ASSIGNMENT IN CIVIL LAW REVIEW I

(Summation)

Video No. 1
Inheritance - Wills or Testate Succession

In this episode of the Legal Help Desk on Solar News Channel, the hosts, Atty. Karen
Jimeno and Atty. Rod Nepomuceno discuss our legal rights on inheritance via will or
testate succession together with their guests, Atty. Norieva de Vega and Atty. Krisanto
Nicolas of Nicolas and De Vega Law Office.

At the outset, the presenter stated that one of the most common problems Filipinos
have is dividing their inheritance from relatives or loved ones who had passed on. This
is usually due to the lack of will or testamentary succession left by the deceased.
Accordingly, a will is an act whereby a person is permitted, with formalities prescribed
by law, to control to a certain degree the disposition of this estate, to take effect after his
death. When it comes to preparing a will, there are certain things that we need to know
such as the following:

1. What are the steps and requirements needed to write a will?

2. Is the assistance or presence of a lawyer required?
3. What are the advantages of making a will?

After a brief introduction and explanation on inheritance by the hosts, the discussion on
testate succession forthwith started which is hereby summarily illustrated as follows, to
wit:

1) Host: What does it take to plan in distributing your wealth upon death, and what are
the advantages in doing that?
Guest: It’s actually very simple to do a will as we will discuss later on. It’s just as
interesting as holographic will. You will no longer need a lawyer and it is not
expensive. You don’t even need any formalities as it is very simple. In our
experience, it’s very sad because the most painful cases are those where the
siblings are fighting against one another. And that will happen if you don’t do a will
and if you don’t take care of it before you die.

2) Host: If you don’t leave a will, how can you distribute your properties, and how
different is it if you have left a will?
Guest: The difference would be, if there is a will, you can control the disposition of
your properties to a certain extent permitted by law. If there is no will, you let the law
control for you.

3) Host: Given example, you have a man who has a wife and two kids. Assuming that
the man died without a will, how can his estate be distributed?
Guest: So we go to intestacy. First, you cut it in half because the half belongs to the
wife, and the remaining half will be divided equally among the two children and the
wife, hence, they will get 1/3 each of the remaining half.
Host: That is if assuming the two kids are legitimate children.

4) Host: How about if he has an illegitimate child?

Guest: The illegitimate child has a right to get ½ of the share of a legitimate child,
and to clarify, the mistress has none. In the case of adopted child, he has the same
rights as that of a legitimate child.

5) Host: Let’s say with this case there is no will. You have a wife and two legitimate
children. Do the parents, and the brothers and sisters inherit?

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 Guest: In that case, the rules of exclusion come into play. According to succession
love goes down first before it ascends, meaning if there are descendants, then they
would be taken priority. Then with the parent’s presence together with the
descendants, the parent would be naturally excluded.

6) Host: If you are the Dad in this example who passed away, how can you change
the distribution if you write a will?
Guest: You can give more actually, let’s say to your favorite child you may increase
his share. The general rule is that you don’t encroach on the so-called legitime.
Your child as a compulsory heir, you cannot deduct from what the law is giving him.

7) Host: Let’s say for instance, I am one of the two compulsory heirs. How can you
increase the share of the other heir without removing my right? What is my
automatic right which you cannot touch or interfere with?
Guest: Let’s say with P100,000.00, the value of the estate. So half of that would be
the conjugal share, fifty-fifty thousand. Now, with that P50,000.00, let’s divide it for
them to half. Half would be reserve for the legitime, and the half would be reserve
for the free portion.
Host: In other words, P25,000.00 would be the legitime which will be divide among
the surviving wife and the two legitimate children, and then the other extra
P25,000.00 may all be given to one of the two kids thru a will.

8) Host: So basically, if you said in your will “all to Rod (one of the two children).”
Effectively, the only amount that will go to him out of the P100,000.00 is really just
P25,000.00. Right? Not the whole P100,000.00.
Guest: Yes.
Host: And of course, when you’re talking about the free portion, as long as the
required share of the compulsory heirs is satisfied, you may give the so-called free
portion to your friend or to any other person, even to your housemaid or to charity.

9) Host: Who can make a will, and the requirements?

Guest: Basic requirement only, anyone not prohibited by law can make a will. So it
means anyone who is at least 18 years of age and older, and must be of sound
mind.
Host: How do you determine that? Is it the time when you were making the will?
Guest: I look at will as a basic contract. If you buy something, you must know what
you are buying. Likely, if you want to divide your property, you must know how to
divide it, who you will be giving that to. That is actually the basic requisite of
soundness of mind.

10) Host: What are those formal requirements of having a notarial will?
Guest: Of course, it must be subscribed by the testator, and it must also be in
writing. Subscribed means that the testator must sign it. And it must be signed on
each and every page, except the last on the left-hand margin.
Host: Even you specify left, if it is signed on the right, it can potentially not be
allowed?
Guest: Yes, you run that risk although there is a Civil Code provision which says
substantial compliance. There was this instance that one of the witnesses forgot to
sign one page but then it was allowed by the Supreme Court.

11) Host: What are other requirements?

Guest: Three credible witnesses who are not disqualified under the law such as
those who are not domiciled in the Philippines, and those who have been convicted
of perjury.

Note/Comments: At this juncture one of the guests mentioned that the law requires
that the witness must be a Filipino citizen, but one of the hosts corrected it that it is

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 not necessary to be a Filipino citizen but requires to be a resident of the Philippines,
and the other guest butted in saying, “yes domiciled here in the Philippines.” Verily,
the latter guest who butted in was correct because according to Article 821(1) of the
Civil Code, any person not domiciled in the Philippines is disqualified from being a
witness to a will.

Moreover, one of the hosts asked if a mistress can be a witness, but no answer was
given. Nevertheless, the hosts and the guests were unanimous in saying that there
is no jurisprudence yet on the matter. For me, I am of the opinion that a mistress of
the testator may be made as witness to a will as long as she has all the
qualifications and not disqualified by law. Her credibility, however, may be
impugned during probate proceedings depending on the circumstances of each
case.

12) Host: Is it necessary that the witnesses should be able to read and write?
Guest: Yes, because it is the requirement that they will be able to attest that the
testator understood what the will is.

The other guest butted in, saying that as requirement, the witness must be over 18
years of age; must not be blind, deaf and dumb; must be able to read and write.

Note/Comments: As to the age requirement, I believe it is not proper to say, “must

be over 18 years of age” because it connotes that a person who is exactly 18 years
of age at the time of signing is not included, but only those who are 18 years old
and 1 day or over. What is more appropriate is “must be at least 18 years of age” or
“must be 18 years of age or over.”

One of the hosts commented that any one of the heirs is also prohibited from being
a witness. For me, any legally qualified heir can be a witness to a will because
nowhere in our law of succession that prohibits such heir from being a witness to a
will. In fact, even an instituted heir, not as devisee or legatee, can be a witness to a
will under Art. 823 of the NCC because undue influence or pressure on the part of
the attesting witness would still be present.

13) Host: And then, so three witnesses, what else?

Guest: The three witnesses must subscribe and attest to the signing of the will in
front of the testator and of each other. So, the signing cannot be done in separate
rooms because each of the witnesses should be seeing other witnesses signing the
will.
Host: Yes, they should see the person making the will, also signing the will.

14) Host: Is there any requirement as to the language?

Guest: It must be in a language or dialect known to the testator.

15) Caller: I am married to a divorced foreigner who has two kids with his first wife, and
we have a pre-nuptial agreement. Along the way, we have established a business.
My question is: Does his two children have claim in our business?
Guest: Most probably, yes because even after the decree of annulment for
example, the ties between the legitimate children and one of the parents still exist.

16) Question from Twitter: My wife and I have acquired some lands and plan on
making a will stating that we leave everything to our children. What are the steps
and requirements that we need to make a will?

Note: This matter has already been discussed by the guests and the hosts. In
addition, however, the making of the will requires a notary public because the will
must be acknowledge before a notary public.

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17) Host: Can you explain an attestation clause as compared to a jurat?
Guest: It’s in the clause indicated under the Civil Code. It says that the witnesses
sign in the presence of each other and of the testator, and that they appear before
the notary public, and the number of pages stated therein.

18) Host: What are the requirements for the holographic will?
Guest: The only requirement is that it must be entirely dated, signed, and written by
the testator.
Host: Who will then attest to the fact that it was hand-written and really made by the
testator?
Guest: If you file it in court already, then the court will require three witnesses who
are familiar with the handwriting of the testator and who will testify that it is really the
handwriting of the testator, if contested. But if not contested, only one witness is
needed.

19) Host: For instance, if my husband sent me a letter and it says, “To my dear wife, I
will leave everything to you and to our children.” Then he signed it and dated. So,
can I present that to court and say, this is his will?
Guest: Well, there is a difficult part, the intent, because you must have disposing
intent, meaning you must intend such written instrument to be the will.

20) Host: For example, I don’t like one of my kids, and I omit him from my will.
Supposing I was specific - to child A, child B, child C, and then I had child D, totally
omitted or to child D, I will leave nothing. What is the effect of that? Does it have the
effect of disinheriting your child?
Guest: No, it doesn’t have that effect. Actually, it produces devastating result. It will
annul the institution of heirs, (Host: meaning the whole will becomes null and void,
the court will not….Guest: leaving legacies and devises, but if there are no legacies
and devises, then you are right).
Host: To clarify, what do you mean by legacies and devises?
Guest: Well, if there’s a will, and you have children, and you have free portion that
you give to friends for example or to a particular institution, then these are legacies
and devises (involving personal and real properties, respectively).
Host: Simply stated, any legacy or devise shall be respected, and then the rest of
the dispositions will be annulled.
Host: So, what happens there is that, well, the rules of intestate succession come
into play?
Guest: To that extent, yes. This is how technical succession is. Even just a minor
detail, for example during the lifetime of the testator, one of the children was given a
car. That could be a donation inter vivos. So, instead of annulling everything, it’s a
mere completion of the legitime. So, everything that was stated in the will shall be
respected, you’ll just add what is lacking.
Host: All that has been given to the heir during the lifetime of the testator may later
on be questioned so as to consider it as advance inheritance which shall be
computed and deducted from the share of such heir.

21) Host: What are really the grounds for disinheriting?

Guest: The grounds for disinheritance are very specific. So, if it’s not there, you
cannot use that. But let’s look at the more basic example like commission of a crime
(any crime) by a child against the parent; commission of a crime that gives ground
for legal separation such as violence, or womanizing - that would be a ground for
disinheritance also; attempt on the life of parents, or spouse, or descendants;
imputation of a crime involving a penalty of imprisonment for 6 years or more, if it is
proven to be ground for disinheritance; and another is unworthiness, if let’s say
when you prostitute your child.

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22) Host: Are there people who are disqualified from inheriting?
Guest: One example is a priest who administered the last rites before the testator
died. So, he cannot inherit and his relatives up to the 4 th civil degree. Another is any
one of the witnesses to the will. He would be disqualified, except of course if he has
a legitime, he can still get that but outside of the legitime he won’t get any.

23) Host: In any circumstance, mistress cannot get anything even by will.
Guest: Yes. It is a policy of the law that you cannot give donation such as that to
illegal unions.

24) Question from Viewer: My mom shares a property with her brothers and sisters.
They are planning to sell it. If she dies before it’s sold, will her kids inherit her
share? Or does she have to state this in her will? Do the kids need to have SPA?
We are US citizens living in the States.
Guest: The children, by virtue of the right of representation, can inherit the share of
their mother.
The other Guest: From a practical perspective, on the other hand, since they are
US citizens, although they are entitled to inherit, they will encounter administrative
difficulty in getting the title to their names. So, my suggestion is, they have to
acquire dual citizenship first before they attempt to do that.

Comments: According to one of the hosts, to have a dual citizenship is a good

qualifier. Nonetheless, albeit it’s a good qualifier, I believe that they will not find
such difficulty considering that our 1987 Constitution allows them to acquire private
lands in the Philippines through inheritance or succession. So, by virtue of any
pertinent document such as Affidavit of Adjudication by Sole Heir, Extrajudicial
Settlement of Estate with Partition, or Judicial Decree of Settlement of Estate of the
Deceased Person with Partition, they can apply for registration and issuance of the
corresponding certificate of title in their names with the proper Registry of Deeds.

25) Host: When does the title or the share actually transfer to the children or heirs?
Guest: It’s transmissible upon the point of death. Such transfer includes not only
property, but rights and obligations as well. So, if there is debt, the same shall be
deducted from the estate, and the heirs shall be liable only to the extent of what
they have inherited.

26) Errol’s Question: My parents have been married for years but my father has been
living with his mistress for almost a decade. My mother’s net worth is bigger
compared to my father; our properties, savings, and cars are named under my
mom. In the case that my mother passes before him, what will happen to our house
and my mother’s assets? Is there a way to make sure that only my mother’s
children and her siblings get the inheritance by will? Or is it required by law that my
father gets half?
Guest: Write a will, preferably a holographic will as it is easier, but make sure that it
is stated therein why he will not be given whatever inheritance that he will get. It
must be specified therein that he has given ground for annulment, that he
committed marital infidelity or has been living with his mistress for a decade now.
The other Guest: As practical advice, his mom should first file a petition for legal
separation so that it will no longer require proof that her estranged husband has
been committing sexual and marital infidelity or concubinage as it is already a
matter of public record.

27) Host: How and when can you edit a will?

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 Guest: You can edit a will anytime by virtue of a codicil or if it is a holographic will, if
you erase you shall counter sign it, and you can revoke a will anytime. You can tear
it up, you can burn it as long as you have the intention to revoke it. You can even
ask someone else to do it for you provided it is based upon your instructions.

28) Host: Do all wills have to go through probate, and what is probate?
Guest: Yes, all wills have to undergo probate. So, probate means it’s a proceeding
in court whereby you prove the due authenticity and execution of the will. So, first
you have to look at the formal requisites if it is compliant therewith, and then
second, you have to look at the sound mind of the testator. Once the will has been
probated, it is already a settlement, but partition will not be immediately done as the
will still has to be reviewed by the court.
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Video No. 2
Intestate Succession

This is in continuation of the topic discussed in Video No. 1 regarding Testate

Succession. In this episode, the same hosts, Atty. Karen Jimeno and Atty. Rod
Nepomuceno, together with their guest, Atty. Alfredo Lazaro, Jr will discuss our legal
rights on intestate or legal succession according to our New Civil Code.

1) Host: What happens if a person dies without a will, what does the family do?
Guest: Since there is no will, you have to go to court to open the estate of whoever
died.

2) Host: While the heirs are agreeing to divide the estate among themselves through
extrajudicial settlement, at what point do they go to court?
Guest: Well, right away the heirs have to go to court to determine who are entitled
to get a part of the estate. Some people would normally have a problem
determining, who are the legitimate heirs, who are the illegitimate children, etc.

3) Host: Just to clarify, if someone passes away, regardless if you, among your
siblings are in the agreement that you will settle among yourselves, and you don’t
need lawyers. Should you still go to court right away to open the estate?
Guest: No, not necessarily. You can have an approval of extra-judicial settlement.

4) Host: So, you have that extrajudicial settlement to… okay, this property is yours,
this property is yours, but really, they are guided I suppose by a particular
proportionate sharing provided by the law?
Guest: Yes….. Normally children inherit in equal share. That is, basically everything
is equal. Now, with the wife will have the same share as a legitimate child.
Host: Okay, so basically you have 100% of ….. this is the estate, (the other host
butted in, saying that if P1million the value of the .....)
Guest: Then you divide it by 5. They are 5, 4 kids and wife, divide it into 5.

5) Host: Just for our televiewers’ appreciation. Whenever you talk about that, we have
to take it into consideration already the ½ share of the spouse (the guest butted in,
saying: in the absolute community property, will do). The other host continued: So,
in this case, P1million just as an example you have one legitimate wife, 4 kids. So,
the legitimate wife will have ½ of the estate. So, it’s only P500 thousand, and then
you divide that among the 4 kids and the wife. Thus, they will get P100 thousand
each.
Former Host: So, the wife basically gets her 50%, and then shall get to share as
one legitimate child in the other half which is the estate of the decedent.
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 Guest: Yes.

6) Host: We have to take it into consideration the ½ share of the wife to the absolute
community property (ACP). Basically, the wife will get ½ of her share from the ACP,
and she will get her share in the estate of the decedent. We have to clarify that this
case is a scenario wherein spouses do not have pre-nuptial agreement and have an
ACP as their property regime, hence, the spouses have ½ share in their common
property.
Guest: Yes.

7) Host: For instance there’s no children, and only the surviving spouse is left, then
the spouse will get everything. Let’s say there is a spouse and the parents of the
deceased spouse are still alive, what shall be the distribution or their proportionate
share in the estate?
Guest: Normally, half-half, ½ for the spouse and ½ for the deceased’s parents.

8) Host: For example, if you have children, who will be excluded?

Guest: Automatically, the ascendants will be excluded. Even the parents of the
deceased.

9) Host: So let us say you have a spouse, does a spouse exclude anyone?
Guest: No.

10) Host: So basically, even your spouse will have to share with everyone else?
Guest: Well, let us put it in this way, the scenario is that you have no kids, no
ascendants, then the surviving spouse gets everything.
Host: Correct.

11) Host: Alright, let’s complicate things. We all know about illegitimate children. How
much will be the share of one illegitimate children?
Guest: Well, an illegitimate child, assuming there are legitimate children, the former
will get ½ of the share of one legitimate child. Now, if there are no legitimate kids,
and for instance the deceased was then a playboy, and he has no wife and survived
only by his illegitimate children, then they will get the entire estate.

12) Host: But what if, the illegitimate children survived with the deceased’s parents, can
such parents claim their shares in the estate?
Guest: Yes, of course.

13) Host: Yes, the parents apart from illegitimate children?

Guest: But the descendants exclude the one above.
Host: So, in this case, the parents cannot argue that all the children of our children
are illegitimate, therefore, we are the only one who are entitled to his estate. Is that
correct? Does the illegitimacy allow for the exclusion of the ascendants?
Guest: Oh yes! They are still his children, right? They are still entitled to get.
Host: The rule is that descendant first.

14) Host: And then again, you mention earlier that one of the complications might be,
that the deceased has other children outside. Assuming that we, the legitimate
children of the deceased, wanted an extra-judicial settlement to avoid complication
and difficulty. We then agreed and divided the property among ourselves through
extra-judicial settlement. Two months after, someone appeared claiming that he is
our half-brother. Can this person compel us to re-do everything?

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 Guest: He can file a case in court to claim his inheritance, contending that he was
deprived of his share.
Host: And he has to prove that he was really an illegitimate child.
Guest: Well, he can say that. It is up to the oppositor to say that he is not an heir.
Host: Can it be presumed that he is not an heir?
Guest: No, he is the one claiming so he has to prove it.

15) Host: Are there instances that there was a will, but intestacy or intestate succession
still comes into play?
Guest: Oh yes. For example, the will is invalidated or there is preterition found
during the probate, or you cannot implement the provisions of the will as it does not
state who, are the proper heirs who can get the property, then intestate succession
will come into play.

16) Host: Now, who appoints the administrator who will manage all the properties? Do
the heirs present who will be the administrator?
Guest: They can nominate who they want, or the court may either adopt it if there
will be no opposition, but if somebody opposes it, then the court will determine who
is the best administrator.

17) Host: For the meantime, who really preserves the property? Who has the right to
make sure that the real estate taxes are paid, or how about if some properties are
being leased, where do the lease payments go for the meantime?
Guest: It goes to the estate, theoretically, to be handled by the administrator.

18) Host: So, can other children get some amount from the estate?
Guest: No, because we have the procedure for that way. Normally, they will apply
for the expenditure to the administrator who will apportion and determine the validity
of the expenditures because his job is to preserve the estate, to pay the obligations
first, such as taxes, debts, etc. and then, divide the remaining to the heirs
accordingly.

19) Host: Usually, the children, or an heir becomes the administrator?

Guest: Yes, normally it is the wife.

20) Caller: It’s all about my parents who got separated sometime in early 1980. My
father found another family and has two children. My parents have no legal
separation or annulment of marriage. They were in good terms again, but a year
ago, my father got a live-in partner again with whom he has also two children. My
father is a retired military. Does my mother have any claim against my father?
Resource speaker: Is your father dead?
Caller: He is still alive. How about my father’s pension as he is the only one
benefiting therefrom.
Resource speaker: Of course, definitely. She is the wife.
Host: Where does the pension go in case the father dies?
Guest: It will become part of the estate. It becomes community property; you
determine the property is and the remainder will become the estate of the father.

21) Host: If the beneficiary indicated is the wife, does it go to the wife?
Guest: Yes, it will go to the wife. You have to do something about it. You don’t have
to wait before he dies. She can claim what is hers.
Host: Since your mom is the legitimate wife, she can ask support from your father.
The first, second, and third live-in partners don’t have any claim from your father.

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22) Caller: Can my mother claim a share from my father’s pension?
Host: Yes, she is the legitimate wife.

23) Question from Karen: I am an illegitimate child. Do I still have a right to claim an
inheritance from my biological father even though I am not using his surname?
Guest: Yes, of course, for as long as you can prove your filiation with your dad,
there is no problem. Provided there is a letter or other proof to prove your filiation.

24) Question from Terry: My great grand-aunt passed away, she never married and
has no children. She has two living siblings and 10 nieces and nephews. She has 3
parcels of land in the province each consisting of 5 acres. How will we divide these
lands among us?
Guest: They are only siblings; they will divide equally. The nieces, as a group, not
as one.
Host: If there are nieces and nephews of a deceased siblings, they will get as one
of that deceased siblings. We have to clarify that if the siblings are also the parents
of the nephews and nieces, the latter will get nothing. It is really just the siblings will
inherit from your aunt. But if there are deceased siblings who have children, then
the latter will also inherit by representation.

25) Question from Janice: My father died a few months ago and left no will. He is
survived by my mother, 3 legitimate children – including myself, and 2 illegitimate
children he fathered before marrying my mother. How will the division of his assets
proceed?
Guest: As I said earlier, the share of the legitimate children is higher. The
illegitimate children will only get ½ of the share of one legitimate child from the net
estate of the father.

26) Host: How will you divide, that is, basically legitimate children will get equal portion
as the spouse?
Guest: Yes.
Host: and the illegitimate children will get ½ of the share of one legitimate child.
Guest: Yes.

27) Host: There is this question if they could question in intestate succession that those
who are included as compulsory heirs, can anybody just come and question?
Guest: You know in disinheritance there must be proof, and you must have a
corresponding paperwork to do that. Example, what are the grounds? It must be
clearly stated.

28) Host: For example, he is already disinherited. You are a parent. Of course there are
grounds for disinheritance, for example, attempt to the life of the decedent, if I
disinherit Rod, what are the requirements.
Guest: It must be in writing. He must be able to prove it and present it in court and
tell them you are not allowing this person to inherit.

29) Host: While still alive, am I allowed to do that?

Guest: Yes, even though you are still alive, you can do that.

30) Host: If I just wrote and I have not presented in court, can my children present that?
Guest: Yes.

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31) Host: So, is it already a disinheritance which ha to comply with the formalities of a
will?
Guest: Well, the law does not state. You just state the grounds. Well, there’s no
formalities of a will. Normally, it is included in a will if you want to forego the legitime
of one person. So, you are not allowing X to inherit because he did this to me and
that. But in some instances, I am not allowing to disinherit this person because he is
not a good person to me, you are not making reference to disinherit this person, you
can just put it in any written instrument.

32) Caller: There properties left by the parents of my spouse who died 3 years ago.
Mayroon po syang mga kapatid na tatlo. Tapos, namatay na po ang asawa ko. Ano
pong karapatan ko sa ari-arian ng magulang ng asawa ko bilang asawa niya?
Guest: Yes, because asawa niya. But normally, it is the children who will represent
the father, right.
Host: may mga anak ba kayo?
Caller: Mayroon po.
Host: Naunang namatay yung husband niya kesa sa parents nya.
Guest: It happens normally pag namatay, the children, the husband and the
siblings will already have the right to divide.
Host: Tatlong kapatid plus husband. Let us say, 400k and since your husband
passed away, yung 100k nya mapupunta sa dalwang anak mo.
Guest: right of representation.

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