces of the decedent, who are CH? Only spouse is the compulsory heir. She is entitled to ½ or 1/3 as legitime, depending on circumstances of marriage to the descendent. When the surviving psouse was married to the decedent within 30 days in articulo mortis (A900), the legitime of the SS is only 1/3 of the estate. But if married not in articulo mortis, even if 2 days before the death, ½. What is the reason behind reduction in legitime if the SS was married to the deceased spouse in articulo mortis? Nagiging fortune hunter si SS. She should not be rewarded for such an indecent motive. Pero kung hindi in AM but dead day after, maski pa under mysterious circumstances, A900 will not apply. Suppose the spouse X | ADB

Give them their legitimes first, unless validly disinherited. What is legitime of CH in this estate? It’s ½ of the estate = ½ of 240M. L =½E = ½ (240M) = 120 M LC1 = 120M/2 = 60M Since there’s FP, the provisions in the will apply only to the FP.

-

W

W get ½ estate But the FP if not given to anybody through will, A will get the FP Lahat ng CH exclude all legal heirs except SS. SS concurs with inheritance, brothers nieces, nephews.

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FP = Estate – Legitime = 240 – 120 = 120 M ¾ and ¼ of 120 M This is the Manresa solution. Pero maraming hindi bilib jan, isa na ako dun! Si Baviera saka si Balane din. Binigay na nga legitime, laki pa nadagdag. DLC says: When testator provides that, that’s the intention of testator. Including the legitime already. If that ¼ is smaller than the legitime, then we have to pay additional amount to complete the legitime under A906. So pano solution jan? A = ¼ (240) = 60 B = ¾ (240) = 180 So we have to check, naimpair ba legitime niya? Hindi kasi ang legitime ay 60 rin naman. Therefore, we’ll have to respect the disposition. Tolentino has a discussion on the Manresa solution. DLC: The Manresa solution will only apply to legacies and devises NOT in institutions. Testator has three children ABC and surviving spouse. Testator | A B - Wife C

San manggagaling yung ibibigay natin sa kanila? Kay A ba or W? Who suffers the reduction? Later on we’ll discuss that “he who received the FP will shell out the amount needed to complete the impaired legitimes of CH. If there are more than 1 heir who received a portion of the FP, all of them will suffer a pro rata reduction.” Since the legitime of A is only 40, he got 40 from the FP. Wife got 20 from the FP. Two of them will have to share the burden to complete BC’s legitime pro rata. A = 80/100 (20) = 16 W = 20/100 (20) = 4 20 being the value needed to complete BC’s legitime. *Complete the table using these values.* In response to a question… |Illegit C T – W | AB

Will: Legacy of 10 M to D (favorite nephew) E = 240 Distribute first the legitime we have to pay because that would determine the FP from which the legacy will come from.
Hei r A B W C Legitime Intestacy ….

Disposition in the Will A–½E BC = ¼ E W=¼E Estate = 240 360 in the circle is arbitrary. Marami kasi shang factors.
Heir A B C W Will 120 30 30 60 240 - 16 + 10 + 10 -4 Total 104 40 40 56 240

60 60 60 30 210

FP will be 240 – 210 = 30 M Since 30 M yung FP mo, that will be the source of 10 M legacy. 30 – 10 M = 20 M How do we proceed with 20M? Intestacy. Divide the 20 M in such a manner that they get 2 parts each while C only gets one. Basta 1/7 it’s ahead of you. But suppose naging 2 yung illegit children. Kasali na si E. So magdagdag us ng heir dito. 30 din. D gets nada because no more FP left. Sorry na lang you. Hindi lang legacies tinatamaan. Damay din minsan ang CH. Yung mga illegitimate children. Kung napakadami nila this much dapat, but since onti na lang natira sa FP (from which their legitime will come from), their legitimes will be reduced. Forget about the Manresa solution. It’s wrong. If we follow that, it will render nugatory the provision of the Code on preterition. Bangga yan dun.

Then check whether the total legitime was impaired L = ½ (240) = 120 LC1 = 120/3 = 40 Wife gets 40, too Hindi pwede to kasi naimpair ang legitime ni BC tas sobra mashado kay A and wife. Since BC will receive less than their legitime, they are entitled to a completion of their legitime.

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XV. PRETERITION
A854: If you read it, a phrase is missing there. Omission is a transitive object. Omitted from where? Dati kasi “omission from the will” yan. So how did SC interpret 854? Now it means “omission from the inheritance” When is a CH omitted from the inheritance? It should be total omission from the inheritance. When does total omission happen? When a CH will not receive from the testator anything by will. By intestacy or by advance from his inheritance. What is advance from inheritance? Donation IV given to CH during testator’s lifetime is an advance on the inheritance of that CH-donee. If T had given donation IV in favor of CH but totally omitted him from the will, nothing from the will, the CH cannot cry/complain that he was totally omitted. Ano’ng totally omitted, nakakuha ka nga ng advance diba? If you look at standard English dictionary, there’s no such word there. Kastila yan. Englishcized na lang. In the interpretation of Old CC, preterition is limited to total omission from the will because of inadvertence or wrong assumption. E.g. Yung isang anak ng mayamang royalty in England, sumama sa isang expedition to East Indies looking for spices, di nakabalik. Sabi siguro ng magulang, patay na. So on that assumption, in his will, he gave all his wealth to remaining children and nothing for the missing son. In fact, he was not even mentioned in there. Kaso biglang lumitaw after parents’ death. Oy sandal yung mana koooo. Pag mana na ang usapan, lilitaw na. Eh kaso wala sha sa will. That’s preterition under Old Code. Effect  annul the institutions made in the will. That’s the effect also in A854. The concept of preterition has changed under A854. No longer limited to total omission from the will, but now total omission from the inheritance. Who may be preterited (i.e. subject of preterition)? Only CH. Yung illegitimate child? CH ba yun? YES. So may he be the subject of preterition? YES How about the surviving spouse? CH? YES May he/she be preterited? NO, because not all CH are subject to preterition. Only CH in the direct line may be preterited. (Balanay v Martinez) How about an adopted child? Is he CH of the adopting parent? YES May the adopted child be subject of preterition? YES (Acain v IAC) Bakit legitimate children pwedeng subject of preterition? CH in the direct line (Aznar v Duncan)

What is the effect if a CH has been the subject of a preterition? The effect is annulment of the institutions in the will. However legacies and devises shall be respected insofar as there are not inofficious. What conclusions can you gather from that? • If the testator executed a will but all dispositions are legacies and devises, the issue of preterition is immaterial. Kasi maski meron, wala naming iaanul, walang institution in the will, everything is legacy. • Also, there can be no preterition if decedent left no will. • Suppose no CH: pwede ba magkaron ng preterition? Lalong hindi! Illustrate: Suppose Ron died a bachelor, no legal or illegitimate issue. Wala ring parents, asawa. Sino lang natira? Yung kanyang mga kapatid. How many siblings does he have. Bigyan nating apat na kapatid si Ron dahil only child sha. He gave all his properties to his bestfriend Eva. Baka maging adulterous relationship. Bestfriend niya si Pana (eh sir mas adulterous) ang kanyang constant companion. So executed his will giving all his worldly possessions to Mr. Pana. Can the siblings complain that they were the subjects of preterition? NO, because they’re not CH. Hindi nga sila in the direct line. Collateral pa sila. Therefore, since they cannot complain of preterition, the will shall be respected and everything that Ron left behind will be given to Mr. Pana. Illustrate one with preterition: Let’s go back to the case of Nuguid v Nuguid. A | B C BC were old maids. Wealthy B gave everything to only sister C. Bakit ko bibigyan si Mommy mamamatay na rin lang naman sha. Magkakaproblema lang sha sa tax pag namatay sha so kay C na lang. Was C preterited? It depends on whether she was totally omitted from inheritance. • FIRST QUESTION: Will A receive something from the will? Nothing, not even a single kusing. • SECOND QUESTION: Receive anything by intestacy? No intestate portion from which A can get a share in the inheritance. • THIRD QUESTION: Is there an advance through donation IV? Nothing If we answer NO to all, there can be preterition. What is the effect? Annul institution of heirs. Will: Institute C to the entire estate.  effect: annulled Legacy to X in 10M  inofficious if exceed FP Estate of 240 M Everything will now go to A which is 120 M FP = 240 M – 120 M = 120 M  charge the 10M legacy to the maid. Inofficious ba? Nope. After legacy, 110 remained in the FP. It goes to A, too. Sir bakit nawalan si C? Hindi po kasi sha CH. Excluded pa rin ni A si C. She’s not a legal heir.

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Ano effect ng preterition? The entire estate went to her mother. Ayaw bigyan ang nanay. But because of preterition nabaliktad. Early in our discussion, I have pointed out: institution on the one hand and legacy and devise on the other. There is an important for you to know the difference between the two and the distinction will be used in preterition. Mai: As long as there’s FP, there’s no preterition. (?) So kapag may binigay na kahit onti lang… icocomplete lang yung legitime niya under 906. Pero hindi preterition, so respect pa rin ang institution. Coming from whoever received the free portion. Presumptive legitime first appeared in the old marriage law. Promulgated during American occupation. Kalokohan kasi yang presumptive legitime. How was it defined? Legitime children are supposed to receive if we assume that parents die today. Since that is presumptive legitime, it’s subject to adjustment later on (e.g. naghirap ang mga magulang later). Hindi ko alam kung ano nakain ng FC commission at ibinalik nila yan. Dun sila sa matatandang batas sanay kaya ibinalik nila. Kaya nga tinanggal yun nung 1950. Nagkaron tuloy ng ground si Kris Aquino. Ixara: If the advance donation is less than the legitime, there will be NO preterition. That’s why Manresa’s solution is incorrect under the Philippine system. That’s why Solano v CA is incorrect decision penned by Ameurfina Melencio-Herrera. SC corrected itself in a subsequent case, not in your list. Babagsak sha. But she’s the valedictorian of our class. Sereno’s class is debacle, no one landed in the top 20. Suppose Ron disposed everything through legacies and devises, no institution. Will there be preterition? NO kasi nga nothing to annul.

| C

| E

| D (Sabrina)

Sabrina is daughter of driver and labandera. Lolo A donated inter vivos to E. 10 years old namatay sa dengue. Ano yung nasa estate ni E when he died? Hacienda donated to him by Lolo A. Who inherits it then? Only one compulsory heir: Sabrina. Hacienda now goes to mother as only CH entitled to inherit. So ano na sasabihin ni D kay A? Kayo na po ang labandera at driver naming. Pag namatay si D, kay F and G mapupunta yan. There’s something wrong with that. The hacienda used to be ours!  This is what sought to be prevented by reserva troncal. In the hands of D, the hacienda is reserved. When D dies, property does not go to F and G but to family where property came from. From the diagram on the board, there are four parties to a reserva. 1. Source of the property – mediate source – A 2. Prepositus – E 3. Reservista – D 4. Reservatario - A For reserva to arise, the parties must be LEGITIMATELY RELATED to each other. When one party is illegitimately related to the other. Hindi pwedeng magkaron ng reserva. How about if E is the adopted child? Suppose E is adopted by C and D. Pwede ba magkaron ng reserva? Sino ang natural parents ni E kung adopted sha? Napunta sa natural parents, will there be reserva. In determining reservatario, the reservatario must be relatives of prepositus, hindi rin babalik sa source. Applying the ordinary rules, defeated yung purpose. OPEN QUESTION. GO BACK TO THIS LATER. Who may be the SOURCE? For there to be reserva, the source must be ascendant of prepositus OR brother or sister of prepositus. Illustrate that: A sibling of B – C | D A donates to D. D dies. In the hands of C, is that property reserved? NOT reserved. Because A is not an ascendant BUT collateral relative of B. Ang pwede lagn maging source in reserva is ASCENDANT or BROTHER OR SISTER OF PREPOSITUS. Aunt/uncle may not be considered an ascendant. Check the definition in the relationships part of the code. They are collateral relatives, i.e. come from common ancestor. Ascendant lang so dapat direct line lang. E.g. A | B

13 September 2010

XIV. RESERVA TRONCAL
May be the last remaining feature of property entailment under the Old Civil Code. Entail a property within a family. There were many reservas in the old CC. Reservas and reversions. Original draft of NCC did not have reserva troncal but smart aleck congressman from visayas reinserted it through an amendment through floor on congress. Kala niya alam niya yung ginagawa. While 891 is there, there were a lot of companion provisions that were not restored. All principles that grew out of reserva troncal are deemed reintroduced even though hindi sha nakasulat. A -B FG

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| C If A donates to C, may potential reserva ka na. A is an ascendant of the supposed or potential prepositus. Dapat legitimately related therefore if B is illegit child of A and recognized C as his illegit grand child, there can be no reserva. How about a brother or a sister, for there to be reserva, may the brother or sister of the full-blood or must the brother of the half-blood. E | A F G | C | B D H

A | B

| D

C

A gave D irrevocable beneficiary P10M insurance. In the hands of C is the 10M reserved? Anifairs says NO because P10M proceeds did not come from A. Nagbabasa sha ng Tolentino. Kanino nanggaling from the insurance company. It was not donated. It was paid by insurance company in compliance with aleatory contract of insurance. Hindi libre yung dahil bayad ang premium non. A is not the source fo the P10M, he is only the source of the premium paid, if at all. NB for there to be reserva, the property should be acquired by prepositus from the source by gratuitous title. Donation and inheritance whether testamentary or intestate. Dalawa lang ang gratuitous acquisition. PREPOSITUS Must either be descendant of mediate source OR halfblood sibling of mediate source. When a property was acquired by his descendant or brother or sister gratuitously, may the descendant/sibling-donee dispose the donated property? YES, in the hands of that descendant, the property has not restriction as yet. Hindi pa sha reserved. Pwede pa niya ibenta. Pwede niya sirain kung gusto niya. In his hands, property has no restriction as yet. What if sold to a 3rd party, wala na amamanahin reservista to prepositus? How about the proceeds of the sale of donated property? binenta tas nilagay sa bank yung P10M na pinagbentahan. Is there a reserva on the proceeds on the donated properties? NO there is no reserva. It’s constituted on the very property that was gratuitously acquired, it does not transmit. Proceeds do not substitute for the property. it’s not carried over to proceeds or substitute of the property donated. Reserva ataches only to very property received gratuitously by the prepositus. Not attach to the substitute property. Prepositus becomes the arbiter of the reserva. If he disposes before he dies, no reserva arise ever. BUT if choose to not dispose, reserva will arise. Sha yung arbiter of the reserva. CK, what if prepositus improves the property? Apply accession rule: owner of land owner of all improvements. Iba ang rule for the reservista. RESERVISTA Under the law, reservista is “another ascendant” of the prepositus. A | B

In the hands of B the property is reserve, for all the relative of D from the same property. Ano sabi Tolentino? Ano sabi ni JBL? Bull shit. Pag full blood brothers, pareho sila ng relatives. Purpose of RT is to bring a property back to the family where it used to belong and ahs gone astray because of accident i.e. preposterous dying without any issue. Property getting out of the family. In the hands of B, property has not gone astray. It’s still under the family of the property of the source. Legiitmate F | A – B | C half blood brother. G HI | E D

Namatay si A, biyudo si B nagkaron ng 2nd wife with D and child as E. C donated property to E through gratuitous title. Namatay si E without legal issue so nagmana si D by operation of law. In the hands of D, hast the peropty gone astray? YES, Hindi naman sha kaano-ano ni C. not blood relative. Step mother lang yan. Affinity lang sila. Left the property of the source. Kaya may reserva kaya go back when the reservista dies. Iba ang opinion ni Tolentino. DLC agrees with JBL, Ricardo Puno and Balane (sabi ni Cams). Illustrate the application of that principle through concrete problem: Ron bought insurance on his life for P5M double indemnity in case of accident. He designated as irrevocable beneficiary a favorite grandson by one of his children. Namatay si lolo Ron by accident so insurance company paid P10M to 3 yo grand son. Namatay yung father ni Ron son of donor grandfather. Namatay din si apo. Sino nagmana ngayon ng P10M insurance? Manugang. In the hands of daughter in law of Ron, is the P10M reserved?

| D

C

A donated through gratuitous title to D. In the hands of B, is the property reserved? According to Tolentino, the

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property is reserved. Ano sabi ni JBL Reyes and Puno? In the hands of B, property did not leave the family. There’s no occasion for us to apply the RT to reserve the property. Instead proper interpretation: “another ascendant” “another” not limited to ascendant other than mediate source BUT ascendant belonging to another family. It’s only then that the property will go astray. In case of B, hindi naman nawala dahil tatay niya nagbigay. DLC agrees with JBL and Puno. How must reservista acquire property for there to be reserva? Through INHERITANCE BY OPERATION OF LAW. Di pwede testamentary disposition. Because it’s not inheritance by operation of law. ANo yung by operation of law: 1. Compulsory succession 2. Intestacy Does this mean the legitime of reservista A | C B | E D

Q

| G S | T Rsibling

| P

| N

U

-

C donated through gratuitous title to P. In the hands of N, is the property reserved? YES. For whose benefit? Kanino na pupunta property? We count degrees from prepositus. “Double consanguinity” or “double relation test”  related by blood not only to the prepositus but also to the source of the property. within 3rd degree from prepositus by blood and related by blood to the source. Burahin na natin yung mga hindi kasali. Among the remaining, direct excludes collateral. Among those in the direct, descending excludes ascending. Descending and ascending, nearer excludes more remote. What if si A yung source instead of C? He cannot complain kung bakit kay C napunta kasi ng pinamigay na niya. Kung may anak lang si P, dun pa sa apo niya napunta yun. (Nearer excludes more remote) A C | D G | H B | F E

A donated gratuitous title by E. D must acquire title by operation of law. CH (refers to legitime) and intestate succession. Eh pano kung yun lang talaga yung property ni E? Ano ang reserved, entire property OR just half of the property (since cannot impose burden/charge on the legitime)? Enitre thing is reserved. Testator is the imposer, in reserva troncal, it’s the law that imposed burden or charge. Legitime na niya, nareserve pa. Kaya nga dapat tanggalin yang reserva troncal na yan. Patalo yung congressman from Visaya na yan. Di ba kawaa naman si D nareserve yung kanyang legitime. Gumawa ng will si prepositus, died single 20 years old and with a will. Sabi ni E, I hereby institute my mother as my sole and universal heir. Namatay bigla si prepositus, nadengue pa. Bumabagsak ang kanyang platelets. St. Lukes sa The Fort. Casualan lang na nag-uusap na mamatay ka na. Ganun ba, so gagawa na ako ng holographic will. Only one property left by E (farm donated by grandfather). Is there a reserva constituted on the property considering there is a testamentary disposition? Yung kalahati lang ang nadispose by will. Yung kalahati lang naman ang legitime na nadedefeat ng reserva troncal. Reserved insofar as half. Naacquire niya not by OPERATION OF LAW, but by testamentary disposition Last case decided by SC on reserva troncal is Vizconde Massacre penned by VV Mendoza who isn’t civilist but political law lawyer kaya di niya nakita yung RT angle. RESERVATARIOS Reserved for the relatives within 3rd degree of consanguinity. 3rd degree from whom? From prepositus. A B | Csource D | F E H | J I K | M L

Who are entitled to the property donated by A to F? A and B, direct line excludes collateral. But suppose AB also dead now. Si C G H na lang natira. Si G na ang magmamana since CH sha ni E. What if G also dead? C and H na lang. Pareho sila ng degree. Between the two of them, H inherits under A1009 – De Papa v Camacho: Descending collateral excludes ascending collateral. What if may half-blood relative? They can be reservatario, provision in CC which says that half-blood relative get half share of full blood relative i.e. intestate provision. Applicable to RT in Padura v Baldovino. Suppose patay na rin si H pero may anak na si I na lang buhay. Can I take the place of H so that he will get the 3rd degree and exclude C in inheritance? NO, Florentino v Florentino: Among reservatarios, there is representation BUT representative must still be within the 3rd degree. A C | D G | I B | F E H | K

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May K take the place of H? Yes, because she’s still within the 3rd degree. So kung patay na rin si G, ang natira si KIC, natural si KI ang mag-inherit. And C is in the ascending. That’s 1009 as applied in De Papa v Camacho. When will it go to reservatario? When reservista dies. What if reservista is vampire who wouldn’t die? Before reservista dies, what may reservista do with the property? May the reservista give the property by will? In the earlier cases, SC said reservista cannot do that because not part of the estate. That ruling had been abandoned. Reversed. The rule now says reservista is now the owner of the reserved property, but it is subject to a resolutory condition. When she dies, reservatarios still qualified to inherit, reservista loses the property and therefore if she will the property in LWT therefore it cannot be implemented/given effect. BUT kung ang haba ng buhay ni reservista tas ubos na ang qualified reservatario, the reservista becomes absolute owner of the property. Provision in her will will take effect. If ibinenta ng reservisa during her lifetime, what is status of the sale? Valid but subject to resolutory condition. Nemo dat quod non habet. Unfortunately if property is subj to reserva but covered by TCT and transferee did not know about reserved character of property, wil the 3P party’s interest defeat the reservatarios? In a case decided by my professor Flerida, Sumaya v IAC. Property was reserved but no one knows it is such so hindi nakatatak at the back of the title. Reservista sold the property. Binabawi ngayon from 3rd party buyer. But I’m innocent purchaser for value. Ano sabi ni Fleri Romero? You ought to know that it is reserved by looking at documents filed with the register of deeds. Gusto ko ibagsak yung teacher ko sa land reg. Assuming it’s there, how would I know I’m not lawyer yung lawyer nga hindi yan alam. I’m not supposed to go beyond the title. Reservistas are heirs in waiting. They novena “mamatay na sana” inchoate right – ownership subject to suspensive condition. What is their right? Since that is the extent, he can only sell that interest subject to suspensive condition. Yung buyer ngayon ang magnonovena na mamatay na si reservista habang buhay pa si reservatario. Dahil kung namatay si reservista na patay na si reservatario, hindi sha naging reservatario at all.

H

A

| C

B

D donated Lot 1 to C. Now H donated also Lot 2 to C. those 2 lots are same size, adjacent to each other in the subdivision and more or less same value. A died, shortly after him, C followed. Those 2 lots therefor were inherited by B by operation of law as the only heir. H will not inherit because collateral. EDFG won’t inherit because excluded by B who is nearer in degree. DEFG in direct line but are more remote so only B will inherit all properties left behind by C. Now C left behind 2 properties, lot 1 and 2 for same value. In the hands of B, are those two lots reserved? Yung lot 2 hindi uubra kasi galling sa uncle not being a descendant, definitely not. About lot 1, is the entire lot reserved? Operation of law, so how did B acquire lot 1, by operation of law both as CH and as intestate heir. Therefore, entire lot 1 is reserved. Lot 2 is not reserved because did not come from ascendant/brother or sister. Maliwanag yun. Ano ang nareserva? Lot 1 because it came from an ascendant. It was inherited by C prepositus and all of it was inherited by B by operation of law. Intestate heir. Suppose C left a will. In his will, he instituted mother B as sole and universal heir. Nung mamatay ngayon sha, mayroon bang reserva. Is lot 2 reserved? NO way. Lot 2 will never be reserved. How about Lot 1? The entire two lots will go to B, pero different concepts. One as testamentary heir and CH so walang intestacy (all properties disposed by will). Therefore b will receive legitime as CH and receive the free portion by way of testamentary succession. ½ legitime and FP is also ½. The FP that B will receive by will is not subject to reserva. Which of these two properties is acquired by FP and which property is acquired by legitime? Sabi ngayon ni B. Itong lot 2 is half so yan ang aking legitime. Yang Lot 1, yan ang aking gagawing testamentary disposition by will. Acquired by legitime. If you allow B to do that, mawawala ang reserva. If we allow him as the ½ of the estate acquired by her by will, that property will not be reserved. If we allow her to treat lot 2 as acquired by legitime, it will not be reserved because lot 2 did not come from an ascendant (H). if we allow B to do that, she will become the arbiter of the reserva. Sha magsasabi kung may reserva or wala. Treat or classify properties according to her discretion which cannot be allowed. She cannot do the classification of property herself, otherwise, she will become arbiter of the reserva. Sino ba dapat ang arbiter ng reserva? Prepositus lang dapat yun. What to do now? 2 options. 1. Magkano ba legitime? ½ E. Gawin nating legitime yung lot 1, therefore entire lot is reserved. Kawawa naman si B kasi we imputed lot 1 as legitime, naging reserva na lahat. Ang tawag dito: “reserva maxima” – maximize reservation of property by imputing the property subject of reserva to the maximum amount that may be covered by that part inherited by operation of law. Isinaksak ang lot 1 dun sa pwedeng saksakan ng legitime. Unfair ito.

15 September 2010
Absent si Sir. Yaaay!

20 September 2010
Administrative matters: Make up class kasi out of country on 30th, back on the 4th. Nov 3 ang enrollment up to 5. Discuss among yourselves between 18 and 22. Suppose A married B and has a son C. D | E F | G

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2. Reserva minima – each and every property in
the estate of prepositus shall be considered to have been acquired half by legitime and half by testamentary disposition (will). Therefore, lot 1 is ½ legitime, ½ of lot 1 is testamentary. Then ½ of lot 2 is legitime and the remaining half of lot 2 is testamentary. Lot 2 will never be subject to reserva because did not come from ascednat. Only lot 1. How much of lot 1 acquired by operation of law (yung ½ of legitime lang). therefore only ½ of lot 1 is reserved applying the principle of reserva minima. Ngayon, gugulo ang computation kung hindi sha instituted as universal heir. E.g. B is instituted to ½ of the estate. Kalahati is deemed to have included her legitime. The other half is FP by intestacy. Mas magugulo ito kung hindi institution but devise. E.g. to my mother B, I give ½ of Lot 1. Iba na naman ang solution niyan. But in all those testamentary varioations, all you have to do is apply reserva maxima or reserva minima to find out what part of property that is reservable was acquired by operation of law. That part acquired by operation of law is part that is reserved. What do we follow in the Philippines? SC is not yet given opportunity to rule which is applicable. Maxima or minima but all writers in Phil Civ Law believe that reserva minima is the fairer of the two. Maliwanag Malabo? Tolentino has a good example on application of reserva maxima and minima. Who wants to discuss the homework? Reserva adoptiva.

or by testamentary succession. Take notein such a case, it’s not disinheritance but disqualification. In disinheritance, testator/decedent has a choice whether to keep CH as an heir or to deprive him of his inheritance. To exercise that choice, testator will disinherit that CH. Doon sa FC, hindi disinherit, disqualified by law. Unless you can show a provision elsewhere, either in this code or other special laws, then there are no other grounds to dishinerit children or descendants. 2.To disinherit ascendants – Art 920. 3.To disinherit spouse – Art 921 How is a CH disinherited effectively? Only one way to do that. Through a valid will. Lolo at lola ni Mariel. Imagine kinasal sha nang hindi sila nasasabihan. Pwede bang habang iniinterview si Lolo ni Mariel bigla niya sabihin “Mashado sumama loob naming, so tinatanggalan naming sha ng mana.” Nabroadcast sa buong bansa. Is that disinheritance effective? Not an effective disinheritance. Noncupative will/oral will is not recognized in the Phils. Kailangan gawin through a valid will, either notarial or holographic. Eva Carino, the Igorot mother, will also disinherit Robin, what should she write in the will for the disinheritance to be effective? Not enough to write the desire to deprive of inheritance. Not sufficient for testator to simply write in his will not to leave anything to his CH. For disinheritance to be effective, T must specify the legal cause for the disinheritance. Kailangan ilagay doon kung ano yung cause/ground for disinheriting a CH. Pag di nakalagay yung specific cause for disinheriting a CH, what is the effect? It is ineffective. Must the testator escape the ground as written in the law? Hindi niya kailangang kopyahin kung ano yung nasa batas. The specific act ang dapat niyang ilagay. E.g. there was this wealthy widow who executed a will disinheriting her oldest daughter on the ground that eldest daughter refused to cook for her her favorite pochero. Nagkwento pa na dati dati daw ipinagluluto sha, pero lately despite her repeated requests na ipagluto ng pochero, hindi sha pinagluluto kaya masama ang loob niya at dinisinherit niya. Ano kaya meron dun sa pochero? Ba marunong si Ani, we will ask her to cook it. Yan ba yung may sawsawan na inihaw na talong at vinegar. Hindi kayo marunong kumain. Yung isa pochero and cocido. Different sauces! Cocido is tomato sauce and olive oil. Pochero is the talong with vinegar and tons of garlic. You don’t know. Malamang madisinherit din kayo. That act complained about by the mother if that falls in any of the grounds enumerated in the law, that will be a valid cause for the disinheritance of the daughter. BUT if the act complained of the mother does not fall in any grounds enumerated in the law, then disinheritance is ineffective. Oh sige, inilagay na ni Ron yung brillante sa tenga. May protocol yan. Pag sa kaliwa or kanan. Pag sa kanan. Sa ibaba ka po naghikaw. May hidden metal. Lagi kang tutunog sa airport. Nagalit nanay ni Ron. Punyeta ka bat ka may hikaw?! Tatanggalan kita mana kasi naghikaw

XVIII. DISINHERITANCE
What do we mean by this? Earlier we learned that system of legitimes, where a part of estate of decedent is reserved by law to CH. The testator cannot impose any condition, any burden on the legitime of his CH. May he deprive his CH of legitime. Yes. A decedent may deprive his CH of their legitimes through disinheritance. Ano naman kaya ang ground to disinherit or deprive a CH of his legitime. Under A915, a CH may be deprived of his legit for causes expressly stated by law. Underline “expressly stated” Decedent not allow to disinherit CH for ground not expressly stated in the law. For disinheritance to be valid, be able to point your finger to a ground written in the law. If you can’t, disinheritance must be ineffective. Nasan yung mga grounds? 1.To disinherit children and descendants, whether legitimate or illegitimate – Art 919. There are no other grounds, exclusive yan. But there are special laws which disqualify a CH from inheriting e.g. FC. In case of legal separation, the guilty spouse is disqualified to inherit from the innocent spouse whether by intestacy

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sha. Is that a valid ground to disinherit Ron? We’ll look at A919. Find out if the act complained of falls in any of those grounds enumerated in law. Refusal without justifiable cause to support the parent/ascendant. Suwail na anak. May student na makitid mag-isip. Nagtanong, bakit pa magpapamana kung kapos pala? Maikli pisi mo ng analysis! Dati mahirap pero tumama sa lotto. Ngayon anak gaganti ako sayo anak, wala kang mana! May the heir subject of disinheritance deny the existence of ground complained about? Yes. Who has burden of proving when heir denies the existence of ground for inheritance? Rest upon the other heirs of the testator. Those who want to enforce the disinheritance. All the disinherited heir will do is simply deny. Kung biglang may proof pala sila, Ron will now present proof to the contrary. If disinheritance is ineffective, what is the effect? Suppose T left nothing but a disinheriting will. The will he left behind had only 1 provision. A provision depriving his CH disinheritance. Una, yung legitime makukuha ba yun ng CH? Hindi kasi nga yung A915. How about the FP, makakakuha ba sha dun? Hindi na yun legitime. Hindi rin sha makakakuha ng share kasi nga the effect of an effective disinheritance is TOTAL EXCLUSION/DEPRIVATION OF THE HEIR’S inheritance. Pwede bang ilagay ng testator sa kanyang will, I hate Ron so much because he refused to give me support those times I neded support more therefore, I am reducing his inheritance by half. Pwede ba yan? NO because law does not recognize “galit ka lang ng kalahati” Hindi pwede ang major major *grabeng grabe* It’s either galit or hindi galit. Symbol na lang, wala nang salitaan. So so. Ano ba yung ginagamit niyong salita? Keri. In my radio program, the listeners send txt msgs. Nasisira ulo naming dahil di mabasa ang text. Lintek ang abbreviation. Parang crossword puzzle solving. What is this word. Anger/hatred that T has must be of such nature to compel that T to do the ultimate act of depriving his CH of inheritance. Suppose the T had already executed a disinheriting will, may the T change his mind later on? Of course, will is revocable anytime before the death of the T. he may change his mind before he dies. But suppose it’s the other way around, before he executed the disinheriting will, the T had already a prior will wherein the T distributed in detail all his properties to named legal and CH. One of the heirs named in the will was this CH who was disinherited will in the subsequent will. We know that because of that disinheritance, the CH will not receive his legitime. Not receive any share in the intestate part, how about the earlier will which gave him testamentary deposition and first will was not revoked by the disinheriting will executed subsequently.

Will CH disinherited in the disinheriting will get inheritance in the earlier will? NO kasi nga total effect ng disinheritance, pati testamentary disposition given in prior will is also revoked. Suppose after executing the disinheriting will, the T executed a 3rd will giving the disinherited heir a legacy of 1K. what is the effect of that legacy? Ano effect? Reconciliation. Pinatawad. Hindi uubra na meja meja lang ang galit. So when he gave the legacy of 1K. what is the effect of reconciliation? A922. A subsequent.. . How do we know whether there is already a reconciliation, that he has already pardoned the offending CH? It’s a matter of evidence but there is recon when T had forgiven the offending heir so as to restore him back to all his rights. E.g. Galit na galit Ron’s daddy kasi suwail at naging callboy. Ground yan! Dishonorable/disgraceful life (no. 7). What is dishonorable about that, I’m happy! So lahat tayo as abogado pwedeng madisinherit. Lawyer and police may be disinherited. Marami shang kliyente rito ah. Dinishonor sha ng kanyang mother. Baguhin natin yung ground. Yung father ni Ron, widower. When wife has been convicted of concubinage and adultery with father’s. Ron goes to videoke bar. Tinetable. Takehome later. Nakita ng tatay ni Ron, nainlab tas pinakasalan. But one night, nahuli ni tatay yung misis in bed with Ron. Nagkukwentuhan lang po kami. Iba spelling ng kwentuhan nio. Father filed a case of adultery against ron and his stepmother. Final judgment. Covered ng probation kasi maliit lang ang kulong jan. So niligawan niya yung tatay asking for apology. Nako kung ang diyos, nakakapagpatawad, bahala na ang diyos sayo. Ano tawag sa Tagalog dun? Bulaklak ng dila. Kasi you want to be polite. Hindi naman pinapatawad but the words will somehow be polite to the person asking for forgiveness. It’s a matter of evidence won the offending heir has been forgiven. It must be of such nature that the T has restored the offending heir back to all his rights as a CH. Meaning of reconciliation in A922. Supposed the disinheritance of Ron was effective. Talagang adultery with the stepmom. Ron will not get inheritance, so who will get what he’s supposed to inherit. If he has children, then his legitimate children takes his place i.e. representation. That’s A923. Eh namana ng anak ni Ron. Si Ron ang gagamit. But the disinherited parent shall not have usufruct/administration of property which constitutes the legitime as well as inheritance. GROUNDS for CHILDREN 1. Attempt against the life - Found guilty must be by final judgment. Unless convicted with finality, presumed innocent for which he shall not be penalized. 2. Require a formal complaint? How about accusation of crime given verbally captured by media and aired over by broadcast medium? E.g. si Gonzales the deputy ombudsman. Binigyan ko nga P150K yan eh inaccuse of birbery. Sufficient ba yan kung ang nagaaccuse eh anak? Must there be a formal charge?

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3. 4. 5.

E.g. nagtestify lang yung anak sa charge, became inevitable for child to declare under oath a fact that constitutes an accusation of crime against the father. Acccusation must be found groundless, who must find that? Court/official proceeding that will declare accusation groundless. Nasa comment yan. Nadiscuss na natin yan. Walang problema jan.

F4 | G5 – great grand nieces/nephews So kung ayaw niya pamanahan si C, pwede kay companion, Boy Abunda. Who was that FBI director who had a companion. Yung flag nasa companion. Then he has to make will to anybody of his choice. Valid yun because he has no CH. A person who has CH may give everything to anybody of his choice. Entire estate is free. Pwede ba reklamo mga kapatid? Hindi pwede kasi hindi CH. Suppose ang ginawa lang niya ay… Mejo galit si Ron kay H kasi lagi shang inaasar. Galit ako sa punyetang yan. So Ron made a will with only 1 provision. None of my properties shall ever go to my brother H. Did not specify a reason. Will the brother H inherit when Ron dies? No, hindi naman kailangan idisinherit ang brother kasi CH lang ang dinidisinherit. That is called an “exclusion.” A legal heir may be excluded from inheritance by the testator. No ground is necessary, a valid will alone is sufficient to exclude him from the inheritance. Later on when we reach intestacy, you will find out who the legal heirs are. May isang heredero jan na di pwedeng iexclude from his inheritance. We meet again on Wednesday: Legacies and devises, just read the comments. They are considered as insituttion (specifically secondary institution of heirs) Go straight to intestacy on Wednesday.

6. Define “maltreatment” is cold treatment? Hindi
sinasagot ang text, phone. Walang hi hello etc. deadma si mommy. Is that maltreatment? Some writers WON maltreatment viewed from POV of T kasi sha ang nasasaktan. Pano yung pochero. Is that maltreatment? Yes sabi ni Baviera. Kaya kapag nagsabi sha ng gusto niya ng ganito, bigyan niyo na! To a testator, pwedeng disgraceful ang mga bagay noong unang panahon e.g. showbiz Civil interdiction is a penalty imposed by RPC, not SPL. Crimes committed as penalized in the RPC.

7. 8.

GROUNDS for PARENT 1. Abandonment meaning in FC. 3 months sa FC failed to communicate or provide support to tell other spouse the whereabouts. May 3 months ba dito? Maybe we can use if there’s definition in the child abuse law. Maybe we cannot use that as a rule unless show that child abuse law is curative to fill in gaps. Ibinugaw. Pano kung si Ron ang ibinugaw? May dilemma tayo jan. under a915, grounds expressly stated by law. Dito naman hindi kasali ang son, grandson. Pwede bang lalaki ang ibugaw? Wala pang kaso yan, but writers say, nagkamali lang kasi at the time na ginawa ang CC, hindi pa raw uso ang callboy. Panahon pa ni Alex the Great, Julius Caesar. Yun ay mga companions lang. even Achilles, he has a relationship with a cousin. Dun sa Troy sha yung pinatay. Companions of the same sex nila. Braveheart crown prince. James I, son of Mary Queen of Scotts, cousin of Elizabeth, sa kanya pinangalan ang KJ version of Bible. While successor to Elizabeth the 1. Shows my love of English history. Unheard of daw prostitution of male during time drafted or promulgated during the law. Ngayon hindi na sha unheard of. Maybe we should adjust interp of provisions in order to give life to it. Interpret in a way that will give life to each and every word. The letter that giveth life, not the interpretation. NB Only CH are disinherited. For that disinheritance to be effective, it has to be done in a valid will. Suppose Ron remained a bachelor, did not marry. No gf, meron shang companion. Naubo ka sir. Where a person dies without CH, who will inherit from him? As GR legal heirs inherit from him i.e. relatives within 5th degree of consaguinity. Including kapatid, pamangkin, apo sa pamangkin, great grand children sa pamangkin. A1 | C2 | E3 | B1 D0 (Ron)

22 September 2010

INTESTATE SUCCESSION

Just to raise our discussion in the proper context, in testamentary succession, if the testator has no CH, then there are no legitimes to be impaired. The estate of the testator is free for his disposition. But if there are CH and CH are instituted, the legitime of the CH are deemed included in the institution. The excess will be considered chargeable against the FP. If there are legacies and devises, not inofficious if not exceed FP. If they exceed, then those legacies have to be reduced. Hindi inofficious yung term, dapat pang-donations lang yun. If decedent dies with out a will, then how do we distribute his estate. We distribute his estate to his legal heirs (LH). When does intestacy occur? If you will look at NCC, there is no provision which tells us what intestacy is. There is an enumeration of the cases when intestacy will occur but there is no definition of what intestacy is. The original draft of the NCC used by the Code Comission as its working paper has a definition of intestacy. If my memory is correct, the definition is that which proceeds when decedent dies without a valid will. Definition was not adopted by Code Commission because of its being inaccurate. “Dying without a valid will” that is not accurate because the testator may have left a will and yet all of his estate shall be distributed by way of intestacy. When will that happen? Suppose when executed a will with only one provision i.e. disinheritance of a CH. OR testator left behind a will but the institutions

H2

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therein because CH in the direct line was subject of preterition, all those institutions in the will shall be allowed and nothing in the will to implement. Therefore the entire estate of the decedent will be distributed by way of intestacy yet the decedent left behind a valid will. Because of inaccuracy of definition, code commission decided not to adopt it. What do you think is the better definition? Tolentino and other writers, they simply enumerated instances when intestacy will happen. A960 four instances when intestate succession shall take place. Is the enumeration exclusive? NO. There are other instances where intestate succession takes place. In the absence of a will, who shall receive the estate of the decedent? The legal heirs. Who are the legal heirs? 1. 2. 3. 4. 5. Legitimate ascendants IP LC and D Illegitimate children Surviving spouse

His parents. How much? Entire estate. Half of the estate they’ll receive as their legitime, half they will receive by intestate succession. That part responds to the FP. Suppose Ron was survived by grandparents and parents. Who are the LH? Only the parents are the legal heirs. Why? Because we follow a rule in intestacy that the more remote is excluded by those who are nearer in degree. In legitimes, legitimes reserved by law for the legitimate ascendants is divided equally between paternal and maternal line. The same applies in intestacy. Dinidivide din natin yung intestate estate equally between maternal and paternal line. Among the legitimate ascendants, the nearer excludes the more remote. Suppose the legit ascendants/parents of Ron concur with his brothers and sisters of Ron. Who are the LH? All of them are LH but not all of them are entitled to inherit. Nakalista diba? Not all of them will inherit. Among the LH, we apply rules of intestacy. What is the first rule? Direct line excludes the collateral. Direct line yung parents tapos collateral lang brother or sister. Only parents inherit the entire estate of Ron. Suppose the legitimate ascendants concur with the legit children of Ron, who will inherit? Legit asc are excluded by legit desc. We follow the second rule: Among the relatives in the direct line, the descending excludes the ascending. Only the legit children will inherit. What will the legit children receive? The entire estate, to be divided among themselves equally. Each desc will receive the inheritance in two characters. The first as his legitime, the 2nd as his share in the FP. Why do I keep on saying “share in the FP”? in intestacy, you should know who got the FP because they are responsible for paying the legacies and devises. Kasi nga laging sa FP kukunin yun. Pwedeng magkaron ng legacy and devises kahit na intestacy. E.g. may will pero nakalagay lang eh legacy and devises tas intestacy na. pay in proportion of their shares in the FP. Those with bigger part, shall share a bigger part of the legacy. Not only are legacies and devises are chargeable against the FP. Donation inter vivos given during lifetime are chargeable against FP. This is the reason when the donation exceeded the FP, the donation is inofficious and must be reduced because there’s no excess in which it can be charged against. ALWAYS REMEMBER in INTESTACY: Who received the FP? How much of the FP was received? Suppose the legit asc concur with illegit children. Who will inherit? It will not be wise to make the illegit children exclude the legit asc. Mashadong revolutionary ang reform. Dati rati hindi nagmamana ang illegit children tas ngayon pati magulang maeexclude na. hindi naman pwede iexclude ng parents yung anak. Anak pa rin yun. Pero hindi rin pwedeng parehong rights sila. Babangon si JBL Reyes, sha ang champion ng gradation of rights of illegit and legit children. lahat ng doctrinal cases were penned by JBL Reyes. Clemena v Clemena, Matabuena v

6. BSNieces Nephews 7. Other collateral relatives within 5th civil degree of
8. consaguinity State

Observation: you must have observed that all CH are LH. But not all LH are CH. The collateral relatives are not CH but they are LH. How do these LH inherit? Do all of them concur with each other? In the OCC, the system of intestate succession was one of exclusion. It was not a system of concurrence. Only one class of heirs will inherit, all the others will be excluded. Di pwede magsabay ang dalawang classes of heirs. That was understandable because under OCC, illegitimate children did not have any successional rights. Neither did the surviving spouse. SS if at all was entitled to a mere usufruct of the estate of the deceased spouse should legit children survive. So sino lang LH under OCC? Only two. LA, LC and collateral relatives within 3rd degree of consanguinity. Under the NCC, inasmuch as illegit children were given inheritance rights as well as the surviving spouse. Strict application of exclusionary rule will be harsh. For this reason, the NCC has tempered the exclusionary rule by providing for some concurrences of LH. There are some situations where LH will concur with each other in the inheritance of the decedent.

LEGITIMATE ASCENDANTS
If the decedent is survived by nobody but his LA, only the LA are CH. They are entitled to receive the entire estate. That is their intestate share in the estate. The entire estate. BUT since LA are also CH, they will receive the inheritance in two characters. First, in the character as CH, in the character of legitime. Second one, they will receive the FP. In the character of intestate share. The intestate share therefore provided in the law necessarily includes the legitime. Pag ½ of the entire estate, kasama yung legitime at the same time testamentary disposition. ERGO, suppose Ron died and he was survived by nobody but his parents, who will receive the inheritance of Ron?

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Cervantes (donation between common law spouses is void although there’s no provision in the CC) Enrique Fernando penned that but cited as authority a decision by JBL Reyes in the CA. San ka nakakaita ng ganyan? SC decision citing a CA case. Sabi ni JBL, di pwede pareho ang rights ng illegit at legit. Put premium on legit relationship. Ano na ngayon ang kanilang intestate share? Legit asc ½ and illegit children get the other half of the estate. Who got the FP? Nakakuha ban g FP yung legit asc? Nope. Because their legitime in that concurrence is ½ of the estate. Eh diba the intestate share also includes the legitime. What is the legitime of the ilelgit children? ¼ of estate. Leaving ¼ of the FP. Pero in intestate, magkano nakuha nila, ½ of the estate. Lumaki diba? Kasi nakuha nila lahat FP na ¼. Ergo, pag may legacy at devises, illegitimate children lang magbabayad nun to the extent of FP that they received. In CH, adopted child concurring with legit parents/asc. Will adopted children exclude the legit parents? YES, that has been decided by the SC already. Suppose the legit asc concur with surviving spouse. Who are the LH? All of them are LH. Will all of them inherit? YES. Ganun din ang dilemma nila. SS cannot exclude the parents. Dugo pa rin ang nanay/tatay. Di pwedeng exclude . Win win formula. ½ of estate to LA. Other half to other ss. In intestacy. The entire estate is distributed among legal heirs entitled to inherit. To whom does FP go? No. because their legitime is only ½. Ano ba legitime ni SS in that situation? 1/4 . so ¼ ang remaining sa FP. Mnapupunta lahat yank ay SS. Suppose the legit asc concur with ss and the illeg children. ano ang kanilang intestate sharing. ½ legit asc ¼ ss ¼ illegitimate children. Sino nakakuha ng FP? Nakakuha ba legit asc? Hindi kasi ½ din legitime nila? Hindi rin illegit children. Magkano ba FP? 1/8. Kanino napunta itong FP? Surivivng spouse! ½, ¼, ¼ therefore if there are legacies and devises, only the wife is bound to pay them to the extent of 1/8 FP that she is supposed to receive by way of intestacy. Suppose the legit asc concur with BSNN. Excluded no. For the same reason, legit asc all other collateral relatives and also the state from the inheritance.

ILLEGITIMATE PARENTS
In the case of legit “ascendants” pero pag illegit, “parents” lang. kasi they will be barred by A992. F* | -----| E G* A | C B*

D

* - legitimate relative A loves B but had extracurricular activities with D. A has child with D which is recognized. Pumirma. IF A will die, may E inherit from A? YES. What will he inherit? His legitime and in case of intestacy, he is entitled to share in the intestate part. CH and LH sha. Suppose F dies. Then A dies. Can C inherit from A? Yes. F? Yes. Legit desc. How about E, may he inherit from F? NO, under A992. A992: the iron curtain bar. Binigyan ng mana ang illegit children pero hindi pa rin kinonsider ng batas na sila ay kapamilya ng legitimate family.  the illegit child is not a member of the legit family of the illegit parent. An illegit child cannot inherit “ab intestate” by intestacy from the legit relatives of his illegit parent. And vice versa. i.e. F, G, B and C cannot inherit from E. Because of A992 imposible magkaron ng illegitimate “ascendants”. There is a situation however where the illegit ascendant will inherit. E.g. A is also illegit child of B. A has wife and then had an affair. B – illegitimate ascendant | ---- A C - Kiko | | E F - rankie

D

Sharon is an illegitimate daughter. D is Gabby, sir’s cousin B is Mommy Elaine. A is Shawee. E is KC. Namatay si A and B. E may inherit from mommy Elaine because mommy Elaine is not a legitimate relative of shawee. How about Frankie? No, she may not inherit from mommy Elaine. Sharon is an illegit child. And as an illegit child, she cannot inherit from the legitimate relatives and neither may legitimate relatives from the illegitimate child. MAGULO PO SIR.  Sir retracts. F is still illegitimate as far as B is concerned. Makakainherit si F. hindi mag-aapply si 992 sa kanya. When we reach representation, we will discuss why.

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Hanggang illegitimate parent lang. walang illegitimate ascendants. The ascednatns will be barred by A992, the exception is the KC lineage. IF illegitimate parents concur with legitimate children. Illegit parents are excluded. LC receive the entire estate. Get the inheritance in two characters. Suppose illegti parents concur with illegitimate children, they are also excluded. Illegit children receive entire estate as their inheritance, again in two characters. If illegit parents + SS  IP = ½ of estate, SS gets the other half. Who got the FP? Two of them receive the FP. Sa ganitong combination, ¼ and ¼ sila. Pinaghatian nila ang FP of ½. Suppose illegit parents concur with BSNN: exclude the collateral they are latter. Same reason the illegit parent also exclude other collateral relatives and the estate.

So dapat ang makukuha ni B ay not less than 60 so we scratch this and modify the distrib so B will get 60. The remaining 60, yun lang ang paghahatian nilang tatlo. Hindi pwedeng bawasan ang legitime ng legit children. dapat laging buo kaya poprotektahan palagi. Suppose concur: LC+D and SS Ang nakalagay sa Code: when the spouse survives with LC, the SS shall have the same share as that of one legit child or descendant. Kung pareho pala, dapat para shang anak kung magmamana sha. Illustration. A C | D B E

LEGITIMATE CHILDREN
When only legit children survived, then they are the only LH. In case of intestacy, they get the entire estate as their entire inheritance, shared equally regardless of marraiage they came from. All children will be at par with each other, all of them legitimate children. They will receive inheritance in 2 characters, legitime and share in the FP. Suppose they concur with the the illegit children, all of them are LH. They will share the estate in such manner that one illegit child shall receive half the share of one legitimate child. One illegit child will share half of one legit child. In all cases, legitimes of the LC shall be respected. E.g. |illegit CDE A | B

Net estate is = 120 M Distribute the estate. Who are the heirs? All the four are LH. Magkano ang hatian?
Heirs Intestate shares 1 1 1 1 4 30 30 30 30 120 Total (new intestate sharing)

C D E B

If net estate = 120M Died intestate. Dapat share nito doble ng share nito. Listing down who the heirs are:
Heirs Intestate shares 2 1 1 1 5 48 24 24 24 120 Total (new intestate sharing) 60 20 20 20

Ihuli si SS kasi mas mataas ang priority ng legit descendants. Divide 120/4 = 30 Then check if legitime of legit children was impaired? LLC = ½ E = ½ (120) = 60 L1LC = 60/3 = 20 Eh nakakuha sha ng 30 so this distribution stands. BUT suppose only one child. A | C B

B C D E

Divide 120 into 5 parts. But we’ll have to check if the legitime of legit children has been impaired i.e. B = ½ E = ½ (120) = 60

Estate is 120M How to distribute intestate estate of the husband? If you still remember in legitimes, the legitime of the spouse varies. From ½ to 1/8. When the SS survives with 1 legitimate child, yung kanyang legitime nagiging ¼ lang kasi pag pinareho na ½, mawawalang ng FP. In intestancy, there’s a rule when spouse survives with children. But there’s no similar rule when spouse survives with only one child. So how to distribute the estate? If we apply the rule for spouse with children. ANo magigign hatian jan? B = ½ E = 60

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C = ½ E = 60 Sabi ng ibang writers, this is unfair. Entire portion of ¼ was given to the SS. Hindi nag-improve yung inheritance ng legit child. Ano ba gusto niyong hatian? Give legitimes: B gets 60, C gets 30. 30 yung FP na natira. 1. Jurado: Paghatian yung FP na natira. B gets 75 and C gets 45. 2. Gawin nating pro-rata na 60 30 sila. B is 80 and C gets 40. 3. Senator Padilla (who didn’t want to adopt the changes introduced by NCC): dapat jan excluded na SS. Ibigay lang sa kanyang ang legitime, then entire FP goes to child. Apply the exclusionary rule. B gests 90 and Which sharing is correct one? SC has already spoken in Santillon v Miranda. Hatiin yan ng hati. Yun gprovision of the code which gives the wife same share as one legit child shall apply. Tag ½ sila. Tolentino (valedictorian, weightlifting team, upsi, senate president) and Padilla (salutatorian, basketball team, apb, majority floor leader) were classmates in this college. Lagi akong di manalo dito kay Padilla, lagi na lang ako number 2 dito kay Tolentino. Ayun, naunang namatay si Padilla. Mas maraming asawa si Tolentiono. When the LC concur with IC and SS: all of them are intestate heirs. How do we share the inheritance? They will share in such a way that the surivivng spouse shall get eh same share as one legitimate child and one illegit child shall get half the share of one legit child. Illustration: |illegit D A | C B

In case estate is not sufficient to pay legitime of heirs, illegitimate heir suffers the reduction. Illustration: Damihan natin yung anak ni A. |illegit FG A B | CDE
Intestate shares 2 2 2 2 1 1 24 24 24 24 12 12 Total (new intestate sharing) 20 – legitime; 4 - FP 20 – legitime; 4 – FP 20 – legitime; 4 – FP 20 – legitime; 4 – FP 10 – legitime; 2 – FP 10 – legitime; 2 – FP

Heirs

C D E B F G

Check impairment of legitime L LC = ½ of 120 = 60 L LC1 = 60/3 = 20 Since 24 > 20; ∴ Distribution has to be respected. Magkano yung share received from the FP? 4

ILLEGITIMATE CHILDREN
If they survive alone: they get everything BUT must be recognized properly. If they concur with BSNN: BSNN are exluded.

SURVIVING SPOUSE
If they survive alone: entire estate goes to him. Sha lang natira. Asawa lang! But suppose SS and BSNN: Under the law, the SS concurs with BSNN. SS = ½ BSNN = ½ If there are full/half blood; half blood gets half share of 1 full blood. Rule in intestacy. Suppose walang BSNN but concurs with OCR5, who are intestate heirs? Only the spouse. Spouse excludes all OCR5. Spouse concurs with only one group of legal heirs, i.e. BSNN. GR: All CH (any of CH) excludes all the LH, EXCEPT: SS who concurs with BSNN. Kaya halimbawa, just to be sure that you understood. We have to illustrate that principle by example. D C | | A E B

Estate = 120M Poor pa ang 120M ngayon. Hindi ka pa mayaman. Wala pang bahay sa Forbes Park. P250M ang isang bahay dun. Ikaw na ang mayaman sir.
Heirs Intestate shares 2 2 1 5 48 48 24 120 Total (new intestate sharing) 60 48 12 120

C B D

Check whether legitime of legit child was impaired? ½ of 120 = 60 Hindi niya nakuha kasi 48 lang. so magkano dapat? Pano na hahatiin yung remaining 60 between SS and illegit child? Prefer the SS. Yung natira sa FP, kay SS muna ibigay tas kung ano matira, kay D na.

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F | G Only B and G survived. What is relationship between A and G? Grandnephew. Therefore, only B will inherit. Make up class on Friday, same schedule? Very good.

Distribution respected. Check if legitime impaired: LC1 = 20  okay lang since 20 ≥ 40 = ½ (120) = 60; 60/2 children = 30 Another example. A | C B | G D | F E

23 September 2010
RECONSTRUCTED FROM WRITTEN NOTES

RIGHT OF REPRESENTATION
A C | F | DP | GH B ER | IJK

May A & B represent C to inherit together with F? NO, representation is only allowed in favor of the descending line. Now suppose: AP2 | C DP1 | | F GH | L B E | IR JK | M | N-

A died survived by everyone. Who are A’s heirs? B is like bawang, laging sahog. CDE concur with their mom. Granchildren excluded because more remote. Suppose D predeceased A survived by BSNN. Who will inherit? Makakainherit ba si D? No, kasi condition na buhay at the time of A’s death. EXCEPT: Fetus inside womb, but must be alive at birth. Who inherits then? C&E exclude GH more remote, BUT BECAUSE OF REPRESENTATION, they’ll take the place of D. they now become 1° and NOT EXCLUDED anymore. They can get what D’s supposed to receive had he inherited. NB: REPRESENTATION takes place in DIRECT LINE in DESCENDING and NOT in ascending line. Suppose C dies ahead of A. His ¼ goes to F. E dies ahead of A, IJK gets their parent’s ¼. Is it not unfair to IJK that they have only 1/12 compared with F’s ¼? No, they should only take share of respective parents. Kasalanan ng tatay niyo yan. This is called “per stirpes” Now suppose A dies buhay lahat sila. E repudiated the inheritance kasi masama loob niya. May tumatanggi ba sa mana? 100 ha mother of Gibo refused inheritance from aunt kasi sakit lang sa ulo yan. Who inherits? CD not E. How about IJK? Ayaw ni Daddy, so kami na lang? No representation in repudiation. Suppose estate is 120M, we divide by scratching E. In eyes of law, he does not exist. 2 na lang ang anak niya. Everything computed on the basis na 2 lang ang anak. Ano legitime nina CD? Tumaas ang legitime from 1/6 to ¼. Pag D repudiates too, C gets ½ legitime, illegit children becomes problem. B – 40 C – 40 D – 40

Who inherits? B – Shempre as bawang. F – No, inexcluded by C D – patay na, but represented by H May L represent G? Yes, in direct descending line, representation is ad infinitum. Basta may descendant, pasa yung right to inherit. H&L now has the same degree. E may be represented by JK Pwede ba magrepresent si M? No, nagrepudiate tatay mo eh, ergo putol ang right of representation. Nung namatay si E, nirepudiate ni I yung mana kay E. May I represent for E in A’s estate? YES. Descendants in direct line have right of representation, EXCEPT in case of repudiation. A CR | F | LM | DR | G H | | N O B ER | I J | | PQ R

K | S

How to compute the share of SS? Use the 3 children or shares of grandchildren? If predeceased – always per stirpes. If repudiate – per capita, in their own right. Order of interstate succession: A996 says “children” Of with legitime  A892 2nd par says “children or descendants”

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Intestate share of the SS on basis of number of children. maski magrepudiate sila, children pa rin. PROBLEM: When all the children repudiates. IF only one repudiates, 2 yung anak. Pag si D rin, 1 anak. Pag lahat sila, 0 na yung anak. So the 3 can easily prejudice their stepmom B because ehtey can lower her inheritance by repudiation. Follow Tolentino’s wise comments: Compute on the basis of the number of children even if it would make us inconsistent. If we follow Arthur’s formula: B=¼ Grandchildren share on the remaining ¾ If not: B = 1/7 Grandchildren share with 1/7 Wala kasing provision in law. Cf A999 and 996. Appreciate application of this problem. Exam: you’re free to choose whichever, if you have another interpretation, we’ll consider. In their own right inherit, may LM represent for F? Yes, it wasn’t F who repudiated. Represent F in the inheritance of A. NB A982 descendants always inherit by right of representation except in repudiation.

E is LH of D and A. (allowed by 989 and 902). F may also represent D and A.  Representation in favor of illegitimate children. HOWEVER, F still gets only half of E.  Good point by Joni. Gradation of rights, even if in the eyes of law, both illegitimate as to A. I can’t remember which diagram Cel’s good question refers to: What if illegit children both repudiated, who will inherit? Not G, only EFH. How should they share? Illegit – ½ of LC’s share. Give me your answer to that later.

ADOPTION
A married when she was only 18 yo | B (abaeng anak), 40yo } adopted C A to B: mag-alaga ka na lang ng aso! Wag ka na magampon. Pag suwail yan, di na pwede itapon (since no more rescission of adoption allowed now). Topo topo barega didila sa baga. Over the consent of her father, B adopted C who turned out to be a magandang bata, kahawig ni Maja Salvador. Naging doctor, nagdebut si C. Napansin ni A, maganda tong naampon ni B. nagkasakit si A, sabi ni B, dun ka na lang kay Dr. C! Ano nangyari after? Mapurol ang imagination ni Ron at Annie! Those who say they can’t marry, babagsak kayo sa bar. There are no relatives by adoption. Not prohibited by law for adopting parent’s parent to marry the adopted child! Personal relation only to adopted and adoptive. They can marry! B died ahead of A, may C represent B in inheritance of A? Teotico v del Val. C is LH of B, no doubt after adoption, C is LC of B. But C is not LH of A. strangers of each other. RULE: Double legitimacy for representation. REVERSE THE SITUATION: A B }adopted C D | E – became a doktora

ILLEGITIMATE CHILDREN
A B | | Dillegit C | | Eleg Fillegit Hleg Gillegit CD predeceased. We distribute A’s estate. May D represent E in inheritance of A? Look at legitime A902? Transmitted to own heirs. Legitime of illegit child – there is representation A902. Intestate portion, is there representation, A989. May C be represented by H? YES By G? No, barred by A992 Illegitimate cannot inherit from legitimate relatives of illegitimate parent. Eh bakit si E? Kanya-kanyang linis ng kalat yan. While E is legitimate child of D, as far as A is concerned, E is also illegitimate. Lahat ng anka ni D ay illegitimate. Kung di nagkalat si A ng D, eh di sana, hindi rin illegit si E. PERO hindi kasalanan ni A ang kalat ni C i.e. G. NB in representation: Representative must be legal heir of relative who he represents and also the relative from whome he seeking to inherit.  DOUBLE LEGAL REPRESENTING. G must be legal heir of C, but barred by 992 to represent to A.

C: Dad dun ka sa hospital ni E. Ano nangyari? Ani says: nadevelop sila! You are the guy we’re looking for! Strict application of Teotico: Pwede magpakasal. Law says D and E cannot marry. How about A and E? DLC does not agree: May kinalaman si A sa pag-ampon kay C. Suppose C dies ahead of A. A cannot marry D. Wait, kung purely personal pala, bakit bawal to? Absurd kung affinity, not allowed tas yung blood relative pwede. Relating this to succession: C predeceased A. May E represent C in A’s inheritance? Under the law, C became legitimate child of A, as such C is entitled to all rights of legitimate child e.g. to be represented by own heirs

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whether legitimate child or illegitimate chld. Therefore, DLC’s opinion: E may represent C in A’s inheritance. Same way that adopted child may be preterited. Because she is a direct descendant by fiction of law. One right of the legitimate child is not to be subject of preterition. Is there representation in the collateral line? Yes, there is representation, but limited lang - A975. Principles: 1. A C D | G | M Representation allowed in collateral line, but in favor only of nephews and nieces. ERGO… | E | H | N B F | J | O

We are now in provisions common to both testate and intestate succession.

RIGHT OF ACCRETION
What do we mean by accretion? A1015. This is the definition of accretion among testamentary heirs. There is accretion among those designated as heirs in the will. Is there accretion in intestate succession? Yes, A1018 Meron ding accretion in favor of compulsory heirs in A1021. DLC: 1st par of A1021 is incomprehensible. Parang may kulang. What is accretion? When the testator instituted or designated 2 or more persons as heirs to the same inheritance pro indiviso, the share of one of those heirs who may have [1] predeceased, [2] repudiated or [3] become incapacitate will go to the other co-heirs. That is called accretion. Illustration: “I institute X, Y and Z to my entire estate.” Assuming that T has no CH and he died AND assuming XYZ are all alive at the time of his death. Who will inherit entire estate? XYZ How will they share? Apply the rule. Equality in the absence of designation of shares. Tag-wa 1/3 silang lahat. Change the factual situation. Suppose X predeceased the testator, BUT despite X having died, testator did not bother to change his will. X was survived by his own children, ABC. After the death of the testator, who are entitled to inherit? Will ABC represent X in the inheritance of the testator? NO because there’s no representation in testamentary succession. Eh wala ring substitution so ABC cannot inherit either. Tandaan niyo ito. NO REPRESENTATION IN TESTAMENTARY SUCCESSION. If Y is alive, then Y is entitled to inherit. Same goes for Z. Question: Who gets X’s share? It shall go to Y and Z by accretion. How will they share? The portion that was supposed to be received by X? IN equal shares. Now, suppose the will says: “I institute to my entire estate: X = ½, Y = ¼ and Z = ¼.” Z predeceased T. May the heirs of Z represent? No, no representation in testamentary succession. Who will now inherit? Who gets Z’s share? To X and Y by accretion. Because you have to look at A1017. Underline the word “determinate” … shall not exclude the right of accretion. Pwede pa ring magkaroon ng accretion. How do they distribution Z’s share now? They share it 2 is to 1. Get the common denominator. 2/3 go to X and 1/3 go to Y. Add 2 and 1. 2/4 = ½ ¼

I

K

L

Who are C’s legal heirs? No ascendant/descendant. Brothers and sisters. – D may be represented. – G died ahead of C, may M represent G? No way, nephews and nieces only. Suppose E dies, too.  HI may represent. F predeceases, too. JKL? No. only if there’s living aunt or uncle. If all brothers and sisters died ahead of the decedent, no more representation, in own right as nearest surviving relative. Per capita na. G is scratched. Only HIJKL in own right. If you’re a bright student, A975 – repudiate/survive. E only living repudiates, cannot be represented. FD predeceased, physical survival ba ang A975? Para makita niyo pinagngangangawa ko dito. A C D | H | E | I B F | K G | M

J

L

N

O

How will HJMNO inherit in view of F’s repudiation? Bakit di kasali si KL? By their own right na diba? DLC: Survive is not physical. Survive = inheriting together. Apply representation in A975. Favorite ko to!

27 September 2010
Representation as a matter of law? May a testator provide for representation in favor of his testamentary heirs? YES, but it’s not called representation, but “substitution” occur as matter of testamentary provision. But in such case, it’s not representation, but substitution.

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Kaya may math sa LAE. Because of succession. New problem: “I institute x to ½, y to ¼ and z to remaining ¼ of the estate.” When Z predeceases, will share of Z go to x and y by accretion? NO. Tell me the difference between the previous and current example. Ano ba mga requirements for accretion to take place? Heirs must be instituted to the same inheritance, pro indiviso. In the first will the phrasing “entire estate” means that testator intended that the estate go to nobody but the three. In the second will, not the same inheritance. ½ of X is different from ¼ of Y and Z. Change the first will: “I institute X, Y and Z to my entire estate such that X ½, Y ¼ and Z ¼.”  readily see intention to give estate to nobody but XYZ. While given aliquot part, we don’t know what properties comprise that portion. Another example: “I give ½ of my estate to ABC.” Will there be accretion in favor of coheirs? Of course, intention is same inheritance, i.e. the ½ “I institute my 10M bank deposit to X, Y and Z.” Accretion in the legacy? Yes, because testator gave the entire 10M to the three. Pero kung ganito: “I institute ½ of my 10M bank deposit to A, the other half to B.” No accretion because not instituted to the same inheritance. They get different half. It might be pro indiviso, but not the same inheritance. ACCRETION in LEGAL/INTESTATE SUCCESSION – A1018 Comparing 1015 and 1018: 1. 1015 has three scenarios (predeceased, repudiation and incapacity) Actually incapacity is a catch-all provision. 2. 1018 only repudiation because as GR in legal succession, there is representation. Therefore, the share of the interstate heir who predeceased will go to hisown heirs by right of representation. No right of representation in case of repudiation. COMPULSORY SUCCESSION See 1st par of 1021 – may “only” pa eh. Why? I don’t understand the “FP given to 2 or more, 1 or more of them AND a stranger.” I still have yet to come up with a proper interpretation. Bakit limited lang sa situation na ito? A BR | D | E W C

1/3 to B 1/3 to C 1/3 to W Estate – 240 M B repudiated. Distribute the estate. NB since B is aCH, his repudiation applies to both his legitime and his share in the intestate party. Pero wala dahil nga the entire estate disposes of it. Yung testamentary part, is that covered by his repudiation? YES, because unless qualified repudiation, it is total i.e. entire inheritance. Pede bang partial repudiation? Later go there. As a rule, repudiation is total. How did Jurado solve this problem?
HEIR S B Will Since B repudiated Total

1/3 = 80 1/3 = 80 1/3 = 80 40

0

C

120

W

40

120

Is there something wrong with this? YES, legitime that is part of what was repudiated was included. It should go in his own right. How to do that? Tanggalin na si B. DANICON SOLUTION
HEIR S Will Legitimes, considering B’s repudiation 120 By accretion Total

C

1/3 = 80 1/3 = 80

20

140

W

60 legit, 20 fp

20

100

200 B 1/3 = 80

Provisions respected only if legitimes were not impaired. Ano ba legitime ni C? ½LC = 120 (eh isa na lang shang anak!) not in their accretion but in own right. Lumaki legitime ni C. Wife’s legitime = ¼ E = 60 What was giving B under will is 80. The 1/3 given him is considered given to a stranger, therefore chargeable againt FP. But since it impaired legitime, it is reduced. B

Will: “Entire estate”

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should have gotten 40. That becomes a vacant share that goes by accretion to the co-heirs (1018). Who are the co-heirs in intestacy, C and W. they share alike. Cannot go accretion, but in their own right. DApat alisin na yung legitime ni B. Testamentarydisposition is considered as given to stranger, i.e. chargeable against FP. Napunta sa kanya yung legitime in his own right and not by accretion. Coheirs sila kasi entire estate. Kung hindi coheirs, no accretion but instestacy. SUPPOSE wala sa will yung “entire estate,” wala ring accretion. To whom 40 goes? It goes to intestacy.
HEIR S Will Legitimes, considering B’s repudiation 120 Intestacy Total E 20 140 D

8

Wrong ito. Dinistribute niya legitime ni B among other CH by accretion. DLC opinion: the correct opinion I’m sure. In order to comply with 2nd par of 1021. Solve this problem like this. Remove B already.
HEIRS Intestate shares 2 2 80 80 Legitime s 120 20 FP; 60 legitime 60 60 Reducing, new distribution 120 60

C W

1 1

40 40

30 30; by representation (F – 20; G – 10)

C

1/3 = 80 1/3 = 80

W

60 legit, 20 fp

20

100

6

200 B 1/3 = 80

300 – Sobra. Di pwede.

Coincidence lang na pareho. Pero pag illegitimate child na yung isa, mag-iiba na yan. Another example. Lagyan natin ng illegitimate na anak. A W |illegit | D BR C | F Gillegit

Check whether legitimes have been impaired. LC = 240/2 = 120. Hindi pwede itong distribution, 80 lang nakuha niya. 120 kasi C acquired in own right the legitime that was supposed to go to B. So babaan ba natin si Misis? She’s supposed to receive 80. San natin kukunin yung discrepancy na 40 ni C. It shall come from the FP. Wala na nga FP. Kukunin natin ngayon sa illegitimate child. Matatangal ang 20 FP ni Misis.

1. Since intestacy, divide the estate to shares 2.

E

Walang will, intestate tayo ngayon. A had 2 legit by W, B and C. D predeceased A but survived by own heir F. Estate = 240 M JURADO SOLUTION
HEIRS Intestate shares Distribute B’s share by accretion Total

3.

B C W E D

2 2 2 1 1

60 60 60 30 30 20 20 10 10 80 80 40 40

according to provision of intestacy. E = 240/6 (number of shares) Check for legitime. Isang anak nalang si C kasi nagrepudiate si B. Had B not repudiated, C will only get 60. Tumaas kasi na-acquire niya yung additional legitime in his own right. Nabawasan ng CH. We did not give it to him by accretion but by operation of law i.e. in his own right. In compliance with 2nd par of 1021. Para mabayaran ng 120 legitime ni C, we need additional 40. Where to source it? From the FP. If the FP is not enough, then reduce from the illegitimate children. NB legitime of ss is preferred over that of the illegit child. ISSUE: From 80, nabawasan ang kanyang inheritance by 20.

BUT since D predeceased, to whom will his share go? To his representative, F. Suppose D has two children, one legit and another illegit. Kanino mapupunta ang 30 ni D? Paghatian ni G and F, 2:1.  Hindi ba pareho sila illegit as far as A is concerned, but they are entitled to get what D is

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supposed to inherit. Right to represent is not equal. All authors agreed on this point. Kailangan half-half rin sila. Another problem. A |illegit | C B | Dlegit W

29 September 2010
CONCEPCION SOLUTION to previous diagram.
HEIR S B Legitim es 60 30 30 10 60 Will FINAL

60 30 30

Eillegit

W C

A left a will W=½ Z nephew = 10M B predeceased. So survived by Dlegit and Eillegit. Estate = 240M Distribute the estate. Go to intestacy. May hindi nadispose na kalahati. It goes to the LH. BUT Should we include wife in the intestate wife when she’s been given with the ½ estate already? Following Manresa, kasama sha, ½ given to her applies only to the FP and not the legitime. Pag binigay pa yung legitime na ¼. Ang natira na lang ay… MANRESA SOLUTION
HEIR S B W C Z 240 Legitim es 120 60 60 0 0 Legac y Institut ion Intesta cy Total

Z

Estate in the amount of 120M Nothing is left of the free portion to complete the 60 to bring the inheritance of W to 60 as specified in the will. Kung may natira sana, z will be the first to be paid. If wala na natira, wala na ring maibibigay arising from institution in favor of the wife. Inheritance of B goes to D only because E is barred. Illustration again. X A | W B

Will W = ½ estate Z = legacy of 10M Estate = 240M
HEIR S A B W Z Legitim es 60 60 60 180 60 10 50 10 Wi ll Actual Final

CAUTION this part. 1. Give legitimes first. 2. Remaining FP is 30M (240-210). Charge two institutions and legacy. Legacy is preferred over instituted heirs (they only get the legacy). Donation intervivos DMC is preferred. 10M is preferred over the ½ institution. 3. According to Manresa. ½ of remaining free portion after legacy deducted goes to wife. (30M – 10M = 20M) 4. Remaining portion for intestacy. 10M

60 60 110 10

Free portion = 240 – 180 = 60 Will provision: To complete W's ½, we need 60 more. That 60 more comes from the FP. Since the FP is only 60, wala na natira sa 10 ni Z. but between insitution and legacy, legacy is preferred, so therefore, you only have to pay the 10, there is a balance of 50, marereduce ang institution in favor of W. X | Aillegit W

Will W = ½ estate

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Z = legacy of 10M Estate = 240M
HEIR S Legitim es Wi ll If this were intesta cy Intesta te shares w/ legacy 115 115 10

Z

10 240

10

W A Z

80 80

40

120 120

10 160

3rd solution “Free portion” – the portion in excess of the legitime. Maraming charges sa FP e.g. legacies, DIV, institution that exceeds that legitime. The shortfall between the “amount given by will” and the “legitime” is also a burden on the FP. In such a case, “part of FP given by will” is already disposed of. Itong 120 na ito ni W, ang legitime jan ay 80 lang. 40 jan ay from the FP which has been disposed of. Itong kay 120 ni A (na babawasan natin ng 10 legacy para kay Z) ay 80 from legitime at 40 from intestacy. Which is the better solution between the two? DLC’s opinion: When the will contains an institution of CH, unless a different intention can be gathered from the wording of the will, the testator wants to limit or increase the inheritance of the CH instituted to the amount or aliquot parts specified in the will. Therefore, number 1 is the better solution. Give ½, no more no less. The balance of the estate therefore goes to other LH by intestacy and the heir who was already given the institution should no longer be considered as an intestate heir. Last Problem Justice Jurado’s problem in his Civil Law reviewer: X had four children, ABCD, with two legitimate childrens each. X |

Free portion of 80 (240 – 160) Remaining free portion after giving W’s ½ and Z’s 10 = 30 30 will be distributed by way of intestacy. In intestacy, do we still give to W an intestate share when she was already given ½ of the estate. Ano ang lumalabas dun? Yun lang ang gusto niya ibigay kay W. the rest therefore should be given by way o fintestacy and the others given to legal heirs. One interpretation ito. The other interpretation: After W has been paid, she should also be included in the intestate part. If we follow first interpretation, ibibigay natin kay W yung 120, because that was given to her in the will. Hindi na sha kasali sa distribution of the balance of the estate. Therefore, Z gets his 10…
W A Z 120 110 10 240

AP | EF

BR | GH

CI | IJ

D | KL

X died, predeceased by A, B repudiated, C was incapacitated and D was alive, kicking and qualified to inherit. Will = instituting ABCD to the entire estate. Left estate worth 720 M, distribute the estate. Proceed to distribution. DANICON SOLUTION.
HEIRS Legitim es 120 Wi ll 18 0 Representa tion E - 90 F - 90 Accreti on 60 Final

PROBLEM: Bakit yung 10 kinuha lang sa share ni A, bat di kumuha kay W. Justification: Legacy should first be taken from FP which was not yet disposed in the will. Hanggang may FP not yet disposed of, all those legacies shold be taken from those not yet disposed of. So sila yung mauunang magbabayad. Papakialaman lang ang FP ni W if the FP not disposed of is not sufficient. 2nd solution – Manresa principle: Institutions and legacies are imposed only on the free portion. After having been paid what was given in the will, the balance should be available for those given dispositions in the will.
W A 120 80 15 15 135 95

A

E – 120 F – 120

C

120

18 0

I - 90 J - 90

60

I – 120 J – 120

D

120

18 0 18

180

60

240

B

-

-

-

Page 75 of 81

0

360

720

B is also in the table because there’s an institution but since he repudiated, it’s considered as given to a stranger.  institution of CH who repudiate: as if given to stranger, charge to FP (vacant) 720/2 = 360 360/3 = 120 (pero kung apat sila) 360/4 = 90 repudiation of B gave the legitime to other heirs in their own right. PURPOSE of listing the legitimes: only to 1. find out the FP 2. test whether the impositions in the will impair the legitime. FP = 360 720/4 = 180 We respect the provision of the will. B (who repudiated) cannot be represented because there’s no representation in testamentary disposition. Hindi sha entitled to be represented. It’s not as a compulsory heir anymore because he is instituted as if a stranger. Accretion na. There is accretion among them because instituted to same inheritance pro indiviso.  2nd Par of A1021 only for legitime. Will the 60 go to EF? Jurado says, no. PERO BAKIT?! Representative is entitled to get whatever the person whom he is representing would have gotten. Joni says: Since there’s no representation in testamentary succession, why were A and C represented by his children? VERY GOOD POINT!!! REFORM THE TABLE. (So in effect, Jurado is actually correct and he must thank Joni for making Sir realize that.)
HEI RS A Legiti mes 120 Will Representa tion E - 60 F - 60 Accreti on Final

Only the legitime will go to the representatives. Testate part which goes to D (he benefited from the accretion). What if intestacy? – In keeping with 2nd Par of A1021
HEI RS Legiti mes Intest ate shares 240 Representa tion

A

120

E - 120 F - 120

C

120

240

I - 120 J - 120

D B

120 360

240 -

240 720


Intestate share is greater than legitime so that has to be respected. A’s 240 will go to EF, C’s 240 to IJ. B’s part acquired by siblings in their own right, ergo increasing their legitime. Is A entitled to be represented by EF? Yes, legal sucession kasi yung buong 720. Acquired by law.

ACCEPTANCE AND REPUDIATION OF THE INHERITANCE
Heir is not entitled to inherit unless he accepts. Acceptance may be IMPLIED, if heir failed to repudiate the inheritance he is considered to have accepted it. Unless repudiates, he is deemed to have accepted it. SC decision: Are the legal heirs co-owners of the estate of the decedent? YES, they are co-owners. When will the co-ownership start? After they have impliedly/expressly accepted the inheritance, BUT acceptance retroact to the time of death of the decedent. Until they accepted, they do not become coowners. But when they accept, their acceptance retroact to time of decedent. Are the co-owners co-owners of specific property of decedent? NO, 2008/2009 decision. The coheirs are inchoate co-owners of specific properties. They become co-owners of specific property after all the liabilities of the estate have been paid. Parang conjugal partnership of gains, until the conjugal partnership is dissolved, the spouses are not yet co-

180 [but 60
vacant]

E – 60 F – 60

C

120

180 [but 60
vacant]

I - 60 J - 60

-

I – 60 J – 60

D

120

180

300 (120 + 60 + 60)

480

B

-

180vacant bec
of B’s repudiation

-

-

-

Page 76 of 81

owners. Baka mamaya wala namang natira, it’s not even enough to pay liabilities of the partnership. Coheirs cannot be co-owners of specific properties comprised in the estate until all liabilities of estate have been paid. Baka naman kasi kulang pa estate ng decedent so wala rin silang paghahatian. Become owners specific only after liabilites have been paid. Basahin niyo na lang yung capacity to succeed, partition and distribution. Read the comments of authors whose work I assigned to you during start of the course.



• •

Reasonable donations given to charity. P5000 sha simbahan. Moderate gifts given to family members on occasions of family rejoicing or occasion. A1067 and 1068 - Sums of money spent by parent to finish basic education or training for profession. A1069 – Sums paid by parents in satisfaction of debts of children, election expenses, fines A1070

COLLATION
Understood in three senses. In the FIRST SENSE, it refers to ADDING BACK TO THE ESTATE DIV which the decedent may have given during his lifetime. DIV can become inofficious. In fact donation may be reduced if inofficious. When will DIV become inofficious? If it exceeds the amount which the testator is allowed to dispose by will. Donations therefore should be considered in the settlement of the estate of the decedent. Why? Because if we do not consider DIV which the decedent may have given during his lifetime, and in the settlement of his estate, he can easily circumvent provisions of law on legitimes. Why? Kasi yung gagawin lang ng decedent to circumvent the legitime, ipamimigay na lang properties during his lifetime. Sa mga charitable institutions. Sa mga favorite people like DI, or pwede niyang ibigay sa favorite na compulsory heirs. E.g. 4 legit children pero isang lang paborito nung tatay. So before he died, donated all his properties to the youngest child. May legitime yung 3 anak na mas matanda. How do we compute their legitimes, the sstate is already 0. ½ of the estate is 0 and dividing it among 4 children is also 0. There has to be a check on dispositions given gratuitously during lifetime of the decedent. It is in the form of collation. Donations added back to the estate. May the testator provide in his donation that what was donated should not be collated to his estate? No, he cannot. Collation in the first sense is mandatory. Otherwise, it will not serve the prupose for the law requiring collation. He can simply provide that all those donations are not subject to donation. DIV therefore are subject to collation. They will be added back to estate of the decedent. All DIV subject to collation. Are there DIV which are not subject to collation in the first sense? Yes.

What shall be added back? Property itself or the value of the property? Only the value of the property. The property itself is not to be returned because DIV transferred absolute ownership over the properties to the donees. Whatever increase in the value of property was realized in the meantime should benefit the donee, its absolute owner. What value should be added back? At the time donation given or value at the time of death of the donor? A1071 is very clear, it is the value of the property at the time donation was given. Whatever increase in the value of property was realized shall be for the benefit of donee who was absolute owner of the property. Collation may also be understood in the SECOND SENSE, i.e. IMPUTATION. - Donations in favor of CH shall be considered as advances on their legitimes/inheritance. - Donations to strangers are imputed to the FP. Chargeable against FP, BUT if FP is not enough to cover the DIV, DIV may be reduced. There’s no problem if testator gave only one donation during his lifetime. If the value exceeded at the time of testator’s death, the donation shall be imputed to the FP. If FP is smaller than value of donation, the donation is inofficious to the extent of the shortfall. Kailangan ibalik ang excess to the estate of the donor. Act of returning is called collation in the THIRD SENSE, i.e. REDUCTION AND RETURN OF THE EXCESS. That’s why when you are reading provisions of CC on collation, analyze which sense collation is used for that particular provision. E.g. A1061 – in the first sense A1062 – in the second sense; imputation  Maybe exempt from collation in the 2nd sense, not considered as advance on the legitime but charged on the FP. Donation in favor of a stranger, chargeable against FP. A1063 A1064 A1065 A1066 – – – – in in in in the the the the second second second second sense; sense; sense; sense; imputation imputation imputation imputation

Page 77 of 81

So whenever you read CC and encounter the word collation, be careful in characterizing the term to find out in what sense it was used in that article. ERGO, how do we compute the estate of the decedent?

Take up one problem. Suppose A has two children B and C. A | B C Gave donations to: B = 10 M in 1998 when he ran for mayor in the local elections. C = 20 M in 2009 X = 10 M in 2009 When A died, he left no liabilities. = 0 Estate = 200 M Distribute the intestate estate. Compute the hereditary estate. E = GE – L + DIV = 200 – 0 + 40 = 240
HEI RS B Legiti me 60 Intestate shares 120 (60 leg; 60 fp) C 60 120 (60 leg; 60 fp) Total 120 Advanc es -10 - 5 for X -20 - 5 for X Final distribution 105 (50 leg; 55 fp) 95 (40 leg; 55 fp) 200

SERIES OF STEPS 1. Take an inventory, summation of all assets of the decedents. Gather together rights and properties left behind by the testator. Gross estate = assets

Σ of the values of all the

Assets include all properties AND rights. Lahat ng may value. Monetary equivalent.

LESS All liabilites the liabilities ______________ Net estate ADD

=

Σ of the values of all

Include due, not yet due, contingent

All DIV subject to collation. ______________ HEREDITARY ESTATE or simply, ESTATE

PRACTICAL APPLICATION. Suppose Annabel Rama died leaving behind a box of jewelry with a total market value of P20M. Ipinambato na niya mga brilyante niya kaya marami na nabawas. May mga utang sha worth P30M. Assets Debts – DIV W. Galvan L. Solis – 20 M 30 M _____ (-10 M) – – 6M 6M

FP = 240 – 120 FP = 120 – 10M = 110M May pambayad tayo, saktong sakto lang! P200M Next meeting, may donation na lalampas sa FP.

How much is the hereditary estate of Anabelle Rama? 2M This is a mechanical application of this process. What is the implication? Donation will have to be recovered. Babayaran pa ba dapat natin yun. DIV given before. Iresearch niyo yan. Next meeting take the top. Next meeting is the last. Let’s just solve four problems in collation. Ito ba ay 2M. Or dapat pa bang iconsider na 0 yan, hindi na babayaran yung utang from DIV. Estate will become 12M with DIV. Ibabalit yung donation para bayaran yung legitime ni Anabelle. Isn’t there something bad about it? May mana sila pero may unpaid na utang pa rin. Bakit kukunin ang DIV para bayaran ang mga utang? Bakit naman natin kukunin ang DIV para bayarang ang legitimes of CH when debtors of estate have not yet been fully paid? Insofar as the estate is concerned. How do we compute the estate of the decedent?

4 October 2010
A1063 (i.e. property left by will exempt, unless provided) is NOT deemed subject to collation. Therefore if a testamentary disposition is given to CH, the testamentary disposition should not be considered as an advanced part of his legitime. Let’s go back to institution: Suppose T instituted a CH to an aliquot part of an estate. Is the legitime included part of the institution? DLC opinion: A1063 applies only to legacies and devises, not institution. How about if a donation was given to a son of the heir? The heir is a CH, the donation in favor of grandchild will that be subject to collation in the first sense? Of course, because that’s a donation. Is it an advance on the legitime of father? No, unless the children inherit by right of representation. But if they won’t, donation in their favor is considered donation to a stranger, therefore chargeable against FP. But when father died ahead of T and children inherit by right of representation, donation in favor of grandchildren is

Page 78 of 81

considered as an advance on the inheritance of the father whom they are representing in the inheritance. That’s A1064. Yung A1067 (expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, customary gifts): Not subject to collation in the first and second sense. Hindi iaadd to the estate, nor will we impute to legitime of the CH. Ganun din ang A1068. In what sense? 2nd sense; imputation. Hindi naman maiimpute pero isama natin sa computation. But suppose it does not impair the legitime? Isasama sa first sense, hindi lang iimpute. Therefore chargeable to FP. A1069 alam niyo na yan. The rest are all self-explanatory. So let’s now illustrate principles through concrete problems. A B | W C

W

60

- because legacy is not an advance A1063

40 2nd

3 1/3

103 1/3 =(60 + 40 + 3 1/3)

Z

-

-

10 1st 50 10 200

Tota l

180

(30)

Check: FP = 240 – 180 = 60 What are chargeable against the FP? In this order: 1. DIV 2. Legacies and devisees 3. Institution


• •

Will W = 40M legacy DIV during lifetime B – 10M, 1990 C – 20M, 1998 Z – 10M, 1999 (nephew) ___________ 40M Gross estate = 200M, Liability = 0. Distribute the estate. A died, survived by his wife and 2 legitimate children. E = = = LC = = LC1 = GE – L + DIV 200 – 0 + 40 240 M ½ (240M) 120M 60M

Kapag naubos ng DIV ang FP, nothing will be paid to the legatees and devisees. Among DIV, the first to be made is the first to charge. The last to be made, should be the last to charge. Therefore, if FP is not enough to cover all, then only those last to be made shall suffer a reduction. Are the donations to B and C chargeable against the FP? No, but chargeable against his legitime. It’s an advance.

Z’s donation

= 60 (FP) – 10M = 50 Wife’s 40M legacy = 50 – 40M Remaining FP = 10 Distribute 10 via intestacy. May 200 tayo! So pasok! Another problem: Intestate naman. A B | W C

While T left a will, it only contained one provision, i.e. LEGACY in favor of the wife. It’s not considered as part of the legitime of the wife BUT considered as given to a stranger, chargeable against the FP, under A1063. The rest will be given by intestacy. We’ll only check if the legacy in favor of wife is inofficious.
HEI RS B Legiti mes 60 Advance s (10) Leg rem: 50 C 60 (20) Leg rem: 40 3 1/3 Wi ll Intestate Share 3 1/3 Total

Estate: Gross estate = 80M; Liability = 0 DIV B – 70M, 1990 C – 10M, 1992 X – 80M, 1998 (nephew)
____________

53 1/3 =(50 + 3 1/3) 43 1/3 =(40 + 3 1/3)

160M Hereditary estate = 80 – 0 + 160 = 240M LC = = LC1 = = ½ (240) 120 120/2 60

Page 79 of 81

HEI RS B

Legiti me 60

Intestate Share 80 (60 leg; 20 FP)

Advan ces 70 (60
legitime

Tota l 10

Second view: Chargeable against all other co-heirs.
HEI RS B Legiti me 60 60 60 180 80
FP)

Intestate Share
(60 legitime, 20

Advanc es (60) (10)

Tota l 0 50 60

) ) 70 ) 80 C W

(10 C 60 80 (60 leg; 20 FP) 80 (60 leg; 20 FP) (10

FP

80
FP)

(60 legitime, 20

legitime

80
FP)

(60 legitime, 20

W

60

-

180

(80)

160

Pero ganon din yung lalabas sa computation. Whose FP is it chargeable? Only the CH or all the shares of all those who received from the FP? DLC says: Nakalagay sa batas, legitime lang eh so excess should be chargeable against all those who received in proportion to their respective shares. Is there any problem with that? Another example. Intestacy pa rin. Estate: Gross estate = 140M Liabilities = 0 DIV B – 80M, 1990 C – 20M, 1992
___________

Since intestate, we give intestate shares first. FP = = = = 240 – 180 60 – 10(yung sobra sa advance ni B) = 50 50 – 80(donation to X) -30

Where do we charge the B’s advance of 70? 60 chargeable against legitime and the excess 10 is chargeable against the FP. Who will shoulder the 10? DLC says: It should be divided among the intestate share kaya hindi ko binawas kagad sa 20 ni B. Donation to X is inofficious in the amount of 30M. First view: Ibabawas yung 10 kay B. Therefore, ubos na FP!
HEI RS Legiti me Intestate Share Advanc es Actual legitime to be paid by E 0 ) ) 50 60 110

100M Hereditary estate = 240M FP = 240 – 180 = 60 Where to deduct shortfall between excess DIV to B and legitime? FP Whose FP? 1st view solution
HEI RS B Legiti me 60 80
FP)

B

60

80
FP)

(60 legitime, 20

(60
Legitime

(10 C W 60 60 180 80
FP) (60 legitime, 20

FP

(10)

Intestate Share
(60 legitime, 20

Advanc es (60 leg) (20 FP)

Tota l 0

80
FP)

(60 legitime, 20

C W

60 60 180

80
FP)

(60 legitime, 20

(20)

60 80 140

Sina B at X ang umubos ng FP (ubos na FP, kaya legitime na lang ang maibibigay). Pero meron ba tayong 110M to pay the share of C and W? Wala tayong pera! Wala, kasi yung estate natin ay 80 lang. Kulang tayo 30M. Ibabalik ni X yan, collation in the third sense. Returning back to estate what is in excess of allowed to be given by will. The CH in whose favor the donation was inofficious is the only one who bears the burden.  B

80
FP)

(60 legitime, 20

May pambayad ba tayo? Yes, the gross estate. Bakit 0 si B? Kasi lahat nung 20 chinarge na yung excess sa FP na tinanggap niya in excess of his legitime.

Page 80 of 81

2nd view solution
HEI RS B Legiti me 60 Intestate Share 80
FP) (60 leg, 20

Advance s (60) - 1/3 (20FP)

Total

2/3 of 20M

is also for his account. So magbabalik sha ng 20M even if the value of property is only 10M. Not required to return the very property but only the monetary value. He has a choice, sell the property at 10, then come up with another 10. Heirs may file action for specific performance. It’s not unfair to him because during 20 years, he enjoyed the property for free. Relevance of the years: First to be made is first to charge. Who among the donees shall suffer the reduction. Suffer a reduction. Last one is last ot charge. Kung pangalawa pa lang ubos na, then entire has to be reduced and return. Don’t take in inflation. Computation of estate: basis of values at time donations were made. If inofficious, return monetary value as computed, not the property. Magkabaliktad: • Donations in favor of CH are ALWAYS chargeable UNLESS donation provides otherwise. • When it’s a legacy, it’s not chargeable against legitime, UNLESS the will provided otherwise. If there are donations in favor of CH, date is immaterial insofar as value not exceeding legitime is concerned. Value of donation not exceeding legitime is always considered advance. What becomes material: dates of donation chargeable against FP. As against FP, the first made is first entitled to charge. Last made last entitled to charge. In CH, immaterial yung dates. Another problem. X |illegitimate | B A W

C

60

80
FP)

(60 leg, 20

(20) - 1/3 (20 FP )

40leg + 2/3 of 20M

W

60

80
FP)

(60 leg, 20

- 1/3 (20 FP )

60 + 2/3 of 20M 100 + 20M 140

180

Sobra ng 20 yung nakuha ni B. Everyone shall bear it. FP = 240 - 180 = 60M Itotal mo lahat. In my view, it has to be against all who received in the FP, not only against the heir who received the inofficious donation. DONATION IS INOFFIOUS. What must the donee return? Must he return the property or just the value of the property? The law is very clear the donee must return the value, NOT the very property. Illustrate: Suppose T during lifetime donated to CH property consisting of house and lot in Ayala Alabang that time worth 10M but when T died 20 years later, property is already worth 40M or increase in value from 10-40 by 30M. When estate was computed, what value of property shall be returned to estate? Value at the time donation was made. What value shall be added back to estate? 10M Suppose in the computation of FP and charges against FP that donation was inofficious by 5M, he has to return half of the 10. What must he return: Half the property or half the value? That makes difference because if the former, 20M ang irereturn niya. Monetary value lang of the property, ergo return only 5M. Pagkabayad niya, it’s settled. Inofficious donation has been returned under the CC. Suppose the value of the property had been impaired. When the property was donated to a 3P, it’s value was 40M but with time, value of donation dwindled. From 40M, it’s value now has been reduced to 10M. Inofficious yung donation. 20M yung excess that the donee had to return. Will his return of the property discharge his obligation? May obligation to pay additional 10M? Yes. Whatever increase in the value property will be for his account. But the reverse is true, impairment

Will: A = ¼ E; B = ¼ E; W = ¼ E DIV: C nephew D niece E friend F friend 20M, 1990 20M, 1991 20M, 1992 20M, 1993 _________ 80M

GE = 160M, L = 0. Divide the estate. Estate = 160 – 0 – 80 = 240 LC LW LIC
HEI RS

= 240/2 = 120 = 60 = 60
Legiti me

Page 81 of 81

A B W

120 60 60 240

number of debts. Then the negative sum will necessarily be deducted from deduction inter vivos. Issue I want you to research. Should we pay the debts through the DIV? Hindi naman nakalagay sa batas diba. Hindi legitime ang utang. If we do not consider the negative balance and simply add the donations, then those donations will necessarily become the estate. Heirs will receive something from estate because the donations shall be reduced. Bakit tatanggap ang heredero pero hindi babayaran yung mga utang. You will have to have reason for it. I might ask you in the donation. Go back to donation provision.

FP = 240 – 240 =0 All the donations are inofficious. AND they will have to return. Since no more FP, hindi na rin ihohonor ang will (testamentary dispositions). Di rin naman uubra yung will kasi impaired legitime ni A. Tanggalin natin si B, sha nagpapagulo jan eh. X | A W

CAPACITY

In capacity to succeed, the most important provision is on unworthiness. Where an heir becomes unworthy, he loses the right to inherit. He is disqualified. This is A1032. Grounds which will make an heir incapacitated. This is a matter of law. But if you look on provisions of code on disinheritance, some causes of unworthiness are also grounds for disinheritance. Kapag dinisinherit, at on that same ground but disinheritance was ineffective. Is heir disqualified under A1032? Suppose T disinherited the heir on that ground but the disinheritance was ineffective. Will had a problem. Tama na naging ineffective yung disinheritance but he’s unworthy under 1032, ano sabi ni Tolentino? The view of Sen. Tolentino is that when a ground for disinheriting an heir is also a cause for unworthiness, T has a choice of disinheriting OR doing nothing and let A1032 apply as a matter of course BUT when the decedent decides to disinherit the heir on that ground but such disinheritance was ineffective, the heir can no longer be disqualified under 1032. Waiver daw yun. DLC disagrees with Sen. Tolentino. 1032 is a catch-all remedy. Kung dinisinherit niya at ineffective yung disinheritance, 1032 will apply. Walang waiver jan kasi matter of law. Repudiation lang ang walang representation. There’s representation in incapacity, disinheritance (which is also incapacity), predeceased. End of the course.
4 hours exam. Somebody has to prepare 2 bluebooks. Questionnaire and piece of paper with name. Passing. Under university code, 70% of maximum possible score. Therefore, if lower passing mark, it’s purely an act of grace. Kay Elsa sa office ni sir sa Law Center.

Will: A = ½ E; W = ¼ E DIV: C nephew D niece E friend F friend 20M, 1990 20M, 1991 20M, 1992 20M, 1993 _________ 80M

GE = 160M, L = 0. Divide the estate.
HEI RS A W Legiti me 120 60 180 120 120
(60 legitime, 60 FP)

Will

Total

120 60 180

E = 240 FP = 60 Who is the first to charge? FP = 240 – 180 = 60 - 20 for C (abswelto na) - 20 for D (abswelto na) - 20 for E (abswelto na) ----0 Pero 180 yung legitime. Yung 160M. So si E ang magbabalik ng 20M para mabayaran yung legitimes ni A and W. Annabelle Rama problem last meeting: If we deduct the entire amount of debts which is less than total

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